WARNING

The court directs that the following notice shall be attached to the file:

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

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

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

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

(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 No.: Toronto C55090/11

DATE: 2013-02-22

Citation: Children’s Aid Society of Toronto v. J.C., 2013 ONCJ 493

ONTARIO COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO,

Applicant

— AND —

J.C. S.M.

Respondents

Before Justice Curtis

Motion Heard on 24 October 2012

Reasons for Judgment released on 22 February 2013

Sherri Smolkin . . . . . . .for the applicant Children’s Aid Society of Toronto

Reide Kaiser . . . . . . . . . . . . . . . . . . for the respondent J.C.

Paul Fox . . . . . . . . . . .. . . . . . . . . .for the respondent S.M.

CURTIS, J.:

Index:

1. Over-view
2. Background
3. Litigation History a. Positions of the Parties
4. The Law on Summary Judgment
5. The Protection Findings a. Recent Findings regarding the Mother b. The Decision of Scully, J. on 9 February 2011 c. Impact of these Findings Regarding the Mother d. Evidence regarding the Protection Findings e. Services Used by the Mother
6. Disposition a. Disposition Legal Principles i. Analysis re Disposition b. Disposition Options i. Disposition ii. Plans for the Child
7. The Mother’s Plans a. The Mother‘s Previous Plans b. The Mother’s Current Plan c. Analysis of the Mother’s Plan iii. The Mother’s Lack of Judgment Regarding her Relationships iv. Alternative Plans for the Care of the Children v. The Child vi. The Impact of the Findings of Scully, J. regarding Disposition vii. Examination of the Disposition Options
8. Why Not a Supervision Order? c. The Summary Judgment Request d. Access i. Access Legal Principles ii. Access Analysis iii. The Mother’s Access to the Child
9. Orders

Over-view

1. This is the decision in a motion for summary judgment brought by the Children’s Aid Society of Toronto (“CAST”) in a protection application, asking for a finding that the child R.L.C. is in need of protection, and a disposition that she be made a crown ward, without access.

2. The mother wants a trial regarding both the protection finding and the disposition of crown wardship, and argues that her plan presents a genuine issue for trial.

3. The issue for the court to determine is whether there is a triable issue with respect to the orders that CAST seeks.

Background

4. The mother is J.C. (“the mother”), born […] 1990 (now 22 years old). The father is S.M. (“the father”). This court case is about their daughter R.L.C., born […] 2011 (one year old at the time of this motion).

5. The mother has another child, H.A. (born […] 2009, 3 years old at the time of the motion) who was apprehended by CAST at birth and remained in care continuously from that time. She was made a crown ward, without access, on 9 February 2011, by order of Scully, J. on a summary judgment motion.

Litigation History

6. R.L.C. was apprehended at birth on […] 2011, due to historical and current child protection concerns. H.A. had been made a crown ward without access seven months before R.L.C. was born. R.L.C. has remained in the continuous care of CAST since then, and had been in care 13 months when the summary judgment motion was heard.

7. There were many changes in the court orders dealing with the mother’s access to R.L.C., including three reductions in her access:

a) At the time of the apprehension ([…] 2011), the mother’s access was at CAST’s discretion, to be a minimum of two times a week. Until 19 December 2011, the mother was having day visits at R[…] where she was living, supervised by R[…] staff and CAST social workers, three times per week;

b) On 19 December 2011, on the mother’s motion, Sherr, J. increased the mother’s access to:

i. Starting 19 December 2011, one overnight per week at R[…], or another location agreed upon by CAST, together with two other day visits per week; and,

ii. Starting 16 January 2012, two overnights per week, on the same terms, and one other day visit per week;

c) On 24 February 2012, on the motion of CAST, Sherr, J. reduced the mother’s access, without prejudice, to supervised access at CAST’s discretion, not less than two times per week, for a minimum of two hours per visit. The visits could not continue at R[…] as the mother was being discharged from there early, due to her behaviour;

d) On 13 March 2012, on the motion of CAST, Sherr, J. reduced the mother’s access, with prejudice, to access at CAST‘s discretion, including the level of supervision required, not less than three times per week. The visits continued at CAST’s office, three times per week, for two hours per visit; and,

e) On 14 August 2012, on the motion of the CAST, Sherr, J. reduced the mother’s access to not less than two times per week. Since then the mother‘s access has been two times per week, for two hours per visit, supervised at the CAST office.

