WARNING

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

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

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: November 19, 2015

Court File No.: C51181/10

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Applicant,

- AND -

S. M. AND D. H.

Respondents

Before: Justice Roselyn Zisman

Heard on: October 27, 2015

Reasons for Judgment released on: November 19, 2015

Counsel:

• Rena Knox — counsel for the applicant society
• David Miller — counsel for the respondent mother S.M.
• D.H. — respondent father of child S.; not present
• Gary Gotlieb — counsel for the Office of the Children's Lawyer, legal representative for the children

Zisman J.:

1. Introduction

[1] This is a motion for summary judgement brought by the Applicant, the Catholic Children's Aid Society ("society") seeking an order that the children before the court namely, S.M. born 2004 and J.M. born 2007 (referred to collectively as "the children" or individually as "S". and "J.") be made crown wards with access at the discretion of the society and in accordance with the children's wishes.

[2] The Respondent S.M. ("the mother") seeks an order dismissing the summary judgement motion and requests an expedited trial. It is her position that there is a triable issue for trial namely, whether or not she has made sufficient changes such that it is in the children's best interests to be placed in her care and custody subject to a supervision order.

[3] Counsel for the children states that the children love their mother and wish to return to her care. But it is submitted that this wish is based on their fantasy of what life with their mother would be like as opposed to the reality of what life was actually like. It is the position of counsel for the children that the children require a safe and stable home life that as the mother is not yet in a position to provide such an environment for the children that the summary judgement motion should be granted. It is submitted that there is a triable issue with respect to access.

[4] The Respondent, S.M. is the mother of the children. She also is the mother of two other children T.M. born 2002 who is a crown ward with access and D.H. born 2012 ("D.") who was placed in the care of his father M. H ("Mr. H.") in March 2015 pursuant to a supervision order and then placed with the paternal grandmother. There is an ongoing protection proceeding regarding D. before the court.

[5] D.H. is the biological father of S. the child before the court and also the father of T.M. He was served with the Amended Amended Application on May 4, 2015 and was subsequently noted in default as he did not attend the court proceedings or file any responding materials.

[6] A man named T. is the biological father of J. and was found not to be a parent within the meaning of the Child and Family Services Act ("CFSA").

[7] On consent, the statutory findings and finding of need of protection with respect to J. were made on March 31, 2015 and with respect to S. on October 10, 2012. Both children were found to be in need of protection pursuant to section 37 (2) (b) (i) and (ii) of the CFSA based on the Statement of Agreed Facts dated October 10, 2012.

[8] The society relied on the pleadings, Statement of Agreed Facts dated October 10, 2012, the affidavits of Liezl Sebial and Jacqueline who are both family service worker, the affidavit of Nissa White the child service worker and the affidavits of the children's foster mothers. The society filed a Notice of Intent to Introduce Business Records and Medical Records and relied on the parenting capacity assessment of the mother by Dr. Oren Amitay, the psychological assessment of the mother by Dr. Olga Henderson, the consultation report of Dr. Umar Muhammad of the mother, the psychological assessments of S. and J. by Dr. Denise Vallance and the trauma assessment of J. from the Etobicoke Children's Centre. The society also filed records from the Toronto Police Records.

[9] The mother relied on her affidavit sworn October 22, 2015.

2. Applicable Statutory Principles and Law Regarding Summary Judgement Motion

[10] Subrule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

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

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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".

[17] 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.

[18] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is no genuine issue for trial must be insufficient to defeat a claim for summary judgment.

[19] 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.

[20] The Supreme Court of Canada, in the case of Hryniak v. Maulin, has clarified the process of applying the expanded summary judgment rule. 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 Rules 20.04 (2.1) and (2.2).

[21] Accordingly, the first step under either process 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.

[22] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[23] 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.

[24] Although the court can rely on hearsay, subrule16 (5) provides a stricter rule with respect to hearsay than subrule 14 (19) motions, namely that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, if any, that the court deems appropriate.

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

[26] It is also necessary to consider subrule 2 of the Family Law Rules to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that case are 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 test set out by the Supreme Court of Canada in Hryniak v. Mauldin.

[27] 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. Evidentiary Issues

[28] Although there were no objections to the hearsay evidence contained in the affidavits filed by the society, I have not relied on any third party information except for any statements or admissions made by the mother or for the narrow purpose of providing the context for various steps taken by the society workers and the foster parents or to explain why various services were put in place.

[29] In this case, there were serious allegations about the mother's inability to work cooperatively with various school officials and her lack of following through with the educational needs of the children while they were in her care and with respect to behavioural problems the children experienced at school and after access visits with their mother; this evidence was outlined in either the foster mothers' affidavits or in the society workers affidavits. If this evidence was sufficiently relevant to the society's case, then affidavits should have been obtained or school reports should have been filed. There was also reference in the affidavit of Ms Sebial of her follow up discussions with the mother's counsellor and doctor with respect to the services currently being utilized by the mother. As the information obtained somewhat contradicts the mother's affidavit, this evidence should have been in the form of affidavits from those service providers. If the evidence the society seeks to introduce is relevant to the issues before the court, first hand affidavits or records should be produced.

[30] The society has also filed the entire file from the Toronto Police Services that includes synopses for bail hearings, occurrence reports, police notes and the police synopsis regarding the outstanding charges against the mother. Although no objection was taken to this evidence, I am only relying on statements made directly by the mother contained in the reports, observations of the police officers and the actual criminal convictions. Much of the other comments and evidence contained in these reports was in any event before the court in sworn affidavits from the society workers and in the mother's own affidavit. The records also properly contain the extensive criminal record regarding Mr. H. As there was no criminal record filed for the mother I assume she has no such record.

4. History and Undisputed Facts

[31] Based on the Statement of Agreed Facts dated October 10, 2012 many of the historical facts are undisputed.

[32] The society first became involved with the mother and her family in June 2010. A Protection Application was commenced due to concerns about the children being exposed to domestic violence and to strange men in the community. On January 4, 2011 the Protection Application was withdrawn as the mother co-operated with the society, there were no further incidents of domestic violence and no further unidentified men in the home.

[33] The society again became involved with the mother and her family in July 2011 due to allegations of ongoing domestic violence witnessed by the children, allegations that the mother was hitting the children and that the mother's former boyfriend was a sexual offender. There were also concerns about transience, school changes and general neglect.

[34] On August 24, 2011 the mother signed a Temporary Care Agreement placing two of the three children, T. and S. in the care of the society and keeping J. in her care. Both T. and S. had not seen a doctor in years, their health card had expired and S. had been moved to six schools and she was only 7 years old.

