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 Information

Court File No.: Toronto C30874/03

Date: 2013-04-29

Ontario Court of Justice

Between:

Native Child and Family Services of Toronto

Applicant

— And —

J.D.R. and B.D.D.

Respondents

Before: Justice Curtis

Motion Heard on: 3 January 2013

Reasons for Judgment released on: 29 April 2013

Counsel:

• Rebecca Kingdon for the applicant Native Child and Family Services of Toronto
• Respondent J.D.R. . . . . . . . . . . . . . . . . unrepresented
• Lenard Kotylo . . .. . . . . . . . . .for the respondent B.D.D.

INDEX

1. Over-view
2. Background
3. Litigation History
   • a. Procedural Issues
4. The Law on Summary Judgment
5. The Mother's History
6. The Father's History
7. Services Offered to and Used by the Mother
8. Disposition
   • a. Disposition Legal Principles
   • b. Analysis re Disposition
   • c. Disposition Options
   • d. Plans for the Children
   • e. Recent Findings regarding the Parents
   • f. Concerns at the Summary Judgment Motion
   • g. Analysis of the Parent's Plans
   • h. Alternative Plans for the Care of the Children
   • i. Why Not a Supervision Order?
   • j. The Summary Judgment Request
   • k. Access
     • i. Access Legal Principles
     • ii. Access Analysis
     • iii. The Mother's Access to the Children
     • iv. The Father's Access to the Children
9. Orders

Over-view

1. This is the decision in a motion for summary judgment brought by the Native Child and Family Services of Toronto ("N.C.F.S.") in a status review application, regarding disposition (the protection finding was made on 2 August 2011). N.C.F.S. is asking for an order that the children A.A.E. (5 years old) and L.W. (3 years old) be made crown wards, without access, for the purposes of adoption.

2. The mother did not file an Answer to the status review application, and was noted in default on 27 August 2012, but she did oppose the summary judgment motion and filed material on the motion. Due to the serious nature of the relief claimed, the mother was permitted to participate despite the default. The father filed an Answer to the status review application. He did not, however, file any material in response to the summary judgment motion. At the summary judgment motion, the parents were seeking the return of the children to them together. The parents want a trial regarding the disposition of crown wardship, and argue that their plan presents a genuine issue for trial.

3. The issue for the court to determine is whether there is a triable issue regarding the disposition that N.C.F.S. seeks.

Background

4. The mother is J.D.R. ("the mother"), born […] 1984 (now 29 years old). The father is B.D.D. ("the father"), born […] 1981 (31 years old).

5. The parents were not married to each other, and did not live together. They have had an on-and-off relationship since 2006. There are two children of this relationship:

• A.A.E., born […] 2007 (five years old); and,
• L.W., born […] 2009 (three years old).

6. The mother has four other children, none of whom are living with her. All of her other four children were removed from her care through the child protection system. Three of her other children have already become crown wards. The fourth other child is still before the child protection courts. Here are the particulars regarding those children:

• D., born […] 2011 (now almost 12 years old). D.'s father is T.L.. D. was made a crown ward on 9 July 2004 with Children's Aid Society of Toronto ("C.A.S.T."), and was adopted;

• M.J., born […] 2002 (now 10 years old). M.J.'s father is T.L.. M.J. was made a crown ward on 9 July 2004 with C.A.S.T., and was adopted;

• L.B., born […] 2004 (now 8 years old). L.B.'s father is G.A.C.. L.B. was made a crown ward on 24 June 2005 with Catholic Children's Aid Society of Toronto ("C.C.A.S."), and was adopted; and,

• Z., born […] 2012 ([…] months old). Z.'s father is C.T.. Z. was apprehended at birth and is now in foster care. In a separate ongoing child protection case, N.C.F.S. is seeking crown wardship, without access.

7. The mother is Catholic, identifies with native heritage, but does not identify membership or association with any specific First Nation. The father has one-quarter Native heritage, as his grandfather was MicMac. There is no Band involvement in this case.

