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.

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

Court File No.: C61320/13

Date: 2016-06-30

Ontario Court of Justice

Parties

In the Matter of an Amended Status Review Application for the Crown Wardship of A.B., born […], 2002 and T.D. born […], 2005 under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Between:

Children's Aid Society of Toronto

• Counsel: Simon Fisch

Applicant

- and -

A.B.

• Counsel: Hugh Evans (for the Respondent Mother, A.B.)

Respondent

Children's Counsel: Jennifer Gallagher (Office of the Children's Lawyer)

Heard: April 13, 2016

Justice: M. Sager

Reasons for Decision

Part One - Introduction

[1] The Children's Aid Society of Toronto (the society) has brought a motion for summary judgment within its Protection Application seeking an order that the respondent's (the mother) children A.B. born […], 2002 and T.D. born […], 2005 be found to be children in need of protection pursuant to clauses 37(2)(b) & (g) of the Child and Family Services Act (the Act) and that they be made Crown wards with access to their mother.

[2] The motion was originally scheduled for February 4, 2016 at which time the mother requested an adjournment in order to retain new counsel. The request was granted and the motion was adjourned to April 13, 2016. The court's endorsement provided that the motion would not be adjourned again and a timetable was provided for the exchange of further motion materials.

[3] On the return of the motion on April 13, 2016, the mother attended in court without having filed any responding motion materials. Mr. Evans attended in court and advised that he did not have any instructions from his client. The mother had attempted to retain new counsel but was unsuccessful. The mother prepared an Answer and Plan of Care which she swore on the record to the truth of the contents and which the court relied on as her affidavit in response to the society's motion without objection from the other parties.

[4] The mother asks that the society's motion be dismissed.

[5] The children are represented by the Office of the Children's Lawyer (OCL) who takes no position on the society's request for an order making the children wards of the Crown. The OCL seeks an order granting the children access to their mother if the court grants the society's motion.

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

• a) Is there a triable issue with respect to a finding that A.B. and T.D are in need of protection?
• b) Is there a triable issue for a disposition for A.B. and T.D. other than Crown wardship?
• c) If a Crown wardship order is made, is there a triable issue over whether the mother should have access to A.B. and T.D.?

Part Two – Legal Considerations

2.1 Summary Judgment

[7] The society brings this motion pursuant to rule 16 of the Family Law Rules (the rules) – the summary judgment rule. Pursuant to rule 16 either party may bring a motion for summary judgment on all or part of any claim after the time for serving an Answer has expired on the basis that there is no genuine issue requiring a trial.

[8] As of May 2, 2015, the Family Law Rules were amended to broaden the powers of the court on a summary judgment motion. The new powers are set out in Rule 16(6.1) and (6.2) and include the same summary judgment powers set out in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. Rules 16(6.1) and (6.2) read as follows:

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] Prior to the introduction of the enhanced powers of Rule 16, the court would decide summary judgment motions by determining whether a genuine issue exists as to material facts such that a trial is required. The moving party would have to persuade the court that there is no genuine issue for trial. The court was required to come to this conclusion without assessing credibility, weighing evidence or drawing factual inferences as this is up to the trial judge to do.

[10] 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 powers in subrules 20.04(2.1) and (2.2) of the Rules of Civil Procedure which now applies to Rule 16 of the Family Law Rules. The process to be followed by the court hearing a summary judgment motion as set out in Hryniak was summarized by Justice Stanley Sherr in Jewish Family and Child Services of Greater Toronto v. E.W. and R.C., [2016] O.J. No. 9, where he wrote in paragraphs 11-20:

[11] 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.

[12] 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).

[13] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).

[14] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).

[15] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.

[16] 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).

[17] 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 to 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) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).
• h) 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).

[18] The principles in Hryniak have been applied to summary judgment motions in child protection cases since the amendments to rule 16 of the rules became effective on May 2, 2015. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per Justice Timothy Minnema and Children's Aid Society of Toronto v. A.G. and A.B., 2015 ONCJ 331, per Justice Roselyn Zisman and Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527, per Justice Penny Jones.

