BARRIE COURT FILE NO.: FC-10-651

DATE: 20120417

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE CHILDREN’S AID SOCIETY OF THE COUNTY OF SIMCOE, Applicant

AND:

O.P., I.P. AND R.D., Respondents

BEFORE: McDermot, J.

COUNSEL: L. Gibson, for the Applicant

B. Kibur, Duty Counsel, for the Respondent Mother, O.P.

I.P. in default and not present.

Respondent Father, R.D. unrepresented

D. Manning, counsel for the child, S.P.

HEARD: April 5, 2012

ENDORSEMENT

INTRODUCTION

[1] On April 5, 2012, I heard a motion for summary judgment in respect of the two children of the Respondent Mother, O.P. These children have different fathers; I.P. is the putative father of S.P. who is a 12 year old boy and who was born on […], 2000; I.P. resides in an unknown location and has not been served with this application. Correspondence from I.P. dating from 2006 was filed indicating that he does not acknowledge paternity and is, in fact, not the father of S.P. The father of the parties’ daughter, J.D., born […], 2000, is the Respondent, R.D. He lives in Windsor.

[2] In respect of S.P., who has largely resided in foster care since being apprehended in May, 2010, the Society seeks an order for Crown wardship with access at the discretion of the Society to the Respondent Mother. A different order is sought in respect of the younger child, J.D., who has lived with R.D. since April 11, 2011; in her case, the Society seeks a deemed custody order in favour of R.D.

[3] This litigation began in May, 2010 with the apprehension of the children after S.P. disclosed serious bruising at his school which he said were caused by the mother. The matter was initially resolved and proceedings withdrawn respecting J.D. in November, 2010, when she was placed with R.D. and O.P.; however after several serious domestic disputes in the parties’ home, J.D. was again re-apprehended in January, 2011 and a new application commenced. She was placed with R.D. again in April, 2011 and has resided with him since then.

[4] The litigation was not resolved in respect of S.P.; although he was placed with the parties on an extended access visit in September, 2010, he was brought back into Society care in early January, 2011 due to the problems in the parties’ household noted above. He has resided with his foster family since that date and the foster family has agreed to a long term placement of S.P. with them. Other than during the period of time when the children lived in the parties’ home, O.P.’s access to both children has been supervised by the Society.

[5] There have been a number of conferences, and a separate application has been brought for financial and other relief by O.P. against R.D. under the Family Law Act.[^1] R.D. has sought a constructive trust interest in the common residence in those proceedings as well as child support; on October 11, 2011, O.P. was ordered to pay child support to R.D. Numerous motions were brought in those proceedings and in the C.A.S. proceedings and there have also been a number of conferences; on January 23, 2012, Wildman J. indicated her frustration at the numerous motions and appearances and noted that future conferences were of no further use to these parties. She ordered that no further motions be brought by either party without her consent other than the motions heard by me on April 5, 2012. Wildman J. ordered both the family law and child protection matters to be heard together; they were adjourned to the June 12, 2012 child protection sittings for trial if summary judgment is not granted; if summary judgment is granted, the remaining family law matters are adjourned to the May sittings for determination.

[6] The Society has requested summary judgment pursuant to Rule 16 of the Family Law Rules.[^2] Included in the orders requested are findings that both children are in need of protection; the request respecting S.P. is pursuant to the Child and Family Services Act,[^3] s. 37(2)(a) and (b) (the child has suffered physical harm or is at risk of physical harm) and (g) (the child is at risk of emotional harm); the request for J.D. is under s. 37(b) and (g) and the only practical difference between the two children is that no actual physical harm to J.D. is alleged. As noted above, in the event of a finding that the children are in need of protection, the remedies sought respecting the two children are markedly different.

[7] At the commencement of the hearing, the Applicant Father requested leave to file a further affidavit and motion. He stated that he had tried to file it earlier but was unable to do so. On March 23, 2012, Eberhard J. had ordered that all affidavits had to be filed and served by April 4, 2012. Based upon that endorsement, and as well based upon the order of Wildman J. preventing further motions without leave from her, I refused the request of R.D. to file his further motion and affidavit.

[8] The Society also brought an oral motion to dispense with service on I.P., the natural father of S.P. In support of this motion, Ms. Gibson filed the affidavit of Angela Adams sworn April 5, 2012 which indicated that the Society had been unable to locate I.P. and that the Respondent Mother did not know where he lived. Although I was not impressed by the fact that the Society had taken this long to bring this motion, and technically was also in breach of the order of Eberhard J. regarding the filing of material, I allowed this motion to proceed; normally a motion to dispense with service would have been obtained without notice to I.P. (who cannot be found and who is the only person affected by the lack of notice) or the other parties to the proceeding.

[9] The Respondent Mother objected to this motion; she stated that it was her intention to suggest a plan of care wherein S.P. was placed in the care of I.P. This position appeared to me to be clutching at straws, especially in view of the correspondence from I.P. filed as an exhibit to R.D.’s affidavit sworn March 27, 2012: that letter is dated September 11, 2006 and states that I.P. has DNA evidence indicating that he is not the father of S.P. and accordingly has no further obligation to care for or support O.P. or S.P. The DNA tests were not attached, but it is apparent that I.P. has no interest in being a father to S.P. According to the affidavit of Bruna Figliuzzi sworn May 17, 2010, I.P. met S.P. for the first time in June, 2006, after which I.P. obtained the paternity tests noted above. He eventually abandoned S.P. at the Canadian consulate in Detroit, Michigan. There was evidence that I.P. was physically abusive to S.P.

[10] The affidavits already filed as well as the affidavit of Angela Adams sworn April 5, 2012, indicate that I.P.’s whereabouts are unknown at present and O.P. herself does not have any information as to his whereabouts. When these proceedings were commenced, O.P. had indicated that she thought that I.P. now lived in an unknown location in Russia. The only occasion that S.P. had any contact with I.P. was unsuccessful and harmful to S.P. The resolution of these proceedings should not be delayed by a plan for this individual to care for S.P. when I.P. denies paternity and has not seen the child since August, 2006. Accordingly, there shall be an order to go dispensing with service of the application on I.P. pursuant to Rule 6(16) as his present location is unknown, and to delay the summary judgment motion to arrange for service on this individual would be prejudicial to the interests of S.P. This young boy has been in care for more than 23 months, and deserves resolution of the matter.

[11] This motion was subsequently fully argued. For the reasons set out below, I have granted summary judgment in this matter and made the following orders:

a) The children are both found to be of non Native, non Indian and of Catholic status;

b) Both children are found to be in need of protection;

c) There shall be a deemed custody order in respect of J.D. and R.D. shall have custody of J.D.

d) The Respondent Mother shall have access to J.D. which access shall be facilitated and arranged by R.D. and the Society as set out below;

e) S.P. shall be made a Crown ward;

f) O.P. shall have access to S.P. at the discretion of the Society and as arranged through the Society.

BACKGROUND FACTS

[12] The Respondent Mother, O.P., is 39 years of age, and emigrated from Russia in 2000. She initially lived in Belgium and France and she came to Canada in 2002. Her oldest child, S.P., is now 12 years of age and until apprehension, his mother had been the primary caregiver of him since birth. Upon arrival in Canada, O.P. settled in Windsor, Ontario, took English lessons and graduated from teachers college at the University of Windsor. In 2007, she obtained employment as an occasional teacher with the Simcoe Muskoka District Catholic School Board. As well as speaking Russian and English, O.P. is also fluent in French.

[13] The Respondent Father of J.D., R.D., is 55 years old and emigrated from Poland to Canada in 1985. He has two adult children and worked for much of his life as a truck driver. He was injured at work and now receives permanent WSIB benefits.

[14] R.D. and O.P. met in Windsor in 2005, and, according to R.D., began living together at that time. Presumably at that time, O.P. was attending teacher’s college. R.D. recounts in his affidavit how, in June, 2006, O.P. decided to leave S.P. with his natural father, I.P. who then resided in Michigan; apparently S.P. stayed with I.P. for about five weeks. R.D. states that I.P. never wished S.P. to live with him, and I.P. eventually dropped S.P. off at the Canadian Consulate in Detroit along with O.P.’s phone number. The Respondent Mother was called to pick S.P. up and S.P. later reported that I.P. was physically abusive during his short stay with him. R.D. has filed a letter from I.P. from September 11, 2006 which stated that I.P. had obtained DNA testing which indicated that he was not the natural father of S.P. The letter stated that the testing was attached, but it was not. Apparently, S.P. had never met I.P. prior to being left in his care in June, 2006; since being dropped off at the Canadian Consulate, S.P. has had no further contact with I.P.

[15] The relationship between R.D. and O.P. was volatile; the parties moved to Simcoe County in 2007, but there were several separations. In 2008, O.P. discovered that she was pregnant and the parties decided to make a further go of the relationship. They purchased a home in Barrie; it is common ground that about $20,000 of the down payment came from R.D. but O.P. states that this consisted of money which was already owed to her by R.D. In any event, the home was put into O.P.’s name and this is the subject matter of matrimonial litigation under the Family Law Act as noted above as well as a Small Claims Court matter which began in Windsor, was traversed to Barrie and joined with the matrimonial litigation. The parties resided together in the home until J.D. was born on […], 2009.

[16] There was at least one further short separation subsequent to J.D.’s birth. In January, 2010, O.P. went back to work as an occasional teacher, and R.D. stayed at home to care for J.D. In April, 2010, R.D. travelled to Poland to care for his ailing 78 year old mother; because he does not fly and has to travel by boat, he was intent upon staying in Poland for six months.

[17] On May 13, 2010, S.P. told a classmate that he had a bruise on his chest. The Society and the Barrie Police were called by the school; they interviewed S.P. who disclosed that his mother had hit him with a belt on his buttocks and had punched him and pushed him. He told the worker that the bruises found on his chest, torso, arm and ear resulted from blows inflicted on him by the Respondent Mother, O.P. Photographs attached to the affidavit showed the injuries which S.P. said were caused by his mother. Both children were apprehended and charges of assault were laid against O.P., who initially stated that S.P. suffered the injuries when he had fallen down a hill while playing. Later in an affidavit sworn March 2, 2011, O.P. stated that she suspected that the bruises were caused by fighting with a rough group of boys that he was hanging around with; the affidavit said that S.P. falsely disclosed that his mother had hit him due to a desire to have “vengeance” against her. If this is the case, S.P. is very committed to his desire for vengeance; he has consistently maintained that his mother hit him throughout these proceedings from the date of apprehension to the present.

