WARNING

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

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

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

The court may make an order:

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

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

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: January 4, 2016

Court File No.: C70451/14

Between:

Catholic Children's Aid Society of Toronto Applicant

— and —

C.N.G. (mother) A.N.G. (father) Respondents

Before: Justice Roselyn Zisman

Heard on: December 8, 2015

Reasons for Judgment released on: January 4, 2016

Counsel:

• Karen Ksienski — counsel for the applicant society
• Anita Mehta — counsel for the respondent C.N.G.
• A.N.G. — respondent not appearing

Reasons for Judgment

Zisman J.

1. Introduction

[1] This is a summary judgment motion by the Catholic Children's Aid Society of Toronto ("the society") for an order that the child A.N.G. born on […], 2013 ("the child" or "A.") is in need of protection pursuant to sections 37(2)(b)(i), 37(2)(b)(ii) and 37(2)(g) of the Child and Family Services Act ("CFSA") and that the child be made a crown ward without access for the purposes of adoption.

[2] The Respondent mother C.N.G. ("the mother") seeks an order dismissing the summary judgment motion on the basis that there is a genuine issue that requires a trial namely, whether or not the mother has made sufficient progress in dealing with the issues that caused the child to be removed from her care. Counsel made no submissions on the statutory findings or the findings requested by the society regarding the need for protection.

[3] The Respondent father A.N.G. ("the father") resides in the Dominican Republic. The society believed that A.N.G. is the biological father of the child but the mother denies this. However, there is a letter from the father attached to the mother's affidavit wherein he states that he is the child's biological father. He was served but did not file any materials on this motion.

[4] The child was apprehended on March 13, 2014 and has remained in the care of the society since that time. There have not been any temporary motions.

[5] The mother has three older children who were made crown wards in British Columbia. In addition to the child who is the subject of this motion, the mother also has another child J.N.G. born […], 2015 who is the subject of another outstanding court proceeding.

[6] The society relied upon the Protection Application, Amended Protection Application, Plan of Care, transcript of oral reasons for sentencing of the mother dated June 10, 2004 from the Provincial Court of British Columbia and transcript of oral reasons for judgment dated November 18, 2004 from the Court of Appeal of British Columbia, the parenting capacity assessment of Dr. Wittenberg, affidavits of the family service workers Marilyn Belas and Sylwia Nieweglowska and affidavits of child service workers Teresa Cash and Vivien Thomas. The society also filed a factum.

[7] The mother relied on her affidavit and the affidavits of her half-sister and a friend both of whom are prepared to assist the mother or in the alternative put forward their own plans to care for the child.

2. Background

[8] The mother does not dispute the historic facts relied upon by the society and acknowledges that her past parenting of her three eldest children was problematic. The mother acknowledges that she had a dysfunctional childhood and that she was subject to physical and sexual abuse by family members. The mother ran away from home when she was 14 years old and ended up doing drugs and partying and her life was out of control.

[9] The mother was only 14 years old when her first child S.P. was born on […], 1999. The child was removed from her care when she was 3 months old due to concerns about physical abuse and placed with the father. The mother told Dr. Wittenberg, during his assessment, that she had an argument with the father; S.P. fell and got a burn on her face. She also admitted that she was on drugs at the time.

[10] The mother's second child K.P. was born on […], 2001. K.P. was removed from the mother's care 17 days later. K.P. was found to have 6 major fractures in her arms and legs and multiple rib fractures and bruising. The fractures were of different stages of healing indicating that the events occurred over time. The injuries were only consistent with inflicted injuries. The child was left with permanent and lasting disabilities. K.P.'s prognosis was unknown at the time but there were concerns that she may have suffered at birth from the effects of drug addiction and fetal alcohol effect in addition to the pain and discomfort due to the physical injuries.

[11] The mother was charged and on June 4, 2002 she pleaded guilty to a charge of assault causing bodily harm. The reasons for sentencing by Justice Waurynchuk of the Provincial Court of British Columbia indicate that the sentencing was delayed as the mother repeatedly denied she had entered a guilty plea and she would sometimes apply to set aside her guilty plea.

[12] In the reasons for sentencing, Justice Wayrynchuk referred to a 1995 report filed on the sentencing by Dr. Lomax that found that the mother was impulsive, suffered from ADHD, resisted help, that she had little or no insight into her problems and little or no regard for the consequences of her actions. The reasons further indicate that the mother never followed up on any of the recommendations made in that report. In 2003, she was diagnosed by Dr. McIntrye with a borderline personality disorder and the reasons indicate that the mother was seeing a counsellor once a week and attending parenting courses.

