WARNING

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

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

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: October 20, 2016

Court File No.: Orangeville 44-2008

Between:

The Children's Aid Society of the County of Dufferin Applicant

— AND —

R.B., G.H., A.T.K., and M.K. Respondents

AND BETWEEN:

The Children's Aid Society of the County of Dufferin Applicant

— AND —

R.B., M.D., P.L.C., and Q.M. First Nation Band Respondents

Before: Justice Philip J. Clay

Heard on: September 22, 2016

Reasons for Judgment released on: October 20, 2016

Counsel

Ms. K. O'Grady — counsel for the applicant

Ms. K. Morris — counsel for the respondent Maternal Grandparents (present)

Ms. S. Singh — counsel for the respondent mother (present)

Mr. T. Moore — counsel for the child C

CLAY J.:

Table of Contents

• SUMMARY JUDGMENT MOTION
• ORDERS SOUGHT
• BACKGROUND
• ISSUES
• THE LAW
• The Statutory Path in the CFSA
• SOCIETY'S EVIDENCE
• MATERNAL GRANDPARENT'S EVIDENCE
• MOTHER'S EVIDENCE
• OFFICE OF THE CHILDREN'S LAWYER's (O.C.L) EVIDENCE
• SUBMISSIONS
• ANALYSIS
• SUMMARY
• ORDER

SUMMARY JUDGMENT MOTION

ORDERS SOUGHT

[1] This matter was scheduled for a summary judgment motion with respect to three children, C.A.M.B., L.I.W.L.C. and I.A.V.A.L.C.

[2] There are two separate status review Applications. The Society sought an order placing C. in the care and custody of his maternal grandparents ("MGP") Ms. A.T.K. and Mr. M.K. They sought further orders that there be no access between C. and his father Mr. G.H. that C. should have access with his mother Ms. R.B. ("mother") and that C. should have access with his two siblings as arranged between their respective parents or caregivers.

[3] With respect to the younger siblings, the Society sought an order making L. and I. wards of the Crown and placing them in the care and custody of the Society. They sought further orders that I. and L. have no access with their male parents Mr. P.L.C. and Mr. M.D., and that they have access with their brother C. and their mother in the discretion of the Society. L. and I. were placed with a kinship foster home with extended maternal family members. It was the Society's hope that L. and I. would be adopted by this family.

[4] The mother consented to the MGP obtaining a custody order for C. She wanted very specific access terms as she did not believe that she would be able to work out non-specified access with the MGP.

[5] The mother sought an order that L. and I. be returned to her care subject to a supervision order.

[6] The male parents H., L.C. and D. respectively have been found to be in default. The Q.M. First Nation Band was also found to be in default.

[7] All parties agreed that as the evidence on these two status review applications was inextricably intertwined that there should be one summary judgment motion addressing both applications. Counsel could then make submissions on the tests to be applied to both the access issue in the consent custody order application regarding C. and with respect to the legal tests to be applied to the contested Crown ward application concerning L. and I.

BACKGROUND

[8] All three children were found to be in need of protection by a consent order made by the Honourable Mr. Justice B. Pugsley on July 30, 2014. On October 30, 2014 on consent Justice Pugsley placed L. and I. in the care of their mother subject to society supervision for a period of 12 months. That same day, on consent, C. was placed in the care of the MGP subject to Society supervision for a period of 12 months.

[9] L. and I. were then apprehended from the care of their mother and on June 16, 2015, by order of Justice Pugsley, they were placed in the temporary care of the Society with access in the Society's discretion.

ISSUES

(1) Do C., L. and I. continue to be children in need of protection?

(2) If so, what is most appropriate final disposition for C.?

(3) What is the most appropriate final access order for C.?

(4) What is the most appropriate final disposition for L. and I.?

(5) Should there be access by L. and I. to the mother?

THE LAW

[10] The Society brought this Summary Judgment motion pursuant to Rule 16 of the Family Law Rules. This Rule has recently been expanded by the addition of the powers in sub-section 6.1 of the Rule. The parts of the Rule relevant to this child protection matter read as follows:

Rule 16 Summary Judgment

When available

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

Available in any case except divorce

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

Evidence required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

Evidence of responding party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

No Genuine Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

Powers

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

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

[11] The amendments to Rule 16 mean that a summary judgment motion is now a two-step process. The first-step is to determine if there are any facts in dispute. The facts in dispute must be critical to the resolution of the matter. If there are critical facts in dispute the court can then apply the expanded powers.

[12] The Society bears the onus of proof throughout this motion. It is important to understand the relevant legislation and how it applies to each of the issues before the court. I shall now set out the statutory path.

The Statutory Path in the CFSA

[13] The Society initiated this Status Review application pursuant to s. 64(1) of the Child and Family Services Act (CFSA). The orders which a court may make on a Status Review application are set out in s. 65(1) of the Act which provides as follows:

Court may vary, etc.

65. (1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1. R.S.O. 1990, c. C.11, s. 65 (1); 2006, c. 5, s. 23 (1).

[14] Section 65 (1) stipulates that on a Status Review application the court may make a further order or orders under s. 57 of the CFSA, which is the provision that sets out the disposition options in the context of Protection Applications. The relevant provisions of that section read as follows:

Order where the child in need of protection

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

Supervision order

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

Society wardship

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

Crown wardship

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

[15] It is to be noted that Society wardship was not available in the matter before the court due to the time limits set out in s. 70 of the CFSA which reads as follows:

Time limit

70. (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

[16] Therefore, the options available to the Society under s. 57 with respect to the disposition of these three children were limited to; return to the mother with or without a supervision order, or an order that they be made Crown Wards with or without access.

[17] However, as noted above, the Society was seeking an order with respect to C that he be placed in the custody of the MGP. This order may be granted under s. 57.1 of the legislation which reads as follows:

Custody order

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, 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. 2006, c. 5, s. 14.

Deemed to be order under Children's Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act. 2006, c. 5, s. 14.

[18] The Society sought an access order with respect to C. The section of the CFSA that permits such an order is s. 58 (1.1) and it is clear that it is a best interests test. The Society sought an access order with respect to L. and I. as well. Sub-section 58(2) provides that existing orders are terminated if a Crown ward order is made. Access to a Crown ward is addressed in sub-section 58 (2.1) and it is to be noted that there is a more rigorous test which reflects the presumption against access to Crown wards. The relevant access provisions of the CFSA are set out below:

Access order

58. (1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

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. R.S.O. 1990, c. C.11, s. 58 (1).

Access after custody order under s. 57.1

(1.1) If a custody order is made under section 57.1 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child's best interests. 2006, c. 5, s. 17 (1).

