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

Court: Ontario Court of Justice

Date: 2016-10-07

Court File No.: Simcoe 26/13

Between:

CHILDREN'S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant

— AND —

B.H. AND K.T., Respondents

Before: Justice K.A. Sherwood

Heard on: March 30, 2016

Reasons for Judgment released on: October 7, 2016

Counsel

Virginia Mendes da Costa — counsel for the applicant society

Alison R. MacDonald — counsel for the respondent B.H.

No appearance by or on behalf of K.T., noted in default on October 28, 2015

SHERWOOD J.:

Introduction

[1] The Children's Aid Society of Haldimand & Norfolk (hereinafter referred to as the Society) has brought a motion pursuant to Rule 16 of the Family Law Rules seeking summary judgment for a finding that the child A.T. is in need of protection under section 37(2)(b)(i) and (ii) of the Child and Family Services Act, and an order of Crown wardship with no access to the child by the Respondent parents.

[2] A.H. is the child of the respondent mother B.H. and respondent father K.T. A.T. was apprehended from the care of her mother on […], 2014, shortly after her birth and has remained in the care of the Society since that date.

[3] A.T. is the third child of the respondent parents. Two older siblings, X.K.T. born […], 2011 and X.S.T. born […], 2013 were apprehended by the CAS of Haldimand & Norfolk in March 2013 and on June 25, 2015 following a trial were made Crown wards and placed in the care of the Society with no access by either B.H. or K.T. That order provided for sibling access between those two children and for no access by either of those children with A.T.

[4] The Society's involvement with the respondent mother goes back to 2002 when she was a child. More recently, the Society has been working voluntarily with the mother since 2011 regarding concerns relating to the mother's mental health, both parents' drug use, domestic violence within the parents' relationship and the parents' unwillingness or inability to work cooperatively with the Society and other support services to address the protection concerns. Specifically with respect to the mother's mental health there had been reports from Adult Mental Health that she had been diagnosed with a mood disorder, general anxiety disorder and borderline personality disorder and had not followed through with mental health recommendations. The Society's historical concerns regarding the parents' drug use were based upon meconium tests following the birth of the oldest child X.K.T. in October 2011 being positive for marijuana. Those concerns were exacerbated when in November of 2012 the respondent father was arrested and charged with trafficking of cocaine, and then 10 days later, when she would have been approximately 5 ½ months pregnant with X.S.T., the respondent mother was charged with possession of marijuana. When X.S.T. was born in March 2013 the hospital reported that the mother had tested positive for cocaine and marijuana and that the child appeared to be experiencing withdrawal. It was at that point that both of the older siblings X.K.T. and X.S.T. were apprehended by the Society. While B.H. acknowledges that she used marijuana throughout her pregnancy with X.S.T. she denies that she used cocaine, and disputes the positive tests for cocaine. While this narrative explains the Society's historical concerns it should be noted that the Society is not relying on those drug tests in this proceeding.

[5] In November 2012 the respondent father K.T. stated that he had made a decision that he would no longer be a part of his son X.K.T.'s life until he could get clean. He did not see his son X.K.T. since his arrest in November 2012. He was incarcerated when his son X.S.T. was born in […] 2013 and he has not exercised any access with that child either. He did not file an Answer in the proceedings concerning his two sons X.K.T. and X.S.T. or in this Protection Application concerning his daughter A.T., and in both proceedings was noted in default.

[6] Immediately following the birth and apprehension of A.T. the Society commenced its Protection Application. Initially the Society sought protection findings under both subsections 37(2)(b)(i)(ii) and (g) of the CFSA, and was requesting an Order that A.T. be made a ward of the Society for a period of six months with access to the respondent parents to be at the discretion of the Society as to location, duration, frequency and supervision. The initial stated concerns of the Society related to the parents' drug use, the relationship between B.H. and K.T., the mother's compliance with court orders, and the mother's mental health. On October 7, 2014 a temporary without prejudice Order was made placing A.T. in the temporary care of the Society with access to be at the discretion of the Society as to location, duration, frequency and supervision. That Order has remained the governing order regarding the temporary placement and access with the child. In November 2014 B.H. filed an Answer and Plan of Care, denying the Society's concerns and seeking the return of A.T. to her care. In July 2015 the Society amended its Protection Application to change the disposition it was seeking to Crown wardship with no access. B.H. has filed an Amended Answer and Plan of Care denying that A.T. is in need of protection and seeking the return of A.T. to her care under a Voluntary Services Agreement, or in the alternative, be placed in her care under a supervision order, or in the further alternative be placed in the care of the paternal grandmother S.M. under either a supervision order or a deemed custody order under s. 57.1 of the Act.

The Evidence

[7] The Society's evidence consisted of the affidavits of its workers Michael Downs (October 6, 2014, and February 23, 2015), Chantal Pepper (June 11, 2015, October 16, 2015, and February 25, 2016), Kathy Szabo (October 22, 2015), Margaret Haines (November 12, 2015) and Karen Mater (November 13, 2015). The Respondent B.H. relied on her affidavits sworn January 22, 2016 and March 19, 2016, and her Plan of Care dated February 1, 2016.

[8] When the hearing date was set each party was directed to file a factum, including consideration of any affidavit material filed that ought to be struck as not being properly admissible evidence. The Society in its factum did not address this concern in any way. Counsel for the respondent in her factum included an analysis of each of the Society's affidavits, noting numerous paragraphs which she argued ought not to be admitted into evidence because they would inadmissible on the basis of being hearsay. Counsel for the Society specifically agreed that the objections raised by the respondent were valid and that those portions of the Society's affidavit evidence should be struck. In total parts or all of 103 paragraphs were struck from the Society's affidavit evidence.

Identification Findings

[9] At the hearing and with the parties consent, the court made the identification findings required under s. 47(2) of the Act.

Positions of the Parties

Position of the Applicant Society

[10] The Society's concerns regarding B.H. have been and continue to be in respect of her drug use, her non-compliance with court orders, her ongoing relationship with the child's father K.T., her mental health, and her unsafe housing. While the Society acknowledges that the mother has tried to address these concerns, and that these efforts have been commendable, it submits that given the length of time that the child has been in care B.H.'s efforts have come too late. The Society contends that while there have been some positives during access there are still significant issues with the access. The Society maintains that it has taken steps to work with B.H. as required by the Act and has assessed a kin placement of the child with the child's paternal grandmother, S.M., but did not approve that placement.

[11] The Society asserts that Justice Zivolak's decision in June 2015 determining the Status Review Application concerning the two siblings dealt with many of the same issues, and that these issues remain relevant in this proceeding.

[12] The Society argues that B.H. has not complied completely with court orders and therefore the child could not be protected if placed in the mother's care under a supervision order, no matter how strict the terms of supervision are.

[13] It is the Society's position that given the young age of A.T. and the length of time that she has been in care, the need for permanency planning dictates the relief of Crown wardship. Further if the child is made a Crown ward, B.H. has not met the test of establishing that access for her with the child would be "beneficial and meaningful" and would not impair the child's future prospects for adoption. The Society has a potential adoptive home, which is the home where the child's siblings have been adopted, and accordingly the Society submits that its plan for Crown wardship and adoption satisfies the considerations of permanency and family connection as set out in the best interests test and should be preferred to the respondent mother's plan. The Society argues that the time limits provided in the legislation are there for the protection of the child and matters should not be delayed to allow the parent to get her act together. The Society submits that its evidence establishes that there is no genuine issue requiring a trial and that the respondent mother has not in responding to the Society's case put her best foot forward and has not provided sufficient evidence to establish that there is a need for a trial. Alternatively if the court were to find, that because of the lack of evidence concerning the Society's assessment of the proposed kinship placement, that this was a triable issue, the Society submits that the court could direct either the trial or a focused hearing to proceed on that issue alone – i.e. is placement of the child in the care of the paternal grandmother an appropriate disposition.

Position of the Respondent Mother

[14] The respondent argues that there is a triable issue as to whether the child's best interests are served by placement with the mother, the paternal grandmother or being made a Crown ward. She submits that although the Society has control over all of the people who could have provided evidence with respect to its assessment of S.M. as a kin placement, it has not put forward any evidence to dispute or discredit why the paternal grandmother S.M. should not be considered as a kin placement for this child, and accordingly the Society has not proven that there is no triable issue.

[15] The respondent asks the court to compare the status of the issues raised by the Society as at the time of apprehension to the present. With respect to housing, which was clearly an issue at the time of apprehension, B.H. has now secured housing and although the Society has been invited to do so, they will not even come out to see or assess her housing. With respect to her drug use, with which she clearly had issues before, she is now on the methadone program, has had to provide regular drug screen samples for that program and as she continues on that program, she must be testing clean. B.H. continues to access and engage in services. With respect to her relationship with K.T., that was clearly a significant issue at the time of apprehension, she has terminated that relationship, and is even asking for a restraining order against him. Accordingly the respondent submits that there have been significant changes since the time of apprehension that impact on whether or not the respondent could adequately parent A.T., and that this too constitutes an issue requiring a trial.

The Previous Proceedings Regarding X.K.T. and X.S.T.

[16] Justice Edward in in his Reasons for Judgment given on December 9, 2013, determining the summary judgement motion brought by the Society in the initial protection application concerning X.K.T. and X.S.T. found the children X.K.T. and X.S.T. to be in need of protection under s. 37(2)(a)(i), (b)(i) and (ii), and (g), and ordered that they be made wards of the CAS of Haldimand & Norfolk for a period of six months with access by the Respondents to be at the discretion of the Society as to location, duration, frequency and supervision and that the Respondent mother B.H.'s access be a minimum of three, two hour visits per week. He also ordered that B.H. continue to submit to Society drug testing.

