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: 2014-02-24

Court File No.: Toronto CFO 11 10639 B3

Parties

Between:

Children's Aid Society of Toronto, Applicant

— AND —

B-L & V, Respondents

Before the Court

Justice Ellen B. Murray

Heard on: February 12, 2014

Reasons for Judgment released on: February 24, 2014

Counsel

• Ms. Christine Doucet — counsel for the applicant society
• Mr. Mario Jorge De Sousa Paiva — counsel for the respondent mother
• Ms. Lisa LaBorde — counsel for the respondent father

Decision

MURRAY, E. B. J.:

[1] Introduction

[1] This is my decision on a summary judgment motion brought by the Children's Aid Society of Toronto with respect to the child B.V., born […], 2011. The respondents are the mother and father of the child, who is known by all as "C".

[2] C. was found to be a child in need of protection pursuant to section 37(2)(b) of the Act on consent on November 21, 2012. C. has been in temporary Society care for over 30 months (since July 21, 2011), a period which significantly exceeds the statutory time limit of twelve months.

1. The Parties' Positions

[3] The Society says that there is no genuine issue of material fact in this case requiring a trial, and asks for an order of Crown wardship, silent as to access for the purpose of adoption. The respondents contend that there are numerous issues requiring a trial. Their position is that C. should be returned to them under an order of supervision. In the alternative, they seek a 6-month extension of the time permitted for C. to be a ward of the Society. If an order of Crown wardship is made, they request an order for access.

[4] The Society asserts that the facts in this case clearly support an order of Crown wardship because there are numerous serious protection concerns that the parents have been unable to remedy, despite receiving the Society's assistance. Those concerns are set out below:

Society's Concerns:

• Mother's physical health. Mother has a serious seizure disorder which did not allow her to safely care for C. unassisted when he was born without 24 hour assistance. Although recent surgery may have improved her condition, her prognosis is unclear. Further, Father does not accept the limits on Mother's caretaking ability resulting from her seizure disorder.

• Father's substance abuse. Father has a history of use of cocaine and other non-medically prescribed drugs which rule him out as C.'s primary caregiver.

• Father's criminal history. Father has an extensive criminal record (53 convictions) for offences which include crimes of violence. He is periodically incarcerated. This factor would put C. at risk if Father was his primary caregiver.

• Violence and instability in the parents' relationship. Father has been found guilty of assaulting Mother three times in the past four years, and he has failed to complete any treatment related to his abusive behaviour. The parents have separated once since C.'s birth and have vacillated between planning separately and planning together.

• Parents' mental health. The Society also has concerns about each parent's mental health, because of instances in which it is alleged that each has behaved erratically.

[5] Mother's and Father's position on these issues are similar, and described below.

Parents' Response:

• Mother's physical health. Successful surgical intervention last year has meant that Mother has been seizure-free since April 2013. She is temporarily taking medications while her doctors monitor her recovery. Those medications cause drowsiness which temporarily affect her ability to be solely responsible for C.'s care. She is able to manage the child now, but requires some assistance, which Father can provide. Although the Society provided assistance to the family for a lengthy period while Mother was awaiting surgery, it has failed to offer assistance since that surgery, when it would be most helpful.

• Mother's mental health. The uncontradicted evidence from Mother's psychiatrist shows that Mother's occasionally erratic behaviour was the result of her seizure disorder. She has not demonstrated behaviour of this type since she became seizure-free.

• Father's substance abuse. Father acknowledges that he has from time to time used cocaine and other non-medically prescribed drugs. His drug use has decreased significantly since C.'s birth, he is in a treatment program and committed to recovery, and he currently is "not dependent on illegal drugs". Most importantly, there is no evidence that Father's use of non-medically prescribed drugs has ever impaired his ability to look after C. during visits, including periods in 2011 during which the child was in the parents' care for lengthy day and even overnight periods.

• Father's criminal history. Most of Father's offences are minor and non-violent, and C. would not be at risk in his care on this account. Father has "broken the patterns of my past", and it should not be expected that he will re-offend.

