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 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order of 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.: 113/10

Ontario Court of Justice

Between:

The Children's Aid Society of Oxford County Applicant,

— And —

J.O., R.M., S.R. Respondents

Before: Justice M.A. McSorley

Heard on: December 3, 9, 11, and 12, 2013

Reasons for Judgment released: January 28, 2014

Counsel:

• Ms. Costea for the applicant Society
• Ms. S. Gordon for the respondent mother J.O.
• Mr. C. Speirs for the respondent father S.R.

McSorley J.:

Introduction

[1] The matter before the court involved a motion for summary judgment brought by the applicant society in a protection application regarding one child, M.A.L.M. born […], 2010. The society sought an order confirming the statutory findings regarding the child and for an order that the child was in need of protection pursuant to s. 37(2)(b-i) and (g) of the Child and Family Services Act, and that she be made a Crown ward without access.

[2] At the commencement of the motion on December 3, 2013, Mr. Speirs advised the court that his client had instructed him not to proceed with his claim. With the consent of the parties, the answer and plan of care of S.R. was withdrawn and Mr. Speirs was excused.

[3] It was further noted that the respondent R.M. had filed an answer. However, in his answer, he denied paternity, and made no claim with respect to the child. He had also not participated in the proceedings. His answer was struck and it was ordered that he had no further status in these proceedings.

[4] The result of the orders regarding the respondents R.M. and S.R. was that only one parent, the mother J.O. participated in the motion.

[5] The society filed 7 volumes of document briefs which were admitted as Exhibits 1 – 7, for the truth of their contents, with the consent of the mother. Exhibit 8 was a Statement of Live Birth of the child, which confirmed the statutory findings.

[6] It was agreed at the beginning of the motion that the matter would be dealt with in a bifurcated manner, with the court determining first if the child was in need of protection and secondly with disposition, if necessary.

Background

[7] The child M.A.L.M. was apprehended from her mother's care on April 23, 2010 and has remained in care since that time. The mother subsequently gave birth to a second child M.O.V. on […], 2011. M.O.V. was apprehended at birth and placed in foster care. In October 2011 a decision was made to transition M.O.V. to the same foster home as M.A.L.M.. The transition was completed by November 5, 2012 and the two girls have lived together in the same foster home since that time.

Evidence

[8] Immediately following the commencement of the argument on the motion, the mother objected to the use of hearsay evidence set out in the various affidavits of the society workers. The mother relied on Rule 16(5), which states that 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.

[9] The society argued that Rules 14 and 16 should be read together. Rule 14 deals with motions generally and Rule 14(19) provides that an affidavit filed in support of a motion may also contain certain information that the deponent has learned from someone else, but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information is true.

[10] The court disagrees that Rule 14(19) should be read together with Rule 16(5). Rule 16 deals specifically with motions for summary judgment and sets out what evidence can be relied on and what evidence may be given unfavourable consideration. The specific rule cannot be overridden by the general rule. Further Rule 14 deals with motions for temporary orders. A motion for summary judgment seeks a final order. The manner in which the court deals with the evidence should be as if the issue was being determined at trial. If the evidence in the affidavit could not be provided orally at trial by the deponent, for the truth of its contents, it should not be used in an affidavit on a motion for summary judgment.

[11] There is case law regarding this point. In the case of Windsor-Essex Children's Aid Society v. S.M.D., S.G. and L.G., 2011 ONCJ 311, a motion for summary judgment was dismissed because the affidavit of the society worker was largely unhelpful, made no effort to sever inadmissible hearsay evidence, contained opinion evidence and unsupported inferences about the mother and the child. Bondy J. found that the record before her contained an unfortunate constellation of errors, reflecting poor and ineffective draftsmanship, lack of focus and thematic organization, and a failure to adhere to basic rules relating to affidavits and the fundamentals of admissible evidence.

[12] Justice Bondy referred to a decision of MacKenzie J. where he devised the following test for the admission of hearsay in an affidavit before him in the case of Huron-Perth Children's Aid Society v. C.H. et al., 2007 ONCJ 744:

1. Firstly, the deponent should identify the source of the information and identify that the source is the original source of the information, or that that person is the person with the personal knowledge or observation of the fact alleged;

2. Secondly, the deponent must explain the reason why the original source of the information has not sworn his or her own affidavit and therefore why it would be necessary for the court to accept hearsay evidence on those facts as opposed to the direct evidence of those facts;

3. Thirdly, the deponent must explain the circumstances of how the hearsay evidence was obtained, why the source would have knowledge of the information and the full details of the information and the source so that the court can ascertain the soundness of the information and the source and assess some kind of level of reliability to that evidence; and

4. Lastly, the deponent must explain not only that they believe the evidence from the hearsay source; they have got to give for every piece of hearsay, reasons why they and the court should believe and rely on that untested evidence.