[18] On February 11, 2011, R.D. provided some videos to the police by which apparently showed the mother assaulting S.P. on a number of different occasions; the police were of the view that the videos were not doctored in any way although the mother alleges that they were. On March 9, 2012, O.P. was convicted of assaulting S.P. and she awaits sentencing which is presently scheduled for next month; the crown is requesting incarceration. S.P. was to be a witness at his mother’s criminal trial, and Victim’s Services referred S.P. to a social worker from the BOOST program to prepare him for his testimony; I assume that he gave evidence at the criminal trial against his mother. I was advised in argument that O.P. is intent upon appealing that conviction.

[19] Whether she appeals the verdict or not, the injuries were serious and concerning. A medical report of Dr. Michelle Gordon attached as an exhibit to the affidavit of Patricia McLean sworn September 9, 2010 indicates that the bruising probably resulted from the blows inflicted on S.P. by his mother as disclosed to the Society and the Police. The report indicates that bruising in the ear is “uncommon” for accidental injury and comes from forceful tugging on the ear or a direct blow to the ear. The bruising on the chest is described as “significant” and a child of this age and development should have been able to recount what happened, including a fall while playing as then alleged by O.P. Dr. Gordon states that the bruises on both the chest and the arm are “in keeping with blunt force trauma as described by this child.”

[20] After the apprehension, Mr. Manning was appointed as counsel for the child, S.P. R.D. returned to Canada in July, 2010; he filed an answer suggesting that both children be placed in his care. It was apparent from the material filed by the Society workers that they trusted him as a parent, and O.P. had registered for a parenting class. R.D. moved back into the common residence and on July 26, 2010, Temporary Minutes of Settlement were signed returning J.D. into R.D.’s care in the family home. S.P. remained in foster care which upset him greatly. On September 10, 2010, the Society worker, Patricia McLean, swore an affidavit wherein it was proposed that S.P. be placed into the care of R.D. through a six month supervision order and that J.D. be placed into the care of both R.D. and O.P. on a six month supervision order. Safeguards were put into place insofar as R.D. agreed not to leave S.P. in the care of O.P. for more than three hours; Temporary Minutes of Settlement were signed on September 27, 2010 returning S.P. to the care of R.D. on this basis through an extended access visit. On November 12, 2010, the Society agreed to withdraw the protection application respecting J.D. while S.P. continued to reside with R.D. on a temporary basis through an extended access visit, while remaining in the care of the Society. Under the Temporary Minutes of Settlement signed on that day, R.D. agreed that he would notify the Society if he was to be away from the home for more than four days. O.P. alleges that R.D. breached this provision a number of times, and left the children in her care for periods in excess of 4 days on several occasions without notifying the Society.

[21] Unfortunately, O.P.’s father moved into the home for an extended visit and tensions rose within the household. It became apparent that the relationship between R.D. and O.P. was breaking down and there were serious reported domestic disputes between the parties. On December 13, 2010, the Society attempted to apprehend J.D. at court; counsel for the Respondent Mother physically prevented the apprehension from taking place and the Society backed off and did not follow through. The parties’ relationship completely collapsed over Christmas and at the request of R.D., S.P. was taken back into foster care on January 5, 2011. R.D. went to Windsor for a three day visit on January 6, 2011 with J.D., and he returned on January 10, 2011 to find the locks changed and he had to get the police involved in order to gain entry to the home. The police were called on four occasions that evening and they advised O.P. that R.D. had a right to remain in the home. On January 11, 2011, O.P. showed up at the C.A.S. offices with J.D., advising that she thought it best that J.D. be returned to Society care for now. J.D. was left at the Society offices and re-apprehended; new proceedings were begun respecting J.D. by way of application dated and returnable January 17, 2011.

[22] On January 12, 2011, R.D. was removed from the common residence by means of a restraining order obtained by O.P. in the family law proceedings. He moved soon after that into a basement apartment in Windsor in the home of his ex-wife, who indicated that she was supportive of a R.D. having custody of J.D., as were R.D.’s two adult children. The Windsor C.A.S. representatives conducted a home inspection and found the facilities to be adequate. On February 10, 2011, R.D. filed a plan of care indicating that he wished to have care and control of J.D., subject to Society supervision; on March 30, 2011, the Society amended its application to indicate that they were in agreement with this proposal. On April 11, 2011, a temporary care and control hearing was argued before Eberhard J. of this court; she placed J.D. in the temporary care of R.D. and J.D. has resided with him in Windsor since that date. He now has a two bedroom apartment which has been inspected and approved by the Windsor C.A.S. The Society has now amended its pleadings to indicate that they wish a deemed custody order in favour of R.D. pursuant to s. 57.1 of the Child and Family Services Act.

[23] On December 13, 2010, on the date that the Society unsuccessfully attempted to apprehend J.D., the parties agreed to an order that they begin the process for a parenting capacity assessment with Dr. Peter Marshall. At that point in time, the only child in issue was S.P., and R.D. does not appear to have signed the consent. The order for the parenting capacity assessment was confirmed by Eberhard J. on April 11, 2011 when she placed J.D. with the Respondent Father, R.D. She noted in her endorsement that R.D. had verbally consented to the assessment that day and it appeared to be contemplated in that endorsement that both parties would be part of that assessment process.

[24] In any event, the assessment process began in late July, 2011 and the last interview with O.P. was completed on October 18, 2010. The home study in O.P.’s home took place on September 24, 2011. The report was released on December 5, 2011.

[25] It is to be noted that when the assessment process began, the Society advised Dr. Marshall that R.D. was no longer involved in the assessment process; in the words of Dr. Marshall, “in light of the recent arrangements for [J.D.’s] care, the parenting capacity assessment was to address only [O.P.’s] parenting abilities.” This was a surprise to O.P.; she had thought, as had Eberhard J. who had ordered those “recent arrangements”, that R.D. would be included in the assessment. Certainly, an assessment of R.D.’s abilities to parent would have been of assistance in deciding this motion and it strikes me as high handed on the part of the Society to exclude arbitrarily one of the parents from the assessment whether or not they were entitled to so. Moreover, to include R.D. would have ensured a perception of an even handed approach to the situation. As will be discussed below, the exclusion of R.D. from the assessment process is one of the grounds of the Respondent Mother’s attack on the assessment itself as well as defending this motion for summary judgment.

ANALYSIS

[26] This is a summary judgment motion first and foremost; if summary judgment is refused this matter proceeds to trial on all issues including the protection issues. Initially, I need to determine whether summary judgment will go for one or both children as to whether they are in need of protection; once this is done, there needs to be a careful review of the remedies which are appropriate respecting each child.

(a) Should there be summary judgment for a finding that one or both of the children be found in need of protection?

[27] Under this heading, I will first deal with the general law respecting summary judgment issues. As required under the case law, I will then review and assess the evidence which was provided by the Society in order to determine whether it satisfies me that there is no genuine issue for trial. I will then review and assess the evidence provided in opposition by O.P. and finally I will outline my findings on summary judgment itself.

(i) Law of Summary Judgment in Child Protection Matters

[28] This is a motion under Rule 16(1), which allows a party to bring a motion for “summary judgment for a final order without a trial on all or part of any claim”. The remedy is available in child protection proceedings: See Rule 16(2). Rules 16(4) and (4.1) set out the evidence which is to be provided in support of and in opposition to a motion for summary judgment:

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

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

[29] The test for the granting of a motion for summary judgment is set out in Rule 16(6) which reads as follows:

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[30] There has been some discussion of whether the recent amendments to Rule 20 of the Rules of Civil Procedure[^4] apply to family law summary judgement motions made under Rule 16. Those amendments changed the wording of Rule 20.04(2) to wording similar to that contained in Rule 16(6); they also gave additional powers under rule 20.04(2.1) to allow a justice to weigh the evidence, make credibility findings and to draw reasonable inferences from the evidence. The cases have been inconsistent as to whether these amendments, specifically the evidentiary powers under Rule 20.04(2.1) can be used in a motion under Rule 16 of the Family Law Rules: see for example Steine v. Steine, 2010 ONSC 4289, [2010] O.J. No. 3331 (S.C.J.); cf. Starr v. Gordon, 2010 ONSC 4167, [2010] O.J. No. 3223 (S.C.J.) and Catholic Children’s Aid Society of Hamilton v. A.(M.), 2012 CarswellOnt 548 (S.C.J.). It is to be noted that the additional evidentiary powers given to a court under Rule 20.04(2.1) were granted in order to address case law which prevented a justice from deciding on the credibility of a witness, or to weigh evidence on a summary judgment motion: see Transamerica Occidental Life Insurance Co. v. Toronto Dominion Bank (1999), 1999 CanLII 3716 (ON CA), 44 O.R. (3d) 97 (C.A.) for a statement of the former law under Rule 20 prior to the amendments.

[31] Amendments similar to Rule 20.04(2.1) were not made to the Family Law Rules, and we are left with the former law which prevents me from weighing the evidence of the parties, making judgments as to credibility or drawing inferences from the evidence. It would be tempting to utilize Rule 1(7) of the Family Law Rules to adopt by reference powers set out in Rule 20.04(2.1) in a motion for summary judgment under Rule 16. I do not believe that this is appropriate; the Family Law Rules are in my view, intended to act as a complete code where possible governing the conduct of family law proceedings. Rule 1(7) is only intended to apply where the “rules do not cover a matter adequately” and Rule 16 has been successfully used and applied on an ongoing basis since the Family Law Rules were promulgated in 1999; there is no reason to believe that the rule is inadequate other than the fact that Rule 20.04 was amended in 2008 in order to grant the court additional powers in civil matters. If a similar amendment is required to the Family Law Rules, it is up to the Family Law Rules Committee to amend the rule respecting summary judgment if the committee feels that there is a problem with the rule that requires remedy; Rule 1(7) is not intended for that purpose. Incorporating provisions from the Rules of Civil Procedure under Rule 1(7) is only to be used sparingly in my view where there is a clear omission or deficiency in the Family Law Rules which calls for a remedy. That is not the case here.

