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.
(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ONTARIO COURT OF JUSTICE
CITATION: Catholic Children’s Aid Society v. M.L., 2014 ONCJ 691
DATE: December 17, 2014
COURT FILE No.: C57510/12
BETWEEN:
CATHOLIC CHILDREN’S AID SOCIETY
Applicant,
— AND —
M.L. (mother)
E.W. (father)
Respondent .
Before Justice Roselyn Zisman
Heard on October 22, November 26 and December 4, 2014
Reasons for Judgment released on December 17, 2014
Fatima Husain…………………………………………………….. counsel for the applicant society Paul Fox . ……………………………………………….counsel for the respondent M.F. (mother)
E.W…………………………………………………………….properly served but not participating
Zisman J.:
Introduction
[1] This is a summary judgement motion wherein the Catholic Children’s Aid Society (“the society”) is seeking an order that the child J.E.F. born […], 2012 (“J.” or “the child”) be made a crown ward and placed in the care and custody of the society with access to M.F. (“the mother”) in the discretion of the society and in accordance with the child’s treatment needs.
[2] The mother opposes the motion and seeks a trial. She wishes the child placed with her.
[3] E.W. the respondent father resides in Jamaica and he has not participated in this proceeding. He was served by courier in November 2013 and confirmed receipt of the court documents. Service on E.W. was validated by court order on July 21, 2014. He was noted in default.
[4] In support of its motion the society relied on the Protection Application dated September 18, 2012, the Status Review Application dated September 3, 2013 and Plan of Care, the Statement of Agreed Facts dated April 8, 2013, the affidavits of Louise Ludick sworn September 18 and December 3, 2014 and the affidavit of Ahmed Lokhat sworn December 3, 2014. The society also filed a Factum and Book of Authorities.
[5] The mother relied on her Answer and Plan of Care dated October 18, 2012 and her Answer and Plan of Care dated January 14, 2014, the mother’s affidavit sworn October 17, 2014 and affidavits of two friends of the mother both sworn November 13, 2014.
Background
[6] J. is biological child of the respondent parents. The mother has two other children, Z. who is 6 years old and A. who is 2 years old. These children are presently in the mother’s care pursuant to a supervision order.
[7] The society became involved with the mother as a parent in 2009 about a year after the birth of Z., as a result of concerns with respect to issues regarding parenting ability and neglect. The file was closed as the family doctor had no concerns. The society again became involved as a result of domestic violence in the home. The file was closed as the family did not respond to the society’s request for information.
[8] In 2011, the society again became involved due to an incident of serious domestic violence between the mother and the father of A. The society has remained involved with the mother since that time due to concerns she minimized the seriousness of the incident of domestic violence and the effect on the children. The society also had concerns as the mother was not consistent with following up on medical care for her children.
[9] J. was born on […], 2012 with a medical condition that affects her breathing and the ingestion of food. She was later diagnosed with a rare medical condition known as Congential Myasthenic Syndrome (“CMS”). As a result of the child’s fragile medical condition she remained in a hospital setting for the first two years of her life and upon discharge was placed in the Oakville Children’s Homes which is a specialized long term treatment placement but with a parent-model.
[10] The society commenced a Protection Application on September 17, 2012 with respect to all 3 children seeking that Z. and A. be placed with the mother subject to a 6 month supervision order and that J. who is the subject of this summary judgement motion be made a society ward for 6 months.
[11] A temporary without prejudice order was made on September 20, 2012 placing J. into the care of the society.
[12] The mother executed a Statement of Agreed Facts dated April 8, 2013 wherein she agreed that she was not in a position to care for J. at that time but continued to express the desire to plan for J. The child J. was found to be in need of protection pursuant to sections 37 (2) (e) and 37 (2) (i) of the Child and Family Services Act. An order was made for a 6 month society wardship order pursuant to section 70(4) of the Child and Family Services Act.
[13] A finding that the other children were in need of protection was also made pursuant to section 37 (2) (l) of the Child and Family Services Act.
[14] Given the length of time J. had been in care, in September 2013 the society commenced this Status Review Application seeking an order for crown wardship as during the term of the previous order the mother had still not been able to present a viable plan of care. There were also concerns that the mother had been the victim of another incident of domestic violence from a previous partner that took place in front of her daughter A.
