WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to 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 prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that the publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: 2013-11-25

Brampton Registry No.: 20007/12

Between:

Children's Aid Society of the Region of Peel, Applicant

— And —

D.A., Respondent

Before: Justice Philip J. Clay

Heard on: 23 October 2013

Reasons for Judgment released on: 25 November 2013

Counsel

• Shannon C. Kinch — counsel for the applicant society
• Peter M.B. Eberhard — counsel for the respondent mother
• Sonia V. Khemani — counsel for the Office of the Children's Lawyer, legal representative for the child, Y.A.

JUSTICE P.J. CLAY:—

BACKGROUND

[1] The society brought a status review application on September 5, 2012 with respect to the order of the Honourable Justice Jane Kerrigan Brownridge dated April 11, 2012. That application was amended on January 22, 2013 to change the disposition sought. The society wanted the child Y.A. born [...], 2006 to be a ward of the Crown with no access between the respondent mother D.A. and the child. D.A. filed an answer and plan of care on March 7, 2013. On April 11, 2012 service upon the child's father M.A. was dispensed with and he has not seen the child or participated in the proceedings since.

[2] The amended status review application came before the court on May 15, 2013 at which time the O.C.L. was asked to appoint counsel and the matter was set for a summary judgment motion on August 21, 2013. Ms. Khemani was appointed for the child on May 21, 2013. The motion was adjourned to October 23, 2013.

The society filed its motion seeking that the child be made a ward of the Crown. It was supported by the following affidavits:

• Karen Purcell, June 28, 2013
• Yaw Akenten September 18, 2013
• S.J. the society foster parent September 16, 2013

[3] D.A. filed a notice of motion on October 5 returnable October 23 seeking to dismiss the summary judgment motion and seeking an order that she be granted custody of the child. It was supported by her affidavit dated October 5, 2013. The society then filed the reply affidavit of Yaw Akenten on October 18, 2013.

THE LAW

[4] The section of the Child and Family Services Act that addresses status review applications is section 64 and it reads as follows:

64. Status review.

(1) This section applies where a child is the subject of an order under subsection 57(1) for society supervision or society wardship.

(2) Society to seek status review.

The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child's status;

(b) shall apply to the court for a review of the child's status before the order expires, unless the expiry is by reason of subsection 71(1); and

(c) shall apply to the court for a review of the child's status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

[5] The jurisdiction of the court on a status review is set out in section 65 of the said Act which states:

65. Court may vary, etc.

(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

[6] In this matter the society is seeking a further order. The order to be made must be pursuant to section 57. The relevant parts of that section are set out below:

57. Order where child in need of protection.

(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:

1. Supervision order — 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.

2. Society wardship — 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.

3. Crown wardship — 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.

4. Consecutive orders of society wardship and supervision — 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.

[7] The first matter then is to determine if a further court order is necessary to protect the child in the future. If it is determined that it is then the order to make is the one that is in the child's best interests. The best interests of a child are defined in subsection 37(3) of the legislation. That subsection reads as follows:

(3) Best interests of child.

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 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's 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.

[8] Summary Judgment motions are governed by rule 16 of the Family Law Rules. Subrule 16(6) reads as follows:

(6) No issue for trial.

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

[9] The use of the word shall in subrule 16(6) means that if no genuine issue for trial exists the court has no choice but to grant the summary judgment.

[10] 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., 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Carswell Ont 2453 (Ont. Fam. Ct.), per Justice Donald J. Gordon:

In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. Children's Aid Society of Dufferin County v. James R., 118 A.C.W.S. (3d) 78, [2002] O.J. No. 4319, 2002 Carswell Ont 3821 (Ont. C.J.).

SOCIETY'S EVIDENCE

[11] Ms. Kinch for the society stated that the society was seeking an order that the child be made a Crown ward and that there be no order with respect to access. She said that the society's evidence could be subdivided into three areas of concern:

1. Failure to take steps to protect the child.
2. Not prioritizing needs of child.
3. Filing a plan of care that lacks detail and was not ready to be implemented.