Positions of the Parties

8. CAST is asking that the child be found in need of protection under s. 37(2)(b)(i) (physical harm to the child resulting from failure to care for the child) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended (“C.F.S.A.”). If the protection findings are made, CAST is asking for a disposition of crown wardship no access, for the purposes of adoption.

9. The mother filed an Answer on 11 July 2012 seeking the return of R.L.C. to her care. At that time her plan was to live in a one bedroom apartment with her partner D.M. (“D.M.”).

10. The father did not file an Answer and was noted in default on 11 June 2012. His lawyer appeared on the summary judgment motion and advised the court that he was consenting to the request for crown wardship, no access.

The Law on Summary Judgment

11. A party may make a motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99, as amended (“the Rules”). These are the portions of rule 16 that are relevant to this case:

When Available

16.(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.

12. The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment: F.I. v. K.F., 2000 CarswellOnt 455 (Ont. Sup. Ct.).

13. On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. Children’s Aid Society of Hamilton v. M.N., 2007 13503 (ON SC), [2007] O.J. No. 1526 (Ont. Sup. Ct.).

14. The court’s role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material requiring a trial. Because summary judgment is now explicitly contemplated by Rule 16, this may “broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.” Children’s Aid Society of the Regional Municipality of Waterloo v. T.S. 1999 14252 (ON CJ), [1999] O.J. No. 5561 (Ont. Ct.).

15. When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party’s position, but rather whether the evidence is sufficient to require a trial: Children’s Aid Society of the County of Dufferin v. J.R., (2002) 45515 (Ont. Sup. Ct.) .

16. 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 (Ont. Sup. Ct.).

17. Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial: Native Child and Family Services of Toronto and D.C., 2010 ONSC 1038 (Ont. Sup. Ct.), para. 6.

18. 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 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. Ct.).

19. 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 the Regional Municipality of Waterloo v. H. (T.L.), 2005 ONCJ 194, [2005] O.J. No 2371 (Ont. Ct.).

20. 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 the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent: Children’s Aid Society of Toronto v. R.H., 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. Ct.).

21. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant: Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC), [2008] O.J. No. 3969 (Ont. Sup. Ct.), para 43.

The Protection Findings

22. CAST is seeking protection findings pursuant to s. 37(2)(b)(i) of the C.F.S.A.:

Child in need of protection

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

(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.

Recent Findings regarding the Mother

The Decision of Scully, J. on 9 February 2011

23. There was a summary judgment motion on a protection application regarding H.A. and the decision by Scully, J. was released on 9 February 2011 (about 20 months before this motion for summary judgment). Scully, J. made an order for crown wardship, no access, regarding H.A.. This order was not appealed.

24. These are the findings made by Scully, J. in that decision that are relevant to the issues for decision in this summary judgment motion:

a) The mother did not have the capacity to parent H.A.. The mother’s level of cognitive functioning is low. The mother had not been able to demonstrate an ability to live on her own and meet her own needs, let alone the needs of a child in her care;

a) Despite extensive coaching and support over one and one half years, the mother was not able to either incorporate or learn parenting skills sufficient to allow her even semi-supervised visits. The mother never progressed to the point that she could manage unsupervised access to H.A.;

b) there were no teaching methods that would be appropriate and could produce the desired results for the mother and H.A. in a timely fashion;

c) The mother’s boundaries are poor and her judgment is deficient. In particular, her social judgment is poor and so is her choice of partners. The mother had a history of involvement with partners who would pose a risk to her and H.A.;

d) Given the mother’s history of short-term ill-advised relationships over the previous three years, the court had no confidence that the mother could establish a stable supportive relationship with Mr. Houston (the partner she was proposing to plan with);

e) The mother does not comprehend that her poor choice of partners and her own emotional and behavioural difficulties have an impact on her child's well-being; and,

f) The mother would not be able to parent H.A. without full-time support, which does not exist.

Impact of these Findings Regarding the Mother

25. These findings by Scully, J. are significant, detailed, admissible, highly relevant, and directly related to the issues for determination on this summary judgment motion. Many of the findings are findings regarding exactly the issues before the court on this summary judgment motion. These findings were made in February 2011, only 20 months before this summary judgment motion, and only seven months before R.L.C. was apprehended.

