WARNING

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

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

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

The court may make an order,

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: May 31, 2017

Court File No.: C81467/15

Between:

Children's Aid Society of Toronto Applicant

— AND —

C.D. Respondent mother

H.I. Respondent father (of child T.D.)

A.W. Respondent father (of child A.D.-W.)

Before: Justice Roselyn Zisman

Heard on: April 25, 2017

Reasons for Judgment released: May 31, 2017

Counsel

Justine Sherman — counsel for the applicant society

Barry Nussbaum — counsel for the respondent mother

H.I. (father of T.D.) — noted in default and not in attendance

Fathima Zeenath Zeath — counsel for the respondent father (of child A.D.-W.)

Zisman J.:

Introduction

[1] This is a summary judgment motion brought by the Children's Aid Society of Toronto ("the society") seeking findings that the children, T.D. born […], 2015, and A.D.-W. born […], 2016 ("the children" or individually "T." or "A.") be found in need of protection pursuant to clause 37(2)(b) of the Child and Family Services Act ("CFSA") and be made crown wards without access for the purpose of adoption.

[2] The Respondent C.D. ("mother") is the biological mother of both children. She is not opposed to the orders sought by the society. However, she is hopeful that the children can remain in their current foster home on a permanent basis. If the summary judgment motion is dismissed and there is a trial with respect to the Respondent A.W.'s plan for A. then she would be seeking an order of access.

[3] The Respondent H.I. is the biological father of T.D. He was noted in default on February 14, 2017 and did not participate in this motion.

[4] The Respondent A.W. ("father") is the biological father of A.D.-W. He is opposed to both the finding and disposition sought by the society with respect to his daughter A. It is his position that there are triable issues requiring a trial. He agrees to the finding with respect to the child T. [1]

[5] No party opposed the Statutory findings with respect to both children.

[6] 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 the children are in 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 the parents should have access to the children?

[7] The society relied on its factum, Amended Status Review Applications for both children, Toronto Service police records, the mother's Ontario Disability Support Program ("ODSP") records, Oakdale Medical Records and the Toronto Public Health Records. The society also relied on the reports of practitioners namely, psychiatric report by Dr. Rob Nicolson dated January 11, 2002, Vineland Adaptive Behaviour Scales dated April 3, 2000 and psychological Assessment by Dr. Marion Eals dated February 4, 2000.

[8] The society relied on the following affidavits:

• Anita Owusu (intake worker) sworn October 23, 2016
• Parag Ray (family service worker) sworn October 23, 12106 redacted version
• Shannon Deacon (TAP supervisor) sworn October 27, 2016
• Corinne Fadyshen (current family service worker) sworn October 26, 2016 and December 16, 2016 redacted versions
• Carmela Macedonio (access worker) sworn October 26, 2016 redacted version and December 22, 2016
• Mary-Anne Vanderplyum (duty worker-brief involvement) sworn October 27, 2016
• Marcia Duncan (child service worker) sworn October 27, 2016 and January 18, 2017 and rely affidavit sworn April 13, 2017
• Arshdeep Singh (family service worker for K.M.-W. sister of Respondent A.W.) sworn April 12, 2017
• Luc Drouin (kinship worker) sworn December 22, 2016 redacted version

[9] The mother relied on her Amended Answer and Plan of Care and affidavit. [2]

[10] The father relies on his Amended Answer and Plan of Care and his affidavit sworn March 29, 2017 and the affidavit of C. M.-W., the paternal grandmother of the child A. ("paternal grandmother") sworn January 11, 2017.

Background

[11] The child T. is the child of the mother and the father H.I. She was apprehended on […], 2015 at birth and has now been in care for 22 months.

[12] The child A. is the child of the mother and the father A.W. She was apprehended on August 4, 2016 and has now been in care for 9 months.

[13] The mother was involved with the Bruce Grey Child and Family Services with respect to her first born son, J.F.D.D. born on […], 2010. On May 31, 2012 the child was found to be a child in need of protection pursuant to sections 37(2)(b)(i) and (g) of the CFSA and was made a Crown ward with no access.

[14] On June 6, 2015 the society received a referral from the Bruce Grey Child and Family Services that the mother had been hospitalized due to complications with her pregnancy. The concerns outlined related to the mother's mental health, cognitive capacity, anger management, lack of resources and child protection history regarding her first child.

[15] The society initiated its Protection Application based on these concerns seeking a 6 month society wardship order. On August 24, 2015 a temporary without prejudice order was made placing T. in the care of the society with access at the discretion of the society but at a minimum of twice a week.

[16] The mother proposed various kin plans that were either withdrawn by the kin or the kin did not follow through.

[17] The father H.I. requested a paternity test and had one visit with T. in August 2015 and then had no contact with the society. He was noted in default on February 18, 2016.

[18] In April 2016, the society amended its Protection Application to seek an order of Crown wardship without access.

[19] The mother filed an Amended Answer and Plan of Care in July 2016 for T. to be placed in her care or in the alternative she proposed two plans. The first plan was with the mother's friend. The mother's friend subsequently withdrew her plan. The mother's other plan was with the mother's adopted mother who resides in Jamaica but was planning to return to Canada.

[20] A. was born on […], 2016 and was apprehended at birth. On August 9, 2016 a temporary without prejudice order was made placing A. in care of the society with access to the parents supervised at the discretion of the society and at a minimum of 3 times a week.

[21] The Protection Application regarding A. sought an order of Crown wardship without access based on the historic and ongoing child protection concerns about the mother. The society further stated that the mother had described the father as being abusive towards her but refused to move to a shelter or report these concerns to the police.

[22] At a case conference held on September 13, 2016, the father, who was incarcerated but participated by telephone conference call, proposed a plan with the paternal grandmother of the child until he was released from jail and then with himself or with the paternal grandmother. The paternal grandmother consented to the release of her records with the society and the society indicated that it would investigate the plan.

