WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: April 18, 2016

Court File No.: C71286/14

Between:

Catholic Children's Aid Society, Region of Toronto Applicant

— AND —

K.S. Respondent mother

C.K.W. Respondent father of D.

A.A. Respondent father of J.

K.T.D. Respondent father of A.

P.J.K.D. Respondent father of L.

Before: Justice Roselyn Zisman

Heard on: March 7, 2016

Reasons for Judgment released on: April 18, 2016

Counsel:

• Fatima Husain — counsel for the applicant society
• Andreas Solomos — counsel for the respondent mother K.S.
• No one appearing for Respondent fathers

Zisman J.:

Introduction

[1] This is a summary judgement motion with respect to the four children of the Respondent mother K.S. ("the mother"). The Catholic Children's Aid Society of Toronto ("the society") seeks statutory findings, a finding that the children are in need of protection pursuant to sections 37 (2) (b) and 37 (2) (g) of the Child and Family Services Act, (" CFSA "), an order making three of the children crown wards, with no access for the purpose of adoption. If the order is granted it is the plan of the society for three of the children to be adopted by the current kin family caregivers. As the child, J.J.M.S. ("J.") has special needs and will require specialized care, the society is seeking an order that she be made a crown ward with access.

[2] The mother opposes the order and seeks a return of the children to her care. It is the mother's position that there is a triable issue that requires a trial relating to the positive changes the mother has made and her current ability to meet the needs of the children. It is also submitted that there is a triable issue with respect to the lack of services provided to the mother and the society not providing the mother with an opportunity to parent her youngest child L. It is submitted that there are credibility issues that require a full trial. Counsel made no submissions with respect to the statutory findings or the findings requested by the society regarding the need for protection.

[3] The children and their fathers are as follows:

• J.J.M.S. born […], 2007 ("J.") - her father is A.A. and he is deceased;
• D.J.C.S. born […], 2008 ("D.") - his father is C.K.W. and he has had limited contact with him since birth and has not participated in this proceeding;
• A.L.K.S. born […], 2011 ("A.") - her father is K.T.D. and he lives out of the country and has had no contact with her since the apprehension. He did file and Answer and Plan of Care stating he wished to plan once he was able to return and asked the court to grant him a visa to return to Canada;
• L.A.L.S. born […], 2015("L.") - his father is P.J.K.D. who expressed an interest in planning for his son. He filed a plan of care seeking that his son be placed in his care. He has been attending access.

[4] None of the Respondent fathers responded to or participated in this summary judgement motion though properly served except the father of L. who attended on the motion. He advised the court that he was no longer able to plan for the child and then he withdrew.

Background

[5] D. was apprehended from his mother's care on July 15, 2014 due to concerns that he had been found alone in the community on two separate occasions without proper supervision. The society also had a history of involvement with the mother due to the children being exposed to domestic violence and concerns about her parenting.

[6] On July 21, 2014 the parties appeared in court. The society sought an order placing D. in the temporary care and custody of the society as well as a supervision order for J. and A. The court instead made an order placing all three children in the care of the society.

[7] The mother sought a return of the children to her care but in the alternative she proposed her cousins Mr. and Mrs. P. ("P. family") as caregivers.

[8] On February 24, 2015 the mother's motion for a return of the children to her care was dismissed.

[9] The P. family was an approved foster home in Windsor and agreed to the children being placed in their care but as a "kin in care" placement with a view to adoption.

[10] At the assignment court on August 5, 2015, the case was scheduled for trial as a standby trial for November 16, 2015 trial sittings.

[11] The mother gave birth to L. on […], 2015 and he was apprehended. An order was made on August 17, 2015 placing him in the care of society on a temporary without prejudice basis.

[12] A temporary care and custody motion was heard on September 18, 2015 with respect to L. and he was ordered to remain in the care of the society.

[13] A case conference was held and an order was made that the child L. was to be included in the trial for the other children. The society advised that it was seeking to proceed by a summary judgement motion. Timelines were set for the hearing of the motion and the trial dates vacated.

[14] On August 11, 2015 D. and A. were moved to the kinship home in Windsor. The mother visits them twice a month in the society office in Windsor.

[15] L. has remained in a foster home in Toronto.

[16] J. who has Down's syndrome has remained in a specialized treatment foster home in Oakville. The mother exercises access to J. and L. twice a week at the society's offices.

[17] The society filed a factum and book of authorities and relies on the following affidavits:

(a) Patricia Williams' affidavit sworn November 9, 2015; Ms Williams was the family service worker from January 2008 to June 2012;

(b) Helen Gibbs' affidavit sworn November 16, 2015 and December 16, 2015; Ms Gibbs was the family service worker from December 2012 to August 2015;

(c) Fiona Ponticelli's affidavit sworn November 10, 2015; Ms Ponticelli is a family service worker and she was involved briefly in the children's apprehension from July 15 to 25, 2014;

(d) Stephanie Reid's affidavit sworn November 13, 2015; Ms Reid is a social service assistant and she was involved in the supervision of access from October 2014 to July 2015;

(e) Sophia Bennett's affidavit sworn November 12, 2015; Ms Bennett has been the family service worker as of August 2015; and

(f) Michelle Nathan's affidavit sworn November 13, 2015; Ms Nathan has been the child service worker since the children were placed in care.

[18] The mother relies on the following affidavits:

(a) on her own affidavit sworn December 14, 2015;

(b) Wendy Curnew-Harris' affidavit sworn December 13, 2015; Ms Curnew-Harris and her family members are prepared to be a support to the mother; and

(c) Jasmine Surkari's affidavit sworn November 20, 2015; Ms Sukari is a community resource programmer in the community where the mother resides.

Issues to be Determined

1. What are the statutory findings?
2. Are the children in need of protection?
3. If there is a finding of need for protection, what disposition is in the children's best interests?

Applicable Statutory Principles and Law Regarding Summary Judgement Motion

[19] Subrule 16 of the Family Law Rules (" 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.

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

[21] 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.

[22] 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.

[23] 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.

