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 45(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.

Court Information

ONTARIO COURT OF JUSTICE

DATE: June 12, 2015

COURT FILE NO.: C53894/11

BETWEEN:

Children's Aid Society of Toronto Applicant

— and —

A.G. (mother) A.B. (father) Respondents

Before: Justice Roselyn Zisman

Heard on: May 14, 2015

Reasons for Judgment released on: June 12, 2015

Counsel

Nicole Horwitz — counsel for the applicant society

Sharon Shartal — counsel for the respondent A.G.

A.B. — respondent father of S.B., D.B. and F.B. — not appearing though served

B.B. — father of A.B. — not appearing found not to be a parent

REASONS FOR DECISION

1. INTRODUCTION

[1] This is a summary judgement motion, pursuant to subrule 16(6) of the Family Law Rules ("FLR") brought by the Children's Aid Society of Toronto ("society") seeking an order of Crown wardship without access for the purpose of adoption with respect to four children; S.B., born […], 2006 ("S."), D.B., born […], 2007 ("D."), F.B., born […], 2009 ("F."), and A.B., born […], 2012 ("A.").

[2] The biological mother of the children is A.G. ("the mother"). She opposes the motion and seeks an order that the motion be dismissed and the matter be set for a trial. She is seeking an order that the children be placed with her, or in the alternative, with her sister, or in the further alternative, that she be granted access.

[3] The biological father of all of the children, except A., is A.B. ("father"). A.B. acted as a parent to A. also. He was served the Amended Status Review Application on July 3, 2014, and despite several extensions and adjournments he did not file any pleadings and was noted in default on October 14, 2014. He did not participate in this motion although he has continued to exercise supervised access to the children.

[4] A.'s biological father is B.B. On August 7, 2014 he was found not to be a parent within the meaning of the Child and Family Services Act ("CFSA").

[5] In support of its motion the society filed a discrete motion record with the originating Protection Application, the various Status Review Applications and the supporting affidavits. Further affidavits of Dedrie White, the family service worker and Melanie Nicholl, the family and child access worker sworn April 23, 2015, were also filed. Psychological reports of S., D. and F. prepared by Dr. Daniel Fitzgerald were relied upon.

[6] The mother relied on her affidavit sworn May 12, 2015.

[7] Both parties filed facta and copies of the various authorities relied upon.

2. HISTORY OF SOCIETY INVOLVEMENT AND LITIGATION HISTORY

[8] The society has had an open file with the mother and the father since July 9, 2009. Initial concerns were reported by a hospital social worker after the mother gave birth to F. about the mother's lack of prenatal care and inadequate housing. The family at that time consisted of the mother and father and the two other children, S. and D.

[9] The society identified protection concerns related to neglect of the children's basic needs including their medical and dental needs and lack of a safe and hygienic home environment. The mother and father worked voluntarily with the family but the protection concerns continued despite the high level of services provided to the family.

[10] On April 20, 2011, the three children were apprehended due to the society being advised by the police that D. who was three years old at the time had fallen over the second floor balcony after being left to play there alone with his siblings. The mother was charged with failure to provide necessities but the charges were subsequently withdrawn.

[11] On June 1, 2011, S., D., and F. were found to be in need of protection pursuant to subsection 37 (2) (b) of the CFSA. They were made society wards for four months and five days after the parents were noted in default.

[12] On the Status Review Application heard on November 24, 2011, an extension pursuant to subsection 70 (4) of the CFSA was granted and the children were made society wards for a further eight months.

[13] On the Status Review Application heard on July 10, 2012 a further extension pursuant to subsection 70 (4) of the CFSA was granted for 37 days followed by a six month supervision order placing the children into the care of their mother and father subject to the supervision of the society and with detailed terms and conditions including a term that the children were not to have any contact with the maternal grandfather.

[14] In its Status Review Application dated January 31, 2012, the society sought an order for a further six month supervision order with the children continuing to be placed with their parents.

[15] On December 4, 2013, the parties agreed to an order that the children were placed in the care and custody of the mother for six months subject to the supervision of the society on terms and conditions. The parents were separated at this time but continued to live in the same apartment. The terms included the father and also the maternal grandmother as there was a consensus that this was necessary to address specific protection concerns. There continued to be a term that the maternal grandfather was not permitted to have any contact with the children.

[16] On March 28, 2014, all four children were apprehended and placed together in a foster home where they have continued to reside.

[17] On April 2, 2014, on a without prejudice basis, the children were placed in the care of the society pending final resolution of the Early Status Review Application regarding S., D., and F., and a Protection Application regarding A.

[18] On July 3, 2014, a further Amended Status Review Application regarding S., D., and F., and an Amended Protection Application regarding A., were issued seeking a finding that all four children be made Crown wards and placed in the care of the society.

[19] On August 7, 2014, A. was found to be a child in need of protection pursuant to subsection 37 (2) (b) of the CFSA.

[20] The proceeding was adjourned several times to give the mother and father an opportunity to file an Amended Answer and Plan of Care, for the father to obtain counsel, for the society to investigate a proposed kinship plan, to obtain an order for the production of police records and for a settlement conference.

[21] On February 19, 2015, the summary judgement motion was set for May 14, 2015, with timelines for filing materials.

[22] As of the date the motion was argued S., F., and D. have been in the cumulative care of the society for 895 days or two years and five months. A. has been in the care of the society for 411 days or one year, one month and fifteen days.

[23] As there has been a finding that the children are in need of protection the issues to be decided on this summary judgement motion are as follows:

a) Is there a triable issue as to whether or not the children S., D., and F., who are the subjects of an Early Status Review Application, continue to be in need of protection?

b) If so, is there a triable issue for a disposition other than Crown wardship for S., D., and F.? With respect to A., who is the subject of an Amended Protection Application, is there a triable issue for a disposition other than Crown wardship?

c) If there is an order that the children be made crown wards, is there a triable issue as to whether or not the mother should have access?

