WARNING

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

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

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

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

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

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) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: April 25, 2014

Court File No.: Chatham-Kent, #64/07

Between:

Chatham-Kent Children's Services, Applicant,

— AND —

AK and JC Respondents.

Before: Justice Lucy Glenn

Heard on: October 4 and December 6, 2013 and February 26, 2014

Reasons for Decision released on: April 25, 2014

Counsel:

• Paul Rowley — counsel for the applicant society
• David Gulyas — counsel for the mother

Note: No appearance by or on behalf of JC, even though served with notice

Reasons for Decision

Introduction

[1] This was a motion for summary judgment brought by the Society asking for a Crown wardship order with no access pertaining to the child T., born […], 2011. This child was apprehended at birth and has been in care for almost three years. The mother was represented by counsel and filed responding material opposing the Society's motion and asks that the child be placed with her under supervision. The father was found in default on December 1, 2011 and has had no involvement in these proceedings or with the child.

[2] The actual application of the Society was for a six-month Society wardship order with supervised access to the parents and has not been amended to claim Crown wardship with no access to the parents. However given the fact that the child has been in care for so long, the court's only options under s. 70 of the Child and Family Services Act (hereinafter called the CFSA) are either to make the child a Crown ward or return her child to the mother under supervision. No other placement options were presented to the court.

[3] In its motion, the Society proposed statutory findings, statutory grounds for protection and factual underpinning for those grounds. The Society and the mother were in agreement with the proposed statutory findings, the statutory grounds for protection and some of the factual underpinning for those grounds as set out below:

[4] Accordingly, on consent:

a. statutory findings will be made regarding the child as set out at paragraph 1 (A) of page 2 of the motion at tab 8 of the continuing record.

b. There will be a finding that the said child is in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act, hereinafter called the CFSA.

c. The reasons for these findings include that:

i. The mother and father have a longstanding history with the Society dating back to 2006 regarding the subject child's two older siblings (not the subject of these proceedings and neither of whom are in the care of either parent).

ii. Judicial findings have been made against the mother and father on three separate occasions (regarding these older siblings).

iii. The past judicial findings have included the following:

1. The mother has limited cognitive and problem solving skills.

2. The mother has a history of running away.

3. Repeated efforts were made to maintain the child, Tristan in the care of the mother while residing at the Salvation Army Bethesda Centre, a supportive living environment. While at Bethesda, the mother struggled with her mental health, including depression and aggressive behaviours and she engaged in illegal substance use.

4. The father's contact with the children has been sporadic. The father is not advancing a plan to care for the children.

5. The mother continues to engage in the use of marijuana. The mother has not completed treatment in this regard.

6. The mother has struggled with depression.

7. The mother has not established an appropriate residence for the children.

d. The subject child's two older siblings are now in the custody of their paternal grandmother.

e. The mother and father's access to the two older siblings is supervised.

[5] Beyond these concessions by the mother, this motion was argued with regards to other suggested findings of fact as suggested by the Society in paragraphs 1(C)(6) through to and including paragraph 1(C)(20) of the notice of motion which were intended to underpin the finding of protection under s. 37(2)(b)(i) of the CFSA. The mother also disputed the relief requested by the Society in paragraphs 1(D) and 1(F) of their motion asking for an order for Crown wardship with no access to the parents.

[6] The father, who was in default did not attend or take part in the Summary judgment motion.

Parental Capacity Assessment of the Mother

[7] Before addressing the disputed paragraphs of the notice of motion, I would note that a Parental Capacity Assessment of the mother was completed about five months after the child's birth by Dr. Jay J. McGrory on December 15, 2011.

[8] In his conclusions, he stated that:

"At the present time, there are three core concerns that may impact upon [the mother's] future parenting functioning. These concerns can be identified as follows:

i. [The mother] has yet to demonstrate adequate adaptive functioning including financial stability, adequate housing and appropriate relationships.

ii. I am not fully convinced that [the mother] has the emotional fortitude to resist reconciling with [the father].

iii. [The mother] continues to use marijuana, apparently as a means of coping with emotional stress and anxiety.