Litigation History

8. The mother asked for A.A.E. to be placed in care in 2010 as she could not care for her. A.A.E. was in care from 29 November 2010 to 18 February 2011 under a temporary care agreement. Both children were apprehended on 15 March 2011 and remained in care until 2 August 2011. The children were apprehended again on 17 April 2012 and remained in care to the summary judgment motion date.

9. When the children were apprehended on 15 March 2011, N.C.F.S. sought a six months society wardship. The state of the home was very bad, filthy, cluttered, unhealthy and unsafe for the children, who were then 3½ and 2 years old.

10. The mother completed several parenting classes and was provided with one-to-one supports from N.C.F.S. to assist with her parenting and managing her household. On 2 August 2011, in a Statement of Agreed Facts (signed by the mother), there was a consent finding that the children were in need of protection under s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended ("C.F.S.A."), and the children were returned to the mother under a six month supervision order.

11. The children were again apprehended on 17 April 2012 for these reasons, which facts were not denied:

a) The mother was not able to keep the home clean and free of safety hazards;

b) The children were not properly dressed and were very unclean;

c) The mother was not complying with the terms of the supervision order;

d) The mother was not able to maintain stable housing;

e) The mother was not able to use age-appropriate parenting techniques with the children;

f) The mother did use appropriate alternate caregivers for the children;

g) The mother did not ensure the children regularly participated in the Head Start program;

h) The mother did not follow through with the recommendation that she receive individual counselling;

i) the mother was not able to respond to the needs of the children, including medical needs; and,

j) the mother did not sign consents allowing the N.C.F.S. worker to speak to doctors or hospitals.

12. N.C.F.S. amended the status review application to seek crown wardship, without access, on 17 May 2012.

Procedural Issues

13. The original date for the summary judgment motion, 27 November 2012, was set on 27 August 2012. On 27 August 2012, the mother was present, assisted by duty counsel, and had just retained a lawyer. The father was not present, but was represented by his lawyer Lenard Kotylo. The amended status review application had been served on 17 May 2012, the mother had not served and filed an Answer, and she was noted that day in default.

14. On 27 November 2012, the summary judgment motion was adjourned to 3 January 2013. On 27 November 2012, the mother was present unrepresented. The father was not present, but was represented by his lawyer Lenard Kotylo. Neither parent had served or filed material in response to the summary judgment motion. The children had been in care, at that time, longer than the time permitted by law (about 15 months in care for A.A.E. (then 5 years old), and about 12 months in care for L.W. (then 3½ years old), which time included prior time in care, required to be counted). The summary judgment motion was adjourned, however, as N.C.F.S. did not serve the summary judgment motion materials until 20 November 2012, only seven days before the motion date, and there was not enough time for the parents to respond to this serious matter. Both parents were cautioned that they could not participate in the summary judgment motion unless they filed the proper court papers. The court adjourned the summary judgment motion on these terms:

a) Peremptory to the parents;

b) The parents must understand that this matter shall proceed on the next return date whether they have filed material or not, whether they are ready or not, whether they have a lawyer or not;

c) The mother shall serve and file her Answer and response to the summary judgment motion by Fri. 21 December 2012;

d) The father shall serve and file his response to the summary judgment motion by Fri. 21 December 2012; and,

e) No further adjournments of the summary judgment motion absent special circumstances.

15. On 3 January 2013, the date set for the return of the summary judgment motion, the parents again sought an adjournment. The mother was present unrepresented. The father was present, and was represented by his lawyer Lenard Kotylo. The mother had still not filed an Answer in the status review application, but opposed the request for summary judgment and had filed material in response to the summary judgment motion. The father had filed an Answer, but had filed no material on the summary judgment motion.