3. APPLICABLE LEGAL PRINCIPLES

3.1 Summary Judgement

[24] Subrule 16 of the FLR 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.

[25] Subrule 16 (2) specifically confirms that summary judgment is available in child protection proceedings.

[26] 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.

[27] 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.

[28] 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.

[29] 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.

[30] 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".

[31] 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. observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by subrule 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.

[32] 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 are insufficient to defeat a claim for summary judgment.

[33] 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.

[34] There was considerable debate in the case law as to whether or not the court should adopt the broader approach to a court's powers on a summary judgement motion, by finding that subrule 16 (6) had been bolstered by the new tools the court has pursuant to Rule 20.04 of the Rules of Civil Procedure ("RCP") that permit a court to weigh the evidence, evaluate the credibility of deponents and draw reasonable inferences.

[35] However, as of May 2, 2015 the FLR have also been amended to broaden the powers of the court on a summary judgement motion. Those amendments to subrule 16 provide as follows:

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[36] The Supreme Court of Canada, in the case of Hryniak v. Maulin, has clarified the process of applying the expanded summary judgment rule in RCP 20.04 (2.1) and (2.2). In view of the recent amendments to the FLR, the analysis is also applicable to FLR. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before her, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgement process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be genuine issue for trial, she should then determine if the need for a trial can be avoided by using the new powers under the RCP 20.04 (2.1) and (2.2) or now pursuant to FLR 16 (6.1) and (6.2).

[37] Accordingly, the first step is to determine if there is a genuine issue for trial based on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility.

[38] In determining if there is a genuine issue requiring a trial, the court must consider if there is sufficient evidence led by the parent to support a trial. The question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[39] 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.

[40] Although the court can rely on hearsay, subrule 16 (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.

[41] In interpreting subrule 16, the court must also consider the strict timelines that govern child protection proceedings and subsection 1(1) of the CFSA providing that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[42] It is also necessary to consider subrule 2 of the FLR to ensure that a case is dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking into consideration the need to give resources to other cases. This appears to also be in keeping with the process set out by the Supreme Court of Canada in Hryniak v. Mauldin.

[43] A summary judgement motion is a tool that can contain and control a child's drift in litigation. A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent.

[44] A child's development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. A child should not be held in limbo waiting for change in a parent that is unlikely to happen. The parent's chance to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized.

[45] 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 the child faces some better prospect that what existed at the time of the society's removal of the child from the parent and that the parent has developed some new ability as a parent.

3.2 Applicable Legal Principles Regarding Disposition

[46] With respect to S., D., and F., as this is a status review application, there has already been a finding that these children are in need of protection.

[47] It is well-settled law that the court must now evaluate whether there is a continued need for state intervention to protect these children and consider what disposition would be in their 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.

[48] With respect to A. as there has been a finding that he is in need of protection, the focus is now on what disposition would be in his best interests.

[49] After a finding is made, the court must determine what order is required to protect the child. In the oft quoted case of Children's Aid Society of Toronto v. T.L. Justice Perkins set out the statutory pathway to be followed on a disposition hearing (not involving a native child or a potential custody) as follows:

1. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57.)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

3. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

4. Determine whether the access would impair the child's future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

5. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

[50] Subsection 57 (2) of the CFSA requires the court to inquire what efforts the society or another agency or person has made to assist the children before intervention.

[51] Subsection 57 (3) of the CFSA requires that before an order is made removing children from their caregivers that the court must be satisfied that less disruptive alternatives would be inadequate to protect the children.

[52] Subsection 57 (4) of the CFSA also requires that the court consider, if removal of the children from their caregiver is necessary, whether there are any family or community placements that are possible.

[53] In determining the appropriate disposition, the court must decide what is in the best interests of the children. In making this determination, the court is guided by the criteria set out in subsection 37(3) of the CFSA as follows:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

4. SUMMARY OF MATERIAL FACTS

[54] On this summary judgement motion, the majority of the material facts were either admitted by the mother or were unopposed or only baldly denied by the mother.

4.1 Mother's Background

[55] The mother is a survivor of childhood abuse by her father. When the father was drunk he would beat her, her mother and her siblings. The mother came into foster care when she was 12 years old. The mother alleges that she was also physically abused while in foster care by the son of the foster parents and the other children in the home. The mother ran away and was then placed in a group home. The mother alleges that no one listened to her complaints and she never received any trauma counselling.

[56] As an adult the mother was again assaulted by her father in January 2010. He broke her tooth and nose and smashed her head. He was convicted of assault and was sentenced to 12 months in jail.

[57] The mother deposes that she has been assessed with post-traumatic stress disorder as a result of her treatment by both her father and the society. The mother has a pending claim with the Criminal Injuries Compensation Board claiming damages as a result of the physical abuse she suffered both from her father and while in the care of the society.

[58] The mother had her first child, J. when she was only 17 years old. As the father was older and more stable than she was, she agreed that he should raise the child.

[59] When the mother was pregnant with her second child S. she was living in a shelter. Although the society had some brief involvement in 2006 they closed their file.

[60] In 2009, the society again became involved as a result of a referral from a nurse due to concerns about F.'s weight. At the time the mother was living with her parents and there were also concerns about bug infestation and about D.'s dental care.

[61] The mother moved to a new apartment with her mother as her parents separated due to her father's alcoholism. But her father began attending at the home and it was during this time, in 2010 that the mother was assaulted by her father.

[62] The mother was able to obtain her own accommodations but as this was in Scarborough she deposes that she was separated from community supports she had begun to use in the west end of Toronto.

[63] The mother has been in a relationship with the father for many years. Their relationship has been volatile with periods of separation.

4.2 Events Leading Up to First Apprehension

[64] According to the mother in about 2011, she began to have difficulty with her mental health as her father was released from jail and she became depressed. She wished to rebuild her relationship with her father because she knew her children loved him but found this difficult. At the same time her relationship with the father began to deteriorate. The new apartment also was infested with bugs despite the building being fumigated many times.