26. The importance of these findings and the recent timing of the findings are extremely significant in this summary judgment motion. The court may consider the past conduct of a parent towards any child that parent is caring for (C.F.S.A. s.50(1)). The findings were not appealed. There is some onus on the mother to specifically address these findings on this summary judgment motion. There is an onus on the mother to show the court what has changed since these findings were made.

27. On the summary judgment motion the mother did not demonstrate any understanding of or insight to the child protection concerns or the reasons H.A. was removed from her care and became a crown ward.

Evidence regarding the Protection Findings

28. There is substantial evidence to support the protection findings sought by CAST, and R.L.C. is found to be in need of protection under s. 37(2)(b)(i) C.F.S.A..

29. Unless there is evidence that things have changed since those findings were made in February 2011, the detailed and recent findings made by Scully, J. regarding the mother’s parenting of H.A. support a finding that R.L.C. is in need of protection. The mother did not dispute those findings, and did not provide evidence that the circumstances that gave rise to those findings have changed. The mother continued to present the same delays and deficiencies at the time of R.L.C.’s birth. In fact, these findings are so detailed and so recent that the mother might have consented to the protection findings on this summary judgment motion.

30. Dr. Perlman, in a parenting capacity assessment date 23 February 2010, recommended psychological and psychiatric intervention (through counselling) for the mother to address her emotional problems. The mother said in March 2012 that she had completed a psychiatric assessment, but has not produced a report or any other evidence to confirm this. There is no evidence that she has engaged in a therapeutic relationship with a psychologist or psychiatrist. She said that she is not participating in any regular or formal counselling and is not taking any medication for her diagnosis of Attention Deficit Hyperactive Disorder (“ADHD”).

31. The mother had very limited prenatal care. She was transient during her pregnancy and after the birth of R.L.C.. She was suspended from Covenant House in March 2012 due to her behaviour.

32. The same concerns that existed regarding the mother at the motion for summary judgment for H.A. continue to exist. The mother has not demonstrated any differences or better ability to parent which would give rise to a triable issue on the protection finding.

33. The reasons for the protection findings regarding H.A. are set out in detail in paragraph 24 above, and can be summarized regarding R.L.C. as follows:

a) The mother’s level of cognitive functioning is low, and she has a significant learning disability and attention difficulties. The mother is unable to meet the child's needs on a consistent basis. The mother‘s diagnosis of mild intellectual disability affects her ability to learn and to implant effective parenting techniques;

b) The mother would not be able to protect R.L.C. from her own emotional problems. The mother’s anxiety, fear and anger as well as her learning disabilities and lack of a reliable support network, present concerns about her parenting;

c) The mother’s boundaries are poor and her judgment is deficient. In particular, her social judgment is poor and so is her choice of partners. The mother had a history of involvement with partners who would pose a risk to her and her child. The mother does not comprehend that her poor choice of partners and her own emotional and behavioural difficulties have an impact on her child's well-being;

d) The mother is vulnerable and there are multiple risk factors for this mother. The mother’s poor social judgment, poor choice of partners, inability to read her child’s cues, and attention deficits potentially place R.L.C. at risk of harm. The risk of harm may occur through exposure to abusive partners, neglecting the child's needs, and being overwhelmed by the demands of the task; and,

e) There was no evidence that any of these concerns had been reduced or removed. The mother did not establish that she had acquired the stability and necessary parenting skills and that the risk to the child was satisfactorily addressed.

Services Used by the Mother

34. The mother was more engaged with services at the time of R.L.C.’s pregnancy and birth than she had been during her previous involvement with CAST. She was involved with the CAST Pregnancy and Aftercare worker, R[…], Covenant House, Public Health, the SHOUT Clinic, a midwife from Sage Femmes, and the Wraparound Program. The service providers were communicating regularly as well as meeting with each other and the mother during her pregnancy, to review the history, assess her current abilities to parent, provide support and plan for the baby. She had a referral to an adult protection worker. However, there is no evidence that the mother has used any of the services to effectively address the significant concerns raised by Dr. Perlman. The mother was offered many services and was given an opportunity to show improvement in her parenting and her situation. She was unable to offer any evidence of improvement.

Disposition

Disposition Legal Principles

35. Once a finding is made that the children are children in need of protection, the court must determine what order for their care is in their best interests.

36. Section 57(1) of the C.F.S.A. sets out the types of orders available to the court after a child is found to be in need of protection:

37. (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, in the child’s best interests:

Supervision order

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve 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 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 or 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.