[17] On the Status Review Application concerning X.K.T. and X.S.T. Justice Zivolak found that B.H. was trying, had been very consistent in attending her access, was genuine and steadfast in her love of her children, that she wanted the best for them and was willing to provide the best she could for them. Justice Zivolak found that B.H. continued to self-medicate with marijuana as a stress reliever, noting that there was no direct evidence of her being under the influence of drugs while caring for the children. She accepted B.H.'s evidence that any cocaine use had not been intentional on her part. The court found however that B.H. had not managed to obtain a safe and appropriate residence, that she had not fully or appropriately managed her mental health issues, that there ongoing issues with respect to her relationship with K.T., including domestic violence, drug use and criminality, and that despite her maintaining that they were not in a spousal relationship they did conceive a child together during the course of the proceedings and she was continuing to have contact with him which was impacting negatively upon her. Justice Zivolak found that this inability to protect herself from K.T. contributes to the ongoing and potential risk to anyone in her care. Justice Zivolak noted that some of the factors that B.H. presents with are clearly beyond her control and that even during supervised access visits she is not always able to care for her children. Justice Zivolak noted that although there had been some progress demonstrated by her graduating from school, obtaining employment, moderating and controlling her drug use, and advancing her parenting skills, the Society's evidence illustrated that despite supervised access three times a week, B.H. continued to struggle with all aspects of parenting during those visits and that supervision was necessary in order to safely continue the visits. Justice Zivolak found that B.H.'s mental health issues and her continuing to not abide by doctor's recommendations was an ongoing issue. Justice Zivolak determined that although there had been improvement in B.H.'s parenting skills, there had not been sufficient progress to where the children could be safely returned to her care and on the basis of these ongoing concerns found that the children X.K.T. and X.S.T. continued to be in need of protection.

[18] Justice Zivolak was not satisfied that an extension of time under s. 70 was warranted in that case as there was no immediate prospect of change, as B.H. had not been able to accept or adequately address the protection concerns particularly those relating to her relationship with K.T. and her mental health. Faced with the option of either returning the children to the care of B.H. or making them Crown wards, Justice Zivolak found that due to the ongoing protection concerns she could not return them to the care of B.H. and accordingly ordered that the two children be made Crown wards. Justice Zivolak then concluded that she could not find, based on the evidence presented, that the connection between B.H. and the children had been one that was beneficial or meaningful for the children. Finding on the Society's evidence that there was a reasonable prospect for the adoption of these children Justice Zivolak determined that access would impede or impair the prospects of an adoption and ordered that there be no access with X.K.T. and X.S.T. by the parents.

[19] On the issue of sibling access, Justice Zivolak, noting that the two boys had always been together since the birth of X.S.T., that they had formed a meaningful and beneficial connection and that an access order between the two boys would not impede or impair adoption ordered that there be sibling access as between X.K.T. and X.S.T. With respect to A.T., given her very young age of just 8 months at the time, and the young age of X.K.T. and X.S.T., just 2 and 3 years old respectively, Justice Zivolak found on the balance of probabilities that it had not been established that there is a meaningful and beneficial connection between the two boys and A.T., and further that a sibling access order between the two boys and A.T. would impede the adoption of X.K.T. and X.S.T. Accordingly, Justice Zivolak ordered that there would be no sibling access order with X.K.T. and X.S.T. as it relates to A.T.

Plans of Care

The Society's Plan

[20] The Society's Plan of Care dated July 15, 2015 is based upon the relief that it is seeking of Crown wardship with no access. The Society identifies that it will provide placement to meet the child's needs and ensure her wellbeing, and that it will assess potential caregivers that may be presented by the family. The Society confirms that they are seeking to make the removal of the child from the care of B.H. permanent and that it will be making efforts to assist the child to develop a positive, secure and enduring relationship within a family through adoption. The Society will not support keeping up the child's contact with B.H. but will involve B.H. in the completion of a social history and life book on behalf of the child, and this information will be shared with the child as permitted and appropriate.

The Respondent Mother's Plan

[21] B.H.'s Amended Answer and Plan of Care, dated February 1, 2016 proposes that A.T. be returned to her care under a Voluntary Services Agreement between her and the Society, that there be no access to the father J.T. without further Order of the Court and that there be a restraining Order pursuant to s. 80 of the CFSA restraining J.T. from having any contact with B.H. or the child. In the Alternative she proposes that A.T. be placed in her care under a supervision order on specified terms and conditions, with provision for no access by J.T. and a restraining order against J.T. as described above. B.H.'s plan is for the child to reside with her at her current residence in Simcoe. She plans to have the child enrolled in daycare two days per week for socialization, continue with the counselling that she is presently enrolled in with the Norfolk Women's Shelter Individual Counselling and a drop-in group with her assigned Women's Services worker, continue to use the supports of her extended family, and continue to attend as necessary at her physician's office. She states that she would re-engage with the Healthy Babies, Healthy Children program that she had previously been involved with, would not be opposed to the Public Nurse attending her home as well, and would also want A.T. to continue in the Early Years Programme that she has enjoyed to date. B.H. states that she has completed the Beyond the Basics Parenting Program through REACH at least 3 times in the past three years and that she is also in Anger Management through REACH and has been provided with a referral to the psychiatrist program through the Norfolk Women's Shelter. She plans to have A.T. involved in age appropriate physical and developmental activities such as learning through play, baby toys, walks, attending at the Early Years Centre, and splash pad and swimming in the summer. Eventually she would like to enroll A.T. in dancing once she is old enough. Her income will be derived from Ontario Works, Child Tax Benefit, Universal Child Care Benefit, GST rebate, and if possible she will be replacing Ontario Works with employment income, although she intends to remain home with A.T. for the foreseeable future as her caregiver.

[22] In the further alternative, if A.T. is not to be returned to her care, then B.H.'s plan would be for the child to be placed with the paternal grandmother, S.M., jointly with B.H., or alone, either as a kinship care provider under a supervision order on specified terms or conditions, or pursuant to a deemed custody order under s. 57.1 of the CFSA, together with the provision that there be no access by J.T. and that he be subject to a restraining order as above. Under that plan the child would reside with S.M. at her residence in Simcoe, noting that S.M. and her spouse R.R. are both employed, but that S.M. would be eligible for parental leave from her employment if A.T. were placed in her care.

[23] B.H. has appended to her Plan of Care a letter and curriculum vitae from S.M. and a copy of an Affidavit in Support of Claim for Custody or Access, sworn by S.M. on February 1, 2016. In that Affidavit S.M. confirms that she is the paternal grandmother of A.T., and the mother of 4 children, ages 10, 17, 26 and 28, including K.T. (now 26), and that she has been a party in a custody and access case involving her 10 year old child and K.T., in which an order was made granting her full custody of those children. The affidavit also confirms that she was a party in a child protection case in which on consent her oldest child A.M (now age 28) was made a Crown ward with access. She indicates that that order was made as A.M. had assaulted her younger child while in her care and that he would have better access to services by being a Crown ward. She indicates that she has not been found guilty of any criminal offences for which she has not received a pardon and that she does not currently have any outstanding criminal charges. She confirms that she resides in Simcoe with her common law husband R.R. and her 17 year old daughter. She states that decisions for the child would be made jointly by her, her spouse R.R. and B.H. She works part-time and is able to take maternity (sic parental) leave. The child A.T. would attend day-care and have regular contact with B.H., and maternal grandparents J.C. and N.T. She confirms that the child does not have any special medical, educational, mental health or developmental needs and that she has the support of her husband R.R., maternal grandparents J.C. and N.T., Community Services (if needed), Early Years Centre, REACH, CAS of Haldimand & Norfolk, and maternal and paternal aunts and uncles.

[24] The letter from S.M. and her curriculum vitae are not sworn evidence and are not accepted as evidence on the motion. The Affidavit of S.M. attached to B.H.'s Amended Answer and Plan of Care is sworn and accordingly is accepted as evidence of her consent to have the child placed in her care either under a supervision order or a deemed custody order under s. 57.1 of the CFSA.

The Law

Rule 16

[25] In a child protection case a party may, under Rule 16 of the Family Law Rules, bring a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence submitted in the case. The party making the motion shall serve affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. In response to the evidence served by the party making the motion the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order. If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and unless it is in the interest of justice for such powers to be exercised only at trial, the court may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. For the purposes of exercising these powers of weighing the evidence, evaluating credibility and drawing inferences from the evidence, the court may order that oral evidence be presented by one or more of the parties, with or without time limits on its presentation.

Case Law

[26] In all child protection cases the court must give priority to the paramount purpose of the Child and Family Services Act as set out in section 1 to promote the best interests, protection and well-being of children. Another purpose, so long as it is consistent with the best interests, protection and well-being of the child, is to recognize that the least disruptive course of action that is available and is appropriate in the particular case to help the child should be considered. A further purpose, again so long as it is consistent with the paramount purpose of the Act, is to recognize that children's services should be provided in a manner that provides early assessment, planning and decision making to achieve permanent plans for children. See The Children's Aid Society of the Niagara Region v. L.B. and J.S., 2014 ONSC 1151 (Ont. S.C.J.) per Madame Justice W.L. MacPherson, at para. [62].