[35] The society over the next several months received information that the mother moved to a shelter, that the shelter staff had concerns about the domestic violence between the mother and her partner "Chris", the mother and Chris were uncooperative with the society worker and shelter staff, the mother was harassing T. and S.'s foster mother on the telephone and threatening to flee with J.

[36] The society obtained a warrant to apprehend J. and he was apprehended on November 8, 2011. On November 14, 2011 a without prejudice order was made placing all three children in the care of the society and an order that the mother's access was to be fully supervised.

[37] During the intervening months, there were ongoing incidents of domestic violence between the mother and her new boyfriend, Mr. H. and the mother advised she was pregnant with his child. D. was subsequently born on 2012. The mother agreed and began to attend for counselling and the mother identified a support network that would assist her once the children were returned to her care.

[38] On October 10, 2012, on consent, there was a finding that the children D., S., and J. were in need of protection pursuant to sections 37 (2) (b) (i) and (ii) of the CFSA that is, risk of physical harm. The order provided that D. be placed in the mother's care subject to the supervision of the society for 8 months, that T., S., and J. be placed in the care of the society for 2 and a half months and then be returned to the care of the mother subject to supervision of the society for 6 months. There were various terms of supervision including co-operating with the society, attending for parenting programs, not exposing the children to domestic violence and ensuring that T. and S. were given their daily medications for their diagnosis of attention deficit disorder.

[39] J. returned home in December 2012 subject to supervision of the society. T. and S. remained in care subject to a temporary order. On April 30, 2013 a temporary motion to place S. in her mother's home was granted subject to the supervision of the society.

[40] On or about November 13, 2013, S. and J. were again apprehended. S. was placed in her previous foster home where her sister T. resides and J. was placed in his former foster home. D. was also apprehended. On a without prejudice basis, there was an order for supervised access to the mother.

[41] The society deposes that the children were apprehended again in November 2013 due to the following concerns:

a. The mother failed to follow through with recommendations that she attend counselling or utilize the services of the public health services or attend a parenting group;

b. the children's behaviours were out of control including hitting teachers and other students;

c. the mother refused to acknowledge or address the issues of the children's behaviour and maintained the children only had problems at school and not at home;

d. the mother did not work co-operatively with the school authorities;

e. the mother failed to follow through with S.'s medical needs including not administering S.'s medications. The mother did not arrange for the children to receive their inoculations and did not seek any medical advice about any concerns with the children not being vaccinated; and

f. issues of general neglect such as a lack of providing food for the children.

[42] As a result of concerns about the mother's behaviour at access, the society brought a motion to suspend mother's access. The mother's access was suspended from June 26, 2014 to November 4, 2014.

[43] S. has been in care from August 2011 to April 2013 and then from November 13, 2013 to the present time. As of the hearing of this motion, S. has been in care 1171 days, well in excess of the statutory timelines.

[44] J. has been in care from November 11, 2011 to December 2012 and then from November 13, 2013 to the present time. As of the hearing of this motion, J. has been in care 962 days, well in excess of the statutory timelines.

5. Evidence Regarding the Needs of S.

[45] S. was referred for a psychological assessment to evaluate her emotional and behavioural functioning and to assist the society with case planning. S. was assessed by Dr. Denise Vallance in November 2012 at the time she was in care and only 8 years old. The psychological report dated November 12, 2012 at pages 4 and 5 concludes as follows:

S. presented as a very anxious girl who is currently presenting with symptoms of Post-Traumatic Stress Disorder, as well as related psychological symptoms including Dissociation, Sexual Distress, Anxiety, Conduct Problems and Aggressive as well as Depressive Affect and Thoughts, and Poor Adaptive Functioning. Underlying this behavioural profile were anxious preoccupations related to thoughts, feelings, and memories associated with unresolved trauma and loss. S.'s symptoms of PTSD seem mostly related to the nebulous experience of neglect which involves feelings of fear and a lack of protection as well as inner feelings of emotional emptiness and loneliness resulting from emotional neglect….

S. appears to be in a high state of traumatic arousal in which she is flooded and preoccupied with thoughts, feelings and memories related to the past. This preoccupation has a self-protective purpose and is a coping strategy, as by excluding the anticipation of future safety and comfort and care, S. remains vigilant and overly alert to danger in order to protect herself. …S. also copes by using the strategy of dissociation in which she withdraws into herself to forget negative thoughts, feelings and memories….

It is noted that some of her anxiety has dissipated while being in the foster home and as S. begins to feel safe and secure and protected in her foster home, she will relax and her high state of arousal should eventually dissipate and she should become calmer. However it seems that the visits with her mother are disrupting this process, as they are most likely evoking feelings of sadness around the loss of her mother but also seeing her mother may also evoke significant anxiety as her mother's presence may be associated with previous frightening experiences. This may be especially the case for S. as she seems to identify very much with her mother.

Though S. demonstrates some disorganized social behaviours, these behaviours do not appear to be indiscriminately friendly, suggesting an attachment disorder. Rather she seems to display inappropriate, physical boundaries and disorganized social behaviours that are most likely related to her high anxiety level.

[46] Elsewhere in the report there are references to S. worrying about being sexually victimized, with lots of time "feeling that I want to kill myself" and reporting witnessing domestic violence between her parents and instances of neglect.

[47] Dr. Vallance made many recommendations including the need for a permanent plan for S. as soon as possible in order to reduce her anxiety given her longing to go home, for her foster mother to highlight for S. that she is safe and protected and that S. needs a very structured and organized daily life. It was suggested that when S. goes home for overnights visits that the mother receive support to help reduce S.'s anxiety if the plan is for her to return home and if there is no such plan then the purpose of overnight access should be reviewed given the anxiety these visits cause S.

[48] In November 2013, after being in the care of her mother for about 8 months, S. returned to the home of her former foster mother. The foster mother's affidavit notes that she enrolled S. in her previous school and she was assigned the same teacher who was familiar with S. The foster mother noted that S. was disruptive at school, defiant at home, experienced great difficulties coping with boundaries and was out of control and at times unmanageable. S. had difficulty telling the truth, taking responsibility for her behaviours and had difficulty following through with her hygiene.

[49] S. had also been taken off her medication prescribed for her Attention Deficit Hyperactivity Disorder ("ADHD") by her mother as her mother said she did not need it. The foster mother immediately attended at the paediatrician who re-prescribed the medication. The foster mother noted that S.'s behaviour at school improved as her medication assists in her ability to focus and as well an individualized education plan was arranged for S.