• Violence and instability in the parents' relationship. Each parent denies that this is a protection concern. The three occasions on which Father was charged with assaulting Mother involved misunderstandings by non-Vietnamese speaking workers or police of what was actually occurring. Since the improvement in Mother's physical and mental health, the parties' relationship has been calmer and more cooperative.

• Father's mental health. Father acknowledges that there was a brief period in the past, after C. was born and when Mother's seizure disorder could not be controlled, that he was depressed and acted erratically. That time is behind him. Father cooperated in obtaining a psychiatric assessment, as requested by the Society. That assessment states that he has no significant mental disorder.

2. The Law: Summary Judgment

[6] Rule 16 of the Family Law Rules deals with summary judgment motions. In Children's Aid Society of Toronto v. N.M., 2011 ONCJ 647, I set out the law with respect to these motions. I repeat my observations below.

Under Rule 16(4), the moving party on a motion for summary judgment has the onus of proving on a balance of probabilities that there is "no genuine issue requiring a trial." A "genuine issue" refers to a genuine issue of material fact — i.e., a fact relevant to the issues in the case.

The moving party on a motion for summary judgment should advance all the evidence that that party would present at a trial.[1]

The responding party must "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."[2] It is not sufficient for that party to simply deny the allegations of the Society.[3] Recent authority from the Ontario Court of Appeal holds that if a moving party discharges the burden of showing that there is no genuine issue for trial, that the responding party must prove that its defence has "a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence the parties would present at trial."[4]

A motions judge on a summary judgment motion should not resolve issues of credibility or draw inferences from conflicting evidence or from evidence that is not in conflict when more than one inference is reasonably available. Those functions are reserved for the trier of fact.[5]

[7] I have been guided by these principles in reaching my decision.

2.1 The Law: Disposition

[8] I review the applicable law on disposition of a case such as this, as it is this law which provides the framework for identifying what factual issues are relevant.

[9] Section 57 of the Act directs that in deciding the disposition of C.'s case that a court must decide what of the four options set out is in a child's best interests. The placement options are:

• Placement with a parent or other person subject to an order of the Society supervision;
• Society wardship for a period not more than 12 months;
• Crown wardship;
• Society wardship followed by an order placing a child with a parent or other person under the Society supervision.

[10] The court is to determine "best interests" in reference to the factors set out in section 37(3) of the Act.

[11] Before making the order, the court is to inquire as to what efforts the Society or another agency has made to assist the child and his family.[6] There are cases in which a court has refused to make an order of Crown wardship when a society has failed in this duty. The Court is also required to prefer less disruptive dispositional alternatives if those alternatives are adequate to protect the child.[7]

[12] The Act highlights the importance of timely permanency planning for a child. Section 70 of the Act provides that an order may not be made that results in a child C.'s age being made a ward of the Society if he has already been in the Society care for a period exceeding 12 months, unless section 70(4) is successfully invoked. In C.'s case, this would restrict the dispositional choices to an immediate order of supervision with one of both of the parents, or Crown wardship. However, section 70(4) provides the court may extend the statutory time limits by a period not to exceed 6 months, "if it is in a child's best interests to do so".

[13] Whether it is in a child's best interests to have the time extended is determined from the child's, and not the parent's perspective,[8] in reference to the factors set out in Section 37(3) of the Act. Society counsel, citing Justice Margaret Scott in Kawartha-Haliburton Children's Aid Society v. K.M., (2001) O.J. 5047 (Sup. Ct.) suggested that the application of s. 70(4) is limited to cases in which a small discrete task—such as the completion a parenting skills program—is involved. In my view, this is an unjustifiedly narrow reading of this case and of the statute. Justice Scott held that if the statutory time limit was to be extended, it would require an exceptional reason grounded in the best interests factors found in the Act. She found that in that case, Mother had not made progress in dealing with her parenting deficiencies and that there was no reason to think that a further 6 months of the Society wardship would put her in a position to adequately parent the child. There have been other cases in which a court has determined that, although a parent was not ready to have a child immediately placed in her care, her progress in improving parenting ability and the prospect of further significant her improvement within 6 months justified an extension of the time allowed for the Society wardship.[9]

