COURT FILE NO.: C 30-05

DATE: January 20, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicant

– and –

M.A. and M.P.

Respondents

James Mountford, counsel for the Applicant

Joseph Chrolavicius, counsel for the Respondents

HEARD: November 24, 2011

The Honourable Madam Justice D.L. Chappel

JUDGMENT

I. INTRODUCTION

[1] This was a summary judgment motion in which the Catholic Children’s Aid Society of Hamilton (“the Society”) requested an order that the female child K.A.P, born […], 2011 be found in need of protection pursuant to section 37(2)(b)(i) and (ii) and 37(2)(g) of the Child and Family Services Act[^1] (the “CFSA”), and that she be made a Crown Ward without access for the purposes of adoption. The Respondent M.A is the mother of K.A.P, and the Respondent M.P. is the child’s father. They opposed the relief requested by the Society, and requested that the summary judgment motion be dismissed.

[2] I have relied on the following materials that were filed in relation to this Summary Judgment Motion:

1. Affidavit of Jessica Barnes sworn September 13, 2011;

2. Affidavit of Jessica Barnes sworn November 4, 2011; and

3. Affidavit of M.A. and M.P. sworn October 21, 2011.

[3] The questions to be decided in this case are as follows:

1. Is there a genuine issue for trial as to whether K.A.P. is a child in need of protection within the meaning of the CFSA?

2. Is there a genuine issue for trial as to the disposition which is in K.A.P.’s best interests within the meaning of the CFSA?

[4] For the reasons that follow, I find that there is no genuine issue for trial in this case, and that an order should issue making K.A.P. a Crown Ward without access.

II. BACKGROUND AND OVERVIEW OF CURRENT PROCEEDINGS

[5] The facts set out in this section relating to the Respondents’ backgrounds, their history of involvement with the Society and the chronology of these proceedings were not disputed by the Respondents.

[6] The Respondent father, M.P., is twenty eight years old. The Society has a history of involvement with M.P. as a child. As a result of issues between M.P. and his parents, M.P. was admitted to the Society’s care on January 27, 1995, and was placed at Lynwood Hall, which was a placement facility for troubled youth. M.P. was eventually made a Crown Ward on September 11, 1996. He remained in the care of the Society until he turned eighteen years of age in 2001, at which time he went to live with his mother.

[7] The Respondent mother, M.A., is thirty three years of age. She was born with cerebral palsy, and has also been diagnosed as suffering from epilepsy. M.A. has a son from another relationship, C.A., born […], 1997, who has been in the care of his maternal grandparents since 2004.

[8] M.A. and M.P. have been involved in a common law relationship for approximately seven years. They are the biological parents of four other children, namely S.S.P., born […], 2005, E.P., born […], 2006, R.P., born […], 2007, and J.A., born […], 2008. All four of these children were found to be in need of protection and made Crown Wards without access for the purposes of adoption prior to the commencement of the current proceedings. Specifically:

1. On December 5, 2006, the Honourable Mr. Justice Mazza made an order finding that S.S.P. and E.P. were in need of protection pursuant to section 37(2)(b)(i) and (ii) of the CFSA. These children were made Crown Wards without access by order of Genesee, J. on August 16, 2007, after a protracted trial.

2. On November 13, 2007, M.A. and M.P. consented to an order finding the child R.P. to be in need of protection pursuant to section 37(2)(b)(i) (ii) and (g) of the CFSA., and making the child a Crown Ward without access.

3. On December 22, 2008, M.A. and M.P. consented to an order finding the child J.A. to be in need of protection pursuant to section 37(2)(b)(i) and (ii) and (g), and making the child a Crown Ward without access.

[9] The Society apprehended the child K.A.P. at birth based on its history of concerns respecting the parties’ cognitive limitations and parenting capacity. The apprehension was also based on the results of a parenting capacity assessment which Dr. Lynda Archer completed on January 12, 2006, in which Dr. Archer concluded that the parties would not be able to meet the current and long term needs of the child S.S.P., even with appropriate supports in place.

[10] The Society commenced the Protection Application that is the subject of these proceedings on June 13, 2011, requesting an order finding K.A.P. to be in need of protection pursuant to section 37(2)(b)(i) and (ii) and 37(2)(g) of the CFSA, and making the child a Crown Ward without access. On June 13, 2011, a temporary without prejudice order was made placing the child in the care of the Society, with access to the Respondents in the discretion of the Society and supervised in the Society’s discretion. The child has remained in the care of the Society on a consistent basis since that time.

III. THE LAW

A. The Legal Principles Applicable In Child Protection Applications

1. The Stages of a Protection Application

[11] The Society commenced the Application that is the subject of these proceedings pursuant to Part III, section 40 of the CFSA, which provides that a Society may apply to the court to determine whether a child is in need of protection. Once a Society commences an application under section 40, the court is required by virtue of section 47 of the Act to hold a hearing to determine the issue and to make an order under section 57 of the Act relating to placement of the child.

[12] The hearing of a Protection Application involves four stages, as follows:

1. The court is first required to determine whether the child who is the subject of the proceeding is in need of protection within the meaning of section 37(2) of the CFSA.

2. If a protection finding is made pursuant to 37(2), the court must determine if further intervention through a court order is necessary to protect the child in the future.[^2]

3. The court must then make a determination regarding the placement of the child.

4. Finally, the court must decide the issue of access to the child.

2. Protection Finding

[13] In this case, Society is requesting an order that K.A.P. be found in need of protection pursuant to section 37(2)(b)(i) and (ii) and 37(2)(g) of the CFSA. These provisions relate to risk of physical harm to the child, and risk of emotional harm. With respect to both protection grounds, it is not necessary for the Society to prove intention on the part of the parent or caregiver of the child.[^3] Risk of harm by neglect or error in judgment falls within the scope of section 37(2)(b)(ii).[^4] The risk of harm under both 3(2)(b) and (g) must be likely and real, rather than speculative.[^5] The court may determine that a child is at risk of suffering harm even though the conduct that causes concern is not directed specifically towards that child.[^6]

3. Placement of the Child

[14] The starting point for determining the issue of placement in child protection proceedings is section 1(1) of the CFSA, which stipulates that the primary purpose of the Act is “to promote the best interests, protection and well-being of children.” The court is required to advance this primary purpose taking into consideration the other purposes of the Act, which are set out in section 1(2) as follows:

Other purposes

1(2)The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

[15] These other purposes set out in section 1(2) indicate that in carrying out its duties under the CFSA, the court is required to analyze the best interests of the child with an eye to the importance of supporting the family, maintaining the family intact if possible, and accessing community supports if appropriate to promote the best interests of the child and the integrity of the family unit.[^7] The non-interventionist principles set out in section 1(2) are not aimed at strengthening the rights of parents, but rather are founded on the importance of keeping the family intact if this is consistent with advancing the child’s best interests.[^8]

[16] Where the court is satisfied that the child is in need of protection, but that a court order is not necessary to protect the child in the future, the court must order that the child remain with or be returned to the person who had charge of the child immediately before intervention under Part III of the CFSA.[^9] If the court determines that ongoing court intervention is required for the child’s protection, section 57(1) directs the court to make one of the following orders, “in the child’s best interests:”

i. An order under section 57.1 granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons;

ii. An order that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than twelve months;

iii. An order that the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months;

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

v. An order that the child be made a ward of the society for a specified period under section 57(1)2 and then be returned to a parent or another person subject to society supervision under section 57(1)1, for a period or periods not exceeding an aggregate of twelve months.

