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 and Parties

Court File No.: Toronto C53764/11

Date: 2013-10-07

Ontario Court of Justice

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— AND —

A.M.Y. and P.Y.

Respondents

Before: Justice Curtis

Heard on: 10 December 2012; 1, 5 February; 20, 21 March; 19 April; 10 May; 5 June 2013

Reasons for Judgment released on: 07 October 2013

Counsel:

• Rena Knox . . . . for the applicant Catholic Children's Aid Society of Toronto
• Marie-Josee Beauplan-Mann . . . . . . for the respondent mother A.M.Y.
• Chika Nnoli . . . . . . . . . . . . . . . for the respondent father P.Y.
• Frances Gregory . . . . . . . . . . . . . . . . . . . for the child Y.N.Y.
• Fatma Khalid . . . . . . . . . . . . . . . . for the child M.L.Y.
• Haley Gaber-Katz . . . . . . . . . . . . . . . . . . . for the child S.C.H.Y.

CURTIS, J.:

INDEX

1. Over-view
2. Positions of the Parties
3. Conduct of the Summary Judgment Motion
4. Background
5. Litigation History
6. The Parent's Criminal Charges
7. The Parents and C.C.A.S.
8. The Law on Summary Judgment
9. The Protection Finding
10. Disposition
11. The Summary Judgment Request
12. Access
13. Orders

1. Over-view

This is the decision in a motion for summary judgment brought by the Catholic Children's Aid Society of Toronto ("C.C.A.S.") in an amended protection application dated 8 March 2012, regarding both the protection finding and disposition.

2. Positions of the Parties

C.C.A.S. is seeking protection findings under the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended ("C.F.S.A.") ss. 37(2) (a), (b), (f), (f.1), (g), (g.1), and a disposition of crown wardship, no access, for the purposes of adoption, regarding all four children (Y.N.Y., M.L.Y., S.C.H.Y. and M.K.Y.). C.C.A.S. proposes access among the siblings, should they be made crown wards (access as agreed by the siblings, and in consultation with their treatment providers).

The mother and the father both filed Answers to the protection application; both opposed the summary judgment motion, and filed substantial material on the motion. They want a trial regarding the protection finding and the disposition of crown wardship, and argue that their plan presents a genuine issue for trial, and that the court should dismiss the summary judgment motion. If there is a protection finding, the parents want the disposition that the four children should be returned to their care.

The three lawyers for the three oldest children Y.N.Y., M.L.Y. and S.C.H.Y. all support the requests of the C.C.A.S.

The issue for the court to determine is whether there is a triable issue regarding the orders that C.C.A.S. seeks.

3. Conduct of the Summary Judgment Motion

The summary judgment motion was unusual in several aspects.

The motion was argued over nearly five full days of court time:

• 10 December 2012 from noon;
• 1 February 2013 from noon;
• 5 February 2013 from noon;
• 20 March 2013 from 2 p.m.;
• 21 March 2013 from 12.50 p.m.;
• 19 April 2013 from 12.30 p.m.;
• 10 May 2013 full day; and,
• 5 June 2013 one hour.

There was a very large amount of material filed by the parties, all of which was read and considered by the court.

There were six lawyers involved. The involvement of six lawyers added considerably to the time taken to conduct the motion.

Each parent was separately represented, although presenting uniform and unified evidence (including joint affidavits) and positions. The parents' lawyers specifically advised the court that their submissions were applicable to both parents.

The oldest three children were each represented by separate lawyers, also presenting uniform positions (that is, the children do not want access to their parents and do not want to return home to live with their parents).

The parties were given significant amounts of time to present their arguments on the motion. In particular, the parents were permitted latitude in the presentation of their case and their submissions. The parents' two lawyers even went back and forth in presenting their submissions (in tag-team fashion), on request, and with the leave of the court.

There was leniency by the court regarding the presentation of additional evidence as the summary judgment motion dragged on over a period of time.

After argument had been completed by C.C.A.S., and the three children's lawyers, on 5 February 2013, the parents sought leave to file an amended Notice of Motion and additional affidavit material. The affidavit sought to be introduced was large and contained many exhibits. This request was contested and the court granted leave for this additional material to be filed. All parties were provided the opportunity to make further submissions regarding the new material.

In April 2013, C.C.A.S. sought to introduce additional evidence regarding recent incidents involving Y.N.Y. and S.C.H.Y. in the foster home. This material was allowed to be filed. All parties were provided the opportunity to make further submissions regarding the new material.

In May 2013, the parents sought leave to file two additional affidavits, and C.C.A.S. sought leave to file additional affidavits from the foster mother. This material was allowed to be filed. All parties were provided the opportunity to make further submissions regarding the new material.

After all submissions were completed, and without notice to any of the parties, both parents asked to address the court directly. Over objections from some of the parties, the court allowed both of the parents to speak to the court, even though much of what they said was not contained in the evidence before the court on the motion. Both parents were emotional and articulate. They spoke in heartfelt language about their children, their personal histories, and what has happened in their family. Both were respectful of the court and the process.

4. Background

The background facts are not in dispute.

A.M.Y. is the mother ("the mother"). She was born in 1970 and is 42 years old. P.Y. is the father ("the father"). He was born in 1968 and is 45 years old. The parents have been together since 1993, and they have lived together since 1996. There was no evidence as to whether or not the parents were married, or the date of their marriage.

The parents have four children:

• Y.N.Y., born in 1998 in France (a boy, 15 years old);
• M.L.Y., born in 2001 in France (a girl, 12 years old);
• S.C.H.Y., born in 2005 in the United States (a girl, 8 years old); and,
• M.K.Y. ("M.K.Y."), born in 2008 in Canada (a girl, 5 years old).

The parents and the children have lived in many places, have relocated frequently, and have been separated from one another. The family is from Cameroon. In 1992 the mother relocated from Cameroon to France to study medicine. In 1994 the father moved to Germany to study Food Science and Technology. The parents started living together in Germany in 1996. In 1997 the mother changed her program from medicine to Research Science.

Since they were born, Y.N.Y. and M.L.Y. (the two oldest children) have lived on three continents and in four countries. Y.N.Y. and M.L.Y. were born in France in 1998 and 2001. The family moved to Germany in 2003, when M.L.Y. was about 2 years old.

In December 2004 the parents sent Y.N.Y. and M.L.Y. (then 6 and 3½ years old) to live with their maternal grandmother in Cameroon, where they lived for over 4 years.

The mother travelled to America in January 2005 for work purposes. S.C.H.Y. was born in 2005 in America.

The family got permanent residence status in Canada in February 2008. In June 2008 the father travelled to Cameroon to bring Y.N.Y. and M.L.Y. to Canada. At the time they were reunited with their parents, Y.N.Y. and M.L.Y. were 10 and 7 years old, and had been away from their parents for 4½ years. When reunited, M.L.Y. did not recognize her father. Y.N.Y. and M.L.Y. had never before met their sister S.C.H.Y. (who was then 3 years old). Only two months after Y.N.Y. and M.L.Y. were reunited with their parents in Canada, M.K.Y. was born in 2008.

On arrival in Canada, Y.N.Y. and M.L.Y. spoke only French, and were registered in a French school.

The parents stated that they are highly trained in their respective fields, research science, and food science and technology. However, from the evidence presented by the parents (which material was quite large and very detailed) it was not clear if the parents had completed any post-secondary degrees. The mother says she has a post-graduate diploma in Pharmaceutical Research and Development Technology, and a degree in Cellular and Molecular Biology and Molecular Genetics, and she studied medicine for three years. It is unclear if the father has any degrees. Both parents are employed through agencies outside their fields in Canada.

5. Litigation History

The initial protection application seeking six months society wardship was issued 5 April 2011. C.C.A.S. became involved with the family as a result of 12 year old Y.N.Y.'s disclosure to his teacher on 31 March 2011 that the father had hit him. The parents were unco-operative with the school and C.C.A.S.. Y.N.Y. and S.C.H.Y. (then 6 years old) were apprehended and placed in care.

Y.N.Y. was examined at the Hospital for Sick Children ("Sick Kid's") and had a large area of soft tender swelling on his left upper inner thigh, but no visible bruising. It was suspected that the injury was caused by a blow, and it was determined by Sick Kid's to be an injury that was consistent with Y.N.Y.'s disclosure that the father had hit him with a shoe in that area. The father denied that he had hit Y.N.Y. nor used physical discipline on Y.N.Y.. The father admitted he made Y.N.Y. kneel for an hour as punishment.

