WARNING

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

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

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (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

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

The Children's Aid Society of Algoma J. Rossi for the applicant

— And —

K.B. No one for the respondent mother

A.K. Respondent Father

J.R. Respondent Father

Heard: October 16, 2017

Reasons for Order on Motion for Summary Judgment

Before: Justice John Kukurin

Decision

[1] Introduction

This is a decision on a motion for summary judgment brought by the Applicant society in this Status Review application involving two children, a girl age 8 and a boy, age 4. The mother opposes this motion as she does the status review application claims.

[2] Background and Prior Order

The children were found to be in need of protection under s. 37(2)(b)(i) and (ii) of the Child and Family Services Act (CFSA) by an order made July 4, 2016 by Justice R. Villeneuve in a prior child protection application. These grounds are risk of physical harm grounds by reason of neglect by, and a pattern of neglect by, the person having charge. In this case, the mother was the person having charge of the children. At that time, he ordered that the children be made wards of the society for six months. Prior to that time, the children were in the temporary care of the society, and before that were in the temporary care of the maternal grandparents. They have actually been in the care of their maternal grandparents for a great part of their lives, under separate Family Service Agreements, and as "kin out of care", and as "kin in care" foster placement, after the society wardship order was made.

[3] Current Claims

The current claim of the society is for an order for crown wardship of the two children, with access to their mother, and, if sought, to the father (of the 8 year old daughter), and an order that the father (of the 4 year old son) have no access to either child.

[4] Proposed Access Terms

The maternal access sought by the society has terms it usually seeks, namely reasonable access supervised at its discretion, and to be arranged with it, and at a location approved by it.

Nature of Status Review

[5] Purpose and Procedure

Society wardship orders are time limited by statute. The statute provides for a review of the status of the children by a procedure called the status review application which the society is mandated to bring before expiry of its wardship period. The purpose of the status review is to, firstly, determine if the children are still in need of protection, or not. If not, they can be returned to their family with no further protection order in place. If so, then the court has to decide what further order it should make to protect these children. In addition, the court has to decide on the issue of access by or to these children.

[6] Summary Judgment Motion Framework

In the present case, the status review proceeding has a further twist. The society has brought a summary judgment motion seeking to have the orders it is seeking made on this motion rather than after a trial in the status review proceeding. The onus on a motion applicant on a summary judgment motion is to persuade the court that there are no genuine issues in the proceeding that require a trial, and to do so on the basis of admissible affidavit evidence that sets out specific facts that support that conclusion. The onus on a respondent on a summary judgment motion is to persuade the court that there are, in fact, genuine issues that only a trial can resolve, and to do so also by admissible affidavit evidence that sets out material facts from which this opposite inference can be made. I have set out in a footnote the law as it relates to summary judgment. It is an excerpt from a recent reported decision which was provided in this case and which seems to conveniently cover all bases. It is the society's summary judgment motion that is before this court today.

[7] Respondents' Participation

As a preliminary matter, I should note that the mother is the only active participant among the respondents in this case. The fathers have failed to file any Answers and are in default. They are not present nor represented. The mother appears as a self represented litigant and it is clear she is fairly intelligent and has a relatively good grasp of the concept of a summary judgment motion. She has not, however, done very well in her preparation of her responding evidence which, for the most part, missed the mark of what she was supposed to establish with this evidence. Regrettably, the court has to make its decision based on the evidence that it gets, and very little, by way of allowance, can be made by courts for litigants that do not have counsel to assist them. The mother is expected to operate by the same Rules and by the same laws as is the society, or as anyone else involved in this case.

[8] Prior Factual Record

I will not repeat all of the factual information provided by the society in its evidence. The finding in need of protection and the child protection order in the child protection proceeding was made on July 4, 2016. There was considerable evidence of factual events that occurred prior to that finding that have been repeated in the present status review case. That is fair game, as the court in the present proceeding is not to act in a factual vacuum, but rather to review the prior disposition made, which includes why it was made.