[17] Section 57(1) of the CFSA confirms that “the best interests of the child” is the governing principle for determining placement of a child in a Protection Application. Section 37(3) sets out the following factors which the court is required to consider in carrying out the best interests analysis:

Best interests of child

37(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.

[18] Sections 57(2)(3) (4) and (5) of the CFSA outline a number of additional factors which the court is required to consider in deciding the question of placement in the context of a Protection Application. These provisions reinforce that in child protection proceedings, the best interests analysis occurs against a backdrop that recognizes the desirability of assisting and maintaining the family unit through community and family support, if doing so is consistent with the child’s best interests. The sections provide as follows:

Court to inquire

57(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).

Less disruptive alternatives preferred

(3)The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).

Community placement to be considered

(4)Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).

Idem: where child an Indian or a native person

(5)Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child’s extended family;

(b) a member of the child’s band or native community; or

(c) another Indian or native family.

[19] The duty which section 57(3) places upon the court to consider whether less intrusive alternatives would be adequate to protect the child involves reviewing the services which have been offered to the family, and whether the parties and the child have benefited from the services. This inquiry should include an analysis of whether the services which have been recommended and implemented are sensitive and responsive to the family’s particular needs.[^10]

[20] Section 70(1) of the CFSA circumscribes the relief available on a Protection Application by precluding the court from making an order for society wardship that will result in the child being in a Society’s care for a period exceeding the time limits set out in that section. Sections 70(2)-(3) describe the manner in which the time periods are to be calculated, and section 70(4) sets out circumstances when the court may extend the time limits. In the case of a child who is less than six years of age at the time that the court makes an order for society wardship, the order cannot result in the child being in care for a period exceeding twelve months.[^11]

[21] In this case, the Society is requesting an order for Crown Wardship. This is the most intrusive order that the court can make in child protection proceedings. The court should only grant this relief with “the highest degree of caution and only on the basis of compelling evidence, and after a careful examination of possible alternative remedies.”[^12] Further, caution should be taken not to judge parents of limited means and potential by unfair, unrealistic middle class standards of child care, provided that the standard that is actually used is not contrary to the child’s best interests.[^13]

[22] In any proceeding under Part III of the CFSA, the court may consider the past conduct of a party toward any child, and any oral or written report that the court considers relevant to the proceeding is admissible as evidence.[^14]

4. Access

[23] Pursuant to section 58(1) of the CFSA, the court may make, vary or terminate an order respecting a person’s access to the child, or the child’s access to the person, and may impose terms and conditions on this access which the court considers appropriate. Section 59(2.1) of the CFSA establishes a presumption against access if the child is made a Crown Ward, as follows:

Access: Crown ward

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

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

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

[24] The onus is on the party seeking access to satisfy the court on a balance of probabilities that the criteria set out in section 59(2.1) have been satisfied.[^15] With respect to the first branch of the test, the focus is on the importance of the relationship from the child’s perspective. Quinn, J. outlined a number of important principles relating to the test in Children’s Aid Society of Niagara Region v. J. (M).[^16] He held that a beneficial relationship is one that is “advantageous,” and a meaningful relationship is one that is “significant.” He concluded that the existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in section 59(2.1); rather, it must be shown that the relationship is significantly advantageous to the child.[^17] Further, he held that the focus of the inquiry is the nature of the current relationship between the child and the party in question, and not on how that relationship may unfold in the future. Finally, he concluded that even if the parent proves that the relationship is beneficial and meaningful, the court must still weigh the overall benefits of access to the child as opposed to no access before making a decision on the access issue.

[25] In the past, the focus of the analysis under the second branch of section 59(2.1) was whether the child was considered “adoptable”. If the child was adoptable, the party seeking access could not typically satisfy the test, since former 141.1(a) of the CFSA prevented a Society from placing a Crown Ward for adoption where an outstanding access order made under Part III of the CFSA was in effect. Bill 179, the Building Families and Supporting Youth to be Successful Act, 2011,[^18] repealed former 141.1(a) of the Act, with the result that Societies may now place Crown Wards for adoption even where there is an outstanding access order, provided that they give anyone who has been granted an access order thirty days notice of the plan to place the child for adoption. Bill 179 also amended section 143(1) of the CFSA to provide that access orders in respect of Crown Wards are automatically terminated upon the child being placed for adoption, and granted those who have an access order in relation to a Crown Ward the right to apply for an openness order that would continue after adoption. These amendments have given parties seeking access to Crown Wards a greater scope of argument in advancing their case for access. The inquiry no longer ends if the child is found adoptable, since a Crown Ward with access can now be placed for adoption. The additional question that will now be raised is whether the possibility of an openness order after adoption will impair the child’s opportunities for being adopted.

B. Summary Judgment in Child Protection Proceedings

[26] Rule 16 of the Family Law Rules[^19] (“Rule 16”) provides that a party may bring a motion for summary judgment for a final order without a trial on all or part of any claim. The summary judgment procedure is available in child protection proceedings. The test on a summary judgment motion is set out in Rule 16(6), which stipulates that the court may make a final order on a summary judgment basis if it determines that there is no genuine issue requiring a trial, or if the only genuine issue is a question of law. The Rule is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim, the court must make a final order.[^20]

[27] Summary judgment has become more widely available since the passage of Rule 16. It is no longer considered an extraordinary remedy that is limited to only the “clearest of cases.”[^21] However, the jurisdiction to grant relief on a summary judgment basis in child protection and family law cases must be exercised cautiously, in keeping with the principles of justice, fairness and the best interests of children.[^22]

[28] Since January 2010, amendments to Rule 20 of the Rules of Civil Procedure (“Rule 20”) have been in effect which significantly expanded the scope of judicial authority on summary judgment motions initiated pursuant to that Rule. These amendments allow the court to grant summary judgment if it is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence” or the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. The amendments grant the court additional tools for determining whether there is a genuine issue requiring a trial. Specifically, they allow the court to weigh the evidence, evaluate credibility and draw reasonable inferences on the evidence, “unless it is in the interest of justice for such powers to be exercised only at trial.” The amendments also provide the motion judge with the option of allowing oral evidence to assist in exercising these new powers.[^23]

[29] There is no consensus to date as to whether the court may rely on these amendments to Rule 20 to exercise expanded powers on a summary judgment motion initiated pursuant to Rule 16, with Mulligan, J. holding in Steine v. Steine [^24] that the expanded powers are available in family law matters, and Perkins, J. concluding in Starr v. Gordon[^25] that the amendments should not be applied in family law summary judgment proceedings. The Ontario Court of Appeal recently dealt comprehensively with the issue of summary judgment motions brought pursuant to Rule 20 in Combined Air Mechanical Services Inc. v. Flesch,[^26] but did not address whether a motion judge hearing summary judgment motion pursuant to Rule 16 could exercise the expanded powers set out in Rule 20. 04(2.1).