At the present time, I would recommend a graduated plan of increasing access between [the mother] and T. possibly with a view to placing T. in [the mother's] care after approximately six months. As part of such a plan, [the mother] will need (my emphasis) to address the above issues. For this reason I would offer the following recommendations:

a. [The mother] will need to secure and obtain a residence that would be appropriate for T.

b. To improve financial stability, [the mother] should attempt to obtain Ontario Disability Support Program payments.

c. Given her low self-esteem, vulnerability in relationships and tendency to become emotionally overwhelmed / anxious, I would encourage [the mother] to participate in individual counselling, preferably on a longer term basis. The Women's Centre would appear to be a suitable agency to provide such counselling given their role in assisting women who are struggling in unhealthy relationships.

d. [The mother] should abstain from marijuana use.

e. The single and most important recommendation is that [the mother] must focus on T.'s needs and not be distracted by what she described as an unhealthy relationship with [the father]. In my opinion, if [the mother] re-enters into a relationship with [the father], any child in her care will be at risk. If T. is placed in [the mother's] care and she attempts to reconcile or associate with [the father], then I would view that as a poor decision and an indicator that she is not able to meet the needs of her child in the long-term. I would not offer [the mother] any second chances to care for T. should she make a decision to reconcile with [the father]."

[9] While Dr. McGrory's comments were only recommendations about how to proceed, in the months that immediately followed the release of the report the Society implemented a plan that was in keeping with the recommendations in order to commence the reintegration of the child back to the mother.

[10] Specifically by December 30, 2011, based on this report the Society set out in writing a number of goals for the mother to achieve. However by the time this summary judgment motion was argued about two years later she had only been successful in achieving one of them. They are as follows:

a. Cessation of all illegal substances. All indications are that the mother continues to regularly use marijuana.

b. Participate in drug testing as arranged by the Society. It was clear that the mother was largely uncooperative in attending random drug testing and we have no drug test results for the mother after March of 2012.

c. Become involved in individual counseling. Although the mother completed six out of eight group counselling sessions, it could not be said that she has become involved in individual counselling to address issues of low self-esteem, vulnerability in relationships and the tendency to become emotionally overwhelmed or anxious. Also, the counselling that she did undertake was not "long-term" in nature as recommended by Dr. McGrory.

d. Obtain independent housing and demonstrate stability in housing including maintaining it so that it does not pose any hazards to herself or the child. Although the mother has a residence she did not represent that it was adequate housing for her child and indeed, she has never allowed the Society to enter the premises.

e. Apply for Ontario Disability Program funding. In fact the mother now receives ODSP.

Use of Hearsay Affidavit Evidence by the Society in Support of Their Summary Judgment Motion Regarding Drug Use by the Mother

[11] The Society requested that a number of other findings of fact should be made by the court that would underpin the protection finding under S. 37(2)(b)(i) of the CFSA. In this regard, they relied to a large degree on hearsay evidence to suggest that she had not ceased to use drugs as proposed by Dr. McGrory.

[12] The Society requested a finding of fact at paragraph 1(C) 6 of their motion, that at the time of the Child's birth, the mother tested positive for marijuana and admitted to having smoked it earlier that day. The evidence they relied on in their argument of this allegation was the hearsay statement of a hospital social worker. There was no reason tendered by the Society regarding the necessity or reliability of this evidence, and indeed counsel for the Society acknowledged that it was not admissible. Based on this acknowledgment of the Society, I will not make a finding of fact as requested in this paragraph.

[13] At subparagraphs 1(C) (7 to 16) of their notice of motion, the Society suggested that a number of other findings should be made that would lead to the conclusion that the mother continued to be a regular user of marijuana. During his submissions, counsel for the mother claimed that the evidence in support these findings were either inadmissible or should have no weight placed because they were hearsay or unqualified opinion evidence.

