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: 2015-04-16

Court File No.: Chatham-Kent 208/11

Between:

Chatham-Kent Children's Services, Applicant

— AND —

J.D., and C.C.J., Respondents

Before: Justice Lucy Glenn

Heard on: January 20, 2015 and January 27, 2015

Reasons for Judgment released on: April 16, 2015

Counsel

Mary Jane Moynahan — counsel for the applicant Society

Jotan K. Foster — counsel for the respondent father

No appearance by or on behalf of J.D., even though served with notice

Reasons for Judgment

Glenn J.:

[1] This is a Summary Judgment motion arising out of a Status Review application which pertains to the child, M. born […], 2012. The Society asks that this court make her a Crown ward with no access to the parents.

[2] The mother is in default and has not put forward a plan for the care of the child. The father on the other hand, asks that the child be placed in his care subject to supervision.

[3] With the exception of 16 days, the child has been in the care of the Society since soon after her birth. At the time of the release of this decision, the amount of time she has been in care is about 32 months.

The Law Regarding Summary Judgment Motions

[4] Rule 16 of the Family Law Rules pertaining to Summary Judgment motions contains the following sub rules:

a. Sub rule (4) states: The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

b. Sub rule (4.1) states: 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.

c. Sub rule (6) states: If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

Undisputed Facts

[5] At the start of the father's argument his counsel suggested that the court should only making findings of fact related to the mother who is in default and that any determinations about the father should be left for trial. I do not agree. It was apparent that there was no dispute as to the following facts.

[6] At the outset it should be recalled that as a result of an earlier protection proceeding which resulted in an order dated September 22, 2014, the child was brought out of the care of the Society and placed with the mother (effective September 24, 2014) pursuant to terms of supervision. By October 7, 2014 the mother had abandoned the child to someone else's care. This Status Review proceeding was immediately started thereafter and by October 10, 2014, the child was back in the care of the Society.

[7] The history of this case is best stated by setting out the text of the order of September 22, 2014 as it related to the protection finding and the factual underpinning for that finding, all of which arose from a Statement of Agreed Facts signed by the parties. At the time, it related not only to M. but also to their other child A., born […], 2011.

[8] On September 22, 2014 the Court found that both M. and her brother were in need of protection pursuant to Section 37(2)(b)(i) of the Child and Family Services Act (hereinafter called the CFSA). The reasons for this finding as agreed to by the parties and recited by the court were:

(a) The mother and father have a long history with the Society dating back to 2006, regarding the subject children's three older siblings (who are not the subject of these proceedings and who were made Crown wards).

(b) Judicial Findings have been made against the mother and father.

(c) The previous Judicial Findings have included the following:

(i) The mother and the father struggled with residential and financial instability.

(ii) The mother and the father engaged in the use of marijuana.

(iii) The mother and the father struggled to consistently attend to the needs of all three children.

(iv) The mother and the father were assessed to lack the ability to meet the needs of their three children.

(v) The mother and the father were assessed with significant cognitive limitations.

(d) The subject childrens' three older siblings were made Wards of the Crown for the purpose of adoption on July 21, 2011.

(e) On December 15, 2011, the father tested positive for Carboxy THC at a level of 13.2 pg/10 mg.

(f) In July, 2011, the mother was admitted to "Fresh Start" maternity home with the child A. Two weeks later the child A. was apprehended when the mother left the maternity home with the child without permission. The maternity home "Fresh Start" would not allow the mother to return. The child A. has been in care since that time.

(g) The child A.'s meconium results from Sick Kids Hospital were positive for 80.00 ng of cannabinoids.

(h) On April 26, 2012, the mother tested positive for CarboxyTHC at a level of 22.3 pg/10 mg.

(i) On April 26, 2012, the father tested positive for CarboxyTHC at a level of 32.2 pg/10 mg.