16. The parents sought an adjournment that day to offer a joint plan. Prior to this proposal the parents were planning separately, and each was seeking the return of the children to their separate care. This joint plan was a new plan that came about that day, on 3 January 2013. On the day before the summary judgment motion, the mother had been planning with a different partner. The parents had only advised N.C.F.S. of this new plan about an hour before they all came into court. The parents' request to adjourn the summary judgment motion was refused. At that point, the children (both under six years old) had been in care about 16 months (A.A.E.) and about 13 months (L.W.). Both parents had been given very specific timelines for this motion. At some point, the children's need for certainty, finality and permanence needed to be the most important consideration.

17. The court also held that, despite shortcomings in the materials of the parents (no Answer from the mother, and no response to the summary judgment motion from the father), that both parents should be permitted to participate in the summary judgment motion and make submissions as though proper materials had been filed.

The Law on Summary Judgment

18. 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.

19. 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.).

20. 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] O.J. No. 1526 (Ont. Sup. Ct.).

21. 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] O.J. No. 5561 (Ont. Ct.).

22. 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.).

23. 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.).

24. 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.

25. 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. Ct.).

26. 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.).

27. 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] O.J. No. 5853 (Ont. Ct.).

28. 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] O.J. No. 3969 (Ont. Sup. Ct.), para 43.

The Mother's History

29. The following facts were not denied. The mother's involvement with the child protection system began in her childhood, through C.A.S.T., regarding supportive services provided to her family for a sibling with mild developmental delay, and the mother's childhood disclosure that she had been sexually abused by that sibling when she was 7 to 10 years old. The mother received treatment and counselling regarding the sexual abuse, and the sibling was removed from the home.

30. D. and M.J. came into care in 2003, at the ages of 2 years old and 10 months old, due to concerns about neglect, the mother's depression, the dirty condition of the home, the mother's inability to read the children's cues, the mother's inability to comfort the children, and the mother's transient lifestyle. The mother did not follow through with C.A.S.T.'s recommendations, including referrals to parenting programs and counselling, and she did not obtain secure housing.

31. L.B. came into care in 2005, at the age of 3 months old, due to concerns about neglect, the parent's caregiving skills, domestic violence, frequent alcohol abuse, and the dirty condition of the home. The mother's expectations of the child were inconsistent with the child's age, and the mother was unable to follow the child's cues. The mother did not follow through with C.C.A.S.'s recommendations for counselling, to address issues of loss and numerous unstable and abusive relationships.

32. The mother's current involvement with N.C.F.S. started in February 2008, when A.A.E. was seven months old, and the concerns were the mother's history of transiency, the baby's hygiene, the dirty, unhealthy and unsafe state of the mother's home, and the mother's ability to care for the children. The children were often dirty at daycare and frequently were absent. The mother has suffered from depression and from feeling overwhelmed. N.C.F.S. provided a general family support worker to assist the mother with cleaning and organizing the home and parenting the children, and with other services. N.C.F.S. referred the mother to counselling but she did not attend.

The Father's History

33. The following facts were either admitted or not denied. The father was in the care of C.C.A.S. until he was 21 years old. He worked at various jobs (moving, warehouse work, construction) until 2008. In addition to work, he has been on welfare on and off for a 10 year period.

34. The father was diagnosed with attention deficit hyperactive disorder as a child, and in 2000 was diagnosed as bi-polar. He takes medication for this (Zorazipan and buffers). N.C.F.S. has no information from the father regarding his treating psychiatrist or doctor, or information regarding his treatment plan and his compliance with a treatment plan.

35. The father has a long criminal record from at least 1999 to the present. The father has not provided a copy of his criminal record to N.C.F.S. or to the court, despite requests to do so. This is the available information about the father's criminal convictions and jail time:

a) He went to jail for about 18 months in 1999-2000 for armed robbery;

b) He served time for mischief and thefts under $5,000;

c) In 2008 he was charged with sexual assault and forcible confinement (involving a woman not known to N.C.F.S.), and served over three months before getting bail. He was sentenced for this in 2011 on the charge of assault only, and the sentence was time served, a conditional sentence and two years probation;

d) He went to jail in February 2009;

e) He spent four days in jail in December 2010 for failure to appear;

f) He served time from March to May 2011 for robbery; and,

g) He served time from 4 November 2011 to 19 May 2012 for multiple mischief and theft under charges.

