WARNING

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

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

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: C80170/15 Date: 2016-09-27

Ontario Court of Justice

In the Matter of an Amended Protection Application for the Crown Wardship of C.F. Born on […], 2015 Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Between:

Catholic Children's Aid Society of Toronto Debra Rosenberg, for the Applicant

Applicant

- and -

M.F. Andrew Sudano, agent for Robert Shawyer, agent for The Office of the Public Guardian and Trustee, for the Respondent, M.F.

Respondent

Heard: September 22, 2016

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought a motion for summary judgment seeking orders that the respondent's child, C.F., born on […], 2015 (the child), be found in need of protection pursuant to clauses 37(2)(b)(i) and (ii) of the Child and Family Services Act (the Act) and be made a crown ward, with no access, for the purpose of adoption.

[2] The respondent (the mother) is the child's mother. She asked that the summary judgment motion be dismissed as there is a genuine issue requiring a trial. In the alternative, she asked the court to make an order placing the child with her present foster parent (the maternal aunt), subject to society supervision. If the child is not returned to her care, the mother seeks access to the child.

[3] On May 10, 2016, Justice Carolyn Jones found that the child's biological father is not a parent of the child within the meaning of the Act. He has had no involvement with the child or this case.

[4] The issues for this court to determine on the society's summary judgment motion are as follows:

a) Is there a genuine issue requiring a trial that the child is in need of protection?

b) If so, is there a genuine issue requiring a trial for a disposition for the child other than crown wardship?

c) If a crown wardship order is made, is there a genuine issue requiring a trial as to whether the mother should have access to the child?

[5] The society relied on affidavits from its workers and the mother's hospital records. The mother relied on the affidavit of her counsel's student-at-law. This affidavit attached many case notes from the society's files as exhibits. The mother did not file her own affidavit.

Part Two – Legal Considerations for Summary Judgment

[6] The society brings this motion pursuant to rule 16 of the Family Law Rules (the rules) – the summary judgment rule.

[7] The case law on summary judgment in family law matters prior to May 2, 2015 was summarized by Justice Ruth Mesbur in Native Child and Family Services of Toronto v. D.C., 2010 ONSC 1038, where she wrote in paragraphs 4-6:

[4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for summary judgment such as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard (2000), O.J. No 969.

[5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party's position, but rather whether the evidence is sufficient to require a trial. Children's Aid Society of the County of Dufferin v. J.R., (2002) 45515 (ONCJ).

[6] Rule 16(4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial.

[8] As of May 2, 2015, the rules have been amended to broaden the powers of the court on a summary judgment motion. Rule 16 has now been amended to include the same summary judgment powers set out in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The relevant provisions of rule 16 now read as follows (with amendments bolded):

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16(1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16(2).

EVIDENCE REQUIRED

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

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) 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.

NO GENUINE ISSUE FOR TRIAL

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

POWERS

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

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

ORAL EVIDENCE (MINI-TRIAL)

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

[9] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out the process to be followed in applying the expanded summary judgment rule in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure.

[10] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers. The legal principles set out in Bedard, above, would still apply at this stage.

[11] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[12] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[13] The court also set out the following:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

g) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).

[14] The principles in Hryniak have been applied to summary judgment motions in many child protection cases since the amendments to rule 16 of the rules became effective on May 2, 2015.

[15] In the matter before this court, the court was able to determine the issues without applying the new powers under rule 16.

Part Three – Facts Not in Dispute or Baldly Denied

[16] The mother is 36 years old and single. She presently lives with her aunt and uncle.

[17] The mother has an 18-year-old child from another relationship who does not live with her.

[18] The society became involved with the mother and the child on January 12, 2015 when it was contacted by a social worker from Humber River Regional Hospital (HRRH). The social worker expressed concerns about the mother's mental health. The mother had delivered the child the day before.