[24] On May 2, 2015, the FLR were amended to broaden the powers of the court on a summary judgement motion. Subrule 16 was amended to include the same powers as provided in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure. Subrule 16 (6.1) and 16 ( 6.2).

[25] Subrule 16 (6.1) provides that in determining where 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 interests 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

[26] Subrule 16 (6.2) permits the court, for the purposes of exercising any of the powers in subrule (6.1), to order that oral evidence be presented with or without time limits.

[27] 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.

[28] 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".

[29] 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 Rule 16, this may:

…broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.

[30] 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.

[31] 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.

[32] 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 the judge 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, the judge 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) [which are identical to subrule 16 (6.1) and (6.2) FLR ], that is to weigh the evidence, evaluate credibility, draw inferences and possibly receive oral evidence on the motion. However, 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.

[33] There will be no genuine issue requiring a trial of the summary judgement motion process provides the court with the evidence to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure.

[34] 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.

[35] 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.

[36] 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.

[37] 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, in any, that the court deems appropriate.

[38] 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.

[39] It is also necessary to consider subrule 2 FLR 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.

[40] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that she faces some better prospect that what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent.

[41] I have also considered that a crown wardship order is the most profound order that a court can make. To take someone children's from a parent is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence and only after a careful consideration of the alternative remedies.

Prior Involvement of the Society

[42] From 1998 to 2004, the society was extensively involved with the mother and her two siblings due to her parents admitted use of physical discipline. The mother and her sister were in care several times as there were also concerns about escalating parent-teen conflict. The mother's brother was diagnosed with ADHD and behavioural issues and was placed in a residential treatment program.

[43] The society again became involved when the mother was pregnant with her first child due to concerns about her plan to raise her unborn child while living at home with her parents given the prior history.

[44] J. was born on […], 2007 with mild Down's syndrome.

[45] Patricia Williams was the family service worker assigned to the family from January 28, 2008 to June 4, 2012. In the first couple of year, Ms William worked with the mother and her community supports to encourage her to access services and attend medical and therapeutic appointments for J. The mother frequently did not attend appointments for J., did not stabilize her financial circumstances or obtain stable housing.

[46] D. was born on […], 2008.

[47] In October 2009, the society received a report of domestic violence between the mother and C.W. (the father of D.) He was charged with assault. The mother advised that they were not living together and she had no plans to reconcile. The mother moved into the home of her parents with both children. But she alleged that her mother was an alcoholic and there was an incident of a physical altercation between her and her mother. Shortly thereafter, the mother reconciled with C.W. and allowed him back into her home.

[48] In November 2009, the society received another report of domestic violence between the mother and C.W. who was again charged with domestic violence and a breach of probation.

[49] The mother was encouraged to obtain a custody order for the children before C.W. was released from jail. The mother was again encouraged to attend program for victims of domestic violence and attend appointments for the children. The mother struggled to obtain birth certificates for the children and as a result could not obtain legal custody, obtain health cards or enrol them in any day care programs. The society worker also attempted to assist the mother is setting up a budget but instead the mother squandered almost $5,000 she received as retroactive payments from her ODSP and Child Tax Benefit. By 2011, although the mother was meeting with her professional supports, she had still not obtained the children's birth certificates.

[50] In February 2011, the mother became ill and had to be hospitalized. The children J. and D. were placed in the care of the society pursuant to a temporary care agreement initially for 30 days and then extended until the end of June 2011. During the time the children were in care, the society arranged for the children's birth certificates and health cards.

[51] During the time the children were in care, the mother had supervised access to them in her home. Due to concerns about the mother's ability to deal the children's behavioural issues, the society made a referral for a parent support worker to work with the mother regarding discipline techniques and how to handle the children's tantrums. A referral was also made to the Macaulay Child Development Centre for parenting skills.

[52] In September 2011, J. was to begin school. The mother did not complete the registration and had not obtained daycare for the children. She had still not obtained high chairs for the children that the society's health specialist and child service worker stated they needed to be using. The mother had not cooperated with the utilizing the services of the parent support worker.

[53] The society was subsequently informed that the mother had sent J. to Nova Scotia, where her parents had moved.

[54] A. was born on […], 2011. The father T.D. was also in the home also and assisting the mother. Although later the mother reported that he was a workaholic and was not assisting her.

[55] The mother told the society worker that her cousin was caring for D. while she recuperated and it was too expensive for her parents to return J. to Toronto and that she might have to go get her or maybe her father would bring her back in December. When reminded that J. needed to be in school and/or in the Early Years program to obtain the benefit of appropriate stimulation, the mother responded that her father took the child for daily walks but now that the weather was too cold he could no longer walk anymore.

[56] J. was not returned to Toronto until the end of February 2012. As a result she did not obtain ongoing treatment of her Down's syndrome and Surrey Place workers who had been providing services for J. closed their file.

[57] When the society worker attended at the home in March 2012, the mother advised her that D. had "mistakenly" pushed J. down the stairs and as a result she spent 2 days in hospital. But she was fine except for a slight bruise. The mother advised the society that D. had been enrolled in school and the workers from Surrey Place were assisting her with a proper school placement for J. The mother was again encouraged to obtain legal custody of the children.

[58] On June 4, 2012 the society closed its file as the children appeared to be doing well and the mother was cooperating with her community supports even though she was not cooperating with the society.

[59] The mother does not dispute this background but relies on the fact that the society never proceeded to court and had closed their file.

Events Leading Up to Apprehension

[60] On October 28, 2012 the society received a call from the police advising that a neighbour reported that at 2:12 a.m. the child D. then 4 years old, had been wandering around in his pyjamas as he did not know where he lived. The door to the mother's home was open and he was able to say he lived there. There were no adults present and the other 2 children, J. and A. were sleeping. The police arrived at the home at about 2:25 a.m. and the mother arrived about 5 minutes later.