[30] In my view, the expanded powers that have been incorporated into Rule 20 do not apply in cases governed by the Family Law Rules (“the Rules”). Rule (1) provides that if the Rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to the Rules, by reference to the Courts of Justice Act and the Act governing the case and, “if the court considers it appropriate, by reference to the Rules of Civil Procedure.” This Rule is clear that the court should only resort to the Rules of Civil Procedure for assistance in determining the practice of the Family Court if the matter in question is not adequately covered by the Rules. Rule 16 covers the issue of summary judgment and the scope of the court’s role adequately. The limited scope of the judge’s powers under Rule 16 is consistent with the powers which the court had under the former Rule 20. The amendments to Rule 20 occurred after the Government of Ontario considered comprehensive recommendations regarding Rule 20 from the former Associate Chief Justice of Ontario, the Honourable Coulter Osborne, in his report entitled “Civil Justice Reform Project: Summary of Findings and Recommendations.”[^27] Given the history of consultation and analysis that preceded the introduction of the Rule 20 amendments, it cannot be assumed that the failure to include expanded judicial powers in Rule 16 was simply an oversight, or that “the Family Rules Committee has simply forgotten to catch up with the recent amendments to the civil rules” to use the words of Perkins, J. in Starr v. Gordon.[^28]

[31] The decision of the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch related to the interpretation and application of new Rule 20, but the court’s analysis and comments are of great assistance in understanding the circumstances in which a summary judgment motion pursuant to Rule 16 is appropriate. The Court held that prior to the introduction of amended Rule 20, there were generally two types of cases that were amenable to summary judgment. The first category included cases in which the parties agreed that it was appropriate to determine the case by way of a summary judgment motion. The second category encompassed claims or defences that were shown to be plainly without merit based on the record before the court. With respect to this second type of case, the court cited the Supreme Court of Canada in Canada (A.G.) v. Lameman,[^29] where the court described these cases as ones which clearly had “no chance of success.”

[32] The Court of Appeal went on to conclude that the amendments to Rule 20 have expanded the availability of summary judgment to cases where the record indicates that the claim or defence may have a chance of success, but where the motion judge determines that the trial process is not required in the interest of justice to decide the case on the merits. The court explained its reasoning on this point as follows:

“The prior wording of Rule 20, whether there was a “genuine issue for trial,” was replaced by “genuine issue requiring a trial”. This change in language is more than mere semantics. The prior wording served mainly to winnow out plainly unmeritorious litigation. 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”.[^30]

[33] Rule 16 uses the wording “genuine issue requiring a trial” rather than “genuine issue for trial” as was used in old Rule 20, but does not grant the summary judgment motion judge in family law matters the expanded powers which amended Rule 20 has made available in other civil proceedings. The question arises as to whether this choice of wording is sufficient to bring within the purview of Rule 16 claims which, based on the record before the court, may have a chance of success. I conclude that it does not. In my view, the Court of Appeal’s decision that Rule 20 expands the availability of summary judgment to cases where the Motion Record indicates that the case may have merit was based on the combined effect of the change in wording as described above and the expanded powers given to the court under Rules 20.04(2.1) and (2.2). This interpretation makes common sense, as it is difficult to conceive of a case where the Motion Record reveals that a claim or defence may have a chance of success, but where the court could nonetheless properly determine the merits without weighing the evidence, evaluating credibility and drawing reasonable inferences on the evidence.

[34] The issue on a summary judgment motion brought pursuant to Rule 16 is whether it is possible to conclude based on the materials contained in the Motion Record that the Respondents have no realistic chance of success.[^31] In Combined Air Mechanical Services Inc. v. Flesch, the Court of Appeal held that the court must ask the following fundamental question in dealing with a summary judgment motion: “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?” Although the court in that case was dealing with summary judgment in the context of Rule 20, its determination of the fundamental question to be asked applies equally to summary judgment motions brought pursuant to Rule 16.

[35] The onus is on the moving party in a summary judgment motion to prove on a balance of probabilities that there is no genuine issue that requires a trial for its resolution, and the moving party must file affidavit materials that set out specific facts to support this determination.[^32] While the judge hearing a summary judgment motion initiated pursuant to Rule 16 is not permitted to resolve credibility issues, draw inferences from the evidence or weigh the evidence, he or she is required to take a good hard look at the evidence to determine if there are grounds for the order that is being requested on a summary judgment basis.[^33] Once the moving party has adduced evidence that indicates that there is no genuine issue of material fact requiring a trial, the responding party must then advance evidence of specific facts that “establish his claim as being one with a real chance of success.”[^34] If there is a genuine issue with respect to a material fact or facts relating to the case, then the matter must be directed to trial regardless of how weak or strong the claim or defence may appear. [^35]

[36] A party responding to a summary judgment motion cannot defeat the motion by relying on mere allegations, blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial. Rather, they have a positive obligation to put their best foot forward to defend the motion with fulsome affidavit evidence.[^36] The court must assume that the information put forward by the responding party is the best they have to offer at that stage.[^37]

[37] Not every disputed fact or question of credibility gives rise to a genuine issue for trial. A genuine issue for trial must relate to a material fact or facts. It must be an issue that is real and authentic, is not spurious to the case, and is substantial and sufficiently important to warrant a judicial determination. The issue must be relevant, in the sense that it must relate to material facts that are critical to the determination that the court is called upon to make.[^38] Disputed facts, the existence or non-existence of which will not affect the outcome of the case, do not raise a genuine issue for trial.[^39]

[38] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion.[^40]

[39] In child protection cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent’s evidence that the parent faces some better prospects than those that existed at the time of the Society’s initial involvement, and has developed some new ability as a parent.[^41] The courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include “the nature of the evidence on the motion, any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issue to the case.”[^42] In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the CFSA, which is “to promote the best interests, protection and well-being of children.”[^43] Summary judgment is a means of controlling a child’s drift in litigation and allowing for appropriate planning for the child in a timely manner.[^44]

IV. THE POSITIONS OF THE PARTIES

[40] The Society’s position is that there is no genuine issue for trial either on the preliminary question of whether K.A.P. is in need of protection, or regarding the disposition which is in K.A.P.’s best interests. Counsel for the Society argued that the fundamental underlying problem in relation to the Respondents is that they both lack the intellectual capacity to meet the needs of the child. He highlighted the evidence respecting the significant intellectual limitations of both parties outlined in Dr. Archer’s 2006 parenting capacity assessment, and noted that there was no evidence before the court suggesting that this evidence was no longer valid.