On 5 April 2011, on a contested motion, Waldman, J. made a temporary order placing Y.N.Y. in the care of C.C.A.S., and placing M.L.Y., S.C.H.Y., and M.K.Y. in the parent's care, subject to a supervision order with terms. Y.N.Y. returned home with a consent supervision order regarding all four children on 10 May 2011.

In October 2011, C.C.A.S. was considering terminating its involvement with the family, and decided to interview the children to see if there were ongoing protection concerns. C.C.A.S. had to get a court order on 2 November 2011 to be able to interview the children privately. The children Y.N.Y. (then 13), M.L.Y. (then 10), and S.C.H.Y. (then 6) were all interviewed on 15 November 2011 by a French-speaking worker, and no abuse was disclosed.

On 16 November 2011 C.C.A.S. got a telephone call advising that M.L.Y. (then 10 years old) was running away as her parents had been beating her. She disclosed on-going abuse of her by her parents over a period of years. She said she was afraid to go home because the mother whipped her, had stepped on her stomach, had choked her, had pushed her off a chair, and had yelled at her, because she had spoken to the C.C.A.S. social worker. She said that the same thing had happened to Y.N.Y. for speaking in the past to a social worker. She said that the abuse was so significant that she could not breathe, she thought she was going to go blind, and she thought she was going to die. She said that she could not sleep that night because she thought her mother was going to kill her. She said she had been whipped 35 times since coming to Canada.

She said that her parents assaulted her with objects, and that her mother had assaulted her with a belt on 15 November 2011. She said that the belt used was thick, long, black, with metal buckle. She said that both her mother and her father had been verbally and emotionally abusive to her, and that her mother had assaulted her again on 16 November 2011.

M.L.Y. said that there were many incidents of throwing things and hitting. She said that her father had used pepper sauce on her eyes, nose, ears, and under her armpits as a form of discipline. She said that she and Y.N.Y. had been made to stay up all night to write and read out works from a dictionary as a form of punishment, and that her father left a camera running to make sure. She said that Y.N.Y. had been pushed and caused his ears to bleed, and he required medical attention and it left a visible scar. She said that she had not told C.C.A.S. of these incidents previously because her parents told her that if she did, they would beat her and kill her.

Y.N.Y. was interviewed and confirmed that he was also physically abused by his mother and by his father. Y.N.Y. said he was punched six times by his father, and that he was also hit with a belt on his back and it made him cry. Y.N.Y. said his father punched him in the thigh and the stomach, and that when he was punched in the stomach, he fell to the ground and cried. Y.N.Y. also described another occasion when his father had pushed Y.N.Y. and he fell to the ground, and when his father dragged Y.N.Y. by his two legs, Y.N.Y. cut his ear and it was bleeding. Y.N.Y. was taken to the hospital and got stitches for this. Y.N.Y. also said that his mother slapped him in the face two times. Y.N.Y. said that he was scared to talk to the C.C.A.S. social worker because he was afraid his parents would be mad and send him away. He said that his father hit him, M.L.Y. and the mother. He said that his father had hit him with his hands, and that the worst incident was the inner thigh where he had a limp, that his father had used his closed fist, and his father told him not to move when he was hitting him. He said that he fell to the ground and tried to get up but he could hardly walk. He said that his mother slapped him. He said that he was hit with a belt by both his parents, usually when the school called home saying he had done something wrong. He said that his father calls M.L.Y. "the devil".

An amended protection application for crown wardship was issued on 2 February 2012.

6. The Parent's Criminal Charges

On 16 November 2011 all four children were apprehended, and both parents were arrested and were charged with multiple assault-related charges, and with multiple counts. The terms of the parent's bail included no contact with the children.

There was a preliminary enquiry hearing in the spring of 2013 that resulted in only some of the charges being committed to trial. The evidence on the summary judgment motion about the original criminal charges was contradictory and unclear. The charts below are based on information provided in a letter dated 18 April 2013 by the parent's criminal lawyer.

The father

Charge	Charged	Committed to trial
Assault	2	2
Assault with a weapon	6	2
Aggravated assault	2	1
Assault causing bodily harm	1	—
Sexual assault with a weapon	2	—
Total	13	5

The mother

Charge	Charged	Committed to trial
Assault	3	2
Assault with a weapon	3	2
Aggravated assault	1	—
Total	7	4

The trial of these criminal charges has not taken place, and is unlikely to happen until 2014.

7. The Parents and C.C.A.S.

The mother and the father have a conflicted relationship with C.C.A.S.. This is not in dispute. The parents stated they did not trust C.C.A.S., and that C.C.A.S. was unprofessional. At one point, the mother refused to meet with C.C.A.S. without her lawyer present. The evidence shows that the parents have shown a hostile and oppositional reaction to C.C.A.S..

The mother believes the children are being manipulated by C.C.A.S.. The parents said that there were no problems with the children when they were living with them, and that all the problems started when the children were placed in care.

The parents do not believe that the children have said that they do not want to see them and that they do not want to return to live with them.

On 12 March 2012 C.C.A.S. asked the mother to participate in a parenting capacity assessment and a parenting program, and the mother refused. On 27 June 2012 C.C.A.S. asked the father to participate in a parenting capacity assessment and a parenting program or counselling. The father said he would participate in any program if it meant he could have access to his children. There was no parenting capacity assessment.

On 21 June 2012 C.C.A.S. told the mother that the oldest three children had been diagnosed with Post Traumatic Stress Disorder ("P.T.S.D."), and all the doctor's reports were sent to the parent's lawyers. The mother does not accept the psychological reports about the children. She believes that the information is false.

The parents are not obliged by law, or otherwise, to co-operate with C.C.A.S. or indeed, with other authorities investigating their children's circumstances and disclosures. But this dynamic in their relationship with C.C.A.S. and other authorities (the school, for example) has consequences for the conduct of the child protection case, the ability of C.C.A.S. and other agencies to offer services to the parents and to the children, and the ability of C.C.A.S. to investigate the children's disclosures.

8. The Law on Summary Judgment

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.

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..

Summary judgment motions require the court to take a hard look at the merits of a case to determine whether there is a genuine issue to go to trial. In essence, the motion, if successful, yields a final order on all or any part of a claim or defence without a trial: Children's Aid Society of Toronto v. R.H. and M.N., [2000] O.J. No. 5853, para. 9.

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.).

In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether -- in that evidence -- there are specific facts to support a triable issue in any of the determinations required to be made by the court: Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.), p. 8.

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..

The jurisdiction given to the court in this process for summary judgment is not a jurisdiction to be exercised lightly. In motions seeking summary adjudication of an application for Crown wardship without access, it is a remedy that ought to be confined to the clearest of cases. A Crown wardship-no access order visits profound consequences on both the child and his birth family. It frees that child for adoption planning. Adoption is the statutory guillotine of the biological relationship: Catholic Children's Aid Society of Metropolitan Toronto v. L.M.O. and M.P. (Ont. Gen. Div.), (1995); affirmed at ; further affirmed at .

The adjudication of whether there is a genuine issue for trial must be undertaken with extreme caution. Under these rules, if the motion evidence does not disclose a genuine issue requiring a trial, the court must make a final order in the application. The motions judge has no discretion to do otherwise, even if the motions judge feels that a party should have his or her day in court. Children's Aid Society of Toronto v. R.H. and M.N., [2000] O.J. No. 5853, para.14.

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 Dufferin County v. James R..

In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration which might be available for trial. The court must rely on -- and evaluate -- the sufficiency of the evidence as disclosed by the affidavits: Children's Aid Society of Toronto v. H. (C.), 2004 ONCJ 224.

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.).

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.

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..

The court must assume that a responding parent has put their best foot forward in their responding material and that this is the most they have to offer at that stage. The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?: Kawartha-Haliburton CAS v. W.M..

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.

Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. 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., para. 18.

In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion: Children's Aid Society of Ottawa v. C. (S.).

Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized: CAS of Toronto v. R.H., para. 16.

It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children: Worthington v. Worthington (2000).