[14] In this regard, the relevant Family Law Rules pertaining to the use of hearsay evidence on motions are as follows:

a. Regarding interim motions in general –

i. R. 14 (18): An affidavit for use on a motion shall, as much as possible (my emphasis) contain only information within the personal knowledge of the person signing the affidavit.

ii. R. 14 (19): The affidavit may also contain information that the person learned from someone else, but only if,

1. the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

2. in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. (My emphasis)

b. Regarding summary judgment motions –

i. Rule 16(4.1): In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence specific facts showing that there is a genuine issue for trial.

ii. Rule 16(5) - If a party's evidence is not from a person who has personal knowledge of the facts in dispute (my emphasis) the court may draw conclusions unfavourable to the party.

[15] It would appear that when facts are in dispute during a motion, whether for summary judgment or otherwise, the requirements regarding the quality of the evidence that is relied on are greater.

[16] I also rely on s. 50 (1)(b) of the CFSA which states that –

"Despite anything in the Evidence Act, in any proceeding under this Part, any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence."

[17] My attention has also been drawn to the decision of Justice Bondy in Windsor-Essex Children's Aid Society v. S.M.D. 2011 ONCJ 311, [2011] O.J. No. 2858, 5 R.F.L. (7th) 382, 2011 CarswellOnt 5386. It is clear from her review of the case law regarding the admissibility of evidence in a summary judgment motion that is not within the person's own knowledge, that there have been a variety of approaches taken. At paragraph 52(7) of that decision, she suggests that where evidence is not within the person's own knowledge, it may be obtained from a third party, providing the person identifies the source of the information and states that he or she believes the evidence to be true. At subparagraph (8) she goes on to state that an affidavit should address the basis for the court's admission of otherwise inadmissible evidence, applying what she labeled the "MacKenzie rule". She here is referring to the decision of Justice MacKenzie in Huron-Perth Children's Aid Society v. C.H. et al., 2007 ONCJ 744, 2007 CarswellOnt 9293. The "MacKenzie rule" expands somewhat the hurdles to admissibility of hearsay evidence on a motion for summary judgment. A brief restatement of his rule is that the deponent should identify the original source of the information or the person with the personal knowledge or observation of the fact alleged. The deponent must state that not only did they believe the evidence from the hearsay source, but give reasons why the court should believe this as well. The deponent must explain why it is necessary for the court to accept this hearsay evidence and lastly they must explain why the hearsay evidence is reliable.

[18] While the "MacKenzie test" sets out a gold standard, it is also clear that the court not only retains discretion under rule 16(5) to rely on hearsay evidence in summary judgment motions when a fact is not in dispute but also has discretion whether or not to draw conclusions unfavourable to a party regarding hearsay evidence if the facts in question are in dispute. I would also state that rule 16(5) does not talk about hearsay evidence being inadmissible per se. Rather, the question for the court is whether or not to draw conclusions that are unfavourable to the party.

[19] However, I agree that it is highly desirable that all evidence on a summary judgment motion should come from the personal knowledge of the affiant as suggested in rule 14(18), even when a respondent has not disputed an issue. Findings of fact that flow from a summary judgment motion have the same weight as findings made after a trial and as such can have a long lasting impact on people's lives. I am generally hesitant to make such significant findings without solid, credible, first-hand knowledge.

[20] That said, on a summary judgment motion there are times when hearsay evidence might not be viewed unfavourably, especially where there is no evidence provided by the respondent to dispute the allegation in the first place. The question is whether there are persuasive earmarks of safety that support giving weight to this type of evidence.

[21] I also note the unreported decision of Justice Fuerth in Chatham Kent Children's Services v. AB and DJ, court file no. 293/09 dated 2 October, 2013 which dealt with the hearsay evidence contained in drug test reports. He held that in the case of court ordered drug testing, the test results are presumptively admissible and speak for themselves. He concluded that from these reports he could determine if there were drugs in the system of the parent. I would go further to suggest that these reports would be admissible under s. 50(1)(b) of the CFSA since they would have been obtained at the request of the court.