[15] This summary judgement motion was heard on October 22, 2014. However during submissions of mother’s counsel, it became clear that the mother had arranged a meeting for October 27, 2014 to attempt to secure funding for the various supports that were required for J. as part of her plan of care. The court suggested that the motion be adjourned to provide the mother with an opportunity to file a further affidavit to advise the court of the outcome of this meeting.
[16] The motion was then adjourned to November 26,2014. Mother’s counsel then made oral submissions regarding the difficulties the mother had encountered arranging funding for services and for the training of various caregivers she was proposing to assist her with the care of J. The court made it clear that any further evidence that the mother wished to rely on for the summary judgement motion needed to be in an affidavit. A further short adjournment was granted.
[17] On December 4, 2014, the motion was again before the court. Counsel for the mother only filed 2 further affidavits from her friends, who were also the children’s godmothers and who were prepared to assist her with the care of J. The society, in anticipation of the mother filing an affidavit regarding efforts made during the adjournment, prepared further affidavits updating the court and also to respond to the mother’s initial affidavit. Leave was granted to permit the society to file these affidavits.
Evidentiary issue
[18] The affidavits filed by the society contained a great deal of hearsay and in particular statements from the foster mother and various service providers with respect to the medical needs of J. and her progress since birth. A report from the Oakville Children’s Home was also attached to the society’s worker’s affidavit that also contained first and second hand hearsay.
[19] Although the court can rely on hearsay, Family Law Rules subrule16 (5) provides a stricter rule with respect to hearsay than subrule 14 (19) motions, namely 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. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, in any, that the court deems appropriate.
[20] Although the better practice would have been to file an affidavit directly from the foster mother or other service providers, in this case I do not draw any adverse conclusion from the society’s reliance on this hearsay evidence and I am prepared to rely on this evidence.
[21] The mother in her affidavit specifically confirmed that the information in the report of the Oakville Children’s Home was accurate. Counsel for the mother confirmed that he was not objecting to the reliance on hearsay in the society’s affidavits or asking the court to draw an unfavourable conclusion because of the inclusion of hearsay evidence or put less weight on the evidence. Further, in reviewing the affidavits filed by the society and the mother’s affidavit there does not appear to be any serious dispute regarding J.’s medical history, her needs or her current functioning.
Medical history and needs of J.
[22] The society maintains that J. has been medically fragile since birth and that despite the length of time J. has been in care and the efforts of the society to assist the mother, she has been unable to provide the type of care that J. requires. In the Statement of Agreed Fact executed by the mother, in support of the finding in need of protection, she agreed that J. needed a high degree of care but she now deposes that in the last two and a half years J. has grown and developed and the degree of her symptoms has greatly diminished and she no longer believes that J. should be considered “medically fragile”.
[23] In the Statement of Agreed Fact filed on April 8, 2013, the society and mother agreed to the following facts regarding J.’s condition:
a. J. was born on […], 2012 full term but medically fragile;
b. J. remained in the hospital on a ventilator and upon discharge required a high level of care by two skilled caregivers and ongoing medical follow up and monitoring as well as expensive in-home equipment; hospital staff were concerned that the mother did not have another person to assist her in the care of J. and there was a concern that the mother was not visiting enough to bond with J. or to observe the level of care required to care for J.;
c. On October 10, 2012 J. was transferred from the Hospital for Sick Children to the complex care unit at the Holland Bloorview Rehabilitation Hospital;
d. Although at the time there was no medical diagnosis J. received intensive services including a gastronomy tube for feeding and a respirator; she suffered from paralysis of the diaphragm and was unable to breathe on her own; monthly meetings were held which were attended by the mother and society staff; and
e. In preparation for possible discharge the mother identified her step-mother as a second caregiver for J.; the step-mother’s training was commenced but not completed; the mother did complete the required training to manage J’s personal and medical care and was visiting regularly.
[24] J. received a formal diagnosis in December 2013 of CMS. This is a collective term for a group of inherited disorders of “neuromuscular transmissions, the mechanism by which messages are sent across to muscles to make them work. This causes weaknesses in the muscles which tire easily when they are required to work. Symptoms usually start in the first years of life with varied disability ranging from mild to severe muscle weakness which may in some cases involve breathing muscles.
[25] J. remained at the Holland Bloorview Hospital until her discharge and transfer to a specialized treatment home, the Oakville Children’s Home on April 22, 2014.