[23] On September 13, 2016, a summary judgment motion date for November 16, 2016 was set with respect to T.

[24] In September 2016, the mother filed an Answer with respect to A. seeking an order that A. be placed with her and that she would be living in the home with the father and his family or in the alternative, that A. be placed in the care of the paternal grandmother.

[25] In October 2016, the father filed his Answer and Plan of Care seeking an order that A. be placed in his care once he was released from jail or in the alternative in the care of the paternal grandmother. In both plans, the father would be residing in the home of the paternal grandmother with his sister and her 4 children and the mother would also reside there.

[26] In November 2016 the mother filed a further Amended Answer and Plan of Care seeking an order that T. be placed in the care of the paternal grandmother.

[27] The summary judgment motion scheduled for November 16, 2016 did not proceed as the society was assessing the paternal grandmother's plan. On consent, the temporary care and custody motion regarding A. was also adjourned.

[28] On January 5, 2017 the paternal grandmother's motion to be added as a party to both child protection proceedings with respect to T. and A. was dismissed.

[29] On January 23, 2017 an order was made that the society proceed with its summary judgment motion for both children T. and A. and a hearing date of April 25, 2017 was set with a new timetable for filing materials.

[30] Counsel for the society had earlier brought several motions for production of records that proceeded on consent.

[31] Counsel for the parties agreed on redacting portions of the affidavits that contained hearsay that was being relied upon by the society for its truth. They also agreed to redacting portions of the police occurrence reports regarding the father that contained hearsay and opinion evidence from the investigating officer.

Mother's Mental Health and Cognitive Limitations

[32] Based on the ODSP and medical records filed on this motion, on February 16, 2004 there was a finding that the mother was a person with a disability. No review of her status was recommended as her disabilities would be lifelong.

[33] The ODSP records indicate that as a result of her cerebral palsy, the mother's mobility and communication are severely impaired. The records also indicate that the mother has an intellectual disability that has resulted in a severe impairment in all activities of daily living, including self-care, social interactions, communications, education, and her occupational functioning. The records indicate that the mother will not be able to live or work independently. There was a verification of atypical psychosis.

[34] On her application for ODSP, the mother wrote that as a result of her cerebral palsy she has a weak left side and has a hard time washing her hair and dressing and that some people have a hard time understanding her speech which is affected by her cerebral palsy. The mother also wrote that she had a psychiatric disorder and that the medication Risperidone helps control it.

[35] The ODSP Application was prepared by Dr. Nicolson, a psychiatrist the mother had been seen over several years. Dr. Nicolson's discharge summaries were included as was a psychological assessment report of Dr. Blake. The reports confirmed that the mother was functioning at a moderately delayed range. When she was 17 years old, she was assessed at functioning at a Grade 1 to 4 level. Dr. Nicolson's report stated that if the mother took her medications regularly her behaviour and disposition were improved but that without the anti-psychotic medication she did not do well.

[36] The other psychiatric and psychological assessments and reports filed essentially confirm the mother's many challenges. The mother was hospitalized in the past for hearing voices and her behaviour was assessed as meeting the criteria for oppositional defiant disorder and conduct disorder. In 2002, when the mother was 16 years old she was functioning at a range of between 3 years and 10 months to 9 years and 8 month range. With respect to communication, daily skills socialization and motor skills, it was opined that the mother's poor understanding of what was being said could be the reason with her poor behaviour and acting out.

[37] The mother on many occasions denied to various society workers that she had any mental health challenges and that all of the reports were wrong. She also told the workers that she was not taking any medication.

Domestic Violence

[38] The mother told several workers, her doctor and the public health nurse that she had a history of domestic violence with the father A.W.

[39] However, the mother later denied some incidents and stated that there was only verbal conflict. The father also denied any physical abuse; but he confirmed that the relationship was conflictual and that they argued over finances, behaviour and their relationship.

[40] On April 26, 2016 the mother disclosed to Corinne Fadyshen, the family service worker that the father had assaulted her a few days earlier by kicking her in the leg and spitting on her and that this was not the first time he had assaulted her. Although she did not report the assault to the police she did report it to her doctor.

[41] The mother told Ms Fadyshen that she had not reported the incident to the police as the father had threatened to kill her or send some of the his friends who were in a gang after her.

[42] The mother also told Ms Fadyshen that the father is very controlling and takes her money and that the paternal grandmother went through her belongings and called her names.

[43] The records of Dr. Varathalingam confirm that on April 22 and 23, 2016, the mother disclosed that the father had been abusing her since January 2016 and that the father's sisters and mother were aware of this. The mother reported that the father had kicked her in the legs and pulled her hair yesterday and she was experiencing pain in her left leg. The mother also reported that in the last month, the father had kicked her in the stomach and another time tried to push her down the stairs but was unsuccessful. When the doctor asked her about past physical abuse, the mother said that it happened so many times that she could not recall the amount of time. The mother was worried about the safety of her unborn child. The mother also said that she never reported the incidents to the police as she needed a place to live and wanted to find her own place before moving.

[44] On April 26, 2016, the mother again met with Dr. Varathalingam and disclosed thoughts of self-harm and suicidal thoughts though she was not planning to act on this. The mother said that she was not coping with her boyfriend A.W.'s abuse. The doctor assessed physical abuse and suicidal risk. As the mother was refusing to go to the hospital, he filed a Form 1 and contacted the police.

[45] The mother was later assessed in the emergency department of the hospital and released. The mother denied any abuse in the relationship with her boyfriend. The mother stated that she only made the comments because she was overwhelmed and was trying to express her distress rather than true suicidal intent. The mother did not disclose any previous psychiatric history even though there was a report of a suicidal attempt when she was a teen ager and a diagnosis of psychosis and conduct disorder. The mother was discharged but given an appointment with the Urgent Care Clinic to connect her with outpatient support.