[19] It is also necessary to consider subrule 2 of the rules to ensure that a case is dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity. A summary judgment motion is a tool that can contain and control a child's drift in litigation. This appears to also be in keeping with the process set out by the Supreme Court of Canada in Hryniak. See: Children's Aid Society of Toronto v. A.G. and A.B., supra.

[20] The court was able to determine this matter without applying the new powers under rule 16. The use of the new powers only served to reinforce this court's finding that there is no genuine issue for trial.

Part Three – Facts Not in Dispute

[11] The facts that follow in this part were not in dispute or were only baldly denied by the mother.

[12] The mother has four children. She has a history of involvement with the society and other child welfare agencies in Ontario dating back to 2005. On July 11, 2013, by order of Justice Geraldine Waldman, all four of the mother's children were placed in the mother's care subject to the society's supervision.

[13] The events leading up to the commencement of the Protection Application and the supervision order of Justice Geraldine Waldman dated July 11, 2013 are as follows:

• a) The society was contacted by the police on May 28, 2012 after the mother and her children used a credit card they found to withdraw funds from an ATM;
• b) On June 20, 2012, the society was contacted by an employee of a hotel the mother had checked into with her four children with several concerns about the care of the children;
• c) The society assisted the mother by helping her find a shelter for herself and her children;
• d) During the course of the society's involvement they learned that the mother was using the children to sell chocolates door to door under the guise of fundraising for their school(s). The mother was keeping the children out very late selling chocolates;
• e) The society spoke to the mother about the children being out late and she agreed to have them back to the shelter by 9 p.m.;
• f) On November 28, 2012, the society received a referral from T.D.'s school with information that suggested the mother was still using the children to sell chocolates and was leaving her two younger children in T.D.'s care;
• g) After moving to an apartment in August 2012, the mother was evicted in April 2013 for being $5000.00 in arrears of rent;
• h) The mother and children moved to a shelter again after being evicted in April 2013;
• i) The society was in receipt of information directly from the children that confirmed the mother was still using the children to sell chocolates;
• j) The society learned that A.B. and T.D. had missed 60.5 and 61.5 days of school respectively between September 2012 and May 14, 2013; and
• k) In June 2013, the society was advised by the child advocate at the shelter that the mother had returned home very late with the children and past their curfew times on June 4, 6, 7, 12, 13, 14 and 19, 2013.

[14] The society commenced a Protection Application on July 8, 2013 as a result of their concerns around the mother's instability with respect to housing, the use of the children to sell chocolates to supplement the mother's income and the impact of the mother's numerous moves and her use of the children to sell chocolate on the children's education.

[15] On July 11, 2013, Justice Waldman made an order placing the children in the mother's care subject to a supervision order with the following conditions:

• a) the mother shall meet the basic needs for food and housing for her children;
• b) the mother shall provide appropriate and stable housing for her children;
• c) the mother shall not let her children work to provide money for the family or participate in any activities to make money;
• d) the mother shall ensure that the children are not kept out in the community beyond a reasonable time;
• e) the mother shall ensure that the children attend school regularly and on time;
• f) the mother shall enroll the children in summer activities approved by the society;
• g) the mother shall notify the society of any change to her address, phone number, or the children's school; and
• h) The mother shall allow society workers to have both announced and unannounced home visits.

Events Leading Up to Apprehension

[16] The society's evidence which was not contested by the mother is that the mother continuously breached several conditions of the supervision order. The following are examples of only some of her breaches:

• a) Between July 13, 2013 and August 4, 2013, the mother returned to the shelter with the children between 11:00 p.m. and 1:50 a.m. on 9 occasions;
• b) The mother failed to enroll the children in any summer activities;
• c) There were concerns that the mother did not have enough food for the children while at the shelter;
• d) The mother refused to provide the society with information about her employment and the childcare arrangements she had made for the children;
• e) The mother was still using the children to sell chocolates; and
• f) The mother made arrangements to move out of the shelter and did not notify the society of her intentions or her new address.