2.2 Evidence on the Motion

[14] The evidence filed on this motion included a Statement of Agreed Facts signed by the parties on November 12, 2012, five affidavits from Society workers, and the affidavits sworn by each parent. Those affidavits had attached numerous exhibits, including Father's criminal record and related Crown synopses; hair and urine test results for Father, and an explanatory report from the Motherrisk laboratory for the hair test results; psychiatric reports for Mother and for Father; and reports from Mother's neurologist. On consent, recent reports from Mother's neurologist and from Joey Gareri, the manager of the Motherrisk laboratory, and the results of Father's recent urine tests were admitted.

[15] Although Father's counsel consented to the admission of certain evidence—Crown synopses with respect to Father's offences and the Motherrisk reports and related reports from Mr. Gareri – she argued that this evidence would have been inadmissible at trial absent proper evidentiary groundwork, which was missing on this motion. Counsel relied on these arguments in her submissions that a trial was required, so that reliable evidence on the important issues dealt with in these documents could come before the court.

[16] I accepted the record of Father's convictions submitted on this motion, as he did not dispute it. However, taking into account his disagreement with some information in the Crown synopses offered by the Society as to the facts which form the basis for these convictions, I disregarded that information. The synopses contain hearsay and were not qualified as admissible business records. Many of the statements set out in the synopses would not be admissible in a business record, as the statements are allegedly from individuals who had no duty to report. More reliable evidence as to the facts of the offences concerned would be found in the agreed statement of facts upon which the guilty pleas were founded.

2.3 Conclusion

[17] In reaching my decision on this motion, I have relied only upon facts alleged by the Society or by either of the respondents:

• which are admitted by the opposing party,
• which are not contested, or
• which are simply met with a bald denial.

[18] Based on that standard, pursuant to Rule 16(9) I have made a number of findings of fact which are set out below. I have, however, concluded that a number of important factual issues are in dispute; that there are issues of credibility with respect to factual issues that are material to the case; and that there are some issues upon which more than one inference is possible from the evidence before me, issues upon which viva voce evidence is required.

3. Findings of Fact

[19] My findings of fact are as follows.

Background and Family Information

1. Mother and Father are each 41 years of age, and were both born in Vietnam. They have known each other for approximately 15 years, and have been in an intimate relationship for approximately four years.

2. Vietnamese is the first language of each parent. They had the assistance of a Vietnamese interpreter during the argument of the motion before me. Although the evidence indicated that the Society workers sometimes communicated with a parent with the help of an interpreter, it is unclear whether this assistance was regularly provided.

3. Mother and Father live together in Toronto in a two-bedroom apartment.

4. Although Father has worked to support the family in the past, he and Mother are now supported by public assistance payments.

Mother's Epilepsy: History and at Time of C's Birth

5. Mother has suffered from epilepsy since her teen years, the result of an accident in which her head was injured. The epilepsy has caused seizures which increased in number and severity after both her pregnancies.

6. Mother gave birth to a daughter, Lillian, in 1997. She was unable to care for the child because of her seizures. Lillian was apprehended by the Society, and was ultimately placed with a cousin of Mother who adopted the child. Mother has ongoing contact with Lillian who lives approximately three hours from Toronto.

7. After Lillian's birth, Mother's seizures were relatively well-controlled by medication until she because pregnant with C. Then, their frequency increased dramatically, up to 10 times per day. During some seizures she lost consciousness.

8. Mother was depressed prior to C.'s birth because of her condition. Anxiety and worry were a trigger for her seizures. She was on a waiting list for surgical treatment of her disorder.

9. At the time of C.'s birth, hospital staff contacted the Society because they were concerned about how Mother's epilepsy would affect her ability to care for the child.

10. Mother's neurologist, Dr. del Campo, advised that "many women with epilepsy are successful mothers", and that how much the condition affects parenting ability depends on "the seizure frequency and how impaired she may or may not be after the seizures".

11. Father agreed at the time that Mother should not be left alone with the baby. He was working a night shift, and changed to day work. It was arranged that, with Father's shift change and the support from the VHA and from the Society's infant nurse specialist, Mother would have someone with her 24 hours a day.