[22] However, Justice Fuerth found that an opinion as to the quantity and level of use of drugs by the parent based on the drug reports were matters of expert opinion which were often beyond the knowledge of the Court, thereby requiring expert evidence as to the pattern and extent of use. Since no evidence of the qualifications of the expert was provided in the supporting affidavits in that case, the expert opinion was held not to be admissible by Justice Fuerth.

[23] In our case, none of the drug tests reports nor the letters of opinion containing the interpretation of these results were completed pursuant to a court order and in my opinion are not presumptively admissible. They are clearly hearsay documents some of which are also expert reports. With regards to the opinion evidence, the Society did not comply with the Family Law Rules or the Ontario Evidence Act to qualify the documents as admissible expert opinion, nor did it provide any evidence as to the expertise of the people offering the opinions.

[24] Specifically, the Society asked at paragraph 1(C)(7)(8) &(9) of the notice of motion that I make findings of fact as follows:

a. that the child's meconium tested positive for Cannabinoids at greater than 80.00ng/g based on the drug test report from Motherisk signed by Gideon Koren MD, ABMT, FRCPC showing exactly this result.

b. that on March 14, 2012, the mother tested positive for CarboxyTHC at 28.6 pg/10mg which were segmented as follows for Dec/Jan - 26.8 pg/10mg; Jan/Feb – 18.2 pg/10 mg; Feb/Mar: 18.3 pg/10 mg.

[25] Even though this evidence is clearly hearsay I am not inclined to draw unfavourable conclusions about it and would give it full weight for the following reasons:

a. Nowhere in the responding affidavits of the mother did she broach the topic of her drug use. Further she did not offer any other drug evidence such as her own contradictory drug test results to counter these allegations. Therefore she did not put the question of her drug use into dispute. The first indication that she was attempting to put any of the allegations about her drug use into dispute was through her counsel during his submissions. This was not merely a case of her "resting on mere allegations or denials" and then failing to provide "specific facts showing that there was a genuine issue for trial" as is decried in the wording of rule 16 (4.1). Indeed she did even less than that. She left the question completely unaddressed, and then, seemingly by way of ambush suggested through counsel during argument that a court should give the Society's evidence no weight because of its hearsay nature. In my view it would be questionable in these circumstances to give this evidence no weight since it would have the effect of requiring a trial of the issue when the mother did not to lead any evidence to the contrary regarding these issues in the first place. If the mother had contradictory evidence she should have lead it in her response to the summary judgment motion. One can only assume that at trial, she would again provide no response to contradict this body of evidence offered by the Society.

b. As corroboration for the allegations of the Society, Dr. McGrory reported in his Parental Capacity Assessment that the mother admitted to him that she had smoked Marijuana the night before the child's birth. In his December 15, 2011 report he also quoted her as telling him that she would smoke marijuana before going to bed. The Society worker in her affidavit also quoted the father as saying that the mother was smoking marijuana daily in the time period when the March 14, 2012 hair test was completed and also quoted the mother as telling her on October 2, 2012 that she was using marijuana on an ongoing basis and that she was still using it on April 12, 2013. Once again, the mother's responding material made no comment whatsoever to these allegations.

c. Even though the March 2012 drug test was not court ordered, it was completed with the consent of the mother at the request of the Society. She would have been well aware that they were asking for the tests in order to rely on them in this court proceeding.

d. Although the child did not consent to the test, she was apprehended soon after birth and was in the care of the Society who asked for this test to be done. It cannot be said that the test was done without authorization from a person with the appropriate authority.

e. These kinds of drug tests reports are widely used and relied on by courts and it is not in the interests of justice to require the maker of the reports to swear affidavits for court purposes where no dispute has been raised as to the outcome of the test results. I acknowledge the drain on court resources and the cost in time and inconvenience in requiring the drug examiner to jump these evidentiary hurdles for each and every test that is done in these circumstances.

f. I also note the circumstantial guarantee of reliability of the test results given that the examiner had no interest in the outcome of the case.

g. Given the nature of the report and the context in which the deponent in the affidavit relied on it, it can be inferred that the affiant believed the results to be true.