However expressed, the bottom line is this: the motion judge must be satisfied that the motion record is sufficiently safe on its face to ensure a just result without a full trial of the claims of the parties: CAST v. S.N. and J.S., 2013 ONCJ 345 (Ont. Ct.), para. 32.

"No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed": Children's Aid Society of Oxford (County) v. J. (J.); when the "outcome is a foregone conclusion": Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (1996).

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., para 43; Children's Aid Society of Simcoe (County) v. S. (C.), [2001] O.J. No. 4915 (Ont. S.C.J.).

9. The Protection Finding

C.C.A.S. is seeking protection findings pursuant to these sections of the C.F.S.A.: ss. 37(2) (a), (b), (f), (f.1), (g), (g.1) (these sections cover protection findings related to physical harm, the risk of physical harm, emotional harm, and the risk of emotional harm):

Child in need of protection

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

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

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

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

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

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

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

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(f.1) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

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

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm. R.S.O. 1990, c. C.11, s. 37 (2) ; 1999, c. 2, s. 9.

Evidence about the Protection Finding

The Children

Dr. Sala, who assessed Y.N.Y. and S.C.H.Y., and Dr. Depatie, who assessed M.L.Y., are both French speaking psychologists.

Y.N.Y.

Y.N.Y. was born in 1998, and is 15.

Dr. Burke Baird (staff doctor) at the Suspected Child Abuse and Neglect Program ("S.C.A.N.") at Sick Kid's prepared a report dated 6 April 2011 regarding Y.N.Y. and stated that Y.N.Y. had spontaneously disclosed to him that his father had hit him with a shoe on the leg. On examination, the area of Y.N.Y.'s upper left thigh was swollen and extremely tender to touch. The tender swollen area on the thigh corresponded to the history of injury the child provided.

When Y.N.Y. was first in foster care:

• he was quite physical and aggressive with his siblings, and there was a lot of fighting, arguing and rivalry. He used physical force with his hand on M.L.Y. and S.C.H.Y. when they irritated him. He had very little impulse control, and clenched his fist and shook in a rage at the slightest provocation;

• he took money from the foster mother's purse without asking, took the foster father's cell phone, and denied it even when found with the items. He also took things from the school and from stores;

• he was stealing and hoarding food;

• he acted like a much younger child; and,

• he had low self-esteem. This has improved while he has been in care, and he was proud of his graduation in June 2012 from grade 8. He got an award for math, and has been involved in community activities, Tai Kwon Do, swimming, basketball, and soccer.

Y.N.Y. disclosed being hit by both parents. He was injured by his father in his ears and legs, and was made to stand for long periods of time.

Y.N.Y. disclosed that his parents punished the children for writing their grandmother to ask if they could come to live with her, by putting them out of the home. The children were left in the lobby of their apartment building. The building superintendent found the children there, and the parents refused to have the children return to their apartment for a period of time.

There was an extremely detailed undated Psychological Assessment report (23 pages long, single spaced) about Y.N.Y., filed in evidence, from Dr. Sala (a French–speaking psychologist), regarding an assessment completed on 1 May 2012. The mother was provided with the assessor's contact info and did not contact the assessor. The assessment report made these findings about Y.N.Y.:

• Y.N.Y. is in the Borderline range of ability. He was tested in French (his first language). His learning potential falls somewhere between the Borderline and Low Average range of abilities. It takes him more time to learn new information, and he requires repeated practice. His abstract reasoning skills are weak;

• he learns more slowly than the average child his age. His report cards since he came into care are more reflective of his cognitive profile, that is, he is struggling quite a bit academically. He is functioning below grade level, not just because of incomplete assignments, but also due to difficulties with learning. He has mild intellectual delay, and possibly should be so identified, to allow the school to plan to assist him;

• he prefers to associate with younger kids, and he acts young for his age;

• he has difficulties with concentration, daydreaming, inattention, academic achievement. He also breaks rules both in the home and at school;

• he is far more aggressive than the average youth his age;

• he has challenges in the area of social skills, and has problems with self-regulation. His social competence is quite low. He does not get along with other students. He is not liked by them and he gets teased. He gets into fights and he is easily frustrated. He can be stubborn, and he teases others. He does not seem to know when to stop;

• he spoke openly to the assessor about his experiences before he came into foster care, particularly regarding the assaults by his parents;

• he has obsessive compulsive traits;

• he does not want to see his parents because he is afraid of them. He is very fearful of living with his parents and of being abused again; and,

• Dr. Sala makes a clear diagnosis of P.T.S.D., and makes treatment recommendations.

The child and youth worker assisted Y.N.Y. with anger management, impulse control, problem solving and family dynamics. He also got counselling with a trauma therapist. He is on an individual education plan.

Y.N.Y. said that a boy at school tried to coax him into calling his parents. The boy gave Y.N.Y. money and told him his parents would buy him things (a computer and a cell phone, which had not been available to him) if he called his parents.

Y.N.Y. does not want to see his father, and does not want to return home to live with his parents. Y.N.Y. told his lawyer that he would like to see his mother in a supervised setting and in a room with a video camera. Y.N.Y. has told the foster mother that he does not want to see either of his parents.

Recent Events regarding Y.N.Y.

There were significant events during the period of the summary judgment motion, in April 2013, which resulted in Y.N.Y. being moved to a different foster placement;

• Y.N.Y. was charged with assault causing bodily harm regarding an incident at the school involving Y.N.Y.'s use of scissors on another child; and,

• On two occasions, the foster mother walked into the bedroom and found concerning inappropriate behaviour by Y.N.Y. towards S.C.H.Y..

On 3 April 2013, the foster mother entered the bedroom and found Y.N.Y., fully clothed, sitting on top of S.C.H.Y., who was lying face down with no clothes on. Y.N.Y. was then nearly 15 and S.C.H.Y. was then 8. Y.N.Y. said he had deleted photos he had just taken of S.C.H.Y.. S.C.H.Y. said Y.N.Y. had taken video of her dancing without clothes on in the bathroom. S.C.H.Y. had deleted the video and Y.N.Y. was upset. The foster mother had discussions with Y.N.Y. about the inappropriateness of this, and that he should not be in presence of others who have no the clothes on.

On 17 April 2013 the foster mother entered the bedroom and found Y.N.Y. in the nude on top of S.C.H.Y. who was sleeping on her stomach. Y.N.Y.'s head was aligned with S.C.H.Y.'s feet. Both S.C.H.Y.'s pyjamas and her underwear had been pulled down and her buttocks were exposed. Semen was dripping from Y.N.Y.'s penis. Y.N.Y. said this was the first time he had ever done this.

On 18 April 2013 Y.N.Y. was removed from the foster home by police and was charged, and did not return. He was placed in a different foster home on release.

M.L.Y.

M.L.Y. was born in 2001 in France (a girl, 12 years old). M.L.Y. was a bright and capable student, a good athlete, social, and was getting A's in school before the apprehension. She was described by her lawyer as charming, articulate and very smart.

M.L.Y. has been assessed by many different professionals (at least eight doctors, including psychiatrists from Youthdale, the Sick Kid's Crisis Team and C.C.A.S; and psychologists from Sick Kid's, and C.C.A.S.). There was a great deal of evidence about M.L.Y.'s psychological profile, her disclosures, and her mental state given and filed in evidence at the summary judgment motion. As well, there was evidence about M.L.Y. from the family services worker, the children's services worker, and the foster mother.

The C.C.A.S. was considering closing the file and terminating the supervision order in September 2011 when M.L.Y. (then 10 years old) disclosed she had experienced chronic physical and emotional abuse by her parents and was reluctant to return home. She said she was repeatedly struck with objects (including a shoe), pushed, stepped on, and was forced to bathe in cold water. She disclosed that her father had whipped her with a belt; he had put pepper sauce in her eyes, ears, nose and under her armpits. She said that he kept kicking her and she could not see, and that she thought she was going to go blind. She said that she had been whipped 35 times since coming to Canada. She reported that Y.N.Y. was also being physically abused in the home, and that he had been whipped by her mother when he got into trouble. She said that S.C.H.Y. and M.K.Y. did not get whipped.

The parents admitted that they threatened to send M.L.Y. to Cameroon at that time (autumn 2011) to try to control and correct her behaviour. The parents suggested this was why she made up stories that she was abused, to tell C.C.A.S., so that she would not have to go to Cameroon.