[9] Factual Bases for Protection Finding

In a nutshell, the factual bases for the prior and present proceeding are:

Mental Health Problems

The mother's mental health problems. This included medically diagnosed conditions of anxiety and depression (including post partum). She was taking a "heavy regement (sic)" of prescribed medication and seeing Dr. Koka, a psychiatrist until she unilaterally stopped. She had been hospitalized under Form 1 (Mental Health Act) and had a mental health breakdown at one time. Her subsequent psychiatrist lasted only a short time. She sees no one now for her mental health.

Abuse of Alcohol and Drugs

The mother's abuse of alcohol and drugs. The society documents several instances when the mother was clearly intoxicated for alcohol consumption, the most egregious being an incident when she was driving with her son, then eight months old, and had an accident involving police attendance and criminal charges. However, this was not a 'one off' event. She was intoxicated on several other occasions which also were noted by police (eg shoplifting incident / several involvements with the father J.R.). That the mother was a long time illegal drug user was clear from the society's evidence from the maternal grandmother who attested to the mother's starting to experiment when she was barely a teen. The evidence is that the mother often used marijuana and, on occasion, cocaine, usually not alone.

Poor Choices of Male Partners

The mother's poor choices of male partners, almost all of whom were physically abusive to her on her own admission. This included her three year relationship with her boyfriend/common law T.M. when she was sixteen to nineteen years old; A.K., the father of her daughter, whom she met when she was attending university, and who was unfaithful and ultimately deserted her, and J.R., father of her son, who is a recidivist, violent offender, who was the subject of many arrests and convictions for domestic violence including, but not limited, towards the mother. In addition, she had less than satisfactory relationships which may not have involved domestic violence, but were clearly failures. These included R.J.M., J.E. whom she threatened with an axe and sprayed with bear spray, and S.G., her most recent common law/fiance with whom she broke up after less than a year together.

Failure to Engage in Services

The mother's failure to engage in available services that may have assisted her, and in particular her attitude towards these services. Among these are her counseling which she claims was terminated because her counselor could not assist her, but which the society claims she failed to engage with. I frankly prefer the society's version as the mother has made similar claims with other service providers. She stopped seeing psychiatrist Dr. Koka as a patient. She similarly ended her patient relationship with his successor, Dr. Pollock, and currently has no mental health professional, or even any ties with other mental health providers. She claims to be a patient of Dr. Snajdrova, a family physician, who she claims took her off of all her mental health medication. This is contrary to this physician's letter of January 2017 which reports that the mother was given antidepressants in the summer of 2016 at the emergency department, was referred to Dr. Koka (whom the mother never did see), and confirmed that there was no treatment plan for the mother - and that is the last Dr. Snajdrova saw of the mother. The mother also dropped out of Healthy Babies Healthy Children program unilaterally.

Economic, Social and Residential Problems

The mother's economic, social and residential problems which are all interrelated. There are instances where she had to access the food bank or seek help with food from her brother. She has no actual friends who are pro-social, and most of them are drug users, or alcohol drinkers or both. She has had a series of residences, including a stint in Sault Ste. Marie, none of which have been long term or particularly suited to raising children. Her most recent residential address is unknown. She is on a fairly subsistence ODSP income supplemented by part time work at a taxi company as a bookkeeper.

Criminal Behaviour

The mother's criminal behaviour, including behaviour which is described in the evidence but for which she was not convicted. This includes assault with a weapon (Feb 2015), Possession of cocaine (Oct 2015), shoplifting (Oct 2015) and an assault charge about which nothing is disclosed in the evidence and is pending. The charge of 'failure to blow' was withdrawn in 2013, but she was found guilty of careless driving (Oct 2013). The mother is described as being disdainful of police, of probation services and of the society. I believe that is a fairly accurate description. This criminal behaviour is supplemented by her several thefts or frauds perpetrated on her family, primarily the paternal grandfather, who is now in a dispute with Koodoo over a $900 bill she apparently created by opening an account in his name. The family declined to have her charged for these thefts.