[13] The mother was sentenced on June 3, 2004 to 15 months in jail followed by probation for 3 years. The terms of the probation included a term that the mother attend for assessment and counselling as recommended by the probation officer and that she not be left alone with a child under the age of 12 years old unless in the company of person over the age of 21 years.

[14] The mother appealed the sentence as she sought a conditional sentence or a shorter term of imprisonment and probation. The appeal was dismissed by the British Columbia Court of Appeal.

[15] On April 10, 2003 the mother gave birth to her third child M.J.C. who was apprehended at birth from her parents. She was placed for a time with her biological father, but she was subsequently apprehended in 2011 and made a crown ward. According to the mother's affidavit, she was exercising access to this child up until about 2008 when she left British Columbia and moved to Ontario.

[16] The mother gave birth to A. on […], 2013.

[17] On December 16, 2013, the Children's Aid Society of Toronto received information from the British Columbia Ministry of Children and Family Development that the mother had married A.N.G. who still resided in Dominican Republic and that she had given birth to a baby girl sometime in […]. The worker from the British Columbia Ministry had serious concerns about the mother based on her past history with her 3 other children. Based on this information, on December 16, 2013 the society obtained a warrant to apprehend A.

[18] Over the next several months the police were unable to locate the mother and child. The mother acknowledges that she was aware that the police and the society were looking for her but she ran as she wanted to be with the child and did not want to lose her.

[19] The mother and child were located by the Vivien Thomas, a family service worker for the Children's Aid Society of Toronto through logging onto the mother's Facebook page. A warrant to apprehend was obtained and on March 14, 2015 the child was apprehended.

[20] The file was transferred to the Catholic Children's Aid Society of Toronto as the mother advised that she is of the Roman Catholic faith.

3. Issues to be Determined

(i) What are the statutory findings?

(ii) Is A. a child in need of protection?

(iii) If there is a finding of need for protection, what disposition is in the child's best interest?

(iv) If an order for crown wardship is made, should there be an access order?

4. Applicable Statutory Principles and Law Regarding Summary Judgment

[21] As the society has proceeded by means of a summary judgment motion these issues need to be determined in the context of the statutory principles and law with respect to summary judgment motions.

[22] 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.

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

[24] 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.

[25] 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.

[26] 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.

[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 requiring a 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 subrule 16, this may:

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

[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 requiring a trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is a genuine issue requiring a trial will be insufficient to defeat a claim for summary judgment.

[31] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, has clarified the process of applying the expanded summary judgment rule in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before her, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgement process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be genuine issue for trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

[32] Subrule 16(6.1) FLR codifies these broad powers in considering a summary judgement motion. The rule specifically provides that in determining whether or not 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 only to be exercised at a trial:

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

[33] Subrule 16(6.2) FLR provides that the court may, in exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one of more of the parties, with or without time limits.

[34] Accordingly, the first step is to determine if there is a genuine issue requiring a trial based only 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, subrule 16(5) FLR provides a stricter rule with respect to hearsay than subrule 14(19) FLR motions, namely that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, if any, that the court deems appropriate.

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

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

5. Evidentiary Issues

[41] Although counsel for the mother did not object to the hearsay in any of the society's affidavits, I have not relied on any third party information except for any statements or admissions by the mother and the father or for the narrow purpose of providing the context for various steps taken by the society workers.

[42] As previously outlined the society filed the transcripts with respect to the sentencing of the mother regarding the criminal charge of assaulting K.P. and the appeal transcript. The mother in her affidavit states that she takes full responsibility with respect to the criminal conviction but does not otherwise comment on the findings made by the trial judge or with respect to the reference to reports filed in that proceeding. No submissions were made by mother's counsel to what aspects of the sentencing transcripts this court should rely on.

[43] I rely on the case of H.W. v. A.H.C. for the proposition that a criminal conviction is prima facie proof of the underlying facts although those facts can be rebutted by evidence not available at the criminal trial. The mother did not provide any evidence to rebut the findings of facts made by the sentencing judge.

[44] Section 50(1) CFSA expressly contemplates the admission of evidence relating to a person's past conduct toward a child in the nature of any oral or written reports including transcripts as follows:

Consideration of past conduct toward children

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[45] I therefore rely on the mother's guilty plea and facts supporting that plea with respect to the multiple injuries suffered by K.P.