Termination of access to Crown ward

(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated. 2006, c. 5, s. 17 (2).

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).

SOCIETY'S EVIDENCE

Sarah McTaggert re: L. and I.

[19] Ms. Sarah McTaggert swore an affidavit dated June 15, 2015. She was the family service worker from the time that L. and I. were returned to the mother's care under supervision in October 2014 to the time of the apprehension in June 2015. She set out some of the background to this matter and noted that the supervision order brought to a conclusion a protection application that had begun in September 2012. Within that time frame L. and I. had been in the temporary care of the Society for a period of 25 months. Since the status review application was commenced the two children have been in care approximately fifteen months. Ms. McTaggert stated that the child protection concerns are long standing and pervasive and in the Society's view cannot be remedied in a timely fashion.

[20] Ms. McTaggert stated that the mother suffered from serious mental health issues which impact upon her practical ability to care for her children. She referenced the Parenting Capacity Assessment, dated July 23, 2013 which was prepared by Dr. Kathleen McDermott a registered psychologist. In that report, Dr. McDermott stated that the mother presented with Borderline Personality Disorder with anti-social features. This meant that she was extremely emotionally needy and with an unrelenting need for interpersonal control. The psychologist said that the mother did have a very unfortunate upbringing and she sees herself as the "ultimate victim." She had now moved on to victimize others and she has few emotional resources for reciprocal relationships. She has rapidly alternating moods that the doctor thought were likely driven by situational circumstances that she perceived as thwarting her rights. She also felt that her heightened mood states are further impacted by her drug use and eating disorder. She appeared to thrive on chaos and her life was crisis driven.

[21] Dr. McDermott noted that the mother was bright and had some insight into her negative childhood experiences and why she has interpersonal difficulties but she was unable to appreciate the part that she plays in her own problems. Dr. McDermott said that even with intrusive treatment it would take years to resolve the issues and there would be periods of regression that are common with such painful therapeutic exercises.

[22] The psychologist said that it was unlikely that the mother would knowingly harm her children but when her needs conflicted with theirs her needs would take precedence and she would distort or be blind to their needs. Her extreme volatility would mean that the children would bear the brunt of her anger.

[23] Dr. McDermott said that even though the mother was attempting to improve her parenting skills and address the underlying issues it was unlikely that she could address the deep psychological deficits in a timely manner so as to benefit the children who needed permanency plans now.

[24] Notwithstanding the concerns in the assessment report, the younger children were placed back with the mother in October 2014. Ms. McTaggert's evidence to support that plan was that the mother engaged in intensive counselling and for a significant period of time she was able to address her mental health concerns. She participated in an intense therapeutic access plan with the society's family support team and was observed to make positive gains from that program. Unsupervised access was put in place for all of the children. Ms. McTaggert stated that the mother did well between October 2014 and May 2015.

[25] Unfortunately, in mid to late May concerns regarding the children were reported to the Society. The school called regarding serious hygiene issues and L.'s challenging and aggressive behaviour. The mother was observed to be distraught over the end of her relationship with M.D. and she blamed her children for their appearance and behaviour. During a May 28 meeting with Ms. McDermott the very emotional mother stated that she needed a "break" from the children. Further concerns were noted from the MGM who said that C. was not doing well at access visits as the mother had not been attentive to his needs. The MGM advised that the mother asked her to take the children on a regular basis as she needed a break. Ms. McTaggert had received evidence from the MGP that it was clear from social media sites that the mother had been arranging babysitters for the children while going out to bars.

[26] On June 10, 2015 the MGM reported that C. began refusing to attend access visits with the mother. C. said that his mother was angry all the time and lost her temper very quickly. C. said that the mother was yelling at all the children. L. made similar reports about his mother to his therapist Ms. Melissa Brinkman. The mother's doctor confirmed that she was vomiting daily due to her eating disorder. A decision was made to apprehend L. and I. and the apprehension with a warrant occurred on June 11, 2015.

[27] Ms. McTaggert's affidavit of August 24, 2016 updated her June 16, 2015 apprehension affidavit. In it she focused on the children L. and I. In her August 25 affidavit she addressed C. Ms. McTaggert noted that the mother stated that she did not understand why the children were apprehended. She thought that L. had mental health issues but she did not believe that she had any mental health issues that were related to the serious concerns from a number of sources that lead to the apprehension.

[28] Access was arranged but the mother was unable to handle both children at once so she had separate visits until December 2015.

[29] In July 2015 the mother moved to B. That same month the Society advised her about a potential kinship foster plan for L. and I. with maternal extended family members. The mother did not agree with this plan. Thereafter, the mother's contact with Society's workers became very hostile sometimes in the presence of one or more of the children.

[30] In her affidavit Ms. McTaggert provides her "professional assessment and recommendation" regarding the disposition this court should make for L. and I. It is important to note that Ms. McTaggert, while very familiar with the mother and the children, was not qualified as an "expert" and as a child protection worker for the Society she would not be so qualified if this matter went to trial. Although no objection was made by other counsel at the hearing of the motion to the contents of the affidavit I note that the mother took issue with the ability of the worker to make recommendations in her affidavit. I have disregarded that part of her affidavit that might be considered to be opinion evidence. I have done this with the other Society workers affidavits who in summarizing their contribution to the Society position have set out "recommendations" based upon conclusions to be drawn from the evidence.

[31] Ms. McTaggert set out that although the Society had taken the position in the amended status review application that there be no access between the mother and L. and I. it remained the Society's position that some form of openness in their ultimate adoption would be appropriate and that there continue to be some access in the Society's discretion that could be re-framed into an openness plan that could continue after an adoption. Adoption was seen as imminent given that the children were living with extended kin family who wished to adopt.

Ms. Tara Britt

[32] Ms. Britt's affidavit was sworn August 18, 2016. She was the Family Support Worker who worked with mother from September 2012 to June 2015. She supervised the mother's access with L. and I. when they were in the temporary care of the Society until October 2014. She worked with the mother on a re-integration plan and implemented the Therapeutic Access Program within the home. She provided in home support to the mother until the June 2015 apprehension. She was able to reduce her time in the home as initially the mother did well after the children's return.

[33] Ms. Britt met with the mother on January 8, 2015 and she set out the problems the mother related regarding C.'s physical aggression towards her which she attributed to the MGP's influence. She attempted to give the mother some strategies to deal with access issues.

[34] Ms. Britt was present at the apprehension and she noted that I. was excited to learn that she would be staying with her previous foster parents. I. spoke openly of the anger displayed by her mother especially towards L. whom she had said she wanted to punch in the face.