C's Apprehension

12. On July 21, 2011 both parents were charged with assault as the result of a domestic dispute. A VHA worker was in the home at the time. Father attempted to leave the apartment in an effort to de-escalate the dispute, and Mother tried to physically restrain him. The worker described Mother as the aggressor in the interaction.

13. After the charge was laid, Father was detained for some days. Mother was unable to care for the child alone. C. was apprehended by the Society, and has remained in care since that time.

14. Charges against Mother were later withdrawn, and Father pleaded guilty to assault. Both parties say that he did in order to quickly rejoin Mother, who needed his assistance.

15. Both parents have had regular access to C., sometimes for lengthy periods in their home and sometimes supervised at Society offices. Mother has attended visits at the office when her health has permitted.

Mother's Mental State After Apprehension

16. At times Mother has exhibited erratic, even explosive behavior. She is reported to have yelled at individuals who have tried to assist her, such as the VHA worker initially placed in the home. When Mother has been disappointed with access arrangements, she has sometimes reacted with extreme emotion.

17. Society workers state that on two occasions Mother threatened to harm herself if C. was not returned. Mother admits that she was upset on these occasions, but asserts that she did not make such threats, and that she was misunderstood by the interpreter.

Visits Between Mother and C.

18. The Society's evidence about the quality of visits between Mother and C. contains conflicts.

• Ms. Briskin, the children's service worker since September 2011, makes generally positive observations of Mother's interactions with C., stating that Mother is warm and affectionate with the child.

• Ms. Chambers, the family service worker between September 2011-January 2013, states that in her interaction with C. Mother concentrated on meeting his instrumental needs.

• Ms. Ross, the family service worker for the family since March 2013, emphasizes negatives of the mother/child relationship in her affidavit. She has only observed one visit, but states that she is summarizing the notes of other observers. She states that Mother is frequently drowsy and inattentive to C. on visits, sometimes falling asleep before the end of a visit.

Ms. Briskin has observed more visits than either of the family service workers.

Surgical Intervention and Results

19. At the time of C.'s birth in 2011 Mother hoped to have surgery that was likely to cure her seizure disorder within two months.

20. Mother reached the top of the waiting list to have the procedure only in 2013.

21. In April 2013 Mother underwent the first step for treatment of her seizure disorder, the implantation of electrodes in her cranium to provide more information about the size and location of the lesion.

22. On September 10, 2013 Mother underwent the second step, surgery involving a partial section of her right lobe.

23. Although the first procedure was designed only to provide more information about her condition, Dr. del Campo reports that some patients do demonstrate a reduction or cessation of seizures after undergoing it. Mother has had no seizures since the first procedure, almost 10 months ago.

24. In a recent report, Dr. del Campo says that Mother is "proceeding very well from the medical point of view. She appears to have no significant consequence or side effects from her operation and she has derived great benefit with complete seizure freedom."

25. Mother is also being followed by Dr. Giacobbe, a psychiatrist associated with the Comprehensive Epilepsy Program at Toronto Western Hospital.

26. In a recent report Dr. Giacobbe states that the success of Mother's surgery has led to a dramatic improvement in her mental health. While prior to surgery she "was exhibiting signs and symptoms of paranoia and psychosis, which were directly linked to the expression of her seizures", since her surgery she is no longer exhibiting these behaviours.

27. Father's experience with Mother reflects Dr. Giacobbe's opinion as to her improved mental health. Father says that before Mother's surgery, they were often unable to discuss disagreements rationally. Since Mother's surgery, communication between them is much improved, and conflict has diminished.

28. Recent reports from Dr. del Campo and Dr. Giacobbe state that Mother is taking several post-operative medications which may contribute to drowsiness.

• Dr. del Campo states that it is likely that the opiate analgesic that she is taking for pain is causing the marked drowsiness, and that Dr. Giacobbe is taking steps to eliminate this medication from her regimen. Dr. del Campo noted that in his appointment with Mother on February 10, 2014 that she "appeared much brighter than usual". He had not seen her since May 2013, prior to her surgery.

