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.

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: March 31, 2017

Court File No.: C62187/13

Between:

Children's Aid Society of Toronto Applicant

— AND —

C.J.W. Respondent mother

S.P. Respondent father

Before: Justice Roselyn Zisman

Heard on: February 28 and March 6, 2017

Reasons for Judgment released on: March 31, 2017

Counsel

Nicole Horowitz — counsel for the applicant society

C.J.W. — Respondent mother, self-represented

Evan Chang — counsel for the respondent father

Eric del Junco — counsel for the Office of the Children's Lawyer, legal representative for the child E.P.

Esther Lenkinski — counsel for foster parents

Zisman J.:

1. Introduction

[1] This is a summary judgment motion brought by the Children's Aid Society of Toronto ("the society") with respect to an Amended Status Review Application seeking an order for Crown wardship for the children before the court without access for the purpose of adoption.

[2] There are three children before the court, E.P. ("E.") who is 11 years old, J.P. ("J.") who is 5 years old and C.P. ("C.") who is 4 years old.

[3] Counsel for the child E. takes no position with respect to an order for Crown wardship. It is the position of counsel for E. that there is a genuine issue for trial with respect to access by E. to both of her parents and her siblings.

[4] Counsel for the father seeks an order that the children be placed in his care. It is his position that there is a genuine issue with respect to an order that the children be made Crown wards. It is further his position that if the court finds that more time is needed for the children to be transitioned into the father's home then the court has the jurisdiction to extend the time the children can remain in care. If the children are made Crown wards then it is the father's position that there is a genuine issue requiring a trial with respect to access.

[5] The mother supports the father's position and seeks supervised access to herself.

[6] The foster parents participated on this motion to the limited extent that they filed an affidavit and their counsel made brief submissions supporting the position of the society.

[7] As this is a Status Review Application the issues to be determined by the court on the society's summary judgment motion are as follows:

a) Is there a genuine issue requiring a trial that there are continuing grounds for a finding of need of protection?

b) If so, is there a genuine issue requiring a trial for a disposition other than that the children be made Crown wards?

c) If an order of Crown wardship is made, is there a genuine issue requiring a trial as to whether or not one or both of the parents should have access to the children and whether or not there should be an order for sibling access?

[8] The society relied on its factum, affidavits of various society workers and the psychological report of the child E. by Dr. Fitzgerald.

[9] The mother filed an Answer supporting the children being placed with the father. She also filed affidavits sworn February 25, 2016 and February 2, 2017. There is also an affidavit filed from her sister sworn January 12, 2016. The affidavit of Emma Ding, sworn February 14, 2017, attached several reports relating to the mother. Ms Ding is the legal assistant for the father's counsel. I have relied on these documents subject to concerns about admissibility as supporting the mother's position. Although the mother made oral submissions they were not relevant to the issues and largely incomprehensible except to the extent that she supports the father's position.

[10] The father filed a factum and relies on his Amended Answer and his affidavits sworn January 22 and February 2, 2017. He also relies on the affidavits of Emma Ding, his counsel's legal assistant that attached several reports about himself and the mother. The affidavit also has attached as exhibits many of the society's case notes regarding access, notes from a Branch Planning Conference, an email from the foster mother, a note from E. and a Milestone 6 month Plan of Care. The father also relies on the affidavits of the paternal grandparents and a family friend.

[11] Counsel for E. filed a factum and relies on the affidavits of Tara Noble sworn February 21 and 24, 2017. Ms Noble is a clinical investigator who assisted counsel in this case so that the views and preferences of the child E. would be before the court. Counsel also filed the affidavit of Patricia Convery, the executive director of Adoption Council of Ontario and the affidavit of Katherine Kavassalis, the legal director of the personal rights department of the Office of the Children's Lawyer.

[12] Counsel for the foster parents filed their affidavit that attached to it school report cards for E. and J. It also attached an intake and progress report from E.'s counsellor and an intake report from J.'s therapist.

2. Evidentiary Issues

[13] Given the serious consequence of a child protection proceeding, the court must be cautious in relying on flawed evidence and there is no justification for a lower standard of admissibility for evidence on a summary judgment motion. Generally the evidence on a summary judgment motion should be of the same level and quality to meet the same standards as at a trial.

[14] I rely on the line of cases that hold that hearsay evidence should only be admitted when it meets the criteria of necessity and reliability and that the evidence on a summary judgment motion should be of a level and quality that could withstand the rigour of a trial. Subrule 16 (5) FLR provides a stricter rule with respect to hearsay than subrule 14 (19) motions, namely that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

[15] It is important to consider that the basis for the inadmissibility of hearsay evidence is that it is being introduced for the truth and that there is an absence of a contemporaneous opportunity to cross-examine the deponent. Not all hearsay statements are admitted for their truth. For example, frequently in child protection proceedings such evidence is merely a backdrop to understanding the context of actions taken by a society as a result of the information without any reliance of its truth. Generally it is the society's evidence that is being scrutinized, however there is no rationale that would require the society to meet this standard and that there be a lower standard for parents' counsel. The quality of the evidence must be carefully scrutinized.

[16] The role of a judge on a summary judgment motion is to evaluate the quality of the evidence. To fairly resolve the dispute, the judge must analyse the issues in the case and identify what are the disputed facts and whether those facts are material to the resolution of the matter. The quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized, and a court should generally demand evidence that is solid, credible and, in most cases, from first-hand knowledge.

[17] Counsel for the society raised several objections to the materials relied on by counsel or the child and the father.

[18] In this case, counsel for the society has been careful not to include hearsay in the affidavit of the society workers and any hearsay is merely to explain the context of actions taken by the society. It is also submitted that the society is not relying on the hearsay in the foster mother's affidavit.

[19] Counsel for the society objected to several paragraphs of Ms Noble's affidavit as being hearsay and expressing opinion evidence.

[20] Counsel for child E. submits that Ms Noble's affidavit only contains her observations and she draws common sense conclusions that are self-evident and are not opinions. Counsel also made the general submission that the evidence should be admissible subject to any weight the court may wish to place on it and that counsel for the society is taking an unduly strict and formal approach to the admissibility of evidence and to her entire approach to this case.

[21] Tara Noble was retained by counsel for the child E. to provide the court with E.'s views and preferences. She was not retained to conduct an assessment or an investigation pursuant to section 112 on the Courts of Justice Act. She is not an expert. It is perfectly acceptable for her to outline what E. said and her direct observations. However, instead of simply setting out what E. said and any of direct observations of E., Ms Noble has interspersed her interpretation of E.'s feelings and what her statements mean. For example, she deposes that despite E. not wishing to see her mother since December 2015 that she values that relationship and knows she will want to reconnect with her in the future. It is unclear exactly what E. said as opposed to Ms. Noble's interpretation of her statements. She deposes that she has reviewed the access note and in her opinion they confirm E.'s statements about the positive aspects of her visits. Ms Noble advances her opinion about the advantages of ongoing access and she deposes that the position taken by the foster parents from her perspective is problematic and very hurtful to E. and undermines her trust in the foster parents.

[22] The role of a clinical investigator conducting a clinical assist to counsel for the child is not to express her opinion. She is not qualified as an expert and she did not conduct an investigation or an assessment. E.'s statements and her views and preferences, to the extent that they can be ascertained from Ms. Noble's affidavits are admissible. However, the portions of her affidavit that express her opinion are not admissible. A similar limitation of the admissibility of the evidence of a social worker retained to provide a clinical assist to counsel for the child was expressed in the case Children's Aid Society of Haldimand Norfolk and T.K.L.