[32] It is accordingly clear that cases decided under Rule 20.04(2) should be viewed with caution; based upon the present state of the law, the court deciding a family law summary judgment matter does not have the tools under Rule 20.04(2.1) regarding the use and weighing of the evidence.

[33] The conflict between the family law and the civil rules is apparent from a review of the major case recently decided, and applied by Chappel J. in Catholic Children’s Aid Society of Hamilton v. A.(M.), supra, being Combined Air Mechanical Services Inc. v. Flesch (2011), 2011 ONCA 764, 108 O.R. (3d) 1 (C.A.); in that case the court comprehensively reviewed the amendments to Rule 20.04 to determine what types of cases are amenable to summary judgment under that Rule. Our Court of Appeal determined that the amended wording in Rule 20.04(2) (which now reads the same as Rule 16(6) of the Family Law Rules) allows a justice to not only grant summary judgment where a case has no merit whatsoever; it also allows summary judgment where the “interests of justice” require it. As set out in para. 44, “The amended wording, coupled with the enhanced powers under rules 20.04(2.1) and (2.2), now permit the motion judge to dispose of cases on the merits where the trial process is not required in the ‘interest of justice’.” As also noted by Chappell J. in the A.(M.) case, in doing so Court of Appeal proffered the “full appreciation test” set out in Combined Air at para. 50: “can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by way of summary judgment or can this full appreciation only be achieved by way of a trial?”

[34] It appears from my reading of the Combined Air case that the enhanced evidentiary powers under Rule 20.04(2.1) are one of the major reasons that the Court of Appeal enhanced the powers of a motions judge in granting summary judgment under Rule 20 of the Rules of Civil Procedure. This is apparent from para. 54 of the case, wherein the Court stated as follows:

The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.

[35] The wording of Rule 16(6) allows me to decide summary judgment where there is no genuine case for trial. I am unable to “weigh and draw inferences from the evidence” as contemplated by the Combined Air case. Without these enhanced powers, I have to approach the test as set out in Combined Air with caution as these powers under Rule 20.04(2.1) were specifically referred to by the Court of Appeal in determining the enhanced powers of a court in a motion for summary judgment. Accordingly, it is best that I have regard to the body of case law which has grown up surrounding child protection summary judgment motions and, again, the Combined Air case must be approached with caution.

[36] It is to be noted, however, that the Family Law Rules, and specifically Rule 16, opened up a new remedy in family law and child protection matters which was not available previously. Summary judgment has since been requested and granted in numerous child protection matters and many courts have made findings of children in need of protection on a summary judgment basis. There are, accordingly, a good number of cases considering the principles of granting summary judgment in child protection matters.

[37] The case law makes it apparent that the initial burden is on the Society to prove on the balance of probabilities through its motion materials that there is no genuine issue requiring a trial: see Children’s Aid Society Region of Halton v. K.L.A., 2006 CanLII 33538 (ON CA), [2006] O.J. No. 3958 (C.A.) at para. 19 and Catholic Children’s Aid Society of Hamilton v. A.(M.), supra at para. 35. Once that evidence is provided and that prima facie onus is met, it becomes the task of the responding party to lead sufficient and cogent evidence in order to avoid an order for summary judgment. As stated by Lane J. in Jewish Family & Child Services v. A.(R.), [2001] O.J. No. 47 (S.C.J.) at para. 23:

The inherent logic of the rule imposes on the parents the task of responding to the evidence of the Society if they are to avoid an adverse decision. This could be done by delivering affidavit evidence themselves, or of others on their behalf, showing a different state of facts from those relied on by the Society. It could be done by showing that the Society's evidence does not address a material fact at all, so there is a gap in the proof. But if the defence is a different state of facts, mere denial cannot be enough to raise a triable issue of fact. There was no denial of due process to the parents by the use of the summary judgment procedure and the making of the order appealed from.

[38] The onus of a responding party has been set out in many different ways. Cases have stated that the party replying to a summary judgment motion must “provide a complete evidentiary record in response to this motion for judgment and to put her ‘best foot forward’ in the material:” Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 1994 CanLII 7367 (ON SC), 22 O.R. (3d) 25 (C.A.) at p. 28 as cited in Children’s Aid Society of Toronto v. L.(E.L.), (1999), 2000 CanLII 11422 (ON CJ), 134 A.C.W.S. (3d) 263 (Ont. C.J.) at para. 27. The responding party cannot “rely upon self-serving affidavits that merely assert defences without providing details or supporting evidence”: Children’s Aid Society of the County of Simcoe v. S.T.1 , 2009 CanLII 57458 (ON SCDC), [2009] O.J. No. 4402 (S.C.J.) at para. 12. In other words, the responding party must “provide evidence of specific facts showing that there is a genuine issue for trial”: Children’s Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 2969 (S.C.J.). The facts relied upon must be material, and blanket denials of the facts will not do: see Catholic Children’s Aid Society of Hamilton v. A.(M.), supra at para. 36.

[39] A number of cases have reviewed when a court should grant summary judgment in child protection proceedings. As suggested in J.C.J.-R. v. Children’s Aid Society of Oxford County, 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.) at para. 8, “it is appropriate to grant summary judgment ‘when the result is a foregone conclusion.’” In Children’s Aid Society of the County of Lanark & The Town of Smiths Falls v. S.M., 2009 ONCA 606, [2009] O.J. No. 5173 (S.C.J.), Kershman J. stated at para. 21, “[i]f it is a foregone conclusion based on the admitted or undisputed evidence, and the best interests of the child require an order for crown wardship, then there is no genuine issue for trial.” But most importantly, there has to be some improvement in the parent’s position since the apprehension; without evidence of progress of some sort, summary judgment should issue: Catholic Children’s Aid Society of Hamilton v. A.(M.), supra at para. 39. There has to be more than a heartfelt desire to improve; there must be some modicum of evidence that the responding party has “better prospects” or some “new technique or ability” as a parent: Children’s Aid society of Toronto v. E.L.L., supra at para. 27.

(ii) The Society’s Evidence on This Summary Judgment Motion

[40] Apart from the evidence of physical abuse said to be perpetrated on S.P. by O.P., which I have already outlined in detail, the major concerns expressed by both Ms. Gibson on behalf of the Society and by Mr. Manning on behalf of S.P. surround the parenting abilities of the Respondent Mother as evidenced by her behaviour during access visits, as well as the parenting capacity assessment completed by Dr. Marshall. Those facts, above all, are what are relied upon in this summary judgment motion. I will discuss each of these issues in detail below.

ONGOING ACCESS CONCERNS

[41] Access by O.P. to the children has been problematic since the commencement of the initial proceedings respecting both children. As early as July 26, 2010, by Interim Minutes of Settlement, O.P. was given supervised access to S.P. on two occasions per week; soon after that date, however, both children were living in the common residence with both parties. The two days per week arrangement was again confirmed respecting both children after the re-apprehension of J.D. in January, 2011 by both the endorsement of Wildman J. dated January 17, 2011 and the order of Eberhard J. made at the temporary care and control hearing on April 11, 2011.

[42] Unfortunately, O.P. has had difficulty in following through on the access or ensuring that her contact with the children is meaningful or consistent; since April, 2011, the children have enjoyed nothing like the two days per week of access to their mother as contemplated by the various court orders made in this proceeding.

[43] As this matter progressed, O.P.’s access to the children became increasingly sporadic in nature. Much of the responsibility for this can be laid at the feet of O.P. Since J.D. was placed with her father in April, 2011, representatives of the Society have attempted on a number of occasions to negotiate access terms with O.P. without success; in doing so, their intent was to maintain the comfort level of the children, especially S.P. while facilitating access to the Respondent Mother; their efforts were frustrated by a number of roadblocks and non-negotiable terms of access which were thrown up on an continual basis by O.P. Her intent in doing this does not appear to be child focussed but rather to validate her own version of the facts including her strong perception that the Society was to blame for the loss of her children; that the access restrictions placed on her by the Society, and in particular the requirement to speak English during those visits, were unreasonable; that foster care was inadequate and that the foster parents were both incompetent and in it for the money; and that R.D. was a bad person who should not be parenting J.D. The net result was that, over time, access eventually diminished to visits of barely once per month; as far as I can see the last visit that took place between O.P. and the children was a supervised home visit which took place on February 14, 2012, prior to the criminal trial. It is to be noted that although the Society had agreed on January 23, 2012 to bear the cost of train fare to Windsor so that O.P. could have access to J.D., O.P. has not taken advantage of that offer and has not travelled to Windsor in some time to see J.D.

[44] A number of affidavits have been filed, both by Society workers and the one to one workers retained by the Society to supervise and assist with the access. As well as noting the frequency of access, these affidavits also outline numerous incidents which indicate a callous disregard by O.P. of the needs of the children and in particular, S.P. The fact that there was a supervisor present did not dissuade or prevent O.P. from continuously discussing adult issues with S.P. and failing to empathize with S.P. or to take into account S.P.’s needs to have his own situation in foster care validated.

[45] The Society concerns indicating the problematic nature of access can be outlined as follows:

(a) Failure to Speak English to S.P.