[65] On April 20, 2011, D. fell from the balcony and the police contacted the society due to concerns about the state of the home. All of the children were apprehended.

[66] The mother acknowledges that at this time she was "in crisis and spiraling downwards."

4.3 Events Between Apprehension and Return of the Children

[67] When S., D., and F. came into care they required extensive dental treatment due to the state of their gums and teeth. S. was behind academically and both D. and F. had speech and language delays. The parents did not utilize services. But the parents began to improve their home environment.

[68] The children continued to do well in care and with the support of the maternal grandmother the parents were better able to maintain a safe and hygienic home.

[69] By July 2012, it was agreed that the parents had made sufficient gains that the protection concerns could be met by a further short period in care and then a return of the children to the parents subject to a supervision order. The terms were extensive and required the parents to work cooperatively with the society and various community supports, ensure the children attended for medical and dental appointments and consistently attended school and daycare. The parents were required to obtain approval from the society prior to permitting the paternal grandfather to have any contact with the children. The parents were to work on their parenting and ensure that the children were not exposed to any conflict between them.

4.4 Events Leading Up to Second Apprehension

[70] Almost immediately after the children were returned to the parents, concerns emerged with respect to their overall compliance in many areas. As a result on November 19, 2012, Ms. Dedrie White, the family service worker, wrote to the parents and handed the letter to them personally and to their counsel. In part the letter states as follows:

Your children, S., D., and F. were in foster care for over the Statutory limit of one year. Should they return to foster care in the future, there is no further legal time to work on addressing the following issues that remain outstanding. I am, therefore, attempting to make it very clear as to what needs to happen to continue to work towards their ongoing successful placement at home with you. The Society will not support the conditions of the family home or the care the children are receiving to return to a level similar to where it was prior to their admission on April 20, 2011.

[71] The letter goes on to state that the parents must immediately address issues regarding dental care for the children, maintaining their home that until a recent unannounced home visit had been fairly clean, the need to work with community supports, ensuring S. and D. attend school regularly, developing a system for organizing and keeping track of important events and routines in the home, obtaining both partner and individual counselling to deal with the conflict in their relationship, ensuring D. and F., attend a parenting and literacy school program and that the parents make the necessary arrangements to obtain the child tax benefit that would assist them in relieving some of their financial stress.

[72] The letter ends as follows:

A. [mother] and A. [father] and R. [maternal grandmother], you have worked very hard to make improvements needed to have your children return home. You have demonstrated that you love your children. I am very worried that the current demands and stresses for you are again challenging your parenting. There are many supports available to help you address these areas but you both need to demonstrate your ability to follow through immediately. I am here to assist you in meeting and sustaining these expectations.

[73] Despite some improvements from time to time, the parents struggled to meet the expectations of the society especially with respect to accessing services that they needed to be able to meet the children's needs. Between October 2012 and March 28, 2014 the following concerns continued:

a) the state of the home remained consistently unclean, cluttered and unhygienic;

b) the children continued to be exposed to domestic conflict with little or no effort to access services; the parents separated during his time but continued to live in the same home and then attempted to reconcile but did not take steps to actively engage in counselling;

c) the parents failed to follow through with obtaining counselling through Aisling Discovery Child and Family Centre despite many efforts by the worker to intervene and assist and despite the mother having problems managing the children's behaviour and in particular D.'s behaviour;

d) the father failed to remain actively involved in supporting the mother particularly around maintaining the home despite his assurances to the society that he would remain actively involved in the children's lives;

e) the mother focussed her attention on re-establishing a relationship with her oldest son through regularly visiting him in Hamilton to the detriment of her other children whose needs she neglected;

f) the mother did not follow through with providing the necessary documentation to ensure that the family received the child tax benefit despite the family service worker's assistance;

g) in August 2013, during an investigation regarding marks on D. the family service worker discovered that the maternal grandmother had allowed the maternal grandfather to walk F. and D. to summer camp; the family service worker agreed to give the mother and maternal grandmother another chance as she was assured that they both understood the condition of supervision that the maternal grandfather was not allowed to be with the children and that if he attempted to have contact then the police and the society needed to be notified; it was explained that if he wished to have contact then he needed to be assessed and provide proof of the treatment he had received as alleged by both the mother and maternal grandmother;

h) on March 28, 2014, after speaking to S., D. and F. at school separately, the family service worker discovered that the maternal grandfather had been sleeping in the home that morning and the night before which was confirmed by the maternal grandmother;

i) between September 2013, and March 2014, S., D. and F. had been absent and late for a significant amount of time from school; and

j) when the worker and police arrived to apprehend A., the home had a strong odour of marijuana smoke; the maternal grandmother had been seen entering the apartment just before they arrived and she reported that she had left the children with her adult son as she had needed to go out; she acknowledged that her son smokes marijuana in the home; A. was taken to the hospital as he was not well and there was some concern that he may [be affected].

The mother admitted that by the Fall of 2013, she found it increasingly difficult to multitask the children's needs, the father's lack of assistance and his dependence upon her and her concern about her mother's reconnection with her father. The mother admits that she found it increasingly difficult to comply with the society's requests.

[74] The mother further confirms that her mental health further deteriorated when she was asked by the father of her first son to help him deal with their son's emotional crisis and as a result she began to leave the children with her mother. She acknowledges that she had a second more intense mental health crisis and was unable to undertake activities outside of her home and that the children missed too much school and were late too often.

[75] The mother admits that her situation deteriorated further as her new apartment was infested with bedbugs and she sent the children to live with her mother.

[76] Despite being aware that her mother had already breached the court order by permitting the children contact with maternal grandfather, the mother again placed the children in her mother's care that resulted in the children being apprehended.

4.5 Evidence Regarding the Children

[77] The children came into care with severe bedbug bites and also had to be treated for a significant lice infestation.

[78] All of the children have continued to reside in the same foster home. They are all comfortable and happy in the foster home and their needs are being met.