Failure to Protect the Child

[12] Ms. Purcell's affidavit addressed the child protection issues in British Columbia. On August 31, 2007, D.A. requested that Children's Services in B.C. assume care of her 1½ year old child Y.A. as she was unable to manage or support him. She stated that the child's father M.A. was physically abusive. She was referred to services but the child did not come into care.

[13] On January 28, 2011, a staff member from a shelter reported that D.A. had arrived with her son the previous night and reported that she had been living in a hotel and was fleeing an abusive relationship. D.A. left the shelter the next day. While at the shelter D.A. disclosed that she found her boyfriend O.T. in bed with her son and touching him. The next day when Children's Services followed up, D.A. was evasive and denied that any abuse had occurred. D.A.'s primary focus seemed to be upon who had made the report. She then said that the R.C.M.P. has removed her boyfriend from the home but she refused to say where she was living or where the child was living. A follow-up call with the R.C.M.P. revealed that they had no record of D.A. in the system.

[14] Ms. Purcell's affidavit based upon her contacts with B.C. authorities went on to state that eventually D.A. provided an address for O.T. and advised that she and the child were living at a shelter. On January 31, 2011 D.A. attended at the Children's Services offices. She stated that she had been in an abusive relationship with O.T. for 6 months. She then described repeated sexual assaults upon her son by O.T.— in the shower, in the bed. She saw O.T. grab her son's "dick" but she did not report it as she did not realize that it was child abuse. She said that, when O.T. began living with her, Y.A. began wetting the bed, defecating in his pants and crying in the middle of the night. She reported graphic statements of repeated sexual assaults made by the child to her two months earlier on November 18, 2010. She insisted that she called the police and called children's helpline. There was no record of any report with the latter as there was no record of any report with the police as noted above. A worker interviewed the child who made a number of disclosures of sexual abuse by O.T.

[15] D.A. was directed to attend the police station to report the abuse which she did. The child was apprehended that day. During her interview with the police, D.A. became upset and complained that, if the homeless shelter had not reported the abuse, she would not have to deal with B.C. Children's Services. In front of her son, D.A. stated to B.C. authorities "if you're going to take him, you take him until he is 18. He is yours now".

[16] It was reported by day-care supervisors that the child had begun showing sexualized behaviour and inappropriate language some six months earlier and that this had been discussed with D.A. He was now exposing and playing with himself at the day care. The child said his mother was sad because his "father" who had resided with him for 1½ years (thought to be O.T) was moving. On February 2, 2011 a B.C. court made a temporary order placing the child in care.

[17] In subsequent police interviews, D.A. maintained that her failure to report was because she simply wanted O.T. to move out of the home. She said that she did not realize that the police became involved in matters involving the sexual assault of children.

[18] A finding of protection was made and the child remained in care until January 4, 2012 when he was returned to D.A. under terms of supervision. Those terms included that she was to reside in Kamloops B.C. and was not to change her address without the Director's consent. Another was that she was to access counselling through Victim's Services for both herself and the child. D.A. left Kamloops without notifying anyone on or about January 14, 2012.

[19] On January 18, 2012, Peel C.A.S. received a report from Kamloops that D.A. may have moved to Brampton where her mother resided. The child was apprehended from the mother at the grandmother's home in Brampton that day. The child has not lived in the primary care of the mother ever since.

Not Prioritizing Child's Needs

[20] The society's evidence in this area could have subheadings such as: failure to follow up with services or failure to understand the child's needs and failure to attend access consistently.

[21] A temporary court order placing the child in the care of the society was made on January 24, 2012. D.A. was referred to the Peel Children's Centre and United Achiever's for counselling. The file was transferred to the current worker Mr. Yaw Akenten on February 10, 2012.

[22] The maternal grandparents came forward with a plan to care for the child. Following a kin care assessment the maternal grandparents were approved on April 10, 2012. During the assessments D.A. and her parents had good and consistent visits with Y.A. at the Society offices.