M.L.Y. said that the parents had cut her hair in anger, twice, even though she told them she did not like having short hair, because she looked like a boy and people would tease her.

When M.L.Y. first came into foster care,

• she had a very bad temper and poor impulse control. She had tremendous amounts of anger. She caused property damage in one room of house when she barricaded herself in her bedroom and punched a hole in the wall. She had to be physically removed from the foster home; and,

• like Y.N.Y., she stole things from stores and from the foster home.

In February 2012, M.L.Y. was taken to Brampton hospital and involuntarily admitted on a Form 1. On 11 February 2012, she was transferred to a secure treatment placement at Youthdale. Part of the reason M.L.Y. was moved from the foster home in February 2012 was that the foster mother said she could not manage all four children given their high needs.

In April 2012 after her admission into care, the C.C.A.S. worker noticed that M.L.Y. (then 11 years old), had lost significant pigmentation around her fingertips, and had skin peeling. She said she had begun to peel back the skin around her fingernails when she began living with her parents. She said it bled at times and it was painful.

M.L.Y. had significant anger outbursts against S.C.H.Y., her next youngest sister (there is a 4 year age difference). She was verbally and physically aggressive with S.C.H.Y., and sometimes the physical aggression was so extensive as to require adult intervention. On one occasion police were called to intervene (M.L.Y. was then 11 years old). She expressed a desire to harm S.C.H.Y. on a number of occasions. She said she hears the voice of her father and her own voice telling her to punish S.C.H.Y. in a way that she herself has been punished.

M.L.Y. said that her father pushed her against the railing of the balcony at their apartment, and that she feared she was going to fall. Her father threatened to sit her on a chair, tie her hands behind her back, and cover her mouth with tape if she disclosed to anyone that she had been abused.

M.L.Y. said that her father said that the abuse was a private affair amongst family members, and that she was his child, and that C.C.A.S. could not interfere with her on any account.

Several witnesses described that M.L.Y. would at times zone out, show flat affect and be less engaged, as if she was in her own world.

The foster mother gave evidence that M.L.Y. has had significant depressive episodes and suicidal ideation. She has threatened to burn her arms on the stove. These outbursts would occur a number of times a day.

A Psychological Assessment report by Youthdale dated 12 April 2012 was filed in evidence, and made these findings about M.L.Y.:

• M.L.Y.'s test results placed her skills (comprehension, vocabulary, intelligence, academic functioning, reading, and spelling) in the average range;

• she said she felt like hurting herself most of the time (she was then 11). The report found that she had a generalized anxiety disorder, and that her scores on the anxiety scale were significantly elevated;

• her levels of anxiety and depression were significant, which suggests the need for medication to reduce the level of experienced depression and distress, before attempts can be made to address a number of other issues and concerns; and,

• her presentation is that of a child who has experienced significant levels of complex trauma in her life. The trauma likely comes from variety of sources, including abuse, and the losses and separations from family members.

Since the fall of 2011, M.L.Y. has been in therapy with Dr. Lana Depatie (a French–speaking psychologist at the S.C.A.N. unit at Sick Kid's). There were many reports from Dr. Depatie filed in evidence, as well as the clinical notes and records from Dr. Depatie. Dr. Depatie's reports made these findings and reported these disclosures from M.L.Y.:

• She has elevated anxiety, depression, anger, dissociation, sexual concerns, and hyper response scores on testing;

• she used the word "torture" regarding her father's treatment of her;

• she has feelings of intense fear. She is afraid of her father, that he might cause her serious injury. Her father would lock himself in the bathroom with her and "torture" her and continue to hit her. Her father put peppers in her eyes and he did not get her medical attention. She was afraid she would go blind. Her father hurt her so badly at times that she was afraid she would have to be in a wheelchair;

• she said that her father hit her with a metal piece that bruised her leg;

• she said that her father inserted hot peppers in her genital area;

• she said that her father tried to push her off the balcony of their 15th floor apartment building. She feared that her father would kill her when he pushed her against the weak railing of the balcony. She feared the railing would give and she would fall to her death. Once in care, she feared that her father would find her to possibly kill her, and she might accidentally run into her mother;

• she has sleep difficulties and she has nightmares on a regular basis. She woke up from bad dreams and checked "to make sure I did not lose any parts of my body". She has a nightmare where her father is cutting her limb with the blade of a skate, and she woke up looking for and touching her limbs to ensure she had not lost parts of her body;

• her father told her that he would kill her if she did not get her report card signed;

• every time she was physically abused she would come to school late and had to lie about the reason she was late;

• she was aware of (but did not witness) her father cutting Y.N.Y.'s ear with lead, and she saw the injury;

• her father took her diary, broke the lock with a hammer, and eventually threw it off the balcony. She did not write any secrets in her diary for fear that her father would find out;

• her happiest memory is when she and Y.N.Y. lived with their grandmother in Cameroon. Her grandmother hit her;

• she was afraid the day she disclosed the abuse. Her father was upset because a social worker was involved. When C.C.A.S. workers came to the home, she said that after they left, her father hurt her if she had spoken to them. Her father had hit her hand with a hammer, had burned her with a hammer, and knocked her head with a glass, after he had warned her that he would do those things to her. She had a black eye from her father punching her. Her father had hit her while she slept;

• she talked about the colour of her skin and that she was lighter now than she was before, and that she liked that;

• she said that she missed her mother;

• she was parentified;

• there was a lot of yelling in the home and this bothered her;

• she said that the abuse by her father had worsened following Y.N.Y.'s apprehension. She is afraid that her father would kill her and she thinks about her father hitting her frequently. Her father had hit her when she missed a spot doing the dishes;

• she had a sense of helplessness about the abuse. She feared she would be returned to her parent's care;

• she perceives that the mother did not abuse her because she wanted to, but because she was forced to do so by her father. She differentiated her mother's style of discipline from her father's method. She sees her father's behaviour as abusive and continues to be afraid of him;

• she said that her father does not want to change. She said that C.C.A.S. had requested her parents attend parenting classes, and that her mother went, but that her father refused to go;

• she is very angry with her father;

• she has difficulties with emotional regulation, behavioural regulation, including her aggressive behaviour and angry outbursts in various environments, and with her particular belief system around aggression. She has developed difficult coping strategies;

• she believes that it is appropriate to show anger by breaking things and through physical outbursts. This behaviour and outbursts have reached extreme levels where she became out of control. She has been taught that the physical expression of anger is an acceptable means to cope with difficulties. She attributed her beliefs to what she was taught in her family. She shows limited insight into the impact of the physical expression of her anger;

• she said she feels a release of tension when she hits others and this makes her feel better. She believes that she needs to physically harm others in order to get justice, to teach them a lesson and to ensure that they do not repeat "offenses" against her. She clearly stated that she learned this from her family environment (from her father in particular);

• she has symptoms of depression and anxiety. She is a traumatized child who experiences significant social and behavioural challenges from the experiences of maltreatment she reports from her parents;

• she has experienced dissociative states, moments when she seems to be somewhere else. She has moments when she is in "outer space", when she hears yelling in her head and there is no one screaming around her. This happens several times a day. Dr. Depatie observed one such state;

• she reported suicidal ideation, both in the previous foster home and more frequently in the new foster home, thinking that she would be better off dead. In February 2012 she was brought to Brampton emergency due to suicidal ideation and was admitted on a form 1. She did not want to return to that foster home (and she did not). The move was due to the high level of conflict between the three siblings and M.L.Y., who treat her as if she was a parent (i.e., she is expected to pick up after them). She was 11 years old at that time;

• she described the family this way on 10 February 2012: Y.N.Y. gets angry regularly and will ignore his siblings; her parents fought the most; her father screamed the most; S.C.H.Y. and M.K.Y. laugh the most; Y.N.Y. cries the most; she and Y.N.Y. are the most afraid; S.C.H.Y. is the most happy. She felt happiest when the four children were away from her parents;

• in February 2012 (M.L.Y. was then 11 years old) she had a visit with M.K.Y. (then 3½ years old), and she told M.K.Y. to kill S.C.H.Y. (then nearly 7 years old);

• she is afraid to return to her parents care; and,

• the doctor made a diagnosis of P.T.S.D. and recommended individual psychotherapy.