[46] Carmela Macedonio is a child and family youth worker who was working as a family support worker and involved in supervising access visits for the mother. On July 14, 2016 following a visit, the mother told her that she was "done with A. (the father) and his family". When asked to explain, the mother said that she is being abused by all of them and that they take her money so she is left with nothing. The mother reported that the father's mother and sister pushed her outside of the house because she and the father were arguing.

[47] The mother met with the health nurse several times in July 2016. On July 5, 2016 the mother disclosed that she had no permanent housing and was staying with her ex-partner (the father) and his family. She disclosed the relationship "as abusive for the last 7 months, verbal and physical."

[48] On July 26, 2016 the mother again met with the public health nurse and disclosed that she was being physically abused by the father and requested help finding shelter information as she was living with a friend and had to leave that residence. The mother did not want to go to a shelter as she had been hurt and beaten up at a shelter before and was worried that she would have to return to live with her abusive boyfriend or stay on the street. The notes of the public health nurse indicate that the mother was teary eyed throughout and after breaking down in tears also disclosed that she had not eaten for a week due to her arms being so badly beaten by the father.

[49] On […], 2016 the public health nurse went with the mother to the emergency department of the hospital after the mother disclosed that the father had physically assaulted her. The records of the public health nurse indicate that she saw injuries on the mother's arm and leg. The mother had a cast put on her finger when she went into labour.

[50] On August 4, 2016 the public health nurse called the family service worker to advise that the father had assaulted the mother and her finger was broken and she had a cast.

[51] During a meeting held on August 5, 2016 Ms Fadyshen and her supervisor met with the mother, paternal grandmother and paternal aunt to discuss the concerns about domestic violence and adult conflict. The mother denied that the father hit her and she said that she had an anger problem and took it out on the father. With respect to the mother's injury to her hand, the paternal aunt stated that the father and mother were play fighting when the mother injured her finger and that the mother punched a wall.

[52] The father in his affidavit confirmed that in July 2016 the family was tired of the mother and the father arguing and pushed them both outside of the house. The father denied there was any physical abuse and explained the injury to the mother's finger because the mother and the father were "play fighting", the mother became too aggressive, he then went outside and the mother put her hand through the wall.

[53] In September 2016, the mother told Ms Macedonio that the father was treating her better after their daughter was born and would have continued to treat her better if he had not gone to jail.

[54] All of the professionals involved recommended that the mother move out of the home to a shelter or find other accommodations.

[55] Although the mother agreed with the society's position, counsel for the mother advised the court that the mother denied that the father broke her arm.

Police Involvement

[56] The mother has some minor involvement with the police. In 2014, she was charged with theft under $5000 involving taking someone's cell phone. That charge was subsequently withdrawn. She was also detained for shoplifting but was released unconditionally.

[57] According to the police occurrence reports, the father has been known to the police since 2009. The father was arrested on May 30, 2014 with respect to 13 charges that were alleged to have occurred from February to May 2014 related to commission of an offence for criminal organization, possession for the purpose of trafficking and trafficking in drugs. The father was subsequently released on a recognizance. On January 25, 2015 he was also charged with failing to comply with the terms of his recognizance and possession of a controlled substance. All of the charges were resolved on August 22, 2016 with a guilty plea to one charge of trafficking in cocaine and he was sentenced to 7 months in jail and probation for 2 years. He was given credit for 60 days in pre-trial custody.

[58] In September 2016, the police investigated a complaint that the school staff observed a deep scratch to the father's nephew's hand. The child O. reported that his mother, who is the paternal aunt K.M., had scratched him because he was not listening and that he was routinely slapped on the back of the head when he does not listen. O. then reported that his mother did not hit him anywhere else but then changed his story to say his mother hit him with a belt on the bum. O. also reported that C.D. (the mother) who lives with them recently chased him and punched him in the chest when she caught him. The police cautioned both O.'s mother, who is the paternal aunt and the mother about assault and discussed the law around the use of physical discipline. No charges were laid and the police noted that the children's aid society had an open file with the family.

The Mother's Access

[59] The mother's visits with T. were scheduled for twice a week for 2 hours and then increased to 4 hours a week for the mother to participate in the TAP program.

[60] The mother was referred to the Therapeutic Access Program ("TAP"). Shannon Deacon, a child protection worker, is the coordinator of TAP. TAP is a teaching program operated by the society that helps child protection workers to create and implement therapeutic access plans for the families they serve.

[61] The mother was referred to TAP and participated in TAP access from December 4, 2015 to January 11, 2016. The mother was offered 2 visits a week for 4 hours for 6 weeks that is, 48 hours of parenting and teaching time.

[62] Based on the assessment of Ms Deacon, the mother was committed and came to almost all of the sessions prepared with many items for T. She appeared to enjoy her time with the child and was affectionate.

[63] However, the mother was unable to regulate her emotions and often appeared to be angry or sad when workers attempted to engage her. She often then presented to T. with a flat or angry affect causing T. to experience her mother's sadness and stress. At times, the mother's own affect distracted her from reading T.'s cues and feelings. The mother was not amenable to interventions and had difficulty following directions and applying information about parenting provided to her. The mother struggled with society supports but also with her own personal supports.

[64] Ms Deacon concluded that although the mother was committed to T. she had difficulty reading and responded to the baby's cues and regulating her own emotions. The mother struggled to develop insight necessary to give her daughter different experiences and was not open to the interventions provided to her. It was Ms Deacon's opinion that the child would continue to be a risk of physical and emotional harm in the care of the mother.

[65] With respect to the observations of the society workers who supervised access, several positive aspects were noted. The mother followed the routines set out by the foster mother and read the communication book sent by the foster mother. The mother displayed affection towards T. and demonstrated a concern for her well-being as well as a desire to engage T. in activities that would stimulate her development.