5. The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out by Perkins, J. in Children’s Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.) (), para. 25, as follows:

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

7. 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.

8. Section 57(1) is limited by section 70 of the C.F.S.A., which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the C.F.S.A..

9. The child is under six years old and has been in care for more than one year. An order for society wardship is not available for R.L.C., unless the court makes an order extending the time period allowable under section 70 C.F.S.A.. The court can only make such an order if it is in the best interests of children to do so. This child needs certainty, finality and permanence. It is not in the best interests of this child for her status to continue to be unresolved. The only options now available for the child are to return to the care of one of their parents (or someone else’s care) under a supervision order, or a crown wardship order.

10. Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. CAST has been involved with this mother for several years, through her parenting of her previous child H.A., who is currently not in her care, and who was removed from her care through the child protection justice system. The society worker made efforts to refer the mother to programs to assist her (e.g., parenting programs, counselling for the mother). The mother did not did not follow through with the referrals.

11. Section 57(3) of the C.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For reasons articulated below, returning the child to the mother, even with a supervision order, would not be adequate to protect the child in this case and would not be safe.

12. Section 57(4) of the C.F.S.A. requires the court to look at community placements, including family members, before deciding to place a child in care. No alternative plans were proposed at the motion for summary judgment.

13. In applying these provisions, the court must determine what is in the best interests of the children. The criteria to determine the children’s best interests are set out in s. 37(3) of the C.F.S.A.:

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:

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

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

c) The child's cultural background.

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

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

f) The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

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

h) 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.

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

j) The effects on the child of delay in the disposition of the case.

k) 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.

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

m) Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3).

44. 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, 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 (Ont. Ct. [Gen. Div., Div. Ct.]).

45. In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child’s perspective: Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.).

46. The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance: Children’s Aid Society of Winnipeg (City) v. R. (1980), 1980 3654 (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety: Children’s Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup. Ct.).

47. An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a crown ward, and it changes forever the life of the parent. No one in the family is untouched by this order, and no one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and important decision any court can make.

Analysis re Disposition

Disposition Options

48. These are the options available regarding disposition for R.L.C.:

a) returned to the care of either of her parents, with or without a supervision order;

b) placed with other family or community members; or,

c) an order for crown wardship.

Disposition

Plans for the Child

The Mother’s Plans

49. The mother has put forward many different, consecutive plans for her care of the child in the year before the summary judgment motion.

The Mother‘s Previous Plans

50. While the mother was still residing in R[…] in December 2011, her initial plan for R.L.C. involved living in a one-bedroom apartment in an apartment building where three other adults requiring supportive services would be residing. There would be a worker available on-site, 24 hours per day, seven days per week to all of the four residents, including the mother. This plan recognized the mother’s need for support, but as there was no full-time on-site support person dedicated to helping the mother, CAST did not support this plan. The mother was discharged from the R[…] program in March 2012 for bad behaviour, and moved to a youth shelter, and this plan was not pursued.

51. The mother’s next plan, in April 2012, involved living with her then boyfriend J.R.C.G. (“J.R.C.G.”), then 22 years old, whom she had been dating for four months, since December 2011. The mother and J.R.C.G. moved in together in May 2012 and the relationship ended about two weeks later with the mother being charged with assaulting J.R.C.G. (the result of that charge was a 12 months peace bond). This plan raises concerns about the mother’s judgment in presenting this plan.

52. The mother’s next plan of care involved her sister (the maternal aunt) as a potential caregiver and/or support person. The mother would not provide CAST with the telephone number of the maternal aunt, and no information was provided to CAST about this plan. Although that plan was not pursued and was discarded, the mother continued to identify the maternal aunt and the maternal grandmother as supports in her Plan of Care.

The Mother’s Current Plan

53. Less than three months following the end of the mother’s plan with J.R.C.G., the mother proposed, in her Answer and Plan of Care dated 11 July 2012, to care for the child with her new partner D.M., 28 years old. This is the plan she is proposing at the summary judgment motion. This is a recent relationship, which the mother says started a few months earlier, when D.M. was released from jail. They live in a small one-bedroom apartment in a two story home.