Although there was a court order for no access by the parents, M.L.Y. has at least two times attempted to contact her mother, and has been prevented from doing so.

S.C.H.Y.

Evidence of Foster mother about S.C.H.Y.

S.C.H.Y. (a girl) was born in 2005 and is 8 years old.

The foster mother gave the following detailed and explicit evidence about S.C.H.Y.;

• S.C.H.Y. is a fun loving, boisterous and friendly child. She is open and honest about her feelings and experiences. She is a bright, independent and likeable child, who has friends and is very popular. She generally seems to maintain positive relationships with her peers. She is the only one of the four children who gets invited to birthday parties;

• she is a motivated and interested student who does very well academically (her grades are in the A and B ranges in all subjects), and is very competitive. She has indicated an over-focus on parental discipline and a need to regain their approval by getting A+ grades;

• like Y.N.Y. and M.L.Y., S.C.H.Y. has stolen from in and outside the home;

• the relationship between M.L.Y. and S.C.H.Y. is highly charged, aggressive, and abusive. There was regular fighting between Y.N.Y., M.L.Y., and S.C.H.Y.. M.L.Y. has been very abusive towards S.C.H.Y. since they have been in care. M.L.Y. would take on a mothering role with S.C.H.Y., but was also very abusive, calling S.C.H.Y. names. There was constant conflict between them, with M.L.Y. hitting S.C.H.Y. several times a day. M.L.Y. has punched S.C.H.Y., stepped on her, and kicked her. The abuse was significant enough that the foster mother called C.C.A.S. and M.L.Y. was removed from the home;

• S.C.H.Y. was initially extremely angry, and was fighting with Y.N.Y. and M.L.Y.. She is quite aggressive, highly volatile, easy to anger, unpredictable in her anger, anxious, controlling, and dominant. She does not back down from conflict with her older siblings. She continues to be verbally aggressive and provocative, and continues to shout and make a lot of noise when she is angry. She hits a lot and shouts when a sibling touches her things. When she retaliates she bites, hits, and takes other's things and destroys them. She has rages that can last up to 30 minutes or more, and it is difficult to get her to snap out of them. She is very impulsive and quick to react, and unpredictable. She continues to struggle with volatile, unpredictable and persistent temper outbursts;

• she has a worker to help with anger management, impulse control, family dynamics, and relationship building. She has a trauma counsellor who helps with anger management;

• she is very argumentative, mean, stubborn, disobedient, moody, engaging in temper tantrums, teasing, attacking, and fighting with others;

• she is strong willed, defiant and reluctant to comply with the expectations provided by the foster mother. She has a lot of anger if she is interrupted. She is difficult to soothe. She has a lot of difficulty with focus, poor organizational skills, is hyperactive, and challenges authority. She has difficulty following rules and routine, and complying with expectations. She does not experience guilt for rules transgressed. She engages in lying and cheating behaviours;

• Y.N.Y. and M.L.Y. told the foster mother that S.C.H.Y. was the preferred child in the home, that the older children would get the brunt of the mother's anger, and that S.C.H.Y. would set them up to get into trouble. S.C.H.Y. said that her parents only care about S.C.H.Y. and her sister M.K.Y., and that her mother had only bought gifts for S.C.H.Y. and M.K.Y.;

• she can be rough and aggressive with other children. She has issues with respect to conflict management with peers, and following instructions. She is overly primed towards an aggressive way of coping with problems;

• she is managing within the average range in both home and school environments; and,

• she rarely speaks about life with her parents. She clearly identified being hit by her parents and being afraid of her parents. She said her father hits her. She was hit by her mother and her father with a belt or slipper, either on her buttocks or her back. Her siblings hit her too. She also experienced abuse by M.L.Y.. She was much more afraid of being hit by her parents. She recalled that Y.N.Y. hit his ear and required stitches. She was terrified and worried that she might die based on the way her parents treated her and Y.N.Y.. She said she did not want to go back home. She was concerned about her mother hitting her with a belt. She said her father hit her with the "long thing" he used to put on his shoe.

Report of Dr. Sala regarding S.C.H.Y.

An undated psychological assessment report from Dr. Sala regarding the trauma assessment of S.C.H.Y., conducted in May 2012 (S.C.H.Y. was then 7 years old) was filed in evidence. These are the statements made by S.C.H.Y. to Dr. Sala, and the findings of Dr. Sala in the report:

• S.C.H.Y. says she has been hit by her parents a lot of times. Her mother took S.C.H.Y.'s clothes off and hit her with a belt. M.K.Y. was hit over her clothes. Her father slapped S.C.H.Y. as well;

• while S.C.H.Y. got hit, Y.N.Y. and M.L.Y. got hit a lot more. S.C.H.Y. reports having witnessed the abuse of her siblings and having suffered abuse by her parents;

• she has been aggressive in the foster home. She tends to instigate with her older siblings. She also has rage reactions. She knows the rules but continues to break them. She also hits the adult children of the foster mother. She has difficulty resisting urges and impulsivity;

• in January 2012, S.C.H.Y. told the social worker that she missed her parents and wanted to see them;

• she meets the criteria for a diagnosis of P.T.S.D.. P.T.S.D. is a disorder that involves a constellation of difficulties related to experiences that one might have where they were terrified of the possibility of serious harm or death befalling themselves or someone else. Her symptoms have been present for some time. She requires a high level of supervision at home and at school to maintain positive behaviours; and,

• she has many symptoms consistent with Oppositional Defiant Disorder ("O.D.D.") and Conduct Disorder, and meets the criteria for O.D.D.. O.D.D. is a separate disorder from P.T.S.D. and requires a different response. She tends to lose her temper frequently, will actively and purposely defy or refuse to comply with requests, tends to instigate problems between her siblings, and deliberately annoys others. She is often resentful, angry, spiteful, and vindictive. She is a self-absorbed and self-centred child.

M.K.Y.

M.K.Y. (a girl) was born in 2008. She was 3 when she was apprehended and is now 5 years old. There was very little evidence about M.K.Y., from any of the parties.

M.K.Y. was described as very easy-going, talkative, pleasant, and readily affectionate. She likes it at the foster home. She played well with her siblings, and particularly wanted to see M.L.Y.. When M.L.Y. was in the same foster home (from November 2011 to February 2012), M.K.Y. was pretty dependant on her and played the part of the baby.

M.K.Y. loves school and is learning to play with other children appropriately. She makes friends easily and she interacts well with her peers. She is very helpful and loves to help people.

The foster mother gave evidence that when M.K.Y. first came into care, she had poor understanding of boundaries. At age 3, she would hug strangers. She would approach adults she did not know and start conversations.

M.K.Y. and S.C.H.Y. have a sibling rivalry.

M.K.Y. needs help to become age-appropriately independent and self-sufficient.

M.K.Y. has rarely spoken about her parents and she has rarely asked to go home. She frequently asks when M.L.Y. will be returning to the foster home.

The Parent's Evidence

The parents filed extensive evidence on the summary judgment motion, all of which was read and considered by the court. As well, the parents filed several additional affidavits during the argument of the summary judgment motion, with leave of the court.

The parents deny any physical discipline or physical harm of any of the children. The parents said that the children's disclosures of physical abuse by them are all lies, and that the children made this up. They believe that the children are being emotionally manipulated by C.C.A.S.. They believe that the children have been indoctrinated since the time of apprehension, and that the children are saying things they have been told to say. Although the parent's evidence was detailed, it contained mostly bald denials that there were ever any problems with the children (other than Y.N.Y.'s bullying), and bald denials of the disclosures made by the children.

The parents feel they have been misunderstood and mistreated. A great deal of the evidence presented by the parents detailed their contact with various authorities (particularly the schools, and C.C.A.S.) and how they experienced that contact. The parents have been unhappy with their treatment by authorities, and have been unhappy with the ways in which their children have been treated. They accuse C.C.A.S. of lack of objectivity. They raise issues around cultural ignorance, cultural bias and racism.

It is unclear whether the parents believe only that the children did not say these things (which is in some of their evidence) or that the children said these things but that they are not true. If Y.N.Y. did say these things, one explanation the parents offer is that these disclosures are a result of the bullying he received at school and the trauma for him associated with the apprehension and coming into foster care.