[66] However, there were many negative aspects to the visits. The mother struggled to manage her anger and frustration in the presence of T. during visits and at times, spoke to T. abruptly and in an inappropriate tone. For example, on a visit in July 2016, T. began to fuss and cry, the mother told her to "stop it" and then told T. to "quit it, your attitude stinks". The mother became frustrated as T. began to squirm and cry louder and the mother said loudly again "to quit it" and pushed the high chair away, rolling it back from her. The mother then just sat and stared at T. and did not reply to any suggestions to reengage with T. until finally the mother did become involved with the child.

[67] The mother exhibited anger towards society staff that then interfered with her access. For example, on August 23, 2016 Mary-Ann Vanderpluym was assigned to supervise the mother's visit as the regular worker was unavailable. As she was aware that the mother did not manage change well, she tried to introduce herself to the mother and explain the situation. Despite many attempts to interact and calm the mother down, the mother raised her arms, ran towards her and was shouting in a confrontational and threatening tone. Security staff needed to be called and the mother's visit was cancelled. At a subsequent meeting held to discuss this incident, the mother agreed that she had difficulty controlling her anger with society staff and agreed she would try to control her anger. Anger management classes were recommended.

[68] The mother also required support during the visits. The mother's own emotions, at times, inhibited her from being able to meet T.'s basic needs. For example, there were multiple incidents when the mother was upset with the society as she had not received enough TTC tokens, or was angry because the society arranged for T.'s health card or she was upset with what T. wore and then spoke harshly to T. or neglected her if she was fussing or crying or did not burp or hold her. During one such visit, when asked to be mindful of her harsh tone of voice, the mother said, "it's no one's business how I speak to my kid. I can speak any way I want to."

[69] With respect to visits with A., on August 10, 2016 the mother asked many questions to Mary Duncan, who was the child service worker, about why the workers were not allowing her to have combined visits with T. and A. Ms Duncan explained that due to the young ages of the children and the fact that the mother needed a lot of supports from workers during access visits that combined visits were not being recommended. The mother continued to say that she always managed her children. Ms Duncan had to ask the mother to focus on her visit with A. and make the best of the visit and reassured her that the society would continue to assess her request for combined visits.

[70] On August 16, 2016 Ms Duncan did observe a combined visit. The paternal aunt was also present. The mother managed with the assistance of the paternal aunt to meet the needs of both children. The mother kept telling T. to "be nice, you're not the only one" and told her she now had a sister.

[71] There are no changes noted in the mother's parenting abilities during subsequent access visits.

The Father's Access

[72] The father did not attend any access visits until January 2017 as he was in jail. Since his release, the father has been attending regularly for access.

[73] The society does not dispute that the father comes on time and is prepared for visits. He presents as a loving, caring and attentive father during his fully supervised visits.

Services Offered to the Mother

[74] Prior to the apprehension of T., Anita Owusu [3], the intake worker met with the mother to discuss her plan for the baby. The mother expressed her past distrust of the society but agreed to meet with the society if her supports Ms. M. who is her aunt and her aunt's mother Ms. E. were also present.

[75] The mother understood that she had been diagnosed in the past with schizophrenia and had a psychiatric assessment but she had disliked the process and would not agree to complete another assessment or meet with a psychiatrist. The mother then agreed to do so if her aunt was present. They also discussed the apprehension of her first child and the mother's possible anger and depression as a result for which she never received any counselling. But the mother stated she was fine and is healed.

[76] Ms Owusu concluded that the mother was not able to be the primary caregiver but told the mother that the society would assess any kin plan that was being proposed. The mother's aunt was not prepared to present a plan as the mother wanted the child in her own care and was not supporting the aunt's plan.

[77] Ms Owusu explained to the mother that she had an opportunity to prove that she could care for her child by completing assessments and attending parenting courses. She told the mother again that there were also concerns around her mental health, cognition, physical limitations and parenting capacity.

[78] Paraag Ray, the family service worker who worked with the mother from December 2015 to April 2016 was told that the mother was seeing a counsellor at the Black Creek Community Centre with a focus on anger management. He called that agency in January 2016 and was advised that the mother had attended but was last seen in November 2015 and had missed 3 appointment since then. When Mr. Ray asked the mother for consents so he could obtain further information she refused. However, later the mother admitted that she had not been accessing the services at Black Creek for many months.

[79] Despite the mother admitting to various society workers on multiple occasions that she had an anger management problem, she did not complete an anger management program and when asked in September 2016, by Carmela Macedonia, a family support worker, why she was not attending she replied "because".

[80] Mr. Ray provided the mother with contact information for CAMH and asked her to access those service for mental health. But the mother denied she had any mental health diagnosis and said that the past information in the society's files were a lie.

[81] Mr. Ray also offered the mother the services of a victim assault worker. The mother said that she may be interested but she never followed through with requesting this help.

[82] Corinne Fadyshen who has been the family service worker since April 2016 also discussed referrals to Yorktown for domestic violence but the mother declined stating that she could take care of herself and is not interested in discussing her past experience of abuse. She also offered to assist with writing a letter for housing.

[83] Although connected with the public health nurse, Habiba Khan, the mother did not actively engage in accessing services recommended such as Costi and Yorktown. The mother also did not show up for several appointments with Ms Khan.

[84] The mother was offered assistance to find alternate housing from all of the service providers to whom she reported being abused by the father but refused.

[85] As previously noted the mother was offered the services of TAP and participated in that program.

[86] The mother either refused or delayed in signing consents as requested by the various family service workers.

[87] The mother was referred from the psychiatric department of the hospital to an outpatient clinic upon her release from the hospital for assistance with her stress but she never followed up.

Services Offered to the Father

[88] The father deposed that the society did not investigate his ability to parent or provide services to him in a timely manner.

[89] However, prior to the birth of A. the society attempted to locate the father due to their significant concerns about the mother's ability to parent not only her unborn child but also T. who had been in care by then for a year. Ms Fadyshen, who was the family service worker at the time, met with the mother in an effort to obtain contact information about the father. The mother told her that the father was not being supportive, he would not communicate with the society and the mother declined to give the father's telephone number.