[35] Ms. Britt only supervised two access visits post-apprehension but she noted that there was open affection between the mother and the children and the visits went well.

Allison Finch

[36] Ms. Finch is the Children's Service Worker responsible for the care of L. and I. since they came back into care June 2015. She had also worked with them when they were in care from September 2012 to October 2014.

[37] Ms. Finch state that after the apprehension the two children were initially placed in separate foster homes. On November 17, 2015 they were placed together in the kinship foster home of the maternal extended family in the Region of Durham.

[38] Ms. Finch said that L. was receiving excellent care and his emotional and personal needs were being met by his caregivers. Ms. Finch provided detailed evidence as to L.'s needs and how they were being met. Most significantly she noted that when he first came into care L. was hoarding food and soiling himself frequently. He stopped hoarding after a short time and significant progress was also made with respect to his hygiene. L. was assessed as having ADHD and he received a number of supports including counseling and play therapy.

[39] Ms. Finch reported that L. initially had a considerable difficulty after access with his mother but that with time in his long term foster placement he was better able to manage with access. He has a strong relationship with I. with whom he lives. He sees his brother C. and these visits are coordinated between the MGP and kinship caregivers without difficulty as they are in the same extended family. There has also been contact between the younger children and the PGP.

[40] I. also requested food frequently when she initially came back into care. Generally I. is a healthy child who is meeting appropriate milestones for development and functioning. Like L., her response to access visits with her mother has improved over time as she has settled into the security of the kinship foster placement.

Tracey Morse

[41] Ms. Morse is a Family Support Worker and she had involvement with all three children. She supervised approximately 60 access visits between the mother and the two younger children from June 16, 2015 to August 10, 2016. She said that the mother was generally committed to attending the access visits and she was mostly cooperative and pleasant in the presence of the children. She said that she had observed that she and the children truly enjoyed their time together. From June to December 2015 L. and I. had separate access visits with their mother. Beginning in January they had visits together for 90 minutes once a week. That was reduced to 60 minutes in April and in July 2016 the access visits were changed to twice monthly for a period of 2 hours.

[42] Ms. Morse commented on the access she supervised and noted some themes. She said that the mother frequently showed affection and expressed love for her children. The mother was unable to set aside her own high need for attention to meet the multiple needs of the children. The mother did not respond to or answer the children and often ignored them. She turned discussion of children's matters into discussions about herself and missed cues to shift her focus back to the children. She spent time at visits focused on her own life stressors. She became agitated with Ms. Finch and while managing to restrain herself somewhat directly in front of the children she was very confrontational in the absence of the children.

Patricia Elliott

[43] Ms. Elliott is the manager of resources and adoption with the Society. She stated that the two younger children were placed together in the kinship foster home and the Society's plan was for them to be adopted by this family. She said that the Society would advocate for openness between the children and their brother and between the children and the mother. She said that if a Crown Ward order were made it would be the Society's intention to decrease the frequency and duration of the access visits between L. and I. and their mother in an effort to support the said children with their continued settlement into their new home and with their transition towards adoption. Ms. Morse made it clear that the transitional access would not likely last very long and she made it clear that access and openness are very distinct concepts.

Sarah McTaggert re: C.

[44] Ms. McTaggert noted that C. had been placed with the MGP pursuant to the temporary supervision order of September 23, 2013. Prior to that time C. had been in the temporary care of the Society from September 12, 2012. Ms. McTaggert said that C. had been unable to form a stable attachment to his mother. She said that C. had spent much of his life as a pawn in a battle between his mother and his MGM. She also said that as a direct result of this conflict C. has suffered emotional health issues.

[45] Initially the access regime was very detailed due to the inability of the mother and the MGM to co-operate with each other. The access began with overnight and weekend access which went reasonably well. Over time the access was reduced to a few hours a week. Ms. McTaggert noted that C. struggled with his emotional regulation which impacted his school success. He was placed on a reduced modified school day for most of the past two years. C. was said to act out aggressively both physically and verbally. Ms. McTaggert said that C.'s problems at school could be directly linked to his interaction with his mother. When his mother had not been managing well with her own mental health issues then C. had difficulties.

[46] Ms. McTaggert stated that the mother had not shown the ability to meet C.'s needs. She had not shown any information to the Society to the effect that she had even attempted to address her identified mental health issues. The mother has continued to present as emotionally stressed and she has been consumed by the conflict between herself and her own mother. Ms. McTaggert stated that the MGP had fulfilled the terms and conditions of the supervision order and had been cooperative with the Society and shown themselves able to put a priority on C.'s needs. However, Ms. McTaggert conceded that the MGP do play a role in the conflict with the mother.

[47] Ms. McTaggert said that while there was no doubt that both the mother and the MGP loved C., at this time in his life C. seemed to be more closely aligned with his MGP as his caregivers.

[48] Ms. McTaggert related some of her interaction with the mother and MGP as it pertained to the organization of access. She noted that the mother became quite upset when she thought that the MGP was "winning" by always getting what she wanted. C. expressed to his art therapist the stress he was feeling about the conflict.

[49] On January 1, 2015 the mother called the Society to report that C. was out of control. He had said to the mother that he was "going to get a knife and kill her." She said that he had his younger siblings and he had kicked L. and when facing discipline for that he had punched his mother. The mother said that she could not take it anymore and as the younger children "were not safe with him around." On January 15, 2015 C. told Ms. McTaggert that he did not want to sleep at his mother's anymore. He said he wanted to see his mother but always sleep at the MGP's home.

[50] In March 2015 Mr. Moore was appointed to act for C. through the Office of the Children's Lawyer. Alternate Dispute Resolution was proposed as the Society was advocating for C. remaining with the MGP while having access with his mother. The mother was understandably upset with the Society's position. She subsequently refused to be involved in any mediation process. Ms. McTaggert told her that the Society would not be taking further steps to attempt to referee the many access conflicts between the mother and the MGP.

[51] After the younger children were apprehended the mother continued to have access with C. on Wednesdays and on weekends but he did not stay overnight. By August 2015 after some concerns with the state of the mother's mental health access was changed to Wednesday evenings and Saturdays from 9:00 a.m. to 12:30 p.m. Overnight access from Friday to Saturday resumed at C.'s request in November 2015. It did not go well, there was conflict between the mother and the MGP regarding times of access, C. asked to return early, and then C. refused to attend. The police were involved when the adults began yelling at each other in front of C. on January 1, 2016. C. did not go for that visit and he was angry at his mother for calling the police. He said he still wanted to visit but not stay over. That change was made.