[23] Patricia Convery is the director of Adoption Canada and her affidavit outlines the services available for adoptive parents and the benefits of an openness order and post adoption access. The basic requirement for the admissibility of any evidence is whether or not the evidence being tendered is relevant and material. Although the information is of general interest it is not relevant to the specific facts of this case and the contents of the affidavit are irrelevant and unnecessary to the legal considerations the court is required to make on this motion. I agree with the submissions of society counsel that the entire affidavit should be struck.

[24] Katharine Kavassalis who is the legal director of the personal rights department of the Office of the Children's Lawyer and deposes that she is swearing her affidavit to provide relevant context to the court with respect to the summary judgment motion. The affidavit then outlines the attempts by the counsel for the child to obtain information and to arrange meetings with the society and foster parents in order to discuss post-adoption access. Attached to the affidavit are 23 exhibits consisting of letters between society and child's counsel, a case note regarding a discussion by the society worker with the foster parents with respect to post-adoption access and the society's response to the Request for Information about the attempts by the society to discuss post-adoption access with the foster parents. It is clear from the correspondence that counsel for the child does not agree with the society's position, feels that the society workers have not done enough to discuss the benefits of post-adoption access with the foster parents and that the society workers do not appreciate the distress that the society's position has caused E.

[25] Counsel for the child did not make any specific submissions with respect to the relevance of the information in the affidavit to the issues before the court. Any statements in the correspondence with respect to E.'s wishes as expressed by her counsel are already more properly before the court in the affidavit of Ms Noble. The remainder of the correspondence I find is not relevant to the issues before the court and appears to simply confirm that E.'s counsel does not support the society position. The criticism that the society did not do enough to encourage post-adoption access, I find is not relevant to the legal test for post-adoption access. Further in this case, the foster parents have retained their own counsel and have independently expressed their position. I therefore agree with counsel for the society that the entire affidavit of Ms Kavassalis should be struck.

[26] Counsel for the society also objected to the admissibility of the reports and case note logs that were simply attached to the affidavits of the legal assistant for father's counsel. The same issue arises with respect to the reports attached to the foster mother's affidavit. The habit of simply attaching to affidavits various reports or notes is a practice that should not be encouraged by the court especially if the reports are relevant to the primary issues before the court. This may be as a result of the confusion between the disclosure obtained by counsel and then the evidentiary value and basis for the admissibility of that disclosure. Just because records are disclosed does not automatically make that disclosure admissible. Counsel should determine the basis of the admissibility of the evidence such as, if the disclosure qualifies as a business record or if it is being tendered as an expert report and then follow the procedure with respect to proper notice and be prepared to explain to the court the relevance and necessity for the evidence being admitted.

[27] There are reports from E.'s and J.'s counsellors attached to the foster mother's affidavit. These reports deal with issues and express opinions that are material to the issues before the court. They are not admissible under any provisions of the Evidence Act. They are not in a sworn affidavit and there is no information as to the qualifications of the counsellors or if these initial assessments and case notes reflect an accurate and compete assessment of the children. I find that they are not admissible and have not been considered by me. There are also school reports attached but these are not controversial and simply confirm that E. and J. are attending school and doing well and I have considered those reports.

[28] The affidavit of the father's counsel's assistant has attached several reports with respect to the mother. I assume this evidence was provided to the court by father's counsel to assist the mother who is self-represented. There are reports that she attended for some counselling and as the society worker confirmed in her affidavit that the mother attended for some counselling, I am prepared to admit the report for that very limited purpose but not with respect to any opinion expressed in that report. There is also a letter from the mother's psychiatrist. A Notice to Rely on a Practitioner's Report should be served pursuant to the provisions of the Evidence Act. As the mother's mental health was and continues to be a central issue in this case, such a short cut is simply not acceptable. Further, the short letter does not provide sufficient details to be of assistance to the court in any event.

[29] The affidavit of the father's counsel's assistant also attached a report from a counsellor that the father attended. The fact of his attendance was also confirmed by the society worker but I am not prepared to place any weight on the opinions expressed in that report. The issue of the father's insight and abilities as a parent are material issues in dispute and as previously indicated, if a report of a counsellor is being relied upon for a material issue then it should be in the form of a sworn affidavit with information about the qualifications of the counsellor.

[30] The same affidavit has attached to it the minutes of a society branch planning meeting. This meeting was attended by several society workers and the parents and foster mother so it is not known whose opinion is being expressed. The relevance or purpose of including this report was not explained nor was it referred to any affidavit or in submissions. I find it is not admissible.

[31] Also attached is a report form Milestone Foster Homes. The author of the report indicates that it is based on information from various people including the society workers, the foster mother, the father, E. and the foster resource worker. There are several opinions expressed such as that E. understands the situation of why she is in care but does not express her feelings or thoughts about it, that she is happy and settled in the foster home and that she has a deep love for her father and "it is obvious that they have a strong bond". This latter opinion about the relationship between the child and the father is relied upon by the counsel for the child and the father. However, I raise the same concern about the tendency to simply attach a report to an affidavit. There were no submissions again with respect to the basis for the admissibility of this report. The only submission made was that all of the evidence was admissible and the court should put whatever weight it considers appropriate on the evidence. Any weight the court is being asked to put on this report is very problematic as there is no information about the author and no information about how the opinions are arrived at that is, by consensus or only the view of the author of the report. I find that this report is also not admissible.

[32] Also attached to the father's counsel's assistant's report are case notes with respect to the father's access visits.

[33] Counsel for the society submitted that the case notes should have been attached to an affidavit by the father not a third party, that a notice to admit the records as business records should have been served and it is not clear what parts are being relied upon. Counsel for the father submitted that the case notes regarding the father's access are highly relevant and not controversial.

[34] I agree with the submissions of society counsel that this method of simply attaching case notes to a third party affidavit is not appropriate. Further, there is no summary or reference to the notes in the father's affidavit or in the factum filed. However, I have reviewed all of the access notes and rely on them, despite the fact that no proper notice was filed pursuant to the Evidence Act, as they do qualify as business records and the society was aware that the father intended to rely on the notes and there is no prejudice to the society.

3. Background and Undisputed Facts

[35] The facts that follow were either admitted by the parents or only baldly denied by them or were facts relied upon for the finding of need of protection or admitted in the Statement of Agreed Facts executed by both parents.

[36] The children were apprehended from the care of both parents on November 14, 2013.

[37] Although the mother was the parent that was home with the children, the father was with the children every day and was actively involved in their care.

[38] The society began its investigation as a result of a referral from the family doctor. The concerns that were not disputed by either parent were:

a) E. who was then 7 years old was being exposed to domestic violence between her parents;

b) E. being physically disciplined by her parents although primarily by the mother;

c) E. was being emotionally abused by both parents;

d) E. witnessed her siblings being physically disciplined by the mother;

e) E. was being required to provide child care for her siblings and generally being required to meet her own needs including getting up in the morning and getting ready for school;

f) C. and J.'s physical and emotional needs were not being met. There were concerns about their weight and growth that were not being addressed;

g) The children and in particular E. was being impacted by the mother's untreated mental health symptoms which resulted in her inability to attend to the children's basic physical, emotional and developmental needs; and

h) Neither parent appeared to understand the gravity of the concerns or the importance of addressing the children's needs. The parents denied or minimized the identified concerns and were unable or unwilling to formulate a safety plan to address the risks despite being advised that the children would be placed into care if an appropriate plan was not worked out.