[90] On July 29, 2016 Ms Fadyshen attended at the home of the paternal aunt in the hope of locating the father. As there was no answer, she left her business card and wrote, "Please call me A."

[91] Although the father acknowledges receiving the card, he did not respond and does not explain in his affidavit why he failed to respond except to say that he thought it was about T. He further acknowledges that the society reached out and telephoned the paternal grandmother to inquire if she was prepared to present a plan for A. and T. The father deposes that he had no further knowledge about the mother's involvement with the society or the society's concerns about the mother's ability to care for her child except that the mother was visiting T. at the society's offices and that there were ongoing court proceedings.

[92] Marcia Duncan is the family service worker assigned to the family since January 2017 and has also been the child A.'s worker since birth. On August 5, 2016 she attended with Ms. Fadyshen at the hospital to assist with the apprehension of A. Both the mother and the father were present and asked to feed A. before leaving and they also took pictures of her. As one point the father told the mother not to cry because it is a sign of weakness. He told her that she should not show "these people" that she is weak.

[93] The father did not contact the society after August 5th to present a plan.

[94] Ms Duncan along with her supervisor and access worker Carmela Macedonia met with the father for the first time on January 25, 2017. The father advised that he was living with his father but spent the weekend at his mother's home. He said he was looking for his own place and needed help with housing. Ms Duncan offered to write a letter of support and he should let her know when he needed the letter. The father deposes that he has now asked for that letter.

[95] The father told the workers that he needed anger management counselling. The father also said that obtaining substance abuse counselling was part of his probation due to his conviction for trafficking in cocaine. But the father denied the use of cocaine and said he only used marihuana every other day to relax. When Ms Duncan stated that it was a good idea to follow up on substance abuse counselling, the father then said he no longer smokes marihuana and that he felt better and liked being sober.

[96] Ms Duncan advised the father that the expectation was that he would complete all of the recommendations of his probation order. He was advised that the society would assess his involvement in these services and his ability to follow through.

[97] Ms Duncan consulted with the father's probation officer, Alexandra Angelidis on February 8, 2017. Ms Angelidis advised that she had made a referral to the Mental Health and Justice Support program at North York General Branson site. Through this referral the father would be able to obtain help for anger management, addiction and a psychiatric assessment.

[98] It was the opinion of the society service team that the father should utilize the referrals by the probation officer and then the society would advise if further referrals would be necessary.

[99] An additional referral was made to Developmental Service Ontario. This agency works with individuals with special needs. The father would be able to obtain a psycho-neurological assessment at Surrey Place and upon completion he would be eligible for a literacy program at Surrey Place.

[100] The father acknowledged in his affidavit that he had difficulties in school and had been in an Individualized Education Plan and may have a mild intellectual disability. He deposed that the assessment was scheduled on March 30, 2017. The results were not presented to the court.

[101] The society made a referral for the father to attend the Caring Dads program at Ujima House. Ms Duncan attended the intake meeting with the father. The father missed the first session because he said he got the dates mixed up but has attended regularly since then.

[102] The father deposes that the society has "not enrolled me" in anger management or other programs but does acknowledge that the society wrote to his counsel and noted the services that were available and that he should be accessing those services through his probation officer.

Applicable Statutory Principles and Law Regarding Summary Judgment

[103] 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.

[104] 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.

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

[106] 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.

[107] 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.

[108] 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.

[109] 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. [4]

[110] 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". [5]

[111] 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. [6] 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.

[112] 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. [7]

[113] The Supreme Court of Canada, in the case of Hryniak v. Mauldin [8], 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).

[114] 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.

[115] 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.

[116] 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.

[117] 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. [9]

[118] 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. [10]

[119] 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.

[120] 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.

[121] 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. [11] This appears to also be in keeping with the process test set out by the Supreme Court of Canada in Hryniak v. Mauldin. [12]

[122] 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 than 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. [13]

Applicable Statutory Provisions and Law Regarding Past Parenting Evidence

[123] A court can rely on past parenting evidence pursuant to section 50(1) of the CFSA, as long as that past evidence does not involve a detailed examination of the evidence previously taken into account and is used as a backdrop necessary to measure change. The question to be asked always is the relevance to the decision that the court needs to make. "Common sense says that an earlier decision about a parent's ability to care for a child is very relevant in a subsequent protection trial involving that parent." [14]

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

Past conduct toward children

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

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

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1999, c. 2, s. 12.

[125] In this case, the society restricted its past parenting evidence regarding the mother to the finding made with respect to the mother's first child who was made a Crown ward. With respect to A. the society is relying on the mother's parenting of T. who had been in care for about a year by the time that A. had been born.

[126] The more contentious issue is that the society is relying on the past history of the paternal grandmother regarding her own children as one of the basis for rejecting the kin plan being put forward by the father. Counsel for the father did not dispute the relevance of this past parenting evidence but merely disputed some of the facts. I find that such past history is relevant to the father's plan as his plan involves the paternal grandmother either as a support to his care of A. or as the primary caregiver of A. Counsel agreed to a redacted version of the past involvement that does not attempt to re-litigate the past decisions but is based on the factual record of the society's involvement with the paternal family.

Analysis Regarding a Finding of Need of Protection

[127] The society seeks findings that both T. and A. are in need of protection pursuant to sections 37(2)(b)(i) and (ii) CFSA that provides:

there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

[128] The mother is consenting to a finding that both children are in need of protection. Even without her consent there is overwhelming evidence that both children were in need of protection at the time of the apprehension and presently continue to be at risk of harm. There is undisputed evidence of the significant concerns about the mother's ability to parent T. and A. based not only on her own past history of parenting but also on her cognitive and physical limitations and her mental health history. By agreeing to the finding the mother acknowledged that any children placed in the mother's care would be at risk of harm.