[27] Accordingly the question of whether there is a genuine issue for trial must be determined in the context of the overarching principles in section 1 of the Act's primary purpose which is to "promote the best interests, protection and well-being of children" and this must be done considering the narrow time lines constraining the available dispositions imposed on the court by sections 57 and 70 of the CFSA. See Children's Aid Society of the Regional Municipality of Waterloo v. V.L., [2006] O.J. No. 3785 (Ont. S.C.J.) per Hambly J., at para. [48].

[28] On a motion for summary judgment the burden is on the moving party, in this case the Society, to show that there is no genuine issue for trial. See Children's Aid Society of Halton Region v. K.L.A., [2006] O.J. No. 3958 (Ont. C.A.) per Rosenberg J.A., at para [19].

[29] A party moving for summary judgment must disclose its full case to the court. A party answering a motion for summary judgment must put their "best foot forward" in responding to the case for the moving party and when faced with a prima facie case for summary judgment, they must provide evidence of "specific facts showing that there is a genuine issue for trial" [R. 16 (4.1)]. Mere allegations or blanket denials contained in self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial are insufficient to defeat a claim for summary judgment. See Children's Aid Society of the Regional Municipality of Waterloo v. V.L., supra, per Hambly J. at para. [48]; and Children's Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (Ont. C.J.) per Jones J., at para. [10].

[30] The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material to the determination of the trial. A disputed fact, the existence or non-existence of which will not affect the outcome of the trial, does not raise a genuine issue requiring a trial. See Children's Aid Society of Toronto v. K.T., supra, per Jones J., at para. [12].

[31] "No genuine issue for trial" has been equated with:

• "no chance of success" and "plain and obvious that the action cannot succeed". See Prete v. Attorney General for Ontario, 16 O.R. (3d) 161, leave to appeal to S.C.C. refused (1994) 17 O.R. (3d) xvi; and Children's Aid Society of Oxford County v. J.J., [2003] O.J. No. 2208 (Ont. S.C.J.) per Haney J., at para. [8];

• "the outcome is a foregone conclusion". See Catholic Children's Aid Society of Metropolitan Toronto v. L.O., [1996] O.J. No. 3018 (Ont. Gen. Div.) per Chapnik J., at para. [80]; and See Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442 (Ont. S.C.J. – Unified Court) per Czutrin J. at paragraph [54].

• "there is no realistic possibility of an outcome other than that as sought by the applicant." See Children's Aid Society of the County of Simcoe v. C.S., [2001] O.J. No. 4915 (Ont. S.C.J.) per R. MacKinnon J., at para. [5]; and Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Ont. S.C.J.) per Pazaratz J., at para. [43].

[32] In a child protection proceeding 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 he or she faces some better prospects than what existed at the time of the Society's removal of the child from their care and that they have developed some new ability as a parent. See Children's Aid Society of London and Middlesex v. L.A., [1999] O.J. No. 5839 (Ont. Gen. Div.) per Vogelsang J., at para. [14]; and Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J., at para. [18].

[33] Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent. See Children's Aid Society of Toronto v. R.H., supra, per Katarynych J., at para. [15].

[34] Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with the child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. See Children's Aid Society of Toronto v. R.H., supra, per Katarynych J., at para. [16].

[35] The Child and Family Services Act is a child welfare statute and not a parent's rights statute. Young children who have been in care all of their short lives should not be kept in limbo. Such children would benefit most from permanency planning so that they can attain the stability and develop roots necessary to their healthy physical and emotional development. See Children's Aid Society of Hamilton v. S.H., [2005] O.J. No. 5114 (Ont. S.C.J.) per Milanetti J., at paragraph [19].

Statutory Pathway on a Protection Application

[36] Pursuant to Part III of the Act, a Society may apply to a court for an order that a child is in need of protection within the criteria enumerated in section 37(2). In this case the Society is seeking a finding that the child A.T. is in need of protection within the meaning of s. 37(2)(b)(i) and (ii), specifically that 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 failure to adequately care for, provide for, supervise or protect the child, or that person's pattern of neglect in caring for, providing for, supervising or protecting the child.

[37] Section 47 of the Act directs that where such an application has been brought, the court shall hold a hearing to determine the issue of whether the child is in need of protection, and if the child is found to be in need of protection, make a dispositional order under sections 57 or 57.1, in the best interests of the child. Subject to time limits imposed by section 70(1) as to the aggregate period of time that a child may be in the care of a Society, the orders that may be made under section 57 are limited to: (1) placement of the child 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 twelve months; (2) that the child be made a ward of the society and placed in its care and custody for a specified period not exceeding twelve months; (3) that the child be made a ward of the Crown and be placed in the care of the society; or (4) that the child be made a ward of the society for a specified period and then be returned to a parent or another person for a period or periods not exceeding an aggregate of twelve months. Under section 57.1 the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons and that order is deemed then to be a custody order made pursuant to section 28 of the Children's Law Reform Act.

[38] Subsection 70(1) of the Act provides that the court shall not make an order for society wardship that results in the child being a society ward for a period exceeding twelve months if the child is under the age of six years. Subsection 70(4) allows for only a six month extension of this time period if it is in the best interests of the child to do so. In this case, where the child A.T. has been in care for much longer than the prescribed time period, the available alternatives are restricted to either returning the child to the care of the mother, with or without a supervision order, making the child a ward of the Crown, or making a deemed custody order under s. 57.1 of the Act.

[39] Section 37(3) sets out the circumstances to be taken into account in determining the best interests of a child.

[40] In determining which order to make the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under Part III of the Act [see section 57(2)], and the court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention unless the court is satisfied that alternatives that are less disruptive to the child, would be inadequate to protect the child [see section 57 (3)]. Where the court determines that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention, the court shall, before making an order for society or Crown wardship, consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family [see section 57(4)].

[41] Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under Part III of the Act [see section 57 (9)].

[42] If the court makes an order under Part III of the Act it may, in the child's best interests, make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate [see subsection 58(1)]. Subsection 59 directs that where an order is made under subsection 57(1) removing a child from the person who had charge of the child immediately before intervention for either placement of the child with another person, or that the child be made a ward of the Society, or an order is made under section 57.1 removing the child from a person who had charge of the child immediately before intervention, the court shall make an order for access by the person from whom the child was removed, unless the court is satisfied that continued contact will not be in the child's best interests. The onus to establish that continued contact with the child would not be in the child's best interests is upon the Society.

[43] If a child is made a Crown ward, subsection 59(2.1) prevents the court from making an access order unless the court is satisfied that the relationship between the person to have access and the child is beneficial and meaningful to the child, and the ordered access will not impair the child's future opportunities for adoption (emphasis added). Accordingly, subsection 59(2.1) creates a presumption against access, shifting the onus to the parent to show that an access order would be meaningful and beneficial to the child and that it would not impair the child's future opportunities for adoption. This rebuttable presumption is conjunctive and accordingly the parent must rebut both elements. If the parent cannot discharge that burden then the court must not make an access order.

[44] With respect to the first part of the test, establishing that the relationship between the person seeking access and the child is beneficial and meaningful, "beneficial" has been held to mean "advantageous" and "meaningful" has been held to mean "significant". Accordingly the person seeking access must prove that their relationship with the child brings a significant positive advantage to the child. To meet this test more is required than simply demonstrating that the applicant is a biological parent of the child, the parent loves the child, the child loves the parent, there is affection displayed at the visits, and that the visits were pleasant. The relationship with the child must be beneficial in the sense of being significantly advantageous to the child's well-being. See Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Ont. Div. Ct.) per Aitken J.

[45] Regarding the final part of the test, that an access order will not impair the child's future opportunities for adoption, the party seeking access must also lead evidence to prove on a balance of probabilities that adoption is not a realistic opportunity. See [Children's Aid Society of Ottawa v. C.W.]

[46] Accordingly, a protection application involves four stages, as follows:

1. The court is required to determine whether the child is in need of protection within the meaning of s. 37 (2) of the Act.

2. If a protection finding is made, the court must determine if further intervention through a court order is necessary to protect the child in the future.

3. The court must then make a determination regarding the placement of the child.

4. Finally, the court must decide the issue of access to the child.

(See Catholic Children's Aid Society of Hamilton v. A.(M.), 2012 ONSC 267 (Ont. S.C.J.), per Chappel J. at paragraph [12].)

Burden and Standard of Proof

[47] In child protection proceedings the onus is on the Society, being the party seeking to intervene in the care of a child by a parent or guardian, to prove that the child is in need of protection and that the relief sought is in the best interests of the child and the available option, that while adequate to protect the child, is the least disruptive to the child. The standard of proof is on a balance of probabilities.

Protection Finding

[48] The critical point for the determination of a child's need for protection is the point of apprehension stretched forward to encompass the circumstances bearing on the child at the time of the protection hearing to ascertain the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over the same time. See Children's Aid Society of Toronto v. R.(J.), [2003] O.J. No. 2095 (Ont. C.J.), per Katarynych J. at paragraph [120].

Issues

[49] To succeed in its request for summary judgment that the child A.T. be made a ward of the Crown without access, the Society, on its evidence, must establish that there is no genuine issue requiring a trial with respect to the following determinations:

1. The child is in continuing need of protection;

2. Intervention through a court order is necessary to ensure the child's protection;

3. An order that the children be made a ward of the Crown is the option available under section 57 or section 57.1 of the Act that is in the child's best interests, and is the least disruptive to the child yet adequate to protect her. Given the position and submissions of the respondent mother, the Court must consider whether the Society has met its statutory duty to consider as a less disruptive alternative placement with a member of the child's extended family or community.