[39] On November 19, 2013 the children were placed in the care of the society on a temporary without prejudice basis.

[40] On January 27, 2014 the parents, who had not filed an Answer or Plan of Care, were noted in default of the Protection Application. The statutory findings were made and the children were found to be in need of protection pursuant to sections 37 (2) (a), (b), (f) and (g) of the Child and Family Services Act ("CFSA").

[41] On March 26, 2015 the parents signed a Statement of Agreed Facts for an order that the children remain in the care of the society for a further 36 days and then as of May 1, 2015 the children would be placed in the care of the father and the paternal grandparents subject to a 6 month supervision order on terms and conditions. The conditions included terms that the father and paternal grandparents would be solely responsible for the children's direct care and supervision, that they would not permit the mother to attend at the family home and advise the society if the mother attempts or has any unauthorized contact with the children and that the mother was not to have any contact with the children unless approved of in advance by the society. The paternal grandparents signed a caregivers' consent with the same terms.

[42] The parents, who were both represented by counsel and had the benefit of a Cantonese interpreter when they signed the Statement of Agreed Facts, agreed to the following relevant facts:

a) The mother continued to show a lack of insight into the underlying protection concerns. The children were subject to chronic neglect and feeding issues. The mother showed no understanding of the failure to thrive issues with respect to the two younger children and blamed them for being difficult and not wanting to eat. When advised that J. required significant dental surgery due to bottle rot and that E. had 9 cavities, she did not accept any responsibility nor appreciate the severity of the concerns;

b) The parents have unresolved issues of conflict in their relationship and although they attended for counselling they made only nominal progress in understanding and addressing their issues and stopped the counselling. The mother feeling that things were good and the father advising that it was pointless to continue and no progress was being made;

c) The father had begun to hold the mother accountable for her current behaviour when it is unreasonable or not appropriate. Further, the father began to take responsibility for not taking charge of the situation and not recognizing the severity of the neglect in terms of the events leading up to the apprehension;

d) The mother acknowledged that she repeatedly hit E. and J. for not eating, not listening to her and not washing their hands. However, the mother expressed no remorse and did not demonstrate knowledge of any other ways to discipline the children;

e) The parents attended the society's therapeutic access program. The parents' participation in the program was terminated as the children remained at risk from their mother's impulsive behaviours and conflict between the parents. Although the mother was eager to learn and open to suggestions she had difficulty sustaining changes and implementing safe emotional care of the children. The father had more strengths in his ability to provide regulation and emotional attunement to the children but he struggled to remain protective of them;

f) The mother continued to attend with her psychiatrist who reported that she was stable on medications for her anxiety and compulsive disorder but on several subsequent occasions the mother reported that she stopped taking her medication without medical consultation; and

g) The society was prepared to support a plan that the father would move into the home of the paternal grandparents. He would also have the support of his brother and sister in law who resided there. The father would only work on week-ends so that he was available to care for the children and take them to and from school. The father also stated that he had been separated from the mother since December 2014 and was committed to caring for the children. The children had begun to have access that was going well although E. expressed the wish to have more access before going to live in this new home and with her extended paternal family.

[43] On December 11, 2015 after being in the care of the father and paternal grandparents since May 4, 2015, the children were apprehended.

[44] The concerns that led to the apprehension were:

a) The father advised the family service worker that he was contemplating returning to the home he owned with the mother as he and the children could no longer continue to reside with his parents as his father was bothered by the children's noise;

b) The society advised the father that it would not support a plan that involved the mother in a caregiving role;

c) The father expressed concerns that he would need to return to work full-time in light of his need to move out of his parents' home;

d) The mother has not shown any insight into the society's protection concerns or issues leading to the children's initial apprehension;

e) The society had not seen any changes in the mother's behaviour to lead it to conclude that she no longer posed a risk to the children;

f) The society had been contacted by the children's school to report that the parents had attended at the school together and the mother had wanted to sign out E. and J. to take them to lunch, that the mother became angry, swearing and yelling when not permitted to take the children and then the father came to the office and signed them out. It was further reported that the parents planned to take the children to Cambodia. The parents admitted attending at the school together but denied that they had stated that they planned to take the children to Cambodia and the mother denied yelling and swearing when she was at the school;

g) The mother denied that she was sleeping over at the paternal grandparents' home despite the family service worker seeing her in the home in the morning wearing in her pyjamas and despite E. stating that her mother was sleeping over and taking care of them for the past week as her father had to work;

h) E. further reported that her mother still yells and swears out loud not to anyone in particular but she did swear at one of her brothers because he would not listen to her;

i) E. reported that her parents still argue and that is was bad when her mother was there as she is a "bad parent…because she yells and swears";

j) The family service worker observed the younger children being left unsupervised, no safety gate around the stairs and heard from the upstairs of the house one of the children crying and screaming as if in distress with no adequate explanation by either parent who were both observed carrying both children and coming out of the bedroom;

k) Although both parents initially denied that the mother was staying over, the parents then stated that they thought the mother was allowed to be with the children. The mother also stated that her husband was paying her $200 a week to care for the children and turned to the father and said that the society worker already knew anyways as E. had told her; and

l) Both parents spoke as if they intended to remain together as a couple and were making decisions and planning as a couple even though a few weeks earlier the father stated they had separated. The family service worker was concerned with the parents likely non-compliance of the supervision order especially in view of a recent review by the family service worker about the society's concerns. The family service worker was also concerned that E. would become the focus of blame for telling the society of the mother being the home.

[45] On December 15, 2015 a temporary without prejudice order was made placing the children in the care of the society. The society also amended its Status Review Application to seek an order for Crown wardship.

[46] The children were placed in their current foster home where they have remained since the apprehension.

[47] The father did not ask for access or contact with society to inquire about the children.

[48] After the apprehension, E. expressed that she was not ready to see either parent.

[49] The mother has not had any access to any of the children since December 2015.

[50] E. expressed to her counsel in about mid-January that she was ready to begin seeing her father and access was then arranged.

[51] The father does not explain in any of his affidavits why he did not request access or inquire about the children from the date of the apprehension to about a month later when E. asked to see the father.

[52] As of January 27, 2016 to June 6, 2016 the father's access with the children took place once a week for one hour on a semi-supervised basis. As of June 6, 2016 the access was expanded to two hours and was moved to the maternal aunt's house as the society was continuing to assess the plan of the father and the maternal aunt to jointly care for the children.

[53] On June 24, 2016 the society notified the parties that it was not continuing to assess the plan by the father and maternal aunt to co-parent the children. As a result the society moved access back to its offices and that the visits would be for the father alone unless another visitor was approved of in advance by the society.

[54] Despite several court attendances, neither parent brought any motions for either the return of the children or for expanded access.

[55] Although the mother deposes that she is not permitted to have any access. There is no such order. The temporary without prejudice order of December 15, 2015, after the children were apprehended, simply states that access was to be as agree upon and in consultation with E. On January 19, 2016 the parties were again in court and the proceeding was adjourned and the endorsement simply notes that access should consistent with E.'s views.