[50] In the Spring of 2015, the foster mother noted that S. was becoming easily distracted again, she was unfocused, unable to wait her turn, anxious and unable to finish a task. The dosage of her medication was increased and this seems to have helped her to be much more focused, patient and responsible.

[51] Although S.'s behaviour improved, the foster other deposed that S. still has problems with following rules and with boundaries and she still must supervise her.

[52] The society arranged for another psychological assessment of S. which was done on August 6, 2015. S. was 11 years old. The report of Dr. Vallance dated September 17, 2015 outlines many of the same concerns and findings as in the previous assessment. However, there appears to be an even greater sense of S.'s preoccupation with the loss of her mother. Dr. Vallance, at page 3 of her report, states as follows:

S. demonstrated many clinical features related to unresolved loss in relation to being separated from her mother. S. is currently very preoccupied with her relationship with her mother and has confused, conflicted thoughts and feelings, as well as depressive affect associated with this relationship. She is extremely worried about the well-being of her mother. As well she seems to be experiencing a tremendous sense of loss which appears to be related to her sense that she had a special "bond" with her mother. It seems her mother also supported this idea. S. seems to feel that she is the only one who has the capacity to help her mother "cool down" and control her temper as she recognizes that when her mother is stressed she can get very angry and act inappropriately. …

...she is worried to some extent that because she is close to her mother that she will act like her mother or have some of her mother's character traits, which she is worried about. Also a sense of being special does not really give one a sense of being cared for and nurtured, so S. has been left with an inner sense of emptiness. Furthermore, she likely feels that if she is not with her mother, her mother would be at risk of getting herself into trouble due to her anger control issues.

[53] Dr. Vallance concluded that it was likely that S. has experienced some type of sexual trauma and that she is using disassociation as a coping strategy in which she withdraws into herself in order to forget thoughts, feelings and memories. Dr. Vallance also postulated that as the mother herself was sexually victimized as a child and as an adult, that S. has internalized, as her own, her mother's unresolved thoughts and feelings related to her experiences of being sexually victimized.

[54] The mother in her affidavit does not dispute any of the findings of Dr. Vallance.

[55] Dr. Vallance made many similar recommendations for treatment programs to assist S. with her loss and with her trauma as in her previous assessment. But the most important recommendation with respect to the issues to be determined on this motion relate to ongoing access. Dr. Vallance stated at page 4 to 5, as follows:

Given S.'s significant preoccupation with her relationship with her mother, it would be important that she have continued access with her mother, however, she needs to resolve her sense of loss around the separation from her mother. It would most likely be in her best interests if access was at the discretion of the Society if she is to become a Crown Ward. In this way, S.'s functioning in relation to access to her mother can be monitored and changed if necessary. Reduced access should be considered until S. has had the opportunity in some treatment program focussed at resolving her sense of loss.

[56] The foster mother deposes that S. is close to her sister T. who lives in her home and they get along well. S. is involved in programs at the YMCA including swimming and table tennis. She goes to summer camp and loves riding and attends dance classes and is eager to participate in competitive dancing. S. recently participated in a dance recital and the foster mother bought the mother a ticket and the mother attended.

[57] The foster mother deposed that she and her husband love S. and are committed to caring for S. if she is made a crown ward, on a long term basis.

6. Evidence Regarding the Needs of J.

[58] J. was referred for a psychological assessment to evaluate his emotional and behavioural functioning as there were concerns regarding his aggressive play themes, sexual behaviours and bedwetting. J. was assessed by Dr. Denise Vallance in November 2012 at the time he was in care and only 5 years old. The psychological report dated November 12, 2012 concludes at pages 3 and 4 as follows:

J. presented as a delightful little boy who is currently demonstrating symptoms of Post Traumatic Stress as well as symptoms of depression and somatization (i.e., internalized anxiety), sexual concerns and poor adaptive functioning. Underlying this behavioral profile seems to be mainly depressive thoughts and feelings related to longings for nurturance and care.

J.'s symptoms of PTSD suggest that he is in a high state of arousal and as such is easily vulnerable to being triggered by physiological internal cues or real or imaginary environmental sensory or situational cues when they remind him of previous stressful experiences. Is profile suggests that in such cases these cues can evoke overwhelming, confused, repressed feelings which may lead, in J.'s case, for him to emotionally decompensate and become distressed. His language processing difficulties most likely exacerbate his difficulties in being able to express what is troubling him. J. is mostly triggered by trauma cues related to feeling rejected, when he is separated from a caregiver, worries of abandonment as well as when he may feel unsafe or unprotected given his worries that he may be hurt by accident within the context of his home setting. …

The recent increase in access in the form of overnight visits seems to be distressing for him which leading to disregulated and distressed behaviours when he returns as well as an increase in adaptive behaviours which had formerly resolved. As well, it seems that the all-day access visits during the week also lead to difficulties as it seems that the day is too overwhelming for him.

It is unclear as to the reasons for his sexualized knowledge and behaviours.

[59] The mother in her affidavit does not dispute any of the findings of Dr. Vallance.

[60] Dr. Vallance recommended that a permanent plan be put in place as soon as possible. Dr. Vallance recommended that supports be put in place to help J. and that if the plan was for him to return to his mother's care that she engage in therapy with him to focus on J. receiving the emotional nurturance, sustained attention and caring for which he longs from his mother.

[61] After being in his care of his mother for about 11months in November 2013, J. was re-apprehended. J. returned to his former foster home. His foster mother deposes that he was very erratic and impulsive and could not manage his behaviour. J. was destructive of his belongings and was apprehensive of men in general and of the foster father in particular. The foster mother was called regularly to pick him up from school as no one could manage is behaviour on and out of the classroom. At times, he would cry and shut down and had a great deal of difficulty explaining his feelings. The foster mother deposed that J. was preoccupied with a father figure and reported that his father was dead and had been killed in jail and that his mother told him this but at other times he stated that his father was going to pick him up.

[62] J. was diagnosed with ADHD and has been prescribed medication. Although his behaviour at school has improved he still struggles academically. However, at the end of grade 2 in June 2015 he received the most improved student award and he was ecstatic about this achievement.

[63] According to the foster mother, throughout his time in care, he has been preoccupied with the well-being and health of his mother. The foster mother deposes that J. at times returns from access visits more sullen, will not engage with the family, has difficulty sleeping and worries about his mother and asks when he can go home although he is well settled in their home.

[64] The foster mother also reported that she found J. engaging in sexual activity with a child a year older than him and found him imitating sexual intercourse.