54. D.M. described his parenting role with the mother to a CAST worker as “helping her out”. D.M. reported the following:

a) a violent criminal history and a criminal record for armed robbery and auto theft, and that he spent time in jail for assaulting a police officer. He is unable to provide all the documentation requested for a criminal records check, as he has no identification;

b) he has no parenting experience;

c) a history of instability and transience in his living situation, as he had spent time living on the street in either Edmonton or Toronto;

d) he had been diagnosed with ADHD and Fetal Alcohol Spectrum Disorder; and,

e) a history of being unable to keep a job due to developmental conditions. He supports himself with income from the Ontario Disability Support Plan.

Analysis of the Mother’s Plan

55. All of the evidence presented by the mother on the summary judgment motion was taken into account by the court. The mother’s evidence did not specifically nor adequately address the protection concerns raised by CAST.

56. The mother‘s plans for the child have become less realistic over time. Both the levels of the plans and the quality of the plans have decreased over time. The fact that the mother has changed plans so frequently in recent months suggests that she does not have a viable or even suitable plan for the care of her child. She has not presented a plan in which only she is caring for the child.

She has chosen several unsuitable candidates to co-plan with. She has also presented co-planners with whom she has only a very recent relationship. She has not addressed her lack of a reliable support network.

57. The mother’s current plan involves D.M., who has a significant history of transience, homelessness, and instability. He has a criminal record and a history of police involvement. The mother was aware of D.M.’s criminal record but did not know the details.

58. This plan proposes that the mother parents R.L.C. independently, while living with D.M.. The mother does not acknowledge that she requires a high level of support to be able to parent R.L.C., despite findings to the contrary by Scully, J.. Neither the mother nor D.M. was able to provide details about the kind of support D.M. would provide. There is almost no evidence about this plan.

59. The mother is not involved in supportive psychiatric or psychological services of any kind, or counselling. She never followed this recommendation (made by Dr. Perlman) through.

60. Although the mother has been involved with a number of services, these services are geared towards meeting the mother’s own needs, and are not specific to parenting. There was no evidence, letter, or report from any service provider regarding the mother’s participation, and nothing which would support her plan.

61. There was no evidence at the summary judgment motion from D.M., despite his role in the mother’s plan. D.M. has never met the child, has never had access to the child, has never asked for access to the child, has never been to court, and was not present at the summary judgment motion.

62. The mother’s current plan is not a plan with an air of reality, given the mother’s history and the level of support required. The plan is not a viable, responsible or suitable plan. This plan is not realistic and has no chance of success at trial. This plan does not raise a triable issue.

The Mother’s Lack of Judgment Regarding her Relationships

63. The mother continues to demonstrate lack of judgment in choosing friends and partners who pose a risk for the child. This is demonstrated in both her choice of repeatedly unsuitable partners, and her repeatedly changed plans for caring for the child.

64. The father has a history of involvement with CAST as a former crown ward and as a parent of two other children. Neither of his two children is in his care and he does not have access to either. The father sexually abused his sister. The father was determined, by phallometric testing, to pose a risk to younger children. It was determined that if the opportunity arose, he may sexually re-offend. The father’s psychiatric assessments indicated he was pre-disposed to becoming a violent sexual offender and was labelled a sociopath.

65. The mother’s poor judgment and poor choice of partners and friends has not changed over the past two years to suggest she is better able to care for R.L.C. than she was for H.A.. She does not understand the importance of stability and security for the child, as demonstrated by her ever changing plans involving a variety of different (and unsuitable) caregivers.

66. The mother has repeatedly shown lack of judgment regarding her relationships with partners. How can the court have any confidence in the mother’s ability to protect the child when she has exercised such fundamentally poor judgment?

Alternative Plans for the Care of the Children

67. At the motion for summary judgment there were no alternative plans, from family or community, for the care of the child.

The Child

68. R.L.C. has remained in the same foster home since her placement at birth. She is healthy, with no specialized needs, and is meeting all her developmental milestones. She is happy and very social. She would not be difficult to place for adoption.

The Impact of the Findings of Scully, J. regarding Disposition

69. More than a year has passed since the findings of Scully, J., on 9 February 2011 regarding the mother’s parenting. She has had about 20 months with a clear indication of the problems she needs to address to regain her child. She has been involved in child protection litigation for several years, regarding both her children. The mother is an experienced child protection litigant. She ought to have taken steps in those 20 months to address the protection concerns and the findings set out by Scully, J. in his reasons for decision.