[56] On July 19, 2016 an order was made for the society to proceed with a summary judgment motion that was to be heard on October 13, 2016. That date was adjourned on consent to December 8, 2016 and at the same time the society was to continue to assess the father's new plan.

[57] The summary judgment motion was again adjourned at the request of the father as he wished to obtain new counsel. Mother's counsel expressed that he was having trouble obtaining instructions and would be bringing a motion to be removed as counsel of record.

[58] As of the date of the summary judgment motion of February 28, 2017, the children have been in the cumulative care of the society 2 years and almost 6 months.

4. Applicable Legal Considerations with Respect to a Summary Judgment Motion

[59] As the society is proceeding by means of a summary judgment motion, pursuant to rule 16 of the Family Law Rules ("FLR") the issues to be determined must be adjudicated within the context of the rules and the case law that has evolved with respect to summary judgment motions.

[60] Subrule 16 FLR allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

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

[62] Subrule 16 (4) FLR requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[63] Subrule 16 (4.1) FLR provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[64] Subrule 16 (6) FLR is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[65] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue requiring a trial. The onus is on the Society to show there is no genuine issue requiring a trial.

[66] In assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome other than that sought by the applicant".

[67] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. Justice Hardman, in the case of Children's Aid Society of the Regional Municipality of Waterloo v. T.S. observed at paragraph 5 of that decision that because summary judgment is now explicitly contemplated by subrule 16, this may:

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

[68] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue requiring a trial. Mere allegations or blanket denials or self-serving affidavits not supported by specific facts showing that there is a genuine issue requiring a trial will be insufficient to defeat a claim for summary judgment.

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

[70] Subrule 16 (6.1) FLR codifies these broad powers in considering a summary judgment motion. The rule specifically provides as follows:

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 interests of justice for such powers only to be exercised at a trial:

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

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

[72] Accordingly, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility.

[73] In determining if there is a genuine issue requiring a trial based on evidence presented by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[74] The test for summary judgment is met when the moving party satisfies the court that there is no genuine issue of a 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.

[75] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits.

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

[77] It is also necessary to consider subrule 2 FLR to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that cases are dealt with in ways that are appropriate to their importance and complexity and giving appropriate court resources to the case before the court while taking into consideration the need to give resources to other cases. This appears to also be in keeping with the process test set out by the Supreme Court of Canada in Hryniak v. Mauldin.

[78] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that the child faces some better prospect that what existed at the time of the society's removal of the child from the parent and that the parent has developed some new ability as a parent.

5. Applicable Legal Considerations with Respect to Disposition

[79] As this is a Status Review Application the relevant statutory provision is section 64 of the CFSA.

[80] Section 65 (1) (c) of the CFSA states that where a review of a child's status is made under section 64, the court may, in the child's best interests make an order under section 57 of the CFSA that is, the options available for disposition.

[81] Section 57 of the CFSA sets out the following disposition options:

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

Supervision order

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

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

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

[82] With respect to the children E., J. and C., as this is a status review application, there has already been a finding that these children are in need of protection.

[83] It is well-settled law that the court must now evaluate whether there is a continued need for state intervention to protect these children and consider what disposition would be in their best interests. In balancing the best interests of the child with the need to prevent indeterminate state intervention, the best interests of the child must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent's parenting ability.

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

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

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

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

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

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

[85] Subsection 57 (2) of the CFSA requires the court to inquire what efforts the society or another agency or person has made to assist the children before intervention.

[86] Subsection 57 (3) of the CFSA requires that before an order is made removing children from their caregivers that the court must be satisfied that less disruptive alternatives would be inadequate to protect the children.

[87] Subsection 57 (4) of the CFSA also requires that the court consider, if removal of the children from their caregiver is necessary, whether there are any family or community placements that are possible.

[88] In determining the appropriate disposition, the court must decide what is in the best interests of the children. In making this determination, the court is guided by the criteria set out in subsection 37(3) of the CFSA as follows:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child's physical, mental and emotional level of development.
3. The child's cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstances.

[89] In determining the best interests of the children, the court must assess the degree to which the concerns that existed at the time the children were brought into the society's care still exist at the present time.

[90] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters should be child-focused.

[91] I agree with the conclusion reached by Justice Pazaratz, in the case of Children's Aid Society of Toronto v. D.S. than when the statutory time limit has significantly passed, as it has here, it would be an exceptional case where the time lines are not a significant and appropriate consideration.

[92] These children have been in care for about 30 months well in excess of the statutory timelines set out in section 70 (1) of the CFSA. Unless the court exercised its discretion to extend the timelines, the choices are for the children to be placed in the care of either or both of their parents, with or without terms of supervision or to be made crown wards with or without access.

6. Summary of Relevant Evidence

6.1 Summary of Relevant Evidence with Respect to the Children

[93] J. is 5 years old and attending senior kindergarten and is doing well in school. He is currently attending for art therapy sessions due to the foster mother's concerns about his struggle with aggressive behaviour and the processing of his feelings. However, he is not considered to be a child with any special needs and there are no concerns about his development.

[94] C. is 4 years old and will be starting pre-school. He is meeting his milestones and there are no concerns about his development.

[95] It is not disputed that all 3 children are happy, have adjusted well to the foster home and that all of their needs are being met by the foster parents.

[96] E. is almost 11 years old and in Grade 5. The foster mother deposes that she is very bright and an excellent student and attached to her affidavit a copy of E.'s report card. The foster mother deposes that E. is a very emotional child and generally very guarded. E. is attending counselling sessions.

[97] E. was assessed by Dr. Fitzgerald in May 2015 and again in June 2016. The report of Dr. Fitzgerald dated June 29, 2016 was filed pursuant to a Notice under the Evidence Act.

[98] E. was assessed as being a very bright girl with superior overall cognitive abilities.

[99] At the time of the assessment in June 2016 the society was assessing the father's plan that the children be placed with himself, the paternal grandparents and live in the home of his elder sister.

[100] E. advised Dr. Fitzgerald that she was aware that she and her brothers were removed from their father's care in December 2015 as her mother had moved back into the home and was staying overnight. She further reported that her father was aware that this was not allowed because her mother "might hurt us mentally and physically". She could not understand why her father allowed her mother to be there. She recounted how in the past her mother had frequently hit her and also hit her brothers and that her father could not stop her because he was rarely in the home. She described that her mother has other problems also, such as always washing her hands. She reported that she felt relieved when she moved back into the foster home and was comfortable living there. E. expressed ambivalence in moving back to live with her father and her aunt as her father is away at work for extended period of time and she is unable to communicate with her aunt as her aunt cannot really speak English and she does not speak Cantonese.

[101] Dr. Fitzgerald concluded that E. was experiencing high levels of anxiety and she was apprehensive about her current circumstances and how things would work out in the future. She had difficulty articulating her ideas and emotions about this. She views herself as having a positive relationship with the people in her life including her father and foster mother. But she was concerned about the possibility that a return to home would again result in mistreatment or neglect of her and her brothers. She expressed a strong desire for stability and consistency in her life. She was comfortable with the prospect of becoming a crown ward as an opportunity for stability.