[13] The evidence on a motion for summary judgment should be the best evidence available. Having said that, Rule 16 does not absolutely prohibit the use of hearsay evidence, but rather indicates that the court may draw unfavourable conclusions against the party who relies on it.

[14] In this case, the society had served and filed a Request to Admit the business records of various individuals and agencies involved with the mother along with a Notice of Intent to rely on those business records. As noted earlier, all of the business records were admitted for the truth of their contents. For the most part, the hearsay evidence of the workers was based on the business records, the original source was identified and the deponents indicated that he/she believed the information to be true. In addition, the court required the society to reference the information in the business records that was being relied on by the deponents of the affidavits, which was done after a short adjournment.

[15] As a result, the majority of the evidence referred to in the affidavits that relied on information from other parties was corroborated and verified by the business records and was therefore admissible.

[16] The only problematic hearsay evidence was that obtained by the workers from the foster parent. In this instance, the society argued that policies related to the need for foster parents to remain anonymous for their safety and the safety of the children in their care, should be a sufficient reason to relax the rule regarding hearsay evidence obtained from foster parents on motions for summary judgment. There is also a general belief that if foster parents were required to file affidavits setting out the information they have about the child(ren) in question, it might be more difficult to recruit foster parents to take on the task of caring for children.

[17] While I agree that the identity of a foster parent should not be disclosed to parents involved in child welfare litigation, it is possible for a foster parent to swear an affidavit under his/her first name only and provide first hand information that the society needs regarding the child. At trial, foster parents are often called to give evidence about the child(ren) in their care. If their identity is unknown to the parents, they can be sworn in without the parents being present and then referred to by their first names only. Reference to their surnames in the transcript is also prohibited. There is no reason why the society could not present first hand information from the foster parent(s) by way of affidavit using only their first name(s). In this way, the pertinent information would be available to the court from the person with personal knowledge of the events, and Rule 16(5) would not be contravened.

[18] The court heard only submissions regarding the protection findings. Therefore, the court finds that the information of the foster parent is not essential to the making of the finding and the court has not relied on the hearsay evidence from the foster parent. All other third party information that was verified in the business records will be relied upon. With respect to disposition, the society will be permitted to file an affidavit from the foster parent setting out the information that is in his/her personal knowledge using only her first name.

[19] Further issues regarding evidence arose when the mother commenced her submissions on the motion. The mother filed an affidavit sworn September 25, 2013 in response to the motion for summary judgment. When counsel commenced her submissions, she referred to an affidavit that was served and filed in July 2010 in answer to the apprehension of the child. There was no indication that the mother intended to rely on her July 2010 affidavit in addition to her September 25, 2013 affidavit. In fact, her later affidavit referred to allegations made against her in 2010 and responded to them, suggesting that she was fully responding to the motion for summary judgment in her September 2013 affidavit. The July 2010 affidavit could not possibly have been prepared in response to a motion for summary judgment that was not contemplated at the time of its making. The mother could have easily noted in her later affidavit that she was relying on all or part of her affidavit filed in July 2010, thus putting the society on notice that she intended to refer to it, leaving them with the option of responding to it on the motion for summary judgment.

[20] However, given the seriousness of the motion and the possibility that a final order could result, the court has reviewed both affidavits of the mother. If the society wishes to respond to the earlier affidavit prior to the disposition stage, it will be given leave to do so. In future, counsel is expected to set out what affidavits are being relied on by their clients prior to the motion being heard, so that all parties are aware of the evidence they need to answer.

Position of the Parties on the Motion for Summary Judgment

[21] The society's position was that they had met the onus under Rule 16 and that the abundance of material filed, showed conclusively that the child was in need of protection. Further, the society argued that pursuant to the case law, the mother must do more than make mere denials regarding the allegations and the evidence, and that she had not done so. The society's position was that there were no genuine issues for trial regarding a finding that the child was in need of protection.

[22] The mother argued that her evidence raised genuine issues for trial on both finding in need of protection and disposition regarding her various plans for the child.

Issues

[23] The issue before the court on a motion for summary judgment is whether there is a genuine issue for trial or whether the evidence is such that the outcome is a foregone conclusion. At this time, the only issue before the court is whether there is a genuine issue regarding a protection finding that requires a trial or whether such a finding is a foregone conclusion.