[41] The Society argued that Dr. Archer’s conclusions respecting the parenting capacity of the Respondents are strongly supported by the extensive history of evidence relating to the Respondents’ five children. Counsel for the Society summarized the numerous historical and ongoing concerns respecting the parents’ general functioning, their difficulties in meeting their own needs, their inability to meet the needs of their children, their lack of a meaningful support network and their inability to appropriately engage in services in such a way as to effect any significant changes in either their own functioning or their parenting capacity. He noted that the Society had provided the Respondents with a list of fourteen expectations which the Society had of them in order to demonstrate an ability to meet K.A.P.’s needs and a commitment to parenting her on a long term basis, and argued that the Respondents failed to meet any of these expectations. The Society’s position is that based on the totality of the evidence relating to the parents, the child’s young age and the Society’s evidence that she is highly adoptable, it is a foregone conclusion that the outcome of a trial in this matter would be an order for Crown Wardship without access.

[42] The Respondents did not appear at the hearing of this matter, despite the fact that the hearing was scheduled for the afternoon session specifically to accommodate them. The explanation which their counsel provided was that they could not arrange transportation to get to court.

[43] The Respondents are requesting that K.A.P. be returned to their care, and asked that this summary judgment motion be dismissed so that they can present their case in the context of a full trial on the issues. Their position is that there is a genuine issue for trial respecting their capacity to parent the child K.A.P., with the support of the Society and other community service providers. Their counsel highlighted the following points in support of this position:

1. He noted that M.A. had a history of caring for her first child, C.A., and that according to M.A., the child’s needs were primarily met as a result of her efforts despite the fact that she lived with her parents when she parented the child. He relied on M.A.’s history of parenting relating to C.A. to argue that although M.A. has limitations, she has the skills required to raise a child.

2. He submitted that the Respondents’ current situation is very different than it has been in the past when their other four children were made Crown Wards. Specifically, he noted that the four other children were born in quick succession, that three years have now passed since their last child, J.A., was made a Crown Ward, and that this is the first time in the parenting history of the Respondents that they have just had one child to deal with.

3. He submitted that the parenting capacity assessment of Dr. Archer is dated, and was created in circumstances that were much different than the Respondents’ present circumstances. Further, he indicated that the report was subjected to scrutiny in the context of the lengthy trial respecting the children S.S.P. and E.P., and that this scrutiny revealed a number of inconsistencies and problems with the report. On the basis of both of these considerations, he argued that the court should not rely on the conclusions which Dr. Archer reached for the purposes of making a decision respecting the child K.A.P.

4. With respect to the specific concerns raised by the Society, counsel for the Respondent argued that the Respondents had adduced credible evidence to either rebut or greatly alleviate those concerns.

[44] Counsel for the Respondents argued that on the basis of the above noted points, it would be unfair to conclude on a summary judgment basis that it is plain and obvious that the Respondents could not succeed in having K.A.P. placed in their care.

V. ANALYSIS RESPECTING PROTECTION FINDINGS

[45] I am satisfied based on the motion record before me that the Society has met the onus upon it of showing that there is no genuine issue for trial on the question of whether K.A.P. is in need of protection pursuant to section 37(2)(b)(i) and (ii) and 37(2)(g) of the CFSA. The Society’s evidence establishes significant concerns regarding the parties’ cognitive and psychological limitations, their ability to meet their own basic needs, their general parenting capacity and their ability to maintain the commitment that is required to parent a child on a long term basis. The Society’s protection concerns, and the responses of the Respondents, are discussed in further depth below. By way of overview, I conclude that the Respondents have failed to respond in a meaningful way to most of the protection concerns which the Society has identified. With respect to the responses which they have provided on some issues, these responses when considered in their totality are not sufficient to establish that their defence to this proceeding, and their claim to have K.A.P. placed in their care, have any real chance of success.

A. Concerns Respecting the Parties’ Cognitive and Psychological Functioning

[46] The evidence adduced by the Society indicates that both parties suffer from significant cognitive limitations and psychological impairments which have undermined their ability to effectively parent their children. The parenting capacity assessment of Dr. Lynda Archer, completed on January 12, 2006, formed part of the Society’s evidence on this motion. This assessment outlined the following concerns respecting the parties’ general functioning:

Concerns Respecting M.P.

1. Doctors, group home staff and Society workers involved with the Respondent father M.P. as a youth noted that he had serious difficulties with literacy, and that he functioned at a very low intellectual level.

2. Test results from the WAIS-III which Dr. Archer carried out revealed that M.P.’s overall intellectual ability fell considerably outside the Average range, at the bottom of the borderline range (third percentile). The results further indicated that M.P.’s Verbal and Performance IQ’s scored at a similar level.

3. In the area of Verbal Comprehension, M.P. fell within the ninth percentile (the bottom of the Low Average range), and on the index of nonverbal problem solving and reasoning, he fell at the top of the borderline range, in the seventh percentile. He scored only in the first percentile on measures of short term verbal memory, and in the second percentile on measures of processing speed involving visual designs.

4. M.P.’s reading abilities are extremely limited, at the grade two level, and he would be of little assistance to a child in relation to schooling.

5. Overall, M.P. was found to be functioning at or below the ninth percentile in terms of his intellectual abilities, and Dr. Archer concluded that these deficits would significantly impair his ability to effectively parent a child.

6. Test results relating to social/emotional functioning and psychopathology were within the average range with the exception of the scale respecting feelings of being persecuted, which indicated that M.P. experienced significant and marked feelings of being persecuted Results of testing using the CAP and AAPI-2 tests revealed concerns that M.P. would find parenting a child on a full time basis extremely stressful, would be at risk of acting in a harmful manner towards a child in his care, may have difficulty understanding a child’s normal developmental needs, may lack nurturing skills, and may be unable to handle normal parental stresses.

Concerns Respecting M.A.

1. When M.A. became pregnant with the child S.S.P. in 2004, her family physician contacted the Society to relay concerns regarding her intellectual delays and her ability to parent the child.

2. During the parenting capacity assessment carried out by Dr. Archer, M.A. acknowledged to Dr. Archer that she did not realize that she was pregnant with the child S.S.P. until she was approximately five or six months pregnant.

3. Test results from the WAIS-III indicated that M.A.’s overall intellectual ability fell within the Cognitively Deficient/Mentally Retarded range, at the first percentile. Her Verbal and Performance IQ’s fell within a similar range.