Examination of the Disposition Options

70. The evidence which supported the protection findings is also relevant and influential regarding disposition. Since the mother’s earlier involvement with CAST regarding H.A., the mother has had ample time and opportunity to work on these issues, but has not provided CAST or the court with information related to the protection concerns, and has not addressed these serious protection concerns.

Why Not a Supervision Order?

71. One option is to return the child to the mother, subject to a supervision order. That is not a suitable option as the child would not be safe with the mother under a supervision order.

72. The mother has lied to the CAST about her relationship with the father, and has not followed through with recommendations of Dr. Perlman that she needs to get psychiatric or psychological counselling.

73. Any plan for the return of the child to the mother would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order. There is no foundation for a working relationship or a supervision order under the circumstances in this case. Any supervision order involving the child and the mother would be an ineffective instrument for the protection and safety of the child. The mother is not a suitable candidate for a supervision order, which requires a sense of co-operation and a willingness to work with CAST.

74. The child is entitled to certainty, finality and to grow up in a safe and stable family, where she is valued and protected from harm. She will not have this if she is returned to the mother.

The Summary Judgment Request

75. The question for the court on a motion for summary judgment is not whether there is any evidence to support the mother’s position, but rather whether the evidence is sufficient to require a trial. There is not sufficient evidence to require a trial in this case.

76. The mother’s evidence on the motion offered no details of the current status of any treatment or other program she may currently be in. She offered no explanation as to why she did not follow through with Dr. Perlman’s recommendations regarding counselling.

77. The court has all the necessary material facts to determine the disposition issue. There is very little dispute about the material facts in this motion. The mother, instead, offers varying explanations for the material facts, most of which explanations are inadequate or not believable.

78. The real issue was what decision the court should make based on the facts. This is a question of law. In such circumstances, rule 16(8) of the Rules applies: if the only genuine issue is a question of law, the court shall decide the issue.

79. If the mother’s evidence on the motion is her “best foot forward”, (see Children’s Aid Society of Toronto v. K.T., 2000 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. Ct.)), it discloses no genuine issue for trial. There is no realistic possibility of an outcome other than that sought by the CAST (see Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC), [2008] O.J. No. 3969 (Ont. Sup. Ct.)).

80. There is no need to have a trial judge decide this issue. The outcome of this trial is a foregone conclusion. The motion for summary judgment is granted.

81. It is not in the best interests of R.L.C. to delay her permanent placement any longer. The proper disposition for her now is clear. The mother is not capable of caring for this child and she should not be returned to her care.

82. It is not in the child’s best interests, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship.

Access

Access Legal Principles

83. The test for access to crown wards is set out in s. 59 (2.1) of the C.F.S.A.:

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.

84. The process for a decision regarding access, following a decision that the children should be made crown wards, was also set out by Perkins, J. in Children’s Aid Society of Toronto v. T.L. and E.B., supra, 2010 (Ont. Sup. Ct.), para. 25, as follows:

85. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

86. Determine whether the access would impair the child’s future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

87. 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).

88. Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children’s Aid Society of Ottawa v. R.L., 2004 4334 (ON SC), 2004 CarswellOnt 3080, 132 A.C.W.S. (3d) 718, [2004] O.T.C. 665 (Ont. Sup. Ct.), para. 57; Children’s Aid Society of Niagara Region v. C. (J.), 2007 8919 (ON SCDC), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

89. There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children’s Aid Society of Niagara Region v. C. (J.), 2007 8919 (ON SCDC), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

90. Once the decision is made in favour of crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children’s Aid Society of Toronto v. M.(C.), 1994 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.), p. 50; Children’s Aid Society of Toronto v. D.P., 2005 34560 (ON CA), 2005 CarswellOnt 4579, [2005] W.D.F.L. 4375, [2005] W.D.F.L. 4373, 19 R.F.L. (6th) 267, 202 O.A.C. 7, 93 A.C.W.S. (3d) 853, [2005] O.J. No. 4075 (Ont. C.A.).

91. Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the C.F.S.A. creates a presumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), 1998 800 (SCC), [1998] 2 S.C.R. 534, 230 N.R. 201, 204 N.B.R. (2d) 1, 520 A.P.R. 1, 165 D.L.R. (4th) 58, 41 R.F.L. (4th) 339, [1998] S.C.J. No. 52, 1998 CarswellNat 557 (S.C.C.), para. 44.