[26] Based on the affidavits of the society workers that include a review of J.’s medical records, personal observations of J. by the society workers, information from the foster mother and the report of the Oakville Children’s Home, I make the following findings regarding J.’s current medical conditions and her needs:
a. J. has no cognitive impairments; she is happy, bright, intelligent and quick to learn and engaged in the world around her;
b. J. can maintain a conversation; her language skills are excellent; she has a speaking valve but it is not necessary as she speaks loudly enough for anyone to hear her;
c. J. has a very calm personality but can be feitsy;
d. J. has bonded to her foster mother and misses her when she is not around;
e. J. has a tracea tube attached to her neck; J. needs to be suctioned at least 3 to 4 times a day as she is very congested and normally needs to be suctioned more often throughout the day and a deep suctioning is required 1 or 2 times a day; if the tube is not suctioned, a mucus plug forms and this can lead to choking; J. needs to be supervised as she can easily rip the trach from her neck and the open hole to her throat can be fatal;
f. The trach must be changed weekly or whenever J. has serious congestion. J is prone to respiratory infections and a caregiver must be diligent to change the trach tube and know the cues when to change the tube;
g. When being transported, two people must be present as one person must attend to J. and certain equipment such as a suction machine and ambubag must accompany J. at all times;
h. J. is fed through a g-tube and is bolus fed throughout the day; there is a granuloma on the opening where the feeding tube is and this must be monitored closely and care taken to keep the area clean; J. is resistant to oral feeding but this is being worked on and encouraged;
i. J. takes 5 different medications throughout the day at various times;
j. J.’s condition is degenerative; it is unknown whether or not her condition will worsen; it is a very rare condition and there is no indication in the research regarding life span or future quality of life; currently she is stable and her quality of life is good;
k. J.’s cognitive development is a bit delayed as she was in an institutional setting from birth to April 2014, that is for 2 years; for the same reasons her social skills are delayed but she is catching up; she is placed in a parent model group home with other children with special needs;
l. A day-care setting is not recommended medically as she is prone to respiratory infections and cannot afford to get sick from other children; although like other children J. does need some level of socialization; if J. is placed in a day-care setting she will require a one on one worker;
m. J. is catching up on her gross and fine motor skills; she tires easily when walking;
n. J. requires at least 2 caregivers who have the time to meet her needs; she requires at least one caregiver who can remain home and who has had extensive training in tracheostomy care and respiratory suctioning; the current foster mother has been trained in caring for children with J.’s needs but she also has at least 2 staff to assist her and the 3 other children in the home;
o. J. is on a ventilator during naps and during the night; she uses a humidifier during the day and an oximeter to monitor her oxygen saturation level when she is sleeping;
p. Nursing staff attend 5 nights a week from 11 p.m. to 7 a.m. as they need to be beside J. for ventilator support, suctioning and trach care; the current foster mother also receives respite care one week-end a month when J. goes to the Bloorview Rehabilitation Hospital; and
q. J. also received support from an occupational therapist, physiotherapist and speech and language therapist and is followed by the Hospital for Sick Children.
Services offered to the mother
[27] The society worker has assisted the mother in attempting to find appropriate accommodations by writing letters to support her request for housing transfer and by writing the police to assist the mother in obtaining an incident report about an incident of domestic violence. The society worker also wrote letters to support the mother obtaining extra funding for transportation costs to visit J.
[28] The society attempted to facilitate training in the use of the equipment J. needs to live. The mother completed the training but the 3 other people the mother proposed to assist her in the care of J. have not completed the training.
[29] The society provided the mother with information for obtaining counselling both with respect to domestic violence and in dealing with a child with special needs.
[30] The society arranged family centred conferences to discuss options available for J. that would meet her complex medical needs and ensure her well-being and permanency and encouraged the mother to present a plan that would meets these needs as well as ensuring that the needs of the other 2 children in the mother’s care were being met. The family agreed to explore alternative caregivers to assist the mother and explore community and government funding for training, respite care and other services. The mother was to continue to pursue a housing transfer.
[31] The society has facilitated access at the society’s offices every Saturday for 3 hours for the mother, the siblings and any extended family members. The mother can attend at the Oakville Children’s home anytime during the day as long as the mother provides 24 hour notice. The society agreed to pay for the mother’s transportation costs to and from Oakville Children’s Home.