[46] With respect to the references in the sentencing of reports of the mother's mental health or her diagnoses, except as admitted by the mother or as corroborated in the Parenting Capacity Assessment, I do not rely on that information for the following reasons:

a) The reports are dated namely, 1995 and 2003;

b) The full reports were not tendered and therefore the information is second hand hearsay;

c) There is insufficient information in the reasons for sentencing for the court to assess the reliability of the reports and the information; and

d) The prejudicial effect outweighs the probative value of the evidence.

[47] The society relies on the mother's past parenting of her 3 other children for the finding of need for protection and also to some extent on her past parenting for the disposition. Section 50 CFSA clearly permits the court to consider the past conduct of a person toward any child and that the court can consider any oral or written statement or report that the court considers relevant to the proceeding. It is not disputed by mother's counsel that the mother's history in relation to her other children is admissible and relevant on this motion.

[48] I have considered that although the evidence of the mother's past parenting evidence is admissible and relevant it must not be used as being determinative of the mother's present ability to parent.

[49] Counsel for the mother submitted that Dr. Wittenberg who assessed the mother had not been cross-examined and that if the case proceeded to trial his conclusions and recommendations would be subject to scrutiny. However, the mother had the ability to question Dr. Wittenberg pursuant to subrule 20(3) FLR for this motion and did not do so. Although the mother may not agree with the conclusions of the assessment, in her affidavit she does not dispute, except for some minor details, any of the information upon which Dr. Wittenberg bases his conclusions.

[50] The mother also deposed that she would like to get a second opinion. Dr. Wittenberg's report is dated April 1, 2015 and the mother had ample time to obtain and provide another opinion or evidence of her current functioning and treatment. The court on a summary judgment motion should not be asked to speculate as to what possible evidence the mother may be able to provide at a trial as she is required to put her best foot forward on the motion.

[51] I find that the court can rely of the assessment for this summary judgment motion.

6. Statutory Findings

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

7. Analysis Regarding Findings of Need of Protection

[53] The society seeks findings pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g) 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;

[54] Although the mother did not consent to a finding, she did not present any evidence to dispute that a finding of need of protection did not require a trial and that such a finding would be the inevitable outcome of a trial. I make the protection findings based on the following evidence that is not disputed:

a) The mother has a history of very significant abuse. She had multiple changes of caregivers; exposure to caregivers who abused drugs and alcohol; and exposure to caregivers who emotionally, physically and sexually abused her. As part of the Parenting Capacity Assessment Dr. Wittenberg reviewed the mother's prior records and reviewed the mother's past history with her. From an early age the mother had difficulties with learning and development. She has behavioural difficulties with diagnoses of ADHD and conduct disorders since childhood. She had diagnoses in adolescence and adulthood of borderline personality disorder, bipolar disorder and post-traumatic disorder. She also had serious drug and alcohol abuse for many years in her life. She has a history of becoming involved with men who are abusive and who also have histories of psychiatric problems and drug and alcohol abuse problems;

b) The mother pleaded guilty to assaulting and causing serious bodily harm to her child K.P., her child S.P. was injured while in her care and her other child M.C. was removed from her care;

c) There is no evidence of the steps the mother took, prior to the birth of A., to overcome the parenting deficiencies that led to her other children being removed from her care or to deal with her own tragic and traumatic childhood history;

d) The mother hid from the authorities for months after A. was born;

e) Dr. Wittenberg as part of the Parenting Capacity Assessment observed the interactions of the mother with the child and concluded that the mother "displayed many of the parenting behaviours that are associated with confusion, fear and insecurity in a young child and these in turn are associated with disorganized attachment. Disorganized attachment is a predictor of subsequent psychopathology and difficulty in relationships for the lifespan in a young child;";

f) Dr. Wittenberg found that the mother's cognitive dysfunction is substantial and significant. He was unable to determine how much this was due to innate factors, such as dyslexia or a learning disability. It may also be contributed to by a diagnosis such as ADHD and finally it may be due to damage secondary to a brain injury or brain damage secondary to substance abuse. It was his opinion that the mother's very compromised cognitive functioning and poor judgment are not amendable to significant change;

g) It was also the opinion of Dr. Wittenberg that the mother had very compromised mental health and a lack of consistency in getting treatment. Dr. Wittenberg stated that effective treatment is difficult and likely to require a high degree of commitment over a long period of time. He concluded that the mother's history does not show a capacity to sustain that type of involvement; and

h) The mother's lack of co-operation in working with the society including not advising the society of her pregnancy with another child, refusing to provide information about her husband and refusing to sign consents.