[102] Dr. Fitzgerald's summary and recommendations are as follows:

E. is a bright, personable and insightful 9 year-old girl who has endured a good deal of neglect and maltreatment in her life. Her relationships with caregivers has been traumatic, anxiety-provoking and unstable. She is aware of the range of options that she faces and voices a clear desire for a stable, permanent long-term home with caregivers who can ensure her safety and well-being as well as providing her with the care and nurturance that she desires. Returning home to live with her father is an option that she would consider. However, she knows that her father has been unavailable in the past and has made poor decisions, such as when he permitted her mother to live in their home when this was not allowed. She is also concerned that returning to live with her father would mean that she would be primarily cared for by her aunt, with whom she is unable to communicate.

E. is also aware that there is an option for her to become a Crown Ward and to be placed for adoption. She is open to this and views this option as providing her with a stable, long-term home for her and her siblings. She appears to have the personal resources to make a transition into an adoptive placement and form a trusting relationship with an adoptive family. It would also appear that she has the ability to do so while having some form of ongoing contact with her biological father. Going forward, it seems that it is important to do everything possible to ensure permanency and stability in E.'s life, while providing her with the care, nurturance and support that she needs in order to go forward with her development in an optimal manner. Continued involvement in therapy is likely to be beneficial for her. Otherwise, no other interventions are indicated.

[103] Subsequent to this assessment, the foster parents advised that they wished to adopt all three children but they were not prepared to do so if there was a court order for access to either parent.

[104] Judy Alexander, the child service worker met with E. many times during the times the children were in foster care. E. made similar statements to Ms Alexander as she had to Dr. Fitzgerald with respect to why she was in care and why she had been removed from her father's care and placed back into foster care.

[105] In July 2016, when discussing the option of becoming a crown ward, E. said she was "okay" with it. When asked about seeing her family less, she said that she is "ok" with not seeing her mother but would be sad to not see her father. E. was encouraged to speak to her the foster mother, her counsellor and Ms Alexander.

[106] In September 2016, Ms Alexander spoke to E. again about the options for placement. E. expressed that she thought becoming a crown ward would be "better" for her and her brothers and that she was "unsure" if her father could handle looking after her and her brothers and she mentioned that kinship plans had failed twice.

[107] Ms Alexander asked E. what she thought about access with her father as it is usually decreased with a Crown wardship order. E. stated that she knew she would see her father less but was unsure how much less she would be satisfied with. E. did not respond when asked what she thought about being a crown ward if she saw her father much less.

[108] E. expressed that she had no concerns about the foster home and liked everything about the home. She enjoys school and her friends.

[109] Ms Noble along with child's counsel met with E. several times to ascertain her views and preferences. Based on Ms Noble's affidavit and my best attempt to ascertain what comments were actually made by E. as opposed to the interpretation or opinions of Ms Noble. A summary of E.'s views and preferences is as follows:

a) She is settled into the foster home and feels comfortable there and she is attached to her foster parents;

b) Her father and mother are important to her also and she wants to see them if she becomes a crown ward. She would be sad if she was not able to see them;

c) She has not seen her mother since December 2015 but will want to see her in the future. Her mother makes food for her and her brothers that her father brings to the access visits;

d) She understands that she and her brothers are in care because of her mother's mental health and that her mother was "weird" and "mean" when caring for them but she knows that this was because her mother was sick;

e) It was very hurtful that her mother and father were unable to maintain the plan when they lived with her father and grandparent in 2015;

f) It is of paramount importance and her top priority that she keep living with her brothers;

g) She does not want to express any preferences about becoming a crown ward. She feels she is being asked to make a choice between losing her father or her current foster home and it is unfair that she is being asked to make this choice and is not willing or able to make the choice;

h) It is difficult for her to feel caught up in the middle between her parents and her foster parents who want to adopt her. She cares about her parents' feelings and her foster parents' feelings;

i) She understands that if she is given access to her parents that she would not be able to continue to live in the foster home unless her foster parents change their mind; and

j) If she is made a crown ward, what she wants more than anything else is for her and her brothers to continue to live with her foster parents and to see her mother and father and remain connected to the rest of her family. She hopes this will happened but understands that it may not.

6.2 Summary of Relevant Evidence with Respect to the Plans of Care

[110] The society plan is for the children to remain in their current foster home and for the children to be adopted by their foster parents. The benefit of that plan is that it provides all of the children with permanence and stability with caregivers that have shown that they can meet all of the children's needs. The children will continue to be raised together. The only negative of the plan is that the foster parents are not prepared at this time to agree to an order for ongoing access by the children to either parent.

[111] The father has presented either formally in his Plan of Care filed in these court proceedings or informally in discussion with the society workers the following plans:

a) In December 2013, the father presented a plan for the children to be cared for by his parents which the society began to assess. During the first overnight access visit at the home of the paternal grandparents, the father removed the child C. and took him to the hospital despite the very clear expectations to the father and the paternal grandparents that the father was not permitted to be present during the visit. Neither the father nor the paternal grandparents advised the society about the child attending at the hospital. This plan was withdrawn in June 2014 by the paternal grandparents due to the grandfather's poor health following a car accident which resulted in the grandmother being required to meet his needs;

b) In February 2015, the father presented a new plan whereby the children would live with the paternal grandparents but he would also move into the home and be a joint caregiver. The father stated that he would be the primary caregiver and he would only work on the week-ends and be available from Monday to Friday to care for the children. His brother, sister in law and their son would also be residing in the home. The society ultimately approved the plan and the children moved into the home. However, the conditions required that the mother not attend at the home and her access be approved of in advance by the society. The children were apprehended from the care of the father and the paternal grandparents after they breached the terms of the supervision order on several occasions and allowed the mother to have unauthorized contact with the children. Further, after the father's brother and his family left the home, the paternal grandparents were not able to provide the father with the support he needed to care for the children. E. was aware that the paternal grandfather wanted them to leave the home;

c) In February 2015 the father presented another plan for the children to be placed in his care with him moving into the home of the maternal aunt. The father formalized that plan by serving an Updated Plan of Care to place the children in the joint care of himself and the maternal aunt. In May 2016, the society tentatively approved the plan and began expanded visits in the home of the maternal aunt with the father also being present. The maternal aunt and the father advised the society that he moved into that home at the beginning of May. However, the father continued to have regular contact with the mother and the society believed that father was staying in her home overnight although he told the society they had separated in December 2014. Although the father denied staying in the mother's home, he was seen at the home in the early hours of the morning and his car and belongings were there. In the father's affidavit relied upon on for this motion he now deposes that he moved in with the maternal aunt in the summer of 2016 but only stayed there one week due to work and did not move in permanently as his plan changed with the thought of moving into the mother's home and caring for the children with the assistance of his parents. He attaches a two year lease he signed with the mother as of August 1, 2016, for $100 per month, as his plan was to live in the home with the children. He does not explain why he and the maternal aunt told the society he had been living in the maternal aunt's home since May and never advised them of the change in his plans; and

d) The Father presented his current plan in January 2017. The plan is for the children to be placed in the care of the father and move into the home of his elder sister in Vaughan who would assist him. He would also have the assistance of his parents who have resided there since July 2016. He deposes that his will be working Monday to Friday and on some week-ends but his hours are flexible. He will accept and follow through with any referrals recommended by the society.