• Dr. Giacobbe states that it is not expected that she will have drowsiness long-term, when all her medications are terminated. However, the anti-epileptic medications will likely be continued for at least another year.

Father's Insight into Mother's Condition

29. There is conflict in the evidence as to whether Father has always recognized the risk to C. posed by Mother's seizure disorder.

• Ms. Briskin testifies that during a visit Father prepared to leave C. with Mother, saying that he was going to get some take-out food for the family.

• Father says that Ms. Briskin misunderstood—that he was telling her that he was able to go out to get food only because she could remain in the home with Mother.

Relationship of the Parents

30. Father is described by the Society workers as being very attentive to Mother and solicitous of her welfare. Over the years he has accompanied her to numerous medical appointments, and cared for her when she has been unwell.

31. Father has pleaded guilty to charges of assault against Mother three times:

• In 2010, in an incident at Yorkdale Mall. Father and Mother both describe this incident as one of "mistaken interpretation" by the witness who called police. They say that Mother was anxious and beginning to have a seizure, and that Father was attempting to get her safely out of the mall, an attempt which she resisted because of the irrational behaviour associated with her seizures.

• In July 2011, at the time of C.'s apprehension, as described above in subparagraph 19(12).

• In February 2013, in an incident which he describes as similar to that of July 2011, one in which he wished to leave the apartment he shared with Mother during which Mother attempted to block his exit.

Father explains this and the incident of July 2011 as times when he was attempting to leave when Mother's behavior was becoming irrational and aggressive in an effort to de-escalate conflict. She describes the incidents as ones in which he was attempting to assist her while she was becoming excited, and close to having a seizure.

32. Ms. Chambers states that Mother has in the past complained to her of Father's abusive behavior, a statement which Mother denies, saying that she must have been misinterpreted. Mother deposes that she sees her relationship with Father as one of "commitment, support, understanding and love". As set out above, Father believes that the improvement in Mother's mental health as a result of her surgery has meant that conflict in their relationship is greatly reduced.

33. Father has failed to complete the PARS program that he was ordered to take after his conviction on the charge of assaulting Mother in July 2011. He attended 12-14 of the 16 sessions in the program, and stopped when Mother had to be hospitalized in December 2012. He has enrolled in another PARS program offered in Vietnamese which began in January 2014, and he pledges to complete it.

Father's Past

34. Father admits that he has abused drugs and that he has an extensive criminal record. He characterizes his most serious criminal activity and drug abuse as dating from a period prior to his relationship with Mother and prior to C.'s birth, a period in which he was estranged from his family and keeping company with "the wrong people". He points out that his last offence (other than his guilty plea to the February 2013 assault charge) was more than one year ago. F acknowledges that in the past, before C.'s birth, he abused drugs, and that it negatively affected is mental health.[10] Father asserts that, as established by a recent psychiatric report, he shows no signs of mental illness. He is working in a treatment program, and although he has suffered lapses in which he will use non-medically prescribed drugs, he is headed towards a successful management of the problem.

Father's Criminal Record

35. Father has 53 convictions, dating back 20 years. Many of these offences involve thefts, or fraudulent use of a credit card, or offences related to the administration of justice, such as failure to comply with bail conditions. Some are violent offences—in 2003, possession of a dangerous weapon; in 2005, aggravated assault; in 2008, another conviction for aggravated assault. Some charges involve possession of controlled substances. As recently as April 2011, Father was convicted of possession of cocaine.

36. Father has spent significant periods in jail, either because he has been detained after a charge, or on a sentence. For example, on the conviction for aggravated assault in 2008, Father was sentenced to "time served" of 214 days. More recently, he was jailed in March 2013 for 15 days after pleading guilty to assaulting Mother in February 2013.

37. Father hopes not to be re-incarcerated, but states that if he is that Mother will be assisted by his brother and sister-in-law. He had been estranged from them, but has become re-connected since C.'s birth.