[129] The father consented to a finding with respect to T. but it is his position that there is a triable issue with respect to the finding regarding A. I found the argument difficult to follow. By stating his agreement that T. was at risk of harm, even if he was not a party to the proceeding with respect to T., the father acknowledged the concerns about the mother's parenting.

[130] Counsel for the father submitted that the father did not do anything with respect to creating a risk of harm to A. so that there was a triable issue regarding a finding of need of protection. But at the same time the father in essence agreed that A. would have been at risk of harm due to the concerns about the mother's parenting due to her own past and a finding regarding risk of harm to T.

[131] The same facts that relate to the finding with respect to T. also relate to A. After T.'s birth the mother did not follow through with any of the recommendations made to her in order to alleviate the concerns that led to the apprehension of her first child J.F.D.D.

[132] The father did not contact the society prior to the birth of A. and was unknown to the society at the time of A.'s birth. Accordingly at the time of the apprehension, A. was at risk of harm as there was no appropriate caregiver.

[133] The father showed a remarkable lack of insight regarding the mother's risk to the child. Nowhere in his lengthy affidavit does the father speak about any concerns about the mother's ability to parent. All he does is blame the society for not pointing out its concerns to him. The society attempted to reach out to the father prior to A.'s birth and the father ignored the society. The father was aware that T. had been removed from the mother's care and knowing the mother was pregnant with his child, one would have expected him to reach out to the society and proactively find out what he needed to do to prevent the apprehension of his child.

[134] The father admits that he was unable to care for A. shortly after her birth as he was sentenced to 9 months in jail. He has only recently been released and he has only begun to participate in the programs that were required by the terms of his probation and the programs recommended by the society. Therefore A. can also be found to be at risk of harm pursuant to section 37(2)(l) CFSA as the father was also unavailable to care for A.

[135] I find that the society has met its onus to prove on a balance of probabilities that there was a risk at the time of apprehension, that both T. and A. would suffer physical harm in the care of the mother and that the children continue to remain at risk of harm. I also find that the child A. was at risk of harm shortly after apprehension as the father was unavailable to care for her. A trial would not change the outcome that both children were at risk of physical harm at the time of apprehension and continue to be at risk of harm.

Legal Considerations Regarding Disposition

[136] 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. [15] 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.)

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

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

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

[140] In considering what disposition order pursuant to section 57 CFSA is appropriate, the best interests of the child must be considered. Section 37(3) CFSA sets out the factors for determining a child's best interests as follows:

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

Analysis Regarding Disposition

Delay

[141] At the time of the hearing of the summary judgment motion T. has already been in the care of the society for 22 months well in excess of the statutory timelines. A. had only been in care for 9 months and it is submitted on behalf of the father that A. can remain in care for another 3 months and the court could then order an extension pursuant to subsection 70(4) CFSA.

[142] In the Children's Aid Society of the Regional Municipality of Waterloo v. C.M. and B.J.V. [16] 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.

[143] However, just because the CFSA states that the maximum time a child under 6 years of age should remain in care is 1 year, does not require the society or the court to delay in determining a permanent plan for a child. The court should not delay making a final determination earlier than 1 year if it is obvious that that further time in care or an extension of the statutory timeline would not improve a parent's parenting abilities to the extent necessary for the child to be returned to that parent.

[144] I find that any further delay would not improve the mother's parenting abilities something she recognizes. I also find that the time for the father to develop his parenting abilities, to complete necessary programs and counselling and obtain suitable housing would result in an intolerable delay in developing a permanent plan for A. Any further delay in finding a permanent home for these children is not in their best interests.

Services

[145] The society offered many services to the mother which she either refused or did not complete or was unable to fully utilize due to her limitations.

[146] I find that contrary to the submissions of the father, that the society provided him with services as the society relied on the fact that the father should comply with the terms of his probation order and then it would assess if those services were sufficient.

[147] I also find that the father did not co-operate with the society before the birth of A. and has only recently begun to co-operate with the society.

Plan of Care of the Society and the Mother

[148] In this case, both T. and A. are in the same foster home and a permanent plan for both of them is in their best interests. The mother has recognized that the best plan for her children is for them to remain together and she is hopeful that they can remain in the same foster home. The children have no special needs and accordingly the society's plan is for them to be adopted.

Plan of Care of the Father

[149] The father's plan is for A. to be placed in his care with the support of the paternal grandmother or that she be placed in the care of the paternal grandmother or as a further alternative that A. be made a society ward and then placed in the father's care subject to the society's supervision. His position with respect to T. was not clear as his Answer and Plan of Care only dealt with A. But he submitted that if T. was placed with the paternal grandmother that would be fine. The paternal grandmother deposed that she would care for both T. and A. and that the mother would also be residing in their home.

[150] I find that the father has only very recently begun the process of obtaining services to address the concerns raised by the society and has only begun to obtain the assistance he would need to be able to parent his child. Specifically I find that:

a) he has not yet completed the Caring Dads program although he is attending regularly;

b) he has not yet begun an anger management program;

c) he has not yet commenced an addictions and substance abuse treatment program;

d) he has not yet received services from the Development Service Ontario;

e) he does not have approved housing of his own; he deposes that obtaining housing may take 3 to 5 years;

f) he has not shown any insight into the risks posed by the mother in a parenting role;

g) there is a serious concern that the father and mother are residing in the same home; although the father deposed that he is residing with his father, the paternal grandmother deposed that the father is living in her home and that the mother is also living there; and

h) the mother and father have not attended any counselling with respect to their relationship. Although the father denies any physical violence he does admit to a great deal of conflict in the relationship.

[151] The society conducted a kin assessment of the paternal grandmother and did not approve the plan. As the father has proposed that paternal grandmother and the paternal aunt are an integral part of his plan if A. is placed in his primary care or in the joint care of him and the paternal grandmother, the concerns raised by the society with respect to the paternal grandmother are significant.