The Law on Motions for Summary Judgment

[24] Rule 16 of the Family Law Rules provides that after a 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 in the case. R. 16(4) provides that the party making the motion shall serve an affidavit or other evidence that sets out specific facts showing there is no genuine issue for trial. R. 16(4.1) provides that 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. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[25] Sherr J. set out a concise analysis of the law on summary judgments in the case of Catholic Children's Aid Society of Toronto v. L.M. and T.P.R., 2011 ONCJ 146 at pages 4 and 5 of the judgment. On motions for summary judgment, the court is required to take a hard look at the merits of the case to determine whether there is a genuine issue for trial.

[26] The onus is on the society to show that there is no genuine issue for trial. See Children's Aid Society of Hamilton v. M.N. and H.S.N. and Children's Aid Society of the Regional Municipality of Waterloo v. R.S..

[27] Summary judgment motions should proceed with caution, but are not only limited to the clearest of cases. The court must ensure that the best interests of the child are adequately addressed. If the evidence does not raise a triable issue as to where the best interests lie, then those best interests call for a resolution without the delay associated with the trial and the 'litigation drift' created by such proceedings. See Jewish Family and Child Service of Toronto v. R.A. and J.G.. The legal process is not to be used as a strategy to "buy time" for a parent to develop an ability to parent.

[28] In the case of Children's Aid Society of Toronto v. R.H., Katarynych J. accepted the need to contain and control a child's drift in litigation and the need for permanency planning within a timeframe that is sensitive to a child's needs. At paragraph 18, Katarynych J. stated that the genuineness of an issue must arise from something more than a heartfelt desire to parent. The evidence must show that the parent faces some better prospects than those that existed when the child was removed, and has developed some new ability as a parent. Finally, Katarynych J. found that the mother's most recent efforts to prepare herself to parent did not create a genuine issue for trial and at best showed a wish to parent. Her level of preparedness was simply too little, too late.

[29] No genuine issue for trial has been equated with "no chance of success" and "plain and obvious that the action cannot succeed". Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought. (see Catholic Children's Aid Society of Hamilton v. N.C. and A.J.M.)

[30] A party answering a motion for summary judgment cannot rest on bald denials; they must put their best foot forward; showing that there is a genuine issue for trial. See Children's Aid Society of Toronto v. K.T. and C.W.. Assertions of quite improbable things, when completely unsupported by any corroborative, documentary or other evidence, are not sufficient to create genuine issues, see Evans v. Evans.

[31] Pursuant to rule 16(6) the test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact requiring a trial. The court's role on such a motion is limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought by the applicant. See Children's Aid Society of Niagara Region v. S.C. and B.M..

[32] The law under Rule 16 is clear: the applicant has the onus to show there is no genuine issue for trial; the respondent must put his/her best foot forward and not rest on mere allegations or denials, but set out in affidavit form specific facts showing a genuine issue for trial; and where there is no chance of success, a final order should be made.

Analysis

[33] In its argument, the society set out the numerous concerns related to the mother's ability to parent M.A.L.M.. As indicated, after a short adjournment, the society was able to relate each of those concerns to reports and notes set out in the business records filed in Exhibits 1 to 7. The concerns raised by the society included the following:

1. the mother's mental health;
2. lack of supports for the mother;
3. limited child care knowledge;
4. neglect and state of the home;
5. lack of engagement with service providers and lack of follow through;
6. drug and alcohol use;
7. financial concerns; and
8. choice of partners.

Mental Health of the Mother

[34] The evidence regarding the mother's mental health is long standing and supported by the business records. As early as 2003, the mother presented with depression and was prescribed Zoloft by Dr. Gregory. In October 2006, Dr. Ralyea, psychiatrist, assessed the mother and noted that she was suffering from depression. She was again prescribed Zoloft. In December 2006 Dr. Ralyea reported that the mother continued to be depressed; was having suicidal thoughts; difficulty sleeping; and was 'putting herself down'. At that time Dr. Ralyea prescribed Prozac for the mother. Although the mother had a follow up appointment in February 2007, she contacted the doctor the day prior and said she was having suicidal thoughts and wanted to have her medication changed. On the next day, the day of the appointment, the mother cancelled and did not attend. Dr. Ralyea indicated that if she wished to come back to see him, she would need another referral from her family doctor.

[35] The mother's issues with depression continued. In May 2008 she obtained a prescription for Zoloft in the amount of 60 tablets for one month's duration, with 5 repeats, providing six months of the medication. This prescription was again repeated in May 2009.

[36] During her pregnancy, the mother was involved with Public Health dealing with a nurse named Stephanie Brown. In November 2009, Ms. Brown indicated in her notes that the mother reported she had a history of mental illness, including a history of cutting, suicidal thoughts, anxiety and bi-polar disorder. This information was consistent with the information gleaned from the doctors' notes above.