Lack of Co-operation with Society

The mother's lack of co-operation with the society. This is one factor relevant in assessing whether the children can be returned to her care. Clearly, given the many and significant concerns, they can only be returned subject to a supervision order. This would mean ongoing involvement by the society. However, the mother cannot work effectively with the society. She is critical of what it does or does not do. She has revoked all consents for the society to receive third party information from any source associated with her, which means that the society has difficulty if not impossibility in verifying what she says. Often, what she has said is not the truth, or not the whole truth.

Failure to Appreciate Danger from J.R.

The mother's failure to appreciate in adequate time what a danger J.R. represented to her and the children. She may realize that now but she was warned that he was bad news for her long ago. Despite this, I am satisfied that she continued to associate with him, and this only brought more domestic violence into her life. I am skeptical of her allegations that he made her use cocaine, and that it was he that should have avoided her when on bail conditions prohibiting contact, and that he was not at her place of residence when he was prohibited from being there.

Pattern of Unsustained Progress

Ultimately, the mother has had periods when she seems to straighten out, to have meaningful access, when she appears to be going in the right direction. Then she blows it in some way by engaging in behaviour that brings her right back to square one. Examples of this are things she has done to alienate her family which has resulted in her access no longer being supervised by them but taking place at the society offices, and more recently the Best Start Hub. Other examples are the loss of her car when the maternal grandmother refused to pay her auto insurance premium, and her access becoming fully supervised after her involvement in a domestic violence incident. The mother has no ability to sustain her progress for any reasonable length of time.

[10] Continued Need for Protection

The foregoing are primarily why the children are in continued need of protection from the mother. The mother does not have an exemplary record of access, at times acting contrary to the society's instructions and then arguing with the society about them. The mother continues to make poor choices and clearly does not appreciate her own limitations and her inability to parent adequately at this time. The CFSA statute requires the court to base its decision on disposition in a status review on what is in the best interests of the child. This applies equally to a motion for summary judgment.

[11] Mother's Plan

The mother's plan is actually no plan at all. She refers to a plan but the only plan she put forward is the one in her Answer and Plan of Care. That plan is for her to have joint (care and) custody of the children together with her parents. However, her parents are on record as not wanting to have joint custody with her. Moreover, the mother does not say where the children will reside. Her accommodations are unknown and they cannot be at the home of the maternal grandparents who do not even want to be supervisors of her contact with the children.

[12] Statutory Limitation on Society Wardship

In the absence of a viable plan on her part, the court has to look at what the society is proposing. The society and the court is constrained by the limitation in s.70 of the CFSA.

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

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

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

S. 70(2) In calculating the period referred to in subsection (1), time during which a child has been in a society's care and custody under,

(a) an agreement made under subsection 29 (1) or 30 (1) (temporary care or special needs agreement); or

(b) a temporary order made under clause 51 (2) (d),

shall be counted.

[13] Crown Wardship as Appropriate Disposition

This is the reason why the society must seek crown wardship of the boy who is age 4. It is seeking the same for the daughter probably for consistency in treatment of siblings, and because it does not appear likely that the daughter can be returned to the mother's care when her limitation in care applies. There are no other potential caregivers and custodians in sight. And the maternal grandparents are content with the society's assurances that the children will continue to reside with them as crown wards. The society has certain functions, one of which is to place children for adoption. It is not doing so here. It makes one wonder if a 'function' is or is not a 'mandate'. However, I am satisfied that the disposition of crown wardship and placement with maternal grandparents is a reasonable plan for permanency for these children. Ultimately, this is what is in their best interests.

[14] Mother's Responding Evidence - First Affidavit

The motion for summary judgment is therefore successful. The mother has basically three affidavits in the continuing record. The first is from S.G. who is no longer a player in the mother's plan and what he contributes by way of evidence is either not relevant to issues in the summary judgment motion, or is rendered academic by reason of his recent departure, or is a repetition of evidence already established by the mother.