Father's Drug Use

38. Father does not challenge the Motherrisk reports insofar as they establish that he has used non-medically prescribed drugs from time to time, although, as indicated above, his lawyer voiced concern about any attempt to establish a pattern of use and to have inferences drawn about the effect on behavior of this use without the qualification of an expert who could be cross-examined. The Motherrisk results are summarized below.

• The Motherrisk test results from March 2012, covering a period of approximately 6 months preceding the test, show trace amounts of cocaine, were positive for opioids, and negative for methadone.

• The Motherrisk test results from February 2013, reviewed in a letter from Mr. Gareri dated March 12, 2013, cover 4 1/2 months from mid-September 2012 to mid-January 2013. Tests were run for a multiplicity of drugs. The results demonstrate cocaine exposure in the high range, indicating frequent and/or intensive use of cocaine. There were also positive results for opioids (codeine, morphine, and 6-MAM), methadone and amphetamines. Mr. Gareri stated that the presence of 6–MAM provides evidence of heroin use. Mr. Gareri cautioned in his report that some individuals have legitimate prescriptions containing some of these substances, and that it was important to establish whether this was the case for Mr. V.

• The Motherrisk test results from January 2014 represent approximately 1 ½ months of drug history exposure from mid-November 2013 to late December 2013. Cocaine was reported in the medium range of exposure, a level lower than the previous test. Mr. Gareri stated that the result indicates repeated use of cocaine during the period, or much higher level use in the three months preceding the test. Opioids (codeine, 6-MAM, morphine and hydromorphine) and methadone were also reported.

39. Father has been in a methadone treatment program with Dr. Michael Lester since April 2012, in an effort to cease the use of non-medically prescribed drugs. Regular urine testing is part of the protocol of that treatment. Dr. Lester recently reported to the Society that Father's weekly urine samples since August 2013 showed cocaine in the results until mid-November 2013; since that time, results have been negative for cocaine. Dr. Lester indicates that the tests showed the presence of opioids, but that this is consistent with the prescription medicine Father receives from his family doctor for arthritis.

40. In December 2013, at the Society's request, Father began to cooperate in a random drug-testing program, Driver Check. Results from late December 2013 and early January 2014 indicate the presence of opiates and methadone. On the argument of its motion, the Society introduced the latest results from collections taken January 11, 17 and 20, 2014. All three screens continue to be positive for opiates. However, the first screen is positive for cocaine, and the last screen is negative for methadone. Father questions these results, saying that he has continued to receive daily doses of methadone, and that he did not use cocaine in the period in questions.

Father's Openness with the Society

41. Father has not always been forthcoming with the Society about his criminal history or drug use. For example, in his first contacts with family service worker Kristin Chambers, he alluded to a criminal history, but did not reveal the extent or frequency of his convictions. He reported problems with drug abuse which he maintained were all in the past; even after hair tests revealed some current drug use, Father continued to deny it.

42. Father says that his failure to be completely open with the Society on these topics stems from shame at his past, and his fear that he will be pre-judged as a "bad person" if these facts are revealed before someone gets to know him. Father says that he knew that Ms. Chambers would learn the extent of his criminal record because he signed consents allowing her to talk to his probation officer. Although he has in the past denied drug use when he has been using, he says that he is now committed to continuing in treatment with Dr. Lester, and being free of drug abuse.

Father's Care of C.

43. C.'s parents have enjoyed extensive access with him since his apprehension. Father provided most of the care during these periods, initially because of Mother's seizure disorder and more recently because she is recovering from brain surgery. C. had overnight access at home in February 2012. He has been with his parents for times as long as eight hours a day, largely unsupervised by the Society staff, at home and in the community. The particulars are set out below.

Access Schedule:

• Apprehension-Sept. 2011: Supervised at Society offices
• Sept. 2011- Feb. 2012: 3x/wk., 2 hrs. pick up at CAS and in community
• February 2012: Access in home, overnights
• Feb. 2012-July 2012: 3x/wk., in community
• July 2012-Aug. 16, 2012: In home, unsupervised, 18 hrs./wk.
• Aug. 16, 2012-Oct. 3, 2012: In home, unsupervised, 3x/wk., 10 a.m.-1 p.m.
• Oct. 3, 2012-April 2013: At the Society, 2x/wk., parents separate
• April 2013-present: At the Society 2 hrs./wk. Since Nov. 2013, semi-supervised at Access centre.