(j) The mother continued to use marijuana during her pregnancy with her fifth child M., failed to admit the pregnancy to the Society until May 15, 2012, failed to obtain prenatal care for the first six months of the pregnancy and failed to admit the pregnancy and marijuana use to Dr. McGrory during the Parental Capacity Assessment interview of March 2, 2012. The Child M. was apprehended on […], 2012 and placed in the care of the Society. The child M. has been in the care of the Society since that time.

(l) The father sought residential addiction counseling on October 1, 2012 and graduated from Brentwood.

(m) The mother sought residential addiction counseling on February 4, 2013 and graduated from the House of Sophrosyne.

(n) In June 2014, the mother's hair sample drug test was negative for alcohol and marijuana.

(o) The mother and father participated in a further parental capacity assessment with Dr. Jay McGrory. Dr. McGrory's report dated August 7, 2012 stated that "Given the chronicity of the difficulties, the evasiveness of the parents and the amount of time that he has been in Society care, it does not appear that A. can be successfully integrated back to his parents' care. From a parenting perspective, my overall impression is that it may be possible for (the mother) to care for one child. With more than one child I believe she will struggle while attempting to maintain an appropriate level of adaptive functioning. This conclusion is based on the above factors as well as the fact that she has weak parenting skills and knowledge.

(p) On November 15, 2012, the mother and father began unsupervised access with M.

(q) On August 30, 2013, the mother and father began unsupervised access with A.

(r) The mother and father struggled with the expanded joint access of the children. The mother and father were evicted from their home in July of 2014 and separated on August 20, 2014 during a disagreement while the children were present.

(s) The children have behaviours such as spitting and swearing.

(t) The mother recognizes the challenge of meeting the needs of both children on her own.

(u) The child A. has been in the care of the Society since […], 2012 and requires permanency. He is attached to his foster parents, with whom he has resided since September 2011 and who wish to adopt him, which is in his best interests.

[9] Accordingly on September 22, 2014, this court ordered that A. be made a Crown ward with no access to the parents. Further, M. was placed in the care of the mother for a period of six months subject to the supervision of the Society.

[10] In addition, the father was granted the following access to M. on the basis that it would be as arranged by the Society which may be supervised by the society or its designate and offered a minimum of once per week, for six weeks to permit the Society to inspect his home. The wording of the order articulated that:

It is acknowledged and agreed that the father will be offered community access to the child, M. in Chatham at the Ontario Early Years Centre on Saturday morning. It is the intention of the parties that the father's access will be expanded to his home for alternate weekends once the Society receives approval from Windsor-Essex Children's Aid Society regarding the suitability of the father's home and approval of the occupants in the home where he was residing, and the father has initiated anger management services. His access is subject to the following terms and conditions:

a) The father shall participate in random hair and/or urine sample drug testing at the discretion of the Society.

b) The father shall sign all necessary forms of release as requested by the Society and with approval from counsel.

c) The father shall notify the Society two weeks in advance of any change in address or contact information.

d) The father shall not attend access while under the influence of illegal substances or alcohol.

e) The father shall not swear in the presence of the child.

f) The father shall participate in anger management counselling and continue to follow through with recommendations of his addiction treatment.

g) The father shall continue to live separate and apart from the mother.

[11] It is important to understand that at the time that the above order was made, this case had been on a trial list since November of 2013 and that prior to what was to be the first day of trial on September 22, 2014, as set out above in the findings of the Court, there had been a lengthy period of expanding access in order to facilitate a reintegration of the children into the parent's care. Their eviction in July of 2014 and their separation at the end of August of 2014 completely derailed this process.

[12] Further, soon after the separation of the parents, the father moved away from Chatham to Windsor, Ontario and began living with his brother and his brother's spouse, (the paternal uncle and aunt). When he left the jurisdiction, there was no suggestion that if one child was being placed with the mother, then the other child could be placed with the father. Rather, the parents agreed in the Statement of Agreed Facts that one child would be placed with the mother and the other child would be made a Crown ward.

[13] After the consent order was made, the child was actually placed in the mother's care on September 24, 2014 and by October 7th, 2014 (thirteen days later) the mother told the Society that "You don't understand; I just can't do it anymore. I can't handle M.. She won't eat for me, she won't sleep for me, she throws fits all the time." Because of this the mother in effect abandoned the child by unilaterally, in her words, "signing her rights over" to the paternal aunt and uncle which were the people that the father was living with in Windsor.