[52] Ms. McTaggert related issues with respect to C.'s behaviours at the MGP and at school before the Wednesday visits in February and March. One day he was suspended, on another the MGP called the police because C. was "freaking out."

[53] On April 11, 2016 the police were called to C.'s school in response to his escalating and violent behaviour. C. was taken to the Headwaters Hospital in Orangeville where he was placed on a Form 1 pursuant to the Mental Health Act. He required both physical and chemical restraint. He remained in a hospital until April 14. The MGP stated that the incident was caused by conflict between C. and his mother during access the previous week. Access was suspended for a week as C. stated that he did not want to see his mother. The mother was angry when told this and stated that the MGP was "winning."

[54] In order to re-instate access the Society imposed supervised access at their offices. The Society's detailed access proposal was rejected by the mother for not being enough access and by the MGP for being too much access. C. stated on May 10 that he did not want access but if it had to occur he wanted it to be in the community supervised by the Society. C. has not attended for any visits with his mother since May 2016. The Society decided not to force the issue and they have respected C.'s wishes. Unfortunately, when the mother attended at one of C.'s baseball games without the MGP being aware that she would be there, the MGP became very upset with the Society. The mother acted appropriately but the MGP could not see that this was a possible opportunity to build up some goodwill between the mother and her son. The MGM remained stuck in her perspective of focusing on fault in the mother-MGP conflict and was unable to see that this continuing conflict was detrimental to C.

[55] In August 2016 C. told his counsel Mr. Moore that he did not want to see his mother. He still felt caught in the middle. He could not imagine his life without his mother but he did not want to see her. If he "has" to see his mother he wanted it to be supervised so that his mother will not swear and yell at him and will not drive fast and get angry. The access he could accept would be for one hour once a month. He still wanted the "final say" about whether he went to a visit. It appeared that C. was strongly encouraged to think about access to preserve a relationship with his mother because he ended by stating that "I don't want it to happen. I don't want to see her."

[56] Ms. McTaggert concluded her affidavit by stating that the Society position was that access in the MGP's discretion should be ordered because in the long run it would be beneficial for C. to have some kind of relationship with his mother as he knows her and loves her and it would not be positive for his future well-being for her to be completely removed from his life. While the Society had been respecting C.'s wishes since May 2016 it was not recommending that a nine year old boy should bear the burden of making access decisions by making access arrangements contingent on his wishes.

MATERNAL GRANDPARENT'S EVIDENCE

[57] The MGP filed a joint affidavit dated September 15, 2016. They noted that C. had been in their care since he was a baby. He had lived with them from his first apprehension from the mother on April 2008 to September 2009. He was apprehended again in September 2013 and had lived with them since.

[58] The MGP set out the access schedule over the years. They stated that the mother had not made any improvements in her interactions with C. and the issues that resulted in C. being placed with them remained unaddressed. They maintained that they have strived to accommodate the mother's access requests and work with her regarding modifications to the access schedule. They termed this "challenging to say the least." They set out specific examples of situations where they felt that the mother put her needs above the needs of her son.

[59] The MGP noted that since the mother moved to B. in August 2015 access had to be adjusted due to the long drive and the mother's lack of money. They felt that the best access was on the Wednesdays after school and before dinner so that C. could calm down before bed time. They emphasized that the mother was inflexible with access when C. had events to attend with Beavers and Cubs. They expressed concern about late returns of C. and its impact on his ability to attend school the next day. C. has struggled and his modified schedule is such that he only attends school for 1.5 hours in the morning.

[60] The MGP set out other examples of what they described as the mother's inflexibility regarding access and her insistence upon putting her needs above her son's best interests. This included a ball hockey tournament in November 2015 on the first weekend when overnight access was to resume. The mother and MGP could not agree on return times or locations. There was a detailed description of the problems that occurred over the Christmas holiday access in 2015. When the conflict between the mother and MGP came to a head the MGM set out why this problem was caused by the mother's actions and behaviours. Sadly, Christmas Day was marred as C. apparently said that he did not want to go to his mother's and only after convincing did he agree to go for a shorter visit.

[61] The MGP listed all the areas where they felt that the mother was inflicting harm on C. They said that C.'s difficulties are directly linked to his interactions with his mother. They set out in great detail the events leading up to the April 11 hospitalization. The psychiatrist apparently told them that C.'s problems were "circumstantial." Some medications were prescribed which had helped. The May supervised visits were said to have resulted in significant stress and a "meltdown." On June 2, 2016 C. was assigned a therapist Mr. Bruce Roblin from DCAFS mental health. They stated that Ms. Morse continued to schedule visits after May 24 but that when she called to confirm C. was always very insistent that he did not want to go.

[62] The MGP stated that they always tell C. that any time he changes his mind and wants to see his mother to let them know and they will make the arrangements. He said he will not ask to see her.

[63] The MGP stated that they consented to an order that C. be placed in their custody and have access with his mother as arranged between his mother and themselves. They undertook to reinstate access with the mother as soon as C. has expressed his desire to see her again as well as in conjunction with all of the professionals involved in C.'s care to ensure that there will be successful access. They stated that when access resumes their intention was to have the terms set out in writing in advance so there will be no conflict in front of C. They actually felt that it would be easier to arrange access in the future without the Society's involvement as miscommunications or challenges in reaching workers in a timely way had led to access issues that could have been avoided.

[64] Finally the MGP asked that as a term of the custody order that they have the authority to renew C.'s passport and travel out of the country without notice to or consent of the mother.

MOTHER'S EVIDENCE

Mother's affidavit

[65] The mother filed an affidavit sworn September 14, 2016. She asked that the Summary Judgment motion be dismissed on the basis that there were credibility issues that required a full trial with cross-examinations.

[66] The mother responded to specific statements in the Society affidavits. She admitted to yelling in the past but on rare occasions when the children were not listening and she had to get them to stop behaving in a "wrongful manner". She stated that she was not informed about L.'s Occupational Therapy or Psychological Assessment. She stated that the only reason she had separate access with L. and I. after the apprehension in June 2015 was because the Society stated that because of her alleged severe mental issues she should not see both children at the same time. She denied that the children were not fed properly when in her care.

[67] The mother took issue with Ms. Morse's account of her supervised access visits with L. and I. She admitted to expressing her frustration and getting angry with the worker but said that she did not want to talk about this in front of the children.