[32] During the adjournment of the summary judgement motion, both the society worker and society counsel attempted to assist the mother and her counsel in their attempts to provide further information to the court regarding the mother’s plan.
[33] The society worker attempted to contact both of the mother’s friends that she was now proposing to help her when they had not contacted her. However, according to the worker neither of them arranged to call or meet with her.
[34] The society worker contacted Holland Bloorview Rehabilitation Hospital and the Oakville Children’s Home for make inquiries about the availability for training for the 2 friends the mother proposed would help her and for the 4 daycare providers that the daycare centre required to be trained if J. was placed in their facility. The information was conveyed to counsel for the mother that although the daycare staff could be made available for the theoretical training, the cost of the training was not resolved and how the practical portion of the training was to be arranged was also not resolved.
[35] The society also attempted to assist mother’s counsel in potential arrangements for funding for night nursing. But the agency required an assessment that would take place in the residence where the J. would be residing if placed in the mother’s care. As the mother’s current accommodations are not suitable for J. the assessment could not be arranged.
Current access arrangements
[36] During the Saturday access visits, the foster mother attends with J. It was reported that it is the foster mother who is usually responsible for J.’s care including changing J.’s diaper, setting up her g-tube feeds and suctioning J. as needed. The mother sometimes changes the diaper and suctions her but does not do the feeds.
[37] When the other children attend, the visits are reported to be chaotic with the other children running around and the mother constantly screaming at them.
[38] The mother generally braids J.’s hair during the visits and J. thinks she is going to a salon.
[39] Two special visits were arranged outside of the access centre. One for J.to attend Kids Caribana and the other for A.’s birthday party. The Caribana event did not go well as there were crowds of people which J. found overwhelming. J. returned from the visit exhausted and was congested and she was not well for several days afterwards. A.’s party was at a facility outside of the society’s offices. The mother was busy with the party and had little time for J. J. was bored and angry with the mother and asked the foster mother to take her home.
[40] The society was originally paying the mother $80.00 per month to cover the costs of transportation to the Oakville Children’s Home but requested receipts. As the mother did not provide any receipts and is no longer attending the Oakville Children’s Home to visit J. the society stopped paying this cost.
[41] The mother is also permitted to telephone J. and speak to her and the staff at the Oakville Children’s Home.
The mother’s plan of care
[42] The mother deposes that although she appreciates that caring for her 3 children will be challenging, as it is for any single parent, she feels that the society’s stated concerns and fears are greatly over-stated and perhaps a bit exaggerated.
[43] It is the mother’s belief that as J. has grown and developed the severity and extent of her symptoms have greatly diminished and she does not consider J. to be “medically fragile”. At this time, J. only needs her ventilator when she is sleeping or during her naps. The mother agrees that there is a need to be vigilant to ensure that J. does not advertently or inadvertently pull out her trach tube.
[44] The mother deposes that the only difference in caring for J. is that people in charge of her care need to be properly trained as to her condition and what is needed to ensure that she continues to breathe appropriately and to be able to ingest her food. The mother has been trained and has no problem in caring for J. when she is visiting.
[45] The mother deposes that she can meet J.’s needs with appropriate supports as follows:
a. J. will live with her and her 2 siblings in her current apartment and will have her own room;
b. She will continue to work with the society, social services and Toronto Community Housing to obtain more appropriate housing but there is little that can be done until J. is in her care;
c. J. will attend daycare at M. Centre; the staff have agreed to obtain training through the Holland Bloorview Rehabilitation Hospital but the funding for such services has to be arranged;
d. Two of the children’s godparents[^1] have agreed to assist and provide parental relief and are willing to be trained to accommodate J.’s medical needs but the funding for the training to occur has to be clarified;
e. The mother’s other children attend school full-time and after they go to school, the mother will arrange for TTC special wheel transportation to take J. to daycare. The mother would then attend school where she is upgrading her skills and education with the goal of becoming a personal support worker for children with special needs; after the mother finishes her school day she would pick up J. using special wheel transportation and then pick up the other children; and
f. A night nurse would attend the home 6 nights a week from 11 p.m. to 6 a.m. to monitor J. and allow the mother to sleep; funding would be arranged by the Ontario government through Community Care Access Centre that is currently funding this same service at J.’s current placement.
[46] The mother submits that she has a solid and viable plan for the care of J. and her two siblings. She is also optimistic that with the passage of time, J.’s health will continue to improve and the requirements for her care will diminish as it has since her birth.