[61] The mother explained that she had gone with a friend to a bar near Canada's Wonderland and left the children with her brother R. Her brother called her at around 2:00 a.m. and told her he had to leave to perform with his band. The mother told her brother to leave the children and lock the door as she would be home shortly as she assumed a taxi ride home would only take 15 minutes. The police noted a marijuana grinder that the mother admitted was hers. The home appeared fairly safe and there was food. The mother was charged pursuant to the Child and Family Services Act. The mother advised the police that she had previously involvement with the society and was aware the society would be contacted. The mother subsequently pleaded guilty to this charge. The mother admits this incident and deposes that she accepted responsibility for the incident.

[62] In December 2012, Helen Gibbs was assigned as the family service worker. The protection concerns identified when she assumed carriage of the file were as follows:

(a) October 28, 2012 incident of inadequate supervision;

(b) Concerns about D.'s acting out and aggressive behaviours; and

(c) The mother's lack of sufficient supports.

[63] Ms Gibbs was involved with the family from December 2012 to July 2014 and during that time she had the following concerns:

(a) Further incidents of the mother not properly supervising D.:

For example, on June 5, 2013 the worker observed D. who was 4 1/2 years old at the time and 2 other boys around the same age heading to a mobile library bus that was not visible from the mother's front door. After 15 minutes the worker pointed out that the mother had not checked on D. The mother then left to go get him, but he refused to go inside the home. D. was then observed to be involved in a physical fight with a 2 year old and when the mother went towards him he got on his bike and drove away. The mother did not appear to appreciate the danger of such a young child playing outside without proper supervision. While they went looking for D. the worker observed 3 men sitting nearby drinking beer and there was an odour of marijuana. D. was located at the community centre where a staff was responding to D. who was angry at another peer. The mother did not address the fact that D. had taken off and not told her where he was going. There were similar incidents on June 19 and August 16, 2013. The mother continued to show a lack of any real understanding of the concerns and did not take any measure to prevent the continued lack of supervision;

(b) D.'s aggressive behaviours both at home and school:

During the several incidents where D. had wondered off, the worker observed that he became involved in physical altercations with other children and would hit or punch them. D.'s school reported concerns about his behaviour including using foul language, being aggressive with his peers and also causing disturbances such as getting up on the teacher's desk or kicking all the objects off the table. As a result he was no longer permitted to attend any school trips. D. was also not attending school much as the mother struggled to get him into his class and he was also sent home frequently due to his behaviour. At home, D. appeared to have little regard for the rules. The mother reported that D. had trouble treating the kittens with care and had thrown a kitten down the stairs which led to its death;

(c) J. deteriorating behaviours:

The mother reported to the worker that J. had caused injury to other children or adults and some of these incidents were unprovoked and there were concerns about keeping others safe around her. The worker also frequently observed J. hitting or slapping her siblings. The school reported that J. was physically acting out on the bus which included hurting other students, getting out of her seat belt and swearing. At school she was reported to hit, pull hair and scratch others at random. The mother reported that J. had not been attending school much since Easter due to her outbursts and refusal to cooperate. The mother reported that J. behaviour was deteriorating as she was urinating and defecating on the bed or floor rather than using the toilet, she was having lots of meltdowns and crying to the point of vomiting;

(d) The mother's poor follow through with implementing parenting strategies:

The mother has no plan with respect to how to deal with the deteriorating behaviours of both D. and J. and their lack of school attendance. The mother did not follow through with strategies that were suggested. For example, the behavioural therapist from Surrey Place suggested a reward chart for J. but the worker never observed the mother using a reward chart to deal with J.'s behaviour. The school reported that the mother did not follow through with their recommendations regarding the level of supervision of J. in the school and a speech and language assessment for J. had not proceeded as the mother did not contact the therapist. The worker observed a lack of routines in the home with respect to bedtimes and accessing food and snacks. The worker heard the mother yelling and swearing at J. because she had defecated in the bathtub and D. was visibly upset by the yelling;

(e) The mother abdicating her parenting role to either her boyfriend or her brother:

In September 2013, the mother introduced the worker to her new boyfriend C. who stayed over at her home and was helping with the children. Over the next several months, the worker observed that the mother was relying too heavily on C. to parent the children as he would be the one to discipline D., as well as getting the children into a routine about eating at the kitchen table and getting them up and ready for school. The mother was heard to say to D. if he did not behave she would tell C. The mother did not appreciate that she should not be abdicating her parental responsibilities to C. By the end of November the mother had asked him to leave as he had charged over $800 on her Bell telephone bill. The mother did not appreciate the potential impact on the children of someone who had been parenting them suddenly leaving. The mother felt that D. would be happy because C. was too strict and other the children were too young to notice. The mother told the worker that the hole in the kitchen wall were as a result of C. throwing 2 of her kitchen chairs against the wall. But in her affidavit, the mother disputes this and says the wall was damaged when he was moving out. The mother also left the children with her brother who had been irresponsible in leaving the children unattended;

(f) The mother's difficulties in setting appropriate limits with people in her life despite the negative impact on her and the children:

For example, the mother advised in February 2013 that she was pregnant and that her partner had forced himself on her and was violent but it was not a problem as she no longer saw him. The mother allowed D.'s 16 year old paternal uncle to live in her basement where he smoked marihuana, partied and had up to 4 of his friends living there with him. The mother did not know what to do as she felt sorry for him but could not appreciate the potential risk to her children. She continued to allow him to remain although he took money from her, ran up her telephone and cable bill to the extent that she could not buy necessities for her children;

(g) The mother's difficulties accessing and following through with services:

For example, in December 2012 the mother was advised to contact Aisling Discoveries to provide an assessment and treatment for D., by February 2013 the mother had still not followed up. The mother advised that she was now not proceeding with the referral as she had been contacted by the school but could not tell the society worker the name or contact information and no services were put in place for D. In 2013, the society worker tried to arrange summer camps for D. and J. due to their high needs and was told the mother had already made arrangements but she sent J. for the summer to her parents in Nova Scotia and only arranged some drop in day program for D. The mother attended only the first session of a parenting program recommended by the society as she prioritized other meetings. In March 2014 the mother was referred to Family Services Toronto to obtain a case manager for J. as the society worker was concerned that J. was not involved with any community services. The mother had not implemented this service by the time the children were apprehended. The children's doctor reported that he had referred the mother to Hincks-Dellcrest in November 2012 due to concerns about D.'s behaviour and the mother's parenting abilities but he received no feedback that the mother followed through. The doctor would have expected to see D. and J. more frequently due to D.'s behavioural issues and J.'s diagnosis of Down's syndrome.