[15] Mother's Responding Evidence - Second Affidavit

The mother's affidavit at Tab 12 does not contradict the society's evidence but agrees with it, although displacing the blame for much of her troubles on J.R.. Her evidence with respect to S.G. is now passe and academic. This affidavit outlines her achievements and her history, but fails to address any of the above noted concerns which the society relies upon in this motion, much less dispute them sufficiently to require a trial to determine who is more correct. The most she says is that she spent 2014 to 2016 attending psychiatric care and taking heavy psychoactive medication. This statement is without any detail whatsoever. This is also not totally true as it is contradicted by the mother's own statements in other evidence filed, as well as by some of the society's evidence which I find more credible and supported by independent evidence (eg letter of Dr. Snajdrova).

[16] Mother's Responding Evidence - Third Affidavit

The mother's affidavit at Tab 14 is concerned not so much with the issues one would expect to be genuine issues relevant to the summary judgment motion, and to the status review application. Instead, this affidavit simply lists a number of exhibits which relate to a beach of privacy complaint made by the mother, to the society's failure to investigate further her son's aboriginal status, to her daughter's hair care, to her maintaining her part time job, and to her arrest and probation record. Except for the last exhibit, the others do not concern themselves with material issue in this motion, and certainly do not require a trial, even if everything she says about them is true. She misinterprets her record: she was placed on two, not one, probation orders (Feb 2015 and Oct 2015), and she fails to even mention her most recent charge which is still "pending" from June 2017. The second half of her affidavit outlines her working with Victim Awareness to prepare her to testify against J.R. at his trial, the stress and anxiety this has caused her, and the fact that this shows that she is done with him and their relationship is over. This, of course is relevant to the summary judgment motion, but the mother, in her submissions indicated that she didn't actually testify, that there was no trial as J.R. did not show up. The mother does volunteer that she has anger against the society and that she has enrolled in an anger management course. This is new and perhaps a good development as the mother has let anger override her better judgment in the past. Other than these, the mother speaks of access and how she has provided continued evidence to prove her commitment against domestic violence. I do not know to this day whether she actually completed her PAR (Partner Assault Response) program that she was required to do as a condition of her probation. I suspect not.

[17] Insufficiency of Mother's Evidence

In summary, the mother has not addressed the majority of the issues that are the most relevant to this status review case, and if she has, she has not addressed them with the specificity as to factual detail that is demanded of summary judgment respondents. The society's evidence presents a case from which I make an inference that there are no issues that require a trial in this case. Even if all that the mother claims to be true, is, in fact, true, this would not contradict that part of the society's evidence that she did not address, and that evidence is the most critical in this case.

[18] Granting of Summary Judgment Motion

Accordingly, the motion of the society is granted and an order of disposition will go with respect to crown wardship of both children. The court cannot impose conditions on a society or on the crown as to where a crown ward will reside.

Access Issues

[19] Presumption Against Access for Crown Wards

This does not dispose of the issue of maternal access. I asked both the mother and the society about any order for access. The CFSA has a presumption against access in its s. 59(2.1) where an order is made for crown wardship.

S.59 (2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

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

[20] Maternal Access Order

The society basically reiterated its position that the mother had met the test in s.59(2) for awarding maternal access. I have re-read the evidence and there is enough evidence to infer that maternal access is both beneficial and meaningful to the daughter, and perhaps marginally less to the son. There is no minimum quantification of either meaningful or beneficial in the CFSA. The society indicates in its plan of care that it does not intend to have either child adopted so the second criterion in this test is equally met. The mother had no submission on the kind of maternal access order I should make. She was aware of the kind of order sought by the society.

[21] Access for Father A.K.