[47] The mother also deposes that the concern about her partners and the domestic violence the children were exposed to in the past is less of a factor as she has made her children a priority, has gained significant insight into the error of her ways and is hoping to gain further insight through counselling if she is able to find time to fit it into her very busy schedule and responsibilities.
[48] The mother states that she loves her children and that there is no reason that J. should not be living with her and her sisters with the intuitional supports she has proposed for daycare and a night nurse in place. It is submitted that the outcome sought by the society is not a foregone conclusion.
Applicable Law
[49] Subrule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.
[50] Subrule 16 (2) specifically confirms that summary judgment is available in child protection proceedings.
[51] Subrule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.
[52] Subrule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.
[53] Subrule 16 (6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.
[54] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show there is no genuine issue for trial. (Children’s Aid Society of Hamilton v. M.N. 2007 CanLII 13503 (ON SC), [2007] O.J. No. 1526 (Ont. S.C.J.).
[55] In assessing whether or not a society has met its obligation of showing there is no genuine issue for trial, courts have equated that phrase with “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome than that sought by the applicant”. ( Children’s Aid Society of Oxford (County) v. J.J. 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208 (Ont. S.C.J.); Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) 1996 CanLII 7271 (ON SC), [1996] O.J. No. 3081, (Ont. G.D.)139 D.L.R. (4th) 534; Children’s Aid Society of Simcoe v. C.S. [2001] O.J. No. 4915 (Ont. S.C.J.) and Children’s Aid Society of Niagara Region v. S.C., 2008 CanLII 52309 (ON SC), [2008] O.J. No. 3969 (Ont. S.C.J.).
[56] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children’s Aid Society of the Regional Municipality of Waterloo v. T.S. 1999 CanLII 14252 (ON CJ), [1999] O.J. No. 5561 (Ont. C.J.), observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by Rule 16, this may:
…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment. (See also Jewish Child and Family Services of Toronto v. A.(R.) [2001] O.J. No. 47 (Ont. S.C.J.).
[57] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is no genuine issue for trial must be insufficient to defeat a claim for summary judgment. (Children’s Aid Society of Toronto v. A. (M.), 2002 CanLII 53975 (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.).
[58] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. (Children’s Aid Society of the District of Nipissing v. M.M. 2000 CanLII 22922 (ON SC), [2000] O.J. No. 2541 (Ont. S.C.J.); Children’s Aid Society of Hamilton v. M.N, supra).
[59] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. (Children’s Aid Society of Dufferin v. J.R. 2002 CanLII 45514 (ON CJ), [2002] O.J. No. 4319(Ont. C.J.).
[60] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. (Children’s Aid Society of Toronto v. C.H. 2004 ONCJ 224, [2004] O.J. No. 4084 (Ont. C.J.); Children’s Aid Society of Hamilton v. C.R. 2006 CanLII 79342 (ON SC), [2006] O.J. No. 3442)(S.C.J.).
[61] In interpreting subrule 16, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the Child and Family Services Act providing that the paramount purpose of the Act is to promote the best interests, protection and well- being of children.
[62] It is also necessary to consider Rule 2 of the Family Law Rules to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that cases are dealt with in ways that are appropriate to their importance and complexity and giving appropriate court resources to the case while taking into consideration the need to give resources to other cases. (Children’s Aid Society of Hamilton v. W.H. 2006 CanLII 9962 (ON SC), [2006] O.J. No. 1255 (Ont. S.C.J.). This appears to also be in keeping with the process test set out by the Supreme Court of Canada in Hryiak v. Mauldin 2014 SCC 7, 2014 S.C.C. 7.
[63] 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 prospect that what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent. (Children’s Aid Society of Toronto v. R.H. and M.N. 2000 CanLII 3158 (ON CJ), [2000] O. J. No. 5853 (C.J.).
Analysis
[64] As this is a status review application, there has already been a finding that J. is in need of protection.
[65] It is well-settled law that the court must now evaluate whether there is a continued need for state intervention to protect J. and consider what disposition would be in J.’s best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent’s parenting ability (Catholic Children’s Aid Society v. Metropolitan Toronto and the Official Guardian v. M.(C). 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165).
[66] Given the time limitations set out in s. 70 of the Child and Family Services Act and the fact that J. has been in the care of the society for over 2 years the only options available to the court at this time, if there is a finding that J. continues to be in need of protection, are to place J. in the care of her mother with or without supervision or order that J. be made a crown ward with or without access.