[23] A final order was made on April 11, 2012 placing the child in the care of the maternal grandparents under supervision for a period of six months. The order included terms that D.A. attend:

a) for counselling through the Peel Children's Centre for the purpose of gaining knowledge and skills relating to parenting.

b) to engage in counselling to address issues related to domestic violence and sexual abuse.

c) to engage in counselling to address trauma related to domestic violence.

[24] At the time of the order, D.A. was residing in her parents' home. The maternal grandparents advised that conflict had developed with their daughter because she was refusing to assist with the care of her son and often disappeared from the house for days at a time without informing her parents of her whereabouts.

[25] At a scheduled meeting with Mr. Akenton on June 5, 2012, D.A. was initially not present. She then drove up to the home. She said:

I do not live here and do not intend to come in to that evil house….no plans in caring for Y.A…. if Y.A. is placed with me, he will be apprehended from me as I do not see fit to care for him….

[26] She then left the home without participating in the meeting. The child advised that he had not seen his mother in seven days. The next day, D.A. attended at the society's offices. She advised that she had attended the intake centre at the Peel Children's Centre but had not followed up with counselling. She said she was not living with her parents but refused to provide her address.

[27] On July 17, 2012, the paternal grandfather called Mr. Akenten from Ghana and asked that the child be removed from his home. The maternal grandmother subsequently spoke to him and said they had changed their mind and would keep him.

[28] On a visit July 19, the child told the worker that he had not seen his mother for a long time which turned out to be since July 13. D.A. did attend the home the next day and then made a complaint that the child had a swollen cheek and toothache. The maternal grandparents had failed to take him to the dentist. D.A. was correct in that, by the time the child finally was taken to the dentist by the society on August 24, he was found to have three decayed teeth. The maternal grandparents advised that same day that they could no longer provide care.

[29] On August 31, 2012, the child was placed in a foster home. On September 25, 2012, a temporary order was made by the Honourable Justice Patrick W. Dunn placing the child in the care of the society.

Failure to Follow Up with Services

[30] Mr. Akenten's affidavit addressed the mother's failure to follow up with the ordered counselling. She did some sessions with United Achievers until October 2012 but then advised that her counsellor left and she did not obtain a new one. She was doing some one-on-one counselling with Ms. Lola Awosyian at Malton Neighbourhood Services. She advised as to two other programs that she had attended but could not provide details or contact information.

[31] Mr. Akenten spoke to Ms. Awoysian on January 3, 2013 and she advised that D.A. had not been forthcoming about the society's protection concerns. She did tell her counsellor on December 18, 2012 that she would prefer to have the child remain in the care of the society, that the child is possessed and that M.A. is using the child against her spiritually and that she was unable to accommodate the child in her current residence.

[32] Ms. Awoysian said D.A. had not followed up with her referral to a woman's group and that she was closing her file.

The Child's Needs

[33] There have been two assessments of this young child. The first was completed in B.C. by an early childhood mental health clinician Ms. Isabelle Majnaric. In her report of December 15, 2011, she noted that the child had been diagnosed with attention deficit hyperactivity disorder. She also noted:

Y.A. is a little boy with a history of multiple stresses, losses, sexual abuse and marginal caregiving that have resulted in attachment disturbances and post-traumatic stress. Due to lack of consistent attuned and responsive caregiving, Y.A. had not have the opportunity to develop trust and sense of safety with his caregivers and instead has learned to become self-reliant and avoidant in relationships.

[34] Ms. Majnaric recommended that the child needed:

….a home that is able to provide safety, structure and stability as well as nurturing playfulness and emotional attunement. It is very important for Y.A.'s emotional well-being that his life be predictable and calm and without stress that might overwhelm him.

[35] Notwithstanding this assessment, Y.A. was returned to the care of his mother about two weeks later.

[36] With respect to D.A., Ms. Majnaric made recommendations of the type of parenting that the child needed. She then said that for D.A.:

Personal counselling and trauma therapy is recommended …her mental health, stability and resolution of her own traumatic experiences will be a crucial factor in Y.A.'s improvement in functioning.