[26] Accordingly, I make findings of fact as requested at paragraphs 1(C)(7),(8) &(9) of the notice of motion for summary judgment.

[27] The Society also goes on to ask at paragraph 1(C)(10) of the notice of motion that there be a finding by the court that the amount of drugs found in the mother's body as set out at paragraph 1(C)(8) and (9) supports a finding that the mother maintained a moderate-heavy use of marijuana in the twelve weeks prior to the test. In this regard they submitted the same drug test report along with a letter of interpretation signed by a Healthstar representative. The Society stated that they believed the contents of this letter to be true. To the extent that an opinion is expressed in the report, I am inclined not to give it any weight because there is no qualification of the author as an expert in the field, nor was there any indication that the required notices were served under the Evidence Act or the Family Law Rules as is required if expert evidence is going to be relied on. Therefore, I will decline to make the finding of fact requested in Paragraph 1(C)(10) of the notice of motion.

[28] Regarding paragraph 1 (C)(11, 12, 13 &14) The Society asked that I make a finding that on August 27, 2012 the mother tested positive for marijuana and MDMA (ecstasy). They also asked that I make findings as to the level of use based on segmented test results for May/June, June/July and July/August 2012. The difficulty with these drug test reports is that while the deponent of the affidavit identifies the maker of the report, the reports were unsigned. Therefore I would place no weight on them whatsoever. The Society went on to ask that I make findings as to the meaning of these results based on a letter of interpretation, however this analysis appears to be based on the unsigned reports which would make it of no value. Also, once again, I am being asked to accept expert opinion evidence without the proper foundation being laid to have it made admissible as set out above. Accordingly I cannot make any of the findings that are requested paragraphs 1 (C) (11, 12, 13 &14) of the notice of motion for summary judgment.

[29] At paragraph 1(C)(15) of the notice of motion the Society suggested that there be a finding of fact in support of the protection finding that the mother refused to attend for random scheduled drug testing on June 25 and July 17, 2012 and January 29 and April 12, 2013.

[30] The mother's response to these allegations is that the evidence is inadmissible because it relies on hearsay; a large part of it coming from reports from the testing agency that the mother had failed to attend for testing at the appointed time.

[31] In spite of this objections, I am not prepared to draw unfavourable conclusions about the weight given to this evidence and I will indeed rely on it for the following reasons:

a. Once again, the mother did not dispute the question that she failed to attend these drug tests in her affidavit materials but rather disputed it only in submissions by counsel. I would make the same comments here as I did above regarding her need to deny an allegation and set out sufficient evidence showing a genuine issue for trial if she wishes the court to draw unfavourable conclusions about the Society evidence under rule 16(5).

b. These kinds of straight forward attendance reports by the testing agency have the circumstantial guarantee of reliability because the person making them has no interest in the outcome of the case.

c. Further, the inconvenience along with the resulting cost in time and resources from having to obtain first hand affidavit evidence from the drug testing site supports giving this evidence full weight when no issue is raised as to veracity.

d. In any case, Counsel for the mother in his submissions acknowledged that the mother had not been cooperative in going to drug testing.

[32] Therefore I will make the finding as suggested at paragraph 1 (C) 15 of the said notice of motion.

Other Findings of Fact Requested by the Society in Its Motion

[33] I am also asked in paragraph 1(C)(16) of the Summary Judgment motion to find that the mother had not successfully participated in any treatment to address her substance abuse issues. The affidavit in support of this allegation by the worker indicated that the mother told her that she had entered the House of Sophrosyne in Windsor on September 9, 2013 for a 35 day substance abuse treatment program. However, on September 24, 2013, the mother advised this worker that she had returned home to Chatham and wished to recommence her regular access visits with the child. The mother would not tell the worker why she was no longer in the program.

[34] As already mentioned, the mother does not speak in any way about her drug use in her reply affidavits. Further she does not speak about any drug treatment to address her substance abuse issues.

[35] Based on the affidavit information of the Society and the lack of any opposing evidence from the mother on this issue, I find that there is no evidence that the mother has successfully participated in treatment to address her substance abuse issue.