[14] The Society immediately commenced this status review application and by October 10, 2014, this court had ordered that M. be placed back into the care of the Society and directed that the parents have access to the child as arranged by the Society and supervised by the Society with a minimum of one visit per week.

[15] Indeed the child was placed back into the same foster home where she had lived since her apprehension in […] of 2012, with the exception of the short period of time in September and October of 2014, mentioned above. These foster parents wish to adopt M.

The Mother's Access Since the Child Was Taken Back Into Care

[16] In addition to the facts set out above which were not in dispute, there was also no dispute that since the beginning of this Status Review Application, the mother has not had any visitation with the child except for one visit. She has also told the Society that she was not going to fight for the child and that the child should remain with the foster parents because that is where she belongs. The mother has not taken part in these proceedings and is in default.

The Father's Access Since the Child Was Taken Back Into Care

[17] Of critical importance in this case is the simple and undisputed fact that the father has not had a single visit with M. since the she was ordered back into the care of the Society on October 10, 2014. There are other undisputed matters regarding the lack of contact that the father had with his child.

[18] While the father claimed that he provided significant care for the child during these four days the child remained with the paternal uncle and aunt, he provided no details as to exactly what he meant. In any case, it is a stunning and unassailable fact that from the date the child was brought back into care on October 10, 2014, he has not attended a single access visit with his child.

[19] This is not because the Society was not ready to facilitate access. The father did not dispute the evidence of the Society that on November 12, 2014 the Worker met with the father and asked him about going to access with the child. The father advised that he had several appointments and was struggling to get enough money to live on. He told the worker that he would contact her when he got settled and then access could be scheduled. Later that day the father told the worker that he wanted what was best for M. and he believed that she should stay where she was (with the foster parents). He also told the worker that he would call her when he was ready to attend access but right now he had several appointments and was overwhelmed. He also stated that he wanted to get his finances in order.

[20] It is noteworthy that these conversations took place at the courthouse in Chatham and that there were other times that he was present in Chatham, however there was no indication that he ever attempted to ask for a visit with his daughter even when he was physically present in this city.

[21] This is significant because the father also attempted to explain his failure to visit the child because he lacked the funds to make the trip to Chatham. Not only did he not visit with his child when he was here, but he chose to move away from Chatham knowing that he was supported by welfare and that by moving this far away the cost of transportation would be a limiting factor with regards to his ongoing access with his children. Further, the Society even offered the father gas vouchers to help offset the cost of transportation between Windsor to Chatham so that he could visit with the child. However, even this did not result in there being any visits.

[22] Further indications of his lack of commitment to the child are also undisputed by him. During a conversation that he had with the worker on December 4, 2014 he was asked if he was serious about having M. placed in his care. He said "no" but went on to state that he didn't want to seem like he didn't care about M. or was just giving up on her. In spite of his not asking the worker to set up access visits, at one point he reported that he had left numerous voicemail messages with the worker about requesting access. When confronted by the worker about why he would say such a thing when it was not true, he told her that he really didn't know why he had said this.

[23] In his responding affidavit he now claimed that he had left a message for the worker on December 23, 2014 regarding the scheduling of access. This is contrary to the evidence of the worker. However, in my view even if this were found to be true after a trial, this one glimmer of interest on his part would not have any significant impact on the profoundly troubling questions surrounding his weak commitment to maintaining contact with the child.

The Father's Mental Health Issues

[24] The father's evidence also suggested that he was suffering from depression and mood swings which hindered his ability to make the effort to travel to access visits. However, he hastened to say that he was merely suffering from "situational depression". The suggestion was that these difficulties were transitory and would not have any lasting impact to prevent him from parenting the child. Counsel for the father argued that questions about the severity of the father's mental health represented a triable issue. I do not agree.