[37] The Peel society arranged a second assessment in the winter of 2012. Dr. Maureen Joyce delivered her report in the spring of 2013. She found the child had a number of challenges such as:

a) His functioning was less than 0.1 percentile with respect to overall adaptive functioning and his practical skills

b) There was some evidence of hyperactivity, anxiety, depression, attention problems and poor social skills. His Activities of Daily Living are considered to be in the clinically significant range.

[38] She made similar recommendations as Ms. Majnoric as to the child's need for stability security and predictability.

Failure to Exercise Access

[39] Given the needs described above, Mr. Akenten's evidence as to the frequency of access was very concerning. There were three periods of access since the child had been in Brampton.

[40] The first was when the child was in care. D.A. and her parents attended access at the society offices regularly once per week.

[41] The second was when the child was with the maternal grandparents. As initially D.A. lived there as well she could have enjoyed liberal and generous, albeit supervised, access with her son. The evidence was though that she frequently left the home for long periods at a time.

[42] Finally there is the period since August 31, 2012 when the child has been in foster care. Despite being offered visits on September 4, 2012, the mother did not get back to the society with a response until September 13. She had her first visit at the society offices for two hours on September 19, 2012. Mr. Akenten's evidence is that she was offered visits every week but she requested visits every second week.

[43] At a November 21, 2012 court attendance, D.A. asked for her visits once a week on weekends. There was a wait list for weekends but weekly visits were set up. Incredibly, D.A. did not attend the first visit and reported that she forgot about it.

[44] There was a visit December 3 but not on the 10th. On December 17, D.A. asked that her visits be put on hold until December 31 and that was done. The January 7 visit did not occur so that the next visit was January 14.

[45] The worker met the mother that day and he states that she told him:

a) That she told her counsellor that she would rather leave the child in foster care

b) That she loved the child but was not ready to care for him at this time

c) It had been difficult caring for the child in the past

d) She wanted the society to place the child in a place where he would be safe and well taken care of.

[46] Following the January 14 visit, D.A. did not see the child again until March 18, 2013.

[47] The next visit after that did not occur until May 22, 2013. On that day, a meeting occurred at the society offices which included D.A. and her lawyer Mr. Eberhard to address missed access and the emotional impact of that upon the child. Plans were put in place for a confirmation of all access visits.

[48] Visits then occurred on June 5 and 12. On June 25, 2013, D.A. wrote a letter to society counsel in which she stated among other things:

In the future, please do not place my son Y.A. under the custody of any of my family member's care and that means all of my family member's care… Do not place him for adoption and do not place him in a ward, but if you insist of making him a ward and if you do, I would like to have access granted to me, to see my son.

[49] The society requested a meeting to discuss the reasons for missed access and D.A.'s commitment to her child. A teleconference was held that included her counsel on July 29, 2013.

[50] Access resumed on August 7, 2013 and has occurred since but it was reduced by 45 minutes as D.A.'s request to accommodate her work schedule.

[51] As to the visits themselves, Mr. Akenton said he was present for the majority of the visits. He listed in his affidavit her strengths and areas that required significant improvement. The points listed supported his conclusion that overall D.A. is able to meet the child's instrumental needs during her supervised visits there continue to be significant concerns with respect to her ability to meet his emotional needs.

[52] The society filed an affidavit from the child's foster mother. She stated that Y.A. had lived in her home since August 31, 2012. She said he was a "pensive energetic boy that articulates his feelings quite well." She added that, despite his high energy levels, he seemed to suffer from poor self-esteem at one point saying that "no one wants him".

[53] The foster mother addressed telephone access between Y.A. and his mother. At times, there were long gaps in contact. At other times, she would call multiple times a day. The calls often ended abruptly and the child cries and she would try to call his mother back often without success. The foster mother said that she notices emotional distress when D.A. fails to follow through on promises she has made to the child.