The parents admit that they did put Y.N.Y. on his knees for punishment, a common practice in Cameroon. The mother admits that she is a strict parent, and she admits that she has a tendency to yell at the children when she wants them to take her seriously, but that she has never physically abused the children.

The parents admit that Y.N.Y. has always been a bit slow, in certain ways, and that he behaves younger than his age. The parents described M.L.Y. as manipulative. In their culture the oldest daughter is trained to fill the gap of her mother in respect to all siblings, younger and older.

In Fall 2008 (Y.N.Y. was in grade 5, M.L.Y. was in grade 2), Y.N.Y. and M.L.Y. were bullied at school, because, the parents say, they could not speak English. The parent's evidence contained a lot of details of bullying behaviour experienced by Y.N.Y. in particular. The parents met with bullying committee at the school, and talked to the teacher, and to the principal, on many occasions. The parents were unsatisfied with their treatment on this issue, and the bullying of Y.N.Y. continued. The parents continued to demand that the school address the bullying. The relationship between the parents and the teachers became strained. The parents felt that the school had labelled them as extremely confrontational and aggressive.

The parents say they co-operated fully with the first C.C.A.S. investigation in December 2008. The parents say there were no concerns and no contact with C.C.A.S. from January 2009 to 18 May 2010.

When Y.N.Y. was apprehended on 31 March 2011, on the basis that Y.N.Y. disclosed that his limping was caused by his father hitting him, the father said that he did not hit Y.N.Y..

The parents said that Erin Thackray (an earlier C.C.A.S. family services worker, who interviewed them at this time) misunderstood their culture, which led her to believe they were aggressive, because they talk loudly. The parents said that they were raised in a culture where people talk loudly.

When Y.N.Y. was returned home in 10 May 2011 under a consent temporary supervision order, the parents said that they did not welcome C.C.A.S. involvement, but that they co-operated with C.C.A.S. and that they worked with C.C.A.S.. The parents said that they enrolled in and attended parenting classes and individual and family counselling sessions with Jamaican Canadian Association (the parents pointed out that this is an organization providing services to a culturally different community from their community).

Prior to the school year in November 2011 the parents had always received complaints about M.L.Y., including that she was pushing students, fighting, taking things from teacher's desks or other student's desks, disturbing in class, forging the father's signature. In October 2011 the mother admits that she told M.L.Y. she would send her to boarding school far from the grandmother in Cameroon. The parents believe M.L.Y. ran away then because she took the threat seriously.

The mother admits that she used the word "mort" (dead) when addressing the children, when she wanted them to appreciate that she was serious, but that she did not mean it to be an actual threat. The parents said that in their culture it is a common practice by parents to make empty threats to their children to ensure compliance and obedience.

The parents do not accept the diagnoses of P.T.S.D. for the three older children. They said that if that diagnosis is correct, that this is the result of the apprehension and of being kept away from their parents.

The parents complained about C.C.A.S.' lack of objectivity. The parents said that C.C.A.S. has not shown objectivity in addressing the alleged protection concerns because the parents have been labelled as confrontational and aggressive by the children's teachers and an earlier C.C.A.S. worker.

The parents said that C.C.A.S. is responsible for the emotional abuse of the children.

The parents said that the only emotional abuse suffered by the children is from being away from them and in foster care. The parents maintain that there were no conflicts between the children before they went into care.

The parents allege bad faith by the children's school, and that this is the genesis of C.C.A.S. involvement with the family. The parents allege that the C.C.A.S. worker demonstrated a lack of objectivity and fairness in her dealings with them.

The parents admit that Y.N.Y. and M.L.Y. have experienced separation and reunification issues associated with their separation from the parents for several years. The parents raise the issue of "the immigrant experience and the complex psycho-social issues presented to the children, given their separation, reunification and other issues associated with their lives in Canada". However, the parents made this statement about their children, but provide no further information about what is meant. There was no evidence regarding what this statement meant, that the parents understood any possible consequences for Y.N.Y. and M.L.Y. from this, nor was there any evidence of any specific steps taken by the parents to assist the children with this issue (for example, no counselling for the parents on how to deal the children about this, no counselling for the children about this). The parents do not seem to understand these issues themselves, and do not otherwise address them, other than to say that C.C.A.S. and the clinicians involved did not take these things into account.

Evidence Regarding the Protection Findings

The children have disclosed serious and repeated physical abuse to several different people, including the foster mother, Nicole Sinclair (family services worker), the assessors (Dr. Sala and Dr. Depatie), and their lawyers.

Y.N.Y. has disclosed physical abuse by his parents to the police, the social workers, his assessor (Dr. Sala) and his foster mother. Y.N.Y. does not want to see his father, and does not want to return home to live with his parents.

M.L.Y. has disclosed physical abuse by her parents to the police, CCAS, Youthdale, her therapist (Dr. Depatie) and the foster mother. She does not want to see her father, and does not want to return home to live with her parents.

S.C.H.Y. disclosed physical abuse by her parents to Dr. Sala and to Nicole Sinclair.

The parents have denied that they have physically abused the children. They take no responsibility for the aggressive behaviours, outbursts, recurrent nightmares of the children, or the self-harming behaviour and suicidal ideation of M.L.Y., or the trauma that the children have experienced that has caused three of them to be diagnosed with P.T.S.D..

According to the parents, the school authorities, C.C.A.S., the police, the psychologists, and the children's peers are to blame for the dissolution of their family. Even the children are to blame and are seen by the parents as lying or being manipulated to lie.

The children are deeply affected by their life with their parents and are profoundly disturbed. This is evident in their behaviour, and particularly, in their behaviour towards each other. On 17 February 2012 C.C.A.S. asked S.C.A.N. for intervention with all four children in order to have them interact in a more positive way. Dr. Depatie (psychologist at the S.C.A.N. unit at Sick Kid's) told C.C.A.S. that the children's needs seem to be greater than what S.C.A.N. could provide. That is an extraordinary admission for a mental health service provider, and for that particular unit.

The protection findings do not turn on the court finding the truth of what the children are saying regarding physical abuse by their parents. Even if the court found insufficient evidence to find that the physical abuse of the children occurred, there is more than enough evidence for a protection finding based on the risk of emotional harm to the children. Even without a finding of actual physical harm to the children, findings can still be made based on the trauma assessments, the diagnoses of P.T.S.D. for the three oldest children, the wishes of the three oldest children and the behaviours of the children.

The children have all experienced trauma. The three oldest children talk about being afraid that they will die at the hands of their parents. All of the three oldest children document feelings of terror. The trauma has affected them profoundly and has affected their behaviour. They are aggressive, violent, they rage at each other and at others, they steal. Their behaviour is out of control, and their behaviour to each other is deeply concerning.

There was no evidence offered as to the effect for these children of the transient life that they have led throughout their lives, particularly Y.N.Y. and M.L.Y., nor of the effect for these children of the long separations Y.N.Y. and M.L.Y. endured from their parents. There have been many moves, they have lived in many countries and even on many continents, experiencing many different cultures and languages. They did not live with each other, Y.N.Y. and M.L.Y. did not live with their parents for over four years, they did not even know each other when last reunited (10 year old Y.N.Y. and 7 year old M.L.Y. had never met 3 year old S.C.H.Y., and then M.K.Y. was born three months later). The parents made a bald statement in their evidence that this may have had consequences for the children, but did not disclose what those consequences might be, and did not take any steps to help the children to deal with those effects.

The three oldest children have also been clear and consistent that they do not want to return to live with their parents. This is unusual, and must be taken into account in a serious way.

The Protection Finding

There is substantial evidence, indeed, overwhelming evidence, that there is no triable issue that all four children are in need of protection under ss. 37(2) (a), (b), (f), (f.1), (g), (g.1) of the C.F.S.A. (these sections cover protection findings related to physical harm, the risk of physical harm, emotional harm, and the risk of emotional harm).

10. Disposition

Disposition Legal Principles

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

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:

Order where child in need of protection

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

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).

The decision process on a disposition hearing, following a finding that the child is 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.

Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the children before intervention. C.C.A.S. has been involved with this family for over two years. A supervision order was in place from April to November 2011. C.C.A.S workers have attempted to make referrals for the parents to services to help them address the impact of their parenting on their children. The parents have expressly and repeatedly rejected the services C.C.A.S. attempted to provide. The father said that he would find services on his own. Other than parenting programs done in 2011 (before the children made their most significant disclosures of physical abuse in November 2011), there is no evidence that the parents have engaged in any services to assist them with their parenting, or the impact their parenting has had on their children.