44. C. looks forward to visits with his parents. They are positive experiences for him.

45. Society staff agree that Father provides good care for C.

• Father meets the child's instrumental needs—e.g. for food, hygiene, appropriate naps, etc.
• Father is generally alert to safety issues for the child. There have been no health or safety concerns reported on C.'s return to the foster home following visits.
• Father is warm and affectionate and playful with C.
• Father knows how to read C.'s cues.
• Father understands C.'s need for social stimulation. During home visits, Father sought out and used age-appropriate resources, taking the child to the YMCA and an Early Years Centre.
• C. goes to Father when he requires comfort during a visit—a sign of attachment.
• Father sometimes speaks to C. in Vietnamese, to preserve the child's connection to his heritage.

46. The Society provided a Family Support Worker to work with the parents from time to time during access in the home from July to October 2012. The worker reported that both parents demonstrated "an ability and willingness to learn and incorporate new caregiving skills and practices" in their interactions with C. According to family service worker Ms. Ross, the service was terminated because "there were no issues" concerning Father's access to C.

Changes in Visiting Regime

47. Changes in the visiting regime have occurred for a variety of reasons.

• Up until February of 2012 the Society was working to return C. to his parents, planning that Father would be the primary caregiver.
• In February 2012 Ms. Chambers received more information about Father's criminal record, followed by the results of the first drug test in March 2012. The Society began to rethink its plan, and cut visits back.
• In July 2012 more extensive visits in the home commenced because of a court order.
• In October 2012 visits reverted to Society office visits after Father was arrested and detained on a charge of theft under. This triggered a 4-month separation between the parents, and, Father says, a lapse in his recovery from drug use.
• In October 2012 the Society changed the location of visits from their offices to the Saturday access program (CAP), which is semi-supervised by volunteers.

48. The Society changed the location for visits shortly after Mother had undergone her brain surgery. The new location is much farther from the family's home than the former location (the Society's downtown office). The family does not have a car. Their travel time is longer and more walking is required, as the new location is not convenient to the subway. Mother has found the trip difficult, particularly in cold weather, and feels that the lengthy trip contributes to her tiredness on visits.

49. Father questioned the change in location of visits, and Ms. Ross replied that the downtown CAP location was "full".

C. is Bright and Healthy

50. C. is a healthy, bright, energetic child. He has been placed with the one foster family during the time that he has been in care.

Relationship Between Parents and the Society and Foster Parents

51. The parents have maintained a good relationship with the foster parents, and during home visits worked to insure that C. had the same routines with them as he did in the foster home.

52. Last year, Society staff told Father that the foster parents wished to adopt C. Father states that this news initially made him feel mistrust, because he thought that he had a good relationship with the family and they knew that he and Mother wanted C. home. Father says that he now understands that the Society gave him this information because they wanted to present him with the option of an openness agreement or order if C. became a Crown ward and was adopted. He has apologized to the foster family, and feels that he continues to have a good and cooperative relationship with them.

53. The foster family have advised the Society that they do not wish to proceed with a plan for adoption if C. is made a Crown ward, and have observed that it might be preferable for the child if a Vietnamese adoptive family were available.

54. There have been times prior to her surgery when Mother was angry and irrational with the Society staff; those episodes have not recurred since surgery. There have been three occasions when Father has become emotional, and spoken out to the Society staff in ways which they perceive to be angry—for example, when Father protested the change in visit location because of Mother's condition.

55. Father explains that on these occasions he has become emotional because of the difficulties in the family's situation, but that he has always apologized to staff, for any outburst by himself or mother. Society staff acknowledge this, and report that generally he and Mother have been polite and respectful when dealing with them.

4. Analysis and Directions

[20] The outcome of this case is not "a foregone conclusion".