[54] With respect to the resumption of access since August 2013, the foster mother observed Y.A. to feel "torn, frustrated and somewhat confused". Although the child had expressed an interest in returning to his mother's care, he is also angry with her "because she left him" He also expresses frustration with "those people" referring to the society for removing him from his mother's care.

[55] The foster mother stated in her affidavit that, during moments of distress, the child tends to scream, cry and even defecate in his pants.

[56] Overall the foster mother states that the child clearly loves his mother but he is worried about whether she can care for him.

RESPONDENT MOTHER'S EVIDENCE

[57] D.A.'s affidavit focused on what she perceived as the failure of the society worker to address her needs. She stated that he misled her, that he ignored her concerns and that the entire working relationship had broken down. She was of the view that the society should have provided her with a different worker and that their failure to do so had impeded her progress.

[58] The mother disagreed with the society's position in a number of areas and it is necessary to set out her position on the issues as identified above.

Failure to Protect

[59] D.A. states that, on November 18, 2010 as soon as she became aware that O.T. was sexually abusing her son, she contacted the R.C.M.P. and he was removed from their shared residence. She stated that she contacted them again on November 19 and, on November 23, she called the children's help line. She essentially said that the police did not follow up and the only guidance that she received from the helpline was to take the child to counselling.

[60] With respect to the involvement of B.C. Children's Services, D.A. said that she had a "verbal agreement" with the B.C. worker Ms. Petrie that she would be allowed to move to her parent's home in Brampton. She maintained that she had not breached the B.C. court order preventing her from leaving Kamloops because she had given Ms. Petrie the address and phone number of her parents.

Failure to Follow Up with Services

[61] D.A. stated that she had completed a number of programs in B.C. and that she had a good relationship with her worker. She said her co-operation and follow-up had led to the decision by the society that the child should be returned to her which resulted in the order of January 4, 2012.

[62] D.A. said that the Peel society and specifically Mr. Akenten "omitted, neglected and refused my repeated requests for a referral to United Achievers" which is a counselling service. She ultimately did attend at this service and filed a letter stating that she went to an initial session on June 19, 2012 and that her last session was October 3, 2012. She also filed a certificate of completion confirming that she completed a course known as Growing as Parents in March 2012. D.A. sought out some counselling with Malton Neighbourhood Services and some other programs.

[63] D.A. blamed Mr. Akenten for his failure to connect her with programs and even went so far as to say that he was biased against her (while at the same time stating that, as a fellow native of Ghana, he said he was determined that the child not become a Crown ward.

[64] D.A.'s view towards Mr. Akenten and the society was reflected in her posture during the motion. It was noted that she turned her back to the court when the society's evidence was being addressed. The impression left was that she was completely rejecting anything that the society was stating to the court. She faced the front of the court when Mr. Eberhard was setting out her position.

[65] At no point in her affidavit evidence did D.A. accept any responsibility for her actions or lack of action.

Failure to Exercise Access

[66] The only reference to access to her son in D.A.'s affidavit was her statement that she had exercised access consistently since July 29, 2013. She provided no explanation for leaving her parent's home for lengthy periods without notice. She did not address the long gaps in access or the statements attributed to her concerning making the child a ward or reducing her access.

[67] A key part of the society's position was the mother's failure to meet the child's needs by attending for visits consistently. A major issue for the child was his inability to trust that his mother would be a consistent presence in his life.

[68] The only evidence provided that addressed whether things would be different in the future than they were in the past was the mother's identification of a plan if the child was returned to her. She stated that she had found a two bedroom apartment to which she could move and she knew there were schools nearby that Y.A. could attend. She would not work nights as a security guard and she knew her income sources.

[69] The society took issue with the mother's plan as it was still a plan to take steps to be ready to care for a child rather than a plan to have the child live with her immediately. To be fair to the mother, she was working full time as a security guard, she had found a basement apartment that she could afford and she did not think that it made sense for her to move into a two-bedroom apartment when she could not afford to do so and she did not have her child.