[65] The foster mother deposes that J.is very athletic and has played floor hockey and took swimming lessons and the plan was to enroll him in ice hockey and possibly the school track and field team.

[66] J. has gained some insight into his behaviour. He is getting along well with the other foster children in the home and has now become comfortable with the foster father and has bonded with him especially through activities they share with each other.

[67] The foster parents love J. and are committed to caring for him on a long term basis should be become a crown ward.

[68] J. underwent a trauma assessment in July 2015 at the Etobicoke Children's Centre by Shamsa Igbal. In her report dated October July 23, 2015 Ms Igbal at pages 9 and 10 concluded that:

Even though both of J.'s apprehensions happened because of valid concerns, they likely have caused disruptions in his development, resulting in impairment in developing a sense of safety, self-awareness, and in developing a bond with a stable primary caregiver and trust in adults who can provide safe, stable, consistent and predictable home environment. …

J. seems to have reduced capacity to handle stress. Recent changes in his contact (contact was increased) with his mother seemed to have disturbed J. …A change in routine, such as the one noted above, can cause distress due to his reduced capacity to handle stress. Even though J. has a strong wish to be with his mother, these meetings could be stressful for J. as Ms M. (mother) talks negatively about Ms C (foster mother) and the Catholic Children's Aid Society in front of J.

[69] The report also notes that J. is sad and worries constantly about his mother and sisters. His greatest worry is that "his mother might get hurt by bad people, and that he might be robbed and may die when he gets robbed." During the assessment he made self-deprecating statements such as, "I am dumb" and "I want to kill myself". J. was diagnosed with a disorganized attachment to his mother which can occur when a caregiver relies on a child for her care and protection. As a result the child can develop a poor sense of self, a feeling that he is not worthy of love and have more difficulty regulating his emotions.

[70] J. also recounted one incident of domestic violence that he witnessed between a man whom he referred to as his father, that was likely the mother's boyfriend, and that he saw "his father" beating his mother, that there was blood on her neck, that he was afraid that his mother would die and that he heard her screaming.

[71] There were recommendations made for counselling to help J. deal with feeling himself pulled in a loyalty bind between his mother and his foster mother and with respect to the trauma he has been exposed to. Ms Iqbalis is providing ongoing counselling for J.

[72] It was also recommended that J. continue to have contact with his mother and siblings and that the mother should attend for counselling to help her understand that J.'s emotional safely would be compromised if she continues to criticize the care he is receiving in the foster home in front of him.

7. Evidence with Respect to the Mother's Parenting Abilities and Functioning

[73] The mother has been the subject of several assessments between 2012 and 2015.

[74] The society referred the mother for a psychological assessment by Dr. Olga Henderson in March 2012. Dr. Henderson assessed the mother with significant cognitive impairment and that she had limited understanding of why her children had been removed for her care. The only reason she could think of was that she was abused by her partner. She admitted that the children have witnessed her being abused.

[75] In response to the issues of whether or not the mother's diagnoses impacted on her parenting abilities and on the prognosis for her ability to learn appropriate parenting techniques Dr. Henderson, at page11 of her report, opined that:

S.'s [the mother] knowledge of the basic requirements of parenting appears adequate. This means that she has the type of knowledge that is often taught in parenting classes. Therefore, any difficulties that she may have in the parenting of children in her care are not primarily associated with a lack of basic knowledge associated with the parenting of children.

Her problems are associated more with her cognitive and emotional/social limitations where the processing of information, problem solving skills, judgement and ability to reflect on and anticipate the consequences of her actions are impaired.

Due to the significant impairments identified through this assessment, S.'s [the mother] ability to consistently implement positive and appropriate parenting techniques is limited, in spite of, her having adequate basic knowledge of many of these techniques.

[76] It was also Dr. Henderson's opinion that the mother's ability to comply with treatment was limited and that it may be difficult for her to sustain effort in the counselling process or to benefit from counselling within a reasonable timeframe to make a significant impact on her functioning.

[77] Dr. Henderson's overall impression of the mother, as stated at page 12 of her report, was as follows:

S. [the mother] is a well intentioned mother who loves her children and who is distressed about being separated from them. She appears to have little understanding why they were removed from her care.

S. [the mother] has some very significant cognitive limitations which impact negatively on her ability to function. In addition she is very needy, searching for affection and acceptance in ways that likely will continue to place her at risk. She presents as quite vulnerable. The capacity to make effective use of counselling is limited

[78] Dr. Henderson was clear that she was not conducting a parenting capacity assessment and would not make recommendations regarding whether or not the children should be returned to the mother. Dr. Henderson recommended that a more in depth assessment be done regarding the mother's possible underlying neurological impairment and that a more in depth social and developmental history be obtained. Supportive personal counselling for the mother was also recommended at a level she would be able to manage. It was recommended that the mother apply for a disability pension for which she would be eligible, in view of her low level of cognitive functioning, a the 1 st percentile, to improve her financial situation.

[79] Dr. Oren Amitay, a registered psychologist, conducted a parent capacity assessment of the mother. His report dated June 30, 2014 at page 31concluded that:

This is an unfortunate case because Ms M. [the mother] is so caught up in her personal narrative-in which she sees herself as a victim of many people's wrongdoings-that she is completely unwilling or unable to acknowledge the role she herself has played in the significant hardships her children have reportedly experienced over the course of their short lives. This one statement represents the crux of the society's ongoing difficulties in helping Ms M.[the mother] maintain stability in her life for extended periods of time.

[80] Dr. Amitay explained that in conducting a parenting capacity assessment that he places great importance on three main criteria that typically predicts a successful outcome for parenting. The three criteria are:

a) the demonstration of sufficient insight into their issues and other relevant factors that contributed to their involvement with a children's aid society;

b) good judgement in order to care for, protect and raise their children and to put the children's needs before their own; and

c) the ability to work honestly and cooperatively with the society and any other people or organizations involved in the welfare of the children, in order to improve on the issues that led to the society's involvement with the family.

[81] It is Dr. Amitay's opinion that a parent that can demonstrate at least two of these criteria would be able to adequately parent. Dr. Amity found that the mother had been unable or unwilling to satisfy any of these criteria adequately on a consistent and long-term basis since at least the society's involvement in 2011 and even possibly dating back to 2005. He stated at page 33 of his report that:

Her lack of insight or capacity to take any responsibility for the issues with which her three oldest children present cannot be stressed enough. Whether this is due to cognitive impairments, a psychiatric/psychological condition and/or personality traits is, in some ways, irrelevant. That is because one of the oldest and most fundamental axioms in psychology and psychotherapy is that one cannot make changes in oneself without first recognizing and admitting what needs to be changed. In other words, the most important point is that, until Ms M. [the mother] can acknowledge and understand the nature and extent of her issues described throughout this report, she is not expected to make and maintain the kinds of significant and long-lasting changes she needs to make in herself or her life circumstances in order to adequately address and mitigate the society's concerns.

