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.

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court File and Parties

Court File No.: C52823/10

Date: 2013-07-04

ONTARIO COURT OF JUSTICE

TORONTO NORTH FAMILY COURT

IN THE MATTER OF A FURTHER AMENDED PROTECTION APPLICATION UNDER PART III OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, C. 11, FOR THE CROWN WARDSHIP OF O.S.A., BORN ON […], 2008 AND M.O.A., BORN ON […], 2009.

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO

Briar Downey, for the APPLICANT

APPLICANT

- and -

S.A. and O.E.A.

Lawrence B. Geffen, for the RESPONDENT

RESPONDENTS

THE RESPONDENT, O.E.A., not appearing

HEARD: July 2, 2013

JUSTICE: S.B. Sherr

REASONS FOR DECISION

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 children, O.S.A. born on […], 2008 and M.O.A. born on […], 2009 (the children), be found to be in need of protection pursuant to clauses 37(2)(b), (g) and (i) of the Act.

c) That the children be made crown wards without access for the purpose of adoption.

[2] The respondents, S.A. (the mother) and O.E.A. (the father), are the parents of the children.

[3] The father currently resides in Spain. He has had no involvement with the children for four years and has never met his younger child. He did not file any affidavit material or attend on this motion, but did file an Answer/Plan of Care and a letter supporting the mother's plan to have the children placed in her care.

[4] The mother, in submissions on this motion, did not consent to or oppose the society's request for summary judgment to find the children 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.

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

[6] The society and the mother filed voluminous material on this motion. I reviewed the society's notice of motion and the affidavits of the following persons that were filed in support of this motion: Sima Kamyabi, sworn on March 6 and 28 and June 17, 2013; Susanne Legall, sworn on March 6 and June 19, 2013; Melanie Nicholl, sworn on March 1, 2013; Joelle Williams, sworn on June 19, 2013; Allison Hannah, sworn on June 14, 2013; and Vanessa Smickle, sworn on June 26, 2013. I also reviewed the mother's affidavits sworn on March 19 and June 25, 2013, affidavits from two of her proposed supports, sworn on March 20, April 2 and June 25, 2013, and affidavits from her counsel's law clerks, sworn on March 21, 25 and 26, April 2 and June 26, 2013 in support of her position. I also considered the father's Answer/Plan of Care and letter in support of the mother.

Part Two – Factual Background

[7] The facts that follow were either admitted, unopposed, or only baldly denied by the parties.

[8] The children were apprehended from the care of the mother for the first time on December 26, 2010. The reason for the apprehension was that the mother was having a mental health breakdown which included a psychotic episode that required hospitalization.

[9] On December 31, 2010, Justice Marvin Zuker made a temporary order placing the children in the care of the society, with access to the mother in their discretion.

[10] The mother enlisted a number of services and showed significant improvement in her mental health in the ensuing months. She regularly saw a psychiatrist and was compliant with her medication. She worked well with a mental health worker, a public health nurse and a counselor. Her access to the children was gradually increased until they were returned to her care.

[11] On August 2, 2011, Justice Harvey Brownstone found the children to be in need of protection pursuant to clauses 37(2)(b) and (i) of the Act and placed them in the care of the mother, subject to society supervision, for a period of six months.[1]

[12] The mother maintained positive mental health and the supervision order was terminated, on consent, on January 24, 2012. The society continued to work with the mother on a voluntary basis.

[13] The children were apprehended from the mother's care for the second time on April 24, 2012 following another mental health breakdown. The mother's landlord contacted the police that day because the mother was throwing things off of her balcony, including a television. The police forced their way into the apartment and found the mother sitting and chanting with a rosary in her hands, with loud music playing. The children were sleeping at this time. The mother was apprehended under the Mental Health Act and taken to the psychiatric unit of the hospital.

[14] On April 30, 2012, Justice Marvin Zuker made an order placing the children in the temporary care of the society, with access in their discretion.

[15] The mother remained hospitalized until May 9, 2012. The mother's discharge report from Scarborough General Hospital diagnosed her with schizophrenia.

[16] The mother subsequently struggled to maintain her mental health. She was having auditory hallucinations. The society received community reports about mental health concerns about the mother. At various times between May and November of 2012, she was observed by society staff to be acting in a bizarre manner at access visits. At times, she would not respond to the children at visits. For instance, on November 1, 2012, she ate throughout the entire visit and did not play with the children, even when asked. She told the society worker that she only eats when she sees the children and that she can't eat at her house. On November 8, 2012, the mother showed the children a picture of Justin Bieber and told them that he was their brother. She propped the picture against the wall next to them and stared at it while she ate.