[70] On the other hand, the child had been in foster care since August 31, 2012. It was clear at that point that the only alternatives were foster care or a return to the mother's home. There was no other kin plan. If the mother wished to have her son returned, it was incumbent upon her to prepare for that return by obtaining housing that would allow the progression of access into her home. Even after society amended its position to seek a Crown ward order in January 2013, D.A. took no steps to develop a viable plan for expanded access much less develop a plan for the return of the child.

Society's Reply

[71] In Mr. Akenten's reply affidavit of October 18, 2013, he attached a letter from Ms. Petrie's team leader at B.C. Children's Services dated January 23, 2012 in which it was stated that, while a day after the child's return to her, D.A. did call to ask about moving to Brampton, the team leader thought it was in the child's best interests to keep the child in B.C. with the services that had been developed. The letter also noted:

There was also concern about how difficult… D.A. …had been to work with; how long it had taken for her to agree to have ..Y.A… in services and also for her to agree to conditions of the supervision order.

[72] It was clear that there was no verbal agreement for D.A. to move.

[73] With respect to regular exercising of weekly access since July 29, 2013, Y.A. noted that the access that had not occurred since June 12, 2013 did not resume until August 7. On August 22, D.A. asked for a reduction in time from 2 hours to 1.25 hours. He noted that while access does occur for that time D.A. is consistently late.

[74] Mr. Akenten also provided a specific response to all of the allegations that he failed to facilitate counselling or other services.

Counsel for the Child

[75] Ms. Khemani was appointed to act for the child in July 2013. She met with Y.A. on three occasions and she advised the court of what the child had said to her.

[76] In her first meeting on July 25, Y.A. had stated that he missed his Mom. He did not understand why, when he lived with his grandparents, his mother left the home and did not see him. He said that this was not fair.

[77] He also said that he can't reach his Mom (and Dad). He did not want to stay in foster care. He didn't want to hurt his mom's feelings. He loved his Mom and tried to fight the police to protect his Mom. He expressed some concern about whether his mother really wanted to care for him.

[78] On September 5, Y.A. told Ms. Khemeni that he wanted to live with his Mom. He said it felt great to have visits. He said he wants the judge to send him home. He also added that before, mom used to lash him with a belt but please tell the judge that she will not do that.

[79] On Oct 18, Y.A. told Ms. Khemeni that he had had trouble at school. He told her that he was very angry and sad to not be with his Mom. He said that he would be very angry if the judge decides that he can't go home because he has been in "10,000 foster homes."

[80] Ms. Khemeni confirmed that the child had been suspended from school the day before and that the school called 4 times that week regarding the child disobeying directions. On one occasion, he slapped and spit on a child.

[81] Ms. Khemeni noted that the assessment had recommended play therapy for the child but he was still on a waiting list. She said that clearly the child needed some permanency in his placement with therapeutic assistance for his many needs as identified by the assessment.

ANALYSIS

[82] The first issue in any status review application is whether it is necessary to make a further order to protect the child. In this matter, the child has been in continuous care for over year and had been in care for a year in the period January 2011 to January 2012. In this last period of care, D.A. has never progressed beyond weekly supervised access. The society is seeking an order that the child be made a Crown ward for the purpose of adoption. The mother is seeking an order that the child be returned to her home. There is no doubt that a further order is needed to protect the child. The only issue on this motion for summary judgment is whether the society has met the onus upon them to prove that there is no genuine issue for trial in that a Crown wardship no access order would be the inevitable result if a trial were held.

[83] The law is clear that a parent seeking to show that there is a genuine issue for trial must put their best foot forward. They must present evidence which if accepted could result in a disposition other than the one sought by the society.

Historical Evidence

[84] The history of this matter from the time of the involvement of children's services in B.C. in January 2011 to the time of the Peel society's involvement was challenged by the mother. A finding that the child was in need of protection had already been made in B.C. and a finding was made in Ontario in March 2012. That evidence is relevant to this matter to the extent that it sets out the basis for the society's position that the child remains in need of protection and that the mother has failed or refused to take steps that address the risks to the child if she were to resume parenting him.