4. M.A’s functioning in the area of Verbal Comprehension fell within the Borderline range at the fifth percentile. Her score on a measure of Working Memory fell below the first percentile, and on a measure of Processing Speed involving visual designs, her score fell within the second percentile.

5. Overall, the results of cognitive/intellectual testing revealed very significant limitations in M.A.’s functioning, with her performing at or below the fifth percentile in all areas assessed. Dr. Archer concluded that the typical daily tasks involved in parenting a child would present significant challenges for M.A. as a result of her considerable cognitive impairments. She also noted that individuals with M.A.’s intellectual profile also tend to encounter major difficulty in the areas of self reflection and emotional awareness.

6. M.A. scored within the Average range on most scores in testing relating to social/emotional functioning and psychopathology. However, the results of testing through the CAP test and the AAPI-2 test revealed that M.A. was significantly at risk to act in a harmful manner towards a child, and raised concerns respecting her ability to understand a child’s normal developmental needs and her potential to use a child as a means of self gratification. Dr. Archer concluded based on the results of this testing that M.A. would likely find parenting a child extremely stressful, and that she would not in all likelihood act in ways that were in the child’s best interests.

7. M.A. presented as much younger than her actual age, and was struggling with issues of separation and individuation from her parents. Dr. Archer concluded that these issues would impact in a negative way on her parenting, in that she may have difficulty setting limits and disciplining, and could have difficulty assisting the child to achieve more independent development.

[47] M.A. and M.P. have not responded in a meaningful way to the above noted concerns respecting their significant cognitive and psychological difficulties, and the potential impact of these challenges on their parenting. The position advanced by their counsel was that these test results were dated, that Dr. Archer’s assessment report was subjected to vigorous challenge during the Crown Wardship trial respecting S.S.P. and that the report contained a number of inconsistencies. However, the Respondents did not advance any professional evidence which contradicted the findings of Dr. Archer. Further, no evidence was adduced to support the suggestion that the intellectual and psychological testing which Dr. Archer carried out was no longer valid, and there was no attempt to submit a transcript of Dr. Archer’s cross examination during the aforementioned trial as evidence on this Motion.

B. Concerns Regarding the Respondents’ Commitment to Parenting Their Children

[48] The Society has raised concerns respecting the ability of the parties to commit to the responsibilities of parenting a child on a full time basis. The history relating to M.A’s involvement with C.A. is important in this regard. The evidence outlined in Dr. Archer’s assessment report is that M.A.’s attention to C.A.’s needs greatly deteriorated after she met M.P. The maternal grandparents reported that M.A. did not attend to C.A.’s needs during the last six months when she lived with her parents.

[49] It is not disputed that M.A. left the home of her parents in 2004 to begin cohabiting with M.P., and that she left C.A. in the care of the maternal grandparents at that time. When Dr. Archer was carrying out her parenting capacity assessment in 2005/2006, M.A. had regular telephone contact with C.A., but was only seeing C.A. for approximately two hours per week. The maternal grandparents reported that M.A. had been invited to attend C.A.’s hockey games, but that she had not attended them. M.A. advised during the assessment that she did not attend because of conflict with her parents and her emotional distress about not being able to interact meaningfully with C.A. at his hockey games.

[50] Despite the Respondents’ heavy reliance on M.A.’s history of parenting relating to C.A., they did not provide a satisfactory explanation for why M.A. did not pursue having C.A. returned to her care after she left him at the home of the maternal grandparents in 2004. M.A. advised Dr. Archer during the course of the assessment process in 2005 that she wanted to take C.A. with her when she left, but that she left the decision in the hands of C.A., who was only seven years old at the time. She stated at the time of the assessment that she was fighting to have C.A. returned to her care. However, there was no evidence before me of M.A. having made any attempts since that time to have C.A. returned to her care, or to acquire more generous access to the child. In fact, according to the Society’s evidence, M.A. advised the Society worker on June 10, 2011 that she only sees C.A. occasionally, and that she does not like visiting him due to the conflict between her and her mother. The Respondents did not deny this evidence.

[51] The evidence adduced by the Society raises serious concerns regarding the parties’ commitment to parenting their older children. According to the Society, M.A. and M.P. only attended nine visits with S.S.P. and R.P. from January 2006 until July 2007, only attended two visits with the child R.P. from the time of his apprehension at birth until he was adopted, and advised hospital staff following the birth of the child J.A. that they were not interested in visiting with the child in the nursery. The Respondents did not refute this evidence.

[52] The evidence of Society worker Jessica Barnes indicates that there have also been difficulties with respect to the Respondents’ access with K.A.P. According to Ms. Barnes, the Respondents missed several visits in September and October 2011, stating that they were ill on those occasions. Specifically, from September 12, 2011 until October 24, 2011, they missed six out of twelve scheduled visits. On two of those occasions, according to the Society, the Respondents did not call ahead to cancel, resulting in the child being unnecessarily brought to the Society’s offices. As a result of these many missed visits, Ms. Barnes advised M.A. and M.P. on October 24, 2011 that their visits would be put on hold until they attended at the Society’s offices for a meeting to discuss the difficulties around access with K.A.P. and a plan to improve the access situation. Ms. Barnes’ evidence was that the parents advised her at that time that they could not meet for a couple of days, but that they would contact her to schedule a meeting. The uncontroverted evidence of Ms. Barnes was that they did not contact her to arrange this meeting. As of November 4, 2011, the date of Ms. Barnes’ last affidavit filed in support of this motion, the Respondents had not seen K.A.P. for almost a month. Counsel for the Respondents argued at the hearing of this motion that the Respondents had evidence to explain this lack of access with K.A.P., but that they had not had an opportunity to respond. This opportunity would have been provided to them at the hearing, as I would have allowed them to give viva voce evidence on the matter. However, the parties did not attend the hearing. Their absence on the occasion of such a significant court appearance reinforces the concerns respecting their ability to commit to the responsibilities of caring for their children.

C. Concerns Respecting the Respondents’ Parenting of Their Children

1. History of M.A.’s Parenting of the Child C.A.

[53] The Respondent father M.P. has never had a child in his full time care. The mother M.A., on the other hand, was in a care-giving role with respect to her first child. C.A., born […], 1997, for a period of approximately seven years, from the time of the child’s birth until 2004. As noted above, the Respondents are relying on the history of M.A.’s parenting of C.A. in support of their argument that there is a genuine issue for trial in this case.