[25] No medical reports were filed by him to verify any aspect of his current mental health issues. Counsel for the father suggested that the Society should have obtained and filed a psychiatric assessment of the father. However, the father had a psychiatrist who he was seeing, and given that it was up to him to put his best foot forward in providing evidence in this Summary Judgment motion, he should have provided his own evidence about his mental health difficulties. The reality is that there is no expert evidence that supports the father's claims that his depression will resolve itself soon.

[26] Further, there was good evidence filed with the court by the Society to support the contrary proposition that the father has had long-standing mental health problems that would interfere with his parenting ability. The assessors who completed four previous Parental Capacity assessments (referred to below) have made numerous observations and comments about the father's significant mental health problems including difficulties with anxiety and stress dating back to an assessment completed in 2005. His mental health concerns are not a recent or a short-lived problem for him. It may be that the recent separation of the parents has had a negative impact on his mental health but we are also dealing with a man who has demonstrated long-term mental health problems in any case. The indications are that his mental health problems are not going to go away soon.

Father's Anger Management Issues

[27] The father has long been identified as having anger management issues and it was a term of the September 22, 2014 order that he engage in counselling for this problem. Indeed it was a prerequisite that he start anger management counselling before his weekend access could commence. However the father pointed out that the Society was to have sought out appropriate counselling for him in Windsor but failed to do so. As such, it was suggested that he should not now be held responsible for failing to have engaged in this counselling.

[28] While there may be some truth in this argument, it was clear by October 10, 2010, that any thought that the father would be getting weekend access was sidelined since the court ordered that both parents would now only have supervised access to be offered once per week. Further, there was no indication that he had followed up with the Society about enrolling in this counselling or that he had done anything to arrange it himself. Indeed he was not even attending access visits. The bottom line is that as at this time, the father has not addressed this important issue. Running a trial to determine who was at fault for failing to facilitate the anger management counselling would only cause further delay in finding a permanent placement for the child.

Father's Parenting Ability

[29] Even though as recently as the summer of 2014 the Society was attempting to reintegrate both M. and A. back to the care of both parents, it appears that it was the mother who was the primary caregiver to the children. In this regard, the Statement of Agreed Facts signed by the parents in support of the order of September 22, 2014 recited observations of the Protection Support worker to this effect. Further, the affidavit material filed in support of this motion quoted the mother as claiming that the father didn't do anything to assist with the care of the children and that she did it all. While this might not be a perfectly accurate statement, it is noteworthy that there were a number of occasions when the mother was observed to be the primary care giver of the child.

[30] The father has been the subject of four Parental Capacity Assessments. The first one that took place in October of 2005 by Dr. Ross C. Psych concluded that he did not have the cognitive capacity to raise their child independently. However it went on to suggest at page 13 that if the two of them were to function conjointly and be provided some degree of supervision/assistance on an ongoing basis for the first year of the child's life, they could function reasonably well.

[31] The second PCA took place in December of 2007 by Dr. McGrory Ph.d., C. Psych. At page 9 of that report he noted that while the mother appeared to have the requisite basic parenting skills and knowledge, the father however, had very weak parenting skills and knowledge. That assessment also recognized that the father was experiencing fairly significant psychological difficulties. It concluded that he typically was overwhelmed on an emotional level and exhibited poor coping skills. At that time the assessor concluded that given the father's mental health issues and weaknesses in terms of parenting functioning, he was not certain that it would be appropriate to leave the children in his care for extended periods of time (ie more than two hours).

[32] The next assessment was completed by Dr. McGrory again in November of 2010. In that very brief report, Dr. McGrory reviewed the supervised access notes for the parents between December of 2007 and April 2010 at the request of the Society. I recognize that there may be limitations in taking an approach like this as the basis of an expert opinion, however for what it is worth, Dr. McGrory's conclusion was that the father appeared to be quite limited in terms of parenting skills and motivation. Generally the father did not exhibit the requisite skills required to care for the three children who were the subject of the inquiry. A specific observation of Dr. McGrory was that based upon the father's presentation during visits, he would have concerns with respect to the father's bond, attachment and commitment to the children.