[68] The mother did take issue with Ms. McTaggert commenting on her attachment with her children which is an issue that she stated the worker is not qualified to comment upon. She admitted to a high conflict relationship with the MGP but said that her feelings about her mother do not distract her to the point that she avoids her parental responsibilities. She admitted to once being diagnosed with Borderline Personality Disorder but said she was no longer diagnosed with this disorder and that her current diagnosis was PTSD, anxiety and depression. She emphasized that she never physically harmed her children. The mother denied severe anger management issues and said that any parent would become angry when their children are taken away from them.

[69] The mother said C. had had severe mental health issues since being in the MGP's care. She notes that Ms. McTaggert said that the MGP's played a role in the conflict between them.

[70] The mother sought the return of L. and I. to her care. She admitted that she has struggled with mental health issues but she had never been admitted to hospital for same and she had taken care of her children appropriately. She provided a letter from the Canadian Mental Health Association which dated February 4, 2016 that addressed the mother's attendance at the eating disorders program from August 22, 2012 to May 8, 2013 and the counselling and treatment program from November 30, 2012 to October 9, 2015. There were 16 further telephone support sessions from January 2013 to January 29, 2016. The letter also confirmed 15 group sessions with the emotional regulation group from October 24 2013 to March 6, 2014. The letter from Ms. Kipp the mental health worker noted that the mother had shown an ability to focus and calm her mind in counselling sessions, she was open to learning and trying new skills, and she always talked openly about her thoughts emotions and behaviours.

[71] The mother also stated that she planned on attending Catholic Family Services in B. It is a walk-in clinic. She attended there on September 8, 2016. They were booked up so she was told to return on the following Thursday. CFS provides counselling in relation to mental health. The mother filed a letter dated September 7, 2016 from her family doctor Dr. J.A.C. in O. She confirmed that the mother took medication for sleep disturbance. That she had seen a psychiatrist in the past for diagnosis and treatment with the last note being September 2014 and that she had been seen by a CMHA counsellor also in 2014. The mother stated that she was quite prepared to have a psychologist do an assessment of her. She was prepared to get further counselling.

[72] The mother said that if L. and I. are not returned to her care she requested that she receive access a minimum of one overnight weekend a month and two midweek day visits plus regular phone/Skype calls.

[73] With respect to C., the mother stated that the conflict between her and the MGP cannot continue. She said that there needed to be an access schedule but that she and the MGP could not work it out as there would be conflict. She felt that C. was torn between two homes but that C. was trying to appease the MGP by stating that he does not want to see her. She said that therapeutic access with the children would be helpful to rebuild a proper relationship.

D.C.

[74] Ms. C. is the mother's friend of approximately three years. She was with the mother when she attended C.'s baseball game. She related that when the mother tried to talk to C. the MGP yelled at her and C. seemed embarrassed. She said that the mother remained calm and rational throughout.

[75] Ms. C. also said that she has left her children with the mother for various lengths of time and each time she has acted appropriately. Her children like the mother. When she has witnessed the mother with her own children she handled situations appropriately and she was attentive to their needs.

C. R.

[76] Ms. R. has also been the mother's friend for about three years. She has three children, one with special needs. Her children enjoy the mother's company and she is comfortable having the mother watch her children.

[77] Ms. R. said that the mother had the same nurturing manner with her own children. She observed the mother's care of C. and noted that he always had nutritious snacks and meals and the activities that he and the other children were involved in were age appropriate and fun. She also said that the mother was working on developing support from friends.

M.D.

[78] Mr. D. is the mother's boyfriend. He said he had been friends with, or in a relationship with, the mother for a combination of 18 years. He said he had seen the mother make her children her first priority. Mr. D. said that although the mother had struggled with mental health issues they did not affect how she cared for her children. She always looked for guidance from her counsellor, doctor, mental health groups or himself. Mr. D. said that the mother's "biggest issue" when it came to mental health was the frustration she experienced when she discussed specific issues with the Society and which ended up being forgotten or altered by the Society.

[79] Mr. D. said that the MGP had "done nothing but try to prevent a … (the mother) … from any kind of relationship with C. Mr. D. was involved in the Christmas 2015 exchange when the MGP refused to release C. without a specific return time. He said he heard a loud and aggressive argument between the MGP and C. and then they came to the door and said C. was no longer coming.

[80] He said that the Society had taken visits away from the mother because of the conflict that the MGP created. He said that the mother wants a relationship with the MGM but the conflict caused by the MGP makes it very difficult. He concludes his affidavit by stating that there was no need for the Society to take the children away from the mother.

OFFICE OF THE CHILDREN'S LAWYER's (O.C.L) EVIDENCE

[81] Mr. Moore filed the affidavit of Rapinder Kaur, C.'s art therapist. Her report of September 15, 2016 was attached as an exhibit to her affidavit. Ms. Kaur had been working with C. since June 2014. She described the purpose and goals of art therapy as a form of psychotherapy which reconciles emotional conflicts and promotes personal growth.

[82] Ms. Kaur made a number of recommendations. They included the following:

(1) Respect C.'s wishes not to have visits with his mother at this time;

(2) For C. to remain with the MGP;

(3) For all involved to consider that C. might want to see his mother in the future and for any future contact to happen in a mindful manner to ensure his emotional safety at all times;

(4) As recent experiences have taken an emotional toll on both parties involved, it would be prudent for them to seek their own therapeutic supports; and

(5) For the mother to seek support from C.'s therapist and other resources "to ensure that if and when C. wishes to connect with her she feels empowered to repair, rebuild, and strengthen her relationship with C. is a responsive manner."

SUBMISSIONS

Continuing need for protection

[83] Ms. O'Grady for the Society stated that the Society's evidence met the onus upon them to prove that there was no genuine issue for trial. She state that the mother was required to set out specific facts that raise a genuine issue for trial and that she failed to do so. Ms. O'Grady said that there was a continuing need for protection as the identified child protection concerns have not been addressed. The mother can cope for short periods of time but cannot maintain it.

[84] She stated that the mother's affidavit provides little context. She makes broad statements denying facts or stating that she did not recall an alleged incident. Ms. O'Grady said that even in those instances where the mother sets out a different version of an incident she still did not raise a triable issue. For example, the mother disputed the Society position that her parenting deficits were due to mental health issues that she had failed to address. She admitted that she had mental health issues but denied that they impacted upon her parenting. Nevertheless, she stated that she had in fact addressed the issues and filed exhibits to support her position. The exhibits related to assistance that she had largely received from 2012 to 2014, prior to the return of L. and I. to her care. She had done nothing since their apprehension in June 2015 to address the issues that had led to the children coming back into care. The letter from the CMHA said she planned to attend for counselling and her affidavit said she was prepared to undergo a psychological assessment. Ms. O'Grady termed the mother's post-apprehension steps to be "too little too late." Ms. O'Grady said that the mother raised no credibility issues on facts that were critical to the court's determination of the issues.