[19] The mother was referred for a psychiatric assessment at HRRH. The psychiatrist noted rapid changes in behaviour by the mother during his interview of her. The psychiatrist noted that the mother indicated concern with the psychiatric interview on more than one occasion. At one point, she picked up the phone to call the police and at another point, indicated that she would make a report and requested the psychiatrist's name. The psychiatrist reported that interspersed with these concerns, the mother participated variably in the session and had bright affect, ultimately shaking his hand and thanking him for the interview.

[20] The psychiatrist observed that the mother had symptoms suggestive of psychosis, including paranoia, and that her presentation likely represented a chronic psychotic disorder. He noted that the mother refused both medication and further psychiatric intervention.

[21] The psychiatrist noted that the mother was gentle and caring with the child.

[22] A society worker (the worker) attended at the mother's home on January 13, 2015 with a nurse, also employed by the society. The mother was living with her parents at that time. The mother was hostile and refused to let the nurse assess the child. The mother became agitated and demanded that the society worker and nurse leave the home.

[23] The worker and nurse reattended at the mother's home that day with the police. After discussion, the mother allowed the nurse to examine the child. The worker expressed concern about the mother's behaviour. She observed that the mother was anxious, and in her words "paranoid". The mother denied to her that she had any mental health issues.

[24] The worker deposed that the mother's family assured her that the mother was taking good care of the child and they were always present with her and the child. The worker spoke to the family about not leaving the mother alone with the child. They agreed. She advised the family that the society would be applying to court for a supervision order.

[25] Subsequently, the society received calls from members of the mother's family expressing concern about the mother's mental health.

[26] The worker met with the mother and her family on January 20, 2015. The mother told the worker that she would not agree to a term that she not be left alone with the child. She denied having any mental health issues. The mother advised the worker that she was moving from her parents' home and that once she did so, would not permit the society to enter her home.

[27] The worker expressed significant concerns about the mother's behaviour at this meeting. The mother wanted the worker to wear a mask as she was unsure if the worker had H1N1 or SARS and requested her to be tested. The mother accused the worker of giving her menacing looks and hand gestures and to using marijuana prior to attending the home. The mother also refused to sign consents for the society to speak with the psychiatrist who had seen her at HRRH.

[28] The worker deposed that the mother demonstrated little understanding about why the society was involved. The mother told her that the reason the hospital had called the society was because she did not have a car seat for the child.

[29] The child was apprehended from the mother on […], 2015 – 10 days after she was born.

[30] On […], 2015, the mother checked herself into HRRH. She was held on a Form 1, pursuant to the Mental Health Act until January 23, 2016.

[31] The mother was treated at HRRH by a different psychiatrist than she saw on […], 2015. This psychiatrist noted that the mother presented with concerning behaviour, including:

a) Expressing that if her mother or sister touch the child, or change her, they might break bones, or make the child bleed.

b) Stating that her father was working for the society and responsible for the child being taken from her.

c) The mother was unable to answer basic questions, such as whether her brother lived with her or if she was working in 2014.

[32] This psychiatrist observed that the mother had been suffering from a psychotic disorder for six to seven years. Much of this history was provided by the mother's family. The psychiatrist indicated in her report that the family was quite adamant that the mother required mental health treatment and that it be enforced. She noted that the mother's insight and judgment were poor.

[33] On […], 2015, the mother was seen by her third psychiatrist and discharged from the hospital as she was found to no longer be certifiable. This psychiatrist noted that the mother was superficially contained and cooperative, but continued to express paranoid thinking, such as a belief that she was being watched continually by cameras in the hospital, that nurses were making threatening gestures towards her and that the nurses were trying to put feces in the child's vagina. The psychiatrist noted that the mother questioned his body language and told him that she didn't like his attitude. He speculated that the mother likely had a history of schizophrenia or schizoaffective disorder, but was clearly thought disordered and had poor insight into her difficulties. The mother initially expressed the belief that she had come to the Emergency Department to get her daughter back. The mother refused the psychiatrist's proposal that she take medication.