[82] Dr. Amitay found that the mother's shortcomings stemmed from her personality, which is consistent with the finding made by Dr. Henderson in her 2012 assessment. Although her borderline level of intelligence made it harder for her to manage her daily life, it was her personality, psychological, emotional social and interpersonal functioning that accounted for her historical and ongoing limited parenting capacity.

[83] Dr. Amitay stated that the kinds of changes that the mother needed to make would be best achieved through long-term psychodynamic or insight-oriented therapy. However, because of the mother's lack of insight, defensiveness and other limitations she would not be amenable to this type of therapy. Further, the mother's limited cognitive abilities would also preclude her participating in cognitive behavioural therapy which is a somewhat concrete form of therapy and is the most widely practiced form of psychotherapy in North America. He opined that perhaps the mother might benefit from some type of supportive therapy or counselling that did not challenge her and was encouraging and validating. However, Dr. Amitay stated that although this type of counselling can lead to some improvements, it usually takes a long time to see any meaningful and lasting change and that in the mother's case, it might take a minimum of two to three years to see such improvement and therefore the potential cost or difficulty in maintaining regular attendance for that duration are likely impediments.

[84] Dr. Amitay also concluded that any recommendations for therapy would mean very little if the mother could not accept that she required substantial assistance to cope with her day to day affairs and stressors as well as to help modify her unhealthy parenting behaviours and interpersonal dynamics.

[85] With respect to access to the three oldest children, Dr. Amitay stated that in view of the ages of the children and their bond with the mother it would not be advisable to terminate contact, unless such contact was detrimental to them. If the mother can demonstrate changes consistently over several months then in his opinion it would be reasonable to move toward unsupervised access on a gradual basis based on the children's adjustment and the mother's ability to handle the increased responsibility and accompanying stress.

[86] The mother deposes that she has read Dr. Amitay's report many times and agrees with the conclusions that she needs to take responsibility for her role in what happened to her children. The mother deposes that she has made the "noticeable, meaningful and consistent changes in [my] demeanour, motivation, judgement, important choices and actions" that Dr. Amitay hoped for. The mother outlines these changes as follows:

a) When access was suspended in June 26, 2014 because of her "inappropriate behaviour" to Ms Knibb, the family service worker, in front of J. she initially blamed the incident entirely on Mr Knibb but then in September 2014 she accepted responsibility and agreed that her actions were inacceptable and caused stress and anxiety to J.;

b) In September 2014,she agreed to attend the police station to be cautioned regarding her assault of Ms Knibb in relation to the June 26, 2014 incident;

c) In September 2014, she agreed to attend an anger management program and attended all 10 sessions and found the program extremely helpful and learnt ways to control her feelings, avoid conflict and maintain positive social dynamics with others;

d) In September 2014, she agreed to sign and was generally compliant with the terms of an access commitment with the society that included terms that she participate in therapeutic access, not raise her voice, yell or be disrespectful during the visits and not discuss the court, foster care or the society workers during access to her children. She has been generally compliant with the conditions;

e) Since the visits were reinstated in November 2014, all of the visits have gone well except for the visit of June 23, 2015 when the "incident occurred with Mr. H.";

f) She followed up with the recommendations to connect with a psychiatrist, psychologist or counsellor. She met with Dr. Prasad on November 20, 2014 who is a psychiatrist but did not feel comfortable with a male psychiatrist and then received another referral from her family doctor and then saw Dr. Nayla Jessamy, who she thought was a psychiatrist, but is a psychotherapist and met with her for three or four sessions. She found the sessions helpful but she believes that Dr. Jessamy did not want to continue to see her as she heard her case was going to trial and did not want to be a witness. In April 2015, she arranged for a referral to CAMH for an assessment as to what kinds of supportive services she needed. She saw Dr. Imraan Jeeva on May 31, 2015 and he recommended exercises to help with her mood which she has incorporated into her daily life. Dr. Jeeva recommended cognitive behaviour therapy but Dr. Amitay had previously said this type of therapy would not be appropriate for her;

g) In September 2014, she agreed to connect with Development Services Ontario for support. She now has a worker through Woodgreen Community Living Toronto to assist her in all phases of her life and who helped her obtain ODSP and helped with her housing and who is providing ongoing weekly counselling; and

h) She would like to engage in family counselling as recommended by Dr. Amitay but the society has refused.

[87] With respect to the incident of June 23, 2015 the mother deposes that she acknowledges that this was a major "slip" or "two slips" that includes the incident of June 25, 2015. The mother relies on the following statements by Dr. Amitay, at page 38 of his report as an explanation of her actions. Dr. Amitay stated as follows:

to be fair and realistic to Ms M., occasional "slips" ,whereby she might demonstrate some of her past maladaptive tendencies, are to be expected. In order for these incidents to be construed as true "slips" as opposed to evidence that she cannot actually change, any inappropriate behaviours must be relatively infrequent, much less severe than before, triggered by circumstances that would upset or distress most reasonable adults, and followed by a recognition of her wrongdoing, clear apology and attempts to remedy or compensate for any problems she may have created with her actions.

[88] According to the affidavit of Ms Sebial, the family support worker, on June 23, 2015, despite having been told that she could not bring a dog to the access visit the mother brought the dog and as a result the access visit took place outside on the society's grounds. Mr. H. arrived to pick up D. who he had earlier dropped off for a visit with the mother. When the mother saw that he was in the car with a female driver, she approached Mr. H., who was already by the gate to the access area and began to yell at him saying, "why did you bring that bitch to this place, you are not taking my kid with her." A worker intervened and directed Mr. H. back to the car as she was worried that the mother would physically assault Mr. H. The mother continued to yell and the children T. and S. kept telling their mother to stop. The mother continued to yell, "You are not supposes to f…..bring that bitch here, watch I am going to f….kick that bitch's ass. Mr. H. then yelled back, "Shut up bitch, this is why they f…took your kids away." Mr. H. was told to ignore the mother and then the mother continued yelling, " Look, you have my daughter f….crying now". A worker was trying to calm S. down who was now crying uncontrollably. The driver for T. and S. came and the mother still kept yelling, "You sent my son with an abuser, he abuses my son and he abused me." The worker could not calm the mother down, the mother refused to the worker after the children left and kept saying she was "homeless" and was upset and couldn't talk.