[85] Ms. Morris for the MGP also submitted that C. is in continued need of protection. The MGP state that there is no genuine issue that requires a trial. Ms. Morris argues that C. is placed at risk by the mother. The MGP evidence is that the mother's mental health concerns are significant. The circumstances and concerns have not changed.

[86] Ms. Singh for the mother said that there were genuine issues for trial. She said that while the mother may have mental health issues she has not been hospitalized and her children have come to no physical harm while in her care. Ms. Singh said that there was evidence that would be advanced at a full trial of the steps the mother had taken to address the Society's concerns. Ms. Singh submitted that the Society's affidavit material contained hearsay. She also submitted that the mother should have the right to cross-examine the workers as their version of incidents differed from the mother's recollection.

The most appropriate final disposition in the best interests of each child

C.

[87] With respect to the appropriate disposition to be made Ms. O'Grady said that children need permanency and C. has been with MGP for 3 years and lived with them for over a year from 2008 to 2009. C. identifies the MGP as the person he looks to for emotional support so the Society was seeking a custody order in their favour.

[88] Ms. Morris states that C. is thriving in her client's care. The evidence supports a finding that he should be placed in the custody of his MGP. The mother is no longer opposed to this order. The MGP sought an order as an incident of custody that they be able to renew C.'s passport and travel with him without notice to or the consent of the mother.

[89] Mr. Moore, C.'s counsel advocated for his child client to be placed in the custody of the MGP. He stated that the mother does not offer facts why a trial is necessary. As to her argument that she has just retained new counsel Mr. Moore said that she has had plenty of time to instruct counsel. The mother's promise to take steps to address her mental health issues could have been done a long time ago. Mr. Moore argues that there were patterns in her behaviour to show she cannot communicate with others and that she focuses on her own needs.

[90] Mr. Moore reviewed the definition of best interests in subsection 37 (3) of the CFSA.

[91] He submitted that the MGP meet most of the criteria. C. has clearly and consistently said that he wants to live with the MGP.

L. and I.

[92] With respect to L. and I., they were well settled in a kinship foster placement with extended family. They were only 6 and 7 years old respectively and have been in care for 40 months. The mother has not offered evidence that it is in their best interests to be returned to her on a supervision order. Ms. O'Grady said that the mother minimizes concerns and deflects responsibility. The mother had the children with her for approximately 8 months ending in June 2015 and since then she has only had supervised access to them.

The most appropriate final access provision in C.'s best interest

[93] On the issue of access to C. Ms. O' Grady stated that the issue is whether access is in his best interests. The Society position was that for C.'s long term well- being it would not be good to cut him off entirely from his mother. At nine years old he was too young to have his wishes be determinative. The original supervision order was very detailed but it did not work. Ms. McTaggert had to referee everything. There was conflict over everything resulting in the involvement of the police and after hour's calls to the Society. The party's need professional help and they may need supervision of access at a visit centre. Ms. O'Grady said that the mother's request for a very specific access order would not work at this time as the mother had rejected mediation and refused to respond to specific proposals for access made by the Society.

[94] Ms. Morris noted that the MGP's evidence although not always congruent with the Society's evidence, was ultimately supportive of the Society's position. That evidence showed very clearly the conflict between the MGP and the mother, which the MGP said was all the fault of the mother, and its impact upon C.'s emotional and mental health. The MGP felt that access would improve once the Society was no longer involved. Ms. Morris states that the art therapist, his counselor, and the family doctor had to try and heal C. from the trauma of his relationship with his mother before access could begin.

[95] Ms. O'Grady had said the Society supported counseling for C. but also feels that professional assistance is needed not only for C. but for the adults involved. Ms. Morris made no specific commitment regarding her client's direct involvement in counselling regarding the adult conflict although they stated they wanted to work with the mother and were open to professional assistance. It was also noted that the MGP could not commit to continuing the art therapy due to the cost involved which was currently being assumed by the Society. They did commit to continuing C.'s counselling with Bruce Roblin.

[96] Mr. Moore submitted that C. should be able to make the decision as to whether he should have access to his mother. His alternate submission was that C.'s wishes should be given significant consideration in any decision concerning his access. Mr. Moore also said that counseling was needed by all parties and it is only when the professionals involved give the "green light" that a gradual re-integration of access should occur.

[97] Ms. Singh, for the mother, said that this was a very high conflict access situation so some form of supervised access was required. She said that the mother did not believe that the MGP would facilitate access voluntarily and she also said that the mother did not want the decision concerning access to be totally left up to C. Ms. Singh said that the mother wanted an access order to be very specific and felt that access should occur at least once every two weeks.

[98] In the course of submissions with respect to C.'s access I asked counsel about the disconnection between the evidence and the submissions. The Society filed a great deal of evidence to the effect that the conflict between mother and MGM was so severe that they could not organize anything on consent. They then submitted that access was in C.'s best interests and it should be directly arranged between the two parties who were in constant conflict. The MGP's affidavit set out extensive details about the conflict over access and stated that it was all caused by the mother's actions. They thought that access should not occur until C. was ready for it while at the same time noting that C. had said he never wanted to see his mother. The mother said what was required was a very detailed and specific order yet she filed no proposal at all. I gave the parties until October 14 which was 4 weeks from the hearing date to try and come up with a long term access plan on consent or to file further submissions on the issue.

[99] I received written submissions from the mother, the MGP and the OCL. I am grateful to counsel for taking the time to consider a plan. Mr. Moore had taken the time to receive input from the art therapist Ms. Kaur, and the mental health counsellor and he met with C. He stated that Mr. Roblin saw it as a conflict of interest for him to be involved in an access plan presumably because he is providing counselling to a child who has expressly stated that he does not want access. Mr. Roblin did state that any direct access between C. and his mother could occur at the family visitation center at DCFAS.

[100] I reviewed the access proposals. I was very pleased to see that the mother's submission was for graduated supervised access taking into consideration the recommendations of C.'s therapists. She asked for once a month, one hour supervised visits for the first three months. She was agreeable to Ms. Kaur the art therapist providing supervision. The MGP made a recommendation that relied on the assistance of Ms. Kaur the art therapist.

Access to L. and I. by mother

[101] Ms. O'Grady said that with respect to L. and I. the test is whether access is meaningful and beneficial and whether it would impair the chance of adoption. As extended family members want to adopt the process will not be impaired. The mother and the younger children do share a loving and meaningful relationship. It can be considered beneficial to the children as the mother is consistent with the access and the children enjoy it.