[17] On August 9, 2013, after repeated failures by the mother to comply with several of the conditions of the supervision order, the society brought a motion seeking an order bringing all four children into care. The mother did not respond to this motion and the court ordered the children to be placed in the temporary care and custody of the society with access to the mother.

[18] The mother's other two children A.D. born […], 2010 and T.B. born […], 2012 were found to be in need of protection on November 18, 2014 and were placed in the care and custody of their older sister E.B. on a six month supervision order. On July 22, 2015, the mother was noted in default not having filed an Answer and Plan of Care and A.D. and T.B. were placed in their sister's custody on a final basis pursuant to section 57.1 of the Act.

[19] At the date of this motion, A.B. and T.D. have been in care since August 9, 2013, approximately 2.5 years.

[20] The mother currently has unsupervised access to A.B. and T.D. every Saturday from 10:00 a.m. to 4:00 p.m.

[21] The society served and filed an Amended Amended Protection Application in August 2015 in which they request orders making A.B. and T.D. Crown wards.

[22] The mother relies on her Answer and Plan of Care dated September 29, 2015 opposing an order for Crown wardship of the children. The mother's plan is to have the children returned to her care or in the alternative access to the children if they are not returned to her care.

[23] It is important to note that the mother did not contest the society's evidence in any meaningful way. Her affidavit evidence did not address most of the society's evidence. More specifically, she did not deny that she has had difficulty maintaining a permanent residence for the children resulting in several moves; she did not deny that she involved the children in selling chocolates to supplement her income; she did not deny keeping the children out very late while residing in two different shelters; and, she did not deny that the children missed an inordinate amount of school during the 2012-2013 school year.

Mother's Lack of Appropriate and Stable Housing

[24] One of the society's concerns was the mother's lack of proper housing for the children. The mother has not had stable housing that could accommodate A.B. and T.D. since they were apprehended on August 9, 2013. During this period the mother has lived in a hotel, a Women's Shelter, and she rented a room in Etobicoke. Prior to the order bringing the children into care, the society assisted the mother in obtaining an apartment for her and the children from which the mother was later evicted for being in arrears of rent in excess of $5000.00.

[25] The mother's affidavit evidence on the motion was that "I will be residing […] Crescent Brampton" and in her submissions to the court she advised that she will be taking possession of her apartment in two weeks. The mother did not provide any documentary evidence to support her submission. It is the society's evidence, which the mother did not contest, that they have been told by the mother time and time again that she is about to secure housing suitable for A.B. and T.D. but she never did. As of the date of this motion the society had not been invited to view an apartment the mother obtained for herself and her children.

Mother's Failure to Communicate or Cooperate with the Society

[26] The society's evidence is that the mother has not cooperated with the society nor has she demonstrated an understanding of the society's concerns. The society's evidence is that the mother did not meet with workers or engage with them in any way to address the concerns. This evidence is not contested by the mother.

[27] In the year prior to the preparation of the Family Service Worker's (FSW) affidavit in support of the motion for summary judgment sworn January 20, 2016, the mother failed to meet with the FSW either at her home or in the community despite repeated requests by the FSW for a meeting. The society gave evidence that on February 18, 2015, the mother responded to an email sent by the FSW requesting a meeting in which she advised that she will not be able to meet with the FSW as she works every day.

[28] The society's evidence in relation to this issue is not addressed in the mother's responding affidavit other than to say that she works and that in the past two months she has cooperated with the FSW and attended a Plan of Care Meeting in February 2016.

Mother's Failure to Attend Visits with the Children Regularly

[29] The society's evidence is that the mother has failed to attend visits with the children on a regular basis. This evidence is not contested by the mother. The society deposes that between July 2014 and October 2014, the mother attended 8 out of a possible 17 visits and between November 2014 and January 16, 2016, the mother attended only 29 of 60 offered visits.

[30] The society made attempts to arrange or re-arrange the access to assist the mother in attending more regularly. On October 22, 2014, the mother left the FSW a message advising that she would not be attending any of the visits in November 2014. On December 18, 2014, the society sent the mother's counsel a letter setting out their concerns with the mother's access after she missed two visits without notifying the society in advance causing the children to be brought to the society's offices unnecessarily.