4. The order should provide that there should be no access between the parents and the child.

[50] If the Society can make this prima facie case, then the respondent mother must through her evidence set out specific facts showing that there is a genuine issue requiring a trial. If the court is satisfied that there is a genuine issue or issues requiring a trial then it must direct a trial on those issues. If the court is satisfied on all of the evidence that there is a basis for the relief sought by the Society and that there is no genuine issue requiring a trial then it must grant summary judgment for the relief requested.

[51] Where the primary focus is whether the parent has recognized and successfully dealt with the problems of the past, and where the Society has made a prima facie case that the parent has not done so, then the parent must produce credible evidence showing that the concerns raised by her past conduct have been sufficiently resolved.

Analysis

[52] The concerns raised by the Society regarding B.H. and which it submits supports the relief that it is seeking in its motion for an order that the A.T. is a child in need of protection and crown wardship without access, relate to her drug use, mental health, housing, relationship with K.T., her inability or unwillingness to work with the Society or other service providers, and her non-compliance with court orders. With respect to these issues the relevant evidence can be summarized as follows.

Drug Use

[53] On May 13, 2013 and again on December 9, 2013 B.H. was ordered by the Court to attend for drug testing as requested by the Society. According to the evidence of Michael Downs, the Society consistently requested that B.H. submit to three drug tests per week, and although B.H. has never completely complied with this request, she did sporadically provide drug tests. During 2013 and 2014 the Society was provided with approximately 50 drug test results all of which were positive for marijuana. One of the drug tests in November 2013 was positive for oxycodone, tests taken July 24, 2013 and October 28, 2013 were positive for opiates, and seven drug tests were positive for cocaine, including a test in June 2014 while B.H. was pregnant with A.T.

[54] On August 23, 2014, B.H. was admitted to a substance abuse treatment program at the Pinewood Women's Residential Treatment Centre. B.H. advised Mr. Downs that she had completed that program on September 12, 2014 and that she was abstaining completely from all illegal drugs. For a period following her discharge from the treatment program, until November 3, 2014 B.H. provided 50% of the drug tests requested of her and all of those test results were negative. After November 3, 2014 B.H. abruptly, and without offering any explanation, stopped completing the drug tests requested by the Society.

[55] In June 2015 B.H. advised Chantal Pepper that she would not be doing drug testing because it would show that she was using marijuana. She told Ms. Pepper that using marijuana is how she copes and that she would quit if A.T. was returned to her care.

[56] In November 2015 B.H. requested Ms. Pepper to assist her in getting an appointment with her psychiatrist. She advised Ms. Pepper that she had a prescription for her social anxiety and stated that she only had half of a prescription and sometimes needed to take four or five pills. While B.H. denied taking the medication to get high she did admit to having taken too much of the medication in an attempt to overdose.

[57] On November 10, 2015 Ms. Pepper observed part of B.H.'s visit with A.T and describes that B.H.'s leg was shaking, she was not communicating with A.T., she was frequently shifting her hair around her neck and was itching up and down her arms. B.H. yelled "are you just going to wait for me to freak out". It appeared to Ms. Pepper that B.H. had had a drastic weight loss in the previous three weeks. These observations are corroborated by the evidence of Karen Mater, the supervisor of the access visit, who describes B.H. as being upset and swearing, presenting as angry and mad, and was holding her stomach and crying. B.H. advised that the medication that her doctor had put her on the day before was making her sick. Ms. Mater observed B.H. to be very fidgety, bouncing her legs, touching her hair, rocking back and forth, crying and scratching her skin, and during one of the diaper changes observed that her eyes appeared dilated. B.H. raised her voice and said "Can we go the fuck outside". After going out for a cigarette break and returning, B.H. still presented as angry and upset. B.H. was constantly checking her cell phone. At times she would yell and swear at Ms. Mater. She kicked toys around and during another diaper change was observed to be handling A.T. in a rough manner. After the diaper change B.H. mumbled "If I do myself in tonight it's on you and everyone here". In the presence of A.T., B.H. continued to yell and swear at Ms. Mater and other Society staff. At one point when B.H. turned away from her, Ms. Mater observed that she had knife clipped on the back of her pants. Regarding these observations, B.H. in her evidence states that she was not using or withdrawing from drug use, but that she was sick and did not want to be near the worker that day. She explained that the reason for her weight loss was because she was under a lot of stress due to losing all of her children as well as her relationship, and also because she had a gym membership.

[58] B.H. stated that she is tested for drugs every week at the methadone clinic and that Ms. Pepper has not met with her in person to request these test results. In addition to attending a methadone clinic B.H. says that she will be completing an intake with the House of Friendship, which is a rehabilitation program in Kitchener and that she is scheduled to attend for the assessment on March 24, 2016 and could be enrolled in that program as early as April 2016.

[59] The mother has an established issue with drug abuse. She has readily admitted that she continues to self-medicate for stress through the regular use of marijuana. However, as noted by Justice Zivolak, there has been no direct evidence presented as to how this impacts upon her ability to parent. There are as well indications that B.H. has involvement with other substances. As noted in the evidence of Michael Downs she has in past drug tests tested positive for substances other than marijuana including oxycodone, opiates and cocaine. B.H. does not refute that evidence, however as the actual results of that testing and expert evidence to interpret and verify those results is not before the court I cannot rely on that evidence. B.H. does not dispute the Society's evidence of the statements she made in November 2015 regarding her use of her prescribed medication or that she had reported to her worker that she had taken too much of her prescribed medication in an attempt to overdose. B.H. acknowledges that she is participating in methadone treatment, has attended counselling for addictions issues and anticipates attending an addictions rehabilitation program. As B.H. abruptly, in November 2014, stopped completing the drug tests requested by the Society, even though she was subject to a court order requiring her to do so, it has not been possible for the Society to determine whether she is abstaining from illicit drug use, and in particular any drugs other than her admitted marijuana use. Although she claims to continue with weekly drug testing through the methadone clinic she has not provided for the release of those test results to the Society. Without evidence from the methadone clinic as to their policies and testing procedures I am not able to accept the proposition put forth by B.H. that her continued involvement with the methadone program means that she must be testing clean. B.H. is well aware of the Society's longstanding concern regarding her drug use. The Society has consistently requested that she submit to drug testing and has raised in its pleadings the specific issue of her refusal to do so. Accordingly I disregard the inference of B.H. that she has not provided her drug test results because Ms. Pepper has not met with her in person to request those results.

[60] Although B.H. states that she was not under the influence of drugs or withdrawing from drugs when she attended for access with A.T. on November 10, 2015, and attributes her behaviour and apparent weight loss to being under stress and having a gym membership, the observations of Ms. Pepper and Ms. Mater lead me to conclude that her ability to care for her child was impaired by drugs, whether prescribed or illicit.

Mental Health

[61] B.H. advised Michael Downs that she was participating in mental health services with Lori Giancola of Haldimand-Norfolk REACH and with Dr. MacDonald.

[62] In June 2015 B.H. advised Chantal Pepper while attending for an access visit, that she wanted to go home and be alone. She said that the Society could have the children, including A.T. and that she was done with them. She said that she could not continue with visits like this and that she would not be coming for further access. She told Ms. Pepper that she was depressed and that she felt like "offing herself" on a daily basis and also made a comment about hanging herself. She confirmed that she had been on depression medication but that she stopped taking it when she became pregnant with A.T. B.H. declined Ms. Pepper's invitation to take her to the hospital.

[63] On September 18, 2015 B.H. advised Ms. Pepper that she was considering going to the hospital so that she did not do anything stupid before it was too late. She then later texted Ms. Pepper that it was a waste of time to go to the hospital. B.H. again declined Ms. Pepper's invitation to take her to the hospital.

[64] In her evidence, B.H. does not address these allegations or comment in any way about her mental health issues, other than to confirm that she sees Dr. MacDonald who has prescribed her medication. She says that she did not share information about this with the Society because the Society tends to use that information against her. She has not provided any evidence from her doctor about her diagnosis, treatment and/or prognosis.

[65] The mother has demonstrated over the past few years that the society has been working with her that she is often unable to regulate her emotions, and on numerous occasions, although she has been under the microscope of supervised access visits or in meetings with society workers has reacted with anger, inappropriate and offensive language and insults and has been verbally abusive to those around her, whether or not the child is in the immediate vicinity.

[66] It is clear from the evidence of the Society's workers and B.H.'s own acknowledgments that she has been participating in mental health services and treatment through her psychiatrist, Dr. MacDonald. Although she has provided no evidence as to the particulars of her mental health issues or the treatment and support services she may be engaging in to address those issues, she does not dispute the Society's evidence that her mental health issues include a mood disorder, general anxiety disorder and borderline personality disorder. Further she has not provided specific evidence as to the recommendations of her treating mental health professionals or to establish that she can consistently comply with such recommendations.

[67] The description of her behaviours during interactions with the Society's workers and during her access visits demonstrates that she has a significant issue with regulating her emotions and in particular her anger. She has made comments about self-harming, overdosing on her medication, and suicide. While at times she can focus on the care of her child, there are other occasions during her access where she has been unable to control her anger and focus her attention on the immediate needs and safety of her child. I conclude that B.H. has mental health issues that interfere with her ability to care for, protect and supervise her child A.T. and that she has not provided sufficient evidence to indicate that she is taking appropriate measures to address those issues.