[85] The mother's challenge to this evidence is not credible. A court should be reluctant to make credibility findings on affidavit evidence alone. However in this case, the mother is trying to assert that she reported the sexual abuse of her then four-year-old child to the R.C.M.P. and to a children's helpline and that the R.C.M.P. simply removed the perpetrator from the home and took no steps to follow up. The society's evidence is that the police have no record of her call. She states all the helpline said to do is to get counselling. They also have no record of her call. The mother continued in a relationship with the perpetrator after she knew of the abuse. She states that it is not her fault — she did call authorities but they did nothing. There is no supporting evidence for the mother's contention. The facts as set out by the society are supported by records.

[86] The mother's statements are not capable of belief. Her position on the historical evidence does not raise a genuine issue for trial. It is though evidence of the mother's complete denial of any responsibility for what happened to her son in B.C.

Mother's Follow Up with Services

[87] The society obtained assessments of Y.A.'s needs. It was clear from both the B.C. and the Ontario assessment that the child had greater needs than the average child of his age because of the trauma he had experienced and the inadequate parenting he had received. Both assessments stated that counselling for the mother was critical. Court orders were made that required that D.A. attend for counselling. The society's position was that she had failed to do so.

[88] The mother disputed this failure to follow through. She blamed the society for not arranging counselling for her. She erroneously stated that she had co-operated with services in B.C. and maintained a good relationship with workers and that is why her child was returned to her. In fact, the evidence from B.C. was that she was difficult to engage in services and not very co-operative. Her child was in care for a year as a result.

[89] The mother's contention that the Peel society and specifically Mr. Akenten blocked her access to services and gave her no help is not supported by any other evidence. It is true that, to some modest degree, the mother sought out some services on her own. However the supporting documents provided show those services to be very limited given what was required. The entire history of the mother's co-operation with child protection services in B.C. and in Peel was such that there was no reason to conclude that she would seek out assistance if the child was returned to her care at this time. There had been no acceptance of any responsibility, no remorse for the actions and inaction that placed her son at risk and no insight shown into how the child's trauma would impact his life.

Mother's Access

[90] The history of D.A.'s access to her son is very telling and is a very clear indicator of her ambivalence towards developing a positive relationship with him.

[91] There were long gaps in access that were very hard on the child. The mother did not provide any explanation for these gaps. Her interaction with the society on access was not to ask for more or better access but to ask for it to be put on hold or reduced. Her ambivalence to a relationship with the child may be inferred from the long gaps in contact. She also made direct statements to her society workers about whether she really wanted to care for her son on a full-time basis.

[92] Certainly the mother did not take any steps to prepare for access to move into her home. She knew that she needed to find accommodation for access (and for her care plan) but did not take steps to make that happen.

[93] All children would be impacted by such inconsistent contact. Y.A. is a particularly vulnerable child. He loves his mother and wants to see her. The access when it did occur was generally positive. The child needed a consistency of contact that for whatever reason the mother was unable to provide. Access attendance just before this motion did improve but it really is a case of much too little and far too late.

[94] Counsel for the child Ms. Khemani made it clear that the child loves his mother and has expressed a wish to live with her. It appears that, during the course of the three interviews, Y.A. felt more strongly about living with his mother. At the time of the first interview, he had not seen her for about six weeks and he expressed frustration about her not being available to him. He also spoke about a father he had not seen in years, which may just be an expression of a common child fantasy for both parents to be there and to love him. By the second and third interviews, Y.A. was having weekly access to his mother. This period of access just before trial was the longest consistent period of access he had had in some time—8 weekly visits from August 7 to the time of trial with only one missed one. For a seven-year-old child who had feelings of abandonment this must have been quite a change.

[95] The views of a 7-year-old child must be put in context. He spoke of 10,000 foster homes. In fact Y.A. had lived with the same foster mother since August 2012 when he left his grandparents' home. The foster mother's affidavit had stated that Y.A. is always happy to have telephone and in-person visits with D.A. and looks forward to them. That same affidavit spoke to the child's anguish when his mother misses visits and goes long periods without access. She stated that Y.A. had recently stated that his father was "his only hope for happiness" This ties in with the reference to the long lost father made to Ms. Khemoni.