36. The father acknowledged that as a result of his criminal activity and periods in jail he had to stop work, lost contact with his children and with the mother, and he was unable to participate in the child protection cases. When the father was released from jail in May 2011, he contacted N.C.F.S. to arrange access. The father requested assistance with addiction rehabilitation services, and anger management counselling. He told N.C.F.S. that he was self-medicating his bipolar condition with marijuana use.

37. The father has failed to provide requested information (e.g., information about his criminal convictions, his probation status, attending counselling for his addictions issues, the status of his mental health including compliance with treatment, and his attendance in rehabilitation programs for his mental health and addictions rehabilitation programs, as required by his probation). He was also asked to attend an anger management program and a parenting program prior to starting access. Throughout his involvement with N.C.F.S. he has continued to be belligerent in his contact with and communication with N.C.F.S. staff, and been aggressive, yelling and swearing at N.C.F.S. workers.

Services Offered to and Used by the Mother

38. The mother completed several parenting classes and was provided with one-to-one supports from N.C.F.S to assist with her parenting and managing her household.

39. By April 2012, N.C.F.S. had provided the mother with the following services:

a) Home weekly support;

b) Cleaning services for her home;

c) Talking Circles;

d) Groups;

e) Individual counselling;

f) A healing lodge;

g) Offers for shelter;

h) Assistance with food vouchers, tokens, child care; and,

i) Numerous reminders and warnings regarding her care of the children.

40. However, there is no evidence that the mother has used any of the services to effectively address the significant concerns raised. 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

41. 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.

42. 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:

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, 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.

43. 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:

1. 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)

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.

44. 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.

45. The children are under six years old and have been in care for more than one year. An order for society wardship is not available for them, unless the court makes an order extending the time period allowable under s. 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. These children need certainty, finality and permanence. It is not in the best interests of these children for their status to continue to be unresolved. The only options now available for the children 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.

46. 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 many years, through her parenting of her three older children and her youngest child, none of whom is currently in her care, and all of whom were removed from her care through the child protection justice system. The N.C.F.S. workers 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.

47. 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 children to the mother, even with a supervision order, would not be adequate to protect the children in this case and would not be safe.

48. 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.

49. Section 57(5) of the C.F.S.A. requires the court to place a native child with a member of the child's extended family, band or native community, or another Indian or native family, unless there is a substantial reason for placing the child elsewhere. There were no alternative plans and no native plans (from family, band or community) offered at the summary judgment motion.

50. 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).

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, 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.]).

52. 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] 2 S.C.R. 165 (S.C.C.).

53. 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), 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.).

54. 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

55. These are the options available regarding disposition for the children:

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

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

c) an order for crown wardship.

Plans for the Children

56. The parents have put forward several different, consecutive plans for their separate care of the children before the summary judgment motion was heard.

57. In the father's Answer and Plan of Care filed 24 February 2012, he identified K.H., his girlfriend, as part of his plan. He hoped to live with her, her two children and one grandchild, and he hoped she would assist him with childcare. The father hoped to take anger management and parenting courses (but had not yet taken them). He hoped to enrol in counselling. He hoped to use the support services of N.C.F.S. and the local community centres. He hoped to attend school. He later said that N.C.F.S. could not contact K.H. as she did not know about her role in his plan to care for his children.

58. In his later Answer and Plan of Care, filed 17 August 2012, he proposed a plan to care for the two children on his own. Again, his plan included things he hoped to do, but had not yet done (to move to a suitable residence, to take anger management and parenting courses, to enrol in counselling, to use the support services of N.C.F.S. and the local community centres, to attend school). These were all the same things he had hoped to do in his earlier Plan of Care filed 24 February 2012, but he had still not done any of them.