[54] It is undisputed that M.A. resided with her parents (“the maternal grandparents”) during the period when C.A. was in her care. The evidence set out in the assessment report of Dr. Archer indicates that M.A. required considerable support from the maternal grandparents in caring for C.A. The maternal grandparents reported that they had to give M.A. regular prompting and guidance on issues and basic tasks relating to the care of C.A., and that they did not leave M.A. alone overnight with the child. They also relayed concerns that M.A. could not manage new or crisis situations effectively, had difficulty planning ahead, and became easily frustrated and agitated with the child. Dr. Archer noted in her assessment report that M.A. admitted to her during the assessment that she received a great deal of support from her parents in caring for C.A.

[55] M.A. responded to the evidence respecting her past parenting of C.A. by simply stating that she provided the child with “the maternal care that a child would require.” She added that this care included “feedings, bathing, diaper changing and any other responsibilities required of a mother of a newborn.” She did not provide any specifics of the extent to which she cared for the child as opposed to her parents, and did not provide any details about the child’s routine, his needs, his activities, the professionals who monitored the child, or whether she took the child to appointments. She stated that she provided the financial support which C.A. required and enrolled him in school. M.A.’s vague and bald references to carrying out maternal responsibilities and financially providing for C.A., without details of specific facts supporting these assertions, do not raise a genuine issue for trial respecting her parenting capacity. In any event, she did not deny the evidence that she was not left alone overnight with the child, that she became easily frustrated with C.A. and had difficulty managing new situations or crises, and that she had difficulty planning ahead on issues relating to the child.

2. Concerns Respecting the Quality of the Respondents’ Attachment to Their Children

[56] The Society’s evidence establishes serious concerns respecting the ability of both parents to consistently provide appropriate nurturing and affection to their children, and to form healthy and meaningful attachments with them. Dr. Archer noted in her assessment report that previous Society workers involved with the Respondents in relation to their older children had documented concerns about the minimal affection demonstrated between the Respondents and the child S.S.P. during visits. Dr. Archer’s impressions of M.A.’s interactions and attachment with C.A. were fairly positive. However, after observing the parties with the child S.S.P. on three occasions, her impression was that the quality of the attachment between M.A. and S.S.P. was poor. She noted that M.A.’s responses to S.S.P. fluctuated between “distance/detachment and controlling,” that M.A. did not demonstrate behaviours such as smiling, joy, or laughter during visits, that her communication with the child was minimal, and that there was little physical affection between her and the child.

[57] Dr. Archer reached similar conclusions respecting the quality of the attachment between M.P. and the child S.S.P. She observed that M.P. often related to S.S.P. in an overly intrusive manner. In addition, she noted that M.P.s’ affective tone with the child was often negative or flat, that his communication with the child was limited, that there were few positive displays of emotion in what the child was doing, and that there were minimal displays of affection between M.P. and the child. With respect to M.P.’s interactions with the child C.A., Dr. Archer observed that M.P. initiated almost no contact with the child during a visit with both C.A. and S.S.P., and was minimally responsive to C.A. even when the child grabbed onto his leg during the visit. She further noted that M.P. did not display any signs of physical affection or pleasure about seeing C.A. or spending time with him.

[58] With respect to the child K.A.P., the Society Resource Worker who has supervised visits, Ms. Klynstra, has observed that the parties have demonstrated some very basic parenting skills, such as changing the child’s diaper, preparing bottles and feeding the child. No evidence was adduced regarding the quality of the attachment between the parties and the child. However, it is clear from the Society’s evidence that the parties missed many visits with the child from the time of her apprehension on […], 2011 until November 4, 2011, when Ms. Barnes swore the last affidavit in support of the summary judgment motion.

[59] The Respondents did not respond to the evidence relating to the significant concerns respecting their ability to form positive and meaningful attachments to their children.

3. Concerns Respecting the Respondents’ Ability to Understand their Children’s Developmental Needs

[60] As noted above, the results of the testing which Dr. Archer carried out revealed concerns respecting the ability of both parties to identify and understand the normal developmental needs of children. Dr. Archer concluded based on her own observations of visits between the parties and the children S.S.P. and C.A. that M.P.s’ knowledge of child development was poor, and that he had grossly inappropriate expectations of the child S.S.P. She noted in her report that previous Society workers who had observed the Respondents with the child S.S.P. had documented concerns that both parties did not have age appropriate developmental and social expectations of the child, and that they did not follow through with the recommendation of the Family Resource Worker Ms. Southern that they access resource materials to educate themselves about these issues.

[61] The Respondents did not respond to these concerns respecting their ability to understand the developmental needs of children and to establish age appropriate expectations.

4. Concerns Regarding the Respondents’ Lack of Preparation for the Child, Including Lack of Pre-natal Care

[62] The Society has adduced compelling evidence of concerns respecting the Respondents’ failure to properly prepare for the birth of their children. One aspect of this concern has been the mother’s failure to access proper pre-natal care for herself. The Society’s evidence is that M.A. did not receive any pre-natal care during her pregnancy with S.S.P in 2004 until she was thirty six weeks pregnant. Similarly, according to the Society’s evidence, M.A. did not receive any prenatal care during her pregnancy with the child J.A. or with the child K.A.B. The Respondents did not contest this evidence. As noted above, M.A. advised Dr. Archer during the assessment process that she was unaware of her pregnancy with S.S.P until she was five or six months pregnant. The parties stated in their materials filed in response to this motion they did not realize that M.A. was pregnant with K.A.P. until she was seven months pregnant, since she continued to have menstrual cycles and the baby was not active. Their failure to recognize the pregnancies until such a late stage, if true, reinforces the serious concerns outlined above regarding their intellectual functioning.

[63] The Respondents acknowledge that they made no preparations for the arrival of the child K.A.P. Specifically, they did not secure any necessary supplies for the child, including a crib, clothing, formula or diapers. According to the Society, they stated that they had declined an offer from a neighbour to provide them with baby items. The Respondents’ response was that they expected that the Society would apprehend the child at birth, and they did not want to experience the emotional pain which they had felt in the past after preparing to bring their children home from the hospital. This response highlights not only their inability to provide the basic necessities for their child, but also their inability to prioritize the interests of their child over their own emotional concerns and issues.

D. Concerns Respecting the Respondents’ Ability to Maintain an Appropriate and Safe Home Environment for the Child

[64] There have been ongoing concerns on the part of the Society respecting the parents’ ability to maintain an appropriate and safe home environment for their children. Dr. Archer noted in her assessment report that previous Society worker, Ms. Melissa Buckton, documented concerns regarding safety issues in the parents’ home that were not addressed, and that the Family Resource worker who supervised visits between the Respondents and the child S.S.P. had concerns regarding the cleanliness of the home.

[65] It is not disputed that at the time of K.A.P.s birth, the parties were residing in a rooming house. The Respondents further acknowledge that the tenants on the floor above them were drug addicts. They admitted to Society worker Ms. Pamplin on June 8, 2011 that this residence was not appropriate for the child, and that people were constantly coming and going from the house for drug purposes.