[102] Ms. O'Grady noted that access and openness are not the same thing. The access post Crown ward will be reduced from the current access and then the process will turn to openness. The access order will not be in place for very long as it will be replaced by the openness order on adoption. All parties, with the exception of the mother who seeks a return of the children, are in favour of openness.

ANALYSIS

[103] I must consider all of the evidence submitted and determine if the Society has met the onus upon it to prove that there is no genuine issue for trial on each and every one of the issues for which they are seeking a determination. A party opposed to an order sought in a summary judgment motion cannot simply state that there is a need for a trial they must set out the specific reasons why a trial is required to resolve an issue.

[104] As noted above, this motion was with respect to two separate status review applications. There are different legal tests involved and different facts that bear upon the determination of the issues involved. I have attempted to set out the evidence and the submissions relevant to each status review separately where possible. I will apply the evidence to the statutory framework by considering the issues relevant to C. first and then the issues relevant to I. and L. The evidence with respect to the continuing need for protection applies to both C. and the younger children.

Continuing need of protection

[105] An order cannot be made in a status review application without a finding that the children involved are in continuing need of protection. In this matter protection findings were made for all three children in June 2014. C. never returned to his mother's care after the protection findings although he did have unsupervised access to her in the period prior to his hospitalization in April 2016. L. and I. were returned to the mother's care under supervision in October 2014 before being re-apprehended in June 2015.

[106] I find that the mother had ongoing mental health issues that did impact upon her ability to parent her young children. She had been diagnosed with borderline personality disorder with anti-social features by Dr. McDermott after a comprehensive parenting capacity assessment. The mother said she thought she had PTSD only as a result of her childhood trauma. I find that the underlying nature of the mother's mental health issues had not changed from the time of the assessment to the time of this motion. There was ample evidence of the mother's inability to cope with parenting. She was often very angry with her children to the point that they became afraid of her. There was a great deal of evidence that the mother put her own needs ahead of her children's needs. She admitted on more than one occasion after the protection finding was made that she was unable to cope with the children's behaviours and needed a break. There were serious concerns about the children's behaviours that were reported by independent third parties most notably L.'s teachers and principal. He presented at school with soiled clothing and he acted out in a very angry and aggressive manner. The evidence supports Ms. O'Grady's submission that the mother deflected responsibility for the behaviour of the children.

[107] I find that after the child protection finding was made the mother did not take steps to address her mental health issues. Her own exhibits confirm that with some minor exceptions her only involvement with mental health professionals after the finding was by way of sporadic telephone interviews. With respect to C. the mother's untreated mental health issues meant that there was constant conflict between the mother and the MGP over access issues. I find that the Society, quite fairly, did not find that the mother was the only one to blame but in reviewing the incidents as set out in the affidavit evidence it is quite apparent that the mother's anger which caused aggressive interactions was not limited to her own mother. While some frustration and even anger with Society workers may be expected when a parent has her children in care, the evidence set out above makes it clear that the mother veered from crisis to crisis and had conflicted relationships with many people.

[108] The mother had L. and I. back in her care as of October 2014. This happened because in 2014 she did seek some assistance for her mental health issues and she did appear less angry and more focused. She has always had quite positive and consistent access with the two younger children and after a few months of good progress, the Society sought a return of the children to her under supervision. The evidence was that in the first few months it appeared that the mother managed fairly well. However, the mother's own evidence showed that once the children were returned to her she did not take any further steps with her physicians or counsellors to monitor her mental health. Her ability to care for the children deteriorated rapidly in the spring of 2015. Reports were being received from L.'s school. The state of the mother's home and her ability to provide the basic necessities to the children such as food and proper hygiene were so compromised that the society had no option but to re-apprehend the children in June 2015.

[109] The evidence is clear also that the mother always had a very conflicted relationship with her own mother and as her mental health deteriorated in the early 2015 so did her access relationship with C. Problems developed with C.'s weekend access early in 2015. The mother could not handle his behaviour and felt he was a risk to the younger children. By the time of the apprehension of L. and I. the mother was not having access to C. and it did not resume again until November 2015. The concerns C. had with his mother's actions and behaviours were consistent with the concerns others had noted in her inability to care for L. and I.

[110] I find that all three children were in continuing need of protection at the time of summary judgment motion.

The most appropriate disposition for C.

[111] By the time of the argument of the motion the mother did not oppose an order that C. continues to reside with the MGP. By that time C. had refused all access with his mother since March 2016. She sought the return of L. and I. to her home and she had led a great deal of evidence of the anger and aggression that C. had displayed on access visits with his younger siblings.

[112] While the placement was consent to by all parties and ultimately unopposed by the mother the court still needs to determine if it is in C.'s best interests for a custody order to be made pursuant to s. 57.1 of the CFSA. I find on all of the evidence that it is. C. has lived with his MGP for almost all of his life. The evidence was clear that they loved him and took care of him. They were attentive to his needs and sought out assistance when it was required. They continue to support his need for counselling. Parenting C. has provided many challenges for them but they have met those challenges.

What is the most appropriate final access order for C.?

[113] The test with respect to access for C. is what is in his best interests. C. has not had access to his mother since March 2015.

[114] I find that the mother's initial position that there should be access every alternate weekend to be completely unrealistic and not supported by any of the evidence. I find that such an order would be doomed to failure. Clearly there is a significant problem in the C.-mother relationship that needs professional help to work through. It is important for C.'s sense of security that any access that he has is sufficient to maintain some contact with his mother. It is also important though that it not interfere with his sense of attachment to his MGP who have parented him for most of his life and to whom he looks for his emotional support.

[115] All parties, with the exception of the mother, initially submitted that it was in C.'s long term best interest to have a relationship with his mother but given his absolute refusal to see her at this time that access should be left to be worked out between the mother and the MGP. As noted above, I had real concerns as to how that might happen given the very poor relationship between the mother and the MGP. All parties said that they were supportive of C.'s counselling process. I sought assistance in making some type of order that would be flexible enough to adjust to developing circumstances but that would at least begin the building of a bridge between the no access situation currently and the long term contact that all parties agreed would be in his best interests.

[116] I find that the order should be based upon the submissions made by the MGP. That submission is consistent with the OCL position. It is very helpful that the mother now recognizes that for access to work in the long term it must begin with professional assistance and be supervised. I would have preferred to set out specific times so that the mother would know when she would have contact with her son. I have been persuaded by the evidence and the submissions that it is in C.'s best interest to not schedule specific times but to let the contact evolve as C. receives written communication from his mother that he can work through with his therapists.