[33] The last PCA took place in […] of 2012 and once again was completed by Dr. McGrory. This assessment, once again recognized the previous parenting issues that had applied to both parents. At the time they were both engaging in illicit drug use and the assessor indicated that neither parent should have the child in question (A.) placed in their care until they were substance free. It went on to state that while it may be possible for the mother to care for one child, she would likely struggle if she had to care for more than one child. With regards to the father, he reported that the father presented as so agitated, overwhelmed and distressed at the first meeting, that he could not complete the interview. When they met again, Dr. McGrory commented on the father's demonstrated frustration and lack insight and further commented that his responses to more complex parenting situations lacked sophistication and for the most part were concrete. He stated that the father would likely tend to be overwhelmed when faced with more complex parenting scenarios. Dr. McGrory concluded that the father continued to struggle with low frustration tolerance, poor coping skills and weak problem solving and that the father's involvement with the mother was likely to act as a negative distraction or influence to her going forward.

[34] It was quite clear that the assessors believed that the father lacked the requisite parenting ability to care for a child independently.

The Need for a Fifth PCA and a Trial for Father to Establish His Improved Parenting Ability

[35] Counsel for the father suggested that there had not been a Parental Capacity Assessment completed on the father since 2012 and that an updated report should be ordered before making any determination about his ability to parent the child. Counsel for the father argued that he had worked hard to complete numerous programs regarding parenting, drug treatment, anger and stress management, all of which predated the September 22, 2014 order. It was pointed out that just a few months ago, the Society was prepared to place both children in the joint care of the father and the mother. Further, when the parents separated and the child was placed in the care of the mother, the father was granted extensive every-other-weekend access. She suggested that given these facts there must have been some significant improvements made by the father in his parenting ability. Further, even though the Society was suggesting that the father lacked the cognitive ability to properly parent the child, the 2012 assessment did not identify this as a parenting issue.

[36] Accordingly, Counsel for the father argued that he should be given the opportunity to have his day in court and a chance to demonstrate that he could parent the child independently after an updated Parental Capacity Assessment could be completed and trial on this issue take place.

[37] In my view this should not happen because:

(a) It is well documented that there was an improvement made by the parents after the 2012 assessment when they demonstrated that they were no longer using marijuana. There never would have been a consideration of returning the children to the parents if this had not happened. However, the facts of this case indicate that the father's parenting problems go far deeper than simply the use of this drug.

(b) All of the programs and courses taken by the father mentioned above predated the order of September 22, 2014. In spite attending these programs, his actions since the August of 2014 not only confirm the negative opinions expressed by the assessors but also demonstrate that whatever he learned from these courses did not do him much good. In particular, the father continues to demonstrate that he suffer from stress and mental health problems and, as articulated in the 2010 assessment, he has clearly demonstrated that he has a problem with his bond, attachment and commitment to the child. Further, as articulated in both the 2007 and 2012 assessment, the father's recent choices demonstrate that he is overwhelmed on an emotional level, has poor coping skills, has low frustration tolerance and weak problem solving abilities. This is not a case where the father has demonstrated that he is beginning to show improvement in his parenting function as suggested by his counsel. Rather, the reverse is true.

(c) While the assessors always looked at the parents as a team, it is absolutely clear that it was the mother who was viewed as being the capable parent and conversely that the father was not. There was never any suggestion by the assessors or by the Society that he could do it on his own. Indeed, the 2012 assessment viewed the father's involvement with the mother as a hindrance to her ability to look after a child.

(d) While it may be true that the 2012 assessment did not explicitly comment on the cognitive challenges of the father, it is clear that the assessment of the father's parenting ability was most unfavourable. It appears that his cognitive abilities were addressed in the 2005 assessment. Even though 10 years have gone by since then, cognitive ability is not something that is likely to change much over time. Once again, the father's parenting problems go much further than simply having a deficit in cognitive ability.