[46] The issue of the mother speaking Russian to S.P. during access visits has been an ongoing concern and source of conflict. There are two issues: Firstly, Society supervisors needed to know what was being said to S.P. due to the upcoming criminal trial and the terms of bail which prevented the mother from discussing the criminal charges with S.P. Secondly, S.P. now has a limited knowledge of Russian; he cannot understand much of the conversation when O.P. speaks to him in Russian. Notwithstanding this, O.P. has been insistent throughout that she speak with S.P. in Russian and has done so despite cautions by the access supervisors and C.A.S. workers. When it is pointed out that S.P. cannot understand Russian, O.P. states that this is the fault of the Society because they had taken S.P. out of Russian school; it was apparent that the quality of access between O.P. and the children took second place to O.P.’s position that she should be entitled to speak Russian to S.P.; in O.P.’s eyes the fact that S.P. had been taken out of Russian school by the Society excused this behaviour. Some of the incidents are as follows:

i. On January 18, 2011, the Respondent Mother was advised that she had to speak to S.P. in English; the mother’s response was that “she just wouldn’t speak with her son.”

ii. On January 24, 2011, the Respondent Mother spoke Russian to J.D. and her father, who was present for the visit. S.P. could not understand the conversation, and requested that she translate; she ignored him.

iii. On February 7, 2011, O.P. began to speak Russian to S.P. The access supervisor Chanda-Rae Namour intervened and finally was forced to tell O.P. that the visit would be terminated if O.P. continued to speak Russian. O.P. then told S.P. that “this lady doesn’t want you to see your family.”

iv. On July 7, 2011, O.P. insisted on speaking Russian to S.P.; when the worker told O.P. to speak in English, she told the worker that she would only speak in Russian and if the worker wished to terminate the visit she could. It is to be noted that this was the first time that the children had seen their mother for more than two months. It is common ground that S.P. was not fluent in Russian at this point in time and he was confused by the conversation. Eventually, O.P. insisted that S.P. speak French, which he was better able to manage.

v. On July 9, 2011, O.P. greeted the workers in Russian; they told her that they could not understand that language and noted that S.P. could not understand Russian either and that the use of Russian during the previous visit had upset him. O.P. stated that “that is your problem, not mine as you took him out of Russian school.” She stated that she and S.P. were Russian citizens and that she would only speak Russian to S.P. As a result, the visit was cancelled.

vi. On December 12, 2011, the mother had a home visit with both children; she insisted upon speaking Russian. When asked if he could understand what his mother was saying, S.P. said “some yes, some no.”

(b) Rudeness to Society Workers and Staff

[47] This concern was spoken of in the affidavit of Patricia McLean dated February 25, 2011 when she speaks of the mother being “oppositional, defiant and non-compliant in terms of her interactions with myself, other workers and the supervised access worker.” Ms. Namour speaks of O.P. being “uncooperative, rude and dismissive with me.” This would not be a problem in a meeting between staff and O.P. without the children present; many parties to a C.A.S. action are suspicious and oppositional as trust deteriorates and matters proceed along in court. However, the difference here is that much of this behaviour was in front of the children and accordingly affected the access visits between the children and O.P. As set out in the affidavit of Patricia McLean, “[t]he children would pick up on the mother’s behaviour and would become tense during access visits.” In her need to demonstrate her attitude towards the C.A.S. workers involved, the mother was unable to see the need to address the comfort level of the children during the access visits.

(c) Comments on Foster Parents During Access Visits

[48] Throughout, the Respondent Mother has had a view of the foster parents that is both troubling and misguided. In one affidavit, she referred to the foster parents as having been found through Kijiji or the Barrie Advance; she provided evidence of some advertisements for group home candidates which were placed by an agency other than the Simcoe County C.A.S. On another occasion, in an affidavit, she stated that the C.A.S. had told S.P. that the “foster parents [are] more important than the mother, sister and real family” and that the foster parents “just make money on him.” Again, this viewpoint about the foster parents may be valid; however, the fact that O.P. was unable to keep these views to herself when with the children demonstrated a fundamental insensitivity to their needs when they had little choice but to live with those foster parents. Some of these incidents include the following:

i. During the February 9, 2011 visit, O.P. took away a book that S.P. had received from the foster parents. Later, O.P. noticed that S.P. was wearing a sweater purchased by the foster parents. O.P. told him that it was too big and that he looked “silly” wearing it. On the next visit on February 14, 2011, O.P. told S.P. to take the sweater and t-shirt off during the access visit; she told S.P. to only wear clothing that she had purchased for him. On the next visit, S.P. wisely decided not to wear the offending sweater.

ii. During the February 16, 2011 visit, O.P. saw the foster father waiting for S.P. and she told S.P. that he knew better than to talk to strangers.

iii. On March 7, 2011, O.P. stated that the children were filthy, their clothes were dirty and that they were wearing inappropriate clothes. These comments were made in front of the children. The worker, Patricia McLean stated in an affidavit that these statements made S.P. “nervous and uncomfortable.”

iv. On April 21, 2011 S.P. was wearing a sweater from the foster home; again, O.P. stated it was too big and that “[t]hey don’t care about you.” According to the observing worker, S.P. was upset.

v. On April 28, 2011, the mother told S.P. that the foster parents are “only taking care of you for the money.”

vi. On December 23, 2011, when S.P. attempted to give his mother a Christmas gift, O.P. stated that she did not know who the foster parents were and could not accept the present.

(d) General Insensitivity to Children’s Needs

[49] O.P. has demonstrated on a number of occasions to be insensitive to the emotional needs of the children. She appeared on a number of occasions to be unable to connect on a physical or emotional level to S.P. or J.D. She also seemed to be unable to avoid raising adult issues with or in front of S.P. A continual theme was the fact that R.D. was now a stranger and should be excluded from S.P.’s life. Examples include the following:

i. During the January 26, 2011 visit, O.P. was observed to be distant from S.P.; she failed to engage with him or make eye contact. She failed to acknowledge him when he tried to read to her, and told him at another point, “you stink” and asked if he took showers.

ii. On January 31, 2011, O.P. took a bottle away from J.D. because it belonged to O.P. and she put it in her purse. She failed to recognize J.D.’s distress at having the bottle taken away and refused to return the bottle with J.D. to the foster family.

iii. During the February 7, 2011 visit, O.P. ignored S.P. when he tried to engage in a conversation with O.P. and her father. Later, O.P. told S.P. that the “C.A.S. doesn’t care about brothers and sisters.” The supervisor was forced to intervene.

iv. During the February 9, 2012 visit, O.P. told S.P. that he must want to stay in the foster home because he treats his family “so badly.” She asked if S.P. wanted to be a foster child forever. The worker was forced to intervene.

v. On March 24, 2011, O.P. told S.P. that this would be the last time they would see each other. She told S.P. that the C.A.S. does not want S.P. to leave foster care and that they do not want her to have a family. She told S.P., referring to the upcoming temporary care and custody hearing scheduled for April 11, 2011, that the C.A.S. workers were going to send J.D. “far away” and that he would never again see his sister after that week. When the access supervisor attempted to intervene, O.P. told the supervisor to “mind her business” and that she said that she did not care whether what she said was appropriate or not. The visit was terminated and the police were called when O.P refused to leave. The decision was made after that point to arrange therapeutic access; O.P. later elected not to participate in any sort of therapeutic access program.

vi. On April 20, 2011, S.P. had a deck of cards which he had presumably gotten from the Respondent Father, R.D. O.P. told S.P. that “you don’t take things from strangers; I told you this.”

vii. On April 21, 2011, in front of the children, O.P. attempted to engage the worker, Patricia McLean, in discussions of adult issues in front of the children. Ms. McLean told the Respondent Mother not to discuss these issues in front of the children; the mother then told S.P. that Ms. McLean was a “liar”.

viii. On May 3, 2011, O.P. gave the children each an Easter Bunny; attached to the bunnies were notes stating that the gifts were from their “ex-mother.” O.P. then left without speaking to the children and did not return. She did not show for the next scheduled visit and did not see J.D. next until June 22, 2011 in Windsor and her next visit with both children took place on July 7, 2011.

ix. On July 7, 2011, S.P. was asked to get his sister who had arrived with the Respondent Father, R.D. and O.P. observed S.P. hug R.D. O.P. told him “don’t approach that stranger” and pulled him back into the room. During that visit as well, O.P. was observed to be cold and distant to S.P.; paying a great deal of attention to J.D. and O.P. ended the visit without acknowledging S.P.’s attempts to say goodbye.

x. During the home visit which took place on September 24, 2011 in the context of the Parenting Capacity Assessment, O.P. observed S.P. to have a nerf gun which had been given to him by the Respondent Father, R.D. She confiscated the gun and, according to the report, stated to S.P. that it was a “mistake meeting [R.D.] and that he was a stranger.” After S.P. disagreed, saying “once a family, always a family,” O.P. harangued S.P. for 15 minutes, giving a number of reasons why R.D. was a stranger. Finally, the observing social worker felt the need to intervene.

xi. On February 13, 2012, the Society worker supervised an access visit for both children in the mother’s home; at one point in time, O.P. saw that J.D. had cradle cap and told the worker, in front of S.P., “bring me a clean child tomorrow, they don’t bath her properly.”

(e) Sporadic Nature of Access Visits

[50] The affidavits disclose a number of missed visits, when the children were waiting for their mother to show and she did not. These include visits scheduled for May 4, 2011 and February 8, 2012. Moreover, after April, 2011, there were lengthy periods of time when O.P. did not exercise consistent access to the children. There was a two month gap between May 3 and July 7, 2011; one reason for this gap appears to be because J.D. went to Windsor with R.D., and O.P. would only agree to see the children together. She confirmed as much in her affidavit sworn May 30, 2011, where she complains about the C.A.S. separating her children, and states that “I am not going to visit the children which I do not raise for the past 6 months”. There appear to be other lengthy time periods when O.P. has not seen the children; these include a six week period between August 11 and September 24, 2011, a 10 week period between September 25 and December 12, 2011 and a six week period between December 23, 2011 and February 13, 2012.

[51] She also has had no contact with the children since February 14, 2012. Apparently this is because she is insistent on the visits taking place at her home, which apparently is not possible due to new bail conditions imposed on O.P. in January of this year.

PARENTING CAPACITY ASSESSMENT

[52] As noted above, the parenting capacity assessment was completed by Dr. Marshall over approximately three months between July and September, 2011; it was released on December 5, 2011. It is based upon interviews with O.P. and S.P., psychological testing of O.P., the observation of a lengthy home visit between O.P. and the children and consultation with collateral sources, including S.P.’s counselor. Dr. Marshall is a local psychologist and has completed numerous parenting capacity assessments; no issue was taken by either party of Dr. Marshall’s qualifications or the admissibility of the report for the purpose for which it was proffered.