[64] The mother generally minimizes the concerns outlined above with respect to the behavioural issues of both D. and J. and the lack of proper supervision. The mother explains the various reasons she could not follow through with services. With respect to her relationships or permitting the paternal uncle to remain in her home, which she admits was for almost a year, she denies the concerns outlined by Ms Gibbs in her affidavit.

Apprehension

[65] On July 11, 2014, a society worker received a telephone call from the police advising that D. who was 5 and ½ years old had been found at the No Frills supermarket at 9:15 p.m. the night before looking for his mother. D. knew his mother's name but not his address. The police officer with the help of the store manager was able to identify the child and where he lived. However, when they called the home no one answered. They were able to reach the child's uncle R. who attended at the grocery store but he did not know where the mother was. On the way to the home, the police observed the mother and her daughter. The police questioned the mother and reported that she said she had bathed D. and got him ready for bed. However, the police reported that D. was in street clothes when they found him. The mother reported that she needed to go to the grocery store to get some food and left D. with some teenagers who had been at her home. The police could not confirm this information. The mother stated that when she left, D. was in the backyard with about 20 other teenagers and the teenagers said they would look after him. She then reported that on her way to the store with her daughter, she saw a man in the park feeding alcohol to a baby and called 911 and stayed until the police arrived. The police were able to verify this. She then returned home and when she realized D. was gone, she went looking for him. The teenagers thought that D. had just gone looking for her. No charges were laid as the police felt she had not intentionally left the child unattended and she seemed genuinely upset.

[66] On July 15, 2014, Fiona Ponticelli a society worker who had received the police call, attended unannounced at the mother's home. The home smelt of marihuana and the mother reported that it was her brother R. who smoked and not her. When asked to explain the incident, the mother reported that she had gone to bank at the mall at Jane and Finch because she forgot her bank card there earlier in the day. She took J. with her and left D. in the care of her friend's son and his friend who were both 16 years old. Although D. had been grounded that day for throwing rocks at a car, she let him go outside to play with his friends in the backyard. The mother stated that D. must have heard her say where she was going and followed her. Once the teenager who was supposed to be watching him saw he was gone, he called her brother. The mother advised that she did not see D. on her way home because she took a back route and came upon a man who was intoxicated and feeding beer to a baby. She called the police and had to wait until they arrived.

[67] The mother reported that in that time frame D. had managed to walk to No Frills (in the same mall as the bank) by himself, which involved crossing a major intersection at Jane and Driftwood. The mother said that she did not feel this was a big issue because although her son was only 5 years old, she believed that he was smart enough and knew how to cross at the lights. The mother also told the worker that she regularly had trouble with D. trying to sneak out of the house.

[68] When asked about A.'s whereabouts, the mother advised Ms Ponticelli that she was with her parents and she did not know how long she would remain there. Despite telling the worker that her parents used physical discipline in dealing with both her and her brother and would hit them with beer bottles and glass ash trays, she was not worried about A.'s safety as her parents were much better with her children than they had been to her.

[69] In the mother's affidavit, she does not deny the 2 incidents where D. was left unsupervised in October 2012 and July 2014 but deposes there are no other concerns about her parenting or ability to meet the needs of all of her children.

Evidence with Respect to the Children

[70] Michelle Nathan has been the children's service worker for all of the children since they were admitted into care. She attached many reports to her affidavit of the Plan of Care meetings, school reports and reports from the many professionals involved in the children's lives. The mother did not dispute the information in Ms Nathan's affidavit or in the reports attached.

[71] J. is described as a sweet little girl who is engaging with people she knows. J. has remained in a specialized foster home since her admission into care in July 2014 and can remain there until she is 18 years old or until her needs can no longer be met in that home. When she was admitted she was essentially non-verbal but could understand some basic commands. She displayed many inappropriate behaviours such as spitting, kicking, scratching and hitting. She required assistance with all aspects of bathing and would not brush her teeth. She was able to dress and undress with some assistance and was toilet trained and able to go to the washroom independently. She was referred for a speech and language assessment and recommendations were made to increase her expressive and receptive language skills. J. attends school regularly and she is reported to love school. She has been placed in an integrated classroom with her own education assistant and other supports. Although her life skills and behaviour at the foster home and at school have improved, she requires constant redirection and firmness to keep her focused and behaving appropriately.

[72] D. and A. were placed in the same foster home where they remained until they were moved in August 2015. They have a close relationship and it is important that they remain in the same placement. They settled well into the foster home. The mother had a good relationship with the foster mother and she never complained about the care the children received in that home. The mother had proposed the P. family, who are her maternal cousin and his wife, as an alternative to foster care and in August 2015 D. and A. were placed in that home. After an initial period of re-adjusting to the rules and expectations of that home, they settled in and are both doing well.

[73] D. is described as a handsome, energetic, talkative boy but he can be rambunctious, rude and physically aggressive to peers and adults. Since being admitted into care, his behaviours have significantly improved. His foster mother never reported any concerning behaviour as she was always able to calm him down and redirect his aggressive and inappropriate behaviours. The foster mother established a routine and structure in her home, she was clear in her rules and expectations and consistent with consequences for misbehaviour. However, there were ongoing issues with respect to D.'s behaviours at school. He was assessed by a school psychologist and recommendations made for an intensive behavioural support program and referrals were also made for occupational therapy, speech and language therapy and ongoing therapy through the Hinks Dellcrest Centre. The therapy was to address his behaviour, emotional struggles and negative relationship with his mother. D. began to do much better at school and his behaviour improved. Since being placed with the P. family, D. has been integrated into a regular classroom with resources supports. D. loves school, is doing very well and working at grade level. There have been no significant behavioural concerns.