[37] In November 2009 Ms. Brown conducted an assessment of the mother using the Larson Prenatal tool. The assessment indicated that the mother was bi-polar and suffered from depression and chronic anxiety with limited coping skills, but was not on medication; had self harmed in the past by cutting herself when she was unable to cope with stress, but was not doing so currently; and that she had a limited education. It was noted that the mother had been incapacitated by depression at least once during the pregnancy and had attended hospital on numerous occasions, including twice during her pregnancy for panic attacks and overwhelming anxiety. With respect to the mother's mental, emotional and intellectual capacity to care for the child, Ms. Brown indicated that due to her mental health history, a further assessment was required. The assessment further noted that the mother had limited acceptance of the child but was motivated to meet the needs of the child. However, in doing so, she had multiple impediments to solving problems. It was noted that the mother found counselling helpful but that she was participating in it on only an ad hoc basis.

[38] On the positive side, it was noted that the mother had secure housing, secure access to food, some reliable support but with limited usefulness, mutual respect in her relationship with her partner, was motivated to connect with community agencies for support, cooperative with supports/services and was aware of how to get help in a crisis.

[39] In December 2009 Ms. Brown wrote to Dr. Sharma (psychiatrist) setting out the information provided to her by the mother and requested that Dr. Sharma see the mother. Dr. Sharma responded to the letter on February 17, 2010 indicating that she had seen the mother on that date. Dr. Sharma confirmed a "well documented history of bi-polar disorder since the age of 12" and that the mother's mood during pregnancy had been unstable and had worsened following the birth of M.A.L.M.. Dr. Sharma described the mother as having recurrent episodes of depression that never lasted more than a month. Additionally, Dr. Sharma described the mother as having brief hypomanic episodes lasting a week or two at a time. During these episodes, the mother required less sleep, had excessive energy, felt euphoric or irritable, had racing thoughts, pressured speech and tended to spend large amounts of money and her judgment was impaired. As a result of this consultation, the mother was prescribed olanzapine.

[40] In December 2009 Ms. Brown also wrote to the society setting out the concerns regarding the mother's mental health and requested that the society become involved with the mother due to those concerns.

[41] After the birth of the child in […] 2010, the mental health concerns continued. In March 2010, Dr. Gregory prescribed Ciprolex for the mother and that prescription was provided again to the mother in April 2010. In February 2010 the mother advised the Public Health nurse that she was stressed and overwhelmed with anxiety.

[42] It was also noted that the mother described a severe history of sexual, mental and physical abuse from her father and neglect and emotional abuse from her mother when she was growing up. The mother advised the worker, Ms. Bernardo that she had a highly dysfunctional childhood. When Ms. Bernardo checked this information with St. Thomas and Elgin Family and Children's services, it was confirmed that the mother was subjected to a long history of physical and emotional abuse that led to her being made a Crown ward. The mother provided this information not only to Ms. Bernardo and Ms. Brown but during a mental health intake assessment at Woodstock Hospital in December 2011.

[43] The mother's response to this issue was to note that her depression and anxiety from the age of 12 to 19 was caused by family of origin issues. While this may be true, there is no indication that the mother sought any counselling to deal with family of origin issues so that she would not require medication long term. The mother reported to Ms. Brown and various doctors that she had not had suicidal thoughts in five years and she had had no panic attacks or black outs for two years prior to the apprehension. She claimed that Ms. Brown's letter to Dr. Sharma on December 15, 2009 confirmed that Ms. Brown believed the mother on these points.

[44] But the information provided by the mother to Ms. Brown confirmed that she had suffered debilitating anxiety in 2009. It was also clear from Ms. Brown's letter to the society on December 14, 2009 that Ms. Brown was "concerned about J.O.'s mental health status" and felt an assessment from the agency would be beneficial. Further in her letter to Dr. Sharma on December 15, 2009, Ms. Brown stated that "J.O. would strongly benefit from your professional assessment of her current mental health status."

[45] It is understandable why the mother was not on medication for depression and anxiety during her pregnancy. Approximately two weeks after the birth of the child, the mother advised the public health nurse that she was feeling teary and overwhelmed with anxiety but that her doctor did not want to place her on medication because she was breastfeeding. There appeared to be no recognition by the mother that she could stop breastfeeding and obtain medication to ensure that her mental health remained stable. It is concerning that the mother chose to be overwhelmed while caring for a very young child rather than obtain the necessary medication to stabilize her mental health.

[46] By the end of April 2010 the mother was back on tranquilizers and anti-depressant medication. Unfortunately, the effect of this medication was that the mother was able to "turn her mind right off" at night. When asked who cared for the child, she advised that it was R.M.'s responsibility to care for the child. This was despite knowing that Mr. M. had child pornography on his computer and regularly viewed it. According to the worker, the mother refused to accept the recommended support that the worker was willing to arrange through the Canadian Mental Health Association.