[53] Dr. Marshall outlines in the report the concerns of the C.A.S. and notes that O.P. “does not consider these concerns to be valid.” He states that O.P. “was among the most challenging people to interview I have encountered over the course of conducting similar assessments.” He notes that she repeated the same “themes” over and over during the interview; he describes these themes as follows:

Asking a single question would typically lead to [O.P.’s] beginning to talk at great speed and length, very quickly digressing from the original question without having provided a response. This would almost always lead to her returning to a number of topics - in particular, her view that the C.A.S. and government are in the “business” of taking children away from parents; the inadequacy of foster care; the pervasive problems with the educational system in Canada; the view that people in Canada do not have control over their lives; and the view that children in Russia live in safer neighborhoods where they are cared for by the community at large, as well as their parents; and that the C.A.S. refuses to communicate with her and places “ridiculous” restrictions on her during access – in particular, telling her that she has to speak to the children in English as the supervisor needs to understand what she is saying. In her view, Russian is [S.P.’s] language and she wants this to be the case for [J.D.]. She emphasized that she never says anything inappropriate to the children.

[54] She stated that she was participating in the assessment because this was the only way she could get her children back. She stated that the videotapes utilized by the police had been “doctored” and that she never committed any sort of physical abuse against S.P. If there was a problem in her household involving the children, she took no responsibility for this whatsoever; it was the result of R.D.’s “abusiveness and domineering behaviour.” She denied that S.P. had any learning disabilities or Asberger’s and stated that she did not need any assistance in parenting her children. She denied that S.P. needed an Individual Educational Plan as recommended by his school.

[55] Dr. Marshall completed the Child Abuse Potential Inventory (“CAPI”) on O.P. The testing showed “significant elevations on a number of the clinical scales”, including areas of emotional and personality functionality. Adults having this profile “tend to have a poor self-image”; they are withdrawn, have difficulties in interpersonal relationships and poor anger management and coping skills. According to Dr. Marshall, the findings in respect of parenting fall “in the range associated with relatively high potential for physical abusiveness.” He quotes from the CAPI manual when he states:

Those with elevated abuse scores are more physiologically reactive to children, are more rigid in their expectations of the child’s behaviour, perceive more behaviour problems in their children with less child compliance, and report the use of more physical methods of discipline. They show less availability to their child, appear less responsive to temporal changes in the child’s behaviour and form less adequate child attachments.

The summary for the profile is as follows: “Collectively, these characteristics which are related to elevated abuse scores appear to set the foundation for a coercive cycle which results in physical child abuse.”

[56] In his interviewing and testing of S.P., Dr. Marshall noted that S.P. is quite perceptive as to the reality of the present situation. Although S.P. likes R.D. and refers to him as his Dad, he understands that his mother does not wish him to have anything to do with R.D. as he is considered a “stranger” and that his mother feels that R.D. is a “bad” person. S.P. stated that it is “better for him to stay in the foster home for now.” He stated to Dr. Marshall that he is scared of his mother at times and that “she has hit him really hard when she has been angry with him.” His intellect and academic achievement is within normal limits although he struggles with spelling and writing; however, based on interviews with the foster mother, S.P. scores “in the range consistent with Asberger’s.” Dr. Marshall noted that this is not a diagnosis, but an indication of a profile only.

[57] The home study was troubling to say in the least. I have already commented on the removal of the nerf gun that S.P. had been given by R.D. and the subsequent harangue from O.P. about why R.D. is not a member of the family any more. Earlier, however, there was also an interaction wherein O.P. became upset because S.P. had seen J.D. through R.D.; O.P. told S.P. that he should not be seeing R.D. as he is “not family”. She told S.P. that if S.P. “saw [R.D.] on the street, he was to ignore him as he was not supposed to see him.” The home visit showed, as well, that there was little interaction between O.P. and S.P. O.P. was critical of S.P. and gave little positive reinforcement. She gave confusing messages to the children. She attempted to speak Russian to J.D. who clearly did not understand what her mother was trying to say to her; instead of enjoying a visit which was the first that she had had in some time, she focused on teaching Russian to J.D., which was for her own gratification rather than her daughter’s.

[58] In reviewing the collateral sources, Dr. Marshall spoke with S.P.’s counselor and the foster parents, and reviewed the school report cards. He noted that the school had developed an Individual Education Plan in April, 2011; although S.P. is progressing well, his achievement is below the level for his grade as his work is evaluated based upon reduced expectations as set out in the IEP.

[59] In April, 2011, S.P. was referred to counseling with Margaret Broyden Counselling Services to assist him to deal with the “breakdown of his family.” Portions of the counseling reports were included in the material filed by the Society and are summarized in the assessment report. Many of the observations made during access visits were corroborated in the reports from Ms. Broyden; the reports confirm that S.P. told the counselor that the cards given to him by his father were taken away and that his mother was refusing to visit without J.D. being present. She noted that S.P. felt to blame for his mother not visiting, and that he wished to “remain with his foster parents and have visits with his mother.” S.P.’s wishes included a wish that “my mom would have stopped hitting me.”

[60] In his conclusions, Dr. Marshall outlined five different areas of concern:

(a) O.P.’s capabilities as a parent

[61] Under this heading, Dr. Marshall indicated that O.P. can supply basic needs to the children adequately. She can supervise the children and could nurture J.D. when she was hurt. She provided suitable activities for the children.

[62] However, there were serious concerns expressed in the parenting capacity assessment. The children found it difficult to have their mother show any interest in them or their activities. O.P. did not respond to the children when they sought her attention and there was a lack of sensitivity to the needs of S.P., especially concerning his stepfather. O.P. was highly critical of S.P. and gave no positive feedback. She showed no interest in modifying her parenting style and feels that there is no difficulty with her parenting abilities; Dr. Marshall concluded that he was “very doubtful that requiring any further involvement in a parenting program would be of any benefit.”

[63] Finally, Dr. Marshall noted the lack of realistic expectations in O.P.; at the time of the completion of the report, O.P. had stated that she had met an individual who lived in Russia, who would be coming to Canada to marry her which would allow her and her children to start over with this new individual. Dr. Marshall notes that it is unrealistic for O.P. to expect the seamless blending of a family, and to “erase all…memories” of R.D.

(b) Disorders, conditions, or aspects of history that can undermine parenting

[64] Under this heading, Dr. Marshall noted the history of violence in the household and that O.P.’s “profile is associated with a relatively high risk of physical abusiveness.”

(c) Issues relating to attachment

[65] Under this heading, Dr. Marshall describes S.P.’s attachment to his mother as “anxious” rather than “secure”; she remains important to S.P. and will be important to J.D. in the future. There is a clear interest in maintaining contact between the mother and both S.P. and J.D.

(d) Children’s special needs

[66] Under this heading, Dr. Marshall notes that there is a potential for S.P. to be eventually found to be suffering from Asberger’s Syndrome. However, the major issue noted is the fact that an IEP was recommended, and that O.P. did not support that and is generally dismissive of the Canadian educational system. The concern of course is that if S.P. continues to need assistance at school, that endeavor will not be supported by the Respondent Mother.

(e) Prognosis

[67] Under this heading, Dr. Marshall states very briefly that “the likelihood that [O.P.’s] ability to recognize and meet the needs of her children will remain low.”

[68] In sum, Dr. Marshall states that alternate caregivers should be considered for each of the children but that O.P. should, for the time being, receive supervised access to the children subject to a regular review to determine if access will increase in length.

CONCLUSIONS RE C.A.S. EVIDENCE

[69] As noted above, one of the criteria for granting summary judgment in a child protection matter is that there must be some evidence of improvement since the date of apprehension. That is not even on the horizon in the present case. As noted in the affidavits of the various C.A.S. workers and one to one workers, O.P. does not even acknowledge that she needs improvement. She denies committing the physical abuse that S.P. has complained of. Dr. Marshall has noted that there is little possibility of a parenting class or counselling doing any good as O.P. does not believe that she has any problem whatsoever with her parenting. This is notwithstanding the disregard she obviously had for the emotional needs of S.P. in her access visits or her complete inability to empathize with her children. This is also notwithstanding the fact that there was cogent evidence of the abuse perpetrated on S.P. as proven through S.P.’s statements to the police, to the medical authorities and the C.A.S. worker; O.P. had no explanation as to why S.P. would lie about the physical abuse that he suffered at the hands of O.P. other than to say that he wanted “vengeance” against O.P.

[70] The Society has provided overwhelming evidence of O.P.’s inability to parent the children and her inability to empathize with the children or meet their needs. There is substantial evidence on the record that O.P. was abusive to S.P. and caused physical injuries to S.P. He certainly has been consistent throughout that his mother caused the injuries and his testimony presumably was a factor in O.P. being convicted of assaulting him. The assessment by Dr. Marshall confirms that O.P. is in a high risk category for potential abuse. I find that the Society has met the initial onus of providing evidence which indicates that, without more, there is no genuine issue for trial in the present case.

(iii) O.P.’s Evidence in Opposition to This Summary Judgment Motion

[71] As discussed above, once the Society has met its onus to present evidence that there is no genuine issue for trial, the onus shifts to the responding parent or parents to provide sufficient evidence to indicate that it is in the interests of justice for the matter to proceed to a trail. As also noted, this evidence must be material to the facts in issue; it cannot be mere blanket denials or faint hope of improvement. Above all, the responding party must put his or her “best foot forward”; the evidence must be all of the evidence that the party might rely upon at trial and I cannot dismiss a motion for summary judgment based upon an indication that there may be better evidence which may come forward at trial.