[36] At paragraph 1(C)(17) of the motion the Society asks that I make a finding that the mother has not participated in long-term individual counseling to effectively address her depression and anxiety issues. Once again the mother did not broach this topic in her affidavit response. Although the Society's affidavit material indicated that she had attended six out of eight group-counselling sessions, her counsel acknowledged the truth of this allegation at the time of argument. Accordingly, I find that there is no evidence that the mother participated in long-term individual counseling to effectively address her depression and anxiety issues.

[37] The Society also asks at paragraph 1(C)(18) of the notice of motion that there be a finding of fact that the mother has not been able to demonstrate an independent, long-term and stable living arrangements for herself since prior to the birth of the child. In this regard, it was acknowledged that the mother had been successful in obtaining ODSP funding. However, ever since the Parental Capacity Report was released on December 15, 2011 it became a goal that she would find her own appropriate housing for herself and the child. But even though she apparently has a residence she has never allowed the Society to come inside her home. While counsel for the mother acknowledged that the mother did not have appropriate housing for the child at this time, he suggested that the Society was to blame for this failure. This excuse is not acceptable. Even though the mother did not address this concern in her responding affidavit material her counsel relied entirely on the Society affidavits to argue that they refused to write a letter of recommendation to the subsidized housing authority in support of the mother qualifying for a housing unit. In response to this complaint, the Society relied on its own affidavit material to suggest that it refused to write such a letter because of the mother's lack of progress in carrying out the plan that had been suggested by Dr. McGrory. I agree that it would have been inappropriate to ask the housing authority to mobilize efforts to find the mother housing for herself and the child in the circumstances.

[38] The child has been in care for almost three years and the bottom line is that the mother does not have adequate housing for her child. As such, in response to the suggested finding of fact proposed at paragraph 18 of the notice of motion, I find that while the mother is now receiving enhanced funding through the Ontario Disability Support Fund, she does not have adequate housing for herself and her child.

[39] Regarding Paragraph 1(C)(19)&(20) of the notice of motion, based on the uncontroverted evidence in the affidavit material filed by the Society I find that the father has had no contact with the Society since March 27, 2012 and he is in default in these proceedings. Further he does not have access with the child.

Mother's Submissions About Triable Issues

[40] In his submissions, counsel for the mother acknowledged that the mother used marijuana but suggested that a triable issue in this case should be whether her use of drugs negatively impacted her ability to parent her child to the extent that the child could not be returned to her care.

[41] This is a curious argument to put forth when the mother says nothing in her affidavit material to acknowledge or dispute her drug use. Nowhere does she suggest that in spite of her drug use, she is still capable of parenting her child. She doesn't speak about what drugs she uses, the frequency or intensity of her drug use or how it affects her functioning. Even though her use of drugs has been a central issue in this and earlier protection proceedings relating to her two older children, her responding material is devoid of speaking to the issue.

[42] In spite of this, her counsel simply argued that we should run a trial on this question. He argued that there was no evidence in the Society affidavits that suggested that her drug use impacted her interaction with her child or that she was impaired when she had dealings with workers.

[43] In the case of Children's Aid Society of Toronto v. T. (K), [2000] O.J. No. 4736 (Ont. C.J.) it was held that a party answering a motion for summary judgment cannot just rest on bald denials: they must put their best foot forward, showing that there is a genuine issue for trial. And, in the case of CAS Dufferin v. J.R. [2002] O.J. No. 4315, the court held that 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.