[89] The next day, the mother left a voicemail for the worker apologizing for what happened during the visit. The worker called the mother back and explained that due to what happened she was cancelling the next visit as the mother had been unable to control herself in front of the children. The mother responded "whatever' and stated that visits had been going well and why was a visit being cancelled over "one little thing".

[90] On June 25, 2015, Mr. H. called the worker and explained that he reacted by yelling back at the mother at the access visit as she was swearing at a friend who had just offered him a ride. He further stated the mother had been coming to his home for the last two weeks and that they planned to reconcile after all of the court proceedings were over. He reported that the mother had been at his home that day playing with D. and that the mother complained about the type of underwear D. was wearing. The argument escalated from a verbal altercation to a physical one and the mother was now facing criminal charges for assaulting him.

[91] As a result of breach of the supervision order placing D. with Mr. H. that is, that he permitted the mother access without the knowledge or agreement of the society, D. was placed in the care of the paternal grandmother.

[92] Contrary to the mother's affidavit that she accepted responsibility for her actions or has a greater understanding of the issues that resulted in her children coming into care, the report of Dr. Jeeva dated May 31, 2015 states at page 3 that:

Her [the mother] insight into her current situation with CAS is limited, and she struggles to understand why there has been concern from CAS, and also possible concern from her parental capacity assessment.

[93] Dr. Jeeva diagnosed the mother with an Adjustment Disorder with Depressed and Anxious Mood and that the mother reported that her greatest stressor is concern that the CAS would apprehend her child once she gives birth. The mother reported that she was using marijuana once every couple of days to manage her mood despite the fact she was four months pregnant. When the society worker has previously asked the mother if she was pregnant, the mother either denied or avoided answering the question.

[94] With respect to the assault on Ms Knipp on June 26, 2014, contrary to the mother's affidavit that she was sorry for what happened and took responsibility for the incident, the mother reported to Dr. Jeeva that "the worker had charged her with assault and that the worker had her back against the door and when she tried to open the door, the door hit her in the bum." The mother totally minimized the incident.

[95] In outlining this incident, Ms Knipp deposes that the mother was complaining about J. having insect bites and not wanting him to go back to the foster parents' cottage. When Ms Knipp told the mother that they could have that discussion after the visit the mother would still not stop talking and questioning J. The worker took J. into a meeting room and closed the door and had been standing in front of the door when the mother pushed on the door about three times hitting her in the back and yelling that she was not taking her "kid" [J.] J. was shaking, crying and put his hands over his face. The worker then opened the door and told the mother the visit was cancelled for that day.

[96] D. had just arrive for his visit with the mother and walked towards Ms Knibb and when she reached down to pick him up, the mother grabbed her arm and told her not to pick up her child. Another worker took both children by the hand and attempted to leave when the mother grabbed J. holding him tightly and began walking around the reception area crying. J was also crying. After the incident, the mother calmed down and a call that had been placed to the police was cancelled.

[97] Ms Sebial's affidavit outlines further discussions with the mother in which the mother continued to blame the confrontation with Mr. H. on him for bringing a female to the society office and continued to be critical of the foster mother as opposed to concentrating on her own repeated confrontations in the presence of the children.

[98] Ms Nissa White is the children's service worker for the children. She deposed that visits have been supervised at the society's offices twice a week for two hours during the years 2013, 2014 and for some of 2015. For five months from June 2014 to November 2014 the visits were suspended due to the mother's inappropriate behaviour. In November 2014, access resumed biweekly for two hours until May 2015 when they were increased to weekly access for two hours. In June 2015 access was decreased for J. due to his difficulties coping with the visits and returned to being biweekly for two hours. S. continues to visit with the mother weekly. All access visits have always been fully supervised.

[99] The mother generally attends all of the visits and is on time.

[100] Ms White personally observed about 25 visits and reviewed the information from was other workers who supervised the visits. She noted the following concerns:

a) The mother often spoke negatively about the children's foster parents in front of the children. The mother blamed the foster parents for the children's negative behaviours;

b) The mother did not always follow through when she attempted to discipline the children; and

c) The mother was observed to lose her temper or get frustrated easily. She was observed to lash out verbally at those around her for no apparent reason.

[101] The mother denied that she frequently spoke negatively about the foster parents in front of the children and deposed that she only did so rarely and generally only when an issue or concern was raised by the children and not by her.

[102] The mother denied or clarified many of the concerns raised by the society workers and generally deposed that she had followed up with the services recommended, that she had learnt to control her temper and learnt better coping strategies and was prepared to engage in more services. The mother deposed that she agreed that she spoke to Ms Sebial about how when the children were previously returned to her care without her taking an abundance of services but she denied saying that the children should be returned to her now without her doing any services. The mother did admit that she had been resistant to counselling previously when the children were returned to her care.

[103] With respect to the alleged assault on Mr. H., the mother denied that there was any physical assault but that there was only verbal conflict and that she may have called him names. The mother denied that she was staying with Mr. H. but admitted that they had been spending time together. The mother did not address the fact that this breached the terms of the supervision order with respect to D. or the fact that it breached the terms of her bail release.

[104] Although the mother denied the intensity of her confrontational relationship with the school, she did admit that when the children were in her care that she had not done enough to address S.'s school issues, blamed the school for S.' behaviours, and did not maintain a good relationship with the school. The mother also admitted that she did not provide S. with her ADHD medications or discuss any of her concerns with the doctor.

[105] The mother acknowledged that both S. and J. have been negatively affected by her behaviour.

8. Evidence of History of Domestic Violence and Police Involvement

[106] The mother has been involved in domestic disputes with various partners since 2010.

[107] In October 2010, the mother reported that a man named "Chris" who had been staying at her home from time to time for the last three months but whose last name, telephone number or date of birth were unknown to her, had thrown a beer bottle at a window and then threw another one and broke two windows. She reported the incident because she was worried she would be in trouble from the building management. The mother had previously also reported an incident in April 2010 where she reported that "Chris" was drunk and threw a bucket of water on the floor. The mother did not want to pursue criminal charges.

[108] On December 9, 2011, Mr. H. was charged with three counts of assault against the mother. One of the incidents included a charge of choking the mother. The child J. remembers this incident and has spoken about it.

[109] Mr. H. was released on a recognizance to have no contact and not be within 200 metres of the mother. On December 21, 2011 the police attended at the residence of Mr. H. and found the mother present. Mr. H. was charged with a breach of his recognizance. He was again released on terms not to have contact and remain 500 metres from the mother.