What is the most appropriate disposition for L. and I.?

[117] In this status review application under s. 65(1) the court is directed to s. 57 of the Act for the available disposition options. As noted above, society wardship is not an option due to the time limits set out by s. 70. The options then are return of the children to the mother under supervision or make the children wards of the Crown.

[118] The mother sought an order that the children be returned to her care under a supervision order. She filed her affidavit and the affidavits of her ex-partner and two friends she had met since her move to Innisfil. They were to the effect that she was observed to be good with her children and with her friends' children during access and babysitting times. The Society did not dispute this evidence. In fact, there was a good deal of evidence from the Society workers who observed the supervised access that the mother consistently attended and was loving and affectionate with her children. She did demonstrate parenting skills in the visits. Ms. Tara Britt who worked with the mother on a re-integration plan just prior to and after the return of the children to her in October 2014 said that the mother made progress in the Therapeutic Access Program. Ms. Britt worked with the mother in the mother's home and she said that as the mother was observed to be managing well her need to attend at her home lessened.

[119] The reality is though that the real progress that the mother made in the late summer of 2014 into the winter of 2015 did not continue. The mother's ability to care for the children deteriorated to the point where they were apprehended in June 2015. Since then she had not addressed the mental health issues that led to the breakdown in her ability to care and she had not moved past supervised access to the children. She chose to move to a different community and her access to L. and I. was reduced to once a week.

[120] The younger children have been in care nearly 40 months. This is well past the statutory time limit of 24 months by which the courts are required to ensure that the children have a permanent plan. The mother has not provided any evidence in this summary judgment motion that shows that she is in any way capable of resuming the full time care of L. and I.

[121] I find that the court has no option but to make L. and I. wards of the Crown.

Should there be access between L. and I. and the mother?

[122] There is a presumption against access when a child is made a ward of the Crown. There is a two part test set out in s. 58 (2.1) of the CFSA. The access must be both meaningful and beneficial to the children and it must not impair their opportunities for adoption.

[123] The Society's submission on this issue takes a somewhat holistic approach due to the particular facts of this matter. The children have been placed since November 2015 with members of the maternal extended family who wish to adopt them. This means that sibling access with C can be easily facilitated between the MGP and the putative adoptive home and an openness order or agreement can easily be done upon the proposed adoption of his siblings. It also means that the Society sees that the adoption through a Crown ward order will last only until the children are adopted and that is expected to not be very long. The Society has been prepared for some time to negotiate an openness agreement with the mother as part of their concurrent planning but she has not been prepared to enter into such discussions. In this case, then Crown ward access would really only be a bridge to adoption openness which is a different concept with different factors involved.

[124] Having said that, the Society still needs to meet the two part test. Ms. O'Grady conceded that the access has been meaningful and beneficial. There is a great deal of evidence that the mother was very consistent with her access attendance, even when she moved about an hour away. The children enjoy the visits and the mother is loving and affectionate with them. Within the restricted parameters of an access visits the mother does show some parenting ability. The children have become used to their mother being an access parent as with the exception of the eight months in which they were returned to her care in 2014-2015 they have seen her in that role.

[125] On the second branch of the test the access will not impair the possibility of adoption as the children having been living with extended family who wish to adopt for nearly a year. The adoption process is expected to proceed without any hurdles.

SUMMARY

[126] There shall be two separate final orders made, one for each status review application. There are separate titles of proceedings for each status review and the orders shall set out the parties to each proceeding.

ORDER

[127] The order regarding C shall read as follows:

ORDER

(1) This Court orders that, pursuant to Section 65(1)(d) of the Child and Family Services Act, C.A.M.B. shall be placed in the care and custody of his grandparents, A.T.K and M.K.

(2) There shall be no access between C.B. and his father, G.H.

(3) C.B. shall have access with his brother, L.I.W.L.C. and his sister, I.A.V.A.L.C., as arranged between their respective parents or caregivers.

(4) There shall be access between C.B. and his mother R.B. as follows:

(a) R.B. will speak with C.'s art therapist, Rapinder Kaur via telephone to discuss how to appropriately communicate with C. and for Rapinder Kaur to provide some coaching for R.B. in this regard.

(b) Using the recommendations and coaching from Rapinder Kaur, R.B. will e-mail C. once per week. The Maternal grandparents will provide Rapinder Kaur with a hard copy of this e-mail. Rapinder Kaur will discuss this with C. and see if he is inclined to reply.

Rapinder Kaur, in conjunction with C.'s counsellor, Bruce Roblin, will continue to assess how C. is doing with this e-mail process. If they deem that C. is ready for the next step, Rapinder Kaur will again speak with R.B. to provide coaching prior to the next step.

(c) Communication would then increase to a 10-15 minute Skype visit during C.'s visit with Rapinder Kaur. After the 10-15 minutes, Rapinder Kaur would continue her regular visit with C. alone. Rapinder shall not provide a timeline for when such communication should increase as it will be entirely dependent on how C. and R.B. are developing with the e-mail communications.

(d) Rapinder Kaur, in conjunction with Bruce Roblin, will continue to assess how C. is doing with the Skype process. If they deem that C. is ready for the next step, there would be a lone hour supervised visit at Headwaters Family Visit Centre. Rapinder Kaur shall not provide a timeline for when such access should occur as it will be entirely dependent on how C. and R.B. are developing with the Skype communications. Rapinder Kaur may or may not attend these visits as support for C., not as the Supervisor. During this visit, the supervisor must take notes.

(e) R.B. will assist with the costs of Rapinder's involvement, whether that be by benefits or monetary contribution.

(f) R.B. would not attend any event or location where C. is known to be including his school, baseball etc., until such time as graduated in-person access has commenced.

(g) At any point in time that C. expresses that he wants to see R., the Grandparents will work with R. to arrange visits.

[128] The wording for L. and I. shall read as follows:

ORDER

(1) L.I.W.L.C. and I.A.V.A.L.C, shall be Wards of the Crown, and placed in the care and custody of the Children's Aid Society of the County of Dufferin.

(2) There shall be no access between L.L.C. and his parents, P.L.C. and M.D.

(3) There shall be no access between I.L.C. and her parents, P.L.C. and M.D.

(4) L.L.C. shall have access with his mother, R.B., his brother, C.B., and his sister, I.A.V.A.L.C., in the discretion of the Children's Aid Society of the County of Dufferin.

(5) I.L.C. shall have access with her mother, R.B., her brother, C.B. and her brother, L.L.C., in the discretion of the Children's Aid Society of the County of Dufferin.

Released: October 20, 2016

Justice P.J. Clay