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

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.

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

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

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

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

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.]).

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..

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). 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.).

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

These are the options available regarding disposition for the children:

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

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

c) an order for crown wardship.

Analysis of the Parent's Evidence and Plan

The parents love their children, and say that they want only what is best for them. They have moved many times, with the intention of improving their lives and the lives of their children. They have lived in many countries on several continents, and have experienced many different cultures.

There have been extended separations in the family, particularly for Y.N.Y. and M.L.Y., who were separated from their parents for over four years. When the family was reunited, they were living in a new country, Canada, and faced with a new language (Y.N.Y. and M.L.Y. spoke only French when they came to Canada). At reunification, Y.N.Y. and M.L.Y. met a 3 year old sister they had never seen before, and within a few months, a new baby was born. It is hard to imagine how disruptive and difficult all of this must have been for Y.N.Y. and M.L.Y., and how displaced, even replaced, and possibly rejected, they must have felt in their own family. It is not possible to know the real impact of these moves, separations and changes on Y.N.Y. and M.L.Y..

The parents are educated and intelligent. They have had to take jobs which do not match their education and their skills. They have faced racism in different circumstances and contexts.

There are many outstanding criminal charges against each of them (even though a number of charges were dropped after the preliminary inquiry), but they admit to no physical abuse of the children and to no criminal behaviour.

The parents see their contact with the authorities involved with their family in terms of a conspiracy founded in racism. They blame everyone else, except themselves (including C.C.A.S., the school, the teacher and the principal, the other students, all of the doctors involved with their children, the police, and the children's lawyers). They take no responsibility for what has happened in their family. They ascribe blame to all the professionals and ascribe malice, even an intention to destroy their family. The parents are blaming everyone involved with their family, and alleging that the assessors did not look at the cultural context when assessing the children. Culture is important to the parents, but the parents are raising culture here as a smokescreen.

Even in examining their contact with Y.N.Y.' s school regarding the bullying he experienced, the parents assume that Y.N.Y. is innocent, that the cause is racism, and there is no perspective other than Y.N.Y. as a victim of racism and bullying. They were hostile and confrontational with the school. Yet they disciplined Y.N.Y. for these events. And they identified the bullying of Y.N.Y. at the school as the genesis of their problems.

One of the most serious reports of abuse of Y.N.Y. is his report of his treatment by his father before the original apprehension on 11 March 2011. Y.N.Y. said his ear was cut so badly he had to go to the hospital, and he feared that he would die. The parents do not explain this. They do not comment on or deny the children's disclosure that Y.N.Y. and M.L.Y. were forcibly thrown out of the apartment and not allowed back for a long period of time when it was discovered that they had written letters to their grandmother in Cameroon.

The parents were not co-operative with C.C.A.S.. The mother believes that everything she said is misunderstood and misconstrued.

No doubt there are cultural differences for these parents. It is common in their culture for the children to go to live with other family members. It is a normal thing for parents to use a strong voice and strong language with their children. They talk very loudly. They threaten the children with death if they do not behave. They threaten to send the children back to Cameroon if they do not behave. The parent's behaviours have scared the teachers, the school officials, the social workers, and their children. They have done what they consider normal in their culture. One might ask if that fact that this behaviour is cultural makes it acceptable parenting?

The parents have very high expectations for the children academically, expectations that the children do not meet, that Y.N.Y. in particular cannot meet, and expectations that may be unrealistic. Y.N.Y.'s learning potential is low borderline to low average, and his adaptive functioning is very low. The parents did not meet with the school to discuss Y.N.Y.'s functioning. It appears that the parents did not meet with the school to discuss anything expect racism and bullying. They dealt with Y.N.Y.'s school performance through harsh discipline.

Y.N.Y.'s (15 years old) behaviour is extreme. He is very aggressive with his siblings, takes offense very quickly, gets angry and lashes out, has difficulty concentrating and focusing, and is easily distracted. He has a hard time seeing the world through anything other than his own point of view. He does not want to return to live with his parents. He does not want to see his parents. He is afraid of his parents. He is compulsive, and he meets the criteria for P.T.S.D.. It was universally reported that Y.N.Y. has no friends. He needs counselling and skills training to develop social skills.

M.L.Y. (12 years old) is charming, articulate and very smart. Her views have been very consistent, strong and independent. She does not want to return to live with her parents, and she has not changed her mind. She does not want to see her parents. She is afraid of her parents. She gets very concerned and overwhelmed about the court case, and about the possibility of being returned to live with her parents. She made detailed and specific disclosures of her parent's abusive treatment of her to Nicole Sinclair, Heather Pardon (the youth worker), the care-givers at the group home, her own lawyer, and Dr. Depatie. She told her lawyer she will be very happy once all the court cases are completed and there is no further need for her to testify (in the criminal case). Recently, she said that she wants telephone access to the mother from time-to-time, to know how her mother is doing. She does not want any access to her father. The most important thing to her now is to be reunited with her siblings (she cares a lot about Y.N.Y.). She also wants to be able to contact her grandmother (but she does not want to return to Cameroon).

S.C.H.Y. (now 8) has been very consistent that she does not want to return to live with her parents and that she wants to stay where she is (even though Y.N.Y. and M.L.Y. have been removed from this foster home). She expressed fear of seeing her parents and fear of being blamed. S.C.H.Y. disclosed physical harm at home by her parents to Nicole Sinclair, Dr. Sala, Melissa Merit (the previous children's services worker) and her lawyer. She says that both her parents hit her and that it made her fearful. She saw her parents hit her siblings and she feared for them. She told Dr. Sala that she is terrified and that she fears that she will die. Dr. Sala diagnosed her with P.T.S.D., which symptoms have been present for some time, and need to be monitored. She also has symptoms of O.D.D..

The three oldest children Y.N.Y., M.L.Y., and S.C.H.Y. made detailed disclosures about being physically disciplined by their parents. They each made these disclosures to several professionals (including their own lawyers). The details of the disclosures each child made were consistent to the different professionals listening. The details of the disclosures were also consistent among the three children. All three of them have been diagnosed with P.T.S.D.. All three have expressed the fear that they will die in their parent's care. None of the three oldest children want to return to their parents to live.

The parent's very notion of parenting is at issue here. The parents deny absolutely that there is any basis for a protection finding. The parents do not believe that the children do not want to return to live with them. The parents show no ability for self-reflection or self-awareness. They take no responsibility for anything that has happened. They show no remorse. Their way of viewing the world is a self-fulfilling prophecy. They would not be (and have not been) open to working with C.C.A.S. or other service providers. They have taken almost no steps to address the protection concerns (the parents took a parenting course in 2011 in response to a C.C.A.S. recommendation to do so).

The parents have not made any changes and are not interested in making any changes. Nothing in their behaviour, actions, or attitudes has changed. They do not accept any wrong-doing on their part. Everything is the fault of someone else. Nobody is telling the truth except them. They have taken no steps to address the disclosures of the children about the physical and emotional abuse they endured while in their parent's care. They are unwilling to get help or find support for themselves or their children. They have not accepted any responsibility for the impact that their parenting style has had on the children.

The parents continue to be mistrustful of C.C.A.S. and its employees. They have rejected any of the suggestions or offers to make referrals to services proposed by C.C.A.S. They have not engaged in any services in the nearly two years since their children came into care (except, as noted, a parenting course). They have not had any counselling to help them to gain insight into their parenting style and the affect it has had on their children.

The parents have been involved with C.C.A.S. since late 2008, and then consistently involved since March 2011. They have been involved in child protection litigation for more than two years. They are now experienced child protection litigants. The parents ought to have taken steps in the nearly two years since the children's apprehension to address the protection concerns.

On the summary judgment motion the parents did not demonstrate any understanding of or insight to the child protection concerns, or the reasons their children were removed from their care. Since the parent's first involvement with C.C.A.S. they have had ample time and opportunity to work on these issues, but have not provided C.C.A.S. or the court with information related to the protection concerns, and have not addressed these serious protection concerns. The same concerns that existed regarding the parents at time of the apprehension of the children continue to exist at the summary judgment motion.