[74] A. is described as a beautiful, talkative, smart little girl. She is very social and engages well with adults and her peers. A. is healthy and there are no medical concerns. She began school in September and loves it. There are no reported concerns about her. She settled well into her placement in the P. family and is thriving in their care.

[75] L. is described as a healthy infant and there are no concerns about his development. He was apprehended at birth and placed in a foster home. However, as his father continued to complain about the placement he was moved to the same foster home as D. and A. He continued to remain in that home after D. and A. were placed with the P. family. The society plan would be to also place him with the P. family.

Evidence with Respect to Access Visits

[76] Initially the mother had access to all of the children at the discretion of the society but at a minimum of twice a week. For period of time, the mother's access to D. was reduced to once a week and for one on one visits with the mother only.

[77] In February 2015, the mother brought a motion for the children to be return to her care or in the alternative, increased access. The motion was dismissed on February 24, 2015 and the society's request for a variation of access was granted in that all access would be at the society's discretion.

[78] When D. and A. were placed with the P. family in Windsor, the mother visits were changed to twice a month at the Windsor children's aid society. After L. was born the mother had visits with J. and L. twice a week. Initially the mother and L.'s father were sharing visits but as of October 2015, their visits were separated. The mother's access has remained fully supervised.

[79] The affidavits of Helen Gibbs, Stephanie Reid, Sophie Bennett, Michelle Nathan and Tashana Aziz outline their observations of the mother's access visits since the children have been in care.

[80] The society workers outline the positive aspects of the mother's access as follows:

(a) The mother is affectionate and clearly loves her children;

(b) D., J. and A. know their mother and love her and were excited to see her;

(c) The mother engages the children and enjoys her time with them. The mother brings crafts and different activities, plays imaginary games, reads and colours with the children. She calls family members and lets the children speak with them and shares family photos;

(d) The mother brings food and drinks and purchases toys, clothing and other items for the children;

(e) The mother tries to structure the visits with a meal time, craft or play time or watching something on her phone;

(f) The mother tries to manage the children's behaviours and redirect them if they are misbehaving. In particular if D. was acting out, at times she has been able to verbally redirect him or physically intervene;

(g) The mother at times was able to acknowledge her behaviours toward the child and the areas that needed to be improved. For example, she stated that she knew that the judge was judging her ability to "manage" the children, that she spoke to the children as if they were adults, that it was not good for D. to swear and that it was difficult for her to manage all 3 children on the visits;

(h) The mother attends the visits consistently and on time;

(i) The mother is able to handle the instrumental needs of L.; and

(j) The mother is polite and able to express her concerns or questions about the children in a calm and respectful manner.

[81] The society workers outline the negative aspects of the mother's visits as follows:

(a) The mother has difficulty regulating her emotions. Access went well if the children are happy and cooperative but the mother becomes easily frustrated, especially when D. is non-cooperative. When her mood was low, she was less able to respond effectively to the children. When the mother loses control of her emotions, she becomes verbally abusive and physically aggressive to D. and J. when they become defiant, oppositional and disrespectful of her;

(b) Although the mother did bring meals or snack these were not always nutritious. Despite the mother being given food vouchers, this did not always result in healthier food choices;

(c) The mother had difficulty managing and redirecting D.'s behaviour. When D. acted out by yelling, throwing things, refusing to co-operate and hitting his siblings, the mother would make inappropriate comments. For example, when D. made a negative comment about her, she told him "you're lucky we are here"; when he was crying she told him, "stop your annoying me" and "are you going to get an Oscar for your acting?" Another time, she told D. he needed a "straight jacket and a pillow room" At other times the mother would just ignore his behaviour. On one visit, D. ran out of the room and to the elevator and kicked the worker and later kicked his mother several times, the mother stood still and repeated several times, "I'm not kicking you so why are you kicking me". The mother told the worker that it was hard to deal with D.'s behaviour so she preferred to ignore them. On another visit, the mother threw D. out of the access room. Many times the mother gave D. mixed messages which in turn triggered his behaviour;

(d) D. was not allowed to visit with the mother at the Saturday access program due to his behaviour as the program was run by volunteers who could not intervene between D. and the mother;

(e) The mother was not able to manage visits with all 3 children and wondered how she could "entertain" them since at home they could go outside, watch television and had their own space;

(f) The mother usually started the visit upbeat and energetic but by mid-way seemed tired and less engaged;

(g) When the children got hurt, such as bumping a knee, initially she would laugh and then respond with a nurturing comment or physical affection;

(h) Although the mother was open to suggestions and feedback during the visits, she was not able to sustain and use the feedback in subsequent visits. For the majority of the visits, the worker supervising would have to intervene multiples times during the visit;

(i) For the majority of the times, the mother would use her cell phone to engage the children in watching music videos or character shows, but if the cell phone did not work, the mother was unable to initiate other activities. When the supervisor suggested other activities the mother was open to the suggestions but could not think of alternatives on her own;

(j) There were concerns about the mother's ability to appropriately discipline the children. For example, in one visit when D. became upset because he could not listen to music on her phone he kicked her and the mother then reacted by holding his leg and raising it higher in the air so that he fell on the floor. When he lay on the floor crying, the mother made no attempt to comfort or help him. D. then stood up and swore at the mother, threw a pop can on the floor and climbed onto the couch. Without intervening or speaking to D. about his behaviour and in the presence of the other children, the mother picked D. up and threw him on the floor and started to use his clothing to wipe up the spilled pop. When the supervisor intervened and removed D. from the visit and told the mother he would not be returning she said,"I can't take this disrespect; it's because I can't put my hands on him. D. can stay up there if he wants I don't care". On another visit, the mother grabbed and dragged D. out of the access room and threw him on the floor in the hallway and slammed the access room door;