[55] One of the initial concerns outlined in the protection application was the mother's history of substance abuse. As a result the society made arrangements for the mother to attend at the Motherrisk Clinic at the Hospital for Sick Children for a hair strand test in November 2014. The mother delayed in attending. As by then the Motherrisk clinic has closed the mother was referred to another testing facility and finally did attend in March 2015 and the results were negative. In view of the closure of the Motherrisk laboratory and the findings that its results could not be relied upon for forensic testing and given the lack of certainty regarding the validity of hair strand testing in general, the society submitted that it was not relying on the mother's use of substances as a protection concern. There is no recent evidence that the mother was suspected of using drugs or alcohol however her delay in attending for the testing is relevant to the issue of the mother's co-operation and transparency in dealing with the society.

[56] 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 child would suffer physical and emotional harm care of the mother and that the child continues to be in need of protection.

8. Legal Considerations Regarding Disposition

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

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

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

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

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

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

[58] 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.

[59] 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.

[60] 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.

[61] 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.

9. Analysis Regarding Disposition

9.1 Delay

[62] In this case, at the time of the hearing of this summary judgment motion the child had been in care for 21 months and the statutory limit of one year has therefore been significantly exceeded. Although it is possible for a court to order an extension pursuant to subsection 70(4) CFSA, I find that any further delay in determining a permanent plan for this child is not in her best interests. I also find that an extension would not improve the mother's parenting abilities to the extent necessary for the child to be returned to her care in the near future.

9.2 Services Provided and the Mother's Follow Through

[63] I find that the society provided the mother with appropriate services and referrals to assist her in dealing with her past trauma and parenting deficiencies but the mother did either not follow through or did not access these services in a timely manner. I base this finding on the following facts.

[64] The mother was provided with the following services:

a) Referral for hair strand testing as the mother indicated that in the past she could not parent due to her substance abuse issues and that this was a significant factor in the abuse of her two eldest children. The mother did not follow through with this request for 4 months. The mother also refused to agree for testing for pain medication which the society requested when it was discovered that the mother had attended with 5 different doctors. The mother also refused to agree to sign a concern for the release of her OHIP records;

b) Referral for a Parenting Capacity Assessment to determine if there had been changes since the mother's previous assessments and if there had been changes in her ability to parent. The mother co-operated with attending the assessment;

c) Information provided with respect to counselling services at Abrigo to deal with the mother's past trauma. In October 2014 the mother advised the worker she had an intake appointment but then the mother did not follow through with counselling. In April 2015 the mother advised the worker she was not comfortable with the male counsellor that she had seen but the mother never asked the worker for another referral until the worker tried to obtain an update on the counselling;

d) Referral and recommendation for the mother to see a psychiatrist for her past traumas. In October 2014 the mother also advised that she was on a waitlist at the Mount Sinai Hospital to see a psychiatrist and that it would take about 4 months before she saw anyone. But the mother did not follow up and did not provide any evidence that she ever saw a psychiatrist;

e) Referral and recommendation that the mother obtain a family doctor as she was attending several walk-in clinics;

f) Subsequent referral in April 2015 to the Danforth Perth Medical Clinic to assist the mother in obtaining both counselling and a family doctor as she had still not followed through with recommendations made in May 2014. The mother deposed that she began counselling on May 29, 2015 and was attending two times a week for two hour sessions and that she is now attending bi-weekly for a two hour session. The only proof of her attendance is a copy of an appointment reminder for an appointment with Dr. MacCallum on December 10, 2015;

g) The mother deposes that she attended the first half of a parenting program, "Making the Connection: Toddler" held from April to June 2015 but could not attend the second half as it required the child to be present. But the only proof provided is a form confirming that she registered for the program;

h) The mother also deposed that her counsellor at the Danforth Perth clinic has enrolled her in a program for people with borderline personality disorder and although she does not believe that she has this disorder nevertheless she is open minded about attending any programs. The mother did not provide a letter from her counsellor or any information about the qualifications of the counsellor;

i) The society arranged for access visits three times a week. Although the mother attended on time, she frequently ended visits early or missed access visits as she was travelling to the Dominican Republic to see her husband or was not visiting to conceal her pregnancy or for other vague reasons; and

j) The society arranged for regular plan of care meetings. The mother attended the meetings and generally participated. She had to be re-directed in one meeting as she was on her cell phone looking for apartments and on another occasion expressed concerns that A. was calling the foster mother "momma." The mother also did not agree with the child attending daycare and also stated she wanted A. moved to another foster home as she was always sick in her current home.