[34] On January 26, 2015, Justice Jones placed the child in the temporary care of the society, with access supervised, in the discretion of the society, a minimum of twice each week.

[35] On April 20, 2015, the mother was made a special party, as defined in the Family Law Rules, by Justice Jones.

[36] The society subsequently moved in the fall 2015 to reduce or terminate access because of its concerns with the mother's behaviour. These concerns were:

a) The mother regularly presented as confused, erratic, suspicious and angry at visits. This behaviour would occur in the presence of the child. The mother often complained to workers about non-existent injuries or health problems of the child. She often accused workers of threatening her or the child and threatened to call the police on the workers.

b) The mother would call workers multiple times saying the same thing or asking the same questions.

c) The mother's mood would sometimes quickly change at visits and she would be aggressive to society staff in front of the child.

d) She would have imaginary conversations.

[37] The society urged the mother to obtain services to address the mental health concerns. She refused to access these services, insisting that there was nothing wrong with her.

[38] The society workers set out a number of other concerns about the mother's interaction with the child. They felt that the mother was often not responsive to the child's cues, had a poor understanding of child development, struggled with instrumental tasks such as changing the child's diapers and clothes and removing her from her car seat and was often unresponsive to the child's needs. The workers noted that the mother was often hostile when they tried to give her parenting direction.

[39] The mother filed society case notes that confirmed that she was, at times, affectionate and able to read the child's cues and polite and appreciative of the society. The notes show that she was punctual and committed to access. She would bring clothes, toiletries and gifts for the child.

[40] There is no issue that the mother loves the child.

[41] On November 26, 2015, Justice Jones changed the temporary access order. She endorsed that the mother's access would now be fully in the discretion of the society and that the society could terminate any visit or suspend further visits, on terms, such discretion to be reasonably exercised.

[42] The society reduced the mother's access at this time to one hour every two weeks.

[43] The maternal aunt put forward a plan to care for the child. This plan was investigated and approved by the society.

[44] On January 19, 2016, the child was placed in the temporary care of the maternal aunt by Justice Jones.

[45] The child has remained in the care of the maternal aunt since that time. The child is thriving in her care.

[46] The maternal aunt has put forward a plan to adopt the child if the child is made a crown ward. The society anticipates that this plan will soon be formally approved.

[47] The society's workers observed that the quality of the mother's access deteriorated in 2016.

[48] On March 13, 2016, the mother returned to HRRH complaining of abdominal pain. The mother was found to have a cyst on her labia. The mother was discharged and returned the next day concerned that she was pregnant. She was referred for a psychiatric assessment due to her behaviour. She saw her fourth psychiatrist since January 2015. The mother was observed as not being comprehensible and could not be easily reasoned with or redirected. She presented with paranoid ideation. She was kept in the hospital under a Form 1 pursuant to the Mental Health Act.

[49] The mother was assessed by her fifth psychiatrist on March 15, 2016. This psychiatrist found that the mother was unfortunately (her words) no longer certifiable, although she continued to present with paranoid ideation. This psychiatrist observed that the mother's insight was poor and her judgment limited. The psychiatrist urged the mother to remain in the hospital for treatment but she adamantly refused. She was offered a prescription for medication. The mother did not follow through with this.

[50] The next day, the mother was admitted to St. Joseph's Hospital. She was observed as being disorganized in the Emergency Department and expressed a belief that she was pregnant, even after she was told that she had tested negative. Her disorganization was so extensive that she was noted to be nonsensical at times. She was given chemical restraints in the Emergency Department. The hospital report noted that the mother was at times agitated and confrontational with the psychiatrist. She claimed to feel threatened by the psychiatrist and the nursing staff. She was admitted to the psychiatry department. She refused to accept psychiatric care and was kept involuntarily at the hospital pursuant to the Mental Health Act.