[112] There are several positives to the father's current plan as follows:

a) The father loves the children and they are aware he is their father and look forward to access visits;

b) The father has consistently visited the children and he brings them presents, food and generally the access proceeds smoothly and without any major concerning incidents;

c) The children would be placed with their father and other members of the paternal family;

d) The children will have the opportunity to be connected with their culture and heritage and to learn Cantonese;

[113] There are several negative aspects to the father's plan as follows:

a) This is essentially the same plan that was attempted in May 2015 although the family would be residing in a different home, with the paternal grandparents and with the paternal aunt and her daughter as opposed to the prior plan when they resided with the paternal grandparents and the paternal uncle and his family;

b) The father did not explain why if the paternal grandparents have been living with their elder daughter since July 2016 that this plan for him and the children to live there was not presented until January 2017;

c) The paternal grandparents have not seen the children since December 2015. Although the father deposes that the society worker did not allow them to visits there is no evidence of any calls or requests to visit;

d) The father has not responded as to how he will address E.'s hurt feeling that the father and mother were unable to maintain the plan when they were placed in the care of the father and grandparents;

e) The father has not explained how he will deal with the fact that E. reported that her grandparents did not want them to live with them in the past;

f) The father has not addressed how he would deal with the fact that E. told the society about her parents' breach of the supervision order in May 2015, the conflict between the parents and generally the situation in the home before the apprehension. This should have been responded to; instead, the father simply denied the mother ever slept over or cared for the children;

g) The relationship between the mother and father continues to be uncertain. E. reported that the father is bringing them food prepared by the mother which must mean that the father is at a minimum seeing the mother every week. No explanation was provided by the father;

h) The father has been deceitful with the society as to where is has been living and admitted that he was living in the mother's home although he claims they are separated as he is only staying there;

i) The father's employment is unclear. In the past he indicated that he would be home with the children and only work week-ends but in December 2015, E. reported that their mother was taking care of them because her father had to work;

j) There is no evidence that the father has gained any insight or taken any responsibility for the past events that resulted in the children coming into care twice;

k) Although the access visits are generally positive, the father does not intervene if J. has a tantrum and leaves it to E. to soothe J. Further, despite E. stating many times that the father shows favouritism to J. and gives into him when he has a tantrum, the father does not acknowledge her feelings but deposes that he does not believe this and feels the foster mother is making it up so she can adopt the child; and

l) E. has not expressed a desire to return to the care of her father and to live again with her extended family.

7. Analysis

7.1 Are There Ongoing Protection Concerns?

[114] The chronic neglect and the physical needs of the children have now been addressed as a result of the intervention of the society and the care the children have received in the care of the society.

[115] However, neither parent has accepted responsibility for the state of the children when they were apprehended. When the children were placed in the father's care in May 2015, it was the society's belief that the father had begun to understand the severity of the issues that resulted in the children being placed into the care of the society and that he had begun to accept responsibility for not taking action sooner in protecting the children.

[116] However, in his affidavit filed on this motion the father deflects responsibility for the physical condition of C. on apprehension that resulted in him being admitted into the hospital and blames the family doctor. But he fails to explain why he did not seek out a second opinion or take other steps to ensure that the child's needs were being met. He assumes no responsibility for the fact that both C. and J. were assessed as failing to thrive. He assumes no responsibility for not observing E.'s neglectful condition or the fact that her dental needs had not been met.

[117] He assumes no responsibility for exposing the children to the conflict and domestic violence between himself and the mother. He assumes no responsibility for leaving the children with the mother and the fact that she physically disciplined and yelled at all of the children. He assumes no responsibility for not ensuring that the mother's mental health was being monitored by a psychiatrist and she was complying with medical advice.

[118] With respect to the events leading to the second apprehension of the children from his care, the father blames the mother, the society and his lack of understanding of the terms of the supervision order. He blames his former lawyer and the society for not explaining the terms of the supervision order. He blames the society for the terms of the supervision order not being interpreted. He claims that there were times that the society worker attended at his home without an interpreter.

[119] However, I note from the endorsements that the father had the benefit of a court appointed interpreter when the Statement of Agreed Facts was signed and no issue was raised with respect to the lack of appropriate interpretation or that he did not understanding the terms of supervision that were explained on more than one occasion both in court and outside of court. At every attendance at court a qualified interpreter was present and the father never raised any issues with his lack of understanding the terms of supervision. Further, it is clear from the affidavit of the society worker that she attended at the home on almost all instances with an interpreter and an interpreter and an interpreter was present at the access visits. There is no indication that the father ever asked for clarification of the terms of supervision.

[120] Presently E.'s physical needs are being met. E.'s emotional needs are being addressed through the assistance of her foster parents and through counselling. However, E. continues to have emotional issues that require caregivers that are sensitive to those issues.

[121] J. and C.'s physical needs were addressed by the care they receive in foster care. Although J. is attending counselling for some concerns about his aggressive behaviour, overall both J. and C. are doing well and have no special needs.

[122] I find that the evidence is overwhelming that there are ongoing protection concerns. The risks that resulted in the children being apprehended from both parents in November 2013 and the risks that resulted in the children being apprehended from the father and paternal grandparents in December 2015 continue. Neither of the parents have shown any insight into the issues that resulted in either apprehension. Quite remarkably, despite the fact that the children had been in foster care from November 2013 to May 2015, the father after being given the opportunity to parent the children, permitted the mother unauthorized contact, permitted the mother to be the primary caregiver and continued to expose the children to the conflict between the parents. According to E., the mother continued to yell and swear at the children and hit them. Therefore, the concerns of risk of both emotional and physical harm that resulted in the children being brought into care initially again resulted in them being removed from the father's care in December 2015.

[123] Neither the mother nor the father have accepted responsibility for the neglect and the physical and emotional harm suffered by the children. They have not shown any insight into the effect of their behaviour on the children and the effect of their breaches of the terms of the supervision order that resulted in the children being again placed in foster care.

[124] The father is unable or unwilling to set appropriate limits and boundaries with the mother. There is no indication that the father understands the negative impact the mother's behaviour has had on the children. The nature of the relationship between the parents remains unclear and this continue to put the children at risk of harm.

[125] Despite the mother's position that she agrees with the children being placed with the father and that she only have supervised access, as recently as November 2016, the mother was telling the society worker that she wished the children to be placed in the care of both parents and that they would live together. The mother also told the society worker that she feels that the parents should be given another chance to parent the children. The mother confirmed that as recently as September 2016, the parents were still residing together.

[126] The combination of the mother's belief that the children should be placed with both parents and the father's inability to control the mother places these children at significant ongoing risk of harm.

[127] In view of the children's past parenting and the ongoing inability of either parent to recognize or meet their needs, the children continue to be at risk of both physical and emotional harm and ongoing intervention of the society is necessary.

7.2 What Disposition is in the Children's Best Interests?

[128] The children have been in the accumulated foster care for 2 years and almost 6 months. J. and C. are under 6 years old and have therefore been in care for over the statutory time limit of 1 year. E. is over 6 years old and she has been in care over the statutory time limit of 2 years. The options are either return to the father with or without supervision or an order for Crown wardship with or without access.

[129] There is undisputed evidence that the society attempted to assist the father with finding a safe alternate plan for the care of the children prior to the initial apprehension. After the children were apprehended the society assisted both parents by encouraging them to attend for couples counselling with a culturally appropriate service provider and encouraged both parents to attend for individual counselling and parenting programs. The society arranged for the parents to participate in the therapeutic access program and encouraged the mother to continue to attend with her psychiatrist and to continue to follow medical advice with respect to taking her medication.