[79] S. was assessed by Dr. Fitzgerald on September 15, 2014 when she was 7 years and 10 months old. Dr. Fitzgerald found her to have overall cognitive ability in the high average range and good expressive language and verbal reasoning skills. S. reported that she is very happy and comfortable living in the foster home and is well cared for there. She expressed that she is relieved that her younger siblings' needs are also being met. She worries about her parents because of their fighting and because sometimes they don't have enough money to buy food.

[80] Dr. Fitzgerald concluded that:

S. struggles with strong and conflicted feelings in relation to her family's circumstances. She appears to harbour a considerable amount of anger and resentment about her parents' failure to provide the children with a safe, nurturing home environment. However, she also appears to be very loyal to her parents and does not feel comfortable expressing any of this anger. Thus, the anger becomes internalized and there is a risk for her to experience serious emotional and behavioural issues, especially as she goes through childhood and enters a pre-pubertal age. Therefore, it seems appropriate that S. become involved in psychotherapy. Play therapy or art therapy would be an appropriate therapeutic modality for her. The therapeutic process could provide an opportunity for her to deal with her conflicted and ambivalent feelings in relation to her family in a secure, confidential environment. S. does not display particularly problematic behaviours and does not externalize her anger and resentment. However, the emotions can become internalized and will be equally toxic, especially as they may lead to more problematic emotions as she gets older.

[81] D. was assessed by Dr. Fitzgerald on September 17, 2014, when he was seven years old. Dr. Fitzgerald assessed that D.'s overall cognitive functioning was in the borderline range. D.'s level of adaptive functioning is extremely limited so that he has difficulty coping with the day-to-day routines at home, school and in the community. He is extremely dependent on adult direction and support in order to manage most aspects of his life. The development and implementation of an Individual Education Plan was recommended. D. also displays high levels of hyper activity, impulsivity and distractibility consistent with a diagnosis of attention deficit/hyperactivity disorder-combined type (ADHD). Consultation with his paediatrican was recommended to consider medications. In addition, Dr. Fitzgerald recommended that the use of effective behaviour management strategies at home and school would be beneficial as well as maintaining close proximity with his teacher. Given his cognitive limitations and behaviour challenges Dr. Fitzgerald noted that D. will require regular assessment to monitor his progress and to provide information for ongoing progress.

[82] D. did not make any direct comments during the assessment about his parents or the foster home.

[83] F. was assessed by Dr. Fitzgerald on September 17, 2014, when she was five years old. Her overall cognitive functioning was in the low average range with her communication and non verbal reasoning skills being in the average range. There were indications of problems with her visual memory and the speed at which she produced written work was slow which may present challenges in school. She was found to display symptoms of hyperactivity, impulsivity and distractibility consistent with a diagnosis of ADHD. Dr. Fitzgerald found that S. is very impulsive by nature, seems to lack judgement and foresight and her distraction will present risks for greater difficulties for her learning as well as for her safety and well-being. Further, she lacks effective social and interpersonal skills and has a limited repertoire of social language that she can use to engage others or solve problems when they arise. Consultation with her physician to consider medication was recommended. The development of an Individual Education Plan was also recommended as well as effective behaviour management. A recommendation was made for a FASD assessment as there appeared to be a possibility that F. was exposed to alcohol in utero.

[84] F. made no direct comments during the assessment about her parents or the foster home.

[85] The mother did not dispute any of the material findings of Dr. Fitzgerald.

4.6 Access Visits

[86] From the time of the second apprehension on March 28, 2014, access visits between April to October 2014 occurred twice weekly for two hours with the mother, father and maternal grandmother being present. As of October 2014, the visits for the parents were separated and each parent visited the children once a week with the maternal grandmother being present at each of the parent's visits.

[87] The parents have been attending the visits regularly and consistently. The maternal grandmother brings activities and food. The parents are affectionate towards the children and regularly physically interact with them.

[88] The society raised many concerns about the visits in the affidavits filed in support of the summary judgement motion. The mother's only response to the concerns is that she believes that when the visits were separated from the father they were more successful. She deposes that she believes that, "there has been a substantial improvement in my ability to cope with my life and as a result to be a better parent to my children." The mother does not further address the concerns, deny them or explain them in any way.

[89] With respect to the mother's access, the family service worker and the family and child access worker, who supervised most of the visits, depose that:

a) Prior to the visits for the parents being separate, there was a considerable amount of conflict in the presence of the children;

b) The visits are unorganized, loud and chaotic and often leave the children in the same state;

c) The mother struggles in managing the children and generally just gives into them;

d) The mother is continuously checking her phone or texting rather than playing or interacting with the children;

e) Despite the fact the visit is only two hours, the mother and maternal grandmother expect the children to eat two snacks and a meal;

f) The mother speaks to the children about inappropriate subjects or speaks to others about inappropriate subjects in presence of the children;

g) The mother is unable to properly supervise all four children such that A. has often left the access room or access area without anyone noticing;

h) The mother raises her voice, loses patience and threatens the children when they do not listen to her;

i) The mother is unwilling to listen to any suggestions to improve the quality of the visits and reacts defensively to any suggestions; and

j) The mother is extremely critical of the care of the children in the foster home and expresses this to staff and typically when the children are present or within hearing distance. When the parents exercised access together they also expressed these concerns to each other in the children's presence.

[90] According to the society workers, although the conflict between the parents was resolved when the visits became separate, the concerns did not change in either intensity or frequency. The mother did not deny these allegations except for the one sentence previously quoted.

4.7 Mother's Circumstances Since the Apprehension

[91] The mother confirms that she became despondent after the children were apprehended on March 28, 2014 and over the next few months worked on herself. She deposes that she rebuilt her self-esteem so that she was able to separate from her partner. She was able to paint her apartment and bought new furniture and in particular new mattresses for the children.

[92] The family service worker visited the mother's home on November 21, 2014, and confirmed that the mother was keeping it in good shape. The mother told the worker that it was easier for her to keep the home clean since the father was no longer living there. The mother also told the worker that the father sometimes sleeps over but that they were separated.