(k) During access visits with J. the mother frequently does not know how to engage J. she vacillates between treating her as if she had no special needs to treating her as if she was unable to do any tasks. The mother was observed to have a lack of knowledge about J.'s developmental stages and her Down's syndrome. The mother would provide and feed J. with excessive amounts of food and allow her to eat for the majority of the visit. Even when the mother was told that J. was getting sick when she arrived at the foster home, the mother ignored the concern or became upset. She had a similar reaction when told not to feed J. dairy products. The mother's response was, "fuck this, I've been feeding my child for 7 years with dairy products, I'm not going to stop this now" and that she would, "feed her what she wants". The mother continues to insist on grooming and cutting J.'s nails despite the fact it cause her distress. The mother also had difficulty redirecting J.'s behaviour and was observed to often yell at J. to give her directions or to correct her inappropriate behaviours;

(l) The mother would often favour A. who was younger and had no demonstrable behavioural issues. She would bring gifts only for her excluding the other the children; and

(m) The mother blames D. and or J. when visits become difficult. For example, she was heard to say, "you are purposely doing this to mess things up for me". She finds it difficult to calm herself down and try to manage the children's behaviour. For example, when D. swears at her, she swears back at him, or if D. hits her or pushes her, she does the same to him. She threatened that if they keep up this behaviour they will remain in foster care or the P. family will not want to keep them.

[82] The mother deposes that the society workers have not reported the positive access visits she has with the children and the positive things she does with them and have only focused on a few difficult visits. The mother deposes that her budget was limited and the society only gave her food vouchers for a totalling $100 on two occasions and she could not afford to purchase a lot of food.

[83] The mother deposes that sometimes despite her best efforts she was "gloomy" as her children had been removed from her care and she was aware the society workers were watching her visits behind a glass wall. The mother explains D's behaviour due to the fact that at the end of almost all of the visits he would cry and want to come home and that the society would call these tantrums but he was just upset as he was in care.

[84] The mother denies or minimizes most of the other concerns raised by the observations of the various society workers who supervised the access visits.

Evidentiary Issues

[85] The FLR permit the admission of hearsay on a summary judgement motion, but the subrule 16 (5) states that if a party provides hearsay evidence of a fact in dispute a court may draw an adverse conclusion unfavourable to the party.

[86] Counsel for the mother only objected to one reference of hearsay in the affidavit of Ms Gibbs with respect to a conversation with one of the mother's community supports, Ms Obiseran who also attended some of the access visits with the mother. The mother in her affidavit indicates she spoke to Ms Obiseran who disputed the contents of the conversation as relayed by Ms Gibbs. There was no affidavit filed by Ms Obiseran which may have been helpful to the mother especially as the mother disputes the society workers' observations of the access visits. But in any case, I agree that the conversation is hearsay. The mother's ability to utilize the recommendations made to her to improve and enhance her access visits and better manage the children is an issue in dispute. Although I would not draw an adverse inference against the society for the inclusion of this conversation in the society's worker's affidavit as it is in the context of providing ongoing supports for the mother, I do not put any weight on the contents of the discussion.

[87] There were other references to third party information such as information from the police regarding the two incidents when D. was found unsupervised and a discussion with the children's doctor which was not objected to. I have not relied on any third party information except for any admissions by the mother that adopts the information of the third party or for the narrow purpose of providing the context and for an understanding of the concerns of the society and the reason for the steps taken by the society workers.

[88] Section 50 of the CFSA expressly contemplates the admission of evidence relating to a person's past conduct towards children and the admission of oral and written statements and reports. Therefore, reports from a child's therapist and other persons involved in a child's life would be admissible pursuant to this provision. There were several reports attached to the society worker affidavits from the society's internal Plan of Care meeting, reports from J.'s treatment home, reports from the children's school and from various professionals involved in the children's therapy. No objection was taken to the admissibility of these documents. I have relied on these documents. The society's plan of care reports would qualify as business records. The third party reports regarding the children are reliable and necessary information about the children's needs and their progress in care. Further, the mother has not raised any issue with the contents of any of these reports.

Statutory Findings

[89] There is no dispute in the evidence regarding the statutory findings in accordance with section 47(2) of the CFSA.

Analysis Regarding Findings of Need for Protection

[90] The society seeks findings pursuant to section 37 (2) (b) and 37 (2) (g) of the CFSA that provide:

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[91] Although the mother did not consent to a finding, I find that she did not present any evidence to dispute that a finding of need for protection did not require a trial. I find that there is overwhelming evidence that such a finding would be the inevitable outcome of a trial.

[92] I make the protection findings based on the following evidence that is not disputed:

(a) The mother has a history of choosing poor partners. The children J. and D. were exposed to incidents of domestic violence. Mr. W. was charged twice with assaulting the mother in 2009. The mother permitted her new partner C. in the home who threw chairs against the wall causing a hole. The mother permitted D.'s uncle to remain in the home despite incidents of anger and verbal disputes;

(b) Despite the fact her parents had physically abused her and her brother, she left J. a child with special needs in their care for lengthy periods of time and also left A. in their care. The mother did not appreciate the potential risk to the children from her parents;

(c) The mother did not make proper arrangements for the supervision of D., which resulted him in being found in 2012 at the age of 4 years old at 2:00 a.m. looking for his mother. Despite knowing D. wandered out of the house, she continued to permit him to be outside the home without proper supervision in her housing complex. Again, in 2014 D. was found at 9:00 p.m. out of his home looking for his mother. This last incident triggered the apprehension of D. Although the mother admits responsibility for these incidents she continues to minimize the potential risk to D. and she made no attempts to change her behaviour so that there would be no further incidents after the initial 2012 incident;

(d) The mother was unable to provide the children with a safe home environment. The mother permitted D.'s uncle to remain in her home despite the fact that he had friends who she did not know sleep over and who partied and smoke drugs. The mother did not recognize the potential risk she was exposing her young children to;

(e) The mother did not obtain the necessary services or follow through with services to meet the needs of J. with respect to her Down's syndrome and the serious behavioural needs of D.;

(f) The mother was unable to ensure the children, D. and J. attended school on a consistent basis. Based on both of these children's special needs, attendance at school and the ability to obtain the assistance they needed created a risk to their development and emotional stability;

(g) Since the children have been in care, the mother has been unable to manage and control the children's behaviour even in supervised access visit. The mother has verbally and physically abusive to the children, particularly to D.;