Housing

[68] Michael Downs did not meet B.H. at her residence, advising her that this was due to a recommendation from the Norfolk O.P.P. In September 2014 K.T. and B.H. were arrested on drug related charges. B.H. explained to Mr. Downs that she was not involved in the matters that gave rise to the charges, and that the drugs and weapon found by the police in her residence belonged to K.T. She said that she and K.T. did not reside together, but she had asked him to look after her dogs while she was in residential treatment. Mr. Downs states that the Society assessed the residence to be unsafe for the children because B.H. had explained that the presence of cocaine in drug tests that she provided was due to "second hand" smoke from neighbours and it was unclear who actually resided at the residence. Despite being aware of this assessment B.H. continued to maintain the same residence.

[69] On June 18, 2015 B.H. told Ms. Pepper that she remains on the lease for her apartment although she was then residing in the Women's Shelter, believing that K.T. would continue to pay the rent. On that date B.H. explained that she was taking her transition to the Shelter slow and that she had not completed any forms for housing.

[70] On July 14, 2015 B.H. advised Ms. Pepper that she needed out of the Shelter right away, and that she was considering renting a room from someone but that she did not yet have the money to do so. Despite this, as of August 7, 2015 B.H. confirmed that she had not yet completed a housing application.

[71] On September 2, 2015 B.H. told Ms. Pepper that she had to move out of the shelter by September 15, 2015 and that she wanted to split the rent for an apartment with another female friend currently residing in the shelter. B.H. said that her only alternative would be to return home where K.T. was continuing to reside.

[72] On September 17, 2015 B.H. advised Ms. Pepper that she had been paying to stay in a hotel but that she could not afford to do this as she had been fired from her job. On September 23, 2015 B.H. texted Ms. Pepper that she had not yet found a place to live but that she had a meeting scheduled with a landlord for an apartment for October 1, 2015. On September 29, 2015 B.H. advised Ms. Pepper that she was staying at a motel but was supposed to be out by that night. She said that she had been missing her access with A.T. because she had been sleeping outside some nights. On October 1, 2015 B.H. advised Ms. Mater, her access supervisor, that she was residing at a motel with K.T. and that two nights ago there had been a break in and she and K.T. were assaulted by two men who wanted money from K.T. She advised Ms. Mater that they could no longer stay at the motel and that she did not know where she would be going that night. On October 2, 2015 B.H. told Ms. Pepper that she would be moving back into the Women's Shelter later that day.

[73] With respect to Ms. Pepper's evidence about her wanting to return to her apartment on July 14, 2015 after she had moved out on June 10, 2015 B.H explains that she wished to be in her own residence but not with K.T. She says that she advised Ms. Pepper that she had lost everything as her home was everything that she had, that she was not ready to go to the Shelter and that she just wanted to go home to be alone at her own house which made her feel comfortable. She says that in October 2015 she did move into a new residence just as she had advised Ms. Pepper earlier that she was going to. She states that Ms. Pepper refuses to come and see her home as proof of where she is residing.

[74] Clearly B.H.'s former housing was an issue because of the apparent presence of K.T., the associated criminality and the uncertainty of who was residing there. She has at times and as recently as the fall of 2015 been transient, moving in and out of the Women's Shelter, a motel and at times appearing to have nowhere to stay. While B.H. appears, as of October 2015 to have secured new housing, there is very little evidence provided by either party about this residence. B.H. offers little, if anything, about a description of this residence and its suitability as a home for herself and the child, and the Society has not explained why they have not visited and assessed this residence.

Relationship with K.T.

[75] It is evident that B.H. has had a long standing relationship with K.T., the father of her three children. The Society has had significant concerns about this relationship particularly as it relates to the safety of B.H. and of A.T. Each of the Society workers, Michael Downs, Karen Mater and Chantal Pepper recount in their evidence incidents confirming the ongoing relationship between B.H. and K.T. and the concerns relating to this.

[76] In his evidence Michael Downs describes how in September of 2014 B.H. and K.T. were arrested on "drug related charges". B.H. advised him that she was not involved in the matters that gave rise to the charges. On September 17, 2014 B.H. advised Mr. Downs that she and K.T. were joint recipients of Ontario Works because that is the only way in which she can afford the rent for her residence. She said that she maintains contact with him for financial reasons, that they do no reside together, and that she had asked him to stay at her residence while she was in residential treatment so that he could look after her dogs. Mr. Downs met with K.T. who acknowledged that the drugs and weapon seized from B.H.'s apartment belonged to him. K.T. denied that he was residing with B.H., explaining that he stayed at B.H.'s residence because he knew that she was in residential treatment.

[77] During Mr. Downs involvement with this case, K.T. did not exercise any form of access with any of his three children since they have been in care, and B.H. and K.T. maintained that they were no longer in a relationship. B.H. and K.T. remained joint tenants on the lease of the residence despite the fact that they both stated that K.T. does not reside there.

[78] Karen Mater the access supervisor advises that B.H. has spoken regularly to her about K.T. and her ongoing contact with him. B.H. has continually denied being in an intimate relationship with K.T. but has made consistent statements about seeing him on a regular basis. Ms. Mater observed B.H. attend visits with injuries that B.H. attributed to K.T. and on other times she has attended visits with injuries that she did not account for.

[79] On October 10, 2014 B.H. told Ms. Mater that she had spoken to K.T. on the telephone from jail. On October 20, 2014 B.H. again said that she had spoken to K.T. on the telephone from jail. On October 23, 2014 B.H. told her that she had sold K.T.'s x-box and clothing and had used the money to get a tattoo. On October 27, 2014 she said that K.T. had sent her a letter from jail. On October 30, 2014 she said that she had found K.T. sitting on her door step because he needed a drive to get his belongings from jail and that she had driven him. On November 3, 2014 she advised that K.T. was clean and she had taken him to the methadone clinic in Brantford. On November 13, 2014 she advised that she had taken him to his mother's house for a party. On November 20, 2014 she advised that she had seen him at his mother's residence. On November 28, 2014 she said that she had gone to visit his mother's residence and he was there. B.H. advised Ms. Mater that K.T. had attended court with her. On January 6, 2015 she advised that she had seen him that morning. On January 18, 2015 she mentioned that she had been with K.T. the previous day. On March 26, 2015 she advised that K.T. had "cleaned out her bank account". On April 2, 2015 she advised that she had had contact with K.T., that the hydro in her apartment had been cut off and that he had cleaned out her bank account using her bank card. On April 8, 2015 she advised that she had gone shopping with K.T. so he would pay for her pet food and groceries. On April 27, 2015 B.H. told Ms. Mater that K.T. had seen the boys (X.K.T. and X.S.T.) in a store and that she did not think it was right that he had not been allowed to approach them.

[80] On April 29, 2015 Ms. Mater noticed a lot of fine scratches on the left side of B.H.'s face. B.H. stated that the dog scratched her when she was putting the dog into its cage. On April 30, 2015 B.H. told Ms. Mater that K.T. and another individual named John had picked her up from work and they had been pulled over by the police. She said that she was surprised when the police searched K.T. that he did not have any "pot" on him as he was supposed to give her some marijuana. On May 7, 2015 Ms. Mater observed cuts on B.H.'s upper right thigh. B.H. stated that she was having a bad week and had found a quiet spot in the woods where she can go, scream and cry and no one can hear her. On May 19, 2015 Ms. Mater observed 10 large scratches on B.H.'s neck and face. On May 21, 2015 B.H. stated that K.T. sleeps over at her place one to two times per week.

[81] On May 28, 2015 B.H. signed a Statement of Agreed Facts in which she confirmed that she was physically assaulted by K.T. on May 4, 2015 and that she did not report this assault to the police.

[82] On May 29, 2015 Ms. Mater observed scratches and bruises on the side of B.H.'s neck. The bruises were quite dark. On June 5, 2015 Ms. Mater observed cuts on B.H.'s lower arms as well as her leg and upper chest area.

[83] On June 10, 2015, when B.H. was explaining to Ms. Pepper that she was done with the children and she wanted to go home and be alone, she told Ms. Pepper that she was depressed and that K.T. was the only person that she could talk to.

[84] On June 30, 2015 B.H. told Ms. Mater that the police had attended at her apartment to see if she was ok. She told Ms. Mater "it doesn't help when the cops show up at a drug dealer's house". On July 7, 2015 B.H. told Ms. Mater that she witnessed a girl and K.T. snort drugs while the girl's babies were present. Earlier that day Ms. Mater had observed B.H. and K.T. walking in town.

[85] On July 8, 2015 while Ms. Pepper was driving B.H. to a mental health appointment B.H. advised that she was continuing to have contact with K.T. but that they were not getting along and their relationship is "over". She said this is difficult because she can tell him everything. She commented about returning home but that she would not want A.T. there. She stated that K.T. never did anything in front of X.K.T. as he would be placed in another room. She said that she did not want A.T. to see that and that she wanted this pattern to end in her family. She said that K.T. was mad at her for "destroying their family" and that he stepped back and went to jail so that she could get X.K.T. and X.S.T. returned to her care. She said that when she was living at home prior to moving to the Shelter, she had suspected that she was pregnant. She had taken a pregnancy test and tore it up so that K.T. did not see it. He made her take another test and was really mad. She stated that she is surprised the baby did not die at that point. She had to go to the hospital as a result. B.H. advised that she subsequently had the pregnancy terminated.

[86] On July 28, 2015 B.H. showed Ms. Mater marks on her legs and said that K.T. had "slapped her around" and then the dog had attacked her as well. Ms. Mater observed bruising and a bite mark on B.H.'s legs.

[87] On September 2, 2015 when Ms. Pepper reviewed with B.H. that the Society's bottom line is that she is not to have any contact with K.T., B.H. told Ms. Pepper that she talks to K.T. less, but that she cannot completely cut him out of her life as they have three children together. B.H. did say that she would get a restraining order against K.T. Previously, during the trial regarding her two sons, B.H. testified that she would pursue a restraining order against K.T., but never did.