[72] The Respondent Mother has filed a number of affidavits since these proceedings began; these include 4 affidavits filed on the record for the S.P. protection proceedings (Volume 1 of the continuing record) sworn May 30, August 29, September 1 and November 25, 2011 as well as 6 affidavits filed on the record for J.D.’s protection proceedings (Volume 2 of the continuing record) sworn March 2, October 31, December 12 and 28, 2011 and January 31 and March 13, 2012. Only the affidavit sworn March 13, 2012 is directed to the motion for summary judgment. I have, however, reviewed all of O.P.’s affidavits in light of the Society motion for summary judgment.

[73] I firstly must comment that the affidavits are reflective of the mother’s “themes” mentioned by Dr. Marshall in the introduction to his report. All of the affidavits are defensive in nature, and are designed to show the misdeeds of the Society workers, R.D., the foster parents, C.A.S. counsel or the Canadian legal and child welfare system in general. There is not a modicum of self-examination by O.P. or any responsibility assumed for where she and her children find themselves. Most of the affidavits were rambling discourses on the wrongs perpetrated on herself and the children, mostly by the Society and R.D. Although the Respondent Mother’s challenges with the English language are minimally responsible for this, the intent of the various affidavits is clear and shines through the language barrier.

[74] I would summarize the Respondent Mother’s evidence as follows:

(a) Access Visits

[75] O.P. blames the Society for her difficulties with access visits with the children. She states several times in her affidavit sworn August 29, 2011 that she was put in a “small dirty room” or an inappropriate room with the children which upset them and disturbed the visit. She said that R.D. was given a nicer room with a window. She stated in that affidavit that there had always been numerous and unreasonable restrictions put on her by the Society which made it impossible for her to meet their expectations during access. She also stated that the conditions made it impossible for her to have a meaningful conversation with S.P. and accordingly the access visits were strained, and at times without conversation. She complained in a number of affidavits about her inability to speak Russian to S.P. and acknowledged that this was, at times, a non-negotiable point for her, especially in view of her family’s language of origin; she accuses the workers of being “nationalists”. She complained that the children could not converse with her parents in Russian, and stated that she never discussed the criminal matter with the children. She blames the Society for unreasonably cancelling access visits or for failing to provide a schedule for access.

[76] In her statements about access, the one thing that she fails to do is to address her insensitivity to the children’s needs, and in particular those of S.P., during access visits. She fails to address her statements to S.P. about the foster parents; although she complains in the affidavit sworn August 29, 2011 about S.P.’s clothing being second hand and too large, she does not specifically address the incident where she forced S.P. to take the sweater and t-shirt off during the access visit or how this would affect him. She does not address the fact that S.P. had little choice but to reside with the foster parents and wear the clothes that were purchased for him and that there was little that he could do about that; she also does not address the fact that S.P. suffered through O.P.’s negative comments and forced disrobing that took place. As noted by Mr. Manning during argument, this was alienating behaviour which in my view required a response in O.P.’s material.

[77] She also does not address the fact that she continually during access visits attempted to draw the children into adult issues and that she attempted on a continual basis to have S.P. “forget” his stepfather, R.D. According to the Society affidavits, she continually referred to him as a “stranger” to the protestations of S.P., who likes his stepfather and wishes to continue to have contact with him. This is damaging and insensitive behaviour by O.P. which again deserved response. Although O.P., in her affidavit sworn March 12, 2012, attempted to address Dr. Marshall’s report about the toy gun confiscated by her at the end of the home visit because it was given to him by R.D., she states only that the report was wrong about it being put into the garbage. She said that the toy would be available in court, and was not thrown out. She does not address the fact that it was confiscated because it was given to S.P. by his stepfather (although in argument, O.P. attempted to state that it was taken away because she did not believe in children playing with guns, this was not in her affidavit). In the August 29, 2011 affidavit, at para. 63, in discussing her perceived bias against her by the Society, she complains that “Angela Adams did not tell [S.P.] that [R.D.] put him in the foster home and is trying to put his mother in jail”; that statement speaks volumes as to what information that O.P. thinks is appropriate to share with this 12 year old boy.

[78] Finally, she blames the Society for the sporadic nature of the access, stating that the workers cancelled access visits without good cause, and that she would show up for visits and the children would not be there. Again, the evidence in this regard is concerning and inconsistent. For example, O.P. complains in her August 29, 2011 affidavit that the Society did not follow through with the therapeutic access promised her. However, by this point in time, she had already refused therapeutic access in correspondence provided to Angela Adams on May 3, 2011. In another affidavit dated May 30, 2011, O.P. stated that she was no longer going to see the children and in fact did not do so for five weeks after that affidavit. She did not address the fact that at one point in time, she left notes for the children signed by their “ex-mother” and did not see them for some time after that.

(b) Complaints about R.D.

[79] In most of her affidavits, O.P. spends an inordinate amount of time flinging vitriol at R.D. She is clear that it is her view that R.D. cannot parent J.D. and that she should be returned to O.P.’s care.

[80] O.P. spent a great deal of effort commenting on the financial issues between her and R.D. She mentions on numerous occasions that R.D. had defrauded Workers’ Compensation in obtaining benefits, and that the truth of the matter would eventually come out. She stated that R.D. wanted custody of J.D. for the money only, and stated that he actually planned to trade J.D. with his sister for a home in Florida once he obtained full custody of her. She stated that he obtained custody as well so that he could collect child support and the child tax credit for J.D. She mentioned on numerous occasions in her affidavits that R.D. had $55,000 in savings and was working while collecting WSIB benefits.

[81] As noted, the affidavits filed by O.P. were largely dedicated to this topic. The affidavit filed by O.P. sworn August 29, 2011 was a lengthy affidavit; paragraphs 79 to 112 were mostly about R.D. and largely focused on the financial issues between the parties. In O.P.’s affidavit sworn in response to the summary judgment motion on March 13, 2012, Exhibits 1 to 14 (out of 18 Exhibits) were concerning the financial affairs of R.D. and were designed to show that he had been financially irresponsible within their relationship and that he attempted to defraud WSIB and the courts. The evidence did not stop there; on several occasions in her materials, O.P. spoke of how R.D.’s adult children had similarly obtained employment through false pretenses or fraud like their father.

[82] She stated as well that R.D. was not able to parent J.D. O.P. noted that J.D. was in day care, and accordingly, this proved that R.D. was not available to care for his child. She stated that he is saying he is disabled, and asks how he can drive a child safely while disabled. She states that he drinks to excess, goes on dating websites and was unfaithful. She states that J.D. would be better off placed with her. She alleges that J.D. is developmentally delayed because of R.D.’s bad parenting. She complains that R.D. was not involved in the parenting assessment but should have been.

[83] The real issue throughout this motion is whether summary judgment should go for an order that J.D. be declared to be a child in need of protection. I have to firstly state that the financial issues are not material to that issue; although R.D. may be financially irresponsible or even guilty of fraud, this does not have anything to do with his parenting ability.

[84] Moreover, the major issue to be determined is whether there is a case to go to trial over whether or not J.D. is in need of protection; that issue should not be deflected by focusing on R.D.’s financial or other defaults. The fact that he has placed the child in day care or is disabled is not in itself a reason to doubt his parenting abilities. He has successfully parented J.D. for a year since the decision of Eberhard J. to place J.D. with R.D. The Respondent Mother has not provided in any of her affidavits any specific evidence to show why R.D. should not be parenting J.D. She does not provide any evidence to prove what appears to be a farfetched allegation that R.D. is planning to “sell” his daughter to his sister; she also has not provided any specific evidence of speech impairment or development issues other than her own limited observations. In my view, the affidavit of the Respondent Mother does not contain material evidence which would provide for a “genuine issue for trial” respecting R.D.’s parenting abilities as defined by Rule 16(4.1).

(c) Proof of Abuse

[85] It is apparent from the material and from her plea at trial that O.P. denies having physically abused her son, S.P. She initially stated to the police that the child had probably fallen during play and that this was the cause of the bruising. She stated to Dr. Marshall that she did not hit S.P., but did “spank” him “because of his lying.” She stated that her use of physical discipline was occasional.

[86] She addressed the abuse issue in several affidavits. She stated in one affidavit sworn March 2, 2011 that she believed that S.P. was “beaten up” by a “rough bunch of children”. She stated in that affidavit that S.P. told her that he wanted “vengeance” against her and that was why he stated that O.P. had hit him. In another affidavit, she discounted S.P.’s evidence; in paragraph 110 of the affidavit sworn by O.P. on August 29, 2011, she stated that the use of the word “hit” was mixed up with the word in Russian for “spank” and this is where the misunderstanding lay. She stated that the DVDs provided by R.D. showing her hitting S.P. had been doctored; she also even implied that the DVD of the statement of S.P. given to the police was doctored as well and that it was not really S.P.’s voice in the video.

[87] S.P. has consistently advised the police, the C.A.S. workers, Dr. Marshall, Dr. Michelle Gordon, and the counselor, Margaret Broyden, of the abuse suffered by him at the hands of his mother. As I said above, if S.P. wanted vengeance of some sort (and no reason was given by O.P. of why he would want that “vengeance”), he has been remarkably consistent in doing so insofar as he has maintained the same version of events since being apprehended nearly two years ago in May, 2010. Moreover, the medical evidence is deeply troubling as to the nature of these blows. The issue of this abuse was addressed by the mother on two occasions in the 10 affidavits which were filed, and the two affidavits contain inconsistent stories. If that is the mother’s “best foot forward”, I have no difficulty in finding that she has failed to file evidence which would result in a triable issue regarding the abuse suffered by S.P. and as to how it was caused.

(d) Plans of Care

[88] The latest Plan of Care filed on O.P.’s behalf is that S.P. and J.D. would be cared for by the maternal grandmother who is in Canada, and who attended as a family member at the hearing of the summary judgment motion. That plan of care was put forward by Ina Titlina, who is the maternal grandmother; it is apparent, however, that the handwriting on that plan of care is that of the Respondent Mother’s. That plan of care was served on March 20, 2012 after the motion for summary judgment was scheduled.

[89] This is not the first plan of care suggested by the Respondent Mother. She has also suggested in several affidavits that she is getting married and her fiancé is attempting to obtain entry into the country from Russia. In one affidavit, she states that he will be here by September, 2011; in another she stated that he would be arriving in October; in her latest affidavit sworn March 13, 2012, she states that he will be able to immigrate to Canada in June, 2012.