With respect to the father A.K., I am not persuaded that his access is either meaningful or beneficial. He does visit his child occasionally and it is somewhat equivocal whether the child reciprocates any feelings. I prefer to leave any order as to his access silent. The society has the option to permit him contact and communication with his child under s.59(4) if it feels it is in the child's best interests.

S.59 (4) If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward. 2006, c. 5, s. 17 (4).

[22] No Access for Father J.R.

As for the father J.R., I am more inclined to make a positive order of no access. The reasoning is the same, namely that he has not met the "meaningful and beneficial" test for access to a crown ward. This would preclude me from ordering access in his favour. However, in addition, he represents an actual risk of harm to these children and is clearly a poor role model for his son.

[23] Aboriginal Status Inquiry

One thing that remains a concern, however, is the Indian status of J.R.. The society indicated that on November 14, 2013, the Department of Indian Affairs informed the society that the children are not eligible for Native band registry. In fact, they were identified in the prior child protection proceeding as being neither Indian nor native children. However, even in that proceeding, there was some question raised about this finding. The most recent evidence of the society is that it was seeking more information from several bands and had yet to hear back from the band of which the father is suspected to be a member (ie Whitefish River First Nation). If he is a member, this may well affect whether his son is also a member (by affiliation). In any event, I would impress on the society that this line of inquiry should not be abandoned.

Order

[24] Order to Go by Way of Summary Judgment

Accordingly there will be an

Order to Go by way of Summary Judgment:

1. That the children E.H.B.-K., born […], 2019 and E.A.B., born […], 2013 shall be wards of the crown and be placed in the care of the Children's Aid Society of Algoma.

2. That the Respondent mother, K.B., shall have access to the said children in the terms and subject to the conditions set out in status review application at paragraph 2, Page 3.

3. That there shall be no order for access of the Respondent father, of the child E.H.B.-K., to this child.

4. That there shall be no access by the Respondent father, J.R., of the child E.A.B., to this child.

Released: October 18, 2017

Signed: "Justice John Kukurin"

Footnotes

[1] The motivation for being in temporary care of the society as opposed to being in temporary care of the maternal grandparents as "kin" under s.51(2)(c) CFSA appears to be financial. The grandparents simply did not have the financial resources to afford to have these children living in their home. The society, in the prior child protection proceeding, sought to transfer temporary care to itself, and sought society wardship in its final order. In this current status review, it is seeking crown wardship. Notwithstanding these claims and orders made, the children have throughout and, according to the society's Plan of Care, will continue to remain residing with their maternal grandparents. This enables the society to financially fund the grandparents as a foster home, an arrangement that benefits the society, the grandparents and most importantly, the children. My self query is whether it is a proper use of the CFSA, and whether it may prejudice the other respondents in a particular case.

[2] There is now a comprehensive body of case law that deals with the onus on summary judgment motion participants and judicial interpretation of the intricacies of such motions. It has been repeated by numerous jurists in numerous decisions in their outline of the law as it applies to such motions. I have excerpted one of these below from a recent decision of Fryer Ont SCJ, namely Durham Children's Aid Society v. J.T., [2015] O.J. No. 6821 at page 5:

Law re Summary Judgment Generally

36 Rule 16 of the FLR sets out the criteria for summary judgment. Rule 16(2) confirms that summary judgment may be sought in child protections matters.

37 To succeed on a summary judgment motion, the Society must prove on a balance of probabilities that there is no genuine issue requiring a trial: FLR, r. 16(4.1).

38 "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed": J.C.J.-R. v. Children's Aid Society of Oxford County, at para. 8, citing Prete v. Ontario, 16 O.R. (3d) 161, at p. 170, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 46.

39 Other indicators that there is no genuine issue for trial are when the "outcome is a foregone conclusion" (Catholic Children's Aid Society of Metropolitan Toronto v. L.O., 139 D.L.R. (4th) 534, at para. 80, aff'd , 149 D.L.R. (4th) 464) or when there is "no realistic possibility of an outcome other than that as sought by the applicant" (Children's Aid Society of the Niagara Region v. S.C., 61 R.F.L. (6th) 328, at para. 43).