[110] On February 7, 2012 Mr. H. and the mother were again found to be in each other's presence in breach of recognizance. He was arrested on charges of failing to comply with his recognizance and obstruct police as he identified himself using a false name.

[111] On May 9, 2012 the police were called to attend at a residence due to a complaint by the mother and the superintendent about a domestic dispute. The mother identified herself to the police and admitted to being in the apartment with a "Chris" H. but then admitted it was Mr. M.H. (that is, D.'s father). The police observed red scratch marks on the mother's neck but the mother denied any assault and refused to permit photographs to be taken or pursue criminal charges.

[112] On June 4, 2012 the police were again involved and based on information received about a domestic dispute between the mother and Mr. H. attended at the premises but the mother had already left before they arrived.

[113] As a result of this incident Mr. H. was charged with two charges of fail to comply with the terms of his probation. Mr. H. resolved all of his previous charges by pleading guilty and he spent 60 days in jail and was placed on probation a term of which was not to have contact with the mother.

[114] In June 2014, the mother was cautioned by the police about the incident of June 25, 2014 in which the mother allegedly assaulted the family service worker, Ms Knibb. Ms Knibb did not wish to pursue criminal charges against the mother. However, the child J. witnessed this incident.

[115] On June 23, 2015 the mother became involved in another domestic incident with Mr. H. at the society's offices that was witnessed by the children T. and S.

[116] On June 25, 2015 the police were called with respect to another domestic incident between the mother and Mr. H. The mother attended at Mr. H.'s apartment and an argument ensued and escalated and the mother, according to Mr. H. slapped him on the face when he attempted to remove her from his apartment. She then returned fifteen minutes later to request her cell phone charger. Mr. H. gave her the charges and another argument ensued and when he tried to close the door she struck him with the charger. Mr. H. then left the apartment building with D. and when outside the mother was there and again confronted him and followed him. Mr. H. flagged down a police car and the mother was charged with assault and assault with a weapon. The charges are currently outstanding. The mother denies that she physically assaulted Mr. H. but does agree that there was a verbal altercation and that D. was present. D. has reported that he saw his mother hit his father and he was scared because she followed them.

[117] The mother completed an anger management course in December 2014 and deposes that she is now enrolled in a PAR program. She expects the criminal charges against her to be resolved by her entering into a peace bond, a term of which will be for her not to have any contact with Mr. H. and then criminal changes will be withdrawn.

9. The Mother's Plan

[118] The mother is currently 31 years old.

[119] The mother's plan is for the children to live with her in her spacious and furnished one bedroom apartment that she has now lived in with three months. Once the children are returned to her care, she will look for a bigger apartment.

[120] The mother obtained ODSP two months ago and that is her source of income. Prior to that, she was on social assistance for 10 years.

[121] S. and J. will attend the local school. Their family doctor will be Dr. Muhammad.

[122] The mother deposes that she is not in a relationship with Mr. H. and does not intend to have contact with him.

[123] The mother has an adult worker from Woodgrreen community services who she sees weekly and who does individual counselling with her. She will be fully cooperative and continue with this service.

[124] The mother intends to sign up the children for extracurricular activities. She will follow the medical advice of the doctors regarding the use of medications and vaccines and continue to have the children's ADHD followed by their current doctor.

[125] The mother deposes that her main supports are her mother and two sisters.

[126] The mother deposes that she will work cooperatively with the children's school and the society under a supervision order.

[127] The mother did not submit any affidavits from her family members, her counsellor or any other third party. The mother did not explain why her family member would now be supporting her when they have not done so historically.

10. The Society's Plan

[128] The society's plan for the children would be for them to continue to reside in their respective foster homes. The children will continue to be provided with the services they require to meet their emotional, educational and physical needs. Various services have been recommended in the psychological assessments of both children and the trauma assessment of J. J has already commenced counselling. Dr. Amitay's parent capacity assessment also made recommendations for services for the children that may include the mother.

11. Analysis

[129] As there has already been a finding that the children are in need of protection, the only issue is with respect to disposition.

[130] In view of the length of time the children have already been in care, the only possible dispositions are either that the children be made crown wards with access as requested by the society or that the children be placed in the care of the mother subject to a supervision order.

[131] It is the position of the mother that the triable issue in this case is whether or not the mother has made sufficient changes such that the children should be placed in her care subject to a supervision order. It is submitted that the court should be looking at the changes the mother has made in the last 15 months and not as of November 2013 when the children were apprehended form the mother's care. I find that t is necessary to consider the mother's historical ability to change since this protection application matter was first before the court in November 2011 and also consider what changes the mother made after the children were placed in her care and were then they apprehended again in November 2013.

[132] I find that the society has met its onus to prove that there is no genuine issue requiring a trial and that the only option, given the length of time S. and J. have been in care, is an order of crown ward with access as requested by the society

[133] There is no question that the mother loves her children and wishes to be able to care for them but her own needs are so significant that she has been unable to make the necessary long term changes to meet the needs of S. and J. Despite the services the society has offered and the attempts made to assist the mother she is simply not able to meet the complex needs of the children. Many of the children's emotional frailties are a direct result of the trauma that they were exposed to while in the care of the mother.

[134] This is not a case where the court needs to assess credibility or weigh the evidence. I have considered the mother's evidence, as previously outlined in detail, about the services she has now engaged in and her statements that she now realizes the trauma she has caused the children and that she has leant to control her anger through the anger management program she completed in December 2014.

[135] But when faced with a situation in June 2015, just 6 months after completing an anger management program, of seeing Mr. H. being driven to the society office by a female which is an innocuous event, the mother completely lost control and yet again exposed her children to inappropriate language and behaviour and caused them considerable distress.

[136] Then the next day, she again accosted Mr. H. in front of another of her children, D., and yet again lost control and exposed him to her inappropriate behaviour which has now resulted in criminal charges against herself. Even if her evidence is accepted that she only engaged in a verbal argument with Mr. H., what is clear is that the mother has not yet learnt how to control her anger and she has not yet learnt the damage she causes to her children by exposing them to such scenes of domestic discord and violence. The issues of the mother's insight, impulse control and concerns about her relationships have been before the court since the commencement of this proceeding. This was an opportunity for the mother to show that she had learnt something from the program she attended, from her counselling and that she understood the concerns raised in the parent capacity assessment or understood the effect of her behaviours on the children as outlined in their psychological assessments. Unfortunately the mother's reactions were a clear example of the lack of changes she has made and highlight that she needs long term counselling to make any changes in her life and that she still needs to learn how to be a parent who can meet the emotional needs of her children. This is not just a minor "slip" as submitted by the mother.