(e) With regards to the suggestion that the father must have made significant parenting advances as he was give alternate weekend access under the September 22, 2014 order, it must be remembered that there were a number of prerequisites to his obtaining access on this scale. He was to be offered access at the Ontario Early years Centre on Saturday morning for the next six weeks after the order was made. During the six weeks, the Society would inspect his home. If his home was approved and also after he had initiated anger management services alternate weekend access could start. As mentioned above, as yet, he has not engaged in this counselling. In any case, even if he got to the point of having access on alternating weekends, it is indisputable that the once unsupervised access that he was getting before he and the mother separated was changed in the order of September 22, 2014, such that his access would be supervised at the discretion of the Society. One wonders just how far down the road he would ever have gone with his access in any case, since he hasn't even chosen to see his child since she was taken back into care in October of 2014.

(f) Lastly, we are more than out of time. After almost three years, this very young child needs permanency and the legislation demands it. There is nothing to be gained by doing a fifth Parental Capacity Assessment or a trial on the issue that the father's parenting abilities have improved. It is a hollow argument for the father to suggest that he should have his day in court to demonstrate that he could successfully parent his child when he won't even go to a visit with her. There is no chance that the father would success in convincing a court that he was now capable of parenting this child on his own.

Evidentiary Issues Raised by the Father

[38] Counsel for the father also suggested that the Parental Capacity Assessments should not be relied on since they were filed as exhibits to the Worker's affidavit and that the reports were therefore hearsay in nature. While this is true, I am not prepared to exclude them.

[39] Firstly, I note that Counsel for the father relied on portions of some of these reports where she felt it supported her argument.

[40] Both assessors are well known to this court as they complete most of the Parental Capacity Assessment that are ordered in Chatham-Kent. Each of the photocopied reports contains the signature of the assessor at the end of it. The reports have been relied on by the court in earlier proceedings including the order of September 22, 2014. Under s. 50(1)(b) of the CFSA, each of these reports are admissible into evidence should I find them to be relevant, which they clearly are.

[41] Further, under Rule 16(5) of the Family Law Rules I am not required to find that they are inadmissible. Rather the rule reads: "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."

[42] I would note that while the father suggested that his parenting abilities had changed since the last Parental Capacity Assessment was completed, he did not dispute anything in the actual reports. Since there is no dispute raised about the contents of these reports, and given that I find the reports as filed to be reliable, I am not prepared to draw unfavourable conclusions regarding them.

[43] Counsel also raised concerns about the hearsay quality of the Society's affidavits at tab 9 paragraphs 26, 28, 29, 30, 31, 39, 40, 42, 53 and also tab 10, paragraph 90. Without having to delve into the acceptability or lack thereof of the hearsay nature of any of these paragraphs, I note that the contents of these paragraphs are not disputed and for the most part do not affect the outcome of this motion in any case. As such, I do not draw any unfavourable conclusions regarding them.

[44] Filed as part of the evidence of the Society was an affidavit of the foster mother. She testified to number of incidents and behaviours of the child that might have been interpreted as suggesting that the child would be better off living with them as opposed to the parents. Much of the evidence related to observations that predated the order of September 22, 2014 and as such, I ruled that this body of evidence was inadmissible for the facts that were alleged. However counsel for the father found some discrepancies in her evidence and pointed out contradictions with the evidence of the father. As such I allowed her to made submissions that would go only to the question of the foster mother's credibility as it related to the foster mother's admissible evidence. In doing so, counsel for the father strongly argued that a trial would be required to properly to determine the degree to which the foster mother's credibility could be impugned and the impact that this would have on her admissible evidence. I do not agree.

[45] In my view, the only thing of importance in the Foster mother's affidavit is that she and her husband wish to adopt the child. That informs me as to the broader plan of the Society. That fact was not in dispute and we don't need a trial to establish it. I do not require evidence about the child's reaction to returning to the home of the foster parents when she was placed back with them on October 10, 2014 in order to determine all the issues in this case. Therefore, even if I was persuaded at a trial that there were credibility issues pertaining to the Foster mother, it would not make any difference to the outcome of this case.