[66] The Society adduced evidence of numerous safety concerns respecting the parents’ residence. These concerns are outlined in detail in the affidavit of Ms. Barnes sworn September 13, 2011. At the outset of the Society’s current involvement, the concerns included: the extremely cluttered and dirty state of the home; the presence of electrical wires including a light switch hanging from a socket; the fact that the smoke detector had been removed; exposed heat duct easily within reach of a child; exposed insulation, lath and plaster; numerous large holes in the wall; the presence of used cigarettes, empty bottles and numerous beer bottle caps throughout the home; broken computers and fans and parts for these items lying around the home; various types of construction material lying around the residence which posed a risk to a child; and the fact that the basement stairs were completely blocked with boxes and pieces of wood.

[67] Society worker Ms. Barnes attended the parents’ residence on July 14, 2011, and did not note any appreciable improvement in the situation. On that occasion, she documented additional concerns that the roof of the residence appeared to be sagging, and that M.P. had hooked up a gas line to the stove himself. Ms. Barnes gave the Respondents a letter on July 26, 2011, outlining the Society’s expectations respecting their home. She asked them on September 6, 2011 to advise her when she could attend the home to assess whether these expectations had been met. According to Ms. Barnes, the Respondents never contacted her to arrange another home inspection.

[68] The Respondents acknowledged in their affidavit sworn October 21, 2011 in response to this summary judgment motion that their residence is small, cluttered and in need of significant renovations. They alleged that some of the issues had been addressed, but that a number of areas of concern still needed to be resolved by the landlord. They acknowledged that the home was still in a state of renovation, and that they had not invited the Society worker to inspect the home due to the ongoing nature of the renovation work. With respect to the concern about clutter in the home, they relayed that they were in the process of negotiating with their landlord to rent an additional room on the second floor of the house, which would allow room to accommodate a crib and other baby items. They indicated that they would secure the necessary furnishings for the child at that point. It is clear from the Respondents’ evidence that as of October 21, 2011, almost five months after K.A.P.’s birth, they still did not have a residence that was appropriate for the child and had still not secured the basic items required for the care of K.A.P.

E. Concerns Regarding the Respondents’ Ability to Manage their Personal Affairs

[69] The Society has advanced evidence which raises serious concerns regarding the ability of the Respondents to manage their personal affairs. The evidence relating to the Respondents’ difficulties in establishing an appropriate residence is one example of this concern. However, the evidence also reveals concerns about the Respondents’ attention to their own personal health needs, their ability to cope with day to day responsibilities and their capacity to appropriately prioritize issues in their lives.

[70] With respect to health issues, the concerns outlined above respecting M.A.’s lack of prenatal care are relevant not only to her ability to ensure the wellbeing of her children, but also to her ability to meet her own basic needs. The Society’s evidence also indicates that M.A. has not attended appropriately to her other health needs. During the parenting capacity assessment process carried out in 2005 and 2006, M.A. advised Dr. Archer that she had experienced a major seizure in 2004 for which she had been hospitalized, that her seizures became particularly problematic during times of stress, and that she had been prescribed Tegretol for this condition. However, she acknowledged to Dr. Archer that she was not taking this medication regularly as prescribed. M.A.’s family physician at the time, Dr. Holdway, confirmed that M.A. was not taking her seizure medication regularly. The previous Society worker involved with the family, Ms. Buckton, documented concerns regarding both M.A.’s and M.P.s’ lack of attention to their medical needs and their inability to appreciate how their own health issues may impact on their parenting.

[71] During the Society’s current involvement, M.A.’s neurologist, Dr. Goodwin, advised the Society that she had not seen M.A. since 2000. He further advised that M.A. had missed appointments with him in 2004, 2005 and 2009. M.A. confirmed with the Society worker on July 12, 2011 that she had not seen Dr. Goodwin or any other doctor since 2000. On July 13, 2011, she stated to Society worker Ms. Barnes that she had had a seizure the previous week, but that she had not followed up with her neurologist or a family doctor. The Society’s uncontested evidence was that as of October 28, 2011, neither of the Respondents had attended a doctor’s appointment, despite having been provided with contact information for various doctors and being offered bus tickets to attend such appointments.

[72] The Respondents did not respond to the historical concerns outlined above regarding inadequate attention to their health needs. M.A. responded to the current concerns in her affidavit sworn October 21, 2011 by stating that she did not have any need to see a doctor, and did not have to see her neurologist since she had not had a grand mal seizure since 2000. She also stated that she had mild seizures every several months, but that they were fairly well controlled with medication which she was taking. However, M.A. did not provide a meaningful response to the concerns about her not having received medical attention since 2000, did not state who was prescribing her seizure medication and did not provide any proof that she had in fact obtained prescriptions for Tegretol. She also did not provide any written confirmation from any physician or other community professional that she did not need to be monitored any more by her neurologist. Her statements that she does not require professional monitoring by her neurologist, and that she takes medication for her seizure condition, were not supported by documentary proof which she could have easily obtained. Accordingly her evidence on these issues amounts to bald assertions that are not sufficient to rebut the Society’s concerns regarding M.A.’s lack of attention to her health and medical needs. Further, it is uncontroverted that as of October 21, 2011, when the Respondents swore their affidavit in response to this motion, they were still, to use their words, “in the process of seeking the services of a family doctor.” This is the case despite the fact that they had cancelled many visits with K.A.P. allegedly because they were ill, and despite the Society’s expectation since the outset of its current intervention that they obtain a family doctor and attend diligently to their medical issues.

[73] The evidence also raises serious concerns regarding the ability of the Respondents to manage and problem-solve around their day to day affairs, and to prioritize issues in their lives. Examples of situations which reflect this concern are as follows:

1. During the course of Dr. Archer’s assessment, M.P. advised Dr. Archer that he would have difficulty attending additional meetings that were required due to transportation difficulties.

2. The Society worker previously involved with the family reported to Dr. Archer in 2005 that although the Respondents had minimal commitments, they had cancelled appointments and complained about being asked to do too much.

3. The current Family Services worker, Ms. Barnes, indicated that both Respondents have extremely poor time management skills. According to Ms. Barnes, they have often complained about having too much to do, despite the fact that they are not working. Further, she stated that they often stated that they could not come to visits because they were cleaning their home.

4. On October 19, 2011, M.A. asked whether they could visit with K.A.B. at 9:30 a.m. instead of 9:00 a.m., so that the Respondents would have enough time to get up, get ready and come to the Society’s offices. She made this request despite the fact that the Respondents live only a five minute walk from the Society’s office.

5. Finally, counsel for the Respondents advised during the hearing of this motion that the Respondents were not in attendance because they could not sort out transportation to court.

[74] The Respondents have not responded to these concerns in their affidavit filed in response to the summary judgment motion.