[44] In our case, the mother did not lead any evidence whatsoever regarding this issue upon which she wishes to have a trial. While she may rely on the evidence contained in the Society materials, I would point out that the Society affidavits also provide the following evidence:

a. On September 21, 2010, Justice Fuerth made findings of fact in a protection proceeding regarding the mother's two older children. He found that going back to 2007 or 2008 the mother engaged in illegal substance use and that currently (at that point in September of 2010) the mother continued to engage in the use of marijuana and had not completed treatment in that regard. He also found that she struggled with depression. These issues had created longstanding parenting concerns for the mother that were responsible at least in part for her not having her two older children returned to her care at that time. He also found that, in spite of the mother being repeatedly encouraged to seek help with these issues, there were no discernable improvements to these longstanding issues.

b. Her use of drugs was also a significant concern raised in the Parental Capacity Assessment of Dr. McGrory dated December 15, 2011. At that time he assessed the mother's full Scale IQ as falling in the Borderline range (at the 5th percentile). He reported that she had told him that she worried constantly and that she would get overwhelmed which resulted in her having difficulty sleeping. Dr. McGrory concluded that she appeared to rely on Marijuana as a means of addressing anxiety symptoms. He also stated that she had below average intellectual skills which may have had an impact upon her problem solving and judgment at times. From an emotional standpoint, he believed that she tended to become easily stressed and overwhelmed, likely as a function of cognitive weaknesses as well. He suggested that she had low self-esteem and was vulnerable in relationships and that she had acknowledged that in the past, she had been more focused on attempting to maintain a relationship with the father rather than meeting her children's needs. In his summary and recommendations, as mentioned already, he articulated the three core concerns that might impact on her future parenting functioning. One of these was that she continued to use marijuana, apparently as a means of coping with emotional stress and anxiety.

c. The mother now asks the court to allow her to raise her child as a single parent however she has below average intellectual skills which impacts on her problem solving and judgment. She has self-esteem issues and feels overwhelmed, constantly anxious and has difficulty sleeping. As a result she self-medicates with marijuana as a means of addressing these concerns. Clearly Dr. McGrory concluded that her use of marijuana would have a negative impact on her parenting function which is a conclusion that I accept.

d. There is no evidence provided to me by the mother or anyone else that this would not be the case.

e. Further, the only contact the mother has had with her child is at supervised access visits. While visits may appear to be going well, she has provided no evidence as to her ability to care for her child on her own, and certainly no evidence that she is capable of caring for her child when she is under the influence of marijuana.

f. Lastly, the mother's historical use of drugs has been well documented by Courts in the past. She has repeatedly been offered drug tests by the Society which might have helped identify for the court just which substances she was using and establish the level of use. She has largely refused these tests, thereby robbing herself of the opportunity to establish that perhaps her use of drugs is so low that the impact on her parenting ability could arguably be minimal.

[45] Having considered these factors, I have no hesitation in concluding that there is no triable issue regarding the question of whether the extent of the mother's drug use is sufficient enough to negatively impact on her parenting ability.

[46] I also wish to comment on the status of the information available to the court regarding the mother's relationship with the father. Based on the comments made by the mother to Dr. McGrory it is clear that the father mistreated the mother and their relationship was marked by conflict and instability. Dr. McGrory concluded that the father had a strong negative impact on her ability to focus on the needs of her child. As with the drug issue, the mother's responding materials are totally quiet on this subject. The Society affidavits set out that the mother was made aware of Dr. McGrory's report that was issued on December 15, 2011. It is clear from the report that Dr. McGrory believed that the mother had ended her relationship with the father at the time the report was prepared and that any further association with him would be considered a poor decision on her part and an indicator that she was not able to meet the needs of the child. In spite of this, on February 9, 2012 (about two months after the release of the report) the mother agreed with the Society to end her relationship with the father. And yet, on March 27, 2012, the father reported to the Society that for the past six years, he had been going to the mother's home daily in order to have sex and smoke marijuana. He claimed that the day before they had had a confrontation at the home of his mother (who has custody of their two older children) and that the police were called to intervene. That was the last contact that the Society had with the father. The presence of the father in the mother's life is a sensitive issue. However she provided absolutely no evidence to contradict the allegation that her relationship continued on after the McGrory report was released nor did she comment in any way about the current status of their relationship. Their two oldest children remain in the custody of the paternal grandmother however the mother refuses to tell the Society where she practices access to these two children which raises further concerns about the ongoing presence of the father in the mother's life. The last word that we have on their relationship was that as of March of 2012 it was ongoing and it involved conflict and the use of drugs. The Society has had no recent contact with the father and the mother has largely terminated communication with them. The mother certainly would have known from reading the McGrory report and the affidavits of the Society that if her relationship with the father continued this would be problematic to her having the return of the child. She would also have known the status of her own relationship with the father, but she chose not to address this important question in her affidavit response.