[93] The mother deposed that she loved her children dearly and that they are the heart of her life. The mother stated that she knew that she had not always been a stable parent but still believed that the children should be returned to her and should grow up with her and her family.

[94] The mother told the family service worker that she was receiving counselling from Woodgreen Community Services and that the parents have attended for couples counselling. The mother produced a letter from Woodgreen Community Services, but the letter only confirmed that the mother and father attended one couples counselling session on May 14, 2014, at the walk-in counselling service. Although the letter states that they intended to return for subsequent sessions, there was no further evidence that they did so.

[95] The mother also advised that she has been seeing a psychiatrist but he died and she was receiving counselling for her trauma from her family doctor Dr. Somer who made a new referral for another psychiatrist. Dr. Somer's response to a letter sent by the society stated that he had last counselled the mother in September 2013, and did not confirm he made any referrals.

[96] The mother deposed that she was also attending trauma counselling at Women's College Hospital but provided no documentation to confirm this counselling.

[97] The mother's Answer and Plan of Care states that she is aware that she worked badly with the society in the past due to her own history with the children's aid. But she states that she has improved her life in the last two years, that she has participated in counselling, has become more independent and that she has the ongoing support of case management through Woodgreen. The mother did not provide any documentation to substantiate these statements and the documentary evidence submitted by the society contradicts the mother's statements about receiving counselling.

4.8 Services for the Mother and the Children

[98] The society has provided the following services for the mother and the children:

a) A family service worker was provided;

b) A referral was made to Aisling Discoveries;

c) The parents were connected with community resources;

d) The family service worker tried to assist the mother with obtaining the child tax benefit;

e) Plan of Care meetings were organized to discuss the children's progress in care and the mother and father were invited to attend;

f) Psychological assessments were arranged for the children;

g) The children were placed together in an appropriate foster home where their needs were met; and

h) A Family Group Conference was arranged.

[99] It was submitted on behalf of the mother that the society did not provide services for her and in particular that the society did not arrange a parent capacity assessment or equivalent psychiatric assessment. However, the family service worker deposed that the mother advised her that her counsel was attempting to arrange a private parent capacity assessment and that once it was done she would provide it to the society. The mother did not deny she made this statement.

[100] The family service worker deposed that she asked the mother if there were any services or help she desired in arranging for services and the mother indicated she was already receiving counselling and did not request any further services. Again, the mother did not deny she said this. Further, the November 19, 2012, letter hand delivered to the parents by the family service worker sets out the society's expectations that the parents maintain and utilize the community services that had already been put in place and that they needed to follow through with the supports and that the worker was there is assist the parents.

4.9 Community or Family Plans

[101] A Family Group Conference was held on July 26, 2014, and a plan presented by Mr. and Mrs. C. who were the maternal grandmother's brother and his spouse. After a referral was made for another agency to assess the plan, the society advised mother's counsel that the society was not moving forward with the plan and that society could not disclose the reason without the consent of Mr. and Mrs. C. or counsel could bring a motion for disclosure. The consent was never signed and no motion was brought.

[102] At the meeting, the mother had proposed her sister if the plan by Mr. and Mrs. C. was not approved. In November 2014, the society began to investigate the plan by the mother's sister who forwarded a written plan to the society. The mother's sister had been a crown ward herself, had a criminal record and past addiction for which she had not received any formal treatment and was in the process of applying for a medical marijuana card. As the plan involved other adult members of the home, they were also required to sign consents for child welfare and criminal record checks. In February 2015, the mother's sister advised the kinship worker that she and two other members of the household had received notices that they needed to attend for fingerprinting but that they did not have the $25.00 needed per person to pay for the cost but would have the funds by March. The kinship worker advised that she would review the child welfare history to determine if she was able to mitigate these histories and move forward with the kinship plan.

[103] Later in February, the kinship worked advised that she was not able to move forward with the plan and the kinship file would be closed.

[104] No further plan was presented by the mother and no further information or affidavits were filed from any proposed family member regarding a family plan. The mother deposed that her family is poor and they could not afford to pay the $25.00 fee until March and she believed that her family members were still waiting for their criminal record checks.

4.10 Plans of Care

[105] The society's plan is for an order of Crown wardship without access in order to place the children for adoption.

[106] The society submits that the children S., F., and D., have been in care well in excess of the statutory time limits and two extensions, pursuant to section 70 (4) of the CFSA were already granted extending the time those children have been in care and A. has been in care over one year. As a result the only choice is to return the children to the mother with or without a supervision order or that they be made crown wards.

[107] It was submitted that any concerns for access between the siblings, if they are not adopted together, can be dealt with by an order that the siblings have access to each other.

[108] The society did not file an affidavit from an adoption worker as it was submitted that in view of the length of time that the children were in care there was no other viable option.

[109] The mother's plan is for the children to be returned to her care and that she has the assistance of her mother, sister and other family members to help her. Although the mother did not specifically depose that she would comply with the terms of a supervision order, I have assumed that she would do so as she wishes to do everything she can to have her children returned to her care. If the children are not returned to her care, the mother proposes that the children be placed with her sister and in the further alternative, that she has access to the children regardless of where they are placed.

5. ANALYSIS OF DISPOSITION

[110] There is overwhelming evidence that the children S., D., and F. continue to be in need of protection and that it is in their best interests to be made crown wards. There is also overwhelming evidence that it is in A.'s best interests to be made a crown ward. The concerns that resulted in the children being apprehended continue and the mother has still not been able to make sufficient progress dealing with her own issues that she is in a position to resume care of the children.