[51] The mother was discharged from the hospital about two weeks later, on March 31, 2016. The hospital records note that the mother maintained delusional beliefs about being pregnant. The psychiatrist noted that the mother clearly remained unwell on discharge. The mother was observed to completely lack insight and to have poor judgment about her medical care. However, there was no clear evidence of her being so impaired that she would be at acute risk. She was made a voluntary patient and immediately elected to be discharged against medical advice.

[52] The society advised the mother that her access would be suspended until she followed medical advice, sought treatment and signed consents to allow it to speak to her treatment providers. The mother has not complied with any of these expectations.

[53] The mother continues to deny having mental health issues. She has ignored medical advice from multiple psychiatrists to obtain treatment.

[54] The mother's mental health problems are not new. In September 2011, she was seen at HRRH. The hospital records indicate that in her interview the mother claimed seeing ghosts and felt that spirits were coming out of her. She was discharged with a prescription for medication and outpatient follow-up. The mother stopped taking the medication and did not attend for outpatient follow-up.

[55] The mother was also brought to HRRH in February 2012 by the police for a psychiatric evaluation. She was found not to be certifiable. Her insight and judgment were noted to be impaired. She was offered inpatient care, but she refused this.

[56] The mother has not had access with the child since March 1, 2016.

[57] The mother did not bring a motion to restore her temporary access.

Part Four – Finding in Need of Protection

4.1 Legal Considerations

[58] The society seeks a finding that the child is in need of protection pursuant to clauses 37(2)(b)(i) and (ii) of the Act. These clauses read as follows:

37(2)(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.

[59] The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.

[60] The risk of harm under clause 37(2)(b) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[61] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children's Aid Society of Brant v. James Albert T. and Melissa Marie S., 2005 ONCJ 302, (Ont. C.J.), at paragraphs: 13-26. The mother had disclosure of the relevant evidence in this case.

4.2 Analysis

[62] The evidence is overwhelming that the child is in need of protection.

[63] The mother suffers from untreated mental health issues that render her incapable of parenting a child.

[64] The mother challenged the diagnoses of the various psychiatrists who saw her, submitting that one was just adopting the diagnosis of the others.

[65] The mother's precise diagnosis is not necessary to determine that she has significant mental health issues. This is evident by the mother's behaviours observed by many professionals. The evidence indicates that the mother's mental health issues are long-standing and profound.

[66] The mother has been hospitalized on a number of occasions due to her mental health challenges, often against her will and as recently as March of 2016.

[67] There are consistent themes in the mother's presentation at these hospital admissions. She is paranoid, her thinking is disorganized and she is often hostile to treatment providers. Multiple psychiatrists have recommended medication and treatment for her. The mother has chosen to disregard all of them. Accordingly, there has been no apparent improvement in her mental health.

[68] The society workers have often observed the same types of behaviours by the mother. These behaviours often occurred in front of the child and necessitated the society reducing and ultimately stopping access.

[69] An unfortunate aspect of the mother's mental illness is her lack of insight into her condition. This has prevented her from obtaining the services and treatment she desperately needs. By the court's count, the mother has been treated in hospitals by six different psychiatrists since January 2015. She needs one psychiatrist who can coordinate her treatment.

[70] The mother submits there is no link between any mental health issues and her parenting. The court does not agree.

[71] The mother has been unable to demonstrate that she can take responsible steps to care for herself. She lacks the insight and judgment to do this. How can the court expect that she would have the insight and judgment to properly care for a vulnerable young child?

[72] The mother's behaviour is often unpredictable and unstable. She has been observed by multiple professionals to often become quickly agitated and aggressive, suspicious and accusatory. Children require stable, consistent and emotionally predictable caregivers. The mother has given no indication that she can meet any of these basic needs for the child.

[73] The court finds there is no genuine issue requiring a trial that the child is in need of protection pursuant to clauses 37(2)(b)(i) and (ii) of the Act.

Part Five – Disposition

5.1 Legal Considerations

[74] The court's disposition options in this case are set out in subsection 57(1) of the Act. This subsection reads as follows:

Order where child in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).

[75] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 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 society wardship order is made 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.)