[21] There remain a number of factual issues which should be resolved at a trial involving viva voce evidence, either because there are questions of credibility or because there is conflicting evidence on a relevant issue. There is also an issue about what inferences can be drawn from certain facts offered in evidence, facts that at this point allow more than one logical inference. Further, much evidence presented by the Society and by the parents on important issues in this case (Mother's health and Father's drug use) is in essence expert evidence, offered without the qualification of the expert and without the opportunity for the opposing party to cross-examine. In my view, viva voce evidence is required for the court to have a better understanding of that evidence—its meaning and its limitations.

[22] I set out below the issues which in my view require a trial.

Issues Requiring Trial

Mother's Health and Functioning

Mother's seizure disorder, the major impediment to her parenting of C., appears to have changed dramatically and for the better in the last few months. More information is needed on her prognosis and timeline for recovery, and specifically on what medications are contributing to her drowsiness. Information is needed on the progress made in eliminating or reducing her intake of opioid analgesics, which Dr. del Campo identified as the likely cause of significant drowsiness.

Available Assistance for Mother

More information is needed about what assistance Mother needs to parent C. now, and which she may require in the future when her dependence on medications which diminish her alertness is eliminated. Although the Society offered significant assistance to the family early in the case, none has been offered since Mother's surgery. What has the Society done to assist the parents in organizing other supports, from family or from the community?

Pattern and Particulars of Father's Drug Use and His Treatment Plan

It is clear that Father has used non-medically prescribed drugs for a considerable period of time. There is some conflict in the various test results as to the pattern and level of his usage.

Effect on Father's Caretaking Ability of His Drug Use

What risk does Father's continued use of drugs present if he is C's primary or secondary caregiver? How safe a support can Father be for Mother? This evidence was absent from the material presented on the motion.

Stability of the Relationship Between Father and Mother

Is domestic violence an issue in this relationship? The parents are planning together, and the stability of their relationship is obviously an important issue. I have set out above the explanations that Mother and Father give of the 3 incidents in which he pleaded guilty to assaulting her, explanations which the Society does not accept, given other statements they say were made to them by Mother. Although an individual may be prevented by the doctrine of abuse of process from denying facts which grounded his guilty plea,[11] this may be a situation in which such evidence would be permitted. Even if there were incidents of violence between the parties, has the improvement of Mother's mental health since surgery reduced sources of conflict so that the likelihood of further violence is much reduced?

[23] The answers to all these questions will assist a court in determining whether it is in C.'s best interests to be returned to his parents now under an order of supervision, or to remain for a further brief period as a the Society ward, with a status review to take place at the end of that period, or to be made a Crown ward.

[24] The facts which I have set out above are findings of fact for the purpose of the trial. I direct that the trial shall take place before me, if scheduling permits. I direct that a trial management conference take place before me.

[25] Last, I order that pending the trial that the parents' access shall take place at the Society's downtown location for CAP or, if the parties can agree, in the community or at home, and that a worker from the Family Support program be provided to work with the parents on visits.

Released: February 24, 2014

Signed: Justice E. B. Murray

Footnotes

[1] Windsor-Essex Children's Aid Society v. S.M.D., 2011 ONCJ 311, O.J. 2858 (C.J.)

[2] Rule 16(4)

[3] E.G., Children's Aid Society of Toronto v. K.T., O.J. 4736 (C.J.)

[4] Toronto-Dominion Bank v. Hylton, 2012 ONCA 614. Although this case deals with R. 20 of the Rules of Civil Procedure, the rationale is applicable to case under R. 16 of the Family Law Rules.

[5] Julott v. Julott, O.J. 1392 (S.C.)

[6] S. 57(2) C.F.S.A.

[7] S. 57(3) C.F.S.A.

[8] Kawartha-Haliburton Children's Aid Society v. K.M., (2001) O.J. 5047 (Sup. Ct.)

[9] E.g., Children's Aid Society of Toronto v. L.U., 2007 ONCJ 741, O.J. 5549, upheld on appeal at , O.J. 2170 (S.C.)

[10] E.g., in 2009 Father was taken by police to hospital under the Mental Health Act when he was found acted erratically on a street.

[11] See, for example, Native Child and Family Services v. T.C., 2010 ONCJ 221