[152] In November 2016, Luc Drouin, the society kinship worker was assigned to complete a kinship assessment of the paternal grandmother's plan to care for T. and A. Mr. Drouin outlined the paternal grandmother's 12 year child welfare history as follows:

a) In 1999, the case was opened due to concerns about physical abuse by the paternal grandmother's son Ma. abusing the other children;

b) Her daughter S. was removed from the home and eventually made a crown ward but returned to live with the paternal grandmother when she turned 18;

c) Ma. abused his brother Mi. Both sons were removed from the home and placed with the maternal grandmother; Mi. returned to the paternal grandmother's home several years later and Ma. remained with his grandmother;

d) The society was involved again in December 2007. Prior to that opening, the file had been closed in September 2007 after being open for 2 years. The concerns were similar to the past history namely, inappropriate discipline, inappropriate supervision and life style choices;

e) The paternal grandmother's daughter K. became pregnant at 16 years old and a decision was made to open a file in her name as she remained in the family home and the paternal grandmother's file was closed;

f) In 2008, S. made a complaint at school that was investigated by the police and the society but as S. could not repeat the comments, the investigation did not verify the allegation; and

g) The paternal grandmother had a history with both the Halton and Peel children's aid society that had not been disclosed by the paternal grandmother; but Mr. Drouin did not request the files as the concerns were already sufficient to conclude that the plan would not meet the Ministry kinship standards.

[153] Mr. Drouin also reviewed the paternal aunt K.'s child welfare history as she would continue to be living in the paternal grandmother's home. He outlines that history as follows:

a) In August 2008, a family service file was open due to concerns that K. was 15 years old and pregnant, the long history the family had with the society, drugs and alcohol in the home, gun shots heard a week before and a history of police involvement;

b) Paternal grandmother was interviewed and was planning to assist K. with the child. In addition to the concerns outlined at the time of the referral, there were additional concerns related to limited prenatal care, mild intellectual disability, lack of ability to report events accurately with respect to her pregnancy and her own history as a child with the society;

c) In June 2010, there was an anonymous report and as a result K. agreed that she and her son would move out of the home of the paternal grandmother;

d) In 2011, K. and her son O. moved back to the home of the paternal grandmother after her brother Ma. had moved out;

e) In March 2012, the society received a referral from the hospital as K.'s son O. had stepped on glass and cut his foot; the hospital reported that K. was verbally abusive to the child and left before the doctor could examine his foot; K. acknowledged that she was frustrated and yelled but the nurse had already bandaged O.'s foot and she agreed to take the child to the doctor the next day;

f) On March 11, 2012 another referral was received by the society from the police that they had attended at the home due to a verbal dispute between K. and her brother Mi.;

g) These concerns were investigated and given that drug use and the physical safety of the home environment had been an ongoing concern, the file was transferred for ongoing service; K. spoke openly about her use of recreational marihuana but did not use it when in a caregiving role; the file was then closed in November 2012 as there were no longer any child protection concerns;

h) In August 2012 there was another anonymous call about concerns;

i) In September 2014, K. gave birth to her third child and the society received a referral from the hospital about concerns that the mother had limited pre-natal care, had a history of drug use and her partner had recently been murdered; when the society worker met with K. she said that everyone in the house gets along well and that it was mostly the paternal grandmother that helped her with the child;

j) K. told the worker that the police had come to the house recently and arrested her brother A. (the father) for "wiretapping" and that they searched the house and did not find anything; K. said that she was not part of the illegal activity that occurred in the home and wanted out of Regent Park to get away from the negative influences;

k) K. reported that they had moved out of Regent Park and things in the home improved; but she moved with her brothers and mother with whom she has had conflict with in the past; she said that her brothers were no longer into drugs and were getting their lives together;

l) K.'s file was transferred for ongoing service and remains open;

m) In June 2016, O. who was 7 years old at the time presented with a burn on his upper chest and he had second degree burns. According to S., a paternal aunt, she had been making coffee and O. reached for the mug and spilt it over himself. The society worker verified the allegations of physical harm even though the incident was accidental, as the family was aware of O.'s special needs and the proper provisions were not in place to reduce the risk of harm to the child and as a result the child was injured;

n) In September 2016, O. made a disclosure that his mother hit him with a belt. Although there were no criminal charges, K. was cautioned about inappropriate physical discipline; and

o) In December 2016, someone from K.'s son O.'s school called the society to report that the child had a bruise above and under his left eye; the investigation of this incident did not verify physical abuse but concluded that inappropriate discipline was taking place;

[154] Mr. Drouin summarized his reasons for not approving the paternal grandmother's kin plan as follows:

a) The home itself: It was cluttered, dirty and had cockroaches. There were 2 mattresses in the living room. The home was unsanitary with visible dirty floors, walls and furniture. Large objects on the walls were not secured and there were safety hazards for young children. There were no toddler gates or any child proofing;

b) The number of people living in the home: There were 7.5 people living in the home. The paternal grandmother said that her adult son lives there part time, along with herself, K. and her 4 children and the mother. There was also another woman there but the paternal grandmother denied that she was living there;

c) Credibility: The paternal grandmother stated that she only had an opening with the society when her daughter was removed from the care of herself and her then partner. She said that this may have lasted up to one year. But based on Mr. Drouin's review of her history, the society was involved for 12 years. Concerns included domestic violence, drug use and physical abuse. The paternal grandmother did also not disclose that she was involved with the Halton and Peel societies. The discrepancies of her account of her child welfare history and the documented history is significant;

d) K. (paternal aunt) has an open and ongoing child welfare file with the society: K. who has 4 children reported that the society is only involved because it wants to offer support to her and that the society could close her file at any time. However, based on the review of the file, there have been identified protection concerns that included inappropriate discipline, including using a belt. A. the child's uncle is currently in jail for drug possession and trafficking. [17] There was another incident when K.'s son was burned with boiling water;

e) Ability to protect: the paternal grandmother's history is concerning with respect to her ability to protect and ensure her own children's safety, in addition to ongoing concerns identified with K. and her 4 children who live in the home. Mr. Drouin concluded that he did not believe that paternal grandmother could ensure the safety of 2 young children who were both under the age of 2. The paternal grandmother and the mother who lives in the home do not appear to understand the protection concerns identified by the society.