[17] The mother did not see her psychiatrist from July 4, 2012 to October 10, 2012.

[18] The mother had several contacts with the police in November of 2012. On November 24, 2012, she was apprehended again under the Mental Health Act and admitted to the hospital's psychiatric unit.

[19] The mother remained hospitalized from November 24, 2012 until December 3, 2012.

[20] The mother was apprehended again on December 18, 2012 and admitted to the hospital under the Mental Health Act. The mother had been observed on an overpass walking into traffic and kicking at cars that day. She remained in the hospital until January 10, 2013. She was apprehended again on January 11, 2013 for causing a disturbance at a grocery store and was transported by the police to the hospital.[2]

[21] The mother did not exercise access from November of 2012 until February 4, 2013.

[22] The mother was proactive in seeking services upon being released from the hospital. She was followed by a psychiatrist and is now involved with the Canadian Mental Health Association Assertive Community Team (ACT) Program. She is followed by a psychiatrist and a mental health worker. The mother is also volunteering with the Black Coalition for AIDS Prevention three days each week.

[23] The mother's mental health has been stable since January of 2013 and it appears that she has been compliant with her medication.

[24] The mother attends punctually for all of her access visits. They presently take place three times each week and are semi-supervised at the society offices.

Part Three – The Law on Summary Judgment

[25] 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.

[26] 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. See: Toronto-Dominion Bank v. Hylton, 2012 ONCA, par. 5.

[27] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v. Children's Aid Society, 2013 ONSC 1357.

[28] 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. See: 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).

[29] Justice A. 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."

[30] 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. See: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.).

[31] 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. See: Children's Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842.

[32] 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. See: 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.).

Part Four – Finding in Need of Protection

4.1 The Law

[37] The society seeks a finding that the children are in need of protection pursuant to clauses 37(2)(b), (g) and (i) of the Act. These clauses read 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.

37(2)(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

37(2)(i) the child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody;

[38] The society has the onus, on a balance of probabilities, to establish that the children are at risk of harm. This onus applies even when their request is unopposed.

[39] 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

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

[41] The evidence set out above clearly establishes that the children were in need of protection at the time of the apprehension under all three clauses of the Act. They were at risk of both physical and emotional harm. Further, the mother was not available to parent the children when she was hospitalized.

[42] The evidence establishes that the mother had severe mental health issues from April 24, 2012 (the date of the apprehension of the children) until at least January 11, 2013. She was hospitalized in psychiatric units under the Mental Health Act on multiple occasions during this period. She was unable to take care of herself, let alone two young and vulnerable children. The mother was not in control of her behaviour and was not able to look after the children's emotional, physical and developmental needs or provide them with a secure or safe environment. There was a risk that she might inadvertently physically harm or neglect them in her deteriorated condition. It would undoubtedly be frightening for the children to see their mother in this condition and this placed them at risk of emotional harm.

[43] There is no triable issue that the children should be found to be in need of protection pursuant to clauses 37(2)(b), (g) and (i) of the Act.

Part Five – Disposition

5.1 Positions

[44] The society's position is that there is no triable issue with respect to the disposition of this case. They submit that the children should be made crown wards with no access, for the purpose of adoption.

[45] The mother submits that there are triable issues. Her plan is to have the children returned to her care pursuant to a supervision order.

5.2 The Society's Submissions

[46] The society acknowledged that the mother has made mental health gains (although they expressed some continuing concerns based on worker observations).[3] However, given the mother's difficult mental history, her failure to maintain her mental health the last time the children were returned to her care (despite having supports in place) and the severe extent of her behaviours when her mental health has declined, the society submits that the mother's mental health gains would need to be consolidated for a much longer period of time before the court could consider returning the children to her care.

[47] The society submits that the mother does not demonstrate sufficient insight into her mental illness, which places her at greater risk of having further breakdowns and placing the children at risk of harm if they are in her care.

[48] The society argued that the mother has not provided an adequate safety plan if her mental health deteriorates.

[49] The society also filed considerable evidence outlining problematic parenting by the mother at access visits. They express concern about her ability to manage and safely supervise the children. They describe how the children will at times wander out of the room and the mother will not follow them. They stated that the mother has difficulty disciplining the children. The evidence described how the children are often whining and crying at visits and how the mother is overwhelmed by this behaviour. Evidence was filed that the older child has been aggressive with the mother at times, physically hitting her.