Conclusion

[46] In my view the Society has met the burden that there is no genuine issue for trial regarding the finding of protection, the factual underpinning for that finding or the disposition of this matter. There is no chance that the father can succeed against the Society's case in this regard.

[47] In my view the child continues to be in need of protection pursuant to section 37(2)(b)(ii) and also section (i) of the CFSA. The reasons for this finding are:

a. The mother has abandoned the child.

b. The father lacks the parenting ability and commitment to care for this child independently. He has a long history of parenting deficiencies that have resulted in all of his other four children being made Crown Wards.

c. The father through his own choice has not had any access with the child since she was taken into care by the Society on October 10, 2014. The child who is only about two and one-half years old would virtually need to be reintroduced to the father after his long absence from her life.

d. The father currently suffers from depression and mood swings which further hinder his ability to care for the child.

e. Historically, anger has been identified as one of the father's issues. He was ordered to engage in anger management counselling in the order of September 22, 2014, and to date has not done so.

Disposition - The Father's Plan

[48] Having found that the father is not capable of parenting the child on his own, there really is no hope that he will be successful in advancing his proposal to have the child placed in his care.

[49] I would go further though in my comments. Although the father claimed that his plan was that the child would be placed with him and that he would live with the child at the home of the paternal uncle and aunt, there was no confirming affidavits from them that they were agreeable to this arrangement or even that they might act as supports to him. He also presented no evidence as to who else lived in this residence, whether any of these people had special needs, what impact any of them might have on the father or the child. Although the Society's application originally was that the child would be placed in the care of the paternal uncle and aunt on the first return date, the court was not in agreement with this and immediately placed the child back into the care of the Society. Details about the make-up of this family and the reasons why the court made this order were not presented during argument of this motion. However, it is noteworthy that father's alternative plan (in the event the Court did not place the child with him) was that the child would be placed with the paternal uncle and aunt. This alternate plan was withdrawn during the course of the argument. The father did state that he had supplies for the child and that they would be financially supported by his ODSP.

[50] Given that the father would obviously be on his own in his attempts to parent the child and in particularly given that he has been found not to have the ability to parent this child on his own, his plan of care has no hope of success at a trial.

[51] The only other plan before the court is that of the Society's and accordingly the child will be made a Ward of the Crown.

Access to the Parents

[52] Access is dealt with in the CFSA under sections 58 and 59. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2) creates a presumption against access where the child is a Crown Ward and goes on to create a two part test under section 59(2.1) which requires one to show that the relationship between the parent and child is beneficial and meaningful to the child and also that access would not impair the possibility of adoption. The rebuttable presumption under s. 59(2.1) is conjunctive, and in this case the father would have to rebut both elements of s. 59(2.1) or the access cannot be ordered.

[53] Even if a parent can rebut the presumption, it does not automatically mean that an access order will be made. The person seeking the access still has to show that the proposed access is in the child's best interests under s. 58(1). It is only when one gets through the narrow gateway of section 59(2.1) that the wider best interests test of section 37(3) becomes open for discussion.

[54] Although the father provided positive evidence about the nature of the parents' access to the child before the order of September 22, 2014, since the child was taken into care on October 10, 2014, the mother has only seen the child once and has not taken part in these proceedings. She has abandoned the child and clearly does not want further contact with her. The father has not even seen the child once. So far as the father is concerned, one could never conclude that an access order in favour of the father would either be beneficial or meaningful to the child when he won't even go to see her.

[55] The foster parents have expressed the desire to adopt this very young child. There would be no purpose served in granting an access order in favour of the father, given that he doesn't go to visits and indeed, it would only impair the adoption of this child by creating further delays necessitated by the service of notices under s. 145.1.1 and possible further proceedings under s. 145.1.2 for an Openness Order under the CFSA. A permanent placement of this child has been delayed long enough.

Order

[56] Accordingly order to go that:

(a) The said child will be made a Ward of the Crown and placed in the custody of the Society.

(b) There will be no order for access by either parent to the child.

Released: April 16, 2015

Signed: "Justice Lucy Glenn"