[47] Lastly, it is quite clear that the mother has been uncooperative with the Society in attempting to address the protection concerns in this matter. Her counsel has suggested that she didn't cooperate with them because she believed that they were working against her interests. Of course, her affidavit does not address this question either. Rather he relied on the Society affidavits to make this claim. I would say that my reading of the Society affidavits indicates that the Society attempted to support the mother in making changes, and that when it became clear that she was unable or unwilling to do so, she began to reject their suggestions. As matters now stand, the mother has largely closed down her cooperation with the Society. She refuses to go to drug testing; she won't allow the Society into her house, she frequently fails to attend meetings with them, at times is rude and hostile to them and provides little information about herself to them.

[48] In addition to the factual underpinning suggested by the Society in its summary judgment motion, based on my conclusions above, I also make the following findings of fact:

a. The mother has below average intellectual skills and obtained a Full Scale IQ score in the Borderline range at the 5th percentile. At times this impacts her judgment and decision making. She also suffers from low self-esteem, feelings of being overwhelmed and anxious and she has trouble sleeping which also impacts on her judgment and decision making. On top of these problems she uses illegal drugs, notably marijuana on a regular basis. Her use of drugs along with these other factors has a negative impact on her ability to parent her child.

b. The mother has had a longstanding unstable relationship with the father which has been marked by conflict and his mistreatment of her. In the past she has focused on the preservation of this relationship to the detriment of her children. Dr. McGrory concluded in his December 15, 2011 Parental Capacity Assessment of her that if the mother re-entered into a relationship with the father, any child in her care would be at risk. The latest evidence available to the court regarding the status of their relationship was that it was still ongoing and the mother has not said or done anything to dissuade the court of this.

c. The parents have not cooperated with the Society. The father has had no contact with them since March of 2012 and the mother has refused entry by the Society to her home. She also provides them with little information about herself and is at times hostile and rude to them.

[49] I have no doubt that the mother loves her child greatly. However, it has been almost three years since the child was taken into care and the mother still only has supervised access with her and has not been able to make the necessary gains to be in a position to have the child returned to her care.

[50] In Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) it was held that in child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent.

[51] The child's need for permanency planning in this case is beyond the critical stage. Clearly we are outside the time limits that are contemplated by section 70 of the CFSA which mandate that children this age should not be kept in care beyond eighteen months.

[52] The mother is not in a position to take over the care of the child and no alternative plan has been put forward by her. The only other alternative is to make the child a Crown ward. There is no reason to believe that the child would not be highly adoptable, and given the delay in determining this case, there should be no possibility of further delay in moving her forward towards finding a permanent placement. I have considered the best interests of the child under s. 37(3) of the CFSA. However, given the fact that neither the mother nor the father have ever had the care of the child, are not able to take over the care of the child now and there are no other alternative possibilities for her placement with family or in the community, she should be made a ward of the Crown and placed in the care of the Society.

[53] On considering the provisions of s. 59(2.1) of the CFSA, it is my belief that an order for access to either of both parents could impair the child's future opportunities for adoption, given that these rights could further complicate the adoption process. Further, I have no evidence from the mother or anyone else that the relationship between the child and her mother is beneficial and meaningful to the child. The child has never been in the mother's care and the father has not been involved in this proceeding nor does he have any relationship with the child. Accordingly there should be no order for access to either parent.

[54] I have read all of the affidavits that have been filed in this matter. In my view there is no genuine issue for trial and there is no realistic possibility of an outcome other than that sought by the Society.

[55] Accordingly there will be an order that the child will be made a ward of the Crown and placed in the care of the Society with no access to either parent.

Released: April 25, 2014

Signed: Justice L. C. Glenn