(h) Since D. and J. were admitted into the care of the society, their behaviours have significantly improved. This leads to the obvious inference that the mother was unable to properly meet their needs. They have now settled into their respective placements, are attending school on a regular basis and receiving the services they require that the mother had not previously arranged for them;

(i) Despite the fact that the mother has been offered a number of supports and services both through the society and the community, her parenting abilities have not improved and thereby the children are at risk of both physical and emotional harm;

(j) Although up to the time of the apprehension, the mother's care of A. had not been a concern, it appears from the mother's past history of parenting that she does fairly well with the children when they are infants and if they have no special needs, but is unable to parent when a child becomes older and his or her needs become more challenging. The mother's choice of sending A. to be with her parents however is a concern given their past history of abuse to her and her brother; and

(k) With respect to L. as he was apprehended at birth, the mother did not have the opportunity to show that she could parent him. Although there are no concerns with respect to her meeting the instrumental needs of L. during access visits, in view of her past parenting of her other children, he is also at risk of harm;

[93] Based on these facts, I find that the society has met its onus to prove, on a balance of probabilities, that there was a risk at the time of apprehension that the children would suffer physical and emotional harm in the care of the mother and that all of the children continue to remain in need of protection.

Legal Considerations Regarding Disposition

[94] After a finding of need of protection is made, the court must determine what order is required to protect the children. In the oft quoted case of Children's Aid Society v. T.L. Justice Perkins set out the statutory pathway to be followed on a disposition hearing (not involving a native 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.)

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

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

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

[98] In considering what disposition order pursuant to section 57 CFSA is appropriate, the best interests of the child must be considered. Section 37 (3) CFSA sets out the factors for determining a child's best interests as follows:

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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.

Analysis Regarding Disposition

Delay

[99] In this case, the children are 8 years, 7 years, 4 years and 7 months. Except for L. they have been in care for over a year. A. has been in care in excess of the statutory timelines. A court does not have to wait for the timelines to expire before making a decision in the best interests of children. The timelines are meant to be a standard or reasonable timeline to determine if a parent is able to assume care of his or her child. In this case, as a hearing had already been scheduled for the other children it was determined that the court should also deal with L.'s placement. Although it is possible for a court to order an extension pursuant to section 70 (4) CFSA with respect to A., I find that it would not be in her best interests to do so. Any delay in a determination of a permanent plan for all of these children is not in their best interests. An extension would not improve the mother's parenting abilities to the extent necessary to return the children to her care in the near future.

Services Provided and Mother's Ability to Utilize Services

[100] Since the society became involved with the mother in 2007, it has made referrals to assist her in understanding the developmental needs of her children, understanding the impact of domestic violence on her children and improving her parenting skills. Referrals were also made for the mother to obtain individual counselling with respect to her childhood issues. The society workers encouraged the mother to obtain a custody order when the children were in her care which would have assisted in her obtaining government financial assistance and support from the children's fathers. The society workers assisted the mother in obtaining disability income for herself, proper identification and medical documents for the children and subsidized housing. The society workers made referrals for J. and D. to obtain the services they required and attempted to assist the mother in registering the children in appropriate schools and ensuring they received the extra support they would require. The society worker attended at J. and D.'s school meetings with the mother.

[101] After the children were placed in the care of the society, the mother was offered the services of a parent support worker and the workers who supervised the access visits offered hands-on parenting education and coaching and attempted to assist the mother in learning how to better manage the children's behaviour and how to make the visits more enjoyable for the children.

[102] The mother has been connected to several community services and attended many programs. In her affidavit she outlines the following programs and services she is or was involved with:

(a) Let's Get Started a parenting program she attended between August to October 2014;

(b) Incredible Years a parenting program she attended from September to December 2014;

(c) Mothers on the Move a weekly self-improvement program that she attended from February to September 2015;

(d) Private counselling on a weekly basis through the Black Creek Community Centre; and

(e) A psychiatric consultation that concluded the mother only suffered from a mild generalized anxiety disorder and did not suffer from any major psychiatric disorder that would impede her parenting ability. The letter clarifies that it is not a medical legal report but only a report to her family doctor.

[103] The mother also has been offered support from Ms Wendy Curnew-Harris who met the mother when as a teenager she stayed at a group home where Ms Curnew-Harris worked and they have remained in touch since that time. The mother also has support from Ms Surkari from the Driftwood Community Centre who swore an affidavit in support of the mother and from Ms Oviseran from the Black Creek Community Health Centre.

[104] I find that the society provided the mother with appropriate services and referrals to assist her in dealing with her personal and parenting issues. It is difficult to imagine what other services the society could have offered the mother either before or after the apprehension of the children over the many years the society has been involved with her and her children. Unfortunately despite all the programs and supports the mother has received she has not been able to incorporate any of the parenting strategies, techniques, information, suggestions or recommendations that have been made on a long term or consistent basis. The mother neglected to follow-up on the services recommended with respect to J.'s developmental needs or D.'s aggressive behaviour. What has become apparent with respect to J. and D. is that with a caregiver who is able to establish a structure, routine and consistency for these children they have significantly improved in care.

Plans of Care

[105] It is the plan of the society that D. and A. remain in the P. family home and if an order of Crown warship is granted that they be adopted. The P. family have been able to meet the challenging needs of D. and both D. and A. have flourished in their home.

[106] The P. family is a foster home and at the time D. and A. were placed in their care they were not able to accommodate another child. They have expressed an interest in also having L. placed in their care and if he becomes available, to also adopt him.

[107] At present it is the society's plan that J. should remain in her current placement as her treatment needs are being met there and her needs are too significant at this time to enable her to be adopted. However, the P. family is prepared to consider adopting her also.

[108] The mother seeks the return of all of the children to her care.

[109] It is the mother's plan that the children would return to reside on their home and in their familiar neighbourhood. She has stable and appropriate housing, the children would engage in child-appropriate activities, would attend school and she will be able to arrange daycare for L. The mother is able to look after the children's hygiene and physical needs,

[110] As indicated the mother has community supports and will attend any programs recommended by the society and abide by any terms of supervision.