59. The father was provided with referrals for anger management programs and for counselling, but has not provided N.C.F.S. with any confirmation of attendance. He has also not provided N.C.F.S. with any collaterals, programs or other community services that would have information to support his plan of care.

60. The mother filed no Answer and Plan of Care in the status review application, and she was noted in default. Technically, she has no right, then, to put forward a plan for the care of the children. However, at the summary judgment motion the court ruled that the motion would proceed as though there were no procedural irregularities, and the parents would be permitted to put forward their evidence and their plans to the court. The court treated her evidence on the summary judgment motion as her plan of care.

Recent Findings regarding the Parents

61. The Statement of Agreed Facts signed for the protection finding made on 2 August 2011 identified the following protection concerns:

a) The mother's failure or inability to maintain a safe, clean and appropriate home environment for the children and her inability to address serious concerns with the unsafe home environment, including the presence of fire hazards due to extreme clutter and the lack of cleanliness;

b) Inability to ensure the children's needs were met, including the care and hygiene of the children and attendance at preschool programmes;

c) The mother presented as overwhelmed, leaving her unable to address the concerns or to work cooperatively with N.C.F.S. supports to address the concerns;

d) The mother required out of home parental respite as she had not been able to manage the children's behaviour;

e) The mother's failure to make sufficient progress with the support services offered by N.C.F.S., including in-home parenting support, individual counselling and cleaning services;

f) The father has a criminal record for robbery and assault convictions, with a probation order that required him to participate in rehabilitative programs for mental health issues and an addictions rehabilitative program; and,

g) The father had requested assistance with addiction rehabilitation services, and anger management services.

62. At the summary judgment motion, the mother did not dispute either the protection findings or the facts which supported them, and did not provide evidence that the circumstances that gave rise to those findings have changed.

63. These protection findings, and the consent facts which support them, are 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 August 2011, only 17 months before this summary judgment motion.

64. The importance of these findings and the recent timing of the findings are extremely significant in this summary judgment motion. 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.

65. More than a year has passed since the consent protection findings regarding the mother's parenting. She has had about 17 months with a clear indication of the problems she needs to address to regain her children. She has been involved in child protection litigation for 10 years, regarding all six of her children. The mother is an experienced child protection litigant. She ought to have taken steps in those recent 17 months to address the protection concerns and the findings set out on consent in the Statement of Agreed Facts.

66. On the summary judgment motion the mother did not demonstrate any understanding of or insight to the child protection concerns, the reasons her four other children were removed from her care, or the reasons her three oldest children became crown wards. Since the mother's earlier involvement with N.C.F.S. regarding her three older children, the mother has had ample time and opportunity to work on these issues, but has not provided N.C.F.S. or the court with information related to the protection concerns, and has not addressed these serious protection concerns.

67. The same concerns that existed regarding the mother at time of the protection findings (August 2011) continue to exist at the summary judgment motion. The mother has not demonstrated any differences or better ability to parent which would give rise to a triable issue.

Concerns at the Summary Judgment Motion

68. At the summary judgment motion these were the on-going concerns about the mother:

a) The mother has not obtained stable housing;

b) The mother has not attended at counselling to address issues of unresolved grief, sexual abuse or issues pertaining to recent domestic violence in her relationships;

c) The mother has not attended at the healing lodge;

d) The mother has not worked co-operatively with the elders council;

e) The mother has not worked co-operatively with N.C.F.S. to process and address the child protection issues with respect to the children not attending daycare, being left with inappropriate caregivers and not meeting the children's medical needs;

f) There is recent evidence about sexualized behaviour by the children (now 5 and 3 years old); and,

g) The mother is unable to connect how her actions and inactions have resulted in the removal of her children from her care.

Analysis of the Parent's Plans

69. All of the evidence and the submissions presented by the parents on the summary judgment motion was taken into account by the court. Neither the father's Plan of Care nor the mother's evidence specifically nor adequately addressed the protection concerns raised.