[47] In July 2012, the mother attended hospital in crisis claiming that she was feeling overwhelmed and having suicidal ideation. She reported feeling paranoid and afraid to leave the house alone and that she did not have acceptable coping skills. She reported having feelings of built up rage and anger for reasons she could not identify. Some of her days were spent in bed and other times she left the house for days. On that occasion, she asked for a referral to a psychiatrist and for medication to deal with her depression.

[48] It is commendable that the mother knew how to seek help in a crisis with respect to her mental health. However, the mother was not consistent in her attendance on her doctors and did not appear to be under the regular care of a mental health physician. Her depression, and overwhelming anxiety during her pregnancy, and following the birth of the child that continued for at least a further two years, together with her refusal to accept support that could have been arranged for her, raised a risk of harm to the child both prior to the apprehension and after apprehension.

[49] It is important to note that this is not an apprehension hearing where the court can only examine the circumstances that led to apprehension in determining whether a child is in need of protection. This is a motion for summary judgment. All of the pertinent information regarding possible risk of harm to the child can be considered whether it occurred prior to the apprehension or afterwards, especially on that portion of the motion that deals only with whether the child is in need of protection.

Lack of Supports for the Mother

[50] During the Larson Prenatal assessment, the mother reported lack of social supports, very few reliable supports, and some support from her mother. However she also reported that her mother resided out of town. In December 2009, the mother advised Ms. Brown that she was having difficulty getting along with her mother and her sister and was not even looking forward to Christmas with everyone. In her letter to Dr. Sharma, Ms. Brown noted the lack of supports for the mother as one of her concerns. In April 2010, the mother advised the worker that her partner's parents were of limited support and that she was upset with them because they had done DNA testing without advising her. Despite the lack of supports, the mother refused the offer of support that Ms. Bernardo was prepared to arrange through the Canadian Mental Health Association.

[51] The mother's response to this issue was to refer to her affidavit sworn July 6, 2010. In paragraph 18 she indicated that following her release from hospital, she spent 3 days at her mother's home and two days at her partner's parent's home. With respect to her partner's parents, she specifically stated that they provided no support after her two day stay in their home. She made no reference in her July 6, 2010 affidavit to any other support from her family. In Ms. Bernardo's affidavit at tab 31, she deposed that the mother told her in April 2010 that she had the support of her mother. In the mother's affidavit dated September 25, 2013, she deposed that her mother, step-father, father and step-mother were all available to provide child care. Yet these were the very people with whom she had a difficult relationship and who were responsible for physically, emotionally, verbally and sexually abusing her as a child, according to the history she provided to the public health nurse.

[52] In her initial affidavit, she repeated the allegations regarding her father's verbal and physical abuse of her as a child; indicated that he did not know how she did in school because he did not care about how she was doing; and that anything her father said about her ability to care for the child was totally false because she had provided primary care to her sister when they were growing up due to his lack of care. The mother provided no specifics as to how her family had or would support her care of the child.

[53] When the court compares the history provided by the mother to the public health nurse with her first affidavit and the affidavit filed on the motion for summary judgment, the contradictory evidence makes it impossible to accept that the mother has the support of her parents and step parents to assist her in caring for her child. Had the mother and her family reached a point since apprehension where such support was now available from them, affidavits should have been prepared by her family members setting out exactly what type and frequency of support each of them would provide to her. One would expect that family members would be eager to set out for the court that they were willing to provide support for the mother and child. This was not done. The mother provided no evidence to contradict her comments made to the public health nurse or that the support from her family had improved and that her family members would be available to assist her with child care.

[54] The mother also argued that she accepted the support of the public health nurse. But it was the public health nurse who contacted the society with concerns and further contacted Dr. Sharma to seek out her assistance. The mother was opposed to the society attending her home unannounced, not understanding that it was only during unannounced visits that the society could obtain a true picture of what was occurring in the mother's home. Further, as earlier indicated, despite the mother knowing that she had mental health struggles, she refused the support that could have been obtained through CMHA. The lack of supports for the mother raised a risk of harm to the child.

Limited Child Care Knowledge and Lack of Attachment

[55] As a result of the Larson Prenatal assessment, Ms. Brown noted that the mother had limited education and that there was a high risk of poor child development. According to the notes of the public health nurse, on February 4, 2010, the mother told her that the child "had an attitude and the father's personality". The mother did not deny this information in either of her affidavits. At the time this statement was made, the child was 9 days old. On March 12, 2010, society worker Sally Zehr attended the home. In Ms. Zehr's affidavit, she deposed that the mother told her about taking medication at night so she was usually 'zonked out'. She also told Ms. Zehr that the child "cried for attention and was manipulating her already". At this time, M.A.L.M. was 45 days old. The mother's response was simply to deny saying these things.