[111] I find that there is no genuine issue with respect to the children's need for continued protection and that the only alternative is that they be made Crown wards based on the following findings:

a) The concerns about the level of care the children received have continued from the time of society's initial involvement in April 2011 until the re-apprehension on March 28, 2014; although the children were returned to the parents' care in August 2012 and there were some improvements of their care, the level of care deteriorated despite the many supports that were in place;

b) While the children were in the care of the parents their physical needs were not met; they were infested with bed bug bites and lice;

c) While the children were in the care of the parents their educational needs were not met; they missed and were late a significant amount of time from school;

d) While the children were in the care of the parents, the mother did not follow through with obtaining services to assist with learning appropriate child management strategies or to assist with concerns about D.'s social and emotional needs; after a great deal of time the mother was finally able to attend an intake appointment with Aisling Discoveries but then did not follow through with further appointments despite being warned that her failure to attend would result in the loss of obtaining services;

e) The mother has not displayed any insight on the effect on the children of the parents' home environment and the conflict between herself and the father; on the contrary the mother tried to minimize the domestic violence between herself and the father; the mother did not display any insight about the effect of her own mental health issues has had on her ability to meet the children's needs;

f) The mother did not follow through with obtaining counselling for herself to deal with her childhood trauma;

g) The mother's relationship with the father is not clear; historically the mother has been ambivalent about the relationship; at times she has been adamant that they are separated and at other times she has indicated a desire to reconcile; even after the visits were changed to separate visits she requested the society again consider joint visits despite the conflict the children had been exposed to when they visited jointly; although the mother maintains they are separated, the father has recently at times slept over at her residence; except for one session the parents have not attended for any couple counselling; the parents' relationship and the impact of that relationship on the children remains an ongoing concern;

h) The mother's views about her own father are not clear; although she maintains she was traumatized by his abuse of her and is seeking compensation as a result, she is ambivalent about him seeing the children and has minimized the fact that her mother allowed the grandfather to see the children and the fact that when the grandfather walked the children to camp he pulled D.'s ears (the reason for this was never clarified);

i) The mother was not able to comply with the terms of supervision when the children were returned to her care despite the many extra chances given to her when there were numerous breaches;

j) The mother was unable to work co-operatively with the society due to her own background as a crown ward and has not been willing or able to access services that might assist her in coming to terms with her past;

k) The mother was unwilling or unable to seek services from the society and was not forthcoming with services she was receiving; the family society worker asked the mother what services she needed or what services she could assist with but the mother did not request any services;

l) The mother admitted that she had had a difficult relationship with the society and that it became increasingly confrontational; the mother admitted that she viewed the society as demanding and that they "asked too much of me";

m) The mother was never able to move beyond supervised access and the evidence outlined in the society affidavits regarding the mother's behaviour during access and her inability to meet the children's needs even in a supervised setting justified the need for supervision;

n) The mother did not dispute the validity of the children's re-apprehension from her care and that it was based on not just the unauthorized contact with the maternal grandfather but on the condition of the home, the neglect of the children's physical, emotional and educational needs and lack of follow through with the services and non-compliance with the terms of supervision;

o) The children are doing well in foster care and their needs are being met; the children, in particular D., have special needs and the mother has shown in the past that she has been unable to meet those needs;

p) The mother's plan of care is vague and does not address the concerns that resulted in the children being removed from her care; and

q) As of the date this motion was argued S., D. and F. had been in the cumulative care of the society for two years and five months and A. had been in the care of the society for one year, one month and 15 days. This exceeds the statutory timelines and it is in the children's best interests to have a permanent home as soon as possible.

[112] The mother submits that there is a triable issue with respect to the lack of services provided to the mother and in particular that a parent capacity assessment was never done. The mother submits that the society assessed her as being difficult to deal with and because of her past history just gave up on her. I find that there is not an iota of evidence presented by the mother to substantiate this submission. The mother admits that she told the worker she was going to obtain a parenting capacity assessment privately and once done she would advise the society. No evidence was presented that such an assessment was done or if done the results were not disclosed. The mother also never sought a court order to obtain such an assessment. I find that the society throughout their involvement offered the mother services both by the society and community sources but the mother either chose not to utilize those services or has not provided any proof that she utilized services that were unknown to the society. I do not find that this is not a genuine issue that requires a trial.

[113] The mother also submits that the society did not acknowledge that she suffered from post-traumatic stress disorder. She submits that the society did not acknowledge that she was going through a crisis just before the children were apprehended for the second time and did not work with her to handle this crisis and still expected her to follow through with appointments and meetings regarding the other children and in particular with respect to the Aisling appointments regarding D. I find that this is not a genuine issue requiring a trial. The mother did not advise the society that she was overwhelmed with dealing with her older son. In any event, the mother's primary responsibility was to the children in her care as she had already been warned that if they were apprehended a second time the society would seek a permanent plan for them. This issue also does not raise a triable issue.

[114] The mother's alternative plan for her sister to rasie her children is also not a triable issue. The mother's sister has not been able to follow through with the society's kinship assessment and there is no evidence filed from the maternal aunt on this motion that she is in a position to present a viable plan especially in light of the preliminary concerns already raised by the society.

6. APPLICABLE LEGAL PRINCIPLES REGARDING ACCESS

6.1 Legal Framework for Access to Crown Wards

[115] Once an order for Crown wardship is made, the focus of the CFSA shifts to establishing a permanent and stable placement, preferably through adoption. The society is mandated by subsection 63.1 of the CFSA to make all reasonable efforts to assist children to develop a positive, secure and enduring relationship within a family through either adoption or a custody order.

[116] Having determined that an order of Crown wardship is the order that is the least disruptive order available and appropriate and consistent with the children's best interests, the next issue for the court to determine is whether there is a genuine issue for trial on the issue of an order of access.

[117] Once a disposition of Crown wardship is made, the CFSA provides for a presumption against access. The current test for access to Crown wards is set out in subsection 59 (2.1) of the Act, which reads as follows:

A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[118] The onus to rebut the presumption against access to a Crown ward is on the person seeking access.

[119] Where a Crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Although in most cases, the society tenders such evidence, there is no statutory requirement to do so.