9.3 Mother's Ability to Work Cooperatively with the Society

[65] The mother has been unwilling to be open and honest with the society in order that the workers could work with her on problem solving to address the child protection concerns. The mother has been uncooperative, withheld information and deceptive in her dealings with the society.

[66] I make these findings based on the following:

a) The mother refused to provide the society with contact information with respect to her husband who resided in the Dominican Republic. The society wished to make contact with him to determine if he was a possible placement for the child;

b) The mother denied she was in a relationship with the father, denied he was the father of A., told the workers she was divorcing him but now deposes that her plan is to sponsor him to come to Canada. She has also now admitted that she was in a relationship with him and that he is the father of J. She continues to deny he is the father of A. and states that A.'s father was a result of a one night stand while she was in the Dominican Republic despite the father stating he is the father of A.;

c) The mother denied for her entire pregnancy with J. that she was pregnant. She produced a letter from a Dr. Tang dated July 10, 2015 stating that she was not pregnant. The mother deposes that Dr. Tang did not examine her, that he relied on her verbal statement that she was not pregnant and that she paid him $10.00 for the note. The mother admits that she should not have tried to conceal her pregnancy;

d) At various times, the mother would not provide information to the workers about the many appointments she told them she had to attend, would not provide details about her work, her contact information or her trips to the Dominican Republic;

e) The mother either did not provide consents or only provided limited consents for the workers to obtain information from her counsellors, medical providers or OHIP records; and

f) The mother would not discuss her past and her struggles. She would not provide the worker with information about the programs she was attending or providing updating or any new information which then inhibited the workers from assisting the mother.

9.4 Application of the Best Interest Factors

[67] I make the following findings based on the best interests of the child:

a) The child has been in the same foster home since her apprehension. She is doing well in all areas of her development and there are no concerns. She is currently attending daycare twice a week to assist in her interaction with other children and adults;

b) No issues were raised with respect to the child's cultural background or religious faith;

c) The child recognizes the mother and seems to enjoy her access visits but the mother has difficulty engaging the child for the entire visit. The mother often ends the visit early and is inconsistent in interacting with the child and in reading the child's cues. Despite the length of time the child has been in care the visits have never progressed to being unsupervised;

d) Although it is important for a child to have the benefit of a relationship with a biological parent, the mother has not followed through with any services or has just begun services. Accordingly that there is no evidence of the mother's ability to care for the child and meet the child's needs that are contrary to the findings of the parenting capacity assessment that she is unable to meet the child's needs;

e) The child will have to move from her current placement whether or not she is made a crown ward or placed with the mother. However, the child has had the benefit of a stable home in foster care and of foster parents who have been able to meet all of her needs;

f) The child requires a permanent placement so that she can continue to develop to her potential. It was Dr. Wittenberg's opinion that at this child's young age there is urgency in permanently placing her in a permanent home that will support her healthy functioning. He stated that, "Disruptions in parenting figures are hard for children, particularly at this age. Moving back and forth to her mother's home and back into care would be harmful. Early adoption, if she is not to stay in this foster home, would be recommended;";

g) The mother has demonstrated poor judgment in becoming pregnant shortly after meeting the father or fathers of her children. She has demonstrated poor judgment in deceiving the society such that any plan for the child to be placed with her under the supervision of the society would be unworkable as she has through her history shown herself not to be trustworthy;

h) The mother's plan is for the child to be placed in her care with the support of her half-sister. She is also planning to sponsor the father to come to Canada. The half-sister has come to some access visits and concerns have been noted with respect to her interactions with the child. The father has had no contact with the child. The mother's plan is vague and based on her heartfelt wish to parent her child. But there is not a shred of evidence, except that there is no current concern about substance abuse, that any of the concerns that resulted in her other children being removed from her care have changed over the years;

i) The society's plan to place the child for adoption will provide her with long term stability and permanence; and

j) The findings of Dr. Wittenberg confirm the mother's long standing and multiple issues that are not easily amenable to treatment. Therefore, the risk that resulted in the child being removed from the mother's care continues today.

[68] I therefore find that the evidence is overwhelming that it is not in the child's best interests to be placed in the care of the mother.

9.5 Alternate Plans

[69] There is an alternate plan presented by the mother's half-sibling, Ms E. Ms E. and the mother have the same father. Ms E. became acquainted with the mother when she moved to Toronto a few years ago and believes the mother has changed.