[137] The mother has a history of being with abusive partners and in particular Mr. H. Despite the conditions of his recognizance that were in place to protect her, the mother continued to spend time with him that subsequently resulted in him being charged with failing to comply with the terms of his release. Despite the mother's statements that the relationship is over, her jealousy of him possibly being in another relationship caused her to completely lose control. Further time would be needed to assess whether or not the mother has actually been able to extricate herself from that relationship.

[138] The mother was unable to abide by the terms of supervision when the children were initially returned to her care in 2011. Even when those breaches resulted in her children being removed from her care, she continued to be unable to follow the direction and conditions of access visits that resulted in a lengthy suspension of her access. The mother has not yet made any significant progress in her access and her visits have continued to be supervised.

[139] Despite recommendations in Dr. Amitay's report of June 30, 2014 that she engage in counselling, the mother met with several different psychiatrists and psychologists or psychotherapists and did not engage in any sustained counselling. Although the mother deposed that for the past eight months she has an adult worker from Woodgreen Community services through Community Living who assists her with "all aspects of her life" and also does some individual counselling. The mother provided no evidence as to the professional credentials of this worker, whether or not the worker had read Dr. Amitay's report or filed an affidavit from this worker. It should also be noted that Dr. Henderson in her report of March 2012 had also recommended supportive counselling for the mother that she never followed. So in essence the mother has had almost three years to engage in consistent counselling and has failed to do so except perhaps for the last eight months.

[140] Once the society met its onus of showing there is no triable issue that requires a trial, the evidentiary burden shifted to the mother to show there is a triable issue. As the nature of the mother's counselling, the changes she has made and the progress she has made in counselling are the very issues the mother submits are the triable issues, more convincing evidence should have been provided by the mother. Dr. Amitay's conclusions were not questioned by the mother and in fact she deposed that she agreed with them. Therefore it was incumbent on the mother to be able to provide sufficient evidence to indicate that she has made such significant changes in her life that a trial was necessary. She has not done so and it is clear based on the history, the reports filed and the mother's recent behaviour that any changes she has made are so minimal that it is inevitable that the children would not be placed in her care. A trial in several months from now would not change the fact that the mother has such profound personality issues that the steps she has now taken are simply too little, too late.

[141] I have considered that S. and J. long to be placed in the care of their mother but not because they see her as a parent who can meet their needs, who can protect them and provide for them, but because they feel the need to protect and provide for her. That is not the role of children.

[142] In late 2012 and early 2013, Dr. Vallance indicated in her psychological assessments of S. and J. that they needed a permanent plan. The society was hopeful at that time that the mother would be able to meet the needs of the children and placed them in her care. She was not able to meet their needs or work cooperatively with the society and the children then came back into the care of the society in November 2013, it is now two years later and nothing significantly has changed. This court owes these children some stability in their lives and an opportunity to adjust to their new reality that they are simply unable to return home as their mother is unable to care for them despite her sincere love for them and her sincere desire to able care for them.

[143] The often quoted comments by Justice Katarynch in Children's Aid Society of Toronto v. R.H. are particularly apt in this case:

Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to 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.

[144] A trial will only prolong the inevitable result and further keep these children in limbo.

[145] I also find that there is no triable issue with respect to access. Based on the mother's inability to accept that the foster parents are providing good care for the children and her ongoing criticism of the care they receive, it is important that the society has discretion with respect to curtailing the mother's access if necessary. The psychological assessments of the children also indicate that access may have to be curtailed depending on the anxiety of the children. Dr. Amitay's report also made recommendations for an increase in access if the mother was able to make changes that he felt were necessary for a consistent basis over several months and if the children were able to tolerate the access. Therefore there is uncontradicted evidence that a flexible access arrangement is necessary and in the children's best interests.

[146] I am aware this will be a difficult decision for the mother. But I hope that she can support the children in accepting this decision and that she will continue with appropriate counselling to help her deal with her own needs and in that way be a better parent to her children who want and need an ongoing connection with her. But if the mother attempts to undermine the children's placements or continues to be critical of their care this will ultimately result in serious curtailment of her contact with them.

12. Conclusion

[147] The summary judgement motion is granted. The children, S. M. born 2004 and J.M. born 2007 shall be made Crown Wards with access to S.M. in the discretion of the society and in accordance with the children's wishes.

Released: November 19, 2015

Signed: "Justice Roselyn Zisman"

Footnotes

[1] J. has previously been found to be in need of protection on October 10, 2012 but due to a loss of jurisdiction a further finding, pursuant to section 32 (2)(b)(i) and (ii) was made on March 31, 2015

[2] Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (S.C.J.)

[3] Children's Aid Society of Oxford (County) v. J.J., [2003] O.J. No. 2208 (S.C.J.); Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), [1996] O.J. No. 3081, (G.D.)139 D.L.R. (4th) 534; Children's Aid Society of Simcoe v. C.S. [2001] O.J. No. 4915 (S.C.J.); Children's Aid Society of Niagara Region v. S.C., [2008] O.J. No. 3969 (S.C.J.)

[4] , [1999] O.J. No. 5561 (C.J.); See also Jewish Child and Family Services of Toronto v. A.(R.) [2001] O.J. No. 47 (S.C.J.)

[5] Children's Aid Society of Toronto v. A. (M.), [2002] O.J. No. 2371 (C.J.)

[6] Children's Aid Society of the District of Nipissing v. M.M., [2000] O.J. No. 2541 (S.C.J.); Children's Aid Society of Hamilton v. M.N, ibid

[7] ibid

[8] Children's Aid Society of Dufferin v. J.R., [2002] O.J. No. 4319(C.J.)

[9] Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084 (C.J.); Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442(S.C.J.)

[10] Children's Aid Society of Hamilton v. W.H., [2006] O.J. No. 1255 (S.C.J.).

[11] Children's Aid Society of Toronto v. R.H. and M.N., [2000] O. J. No. 5853 (C.J.).

[12] T. began overnights visits with the mother but these broke down and based on her wishes to remain in care she was subsequently made a crown ward on March 13, 2015.

[13] D. was subsequently placed in the temporary care of his father Mr. H. on May 15, 2014 subject the supervision of the society.

[14] After the children were in care, the society needed to bring a motion for the children to obtain their vaccinations which at the last moment the mother consented to.

[15] Page 37 of report, Dr. Amitay states that some people with the threat of losing their children hit rock bottom and truly begin to rebound and demonstrate these changes.

[16] , [2000] O.J. No. 5853 (OCJ) at para. 16 and cases cited therein.