[56] On that same day, the mother's explanation of the amount of formula that was being consumed by M.A.L.M. was contradictory. She also advised Ms. Zehr that she knew when M.A.L.M. was full because she shook her head "no" and rolled "her eyes back in her head". Based on the child's age, this would not be possible. This statement was not denied by the mother. Both workers also deposed that the mother laid the child across her lap to feed her with no support. The mother denied this.

[57] In response to evidence that the maternal grandfather told the worker the mother had failed a child care course in high school, the mother denied this was true. The evidence is hearsay and is not being given any weight. However, if as the mother said, she obtained a grade of 78% on a child care course, she could have proven that to the court by simply requesting a copy of her high school transcript. The motion for summary judgment was first returnable on July 30, 2013 and not heard until December 2013. The mother had plenty of time to obtain clear evidence that her father's statement was false and prove to the court that she had successfully completed a child care course. Instead, she relied on a mere denial of the information. Such denials are not sufficient on a motion for summary judgment. Aside from the bald denials, the mother made no further submissions on the issue of child care knowledge.

[58] The mother did provide evidence of having participated in a child care course. However, this occurred after the apprehension and did not increase her child care knowledge before the child was taken into care. The evidence will be taken into account with respect to the issue of disposition.

[59] With respect to the issue of lack of attachment, Ms. Brown noted in March 2010 that the mother made little eye contact with the child during a visit to the mother's home. On April 7, 2010, Ms. Zehr noted that the mother almost dropped the child and seemed unaware of why her actions were concerning when they were brought to her attention. On April 23, 2010, Ms. Bernardo observed minimal engagement with the child, with no eye contact, smiling, talking or cuddling. The child was propped up against the mother's leg. When it was suggested that she hold the child, the mother claimed that her arm would get tired. The mother did not respond to these statements in her affidavit in response to the motion for summary judgment. She referred to her July 2010 affidavit, where she simply denies all of the statements made by the society workers. She said nothing about the notation of Ms. Brown regarding lack of eye contact with the child.

[60] On the positive side, the evidence showed that on February 4, 2010, the public health nurse noted that the child had good colour and tone and the mother was observed to respond to the baby's cues of hunger. On February 12, 2010, Ms. Brown noted that the child was feeding well. In early March, 2010, Ms. Brown noted that the mother advised that the baby was generally content and easy to soothe. At that time, the child had a rash that looked mild. There was no notation as to whether the rash was a diaper rash or a rash on some other part of the child's body, but the public health nurse suggested it might be from the detergent being used to wash the child's clothes. This would suggest that the rash was not as serious as the one seen by Dr. Warren in April, 2010.

[61] The public health nurse continued to visit with the mother. At times she noted the home was cluttered and at other times she noted it was tidy and vacuumed. In April 2010, the notes show that the public health nurse intended to continue services.

[62] The mother argued that the public health nurse was not reporting the same concerns raised by the society. With respect to the state of the home, the public health nurse did not make unannounced visits and as such the mother was able to prepare the home for her visit. There were times when the public health nurse noted lack of eye contact with the child. The public health nurse did not have concerns about the child's weight as she was gaining weight. Dr. Gregory confirmed that he had seen the child on three occasions after her birth and she was seen to be healthy and growing and had received her first shots. The society's concerns were related more to the method that the mother used to feed the child, propping her up instead of holding and interacting with her; the state of her bottles and the length of time they appeared to be dirty; the amount of time between feedings and the fact that the mother had admitted to giving the child cereal, than they were about her weight. These concerns taken together with the issues of mental health, lack of supports, lack of child development knowledge and the state of the home as seen by workers on unannounced visits were enough to raise a risk of harm to the child.

[63] Child care knowledge and attachment issues continued after the apprehension. During access, the access supervisor had to encourage the mother to play and interact with the child during diaper changes, offered suggestions on how to read the child's cues and advised her not to allow the child to walk around the room with food in her mouth. The mother made no comment about this evidence.