[31] The society's letter of December 18, 2014, advised the mother that she must confirm she will be attending a visit by midday on Friday before each visit. The mother proceeded to miss visits on January 10, 2015, January 31, 2015 and February 14, 2015. On February 18, 2015 the mother sent the FSW an email advising that she is going to try to attend the access as of the first week of March 2015 failing which by the end of the month. The mother also advised the FSW in this email that she cannot meet with her as she works every day. The mother ultimately cancelled her visits until the end of March 2015.

[32] The mother attended visits with her children much more regularly between April 28, 2015 and August 1, 2015 but was consistently late sometimes by as much as 30 minutes.

[33] The mother also had telephone access to the children every Thursday between 5:00 p.m. and 5:30 p.m. The mother was often unavailable for these calls.

[34] The mother's evidence on this issue is that she missed some visits as "I lived in a women's shelter, it was difficult to be at access because of curfews and rules I had to follow. This was never done on purpose."

[35] The mother also gave evidence that she was late for visits as she was working overtime in order to acquire sufficient funds to obtain her own home. She also deposed that some visits were missed because of issues with the TTC.

[36] The mother did not address in her affidavit the protection concerns resulting from the mother involving the children in selling chocolates, keeping the children out very late in the evening and early morning, or the children missing a significant amount of school during the 2012-2013 school year.

Part Four – Finding in Need of Protection

4.1 The Law

[37] The society seeks a finding that the children are in need of protection pursuant to clauses 37(2)(b)&(g) of the Act. These subsections read as follows:

(2) A child is in need of protection where,

(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) [(i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development] 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;

[38] It is the society's onus, on a balance of probabilities, to establish that the child is at risk of physical harm pursuant to clause 37(2)(b) and emotional harm pursuant to clause 37(2)(g).

[39] The risk of harm under clause 37(2)(b) of the Act must be real and likely, not speculative: 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.).

[40] 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.

4.2 Analysis

[41] At the hearing of this motion, the mother did not dispute the evidence relied upon by the society in support of their request for an order that that the children are in need of protection. The mother's evidence, at best, amounted to explanations for her conduct and choices that the society argued put the children at risk and in need of protection.

[42] The following evidence supports a finding that the children are in need of protection pursuant to clauses 37(2)(b) and (g) of the Act:

• (a) The mother was using the children to sell chocolates late into the evening and early morning outside malls, movie theatres and liquor stores to supplement her income. She continued to do so when the children were placed in her care subject to a supervision order;
• (b) The children missed excessive amounts of school and when they did attend were often late. During the 2012-2013 school year, A.B. missed 60.5 days of school and T.D. missed 61.5 days;
• (c) T.D. went to school 1-2 times per week without a lunch;
• (d) The mother has been evicted from more than one residence during the period of the society's involvement for non-payment of rent;
• (e) After being evicted from her apartment the mother moved to a shelter with the children where she often stayed out with the children passed midnight;
• (f) When A.B. came into care she was academically delayed;
• (g) When T.D. came into care he was observed to be parentified, tending to the care of his younger siblings;
• (h) The mother has not secured appropriate housing for herself and the children;
• (i) Since being apprehended, the mother missed several visits with the children. More specifically, the mother attended 8 out of a possible 17 visits between July 2014 and October 25, 2014 and visited 29 out 60 offered visits between November 1, 2014 and January 16, 2016; and
• (j) The mother refused to work with the society at all to address the protection concerns often refusing to even meet with society workers for several months at a time.

[43] The uncontested evidence is that prior to the children's apprehension, the mother was unable to provide the children with appropriate housing, she kept the children out very late at night using them to earn an income; and, failed to take the children to school regularly, consistently and on time. The mother's significant parenting issues made her unable to meet the physical, emotional and developmental needs of her children.

[44] There is no triable issue that the children are in need of protection pursuant to clauses 37(2)(b) and (g) of the Act.