[88] On October 1, 2015 B.H. advised Ms. Mater that she was residing at a motel with K.T. and that two nights ago there had been a break in and she and K.T. were assaulted by two men who wanted money from K.T. B.H. said that her face was smashed into the pavement. Ms. Mater observed that B.H. had a massive scrape on the side of her face and marks on her right shoulder. She advised that she could no longer stay at the motel and that she did not know where she would be going that night. On October 5, 2015 B.H. told Ms. Mater that K.T. wants to speak with Ms. Pepper and that he wants to do couples counselling with B.H. On October 8, 2015 B.H. mentioned that K.T. wants her to come with him for his drug test and that she went with him for a drug test the previous week.

[89] In November 2015 it was reported to Ms. Pepper that K.T. had been charged with offences arising from a domestic assault upon B.H. and that the police were investigating further charges against K.T. relating to an incident one month earlier when B.H. had attended the hospital and received medical attention due to K.T.'s violence. On November 11, 2015 B.H. confirmed to Ms. Pepper that K.T. had been charged and is not permitted to have any contact with her. She stated that K.T. had "gone crazy" on her and she was fighting back. She said that she could not remember much but that she had woken up and K.T. took her phone. She said that her mother had attempted to get the phone back and was the one who contacted the police.

[90] On December 16, 2015 B.H. told Ms. Pepper that she wasn't getting her "head kicked to the ground 24/7 anymore". She advised that K.T. was out of jail and she was keeping him out of her home, she is now dating someone from Mississauga, K.T. is no longer allowed to use her address, the landlord does not want him in her home, she did not attend his court appearance, did not see him in jail, and she did not give K.T. any money when he was released from jail.

[91] B.H.'s response to this evidence is that with respect to the incident between K.T. and B.H. reported to the Society by the police in November and resulting in criminal charges against K.T., that she had never been informed that the police were looking into any further charges in respect of an incident approximately one month prior to that. She explains that she met with K.T.'s lawyer because as the victim she was entitled to know what was happening with his charges and of his release date so that she could safety plan with her supports. She says that the information that she provided to Ms. Pepper on December 16, 2015 demonstrates that she is trying and is staying away from K.T.

[92] B.H.'s relationship with K.T. has been ongoing for several years. This is a relationship which has been fraught with problems for B.H. She has disclosed to the Society workers that K.T. has assaulted her on a number of occasions. He has cleaned out her bank account on at least two occasions. He was found with drugs and a weapon in her apartment and charged with these offences. While staying in a motel in the fall of 2015 they were both the victims of a break-in and assault apparently by someone looking to collect money from K.T. Despite the repeated assertions made by B.H. that her and K.T. were no longer in a relationship her disclosures to the Society workers and the evidence clearly indicated otherwise. They remained as joint tenants on the apartment and as joint recipients of Ontario Works benefits. She repeatedly advised that K.T. was the only one that she could confide in. As recently as November 2015 K.T. was charged yet again with assaulting her. B.H. states in her evidence that her relationship with K.T. is now over and even in her plan of care is suggesting that there should be a restraining order against K.T. preventing him from having any contact with her or A.T. In the earlier proceedings involving A.T.'s siblings she made the same suggestion, but then clearly carried on her relationship with K.T. to her continued detriment. She has not brought a motion to obtain a restraining order against K.T., nor apart from her bald assertion that the relationship is over, demonstrated that it is. If history is indeed the best predictor of the future, there is little reason to have confidence that the relationship between B.H. and K.T. and the negative impact that it has on B.H. is over.

Inability or Unwillingness to Work with the Society or Other Service Providers

[93] During their respective involvement with B.H. both Michael Downs and Chantal Pepper on a number of occasions offered to assist her in the completion of forms to enable her to obtain more appropriate housing, however she consistently denied their assistance.

[94] Mr. Downs had offered to assist her with application forms for the Canadian Mental Health Association and Haldimand-Norfolk Women's Services however she declined that assistance as well.

[95] In September 2015 when B.H. advised Ms. Pepper that she would be agreeable to completing weekly drug testing, Ms. Pepper agreed to provide her with transportation to her doctor so that she could obtain a new requisition for the testing, and with B.H.'s agreement the appointment was scheduled. When Ms. Pepper called B.H. and asked to confirm where she could pick up B.H. to take her to her appointment with her doctor, B.H. ended the call. Not hearing back from B.H. the appointment was cancelled.

[96] Despite knowing that the Society had ongoing concerns about her obtaining support services and treatment for her mental health and personal issues, B.H. has consistently refused to provide consents so that support services, such as Women's Services, and her treating health professionals could share information with the Society as to services and/or treatment that were being accessed.

[97] During a visit on May 28, 2015 B.H. mentioned to Ms. Mater that she had seen the letters regarding the issues and concerns about her and stated to Ms. Mater "you guys haven't seen anything yet, now I am really going to do shit" and that everything is "bullshit". She further stated "you think my behaviour was bad then you haven't seen anything yet, now it's going to get twice as bad".

[98] When Ms. Pepper met with B.H. at Women's Services on August 7, 2015, B.H. had difficulty controlling her anger. She was angry about the Society's changes to her access times and about information being disclosed to K.T. through court proceedings. B.H. referred to Society workers as "retards" and "liars" and left the meeting room stating that Ms. Pepper did not know how to do her job and was a "fucking retard".

[99] On December 16, 2016 B.H. advised Ms. Pepper that she was now taking medication and "not snapping on people". B.H. said that she had got mad with her Women's Services worker and the worker yelled at her. During that call B.H. got angry with Ms. Pepper and stated that Ms. Pepper wanted to take away all three of her children and have her kill herself, and further stated "you are honestly fucked". On January 6, 2016 B.H. attended at the Society office for a supervised visit with A.T. To Ms. Pepper's observation B.H. appeared agitated immediately after arriving and swore at Ms. Pepper before the visit began. B.H. advised that she was upset because her daughter was late arriving for the visit. B.H. calmed down when Ms. Pepper advised her that the visit time would be adjusted accordingly. On January 22, 2016 when Ms. Pepper advised B.H. that a visit she had missed would not be rescheduled B.H. called Ms. Pepper a "fucking cunt" and "stupid bitch". Ms. Pepper says that during this phone call B.H.'s behaviour became erratic and Ms. Pepper told her that she was going to need to end the call because B.H. would not stop screaming. At B.H.'s request Ms. Pepper transferred the call to her supervisor.

[100] B.H. disputes Ms. Pepper's assertions that she is violent and as an example points to the fact that she was able to have her last visit with her boys, knowing that she would not see them again and yet was able to control herself and walk away without putting anyone at risk of harm. With respect to Ms. Pepper's reference on December 16, 2015 about being on medication and "not snapping at people" she says at the time she had begun participating in the methadone program and found that this was helping her to control her emotions and reactions to situations. Other than these explanations she does not refute the Society's evidence about her behaviours in interacting with the Society workers.

[101] The Society workers have tried to work with B.H., offering to assist her with housing applications, provide transportation to her medical and mental health appointments, and making referrals for support services and counselling, but she has consistently refused their assistance. They have made reasonable requests of B.H. for the release of information to verify the drug testing and programs that she has engaged in but she has refused to provide access to the information needed to verify her efforts towards addressing her drug use, mental health and engagement with support services. The evidence presented discloses numerous incidents where B.H. has been confrontational and/or abusive in her interactions with Society workers and other service providers. Given this history it is unlikely that she would be able to work collaboratively with the Society in the future under any supervision order whether the child was placed in her care or in the care of S.M. and her jointly.

Non-Compliance with Court Orders

[102] As noted in the evidence of Michael Downs B.H., in the proceedings involving her other children, was ordered by the court on May 13, 2013 and again on December 9, 2013 to attend for drug tests as a requested by the Society. Pursuant to those orders the Society requested that she provide it with 3 drug tests per week. Despite this B.H. has never completely complied with these obligations and then in November 2014 abruptly stopped providing any drug test results to the Society. Accordingly B.H. has not been in compliance with the court orders regarding the provision of drug tests.

[103] This undisputed non-compliance with two orders of the court undermines any confidence in B.H.'s ability to abide by terms and conditions of any supervision order should A.T. be returned to her care, or especially with the provisions of a voluntary services agreement with the Society as proposed by her in her plan of care.

Is the Child A.T. in Need of Protection?

[104] The evidence of the Society's Children's Services Worker, Margaret Haines establishes that A.T. has been well cared for and is developing well in the foster home where she has been placed. A.T. presents as a happy and healthy young child. She appears to be meeting all of her developmental milestones and there are no concerns regarding her physical and cognitive development. The respondent's evidence does not contradict this assessment of A.T.

[105] The Society is seeking a protection finding under subsections 37(2)(b)(i) and (ii), which provide as follows:

s. 37(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.

[106] As outlined above, the Society has raised a prima facie case establishing that B.H. has mental health issues that impact on her ability to parent, protect and supervise her child. A.T. is just two years old, and while she is doing well in her current placement, she is of an age that clearly requires consistent and comprehensive care and parenting. B.H. has not demonstrated that she can manage her emotions, and in particular her anger, which can interfere with her ability to effectively parent this young child. Despite her assertions otherwise, B.H. has historically continued her relationship with K.T. which exposes her and any child in her care to violence, criminality and instability. A young child placed in the care of B.H. is at risk of physical harm either directly as a result of B.H. being unable to control her anger, incidental to exposure to violence, or as a result of B.H. being unable to prioritize her attention to meet the needs of the child.