[67] I find that the same protection concerns that existed when J. was found to be in need of protection, pursuant to section 37 (2) (e) and (i) on April 8, 2013 continue to exist today namely, that J. requires medical treatment that the mother is unable to provide and that J. remains in a residential placement as the mother is unable to resume care of her.
[68] At that time it was agreed that J. be placed in the care and custody of the society for 6 months as the mother wished to plan for J. to be placed in her care. The expectation was that the mother would find appropriate accommodations, be fully trained on using J.’s medical equipment and show that she has the ability to care for J. and as well identify a second caregiver to be fully trained to care for J. The mother did become fully trained and it appears, at least in the few hours of the access visits, that she is able to meet J.’s need. However, the other expectations are still outstanding.
[69] I find that the society has met its onus to prove that there is no genuine issue requiring a trial and that the only option, given the length of time J. as been in care, is an order of crown ward with access as requested by the society.
[70] Although there is no question that the mother loves J. she has simply not been able to present a concrete plan to care for J. Despite the services the society has offered and the attempts made to assist the mother she has not been able to gather the supports necessary to meet the medical needs of J.
[71] Although there are some subtle and nuanced differences in the presentation of the society and the mother regarding J.’s needs, there is no fundamental difference. This is not a case where the court needs to assess credibility or weigh the evidence.
[72] The mother concedes that the J. requires a caregiver that is aware of J.’s medical needs and is trained to meet those needs. The mother agrees that J. requires a night nurse to monitor her breathing. The mother does not dispute that J. requires specialized equipment and that as a result she needs accommodations that are either on the ground floor or where is an elevator. The mother does not dispute that J. still requires ongoing occupational therapy, physiotherapy, speech and language therapy and that she needs to be monitored by the Hospital for Sick Children.
[73] It is the society’s position that the future needs of J. are unknown whereas the mother is much more optimistic and expects that J.’s medical needs will continue to decrease and that she will make further gains. Of course, everyone is hopeful that J. will continue to improve but at this time the court must assess her current needs and the ability of the mother to meet those needs.
[74] It is the mother’s position that she has raised a genuine issue for trial namely, that she has a viable plan to care for J.
[75] Although the court can appreciate the mother’s frustration with the bureaucracy of trying to obtain funding for training caregivers, the mother did not deny that the society had impressed upon the mother the need to train a second caregiver and that the mother was unable to find anyone to do this. The mother’s friends who now say that they will be trained do not explain in their affidavits why they did not take the training while J. was in Holland Bloorview Hospital from October 10, 2012 to April 22, 2014 when the training would have been without cost. Further, there are no specifics of their availability to assist the mother.
[76] I agree with the submissions of the society, that despite the mother’s best intentions and wishes she has simply not been able to provide a concrete plan to assume care of J. and that there is no genuine issue for trial. The mother’s plans are all contingent on obtaining funding for training and for obtaining appropriate housing. Despite the court adjourning the summary judgement motion for several weeks to give the mother with one last attempt to provide some concrete proof that she could make the necessary arrangements she was unable to do so.
[77] If this matter was scheduled for trial several months from now the mother would still not have appropriate accommodations for J.; she would still not have another adult trained to assist her with understanding and being able to meet J.’s medical needs; she would still not have a caregiver for J. as her plan for daycare requires that the staff be trained; and she would still not have funding for a night nurse.
[78] J. has been in legal limbo well beyond the statutory timelines and it is in her best interests to have a permanent placement. The mother has been given over 2 years to present a viable and concrete plan and despite her clear desire to care for J. and her love for J. she has not been able to do so.
Conclusion
[79] There will therefore be an order as follows:
The motion for summary judgement is granted.
The child J.E.F. born […], 2012 is made a crown ward and placed in the care and custody of the Catholic Children’s Aid Society.
The Respondent M.L.F., and the siblings Z.F. born […], 2008 and A.E.F born […], 2010 shall have access to J.E.F. and J.E.F. shall have access to the respondent M.L.F. and to Z.F. and A.E.F. in the discretion of the society and in accordance with J.E.F.’s medical needs.
Released: December 17, 2014
Signed: “Justice Roselyn Zisman”
[^1]: These friends/godparents swore affidavits confirming their willingness to assist and be trained