[120] The person seeking access therefore has the onus of establishing on a balance of probabilities both prongs of the test namely that,

1. The access is beneficial and meaningful to the children; and

2. The ordered access will not impair the children's future opportunities for adoption.

[121] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J. where he stated:

(45) What is a "beneficial and meaningful" relationship in clause 59(2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

(46) I read clause 59(2) (a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

(47) Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[122] Justice Quinn's decision was written before the 2006 and 2017 amendments to the CFSA that incorporate provisions for openness into the legislation.

[123] In view of the changes to the legislation, an access order will no longer automatically impair a child's future opportunities for adoption. The amended provisions of section 141.1.1 (1) of the CFSA, no longer prohibit a society from planning for the adoption of a Crown ward that has an access order.

[124] As has been noted in several cases, that for the amendments to be meaningful the court should consider the future benefits of an openness order in assessing if the child's relationship with a parent is beneficial and meaningful. The court should also consider the potential detriment to a child of not making an access order. These considerations are also important on the second prong of the test.

[125] However, the onus is still on the parent seeking access to satisfy the court that her access is beneficial and meaningful, not for the parent, but for the children. As Justice Quinn remarked, in the case of M.J., supra, it is not enough that there are some positive aspects to the relationship, or that the visits are enjoyable, there must be some significant advantage to the children.

[126] With respect to the second prong of the test, a person seeking access must still satisfy the court that making an access order will not impair the future opportunities of the children to be adopted. As was pointed out by Justice Kurkurin in CAS. of Algoma v. S.L., it is always more difficult to prove a negative but that is what the Act requires.

[127] Although, the amendments allowing for the possibility of an openness order for an adoptive child means that a court does not have to choose at this stage between adoption and some contact between a parent and their child, it does affect the analysis of the second prong of the test. A court must consider that if an order for access is made it will open the door to an openness application when the society proceeds with an adoption. The possibility of future litigation may diminish or delay the child's opportunity for adoption.

[128] In the case of Catholic Childrens Aid Society of Toronto v. L.D.E., Justice Penny Jones listed reasons why courts might reject claims on the second prong of the test, she states as follows:

The following is a list of reasons why claims for access have been rejected, or might be rejected, in the future. This list is in no way exhaustive.

1. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

a. They would be facing further litigation

b. They would not know the result of such litigation

c. They would not know what form an openness order might take

d. If an openness application is brought, the adoption will be delayed

e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved

2. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements might find their access request refused because of their past disruptive behaviour. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child's future opportunities for adoption.

[129] A court should also consider that although deficiencies in a parent that prevents a child being returned to the care of that parent may not be a concern or a lesser concern when the issue is only access.

[130] Some forms of access may deter prospective adoptive parents but other forms such as an exchange of cards, letters or photographs may not.

[131] Further, the distinction between who has been granted access (the access holder) and the person to whom an access order has been granted (access recipient) has now become a crucial consideration. As was explained by Justice Stanley Sherr, in Children's Aid Society v. E.U. it is only the access holder that has the right to bring an openness application, pursuant to subsection 145.1 of the CFSA, if they are served with a Notice of Intent to place a child for adoption. The access recipient only has the right to be notified of the society's intent to place the child for adoption. In that case, the court found that giving the parents the right of access to their 11 year old child would impair the child's opportunities to be adopted by her current foster parents as the parents kept trying to undermine the placement. But that if the child was granted access then the foster parents were willing to respect the child's desire to maintain contact with the parents and could negotiate with the child an openness arrangement without the likelihood of litigation.

[132] Since this is a summary judgement motion the mother is not required at this stage to prove that she has met both prongs of the two part test in subsection 59(2.1) of the CFSA for an order of access to a Crown ward, she only has to show that there is a triable issue that she could meet the test.

6.2 Application of Legal Principles Regarding Access to the Facts

[133] The society submits that there is no triable issue regarding the issue of access based on the mother's undermining of the current foster placement, the concerns about the quality of the mother's access and the mother's inability to work co-operatively with the society or trust the society. It is submitted that the mother must put her best foot forward and has not done so.

[134] I accept there is undisputed evidence that the mother is critical of the care the children are receiving in the foster home. This criticism has not abated despite her allegations not being verified. The mother is critical of the way the children are dressed, the physical care they receive, the food they are given and in general many aspects of their care. The mother has asked the children about where they want to live and asked them to write this down or tell the society workers. This conduct is concerning as it may impact on the mother's ability to undermine any future adoptive placement.

[135] However, there are positive aspects to the visits:

a) The children know their mother and call her "mom" and know their grandmother and call her "grandma";

b) The children are affectionate to the mother and she is affectionate to them;

c) The children appear happy during the visits and appear to enjoy the visits;

d) There is no evidence of any substantial emotional harm to the children or concerns about their behaviour after a visit;

e) The mother has regularly and consistently attended visits;

f) The mother has been a constant person in the children's lives as she parented them prior to the first apprehension in 2011 and then again from March 2014 to May 2015 when they were returned to her care under a supervision order; and

g) S. who is almost 8 years old has stated to Dr. Fitzgerald that she is happy living in the foster home and visiting with her family.

[136] I am troubled by the fact that the society has not provided any evidence regarding the adoptability of the children and the impact of an order for access. I agree that the society is not required in law to provide this evidence and the onus is on the person seeking access to meet the test of access to a Crown ward. However, there are many questions that are left unanswered.

[137] If the children are adoptable, but if it is in the children's best interests, especially with respect to to S., who worries about her mother, to have some access then perhaps it is necessary for the society to seek an adoptive home that will permit access. Would a prospective adoptive family be concerned if there was occasional contact with the mother and/or the maternal grandmother or if there was only an exchange of letters or photos? What is the emotional impact on the children if all contact is terminated? Is it possible for the mother to accept a Crown wardship order and not undermine a future permanent placement?

[138] If the children are not adoptable, then an order for access to the mother would not impair their chance for adoption.

[139] Dr. Fitzgerald conducted a psycho-educational assessment of the children and was not asked to determine the importance of the children's contact with their mother or to weigh the benefits of adoption with a severing of all contact with the mother.

[140] A court will need to assess if the mother is able to accept that the children will not be returned to her care and if she would be able to support and not undermine any permanent placement.