[107] On the whole of the evidence I am satisfied that there is a real, not just speculative, risk that the child A.T. is likely to suffer physical harm inflicted by the mother or caused by or resulting from her failure to adequately care for, provide for, supervise or protect the child, or from a pattern of neglect in caring for, providing for, supervising or protecting the child. Further the respondent has not in her evidence set forth specific facts showing that there is a genuine issue for trial as to whether the child is in need of protection. Accordingly the child A.T. is found to be a child in need of protection within the meaning of subsections 37(2)(b)(i) and (ii) of the CFSA.

Is Intervention Through a Court Order Necessary?

[108] If A.T. were to be returned to the care of B.H. at this time, the significant issues that B.H. is facing as outlined above would significantly impede her ability to safely and effectively parent this young child. The potential impact of ongoing drug use, the inherent dangers of continuing any form of a relationship with J.T. and B.H's inability or unwillingness to comply with recommendations and treatment of her mental health, or to engage effectively with support services places the child at substantial risk. Accordingly it is necessary that there be intervention through a court order, and on this conclusion I am satisfied that there is no genuine issue requiring a trial.

What Order of Disposition Should Be Made?

[109] The Society's plan is to provide permanency for A.T. through an order for Crown wardship and facilitating her adoption by the family that has adopted her siblings X.K.T. and X.S.T. That home has been approved as appropriate by the Society and the availability of that adoption has been confirmed through the evidence of Ms. Szabo.

[110] The mother's plan is firstly for the child to be returned to her care under a Voluntary Services Agreement, alternatively to be placed in her care under a supervision order, or in the further alternative that the child be placed in the care of the paternal grandmother S.M., either jointly with B.H. or alone, under either a supervision order or a deemed custody order pursuant to section 57.1 of the Act.

[111] A.T. has now been in care for well in excess of a year. Accordingly the disposition options are narrowed by the provisions of subsection 70(1)(a) of the Act. Given the established need for intervention by court order as determined above, and the plans of care presented, the disposition options are narrowed to either: (i) returning the child to the care and custody of B.H. subject to the supervision of the society, for a specified period of at least 3 months and not more than 12 months; (ii) placing the child in the care and custody of the paternal grandmother S.M., either jointly with B.H. or alone, subject to the supervision of the society for a specified period of at least 3 months and not more than 12 months; (iii) placing the child in the care and custody of the paternal grandmother S.M., either jointly with B.H. or alone, pursuant to a section 57.1 custody order; or (iv) making the child a ward of the Crown and placing the child in the care of the society.

[112] In determining which of these orders to make, the court is directed by subsection 57(2) to ask what efforts the society or another agency or person has made to assist the child before intervention under this Part. The efforts that the society has made to assist the child are outlined in the evidence of the society workers. The child has been in the care of the CAS of Haldimand & Norfolk since her birth on […], 2014. During this period the Society has provided foster care for the child which, on the evidence presented, has met the child's physical, emotional and developmental needs, including regular medical appointments, and as a result the child is happy, healthy and apparently meeting all of her developmental milestones. The Society has also facilitated regular and frequent access for the child with the mother B.H. The services and assistance that have been offered to B.H. are particularly outlined in the evidence of Michael Downs, Chantal Pepper and Karen Mater. Michael Downs worked with B.H. from when he was assigned her file in April of 2013, until the file was transferred to Ms. Pepper in May 2015. During this period he met with B.H. regularly to review with her the Society's concerns, he attended to the arrangements for access by B.H. with A.T, he provided B.H. with information for parenting programs such as the Beyond the Basics program, and he assessed possible kin care providers suggested by B.H., namely B.H.'s mother J.C., the paternal grandmother S.M., and the paternal step-grandmother J.M., as to their suitability to provide care for A.T. Chantal Pepper has worked with B.H. since May 2015. She has met regularly with B.H. to review with her the society's ongoing concerns, she facilitated B.H. having her children with her when she received her high school diploma, she has continued to make the arrangements for B.H.'s regular and frequent access with A.T., she has attempted to assist B.H. in addressing her housing issues by offering to help her with Ontario Works and housing applications, she has made referrals for B.H. to the Women's Shelter and Women's Services, she has when appropriate requested the police to do wellness checks on B.H. because of concerns for her personal safety, she has assisted B.H. in making medical and mental health appointments and through providing her with transportation to such appointments, she has facilitated reasonable adjustments to B.H.'s access schedule so that she could attend counselling and support services, she has recommended support services to B.H. such as the Supportive Mothering Program, and has offered to assist B.H. in accessing such programs. Very little, if anything has been offered to assist the father K.T. because he has not cooperated with the Society in any way, has voluntarily withdrawn from the life of the child and has not had any contact with this child. The Society has met its mandate as described in subsection 15 (3) of the CFSA to investigate allegations or evidence that the child may be in need of protection, to protect and provide care for the child while she has been in the society's care, and to provide guidance, counselling and other services to the family to support the protection of the child.

[113] The criteria for determining which of the options available under sections 57 or 57.1 is in the best interests of the child are set out in section 37(3) of the Act. Of those criteria, the ones relating to the child's cultural background and religious faith have not been raised as being of any particular significance in this case. The child's views and preferences are also not relevant as the child is too young to express her wishes.

[114] A.T. is not quite two years old. While she does not present as having any special needs relating to her physical, mental or emotional level of development, she is by virtue of her age totally dependent upon her caregivers to provide for her appropriate care. Her needs are currently being met by her foster care. For the reasons above it is probable that the respondent mother would not be able to adequately attend to those needs of the child were to be in her care. A.T. would benefit from a secure, stable and permanent placement within a loving and supportive family capable of providing for her emotional and material needs as she continues to develop.

[115] Given A.T.'s young age it is of great importance for her development that she have the benefit of a positive relationship with a parent and a secure place as a member of a family. To facilitate the attachment, bonding and growth of a familial relationship it would be beneficial for A.T. that permanent placement within an appropriate family occur as soon as possible. The evidence presented in this proceeding indicates that it is very unlikely that B.H. could provide for this important need of her daughter, now or in the foreseeable future. The Society's plan for adoption is a realistic and viable plan for providing A.T. with a positive relationship with a parent and a secure placement within a supportive family.

[116] A.T. was apprehended by the Society immediately following her birth and has remained in the care of the Society since then. During this period, B.H. has had supervised access with A.T. No other family members have had any significant involvement or contact with A.T. While there is undoubtedly a relationship and emotional tie between B.H. and A.T. there is nothing to indicate on the balance of probabilities that this relationship is significant enough to warrant impeding A.T.'s opportunity for permanency through adoption. The Society's plan to proceed with A.T.'s adoption by the family that has already adopted her two siblings has the added benefit of facilitating a permanent relationship with her two siblings. A.T. does not have an established relationship with S.M. or other members of her extended family. While the respondent's proposal that A.T. be placed in the care of the paternal grandmother would provide for the development of such relationships it would also preclude the possibility for any relationship with her siblings.

[117] A.T. has been in the care of the Society since her birth and this has undoubtedly provided a degree of continuity and stability in her care. The Society's plan is to proceed with adoption and accordingly it is anticipated that there will be a change in the child's placement and a disruption of the continuity of the child's care. Similarly the return of the child to the care of B.H. or placement of the child in the care of S.M. would also result in a disruption of the continuity of the child's care. While A.T. is young and it is hoped that she is resilient enough adapt to any impending change in her care, such changes should be kept to a minimum and be effected with as little disruption as possible.

[118] The Society's plan is to provide for A.T.'s needs and to assist her to develop a positive, secure and enduring relationship within a family through adoption. In comparison B.H.'s plan is for A.T. to be placed back in her care either pursuant to a voluntary services agreement or under a supervision order, or in the alternative for A.T. to be placed in the care of the paternal grandmother S.M., jointly with B.H. or alone, either under a supervision order or pursuant to a section 57.1 custody order. Given that the family which has already adopted A.T.'s siblings has confirmed their intention to adopt A.T. and has been approved by the Society to do so, the Society's plan is a realistically achievable plan for providing a stable home for the child within a family where her present and future needs can be met and she can develop to her potential. The respondent mother's plan to have A.T. returned to her care does not hold the same prospect for stability in A.T.'s care and development.

[119] A.T. is yet in the formative stage of her development. As either of the plans before the court will result in a significant transition in A.T.'s care it is important that the disposition of this case occur as soon as possible so that any disruption in A.T.'s care can be minimized and that she be given the opportunity as soon as possible to develop her attachments and emotional bonds with who will hopefully be her permanent caregivers.

[120] A.T. has never had any contact with her father and was removed from the care of her mother immediately following her birth. The risk that the child may now suffer harm from keeping her away from the care of her mother either by granting of the Society's request for Crown wardship or even under the mother's alternative request for placement of the child with the paternal grandmother under a section 57.1 custody order, is minimal and certainly much less than the risks, as found herein, that the child may suffer if she were returned to the care of B.H.

[121] The degree of risk that justified the finding that A.T. is a child in need of protection is significant and speaks against the option of returning A.T. to the care of her mother.

[122] For the reasons outlined above, returning the child to the care and custody of B.H. subject to supervision by the Society is not appropriate. B.H. has not addressed the significant concerns regarding her drug use, mental health issues, and her harmful relationship with J.T., to adequately protect and effectively parent this young child. Further, by her actions to date B.H. has clearly demonstrated that she is either unwilling or, due to factors beyond her control relating to her mental health, unable to work cooperatively or collaboratively with the society and others in a manner that would be necessary under a supervision order to address the protection concerns.