[130] The society also considered less disruptive alternatives and community placements by working with the father and the paternal grandparents and agreeing to place the children with them. Unfortunately, due to ongoing breaches of the supervision order that placed the children at risk, the children were subsequently removed and again placed into the care of the society. The society continued to explore other family plans as presented.

[131] It is submitted by father's counsel that the court has the discretion pursuant to subsection 70 (4) CFSA to extend the statutory timelines to enable the children to remain in care so that there could be more time for the children to transition to living with the father and for the father's new plan to be solidified. However, the existing case law requires unusual, exceptional or equitable considerations to trigger such an extension. The extension should be in the children's best interests, understanding the importance of promoting stability in the lives of children.

[132] I find that in view of the length of time the children have already been in care and the opportunities the father has already had to present a viable plan, it is not in the children's best interests to extend the time any further that they have been in care.

[133] I find that there is overwhelming evidence that it is the children's best interests to be made crown wards and that a trial would not change the outcome of this conclusion. I find that the society has met the onus on it to show that there is no genuine issue requiring a trial on the issue of whether or not the children should be made Crown wards.

[134] The mother has not presented a plan for the children. However, this is not a result of her accepting that she is not capable of caring for the children or that she accepts that she caused them significant harm in the past or that she continued to cause them harm when she was involved in their care in around December 2015, that ultimately resulted in the children being removed from the father's care. She denies any breaches of the supervision order and denies the statements made by E. about her neglect or harm to the children.

[135] With respect to the father's latest plan, this is the fourth plan he has presented and most concerning it is almost the same plan that the court and society previously accepted as meeting the needs of the children. The father and paternal grandparents showed that they could not be entrusted to comply with the basic terms of that supervision order to ensure the children would be safe. The father again exposed the children to the care of the mother despite being aware that this was the essential term of the supervision order. Although both parent initially denied the mother was left alone with the children, the mother later admitted this to the society worker as E. had already told the worker this information. However, the father continued to deny the breaches or at other times deposed that he did not understand the terms of supervision.

[136] Since the children were again placed in foster care in December 2015, the father has again been untruthful with the society with respect to his relationship with the mother.

[137] I am able to make these finding based on the affidavit evidence filed and without reliance on the expanded powers in FLR 16 (6.1).

[138] The father has had over two years to present a viable plan to meet the needs of the children and he has not done so. The children should not be required to wait any longer for the father to solidify yet another plan or to gain the insight necessary to meet the needs of the children. Although the father is able on access visits to meet the basic needs of the children such as playing with them and providing them with a meal, he is not able to meet the emotional needs of these children or to provide them with a stable and permanent plan.

[139] I find that the society has met its onus to prove that a trial is not required to determine that the children be made crown wards. The result is based on the material facts before the court and is a foregone conclusion.

8. Applicable Law and Legal Principles Regarding Access

[140] Once an order for Crown wardship is made, the focus of the CFSA shifts to establishing a permanent and stable placement, preferably through adoption. The society is mandated by subsection 63.1 CFSA to make all reasonable efforts to assist children to develop a positive, secure and enduring relationship within a family through either adoption or a custody order.

[141] Having determined that an order of Crown wardship is the order that is the least disruptive order available and appropriate and consistent with the children's best interests, the next issue for the court to determine is whether there is a genuine issue for trial on the issue of an order of access.

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

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

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

(b) the ordered access will not impair the child's future opportunities for adoption.

[143] The onus to rebut the presumption against access to a Crown ward is on the person seeking access. However, in a summary judgment motion, the onus is on the society to prove that there is no genuine issue for trial.

[144] I adopt the analysis of Justice Spence in the case of Children's Aid Society of Toronto v. R.C. with respect to the test for post-adoption access in the context of a summary judgment motion; namely, that the society must satisfy the court that the mother and father would be unable to prove at a trial that access would be beneficial and meaningful for the children and that they would be unable to prove at trial that an order for access would not impair the children's opportunity to be adopted.

[145] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J. where he stated:

What is a "beneficial and meaningful" relationship in clause 59(2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59(2) (a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[146] As Justice Quinn remarked in the case of M.J. supra, it is not enough that there are some positive aspects to the relationship, or that visits are enjoyable, there must be some significant advantage to the child.

9. Evidence with Respect to Access

[147] When the mother was exercising access to the children, the family service worker Valerie Sparrow-Downes deposes that the mother consistently attended visits and always came prepared with food for the children.

[148] However, there were many negative aspects to her visits as follows:

a) the children were exposed to significant conflict and dysfunction in the relationship between the parents;

b) the mother largely ignored E.;

c) the mother was negative and blaming in her interaction with the children;

d) the mother was unable to read the cues of the children;

e) the mother struggled to make conversation with the children;

f) the mother had difficulty keeping the children safe; and

g) despite receiving ongoing education and support, the mother had difficulty setting limits with the children.

[149] The mother did not respond to this evidence.

[150] According to the affidavit of Ms Sparrow-Downes, and my review of the access notes, the positive aspects of the father's visits are as follows:

a) He always comes on time and attends consistently;

b) He always brings food and toys for the children;

c) The visits are child focused; and

d) The children are happy to see their father.

[151] There are some negative aspects to the access visits as follows:

a) Several times, E. intervened and parented one of her brothers when they become upset or frustrated. The father did not redirect E. or apply any discipline in response to the either C. or J.'s behaviour;

b) The society worker needed to enter the access room to calm J. down who was screaming and yelling and having a tantrum as the father was unable to calm him down; and

c) E. was continually complaining and upset that the father gave into J. to stop him from having a tantrum. E. said that this had also happened when they lived at home and that her parents did not care about her feelings and that is was unfair. The father did not accept that this was an issue.

10. Analysis

[152] It is submitted by E.'s counsel that there is a genuine issue for trial with respect to access for both the mother and father. Counsel relies heavily on the fact that E. has stated that she wishes access to both of her parents and that it is in her best interests to have such access.

[153] Both mother and father agree with the submissions of counsel for E. The father did not provide any specific proposal for access and such a request was not made in his Answer as his focus was on the return of the children to his care.

[154] Counsel for E. seeks an order for access to her father at a minimum of 6 times a year, access to her mother in accordance with E.'s views and preferences and sibling access, including face to face contact, to both her brothers.

[155] Dealing with the first branch of the test, although I agree that an analysis of whether a relationship is "meaningful and beneficial" may include some consideration of a child's wishes for access, it is only one factor to be taken into consideration.

[156] With respect to the mother, none of the children have seen the mother since December 2015, there is no evidence of an existing relationship that is meaningful or beneficial to the children at the present time. There were serious concerns about the relationship between the children and the mother when she was caring for the children and the quality of that relationship when she was seeing them on access visits. Some hope that in the future the mother may establish a relationship with the children or the comment by E. that in the future she will wish to have contact with her mother, is in my view not sufficient evidence.