[50] The society's evidence is that the children only behave in this manner at access visits and are otherwise easy to manage.

[51] The society expressed concern about the mother's judgment. They allege that she has promised the children that they are coming home.

[52] The society submitted that the mother advised their worker in May of 2013 that she wished to return to Nigeria with the children. They submit that she is a flight risk.

[53] The society argued that the mother's access still needs to be semi-supervised and that even if a reintegration with the mother was contemplated, it would be necessary to do this gradually over a lengthy period of time to adequately protect the children. Their argument is that since the children have been cumulatively in care now for over 22 months (including the first apprehension in 2010) and well in excess of the statutory timelines set out in subsection 70(1) of the Act (12 months), the time has run out to attempt such a reintegration.

5.3 Analysis

[54] The society has raised several compelling arguments in support of the ultimate disposition they seek. However, the legal test is not whether the mother will have an uphill struggle achieving success at trial, but whether or not there is a genuine issue for trial. For the reasons that will follow, the evidence satisfied me that there are genuine issues that warrant a trial on the issues of disposition and access. The mother has provided a plausible case that the children's best interests could be served by a return to her care. Her plan deserves further consideration.

[55] The major historical protection concern about the mother has been the state of her mental health. The society acknowledged that the mother's mental health has significantly improved since January of 2013. This is evidenced by the absence of mental health concerns about the mother at visits, the fact that she is able to come to every access visit on time and is organized for the visits, and has been able to maintain a volunteer position three times a week.

[56] The mother filed a medical letter from her psychiatrist dated June 25, 2013. It states that the mother was last seen by him on June 4, 2013, that the mother has no particular concerns and that her mood is stable. The mother presented to the psychiatrist as appropriately dressed and groomed and had good eye contact. Her speech was coherent and logical.

[57] The mother is now seeing a new psychiatrist through the ACT program. She filed a letter from this psychiatrist dated June 26, 2013. The psychiatrist wrote that the mother has been working with their team since April of 2013 and is scheduled to meet with team members twice each week. The psychiatrist indicated that she met the mother once for assessment. She wrote that the mother has presented to the team as stable and non-psychotic. She wrote that the mother has shown good insight into her illness and understands the need for medication. She stated her belief that the mother is compliant with her medication. She expressed some concern about the mother's irregularity with visits but indicated that she is responsible about phoning to cancel and reschedule appointments.[4] She described the mother as stable, non-psychotic and engaging with the team slowly. She said that "these illnesses can take some time to stabilize and at this point, as far as her mental status goes, it can best be described as 'so far, so good'".

[58] The mother also filed a letter from her mental health worker at ACT. The worker writes that the mother has been able to attend adequately to her activities of daily living and appointments and that her affect and mood have been stable. She acknowledges that it is impossible to predict how the mother will fare mentally in the future.

[59] The society submits that the mother lacks insight into her condition, but the ACT team states the opposite. This is an important material fact in dispute. The ability of the mother to understand her illness and take the necessary steps to mitigate it is a critical issue in determining if the children can be safe in her care. The trial judge will be in the best position to assess the mother's level of insight after hearing the witnesses (in particular the mother) examined.

[60] There is also a triable issue as to whether the mother's professional supports are adequate to assist her to safely parent the children. The society argues that nothing has really changed on this front since the time that the children were taken from the mother's care in April of 2012 – she had professional supports at that time and she still had a severe mental health breakdown. The evidence indicates that things might be different now. The mother demonstrates insight into her mental illness which appears to have been lacking in 2012. It appears that she is on new medication that is working. She is working with a multi-disciplinary team. The adequacy of this support needs to be further explored at trial.

[61] The mother has also provided evidence of community support. Two friends deposed that they are available to attend at the mother's home a couple of times each week to provide the mother with support. One of these supports attended at court. There is a triable issue as to whether this support, in combination with the professional supports, is sufficient to protect the children.