Part Five – Disposition

5.1 Legal Considerations in a Protection Application Hearing

[45] The court must determine whether there is a triable issue within the legal considerations that apply on a Protection Application. 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).

[46] 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 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.)

[47] Subsection 57(2) of the Act requires the court to ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act. The children were placed in the care of the mother subject to society supervision before they were apprehended. During this period, the family was assigned a Family Services Worker whose role is to provide service to the family. The society attempted to work with the mother and assist her in addressing their concerns but she was uncooperative. The society attempted to assist the mother in obtaining stable housing for the children while she was in a shelter.

[48] The society spoke with the mother about the inappropriateness of the children selling chocolates and keeping them out late into the evening. The society received the mother's assurance that she would not involve the children in selling chocolates and she would have them home by 9 p.m. They attempted to impress upon her that her choices are negatively affecting the children.

[49] Subsection 57(3) of the Act requires the court to 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 the court determine that these alternatives would be inadequate to protect the child. The society met their obligation in this regard having sought an order placing the children in the mother's care subject to the society's supervision before they were apprehended.

[50] 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 society has met their obligation in this regard as the only community placement to come forward was the children's older brother who is married with a young child of his own. The society assessed his plan and after it was approved, assisted him financially to acquire an appropriate residence for the children to reside with him and his family. The children's brother withdrew his plan a week before the children were scheduled to move in with him and they have remained in foster care.

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

[52] A Crown wardship order is the most profound order that a court can make. To take someone's child 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. J.G.-T. (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.).

[53] In determining the best interests of the children, 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, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 CarswellOnt 376.

[54] A child's need for permanency planning within a time frame sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. 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 discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See Children's Aid Society of Toronto v. R.H. and M.N., 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.) per Justice Heather L. Katarynych.

5.2 – The Plans of Care

[55] The society's plan of care is to make A.B. and T.D. Crown wards with access.

[56] The mother's plan is to have A.B. and T.D. returned to her care. They will live in a two bedroom apartment in Brampton. The children will attend the same school and the mother will arrange before and after school care. There is a local community centre that offers activities for the children. The mother works full time. The mother has the support of her older son and a woman, S.B. whose relationship to the mother is unknown.

[57] The mother did not propose any other plans for A.B. and T.D.

5.3 - The Children

[58] The children have been in the same foster home since they were apprehended. They have had the same children's services worker (CSW) since being brought into care in August 2013.

[59] The children see their younger siblings at the home of their older sister, E.B., where they spend overnights and holidays. They also sometimes spend time with their siblings at the foster home.

[60] A.B. is almost 14 years old. She is described by the CSW as a healthy, active, beautiful young woman involved in a variety of after school sports. A.B. won several medals this past school year for track and field. A.B. is described as very articulate and able to organize her thoughts and ideas well.

[61] When A.B. came into care she was delayed academically and very shy. An individual education program was designed for A.B. at her new school and she was given a lot of help and attention. A.B. showed steady progress and in her last report card she achieved A's and B's. A.B. has adjusted very well to her new school and her program and her attendance has been excellent.

[62] A.B. has attended counselling to help her develop her social and communication skills and to better understand her experiences that led to her being brought into care and staying in care. A.B. is said to have achieved the goals set for her in counselling and that she "developed coping skills and techniques in managing her anger."

[63] T.D. is a healthy child who is helpful and cooperative in his foster home. He is described as "a very generous child" who "spends his allowance buying things for others".

[64] T.D. is doing well in school where he participated in dance, the chess club, track and field and basketball. He has also taken swimming and karate lessons and taught himself how to ride a bike.

[65] T.D. was also in counselling where he was very communicative with the therapist and able to share his feelings and concerns.

[66] Both children are doing very well in care. They have many friends at school and in the neighbourhood in which they reside and they are involved in their community Church. They are both well liked children.

[67] The children both enjoy the visits with their mother and want to return to her care.

Part Six - Is There a Genuine Issue Requiring a Trial Based Only on the Evidence Before the Judge, Without Using the Judge's Fact-Finding Powers?