[76] Subsection 57(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part III of the Act. The society urged the mother to obtain treatment both before and after the child was apprehended and referred the mother to multiple services. The mother rejected all of these recommendations. The society attempted to provide the mother with parenting instruction but she was resistant to this.

[77] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child. The society made attempts to maintain the child with the mother prior to the apprehension. An agreement was made that she would remain in her parents' home and not be left alone with the child. This fell apart when the mother refused to cooperate with the society and indicated that she would leave her parents' home.

[78] Subsection 57(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care. The child has been placed in an excellent home with the maternal aunt.

[79] In determining the appropriate disposition, the court must decide what is in the child's best interests. The court considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

37. (3) 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:

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

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

40. The child's cultural background.

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

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

43. The child's relationships by blood or through an adoption order.

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

45. 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.

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

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

48. 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.

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

50. Any other relevant circumstance.

[80] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J), (1997) 23 R.F.L. 4th 79 (SCJ- Family Branch).

[81] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

[82] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children's Aid Society of Toronto v. D.S..

5.2 The Plans of Care

[83] The society's plan of care is to make the child a crown ward without access for the purpose of adoption. The maternal aunt wishes to adopt the child and has almost completed the necessary process to be approved by the society. Barring unforeseen circumstances, the society supports this. The society is very pleased with the quality of care that the maternal aunt has provided for the child.

[84] The society submits that a crown wardship order will provide the child with more stability and permanence than a custody order pursuant to section 57.1 of the Act or a supervision order. A custody order would leave the maternal aunt on her own to deal with the mother. It could result in future legal proceedings by the mother which could cause instability for the child.

[85] The maternal aunt prefers the adoption route for these reasons. She has advised the society that she is open to giving the mother contact with the child if the mother obtains mental health treatment – but not until then.

[86] The mother wants the child returned to her care. The mother is now living with her aunt and uncle. Her plan is for the aunt and uncle to assist her in caring for the child. In her Answer/Plan of Care dated November 10, 2015, the mother proposes to care for the child full-time. She stated that she was starting to look for work and that if she finds employment she will place the child in daycare. The mother claimed that she was receiving counseling from a social worker from Lawrence Square Employment and Social Services. The counselor was assisting her with locating work and her finances.

[87] The mother's Answer/Plan of Care indicated that the child would be enrolled in age-appropriate activities. The mother claimed to have extensive family support.

5.3 Analysis

[88] It is clearly in the best interests of the child to be made a crown ward. There is no genuine issue requiring a trial.

[89] The mother's untreated mental health issues make her incapable of adequately parenting the child. This was confirmed by the troubling access observations that resulted in the reduction and eventual elimination of her access.

[90] Given her chronic and significant mental health behaviours, it was incumbent upon the mother to provide psychiatric evidence that demonstrated mental health stability. None was provided because the mother refuses to accept that she has mental health issues.

[91] The mother's poor insight and judgment mean that the child would be at significant risk of physical and emotional harm if placed in her care. She has not shown that she can be a stable, consistent and predictable caregiver.

[92] The mother has not seen the child since March 1, 2016. She has likely become a stranger to the child.

[93] The society has presented an excellent plan for the child. It will probably maintain the child with her family, in a home where she is well-cared for and feels secure.

[94] The mother has not provided a realistic plan of care. She submitted that she would live with her aunt and uncle and have their support. However, neither the aunt nor uncle filed an affidavit on this motion. It is unknown whether they support the mother's plan. Their understanding of their roles in the plan are also unknown.

[95] The mother claimed to have extensive family support. However, no family member filed an affidavit on this motion in support of her plan.

[96] The mother did not file an affidavit to update the status of her plan. It is unknown if she is employed or looking for work or whether she is still attending counseling. She does not set out in any detail how the family members will assist her in caring for the child.

[97] Most importantly, the mother does not address how she will deal with her mental health issues, other than to deny them through her counsel's student-at-law.