[62] There are other factors that support the mother's plan to have the children returned to her care, including the following:

a) She is highly motivated to parent the children.

b) She has shown a high level of responsibility and organization attending on every visit and arriving on time. This indicates to the court that, if well, she would be able to organize the children's lives and get them to necessary appointments.

c) The mother provided access observation notes setting out positive visits with the children. The society evidence is that she comes to visits prepared with a wide assortment of food choices and treat bags for the children to take to the foster home. She also prepares for activities, bringing paint and paper, movies and toys. She has been observed to be affectionate with the children. She clearly loves them very much. The children have also been observed to be affectionate with her.

d) The mother is very open to service suggestions.

e) The mother is highly cooperative with the society. One of the society workers deposed that when mentally well, the mother presents as one of the most polite and agreeable clients she has worked with. This makes her a better candidate for a supervision order.

f) The mother received a positive letter from the organization she volunteers for. They wrote that the mother had demonstrated both dependability and commitment and she has gone above and beyond her duties as a volunteer.

[63] The evidence supports a finding that there is a triable issue as to whether the mother has made sufficient gains in her life to safely parent the children.

[64] The mother rebutted in detail many of the parenting concerns expressed by the society. She was able to demonstrate that many of the concerns set out (but certainly not all) occurred when she was having her severe mental health difficulties (April to November of 2012). She acknowledged that she has difficulties disciplining the children, at times, but for the most part, she states that the visits are very positive. She attached many positive access observation reports in support of her position.

[65] The mother stated that she has learned not to yell or hit the children and there is no evidence that this currently is an issue.[5] She disputed the length of time that the children were allegedly out of her sight at some visits and stated that she had control of these situations. She acknowledged that the children could at times be whiny, but provided explanations that this could be due to the children competing for her attention in the limited time they have together or to sibling rivalry. These are possibly contributing factors to their behaviour.

[66] The negative parenting evidence will be a difficult obstacle for the mother to overcome at trial, but she has provided sufficient evidence for the court to find that her parenting ability is a triable issue that should be explored further.

[67] The society has provided many services for the mother in the past. Unfortunately, they have not been able to provide therapeutic access for her yet. She was only referred to the Therapeutic Access Program on May 14, 2013. Apparently, the mother is on their wait-list. This would be a valuable program for her as it provides skilled hands-on parenting assistance to parents. The evidence indicates that the mother is an excellent candidate for this program as she is open to guidance. There is no evidence of cognitive or learning impairment. She should be able to make parenting gains in this program.

[68] The mother has also provided a viable argument that the children's reintegration with her can be accelerated. She distinguishes this case from cases with infants where parents often have no track record of parenting and a lengthy integration is required. She points out that she was able to adequately parent the children for lengthy periods of time and adequately meet their needs until her mental health problems occurred. This evidence was not contradicted and supports a triable issue as to whether she has the requisite parenting skills to parent the children if her mental health issues are adequately addressed.

[69] The society's evidence that the mother is a flight risk is marginal and denied by the mother. It certainly qualifies as a triable issue.

[70] Lastly, there is conflicting evidence about the nature of the mother's relationship with the children. This is critical to the access issue if the children are made crown wards. The society submits that the relationship is not beneficial and meaningful. The mother says the opposite and the evidence set out in subparagraph 62(c) above provides enough support for her position to create a triable issue.

[71] There is also conflicting evidence as to whether the children's ability to be adopted would be impaired by an adoption order. The society expresses a concern that the mother would undermine such a placement and that the pool of adoptive candidates would be reduced by an access order. However, there is also evidence of the mother's cooperative nature. A trial judge may decide to approach this issue in the same manner as Justice Philip Clay recently did in The Children's Aid Society of the Region of Peel v. D.W., 2013 ONCJ 346 and The Children's Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347 and order access to facilitate the possibility of an openness order in the future – particularly given the ages of these children.

5.4 Summary

[72] I am satisfied that there are several genuine issues for trial which include the following:

a) What disposition order is in the children's best interests?

b) Has the mother made sufficient mental health and personal gains since her last hospitalization in January of 2013 to adequately parent the children?

c) Does the mother have sufficient insight into her mental illness to adequately reduce this risk factor?

d) Does the mother have adequate personal and professional supports to reduce the risks of mental health relapses?

e) Does the mother have an adequate safety plan in place to protect the children if she suffers a mental health relapse?

f) Does the mother have the necessary parenting skill to adequately meet the children's mental, developmental and emotional needs and to ensure their safety?

g) Is the mother a flight risk if the children are placed in her care?

h) Is this an appropriate case for an extension order (making a society wardship order in excess of the statutory timeline) under subsection 70(4) of the Act?[6]

i) If crown wardship is ordered, is the children's relationship with the mother beneficial and meaningful?

j) If crown wardship is ordered, would an access order impair the children's opportunity to be adopted?