[141] I find that based on the facts outlined above and in view of the profound importance of this issue to the future lives of the children, I find that further evidence is required on the issue of access to the mother.

[142] With respect to the father's access, as the father did not participate in these proceedings, any further access to the father should be in the discretion of the society. Pending a final determination of the mother's access it should continue but be reduced to once every two weeks as it is anticipated that if access is ordered to continue its purpose would only be to continue the children's connection to their mother but not with a view to a reunification and must not so be so frequent as to interfere with their adjustment to a permanent placement.

6.3 Process to Determine Issue of Access

[143] The challenge I find facing myself in determining if there is a triable issue regarding access is that I do not have sufficient evidence from the society or the mother to answer these questions.

[144] As stated in Hryniak and Maulin, there no genuine issue requiring a trial when the judge is able on the merits of a summary judgement motion to make the necessary findings of fact, apply the law to the facts and it is a proportionate, more expeditious and less expensive means to achieve a just result. If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself that is, by employing the new fact findings powers granted to the motion judge. "However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination." The court goes on to explain that the use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.

[145] In determining the process to be used the court emphasized the need to consider the issue of proportionality as follows:

58 This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)

59 In practice, whether it is against the "interest of justice" to use the new fact-finding powers will often coincide with whether there is a "genuine issue requiring a trial". It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.

60 The "interest of justice" inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole.

[146] Applying these principles, it is now possible to determine whether or not the issue of access is a genuine issue that requires a trial by using the new fact finding powers in subsection 16 FLR. But if those powers are used and the court determines that there is a triable issue regarding access then a trial would still be necessary. On the other hand, if the court finds that there is a genuine issue requirng a trial on the issue of access, then pursuant to subrule 2 of the FLR and the expanded powers in subrule 1(7.2) of the FLR, the court is permitted to set strict parameters regarding a focused trial on this discrete issue. Subrule 1 (7.2) provides that:

For the purposes of promoting the primary objective of these rules as required under subrules 2 (4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

(a) that a party give to another party an affidavit listing documents that are relevant to the issues in a case and that are in the party's control or available to the party on request, or that a party make any other disclosure, within a specified time;

(b) limiting the number of affidavits that a party may file, or limiting the length of affidavits that a party may file (excluding any exhibits);

(c) that any motions be brought within a specified time;

(d) that a statement setting out what material facts are not in dispute be filed within a specified time (in which case the facts are deemed to be established unless a judge orders otherwise);

(e) that questioning be conducted in accordance with a plan established by the court, be subject to a time limit or be limited with respect to scope;

(f) limiting the number of witnesses;

(g) that all or part of an affidavit or any other evidence filed at any stage in a case, and any cross-examinations on it, may be used at a hearing;

(h) that a party serve and file, within a specified time, a written summary of the anticipated evidence of a witness;

(i) that a witness give all or part of his or her evidence by affidavit or another method not requiring the witness to attend in person;

(j) that oral evidence be presented, or that any oral evidence be subject to a time limit;

(k) that any expert witnesses for the parties meet to discuss the issues, and prepare a joint statement setting out the issues on which they agree and the issues that are in dispute;

(l) that a party serve and file a summary of argument;

(m) that a party provide to the court a draft order (Form 25, 25A, 25B, 25C or 25D) setting out the relief that he or she is seeking;

(n) identifying the issues to be decided at a particular hearing;

(o) that the parties appear before the court by a specified date;

(p) that a case be scheduled for trial or that a trial management conference be conducted; and

(q) that a trial be limited to a specified number of days and apportioning those days between the parties

[147] I find that a focused trial, limiting the evidence to be called and setting time limits for cross-examinations, is the most appropriate process to fairly, justly and expediently determine if the mother should be granted access to the children.

[148] It is my intention to remain seized of this case. The court in Hyrniak and Maulin endorsed that if a summary judgement motion is dismissed then the motion judge should, if possible, seize herself as the trial judge. This permits the judge to use the insight gained from hearing the summary judgement motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue.

7. ORDER

[149] There will be an order as follows:

1. There is no triable issue with respect to the children, S., F., and D., being in continued need of protection pursuant to subsection 37 (2) (b) of the Child and Family Service Act.

2. There is no triable issue with respect to the disposition of this case. The children S., F., D., and A. shall be made Crown wards.

3. There is a triable issue with respect to the Respondent A.G.'s access to the children and there will be a trial to determine this issue.

4. The findings of fact are as set out in paragraphs 110, 111, 133 and 134 of this decision.

5. Pending final determination of this case, the Respondent A.G. shall have supervised access to the children once every two weeks for a minimum of 2 hours. For clarity the maternal grandmother shall be permitted to attend these visits but the Respondent A.B. shall only have access in the discretion of the society including the right to terminate all access.

6. The issue of access by the Respondent A.G. to the children shall be determined in a trial. The issues to determine are if the relationship between the mother and the children is meaningful and beneficial and if so, would an access order impair the children's opportunities for adoption. The further issue to be determined, if there is an access order, is the terms of access and who should be the access holder.

7. The society shall be permitted to file an updated assessment by Dr. Fitzgerald or other qualified expert to opine on the issue of ongoing access. If in his opinion access is meaningful and beneficial, what amount or form of access would be in the children's best interests?

8. The society shall be permitted to file an affidavit by a qualified adoption worker to explain if an access order would unduly delay and/or impair the adoption of the children.

9. Counsel for the mother shall be permitted no more than one hour to cross-examine each of the society's witnesses.

10. The mother shall be permitted to either testify only with respect to the issue of ongoing access or file a further affidavit on this issue. Counsel for the society shall be permitted no more than one hour to cross-examine the mother.

11. Counsel are to contact the trial co-ordinator to obtain a date for a half day trial. If counsel are unable to agree on a timetable for the filing of materials, an attendance before me should be arranged within the next three weeks.

Justice Roselyn Zisman

DATE: June 12, 2015