[111] It is the mother's position that she has matured, has insight into and understands the children's needs and has learnt from her past mistakes.

[112] There are no other alternate plans before the court.

Application of Best Interest Factors

[113] I make the following findings with respect to the best interests of the children:

(a) D. and A. have been with P. family since August 2015, this placement that can offer them stability and permanence. It is anticipated that L. can also be placed in the same home. Given his age and lack of any concerns about his development, he is a child that could easily be adopted. J. is in a treatment home and she can remain there until she turns 18 years of age. The society in its plan has undertaken to ensure that the children have access to each other and this will ensure that regardless of where J. and L. are placed that all of the siblings will maintain a connection to each other;

(b) All of the children are doing well in care. With respect to J. and D. this is an extremely important factor as while in they were in the care of the mother she was unable to ensure that J.'s developmental needs were met or that J. and D.'s severe aggressive behavioural issues were addressed;

(c) Although the children recognize the mother and seem to enjoy their visits, the mother was unable to manage visits with all of the children. Her interactions with D. are extremely concerning. The workers supervising the visits needed to intercede multiple times and her visits never proceeded to being unsupervised;

(d) No issues were raised with respect to the children's culture or religion. D. and A. are placed with family members so they will also be able to maintain a connection to their other extended family members;

(e) Although the mother has availed herself or many services and programs, there has been no appreciable improvement in her ability to meet the children's physical, mental and emotional needs as has been evidenced by her inability to manage the children during her access visits;

(f) The mother has shown a lack of good judgement in exposing the children to various male partners, to permitting various people to stay in her home, to sending J. and A. to spend considerable time with the maternal grandparents despite the fact that her parents abused her and her brother;

(g) The mother has shown a remarkable lack of maturity in the manner she has dealt with D.'s behavioural outbursts in the access visits; and

(h) The mother's plan for the return of the children to her care would simply be a return of the children to the chaotic circumstances of the past; and

[114] I find that the society has met its onus, on a balance of probabilities, that there is no triable issue requiring a trial that it is in these children's best interests to be made Crown wards. There is no need to rely on the expanded powers pursuant to subrule 16 (6.1) or (6.2) FLR in coming to this conclusion. Although there are some minor disputed facts or clarifications of past events by the mother, none of these are material in nature.

[115] The only triable issue raised by the mother is that she has changed and has supports in place and is now able to parent her children. However, as outlined the mother has always had ample supports in place and sought out services but despite this assistance she was still not able to meet the children's needs in the past and continues to be unable to meet the children's needs even in supervised access.

Applicable Law and Legal Principles Regarding Access

[116] 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 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.

[117] 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.

[118] 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) CFSA , 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.

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

[120] 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.

[121] 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.

[122] 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.

[123] 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 visits are enjoyable, there must be some significant advantage to the child.

Analysis Regarding Access

[124] In this case, the observations of the access visits by several different society workers raise serious concerns about the quality of the mother's access visits. There is also evidence that after the visits both D. and A. are unsettled. The mother's insistence on cutting J.'s nails and grooming her during visits have also now made these visits distressful to her. Although the children recognize the mother and at times enjoy the visits, there is a lack of evidence with respect to any advantage to the children of these visits.

[125] As the society is only seeking an order for crown wardship with access for the child J., I will make that order although I have some serious reservations about the benefit of the access to J. if the mother by her behaviour continues to distress the child. I find that the society should have discretion to limit the access visits including suspending access if the visits are distressful to the child.

[126] I find that the mother has not met the onus on her to establish the first prong of the test that is, that the visits are meaningful and beneficial to the children D., A. and L.

[127] Even if I had found that for some of the children the visits were meaningful and beneficial, I would have found that access would impair the children's future opportunities for adoption.

[128] In this case, with respect to D. and A. there is a plan for adoption by their current caregivers, the P. family who have also expressed an interest in adopting L. and possibly J. and the society is assessing this plan as it would ensure the siblings grow up together. The P. family is committed to ensuring sibling access.

[129] The P. family is concerned that the mother would disrupt any placement with them if she had ongoing access. Ms Bennett who is the current worker shares these concerns as the mother has difficulty putting her own needs aside. For example, despite being cautioned not to speak negatively about D.'s father the mother continued to do so.

[130] The mother also was unable to appropriately explain to the D. and A. that they would be moving to the P. family home in Windsor. On the July 30, 2015 access visit, Ms Nathan the children's worker, discussed with the mother that she should be the one to tell A. and D. about their move to the P. family. When Ms Nathan went into the visit to remind the mother to tell the children, the mother began to scream and yell and swear in front of the children. When the worker reminded the mother that she had presented the P. family plan, the mother's anger and behaviour escalated and she needed to be reminded to calm down because the children were present. Ms Nathan left the room as she felt she was making the situation worse and told the mother that she would tell the children on her own later. When Ms Nathan reviewed the access notes, she noted that the mother did tell the children about the move but she was concerned that the mother's earlier negative behaviour triggered D. who became upset and aggressive during the rest of the rest to the point he had to be removed as he was screaming yelling and being physically aggressive.

[131] I find that there is no triable issue requiring a trial on the issue of ongoing access by the mother.

Conclusion

[132] Although the mother loves her children, she is simply not able to meet their needs. A trial will only prolong the inevitable result and further keep these children in limbo.

[133] There will be a final order as follows:

1. The Catholic Children's Aid Society of Toronto's motion for summary judgement is granted.

2. The statutory findings as requested are made.

3. There is a finding that the children are in need of protection pursuant to subsections 37 (2) (b) (i) and (ii) and 37 (2) (g) of the Child and Family Services Act.

4. The children D.J.C.S. born […], 2008, A.L.K.S. born November 16, 2011 and L.A.L.S. born […], 2015 shall be made crown wards with no access for the purpose of adoption.

5. The child J.J.M.S. born […], 2007 shall be made a crown ward with access to the Applicant K.S. in the sole discretion of the society. Such discretion shall include the ability to suspend access.

Released: April 18, 2016

Signed: "Justice Roselyn Zisman"