[68] The court does not have to use its fact-finding powers to determine that there is no genuine issue for trial.

[69] The least disruptive alternative for A.B and T.D., consistent with their best interests is to make them Crown wards.

[70] The court is not relying on contested evidence at this stage to reach this conclusion. The mother provided no evidence to contest any of the society's evidence. Her plan seems to rest solely on her obtaining suitable accommodations for the children, which as of the date of the motion she provided no evidence to suggest that this had been done. The mother is under the mistaken belief that the sole impediment to the children being returned to her care is her lack of housing. This is not the case.

[71] The uncontested or baldly denied evidence reveals several reasons why it is not in the best interests of the children to be placed in the care of their mother.

[72] The first significant reason is that the mother has been unable or unwilling to address the society's concerns. At the date of this motion, the mother had not acquired a home that could accommodate her children. This is despite advising the society on several occasions that she had either acquired an apartment or would be securing one shortly.

[73] The second significant reason is that the mother's access to the children throughout the entire time the children have been in care has been inconsistent. She has cancelled visits for weeks at a time. When the society tried to accommodate the mother's schedule to assist her in attending visits more regularly, her attendance did not improve.

[74] The mother has provided the society reasons for missing her visits including she was working or she was looking for housing. The mother also told the society that she cannot attend for visits "until I get this all straightened out" and because she is "really busy".

[75] The mother cancelled many visits without providing an explanation for the cancellation.

[76] The mother's lack of consistency with respect to visits with the children is a significant factor for the court to consider. A parent dedicated to their children and determined to have them returned to her care would find a way to visit the children each and every week. If a parent whose children are in the care of the society cannot commit to visiting their children once per week, they leave the court doubting that they will be able to meet the challenges of providing for the children day in and day out if placed in their care.

[77] If the mother cannot organize her life to attend access visits regularly, the court cannot accept the mother's assertion that she is now capable of putting the children first such that they should be returned to her care. At a minimum, a parent seeking the return of the children to their care must regularly attend their scheduled visits and do so on time.

[78] The third significant reason is that the mother has not demonstrated that she can care for these children. When they were in her care they lived in a shelter, they did not attend school regularly and they were kept out late into the early morning while selling chocolates for their mother. The mother has not taken any steps to suggest that things would be different if the children were returned to her care.

[79] The mother has only had day access with A.B. and T.D. She could not have overnight access as the mother did not secure appropriate housing to do so. The court cannot return the children to their mother's care when she has not demonstrated that she can properly provide for and care for her children. The court has no information that it can rely upon to find that if returned to their mother's care, the children would have appropriate housing, would attend school every day and on time, and would not be involved in the mother's income earning ventures.

[80] Before there could be a permanent move for these children back to their mother's care, the mother would have to show she has adequately addressed the society's concerns. Despite the passage of over two and a half years, she has taken no steps to address the society's concerns.

[81] The fourth significant reason why it is not in the children's best interest to return them to their mother's care is that in order for a court to even contemplate such an order, there would have to be several detailed terms of supervision. The court must be confident that the mother would comply with the terms of a supervision order in order for there to be a possibility of the successful return of the children to the mother's care.

[82] The evidence strongly suggests to the court that the mother would not cooperate with the terms of a supervision order. When the children were placed in her care subject to the terms of a supervision order, the mother breached several of the terms on many occasions. After the children were ordered into care, the mother had very little contact with the society and in fact told them on more than one occasion that she did not have time to meet with them. The mother never demonstrated a willingness to cooperate with the society to address the protection concerns.

[83] Lastly, the mother has shown no insight into the protection concerns. She does not address the serious concerns raised by the society in their affidavit material in her Answer and Plan of Care or the affidavit material she relied upon on this motion. The mother's evidence is that the children were taken from her when she was living in a shelter where there was no breathing room to do what she needed to do; her life was upside down. She gave evidence that if she was late for a visit it was because she was working late in order to earn enough money to obtain housing. She also gave evidence that if she missed a visit it was due to our City's public transportation system.