[155] Both the paternal grandmother and the father responded to the reasons provided by the society for not approving the paternal grandmother's kin plan.

[156] The father deposed that both his sister K. and the paternal grandmother have a mild intellectual disability and are unsophisticated so they were confused when asked about his criminal charges and referred to the charges as "wiretapping".

[157] The paternal grandmother deposed that she did not try to hide her involvement with the children's aid society when she did not tell them about her involvement with the Halton or Peel agencies as it was just a transfer when she moved. Further, she deposed that she told the worker that she was only involved for 1 year because of her daughter S. being removed from the home as she did not consider that after this time that the society was "actively involved".

[158] However, in the reply affidavit of Ms Duncan, the affidavit of the paternal grandmother sworn June 14, 1996 is attached as an exhibit, the paternal grandmother deposes that the society was actively involved since 1993 and was involved not only with respect to S. but also with her two other sons.

[159] There is an ongoing concern about who is actually living in the home as in the paternal grandmother's affidavit sworn January 11, 2017, she deposes that the father, the mother and her daughter K and her 4 children are all living in the home; whereas the father deposes that he is not living there.

[160] Mr. Drouin's assessment was completed in November 2016 but as of January 11, 2017 the paternal grandmother deposes that she was still dealing with the same issues regarding the condition of her home. The paternal grandmother is only still planning to obtain a bigger home and is only still planning to obtain a storage locker for the excess items and is only still dealing with the landlord about the cockroaches.

Findings with Respect to Disposition

[161] The society attempted to work with the mother to address concerns regarding domestic violence, instability with respect to housing, and the mother's mental health. The mother continued to demonstrate a lack of insight into her mental health diagnosis and developmental delay and had a limited willingness or inability to engage in services. She is to be credited with seeing her own limitations and making the difficult decision to consenting to an order that her children be made Crown wards as being in their long term best interests.

[162] It is the father's position that there is a triable issue with respect to the issue of domestic violence between himself and the mother. I recognize that there are some inconsistencies and contradictions in the mother's allegations of physical violence by the father. But the mother repeated these allegations to different professionals over a substantial period of time and there was some physical evidence. The father denied any such abuse. However, it is not every disputed fact that requires a trial. I find that I do not need to determine the credibility of either party with respect to whether or not the father physically abused the mother. In this case, both the mother and father and the father's family confirmed that there was verbal conflict between the mother and the father. Both the mother and father stated that they needed an anger management program. Neither party completed any anger management program or engaged in couples counselling.

[163] It is also the father's position that there is a triable issue with respect to the plan of the father to care for the child. I find that a trial is not required. The society thoroughly assessed the paternal grandmother's plan. The father's plan is to live in the home of the paternal grandmother along with his sister and her 4 children. It is obvious that such a plan cannot meet the needs of these 2 young children [18]. The concerns are overwhelming about inappropriate physical discipline, the lengthy child protection history of both the paternal grandmother and of K., the verbal conflict and the lack of insight of the risks posed by the mother to her children. Just because the society has not intervened to remove the children in K.'s care in that household, is not the basis to find that a trial is necessary to determine if two further children can be placed in that home with these caregivers. The father's plan is not viable and would put these young vulnerable children at significant risk. Both the father and paternal grandmother minimized the family's past involvement with the children's aid society and the father's criminal charges. Neither have been forthcoming with the society. There are no terms of supervision that could ensure the safety, well-being or meet the needs of the children.

[164] I therefore find that it is in both T. and A.'s best interests to be made Crown wards. I do not need to rely on the expanded powers pursuant to subsection 16(6.1) of (6.2) FLR in coming to this conclusion. Although there are some other minor disputed facts or questions of credibility, in addition to the issue of domestic violence, none of them are material in nature.

Applicable Law and Legal Principles Regarding Access

[165] 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.

[166] Having determined that an order of Crown wardship is the order that is the least disruptive order available and is the order that is 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.

[167] 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.

[168] The onus to rebut the presumption against access to a Crown ward is on the person seeking access. [14]

[169] Where a Crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Although in most cases, the society tenders such evidence, there is no statutory requirement to do so.

[170] The person seeking access therefore has the onus of establishing on a balance of probabilities both prongs of the test namely that,

1. The access is beneficial and meaningful to the children; and
2. The ordered access will not impair the children's future opportunities for adoption.

[171] 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. [19] where he stated:

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

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

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

[172] 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.

Analysis Regarding Access

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

[174] Counsel for the father did not make any detailed submissions with respect to access except that access permits a child to know her roots.

[175] The observations of the father's visits to A. are generally positive. He has exercised access consistently but only for the last 3 months due to his incarceration. Although the visits appear to be enjoyable to A. there is no evidence of any advantage to the child of these visits.

[176] I find that the father has not met the onus on him to establish the first prong of the test that is, that the visits are meaningful and beneficial to A. I find that there is no triable issue on the issue of access.

[177] The mother has consented to the order of Crown wardship without access.

Conclusion

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

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

2. The Statutory findings with respect to T.D. and A.D.-W. as set out in the summary judgment motion are granted.

3. The child T.D. born […], 2015 is found to be a child in need of protection pursuant to subsection 37(2)(b) of the Child and Family Services Act.

4. The child A.D.-W. born […], 2016 is found to be a child in need of protection pursuant to subsection 37(2)(b) and (l) of the Child and Family Services Act.

5. The children T.D. and A.D.-W. shall be made Crown wards and placed in the care and custody of the Children's Aid Society of Toronto, with no access for the purpose of adoption.

Released: May 31, 2017

Signed: "Justice Roselyn Zisman"