[157] In the case of D.D. v. Children's Aid Society, the court held that the trial judge had been correct in finding there was no existing meaningful and beneficial relationship in circumstances where a child had not had contact with a parent for 21 months. The court noted that in the future if the child changed his mind that section 59 (4) of the CFSA allows a society to facilitate contact between a child who is a Crown ward and parent. Also a society, any time before an adoption order is made may apply for an openness order, despite the Crown ward order, pursuant to section 145.1 (1) of the CFSA if the society feels that such an order is in a child's best interests. I adopt this reasoning to the facts of this case.

[158] I find that the society has met its onus of proof that there is no genuine issue for trial with respect to access to the mother on the first prong of the test in section 59 (2.1) (a) of the CFSA.

[159] With respect to the father, he has been exercising access that the children find enjoyable but based on the case law this would not be sufficient to establish that the relationship was meaningful and beneficial. However, I have considered that E. wishes ongoing contact with her father and that she seems to find such contact meaningful to her. I have also considered that with ongoing access to the father, the children have the advantage of being exposed to their culture, identity and their family roots. I find that the father can meet this aspect of the test for access; in other words I find that the society has not established there is no genuine issue for trial with respect to the first prong of the test in section 59 (2.1) (a) CFSA.

[160] However, with respect to the second prong of the test, I find that there is clear evidence that an order of access to the father will impair the children's future opportunity for adoption.

[161] It is the position of the foster parents that they wish to adopt all 3 children but they will not proceed with the adoption if there is an order for ongoing access to either parent. It is undisputed that the children are settled into this foster home and all of their needs are being met by the foster parents.

[162] It is the position of the counsel for E. that the position of foster parents is contrary to E.'s wishes, is not child focused and indicates that they are not committed to the children.

[163] Counsel for E. submits that there is a triable issue as to whether or not an access order will impair adoption because:

a) E.'s strong views and preferences and the requirement that she will need to consent to any adoption;

b) The lack of supports and resources that have been provided by the society to the foster parents who have not yet been approved as adoptive parents; and

c) The likelihood of contact in any event given E.'s age and the advent of social media; and

d) The need for detailed consideration of different possible forms of access and terms of access orders in relation to the "impair adoption" test.

[164] It is submitted by counsel on behalf of the foster parents, that in the event E. wishes to reach out to her biological parents through social media then like any other parent they will deal with that issue when it arises. In the affidavits of the foster parent they outline their reasons for not wishing any access order. I agree with society counsel that there is no statutory onus on the foster parents who wish to adopt children to explain their reasons for not wanting the court to make an access order. However, I would note that the reasons are thoughtful and child focused.

[165] Although E. has expressed a desire to have ongoing contact with her father, it is abundantly clear that such contact would impair the opportunity to be adopted by the foster parents. Counsel for E. submitted that perhaps she could be adopted by another family that was open to access. Such a submission was totally not focused on what was best for this particular child or for the other children.

[166] Further, although E. expressed a wish to have ongoing contact with her family, she was not prepared to choose between being adopted and remaining in her foster home and having ongoing contact with her father. It appeared from the affidavit of Ms Noble that E. felt this choice was up to her and that was causing her some distress. I have some concerns in reading Ms Noble's affidavit that it was not made clear to E. that the decision was not up to her but ultimately up to the court.

[167] Further, although it is submitted on behalf of E. that Dr. Fitzgerald gave clear evidence in his assessment about the importance of E. maintaining her relationships with her family. I find that that submission is not an accurate statement. At the time of the assessment there was no plan for adoption and Dr. Fitzgerald concluded that E. could transition to an adoptive home and some form of contact with her father. However, the most important statement in his assessment was that, "...going forward it seems that it is important to do everything possible to ensure permanency and stability in E.'s life, while providing her with the care, nurturance and support that she needs in order to go forward with her development in an optimal manner."

[168] I have outlined the evidence with respect to E.'s wishes because of the emphasis by E.'s counsel on this issue. However, the focus of the test under section 59 (2.1) CFSA is very narrow and the consideration of best interests including a child's wishes are not mentioned. As stated in the case of Children's Aid Society of Toronto v. T.L. and E.B.:

..the focus of section 59 (2.1) is very narrowly focused on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59 (2.1) that the wider best interests tests of section 37 (3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to a parent's care and who are adoptable lie in a permanent family placement by way of adoption of a custody order.

[169] With respect to the alleged failure of the society to provide the foster parents with information regarding the benefits of post-adoption access, this is not a part of the statutory test nor is it relevant or material to the test.

[170] With respect to the possibility of E. not consenting to the adoption if it continues to be the position of the foster parents that they will not agree to adoption, it is clear that whether or not she will consent is also not part of the statutory test. E. is entitled to be given the opportunity to be adopted and to be given the time and preparation to make that decision.

[171] Counsel for the child also submitted several case where the courts have developed factors that have been considered to determine whether or not that might impair adoption. However, those cases are not relevant as the court did not have a specific adoptive family being identified and the court was speculating as to whether or not any possible adoptive family might be dissuaded by an existing access order.

[172] However, in this case, the court does not have to guess about the identity of an adoptive family or their feeling about access. It is known. The foster parents support an order of Crown wardship no access. In its factum, counsel for the society has provided several cases with a similar scenario and where the court concluded that it was obvious in face of the prospective adoptive parents' position that the adoption would be impaired if an access order was made.

[173] In the case of Children's Aid Society of the Regional Municipality of Waterloo v. C.M. and B.J.V. the Ontario Court of Appeal dismissed the appeal from the decision of the trial judge who had made the children Crown wards without access upon being advised that the prospective adoptive parents, who were the children's foster parents, would not proceed with the adoption if an access order was made. The decision of the trial judge that in those circumstance an access order would impair the children's prospects for adoption was upheld on appeal.

[174] Accordingly, I find that the society has met its onus that any order of access will impair the opportunity for adoption for these children. There is no genuine issue for trial on this issue.

11. Delay

[175] In the Children's Aid Society of the Regional Municipality of Waterloo v. C.M. and B.J.V. cited above, the Ontario Court of Appeal expressed strong concerns about delay in child protection proceedings and that it is the responsibility of judges, administrators and counsel to take responsibility for ensuring that there is adherence to the statutory timelines. These children have been in foster care for almost two years and half years. It was reasonable and in accordance with the principles of the legislation that the father was given an opportunity to have the children returned to his care after the first apprehension however, having failed to meet the needs of the children, it is now in the children's best interests to be able to have a permanent and stable home.

[176] I am concerned that the approach to this case by the Office of the Children's Lawyer has only exacerbated an already difficult situation. I can appreciate the policy position of the Office of the Children's Lawyer with respect to ensuring that children have a strong voice in court proceedings and the benefit in general of ongoing contact to biological parents, but one needs to be practical and realistic and assess the best interests of the particular children before the court. The threat of ongoing litigation has already influenced the foster parents to take a position of not agreeing to any ongoing access to either parent and I am concerned that if there is the threat of even further litigation that the best hope these children can have for a stable and permanent home together will be lost.

[177] I urge all parties to seriously consider the best interests of these children despite their disappointment in the outcome of this case.

[178] Counsel for the society in her reply submissions, indicated that the society would agree to sibling access in the event that the children were separated, and in the hope of avoiding any further delay or further court proceedings.

12. Order

[179] Order as follows:

1. The children E.P., J.P. and C.P. shall be made Crown wards without access to their parents, C.J.W. and S.P.

2. The children shall have access to each other and each child shall be the holder of such access.

Released: March 31, 2017

Justice Roselyn Zisman