92. The onus is on the persons seeking access to a crown ward to prove on a balance of probabilities that:

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

(2) the relationship between the person and the child is beneficial to the child; and,

(3) access will not impair the child's future opportunities for a permanent or stable placement.

90. The parent has the onus of establishing all three portions of the test in section 59 (2.1) of the C.F.S.A.. This is a very difficult test for the parent to meet: Children’s Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.).

91. The meaning of the phrase “beneficial and meaningful” was considered in Children’s Aid Society of the Niagara Region v. M.J. , 2004 2667 (ON SC), 2004 CarswellOnt 2800, [2004] W.D.F.L. 510, 4 R.F.L. (6th) 245, [2004] O.T.C. 634, [2004] O.J. No. 2872 (Ont. Sup. Ct.), para. 45-47:

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.

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

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.

Access Analysis

The Mother’s Access to the Child

92. The mother attended her visits, spoke to R.L.C. in a loving and caring way, was able to engage R.L.C. in play, and always asked about her health and activities. She was focused on ensuring that R.L.C. was well-fed, wearing clean clothing and healthy.

93. The mother had difficulty correctly identifying the child’s cues, and responding by providing appropriate care. The mother was very concrete in her thinking, which resulted in rigid scheduling of the child’s care, and behaviour on the mother’s part that was inconsistent with the very clear behavioural cues presented by the child. The mother had difficulty being flexible around changing with the child’s changing developmental needs. The mother had difficulty implementing repeated information and teaching provided by R[…] staff and CAST staff.

94. As the mother’s access increased, the ongoing concerns regarding the mother’s parenting and behaviour became more apparent. Access was supervised by both CAST workers and workers from R[…]. The concerns raised by both were consistent with the findings of Scully, J.. The mother was resistant to intervention and to teaching, and was argumentative with those offering teaching. The mother’s behaviour also led to her expulsion from R[…]. The mother’s argumentativeness with anyone who was attempting to teach, provide information to her or suggest alternatives to her, interfered with her ability to accept direction, integrate new learning and stay focussed on the child’s needs and activities.

95. The mother’s access to R.L.C. shows a pattern of regression over the period since the child came into care. Several different types of access were tried. There were four motions regarding the mother’s access and access was reduced three times by court order.

96. The original access order in December 2011 provided access three times per week for day visits. That was increased to over-night visits, first once per week, and then twice per week, plus additional day visits, by order made 19 December 2011. This order provided a lot of access and provided the mother with an opportunity to learn, and to demonstrate to the workers what she had learned.

97. Access was then reduced by order of Sherr, J. on 24 February 2012, on motion brought by the CAST. The overnight visits were eliminated, access was moved to the CAST offices, access became supervised, and the time was reduced from three hours to two hours per visit. This was a significant reduction in the mother’s access.

98. Access was again reduced by order of Sherr, J. on 13 March 2012, on motion brought by CAST, to access in CAST’s discretion, not less than three times per week.

99. On 14 August 2012, access was again reduced, from three times per week to two times per week, by order of Sherr, J., on motion brought by the CAST, due to the ongoing concerns during visits.

100. At the summary judgment motion, the mother’s access is supervised, two times per week, for two hours each visit.

101. The mother‘s evidence did not provide any information which would give rise to a genuine issue for trial regarding access.

102. The mother’s access is not beneficial or meaningful from the child’s perspective. While the access may be enjoyable, there is insufficient evidence that there is a bond between them that is important to the child. The access and the relationship to the mother are not significantly advantageous to the child.

103. Even if the access were beneficial and meaningful to the child, the court must be satisfied that access will not impair the child's future opportunities for a permanent placement. The child is adoptable. Given her age and her adoptability, the mother cannot establish that access would not impede a permanent adoption plan for her.

104. The mother has not met the onus on her to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A.. The mother cannot meet the onus in s. 59(2.1) C.F.S.A. regarding access to the child.

105. The mother’s claim for access to the child is dismissed. There shall be an order for no access to the child.

Orders

106. These are the statutory findings regarding the child:

• R.L.C. is a female child who was born on […] 2011. J.C. is the mother. S.M. is the father. The child is not Catholic and is not Jewish. The child is not Indian and not Native. She was apprehended on […] 2011 in the City of Toronto.

107. The child is found to be in need of protection under ss. 37(2)(b)(i) C.F.S.A..

108. R.L.C. shall be a crown ward without access for the purposes of adoption.

Released: 22 February 2013

Justice Carole Curtis