[90] In another affidavit, she suggests that the children be placed in the care of her father, who has now returned to Russia, or alternatively an individual named John Leihn (who she also suggested in place of the therapeutic access supervisor).

[91] During argument, O.P. suggested that she wished to put forward a further plan of care involving I.P. taking care of S.P. This is notwithstanding the fact that she does not know where he lives (at the commencement of proceedings, she told the C.A.S. worker that she thought he was in Russia; in 2006 he lived in Michigan) and also notwithstanding the fact that the last venture of I.P. into S.P.’s life was spectacularly unsuccessful, and perhaps abusive.

[92] Dr. Marshall commented on how unrealistic it was of O.P. to promote a plan of care whereby a new husband who had never met the children could jump in and take the place of R.D. in a blended family. The plan involving I.P. as a caregiver is, on its face, nonsensical. The plan involving the Respondent’s father is unrealistic because he has returned to Russia and for the same reasons as to why the plan put forward by Ina Titlana is also unrealistic. I do not know who John Leihn is or what qualifications he would have to care for the children. Finally the plan put forward by Ina Titlina is too little, too late. She does not explain in the plan how she will protect the children from O.P. if necessary and she does not explain how she will be able to remain in the country once her visitor’s visa expires. She does not explain how she will get around the language barrier; it is clear from the evidence that neither child is presently fluent in Russia. She does not explain how she will support herself and the children.

[93] All of these plans come within the definition of “heartfelt desires” as described in Children’s Aid society of Toronto v. E.L.L., supra. I cannot take into account the possibility of “better prospects” without some evidence of those improved prospects, if any. That evidence has not been provided by the Respondent Mother.

[94] I do not find the plans of care put forward by the Respondent Mother to be a material consideration in deciding this motion for summary judgment.

(e) Parenting Abilities

[95] O.P. states in her materials that the Society never offered her an adequate opportunity to parent the children alone. She notes that between September and December, 2011, when the children lived with both parties and she was left with them on a number of occasions in excess of the four days allowed under the Minutes, she parented the children without incident. She feels that R.D. received an unfair advantage when he was provided J.D. in April, 2011.

[96] The difficulty with this is that the parties are now separated, and if the decision of this court was to dismiss the claim for a finding of protection at trial, the matter would then resolve itself down to which parent the children will reside with. Regarding S.P., that would be a foregone conclusion as R.D. now lives in Windsor and is not S.P.’s natural father. The evidence is that when the parties were living together, there was no issue as to protection of the children other than in respect of the conflict between the parties, presumably because R.D. put some limits on O.P.’s behaviour. Those limits are no longer there; experience shows that there are serious concerns about O.P. parenting the children in the absence of R.D. as just over a month after he left for Poland, the children were apprehended due to abuse issues. The evidence is that R.D. is considered to be a reasonable and safe parent and the children were returned to the parents several months after his return to Canada.

[97] This process is not a science experiment, and to “try out” solutions to see if they work is not evidence which goes to whether there is a genuine issue for trial. The fact that there was no problem with O.P. during the time that the children were left with the parties after September, 2011 is not an indication of her parenting abilities; although she may have been left with the children for several days at a time, both parties were largely living under the same roof throughout that period of time. I cannot find the fact that O.P. was able to parent the children for several days at a time as being evidence of a genuine issue for trial.

[98] O.P. also relies upon the fact that she has taken a Triple P parenting course and as such has been seeking some sort of improvement in her parenting abilities. However, she filed 10 affidavits without filing a copy of the Certificate of Completion of that course and has not done so to date. During argument, she said that she could get it and provide it to me later; however, I have to make this decision based upon the evidence which is before the court on the date of argument, subject to the filing restrictions set out in Eberhard J.’s endorsement from March 23, 2012. She does not outline anywhere in any of her affidavits any attempts to improve herself or indicate that she sees any need to improve herself. I do not find that there is evidence of any attempt at self improvement; based upon the findings of Dr. Marshall, O.P. feels that there is little or no need to make improvement in any event and that a parenting course would be of little utility in this case in any event.

(f) Parenting Capacity Assessment

[99] In argument, the Respondent Mother’s counsel stated that O.P. disagreed with the parenting capacity assessment and wished the opportunity to cross examine Dr. Marshall on the assessment at trial. She urged that it was in the interests of justice to allow this cross examination to take place prior to making a decision as to the needs of the children or whether they are in need of protection.

[100] In stating this, however, O.P. has offered very little in evidence as to where Dr. Marshall went wrong. To summarize her evidence regarding the parenting capacity assessment, she states several things. She notes that Dr. Marshall was not present for most of the home visit on August 24, 2011, a fact that was acknowledged in the report. She notes that the observing social worker made inaccurate observations; however, the only example of a mistake cited by O.P. was whether the confiscated gun was put in the garbage or not. She stated that the meetings between the children and Dr. Marshall should have taken place in the home. She says that the assessment should have been of both parents.

[101] Again, I do not wish to be distracted by allegations against R.D.; I have already spoken of the nature of the evidence against R.D. and whether it was sufficient to result in a triable issue in this matter. Moreover, I note that O.P. did not provide material facts where Dr. Marshall was specifically mistaken as to the facts that he relied upon, as to what happened during the home visit and as to his conclusions. She does not give material facts as to why cross examination of Dr. Marshall is necessary in this matter; the fact that he has produced a negative assessment does not mean that there is automatically a right of cross examination; there must be more in order to warrant a full trial. I am not to speculate on the evidence that may be provided at trial, but must rely upon the evidence provided at the motion: see Catholic Children’s Aid Society v. G.(C.), 2010 ONSC 4320. As such, the potential for cross examination is not on its own grounds for granting summary judgment; there must be some material evidence which would provide grounds for doubting the contents of the parenting capacity assessment. This was not provided by O.P.

(iv) Conclusion

[102] Based upon the above, I am left with only one choice in this summary judgment motion. The Respondent Mother has provided no evidence indicating that there has been improvement in her parenting skills since the children were apprehended; in fact the evidence is fairly clear that she does not believe that she needs improvement in her parenting skills, and that there is little or no basis for the apprehension of the children by the Society.

[103] As such, the result in this matter is clearly a foregone conclusion insofar as there is no genuine issue to bring to trial. The evidence provided by the Society indicates that O.P.’s parenting abilities are abysmal and are harmful to the children. She is unable to empathize in any meaningful fashion with her children and S.P. has been in care for 23 months. Put in the terms of the Combined Air case, which must, as noted, be treated with caution, it is definitely not in the interests of justice that S.P. be made to testify again against his mother in respect of the assaults which he says were suffered at her hands. Even had those assaults not taken place, there is no issue, in my mind, that emotional harm would be suffered by both children were O.P. to again take up an active parenting role respecting these children. Moreover, based upon the evidence of the assault as provided in the Society materials, there is clearly a risk of physical harm to the children, and ample evidence of actual harm having actually occurred regarding S.P., at the hands of O.P. This risk would, according to the findings of the parenting capacity assessment, remain today were the children placed in the care of O.P.

[104] Accordingly, I find that there is no genuine issue for trial in this matter and I make a finding that J.D. and S.P. are in need of protection pursuant to s. 37(2)(a), (b) and (g) of the Child and Family Services Act (respecting S.P.) and s. 37(2)(b) and (g) of that Act (respecting J.D.).

(a) In view of the finding that these children are in need of protection, what is the appropriate remedy or disposition under the Child and Family Services Act?

[105] The Society urges me to make different determinations respecting each of the children in this matter; regarding S.P., the Society seeks Crown wardship subject to access to the Respondent Mother. Regarding J.D., the Society seeks a deemed custody order in favour of R.D.

(i) Disposition Respecting S.P.

[106] As noted, the Society is requesting Crown wardship in respect of S.P. Ms. Gibson advises that the foster parents have agreed to a long term placement and that S.P. will be residing there for the foreseeable future. She suggests that access to O.P. be at the discretion of the Society.

[107] The issue as to remedy is the best interests of the child: see s. 57(1) of the Child and Family Services Act. The issue is accordingly whether Crown Wardship is in S.P.’s best interests or whether less intrusive measures are appropriate. Less intrusive measures would include Society wardship for a temporary period of time or alternatively a supervision order under para. 1 of s. 57(1).

[108] In determining best interests, I have to have regard to the criteria set out in s. 37(3) of the Act, which contains a number of criteria to determine best interests of the child. That section is fairly comprehensive and reads as follows:

(3) 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.

[109] In this case, I have already commented on the plans of care put forward by O.P. and her ability to care for S.P. It is apparent to me that S.P. would be at significant risk of physical or emotional harm were he placed into the care of O.P., even on the basis of a supervision order. O.P. was unable to avoid drawing the child into adult conversation even when in the presence of a direct supervisor; it is unlikely that he O.P. would avoid doing so when no supervisor was present. Moreover, taking into account the views and preferences of S.P., it is also apparent that he does not wish to live with his mother; he stated to Dr. Marshall that he thought it better to remain in foster care at present although he wished to have ongoing contact with his mother; he said as much to his counsellor as well. It is apparent to me that it is not in S.P.’s best interests that he be placed in the care of his mother under a supervision order.

[110] A temporary Society wardship also does not meet S.P.’s best interests. He has been in care for 23 months and a Society wardship expires after a maximum period of a further 12 months. As noted above, it is unlikely that there will be any change that would result in personal self-improvement by O.P. and it is therefore unlikely that anything will have changed in 12 months; accordingly S.P. might be put in the same situation in the event of a status review upon the expiry of a Society wardship. S.P.’s best interests include some sort of plan for permanency at this time; he needs to know where he is going to live for the foreseeable future and have a permanent connection with a family as noted in para. 5 of s. 37(3). For obvious reasons, that family cannot be that of O.P.