[70] Ms E. met her current husband who resides in the Dominican Republic on Facebook. She initially told the workers that she was sponsoring him to come to Canada but apparently she is now in the process of divorcing him and will be marrying another man from the Dominican Republic this January 2016.

[71] Ms E.'s plan was assessed by the society and rejected as Ms E. and the mother were totally enmeshed as they live together, work together and travell together. Ms E's own life is unstable. She has also showed poor judgment in her choice of partners and now her apparent change of partners. The partners cannot be assessed as they reside in the Dominican Republic. She also showed poor judgment in hiding the mother and the child when she was aware the police and the society were looking for them. She also did nothing to encourage the mother to advise the society that she was again pregnant with J. who was then also apprehended after a home birth.

[72] Ms E. does not recognize any concerns with respect to the mother caring for the child which in turn would not make her a reliable caregiver to supervise the mother's interaction with the child. There is also evidence of concerns about her own interactions and commitment to access visits with the child.

[73] L.C. filed an affidavit deposing that he is also prepared to present a plan for the child. He deposes that he had a sexual relationship with the mother in the past but they are now just friends. He deposes that he briefly thought he was the father of J. and that the police were called as a result of a misunderstanding between him and the mother but now they get along.

[74] He deposes that he is surprised by the information about the mother's past as he sees no signs of violence or other mental health issues. He has only met the child once about six months ago. Until his affidavit was filed, the society was never made aware of his plan.

[75] I find that neither of these plans is a viable alternative. Although it is understandable that Ms E. and Mr. C. wish to assist the mother they are not proposing a permanent plan for this child but rather they are proposing a plan to care for the child until the mother can resume care. If either of them is serious about a permanent plan to adopt the child, they are able to approach the society's adoption department.

9.6 Conclusion

[76] I therefore, find that it is in the child's best interests to be made a crown ward. I do not need to rely on the expanded powers pursuant to subsection 16(6.1) or (6.2) FLR in coming to this conclusion. Although there are some minor disputed facts or questions of credibility none of them are material in nature.

[77] The only triable issue raised by the mother was that she has changed from the past and is now in a position to parent this child. Although there is some evidence that as of October 2015 the mother began to follow up on services that had been recommended, this child has been in care since March 14, 2014 and the mother should have been aware after losing her other children that if she expected to parent this child steps should have been taken to deal with the protection concerns even before she became pregnant.

[78] I find that here is no genuine issue requiring a trial. Although the mother loves her child and wishes to parent her, there is overwhelming evidence that the mother is unable to parent this child. In summary I rely on the following findings:

a) the mother has a serious history of abuse of one of her previous children;

b) she has not engaged in any prolonged counselling to ameliorate the concerns that led to her three other children being removed from her care;

c) she has not co-operated with the society;

d) she has shown poor judgment in her choice of partners and in hiding the child from the authorities and in lying about her pregnancy with another child;

e) she has shown a lack of commitment in being with the child as demonstrated by leaving early from visits, cancelling visits and choosing to prioritize trips out of the country or other commitments;

f) she has no insight into the challenges and difficulties of parenting a young child that has been out of her care; and

g) she has serious cognitive and mental health issues that are not easily amenable to significant change.

10. Applicable Law and Legal Principles Regarding Access

[79] 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.

[80] 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.

[81] 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.

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

[83] 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.

[84] 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.

[85] 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.

[86] 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.

11. Analysis Regarding Access

[87] In this case although no evidence was provided about the child's adoptability, I find that given this child's young age and normal development there is no issue that she would be easily adoptable.

[88] Counsel for the mother did not make any submissions with respect to access and the mother's affidavit does not address this issue.

[89] The observations of the access visits by the society workers and the observations of Dr. Wittenberg are consistent with respect to concerns about the quality of the mother's visits. Although the visits may be enjoyable at times and generally the child appears comfortable during the visits, there is no evidence of any advantage to the child of these visits.

[90] 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 child. There is no triable issue on the issue of access.

[91] There will therefore be an order that the child be made a crown ward without access for the purpose of adoption.

12. Conclusion

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

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

2. The statutory findings are as follows:

   a) The child's legal name is A.N.G. born on […], 2013;

   b) The religious faith in which the child is being raised is Roman Catholicism;

   c) The child is not an Indian or a native person;

   d) The child was brought to a place of safety in the City of Toronto.

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

4. The child shall be made a Crown ward and placed in the care of the Catholic Children's Aid Society of Toronto, with no access for the purpose of adoption.

Justice Roselyn Zisman

Date: January 4, 2016