[123] For the reasons outlined above, and generally because the respondent mother has not sufficiently addressed the significant risk of physical harm to the child should the child be returned to her care at this time, and has not demonstrated that she would or could comply with court ordered terms of supervision, I am satisfied that there is no alternative, less disruptive to the child, than an order continuing the removal of the child from the care of B.H. I am satisfied that if this case were to proceed to trial on the evidence presented on this motion that this would be a foregone conclusion and therefore there is no genuine issue on this point requiring a trial.

[124] Subsection 57(3) provides that the court shall not make an order removing the child from the care of the person who had charge of the child immediately before the intervention unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection 57(2), would be inadequate to protect the child. A return of the child to the care of B.H., with whom she has never resided, or placement of the child in the care of the paternal grandmother, with whom she has not had any significant relationship, would be no less disruptive to the child than a transfer of the child from her current foster home to the proposed adoptive home. Accordingly, neither of the alternatives proposed would be less disruptive to the child.

[125] Pursuant to subsection 57(4) where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before the intervention the court shall, before making an order for Crown wardship, consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family with the consent of that person.

[126] The respondent mother has put forth a plan that includes as an alternative to returning the child to her care, placement of the child in the care of the paternal grandmother, S,M., alone or jointly with B.H., under either a society supervision order or a deemed custody order pursuant to section 57.1 of the Act. In support of this plan, B.H. has provided an Affidavit from S.M. S.M. is the paternal grandmother of A.T. and in her affidavit confirms information that may make her suitable as a kin care provider, and which does not disclose information that would preclude her from such consideration. Michael Downs in his evidence states that during his involvement B.H. requested that S.M., as well as her own mother J.C. and K.T.'s step-mother J.M. be considered as kin care providers, and that these options were assessed. He described that J.M. was deemed not appropriate because of concerns about her health, mental health and the impact of her prescribed medications on her ability to care for young children. With respect to S.M. and J.C. he states "The Society assessed that neither [S.M] nor [J.C.] would meet the relevant standards to be kin caregivers due to their recent involvement with child protection agencies" but provides no further information as to what such involvement was, or of any other aspects of the assessment. Michael Downs' evidence was that the Society also attempted to contact B.H.'s father about being a potential kin caregiver, but that he never responded to the Society. He also confirmed that during his involvement B.H. had not suggested any other potential kin care providers.

[127] In her evidence Ms. Pepper stated that she investigated the possibility of a family friend, T.P.K., being a placement for A.T. however this option was ruled out once a child welfare check on T.P.K was completed. With respect to B.H.'s proposal of the child's paternal grandmother, S.M. as a potential kin placement, Ms. Pepper simply notes that S.M. was previously reviewed as a potential kin placement for A.T., but that the Society could not proceed with such a placement due to S.M.'s recent involvement with the Society. Like Mr. Downs, Ms. Pepper provides no further information regarding that assessment. As such the Society has not provided information regarding its assessment of S.M. as a potential caregiver for A.T. other than to state its conclusion that she would not be an appropriate placement.

[128] While the court is directed by subsection 57(4) to consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family it is not required to make that placement just because it is feasible to do so. This consideration, like all others under the Act is subject to the paramount purpose of the legislation to promote the best interests, protection and well-being of the child as well as the other purposes of the Act as set out in subsection 1(2), and accordingly does not automatically override the child's need for permanency. Having decided that it is necessary for the future protection of the child to remove the child from the mother's care the court, having consideration for the stated purposes of the Act, must make the disposition order that is the least disruptive to the child and which is in the best interests of the child, and in doing so must consider any possible placement with a relative or other member of the child's community.

[129] The Society ought to have provided evidence as to its assessment of S.M. as a potential kin caregiver and particulars of its reasons for deciding not to approve that option. Had the Society done so, it would likely have assisted the court in fulfilling its obligation under subsection 57 (4). That the Society did not provide this evidence however does not preclude the court from considering, on the evidence provided by the respondent, whether placement of the child with the paternal grandmother under a supervision order, or a section 57.1 custody order would be in the best interests of the child.

[130] A.T. has been in care since birth. She requires a secure, stable and permanent placement within a family capable of providing for her emotional and material needs. The Society has presented a plan to achieve this through facilitating the adoption of A.T. by the family that has previously adopted her two siblings. That this plan will allow for A.T. to develop a permanent relationship with her siblings is an added and significant benefit. While there will be a disruption of the child's current placement, the family's successful adoption of the siblings and that the Society has assessed and approved this family as an adoptive placement for A.T. indicates that this is likely to be a successful placement for A.T. as well. An order for Crown wardship without access would allow for this plan to be realized within the immediate future.

[131] The evidence provided regarding S.M. would not discredit her from consideration as a potential kin placement for A.T. She is in a committed common law relationship and her 17 year old daughter resides with her. She is gainfully employed and would have the benefit of being able to take parental leave which presumably would enable her to spend additional time with A.T. during A.T.'s transition to that home. Placement of the child in her care would have the benefit of allowing for a relationship between the child and members of her extended family. There is some concern that S.M. has been a respondent parent in other child protection proceedings, but the court is unable to assess that risk without further particulars of those proceedings. In her affidavit S.M. indicates that decisions regarding A.T. would be made jointly by her, her spouse R.R., and B.H. There is no evidence provided regarding R.R. and in particular whether he would be an appropriate caregiver for A.T. Further that B.H. would be involved in joint decision making regarding the child indicates that B.H. will have a significant parental role. In this regard there is nothing provided in the evidence of S.M. or the respondent mother's plan to address the protection of A.T. from the risks posed by B.H. as outlined above. Further there is nothing provided in the evidence of S.M. to indicate what relationship, if any, that she maintains with her son K.T., whether she would permit contact by K.T. with A.T., or of a plan to address the protection of A.T. from the risks posed by contact with K.T.

[132] A.T. has been in care for nearly two years. During this time the respondent mother has had the opportunity to address the concerns that precipitated the intervention by the Society and despite the efforts that she has made, has failed to do so. It is time that A.T. be afforded the stability of a permanent placement. On all of the evidence provided I am convinced that the plan proposed by the Society for Crown wardship is the one most consistent with the best interests of A.T. and the one that is most likely to result in a permanent and secure placement for this young child. Further, given the child-centric purposes of the legislation and the time that the child has been in Society care I am satisfied that if there were to be a trial as to the completing plans that there is no likelihood of an outcome other than an order making the child a ward of the Crown.

Should There Be an Access Order?

[133] Having determined that there should be an order making A.T. a ward of the Crown, the existing temporary order providing for access by B.H. is terminated pursuant to subsection 59 (2) and under subsection 59 (2.1) there is a presumption against access, with the onus being on B.H. to prove on a balance of probabilities that: (1) the relationship between her and the child is meaningful and beneficial to the child; and (2) an access order will not impair the child's future opportunities for adoption. Even if B.H. is able to rebut the presumption raised by subsection 59 (2.1) it does not automatically mean that an access order will be made as subsection 59 (1) requires the parent to show that the proposed access is in the child's best interests.

[134] B.H. has been relatively regular in her attendance for her access visits. The evidence of the Society workers establishes that while B.H. can generally attend to A.T.'s basic needs and that there is an exchange of affection between mother and daughter, there are times during her supervised access visits when B.H. acts inappropriately by yelling and swearing at the Society workers in the presence of the child and when her inability to control her emotions interferes with her ability to care for A.T. There is no doubt that B.H. loves A.T. very much, that an emotional bond has developed between them, and B.H. has tried to the best of her ability to care for her daughter, but that alone is not sufficient to meet the threshold test of the access being meaningful and beneficial for the child.

[135] The Society's plan is to achieve a permanent placement for A.T. through her adoption by the family who has already adopted her siblings X.K.T. and X.S.T. The Society has confirmed the willingness of this family to proceed with the adoption and accordingly adoption of A.T. is, on the balance of probabilities, likely to occur if A.T. is made a Crown ward. Further the proposed adoption would have the additional advantage of facilitating a lifelong connection between A.T. and her two siblings that would not otherwise be available. An order providing for access by B.H. would impair the positive prospects of A.T.'s adoption and preclude her from having the benefit of having a relationship with her siblings. The respondent mother has failed to rebut either element of the presumption against access and accordingly there will be an order of no access between B.H. and A.T.

Conclusion

[136] The Society has made out a prima facie case that the child A.T. is in need of protection, that it is in the best interests of the child that she be made a ward of the Crown, and that for the purposes of permanency planning and in the best interests of the child that there should be no court ordered access. The respondent mother has not established by evidence specific facts to show that there is a genuine issue that requires a trial for its resolution. I am satisfied that were this application to proceed to trial, on the basis of the evidence presented in this motion, this outcome would be a foregone conclusion.

[137] The Society's motion for summary judgment is granted and the protection application is resolved by a Final Order which, in addition to the identification findings previously made, shall provide that the child A.T. is found to be in need of protection within the meaning of subsection 37(2)(b)(i) and (ii) of the CFSA, and that there shall be no access with the child by either of the parents B.H. or K.T.

I know that B.H. loves her daughter and that she will be very disappointed by the outcome of these proceedings. I hope that she may appreciate that this decision was guided by a very careful consideration of what is in her child's best interests and take some comfort that this will allow for A.T. to be in a family with her two brothers where she can grow and develop to her full potential.

Released: October 7, 2016

Signed: Justice K.A Sherwood