[111] The Society suggestion of Crown wardship with access appears to meet the needs of S.P. It gives him permanency and continuity and the foster parents are willing to provide for a long term placement with S.P. Notwithstanding the best efforts of O.P. to disparage the foster family, it is apparent to me from the material filed, including the parenting capacity assessment, that the foster parents are involved and caring people, who have S.P.’s best interests at heart. S.P.’s special needs as spoken of in para. 1 and 2 of s. 37(3) are being addressed by both the foster parents and the school through the IEP; that would not be done were S.P. placed in the care of O.P who does not believe that S.P. requires an IEP. After 23 months, much of which was spent in the present foster home, this plan allows for continuity for S.P. as set out in para. 7 of s. 37(3) of the Child and Family Services Act and is also in accordance with the child’s views and preferences. Should O.P. elect to exercise her rights of access to S.P., the plan allows for S.P.’s continued connection with his mother as recommended by Dr. Marshall. There will also be an order for continued contact between S.P. and his sister as set out below to allow S.P. to continue having contact with his sister. The placing of S.P. as a Crown ward is advocated by S.P.’s counsel, Mr. Manning.

[112] In my consideration of the various plans of care put forward by O.P., I have already commented on the possibilities of placing S.P. with a relative of the Respondent Mother as suggested by her, and as I am required to consider under s. 57(4) of the Child and Family Services Act.

[113] One concern that has been raised by O.P. in her materials is the fact that there has been little attention paid to S.P.’s Russian cultural heritage, a matter which is specifically addressed in para. 3 of s. 37(3) of the Act. It was noted that S.P. had been taken out of Russian classes that he had been previously attending and that he could no longer communicate with his mother in Russian. That is, under the circumstances, a legitimate concern.

[114] I am given some comfort in the fact that S.P. has now resumed his Russian classes. Moreover, now that the criminal matter has been resolved, it may be possible to permit O.P. to communicate with S.P. in Russian during access visits; as well because these proceedings have been resolved, it may be less necessary for the access supervisor to insist upon an understanding of what is being said as there would be little incentive to discuss adult or other inappropriate issues with the child. It is hoped that eventually that the dispute regarding the language to be used at access visits can be resolved so that this issue does not get in the way of the relationship between mother and child.

[115] I am accordingly of the view that it is in the best interests of S.P. that he be made a ward of the Crown, subject to access to O.P. in the discretion of the Society.

[116] I will be dealing with access between S.P. and J.D. in my disposition respecting J.D., below.

(ii) Disposition Respecting J.D.

[117] The Society does not request a supervision order or any further Society intervention in J.D.’s life. She has been residing with R.D. in Windsor without incident for a year; the Society indicates that his residence has been inspected by the Windsor C.A.S. and the observations of society workers both in Barrie and Windsor in respect of R.D.’s care of J.D. have been positive. The Society accordingly seeks a deemed custody order as set out in s. 57.1 of the Child and Family Services Act. Ms. Gibson did not take any position regarding access by O.P. to J.D.

[118] There are a number of issues of concern respecting this particular request. The first, of course, involves the fact that R.D. was not involved in the parenting capacity assessment. I have no independent evidence of R.D.’s parenting abilities, and were this a typical custody dispute under the Children’s Law Reform Act,[^5] I would be hesitant in granting a custody order on a summary judgment motion which is rarely done in those types of matters. Moreover, access between J.D. and O.P. is problematic; R.D. says that he is not that interested in facilitating access between J.D. and her mother; when I asked him in argument whether he was willing to facilitate access, his response included a suggestion that if O.P. could not afford to come to Windsor, she could “walk” to Windsor for all that he cared. It is trite that a custodial parent is expected to nurture the relationship between the access parent and the child; it did not appear that R.D. was willing to do this.

[119] On the first concern, there is not a great deal of material regarding the best interests of J.D. other than dealing with the issues of placement of that child with O.P.; I have already given my views as to whether this is possible in the context of the determination of the protection issues in this matter, and the same concerns apply for S.P. It is not in the best interests of J.D. that she be placed with O.P.; although she would clearly meet the basic needs of J.D., she has the capacity to become physically abusive as the child ages and becomes more individualized. There is also no reason why O.P. would not eventually become as emotionally abusive with J.D. as she was with S.P. Placement with O.P. under a supervision order is not realistic and neither is placement with a relative as noted above.

[120] Either placement with R.D. or placement in foster care is accordingly the only two options which I am left with. Foster care clearly does not meet the best interests of J.D.

[121] Regarding placement with R.D., had evidence of this nature been placed before me in the context of a proceeding under the Children’s Law Reform Act, there may very well have been an order for summary judgment for custody in favour of the father of J.D. There was, as noted above, no concerns by the Society which would warrant a supervision order and there is a lengthy status quo in place without incident. I have already discounted the evidence of O.P. in respect of the quality of parenting provided by R.D. The least intrusive route is clearly to permit the child to continue to reside with the Respondent Father and this meets the needs of the child for permanency, stability and continuity.

[122] I have noted above that it would have been best had the Society have ensured that both parents be assessed by Dr. Marshall; this was contemplated by all of the courts which had reviewed the matter, and the Plans of Care filed by the Society both contemplated that both parents would participate. It certainly would have put paid to any doubts regarding the capacity of the father to parent J.D. That being said, the evidence that is before me indicates that R.D. is a good parent to J.D. and has her best interests at heart. J.D. is entitled to the stability that R.D. is able to give to her.

[123] Access remains a concern. R.D. argues that he does not have to facilitate access between J.D. and her mother; he notes that notwithstanding the fact that the Society has offered to pay the costs of O.P. travelling to Windsor to see J.D., she has not taken advantage of this offer since made on January 23, 2012. He states that it is up to the mother to arrange for access at the Supervised Access Centre in Windsor; if she does, he will make J.D. available for access. The Society also took the position that access between O.P. and J.D. was not their responsibility; again Ms. Gibson argued, as did R.D., that there was little interest on the part of O.P. to have contact with J.D.

[124] This does not take into account the recommendations of Dr. Marshall that the two siblings have an ongoing relationship and that this should be nurtured. Moreover, what is important is often what is seen to be done; the court and the Society should be concerned about ongoing access, and it is not in J.D.’s best interests that the Society wash its hands of the obligation to facilitate access in this matter. If O.P. does not exercise the access in the future, that is an issue which will eventually be taken up between the child and her mother much later on; however, if the child later asks what was done by either the courts or the Society in order to insure that ongoing contact was facilitated between O.P. and J.D., she deserves to know that all that could be done was done.

[125] Accordingly, I am going to make a deemed custody order in favour of R.D. pursuant to s. 57.1 of the Child and Family Services Act. I am going to make an order as to access which will continue the Society involvement in access between J.D. and her mother. This continued Society involvement is necessary not only because of the attitude of R.D. about access, but also because of the poverty issues which prevent easy access by O.P. to her daughter in Windsor. Moreover, it is inappropriate that the Society be released from its obligation which it would otherwise have under a supervision order, which would be my alternative to ensure contact between J.D. and her mother. R.D. has to take some responsibility as well; he elected to move to Windsor and as a custodial parent of J.D., has some responsibility to facilitate access between J.D. and both O.P. and S.P.

[126] In making this order, I specifically rely upon para. 6 of s. 37(3) of the Child and Family Services Act as well as the court’s jurisdiction “to give such directions as it considers appropriate for the supervision of … access by … a children’s aid society”: Children’s Law Reform Act. s. 34(1); that provision gives me jurisdiction to make this order. Although that is a provision that should be used sparingly, due to the remedy requested by the Society and due to the fact that this is an order being made in the context of protection proceedings, it is appropriate to do so in the present case.

[127] Accordingly, the deemed custody order in the present case is subject to an order for access in favour of the Respondent Mother as follows:

(a) The mother will have access to the child monthly to be supervised by the Simcoe County C.A.S. through arrangements to be made with the Windsor C.A.S., to take place in Windsor on one occasion per month on 48 hours notice by the Respondent Mother to the Society;

(b) So long as the mother does not have full time employment, the Society will continue to pay for the mother’s transportation by train to and from Windsor;

(c) In addition to the monthly access noted above, the Respondent Father shall transport and accompany J.D. at his expense to Barrie on four occasions per annum and shall facilitate a visit to be arranged through the Society between S.P. and J.D., and as well between J.D. and O.P. (which may be a joint visit between O.P. and both her children as supervised by the Society). Unless otherwise arranged, those visits will take place on the second weekend of January, April, July and October of each year.

ORDER

[128] There will accordingly be a final order to go on the following terms:

a) The children are both found to be of non Native, non Indian and of Catholic status;

b) S.P. is found to be in need of protection pursuant to s. 37(2)(a), (b) and (g) of the Child and Family Services Act;

c) J.D. is found to be in need of protection pursuant to s. 37(2)(b) and (g) of the Child and Family Services Act;

d) There shall be a deemed custody order under s. 57.1 of the Child and Family Services Act in respect of J.D. and R.D. shall have custody of J.D.

e) The Respondent Mother shall have access to J.D. according to the following terms:

i. The mother will have access to the child monthly to be supervised by the Simcoe County C.A.S. through arrangements to be made with the Windsor C.A.S., to take place in Windsor on one occasion per month on 48 hours notice by the Respondent Mother to the Society;

ii. So long as the mother does not have full time employment, the Society will continue to pay for the mother’s transportation by train to and from Windsor;

iii. In addition to the monthly access noted above, the Respondent Father shall transport and accompany J.D. at his expense to Barrie on four occasions per annum and shall facilitate a visit to be arranged through the Society between S.P. and J.D., and as well between J.D. and O.P. (which may be a joint visit between O.P. and both her children). Unless otherwise arranged, those visits will take place on the second weekend of January, April, July and October of each year.

e) S.P. shall be made a ward of the Crown;

f) O.P. shall have access to S.P. at the discretion of the Society and as arranged through the Society.

McDERMOT, J.

Date: April 17, 2012

[^1]: Family Law Act, R.S.O. 1990, c. F.3 [^2]: Family Law Rules, O. Reg. 114/99 [^3]: Child and Family Services Act, R.S.O. 1990, c. C.11 [^4]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^5]: Children’s Law Reform Act, R.S.O. 1990, c. C.12