[98] The mother has shown little ability to work with the society. She has not followed medical advice from multiple professionals. There is no evidence to support a finding that the mother would cooperate with a supervision order.

[99] Despite receiving clear direction by the society about what steps she needed to take to restore access, the mother did not take any of them. She was incapable of putting the child's need to maintain contact with her ahead of her own need to maintain that she didn't have a mental health problem. The child needs a caregiver that will put her interests first.

[100] The child is entitled to permanency at this time. Even in a best-case scenario where the mother was addressing her mental health issues, it would be irresponsible for a court to place the child with her without a gradual reintroduction, while the court could monitor if she was maintaining her mental health. The mother has not even demonstrated that she can consistently care for the child in a supervised setting, let alone care for the child on her own. The time has long passed to experiment with such a process. Unfortunately, there is absolutely no basis to believe that a gradual reunification would be successful.

[101] The court finds that:

a) The society's plan will better meet the child's physical, mental and emotional needs. The child is thriving in a family placement with a loving and capable caregiver.

b) The society's plan will better meet the child's physical, mental and emotional level of development.

c) The society's plan will better meet the child's need for continuity and a stable place in a family through adoption.

d) The risk of placing the child with the mother is unacceptably high. The child would be moving from a stable to an unstable caregiver.

e) The society's plan will better address the child's needs than the plan proposed by the mother.

f) This case should not be delayed any further as the child should receive a permanent home as soon as possible. It is in the child's best interests that this placement be in an adoptive home. A supervision order or a custody order to the maternal aunt would not achieve the permanency that is in the child's best interests, particularly given the child's young age. It is not in the child's best interests to choose a disposition that would likely continue litigation. See: Children's Aid Society of Toronto v. E.S., 2012 ONSC 4771.

[102] There is no genuine issue requiring a trial. The child will be made a crown ward.

Part Six – Access

6.1 Legal Considerations

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

Access: Crown ward

(2.1) 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.

[104] The onus to rebut the presumption against access to a crown ward is on the person seeking access. See: Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.). This person has the onus of establishing both portions of the test in subsection 59(2.1) of the Act.

[105] The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.

[106] The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examine the quality of the relationship from the child's perspective. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.

[107] 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., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:

(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 of 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.

[108] More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. 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. An access order cannot be merely a consolation prize for disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.

[109] The court must consider whether the relationship is beneficial and meaningful to the child at the time of the hearing. Considerations of openness should not be imported into this analysis. See: Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638.

6.2 Analysis

[110] There is no doubt that the mother loves the child. However, she fell far short of meeting her onus to show that the relationship is beneficial and meaningful for the child as interpreted in the case law.

[111] The mother has not seen the child since March 1, 2016. Given the child's age, it is questionable whether she would still know her mother. The child has no relationship with the mother at this time.

[112] There is no genuine issue requiring a trial regarding the mother's access. The access is not beneficial and meaningful for the child.

[113] Since the mother did not meet the first part of the two-part test to obtain an order for access, it is unnecessary for the court to determine if she would have met the second part of the two-part test.

[114] The court will order that the mother have no access to the child, for the purposes of adoption.

Part Seven – Conclusion

[115] An order will go on the following terms:

a) The society's motion for summary judgment is granted, as there is no genuine issue requiring a trial.

b) The statutory findings regarding the child are made as set out in paragraph 4 of the August 2, 2016 affidavit of society worker Era Khaykin.

c) The child is found to be in need of protection pursuant to clauses 37(2)(b)(i) and (ii) of the Act.

d) The child will be made a crown ward, without access, for the purpose of adoption.

[116] The court wishes to express its regrets to the mother. It was apparent that the mother loves the child and wants to parent her. Sadly, her mental health issues were too profound for her to even take the steps to get better. The court hopes that she listens to her family members who love her and that she seeks the treatment she needs.

[117] The court wishes to thank counsel for their thorough and sensitive presentation of this motion.

Released: September 27, 2016

Justice Stanley Sherr