Neglect and State of the Home

[64] The issue regarding the state of the home was a fluid one. At times, the home was found to be cluttered, but tidy and at other times the home was found to present with significant clutter and safety concerns. The public health nurse did not raise this issue as a major concern. At times, however, the workers observed debris on the bedroom floor and staircase; dirty dishes on the kitchen table; food and dirty clothes on the floor, cat urine smell throughout the home, garbage bags in the kitchen and empty dirty baby bottles. On one occasion during a home visit, Ms. Zehr could not sit on the couch due to it having items on it. She said the home was dark and cluttered with food, clothing and debris and the home was cold. The mother's bed was covered with clothes; the kitchen was cluttered with empty beer bottles, coolers and an empty bottle of vodka. When M.A.L.M. awoke, the worker found her to be flat and flaccid and noted that she was wrapped in a dirty blanket. The mother denied that M.A.L.M. was wrapped in a dirty blanket.

[65] When the child awoke, the mother advised the worker that she had slept for 10 hours. Yet when the baby was changed, she was not wet, but her diaper contained a runny green feces and she was suffering from a very bad diaper rash. When the worker asked the mother what she intended to do about the rash, she indicated her doctor was not available and had no other suggestions to make.

[66] The mother's response to these issues was that the public health nurse did not find the state of the home concerning, only cluttered. It is interesting to note, that the public health nurse came at appointed times and did not show up unannounced. It was generally during unannounced visits that workers found the home to be in worse than a cluttered state. This may well have been the reason the mother only wanted the workers to attend at appointed times.

[67] With respect to the other issues, the mother claimed there were only two dirty baby bottles, one bag of garbage in the kitchen and dishes from the night before. With respect to the cat litter, she deposed that she was going to clean it. There was no indication why the amount of dirty bottles, dishes, garbage and cat litter had not been cleaned up the evening before instead of being left out.

[68] With respect to M.A.L.M.'s diaper rash, the mother acknowledged that the baby did have a diaper rash and that she was taking the child to her doctor on Monday. The visit occurred on Friday. The baby was apprehended on that day and was taken to Children's Hospital of Western Ontario where she was seen by pediatrician, Dr. Warren. Upon examination M.A.L.M.'s length and weight were found to be in the 50th percentile and her head circumference in the 75th percentile. Dr. Warren noted in his report that she appeared stable and her lungs were clear. There were no significant bruises on the child. He did note that she had a moderately severe diaper rash and that there were issues of erythema and hygiene as well as candida infection.

[69] Dr. Warren noted secondary concerns related to possible malnutrition, but blood work showed that everything was within normal range. He found no biochemical evidence of malnutrition or significant iron deficiency. His major concern was the significant diaper rash which, in his opinion, had not "been appropriately attended to for a considerable time."

[70] It appears from the evidence that the state of the home fluctuated from cluttered to cluttered and dirty. The mother's care of the child for the most part was adequate to meet her physical needs in that she fed and clothed her. The mother was not as vigilant as she should have been regarding the health of the child, specifically regarding the significant diaper rash that had not been attended to and was not going to be attended to for at least three days. The mother was unable to understand the importance of interacting and stimulating the child. The mother's lack of child care knowledge, and lack of consistent attention to the state of the home raised a risk of harm to the child.

Lack of Engagement with Service Providers

[71] Although the mother attended most of her prenatal classes, she was less consistent when it came to engaging with services providers after the child was born. She did not want the society to visit unannounced. She cancelled appointments with the public health nurse in December 2009 but also made up some of the cancelled visits. She advised Ms. Brown in April 2010 that she purposely did not answer the door when the society workers came to see her unannounced. As earlier indicated, she was not interested in support being obtained from CMHA.

Drug and Alcohol Use

[72] The issue of drug and alcohol use became more problematic for the mother following the apprehension. The documents indicated that the mother denied current use to Ms. Brown but admitted to smoking cigarettes, drinking alcohol and using marijuana occasionally in the past. In August 2011, the mother advised a Healthy Babies/Healthy Children worker that she had smoked a lot more when she was pregnant with M.A.L.M., contradicting her statement to Ms. Brown in November 2009.

[73] In July 2012 she reported to a nurse practitioner that she had had an opiate addiction in 2004 and relapsed in 2011. She admitted to overdosing in 2011 and was hospitalized. She further admitted being addicted to marijuana and that she had used alcohol and marijuana to cope. She asked to be referred to counselling and to a psychiatrist. When she met with a counsellor in September 2012, she reported using opiates on three occasions in the previous four months, with the last occasion occurring one month earlier. The mother admitted that she started drinking alcohol again in August 2010, a few months after the apprehension and did not stop until February 2013. This use of alcohol continued for almost three years and aside from her statement, there was no evidence in the form of drug/alcohol testing that she had stopped.

[74] There is no question that alcohol and drugs have been used by the mother during periods when she is unable to cope with her anxiety, stress and depression. She had an addiction to drugs going back to 2004. At various times she has used alcohol, marijuana and opiates both before her pregnancy with M.A.L.M. and after. This use of substances raises a risk of harm to the child.