40 According to r. 16(6), granting a motion for summary judgment is mandatory if the court concludes that there is no genuine issue requiring a trial of a claim or defence, in such cases, the court must make a final order accordingly.

41 The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, held that the court must first determine if there is a genuine issue requiring a trial based on the evidence, without using the new fact-finding powers. Only if it appears that there is a genuine issue for trial, should the court determine if the need for a trial can be avoided by utilizing the new fact finding powers; this would mean looking to r. 16(6.1).

42 Rule 16(6.1) of the FLR has been recently amended and it 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 interest of justice for such powers to be exercised only at a trial:

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

43 In interpreting r. 16, r. 2 of the FLR must be considered. As well, reference to s. 1(1) of the CFSA--which provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children--is necessary to the interpretation of the Act (Children's Aid Society of Hamilton v. M.W., 63 O.R. (3d) 512, at para. 25).

44 The burden is on the Society in this case to set out evidence of specific facts showing that there is no genuine issue requiring a trial. However, when and if the Society makes a prima facie case, an evidentiary onus shifts to the parents. The parents must then point to evidence of specific facts showing that there is a genuine issue for trial: Children's Aid Society of Northumberland v. K.S., 2012 ONSC 6847, 32 R.F.L. (7th) 87 (Div. Ct.), at para. 28. Each parent must put his/her best foot forward, and cannot rest on mere allegations or denials: FLR, r. 16(4.1); The Children's Aid Society of Hamilton v. K.F., 2014 ONSC 576, [2014] O.J. No. 429, at para. 37, citing Children's Aid Society of Metropolitan Toronto v. M.A., at paras. 6-7; and Jewish Family and Child Service v. R.A., [2001] O.J. No. 47 (Ont. S.C.), para. 21-22.

45 A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material: Children's Aid Society of Toronto v. K.T., at paras. 10, 12-13.

46 The court must consider the full evidentiary record, and is entitled to assume that the record contains all the evidence that the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, [2012] O.J. No. 4309, at para. 5. The evidence tendered must be evidence that would be admissible at trial: Children's Aid Society of Hamilton v. M.N., at para. 30.

47 In determining if there is sufficient evidence led 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: Children's Aid Society of the County of Dufferin v. J.R., at para. 39.

48 In determining whether 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: Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084, at para. 33; and Children's Aid Society of Hamilton v. C.R., at para. 55. Furthermore, "[s]elf-serving evidence that merely asserts a defense or a claim without providing some detail or supporting evidence is not sufficient to create a genuine issue for trial": Goldman v. Devine, 2007 ONCA 301, [2007] O.J. No.1491 at para. 23 citing Rozin v. Ilitchev, 66 O.R. (3d) 410, at para. 8.

49 Courts must be cautious in granting summary judgment in child protection cases, since the stakes for the family are high, and granting summary judgment deprives the parent of the procedural safeguards of a trial: C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357, 33 R.F.L. (7th) 67, at paras. 3-6.

50 However, I also consider the following excerpt from the decision of Pazaratz, J in Children's Aid Society of Hamilton v. A.M. and T.L., 2012 ONSC 6828:

37. Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent. (Children's Aid Society of Toronto v. H. (R.), [2000] O.J. No. 5853 (O.C.J.), paragraph 15).

In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children's Aid Society of Ottawa v. C. (S.), 2003 CarswellOnt 9373 (S.C.J.)).

38. Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. (Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853).

39. The court must assume that a responding parent has "put their best foot forward" in their responding material and that this is the most they have to offer at that stage. "The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?" (Kawartha-Haliburton Children's Aid Society v. W.M., [2003] O.J. No. 3903).

40. It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. (Worthington v. Worthington, 13 R.F.L. (5th) 220; [2000] O.J. No. 4853).

[3] S.15(3) The functions of a children's aid society are to,

(f) place children for adoption under Part VII