[96] It is clear from all of the evidence that Y.A. expressed a longing for a consistent relationship with his mother but that he has been let down by his mother so many times that he is unsure of what the future holds.

[97] Mr. Eberhard urged the court to give the mother the opportunity for a full trial. He said that she was a victim herself and on the long road to getting better. He said she was making progress and referenced the meeting with the society in July 2013 and the more consistent access leading up to trial.

[98] The simple fact is that the mother has had many opportunities to take the steps necessary to put herself in a position where the court could consider the possibility of a return of the child to her. She has not availed herself of any of those opportunities and there is no reason to believe that, if she had more time, there would be any change.

[99] It is the responsibility of the court to make a disposition that will provide the child with security and permanency. I conclude from all of the evidence that D.A. is not able to care for her child. There is no genuine issue for trial. I find that the only disposition that could possibly result from a full trial is an order that the child be made a Crown ward and I make that order.

No Access

[100] Pursuant to s. 58 of the C.F.S.A., an access order can only be made if it is in the child's best interests to make the order. There is a presumption against access when a Crown ward order is made. Subsection 59(2) terminates any existing access order upon a Crown ward order being made. Subsection 59(2.1) reads as follows:

(2.1) Access: Crown ward.

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.

[101] It should be noted that the 2011 amendments to the C.F.S.A. that created section 141.1.1 have changed the focus of the analysis of the second brand of the test. That section reads as follows:

141.1.1 Adoption planning.

(1) Nothing in this Act prohibits a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect under Part III (Child Protection).

(2) Openness.

Where a society begins planning for the adoption of a child who is a Crown ward, the society shall consider the benefits of an openness order or openness agreement in respect of the child.

[102] The first step then in determining whether there should be access to a Crown ward is to determine whether the access is meaningful and beneficial to the child (emphasis added). The law is clear that the evidentiary onus is on the parent. A beneficial relationship is one that is advantageous. A meaningful relationship is one that is significant. It is not enough that there are some positive aspects to it: it must be significantly advantageous to the child. It speaks of an existing relationship, not the possibility of a future relationship. Even if the relationship is beneficial and meaningful, there still must be some qualitative weighing of the benefits of access vs. no access. Children's Aid Society of Niagara Region v. M.J., 4 R.F.L. (6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634, 2004 Carswell Ont 2800 (Ont. Fam. Ct.).

[103] The quality of the relationship must be the focus. The parents have to show more than just that a child has a good time during visits. Children's Aid Society of Peel Region v. Marsha S., 2006 ONCJ 523, 169 A.C.W.S. (3d) 1035, [2006] O.J. No. 5344, 2006 Carswell Ont 8581 (Ont. C.J.). More is required than just a display of love between parent and child. The Divisional Court has held that a person seeking access must prove that his or her relationship with the child "brings a significant positive advantage to the child". Children's Aid Society of Niagara Region v. J.C., 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L. (6th) 40, [2007] O.J. No. 1058, 2007 Carswell Ont 1680 (Ont. Div. Ct.).

[104] In this matter, D.A.'s affidavit did not address access. She simply said that, since July 29, she had attended access regularly. The society's evidence was very clear that the mother's access had long gaps, had been reduced at her request and had never moved away from short once-a-week supervised visits. There was evidence that the child looked forward to access. The visits that did occur had some positive interactions between mother and child (and also raised some concerns about her ability to appreciate his emotional needs). The mother fell well short of satisfying the onus upon her to prove that access would be beneficial and meaningful to the child.

[105] Given my finding that access would not be beneficial and meaningful, it is not necessary to turn to the second branch of the test which is to determine whether access would impair the child's future opportunities for adoption.

ORDER

1. The child Y.A. born [...], 2006 shall be made a ward of the Crown and placed in the care and custody of the Children's Aid Society of the Region of Peel.

Justice Philip J. Clay