Financial Concerns

[75] The Larson Prenatal assessment raised a concern that the mother had limited finances and lived in a high risk subsidized housing complex. In April 2010, the mother advised Ms. Brown that she received very little money and did not know how she would pay for things. The mother told Ms. Brown that she might have to borrow money from a neighbour in order to buy formula for the child. At the same time, Ms. Brown noted that the mother had purchased three large bags of diapers in a size that was too big for M.A.L.M., because they were on sale. Although Ms. Brown praised the mother for thinking ahead, she had to advise her to take back two of the packages in order that she could afford formula, and that she should have concentrated on obtaining formula first. The mother also advised Ms. Brown that she might not attend her appointment with Dr. Sharma due to her lack of finances. Ms. Brown attempted to problem solve with the mother on this issue by suggesting that Ontario Works, the society and/or possibly the health unit could help her with transportation and urged her to keep her appointment.

[76] Additionally, although the mother was short of funds, she did not take steps in a timely manner to ensure that her income source through Ontario Works was secure. Her inability to provide necessary information to Ontario Works resulted in her assistance and drug, dental and other benefits being cut off in March 2010 and again in April 2010 prior to the apprehension of M.A.L.M.

[77] Following the apprehension, the mother's Ontario Works financial assistance was suspended on eight occasions, those being: May 28, 2010, June 24, 2010, July 14, 2010, July 23, 2010, August 9, 2010, September 8, 2010, October 26, 2010, and October 4, 2012. Her benefits were cancelled on two occasions on June 28, 2010 and August 9, 2010 and in January 2011 and April 2011 she was found to be ineligible for benefits. In each instance, the mother's benefits were either suspended or cancelled because she failed to provide information or participate in activities required of her by Ontario Works. In August 2011, her power was disconnected due to non payment of bills.

[78] The mother's answer to this concern was that at the time of the apprehension, she was living with Mr. M. who was working and contributing to the household income. However, according to the records of Ms. Brown, the mother advised her on April 16, 2010 that Mr. M. had been added to her Ontario Works cheque suggesting that he was not able to contribute sufficient income to the household. Further, just prior to the apprehension, she could not afford to attend a doctor's appointment or buy formula for her child. Mr. M.'s apparent contribution was not sufficient to avoid financial problems affecting the child's care.

[79] The fact is that the mother had financial difficulties prior to the apprehension and for a significant period after the apprehension. Although she had the support of Ontario Works, she regularly failed to provide information or engage in necessary activities that resulted in her benefits being suspended or cancelled. Her ability to provide for the financial needs of her child both before and after apprehension raise a risk of harm to the child.

Choice of Partners

[80] At the time of apprehension the mother was living with Mr. M. Although they were aware that Mr. M. was not the biological father of the child, her plan was to continue to raise M.A.L.M. with him. The mother was aware that Mr. M. was involved with child pornography and luring. Yet she allowed him to care for M.A.L.M. at night when she was "zonked out". Mr. M. was charged for offences related to his activities.

[81] The child's biological father was also involved in sexually deviant behaviour and had been convicted of sexual offences. The mother's choice in partners raises a risk of harm to the child.

Conclusion

[82] The evidence is overwhelmingly conclusive that M.A.L.M. was in need of protection due to risk of harm created by the mother's mental health issues that were not consistently dealt with; the mother's lack of supports from her family and the community; her limited child care and child development knowledge; the state of her home; her lack of follow through with services; drug and alcohol use; financial problems; and her choice of partners. All of these concerns were present at the time of apprehension and many of them continued after the apprehension. The mother's evidence was not sufficient, nor in many instances noted, specific enough to raise a triable issue on whether the child is in need of protection.

[83] Having considered all of the evidence, I find that the society has met its onus of proving there is no genuine issue for trial on the issue of protection findings. Therefore that portion of the motion for summary judgment is granted.

[84] Final order to issue:

1. The statutory findings are confirmed as follows:

   a) The child's name is M.A.L.M.;

   b) The child's date of birth is […], 2010;

   c) The child has no religious affiliation;

   d) The child is not an Indian or native person; and

   e) The child was apprehended in Ingersoll, in the County of Oxford.

2. The child is in need of protection pursuant to s. 37(2)(b-i) and (g) of the Child and Family Services Act.

3. The Request to Admit dated November 11, 2013 and the Notice of Intention to Rely on Business Documents are to be filed in Volume 3 of the Continuing Record.

4. Matter is adjourned to April 10, 2014, 10 a.m. for argument on the balance of the motion for summary judgment regarding disposition for the child M.A.L.M.

Released: January 28, 2014

Signed: "Justice M. A. McSorley"