[84] The mother is unable to consider what she has done to contribute to this situation which makes her incapable of addressing the protection concerns.

[85] As the mother has no plan for the court to evaluate, there is no genuine issue requiring a trial.

[86] The uncontested evidence also reveals other reasons why the mother's plan has no realistic chance of success:

• a) The mother's Answer and Plan of Care lists her son and an unknown woman as her supports if the children are returned to her care. The use of the mother's older son as a support is questionable given that he was planning for the children to live with him and withdrew his plan a week before the children were scheduled to move in with him;
• b) The mother shows no insight into the society's protection concerns. She provides no explanation for her lack of stable housing. She does not address her use of the children to supplement her income by keeping them out very late selling chocolates. She provides no explanation for why the children missed over 60 days of school in 2012-2013. The mother continued to engage in this questionable behavior after the Protection Application was commenced and the children were placed in her care subject to a supervision order. This is how the mother conducted herself while under the microscope of the society and the court; and
• c) The mother has done nothing to address the society's concerns that existed in August 2013 when the children were apprehended.

[87] The court finds, based on the uncontested or baldly denied evidence that:

• a) The society's plan will better meet A.B.'s and T.D.'s physical, mental and emotional needs. Both children are doing very well in a foster care with loving and consistent caregivers.
• b) The society's plan will better meet A.B.'s and T.D.'s physical, mental and emotional development.
• c) The society's plan will better meet A.B.'s and T.D.'s need for continuity and stability.
• d) The risk of placing A.B. and T.D. with their mother is unacceptably high as they would be moved from a stable to an unstable environment.
• e) The society's plan will better address A.B.'s and T.D.'s needs than the plan proposed by the mother.
• f) The children have been in care almost 3 years. This case should not be delayed any further.

[88] There is no genuine issue requiring a trial. The least disruptive alternative consistent with the children's best interests is to make A.B. and T.D. Crown wards.

Part Seven – Access

[89] The society is requesting an order that the children be made Crown wards with access to their mother. The society seeks an order granting the mother access to the children at the society's discretion in accordance with the children's wishes.

[90] The mother seeks an order for access in the event that the children are made Crown wards. The children currently have unsupervised access every Saturday from 10:00 a.m. to 4:00 p.m. It is possible that there could be an expansion in access if the mother secures accommodations that could house the children overnight.

[91] There is no dispute that the children share a relationship with their mother that they find beneficial and meaningful and that they are at an age that access to their mother would not impair their opportunities to be adopted.

[92] While it is agreed between the parties that there should be access by the children to their mother and the court agrees, there is insufficient evidence on this summary judgment motion for the court to determine what final access order is in the children's best interest. Additional evidence is required.

[93] The parties will attend in court to provide further submissions on the issue of access on a date to be set between the parties and the trial coordinator.

Part Eight – Conclusion

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

• a) The statutory findings for A.B. and T.D. are made as requested in paragraph 1 of the society's Notice of Motion for summary judgment.
• b) A.B. and T.D. are children found to be in need of protection pursuant to clauses 37(2)(b) & (g) of the Child and Family Services Act.
• c) A.B. and T.D. will be made wards of the Crown and placed in the care of the Children's Aid Society of Toronto.
• d) The issue of access will be adjourned for further submissions.
• e) A.B. and T.D. will continue to have access to their mother as per the current order until further order of the court.
• f) The parties shall arrange a date with the trial coordinator to provide further submissions and evidence in order to address the outstanding issue of the mother's access to the children.

Released: June 30, 2016

Justice Melanie Sager

Footnotes

[1] No criminal charges were laid.

[2] The times of the mother's return to the shelter with the children was between 11:30 p.m. and 1:10 a.m.

[3] This is not a complete list of the conditions imposed on the mother.

[4] The mother failed to advise the society that she would not be attending this visit.

[5] The two younger siblings who are in the custody of their older sister as referenced in paragraph 18 of this Judgment.

[6] Mother refused to meet with society workers from August 2015 to January 2016.