All of the considerable evidence and the submissions presented by the parents on the summary judgment motion were taken into account by the court. Neither the parent's Plan of Care nor the parent's evidence specifically nor adequately addresses the protection concerns raised. Bald denials that there is a problem are not adequate.

The parents are not involved in supportive psychiatric or psychological services of any kind, or counselling. There was no evidence, letter, or report from any service provider regarding the parent's participation, and nothing which would support their plan. The parents do not believe they need to make any changes. The parents lack insight into their situation, which suggests they are unlikely to be able to change, and that they are unable to be able to reduce the risk to their children.

The parent's current plan is simply to have the children returned to their care, even though the oldest three children have repeatedly said they do not want to return to their parents and that they are afraid of their parents. This is not a plan with an air of reality, given the very serious disclosures by the children of physical abuse and emotional abuse, their diagnoses with P.T.S.D., their difficult and extreme behaviours, their high level of conflict with each other, and their desire to not live with their parents. 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.

There is no way that the children could be safe in their home. The parents would not be able to make these children feel safe and unafraid. The evidence is overwhelming that there is no triable issue.

Alternative Plans for the Care of the Children

At the motion for summary judgment there were no alternative plans, from family or community, for the care of the children. There was a long paper trail presented as evidence of the efforts of C.C.A.S. to learn from the parents alternate plans for the care of the children. There were at least six plans proposed. None were approved, and some were withdrawn. At the summary judgment motion there was no alternate plan proposed for the care of the children.

Why Not a Supervision Order?

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.

Any plan for the return of the children to the parents would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the persons 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 persons 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 parents would be an ineffective instrument for the protection and safety of the children. The parents are not suitable candidates for a supervision order, which requires a sense of co-operation and a willingness to work with C.C.A.S..

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.

11. The Summary Judgment Request

The court has all the necessary material facts to determine the disposition issue.

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.

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.

If the parents' evidence on the motion is their "best foot forward", it discloses no genuine issue for trial. There is no realistic possibility of an outcome other than that sought by C.C.A.S..

It is entirely clear, at this time, and on the basis of the affidavit evidence alone, what the outcome of this trial would be. The court should not be required to spend the valuable resource of trial time and impose the stress and trauma of a trial on the children, and on the parents, when the outcome is a foregone conclusion.

There is no need to have a trial judge decide this issue. The motion for summary judgment is granted.

It is not in the best interests of these children to delay their permanent placements any longer. The proper disposition for them now is clear. The children would not be safe in the care of their parents, do not want to return to live with their parents, and should not be returned to their care.

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.

12. Access

Access Legal Principles

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

Access: Crown ward

59. (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. 2006, c. 5, s. 17 (2) .

The process for a decision regarding access, following a decision that the child should be made a crown ward, 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).

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., para. 57; Children's Aid Society of Niagara Region v. C. (J.), para. 22.

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.), para. 22.

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.), p. 50; Children's Aid Society of Toronto v. D.P..

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.), para. 44.

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.

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.).

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

The test focuses on the child's, and not the parent's, experience of the relationship in the assessment of whether it is beneficial and meaningful: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.

The decision about access to a crown ward is not to be made lightly. The court must still be satisfied that the relationship is beneficial and meaningful for the child. An access order cannot be merely a consolation prize for disappointed adults: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 440, para. 215.

Even where the access visits are generally enjoyable for the child, it is open to the court to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family: Children's Aid Society of Toronto v. M.A..

The second component of the s. 59(2.1) test places a burden on the person seeking access to show that an access order would not impair a child's future ability to be adopted. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable: Children's Aid Society of Ottawa v. W. (C.); Children's Aid Society of Niagara Region v. C. (J.).

An access order for a crown ward no longer prevents an adoption order being made. Until recent amendments to the C.F.S.A., a society was unable to place a crown ward for adoption if there was an outstanding access order. Crown wards with access were not eligible for adoption. Section 141.1 has now been amended to allow societies to place crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption: Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, para 145.

Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption". The operative words of s. 59(2.1) (b) — "will not impair" — place an onus on the parents to satisfy the court that access to the crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The onus on parents remains high: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, para. 419-421, 427, and Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, para 145.

Section 59(2.1) speaks 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 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 her mother learns how to be a responsible parent: Huron-Perth Children's Aid Society v. J.F., [2012] O.J. No. 5215 (S.C.J.), para. 77, 80.

Access History

The parents have not had any access to the children since they came into care on 16 November 2011. There has been no access for nearly two years.

Access was initially at the discretion of the C.C.A.S. in relation to duration, supervision and location, and in accordance with the parent's bail conditions (order of Waldman, J. made 21 November 2011 on first appearance after apprehension).

Then access was changed to access supervised in the discretion of C.C.A.S. and in accordance with the parent's bail conditions (order of Brownstone, J. made 14 December 2011).

The parents brought motions for access in April 2012, and the motions were dismissed by Brownstone, J. on 1 May 2012. The then existing order of Brownstone, J. of 14 December 2011 for access supervised at C.C.A.S.' discretion was the valid continuing order.

The parents asked to renew the motions for access on 10 July 2012 and the court permitted the motions for access to be argued. Brownstone, J. dismissed the motions for access and ordered no access to any of the four children.

These orders were not appealed. It does not appear that any further motions for access to the children were brought by the parents.

The three oldest children (Y.N.Y., M.L.Y., and S.C.H.Y.) have all tried to contact the parents while in care. S.C.H.Y. has said she misses her parents. The youngest child M.K.Y. has asked when she would see her father.

However the wishes of the three oldest children to not return to live with their parents and to not visit with their parents have not changed. The three oldest children have all said they do not want to go home.

Access Analysis

The parent's evidence did not provide any information which would give rise to a genuine issue for trial regarding access. There has been no access to the children for almost two years. The children do not want to see their parents. This is a very serious circumstance, one which the parents have not addressed in any meaningful way. Instead, the parents merely dispute that the children have indeed said these things.

There is no access, and the children do not want access. When there is no access, it cannot be beneficial and meaningful to the children.

The parents have not met the onus on them to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A.. The parents cannot meet the onus in s. 59(2.1) C.F.S.A. regarding access to the children.

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

Sibling access

There should be access between the four children, if they are not placed together. At present they are in three separate placements, with serious reasons for these separations. However, they are clearly bonded to one another.

13. Orders

There is no genuine issue for trial in this matter.

These are the statutory findings about the children, pursuant to s. 47(2) C.F.S.A.:

Y.N.Y. was born in 1998. His mother is A.M.Y.. His father is P.Y.. His religion is Catholic. He does not have Native or Indian status. He was apprehended on 16 November 2011 in Toronto, Ontario.

M.L.Y. was born in 2001. Her mother is A.M.Y.. Her father is P.Y.. Her religion is Catholic. She does not have Native or Indian status. She was apprehended on 16 November 2011 in Toronto, Ontario.

S.C.H.Y. was born in 2005. Her mother is A.M.Y.. Her father is P.Y.. Her religion is Catholic. She does not have Native or Indian status. She was apprehended on 16 November 2011 in Toronto, Ontario.

M.K.Y. was born in 2008. Her mother is A.M.Y.. Her father is P.Y.. Her religion is Catholic. She does not have Native or Indian status. She was apprehended on 16 November 2011 in Toronto, Ontario.

These are the protection findings regarding the four children:

Y.N.Y. is found to be in need of protection under ss. 37(2) (a), (b), (f), (f.1), (g), (g.1) of the C.F.S.A.

M.L.Y. is found to be in need of protection under ss. 37(2) (a), (b), (f), (f.1), (g), (g.1) of the C.F.S.A.

S.C.H.Y. is found to be in need of protection under ss. 37(2) (a), (b), (f), (f.1), (g), (g.1) of the C.F.S.A.

M.K.Y. is found to be in need of protection under ss. 37(2) (b), (g) of the C.F.S.A.

Y.N.Y., M.L.Y., S.C.H.Y., and M.K.Y. shall be made crown wards, without access to the parents.

There shall be access between all of the children. The four children are the access holders of this right. Access among the children is to be at the discretion of C.C.A.S. (while they are still in the care of C.C.A.S.), and after that, as agreed between the siblings, and in consultation with their treatment providers.

Released: 07 October 2013

Justice Carole Curtis