[73] It is necessary that the court hear from the mother and her witnesses and to have the society's evidence tested to properly assess and determine these issues.

Part Six – The Father's Plan

[74] The father's Answer/Plan of Care supports the return of the children to the mother. However, at one point in his plan, it appears that he is proposing that the children be placed with him, in the alternative, in Spain.

[75] There is absolutely no triable issue with respect to the father's alternate plan.

[76] The father has no relationship with the children. He has never met the younger child and has been out of the older child's life for four years.

[77] The evidence indicates that when the father originally expressed a desire to parent the children, the society arranged for International Social Services to assess his plan. However, the father never followed through with this assessment. He subsequently advised the society worker that he could not plan for the children as he didn't have legal status in Spain and that he does not have accommodation for the children. He stated that he wanted to come to Canada but could not advise the worker when this might happen.

[78] The father also expressed to the society at one time that he would want to take the children with him and live in Nigeria. This is despite the fact that he told the worker he was "on the run from people in Nigeria" and that he and the mother had made refugee claims claiming they were in danger if they returned to Nigeria.

[79] There should be no further exploration of the father's alternate plan of care at trial.

Part Seven – Findings and Directions

[80] Subrule 16(9) of the rules reads as follows:

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may also,

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).

[81] A summary judgment motion can be an opportunity to make findings of fact not in dispute, narrow the issues to be heard at trial and give directions to assist in organizing the trial.

[82] This court finds that the facts set out in paragraphs 8-24, 41-42, 55, 62 and 76-78 above are not in dispute. Subject to the direction of the trial judge, no further evidence should be led regarding these facts. The parties should concentrate on leading evidence addressing the issues set out in paragraph 72 above. This direction does not preclude the society from leading evidence about the severity of the mother's behaviour and its impact on the children when she has experienced mental health breakdowns.

[83] This case is already on the Assignment Court list for August 7, 2013. Copies of the court's Child Protection Trial Readiness Checklist will be enclosed with this decision. It should be completed by counsel and provided to the Assignment Court judge on the return date.

[84] The mother wishes to increase her temporary access. She has leave to bring this motion before the case management judge on a date to be arranged with the trial coordinator. However, it might make more sense for the society to expedite the mother's involvement in the Therapeutic Access Program instead. This would provide her with extended time with the children while providing her with the parenting guidance that will give her the best chance of successfully parenting the children.

Part Eight – Conclusion

[85] The following orders will be made:

a) Statutory findings for the children pursuant to subsection 48(3) of the Act are made as set out in paragraph 1 of the society's notice of motion.

b) The children are found to be in need of protection pursuant to clauses 37(2)(b), (g) and (i) of the Act.

c) There is no triable issue with respect to the father's alternate plan. Only the mother's plan should be considered at trial.

d) The balance of the society's summary judgment motion is dismissed.

e) Findings of fact are made as set out in paragraphs 8-24, 41-42, 55, 62 and 76-78 of this decision.

f) Subject to the direction of the trial judge, the issues for trial are those identified in paragraph 72 of this decision.

g) The mother has leave to bring her access motion before the case management judge on a date to be coordinated with the trial coordinator.

[86] I wish to thank counsel for their excellent presentation of this motion.

Date: July 4, 2013

Justice Stanley B. Sherr

Footnotes

[1] The facts in paragraphs 9-11 are set out in the statement of agreed facts executed by the parties filed in support of the order of Justice Brownstone.

[2] The society believes that the mother was in hospital until January 23, 2013, but has no record of this. The mother's evidence is that she was not in the hospital after January 10, 2013. The police records filed by the society indicate that the mother was taken by them to the hospital on January 11, 2013, but do not indicate how long she remained there.

[3] A society worker expressed concern about comments made by the mother to her in May of 2013. The mother provided an explanation for these comments, which if accepted, was plausible. Due to the conflicting evidence, I could not draw any conclusions about this evidence on a summary judgment motion.

[4] The mother explained that some appointments have to be cancelled as they conflict with access visits and meetings with her lawyer. If so, these are reasonable explanations.

[5] This was an issue the first time the children were apprehended from the mother's care.

[6] There is conflicting case law as to whether this remedy is available given the length of time that the children have been in care. See the discussion in Catholic Children's Aid Society of Hamilton v. J.T., 2012 ONSC 3893.