70. The mother's evidence in the summary judgment motion was very sparse. There were no details of her plan of care for the children. The affidavit contained proof of completion of a parenting program (she finished eight out of ten sessions of Beyond the Basics in December 2012). The mother's evidence did not refer to the plan that was put forward at the summary judgment motion, that is, the parents planning together for the return of the child. There was no evidence offered about this plan.

71. Essentially, there was no evidence regarding the mother's plan. She told the court that she was planning with the father, but no additional information was provided.

72. The fact that the parents (individually and together) have changed plans so frequently in recent months suggests that they do not have a viable or even suitable plan for the care of the children.

73. The mother does not acknowledge that she requires a high level of support to be able to parent the children. The mother is not involved in supportive psychiatric or psychological services of any kind, or counselling. There was no evidence, letter, or report from any service provider (apart from the parenting program) regarding the mother's participation, and nothing which would support her plan. The mother's failure to take any steps to get supportive counselling or help of any kind shows a lack of insight into these problems, suggests she is unlikely to be able to change and that she is unable to be able to reduce the risk to her children.

74. The father barely knows the children (particularly L.W.), and has not seen them in over three years.

75. The parents' 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.

Alternative Plans for the Care of the Children

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

Why Not a Supervision Order?

77. One option is to return the children to the parents, subject to a supervision order. That is not a suitable option as the children would not be safe with the parents under a supervision order.

78. A supervision order was tried in August 2011 when the children were placed with the mother. The mother was unable to comply with the terms of that order. There is no evidence that anything has changed since then.

79. Any plan for the return of the child to the mother or the parents 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 children and the mother, or the parents, would be an ineffective instrument for the protection and safety of the children. Neither the mother alone nor the parents together are suitable candidates for a supervision order, which requires a sense of co-operation and a willingness to work with N.C.F.S.

80. The children are entitled to certainty, finality and to grow up in a safe and stable family, where they are valued and protected from harm. They will not have this if they are returned to the parents.

The Summary Judgment Request

81. 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.

82. The question for the court on a motion for summary judgment is not whether there is any evidence to support the parent'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.

83. 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.

84. If the mother's evidence on the motion is her "best foot forward", it discloses no genuine issue for trial. There is no realistic possibility of an outcome other than that sought by N.C.F.S.

85. 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.

86. It is not in the best interests of these children to delay their permanent placement any longer. The proper disposition for them now is clear. The parents are not capable, either separately or together, of caring for these children and they should not be returned to their care.

87. It is not in the children'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

88. 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.

89. 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:

1. 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.

2. 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.

3. 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).

90. 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 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 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.

91. 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 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.

92. 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] 2 S.C.R. 165 (S.C.C.), p. 50; Children's Aid Society of Toronto v. D.P., 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.).

93. 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] 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.

94. 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.

95. 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.).

96. The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., 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 Children

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

98. There is no evidence that the mother's access is beneficial or meaningful from the children's perspective. While the access may be enjoyable, there is insufficient evidence that there is a bond between them that is important to the children. The access and the relationship to the mother are not significantly advantageous to the children.

99. Even if the access were beneficial and meaningful to the children, the court must be satisfied that access will not impair the children's future opportunities for a permanent placement. Given the children's ages, the mother cannot establish that access would not impede a permanent adoption plan for them.

100. 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 children.

101. The mother's claim for access to the children is dismissed. There shall be an order for no access to the children.

The Father's Access to the Children

102. The father did not have any contact with A.A.E. until she was 6 months old. His contact with L.W. is limited to a meeting at a parade in November 2009. He has not seen his children since 2009. There is no evidence that he even has a relationship with his children, let alone one that is meaningful and beneficial to the children. There shall be an order for no access to the father.

Orders

103. A.A.E. and L.W. shall be crown wards without access.

Released: 29 April 2013

Justice Carole Curtis