F. Conclusion

[75] I am satisfied based on the materials contained in the summary judgment motion record that a trial is not required in order to achieve a full appreciation of the evidence and the issues relating to the protection findings which the Society is requesting. The Society has led evidence that establishes a prima facie case for finding the child K.A.P. in need of protection pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g) of the CFSA, on the basis of risk of both physical and emotional harm as defined in those sections. The Respondents were required to put their best foot forward in responding to the Society’s evidence. After carefully considering this evidence, I am satisfied that they have no chance of success on the issue of whether K.A.P. is in need of protection as requested by the Society. Further, I conclude for the same reasons that court intervention continues to be necessary to ensure the protection and well-being of K.A.P.

VI. ANALYSIS RESPECTING PLACEMENT AND ACCESS TO THE CHILD

[76] I am also satisfied based on the evidence contained in the summary judgment motion record that the Society has satisfied the onus of proving that there is no genuine issue for trial on the issues of placement of and access to the child K.A.P., and that the child should be made a Crown Ward without access. I have considered all of the factors discussed in Part III(A)(3) above in reaching this conclusion.

[77] In carrying out the best interests analysis, I have considered the serious and longstanding nature of the concerns which the Society has identified respecting these parents. Previous Society workers and Dr. Archer documented the identical concerns. The evidence before me indicates that the Respondents have not made any real progress in addressing the very same issues that led to the four previous children which they had together being made Crown Wards.

[78] I have also considered the child’s physical and emotional needs, and whether the Respondents are able to meet those needs. It is not disputed that K.A.P. is a healthy child who is progressing well developmentally. She is now almost eight months old, and has been in foster care since birth. The Respondents have had this extended period of time to address the Society’s protection concerns, and they have failed to meet the basic expectations which the Society clearly laid out for them. K.A.P. can only remain in care as a Society Ward for a further period of approximately four months before permanency planning must be implemented for her. Based on the evidence before me, I am satisfied that there is no realistic possibility that the Respondents will be able to resolve the concerns that led to child protection intervention within that short period of time, such that K.A.P. could be safely returned to their care. In order to achieve her full potential, K.A.P. requires a safe, stable and secure placement within a family that is able to meet her needs as soon as possible.

[79] In determining the issue of placement, I am required to consider the recommendations made to the Respondents, and services which have been offered to assist the child and the Respondents. The Society’s evidence indicates that numerous services have been recommended and offered to the Respondents over the years, and that they have either not availed themselves of the services or have been unable to benefit meaningfully from the services which they have accepted. These services have included the following:

1. During the intervention relating to the child S.S.P., the Society requested that the Respondents participate in a parenting course. The Respondents did not follow through with this course, stating that they were too busy to attend.

2. A Society Resource Worker, Ms. Terri Southern, provided parenting instruction to the Respondents in 2005 during access visits. She recommended that the Respondents obtain resource materials from the library regarding developmental stages of children, but she reported to Dr. Archer that the Respondents did not follow through with this recommendation.

3. Society Resource Worker Ms. Christine Soomet also provided parenting instruction to the Respondents in 2005. She reported to Dr. Archer that the Respondents, and especially M.P., were resistant to advice regarding parenting issues.

4. During the course of the Society’s involvement with the child R.P., the Respondents refused to participate in budget counselling or a home management course, as recommended by the Society, despite the concerns regarding their budgeting skills and their ability to maintain an appropriate residence for the child.

5. A Society Resource worker, Ms. Jodi Klynstra, has been working with the Respondents on parenting issues during access visits with K.A.P.

6. The current Society Worker, Ms. Jessica Barnes, has referred the Respondents to parenting programs, and offered to provide the Respondents with bus tickets so that they could attend these groups. The Respondents state that they attended a parenting program, but could not name or describe the program, and have not provided Ms. Barnes with proof of having attended any parenting courses. In September 2011, Ms. Barnes also referred M.P. to a father’s group, which M.P. initially stated he would attend. However, in mid September 2011, he advised Ms. Barnes that he would not be attending, as he did not do well in a group setting. The Respondents have not adduced any evidence of having looked for appropriate parenting courses that would suit their personal needs.

[80] The Respondents have also failed to complete police background checks, which the Society requested that they complete in order to assist in assessing whether K.A.P. could be placed in their care.

[81] Finally, I am required to consider whether less intrusive alternatives to removing the child from the Respondents’ care would be adequate to protect the child. The Respondents have not presented any relatives or members of the community as possible alternative caregivers for K.A.P. The Society’s evidence is that the Respondents do not have any significant supports in the community to assist them in caring for K.A.P. In their affidavit sworn October 21, 2011, the Respondents made a vague reference to having the support of friends. However, they do not provide information respecting any names of these alleged friends, or the ways in which they could assist the Respondents.

[82] The numerous concerns which have led the Society to request an order for Crown Wardship without access in this case are virtually identical to those which existed when Dr. Archer completed her parenting capacity assessment in January, 2006. Based on the results of testing carried out on the Respondents and the evidence of the Society and other professionals, Dr. Archer concluded that the Respondents did not have the capacity to meet the child S.P.’s needs. She further concluded that it was unlikely that the Respondents would be able to benefit meaningfully from community services and supports to address the protection concerns. Her recommendation was that S.S.P be made a Crown Ward without access.

[83] The evidence establishes that the concerns which Dr. Archer highlighted have persisted, that the Respondents continue to show resistance to community services and supports, and that they remain socially isolated. These serious concerns are not alleviated by the fact that three years have passed since J.A. was made a Crown Ward, or by the fact that the Respondents only have one child to focus on now. There is no evidence before me to suggest that the Respondents would even be able to safely parent one child in their care. Based on this evidence, there is no basis upon which to conclude that the conclusions reached by Dr. Archer respecting the Respondents’ parenting capacity are no longer valid.

[84] Turning to the issue of access, given that I have determined that an order for Crown Wardship should issue respecting K.A.P, the onus is on the Respondents to adduce evidence that their relationship with the child is beneficial and meaningful to the child. They have failed to adduce any evidence to support such a finding. In fact, they have not adduced any evidence whatsoever respecting the quality of their relationship with K.A.B. or the nature of their visits with her. They have missed many visits at the Society’s offices, and have failed to provide a satisfactory explanation for these missed visits. Based on the evidence before me, I conclude that the Respondents have no chance of success on the access issue, and that an order for no access to the child should issue.

VII. ORDER TO ISSUE

[85] The Society has satisfied the onus upon it of proving that there is no genuine issue requiring a trial for its resolution in this matter. Accordingly, a final order shall issue as follows:

1. The child K.A.P., born […], 2011 (“the child”) is found not to be an Indian or native person, and not to have eligibility for Indian or native status.

2. The child is found to be of the Roman Catholic faith.

3. The child is found to be in need of protection pursuant to section 37(2)(b)(i) and (ii) and 37(2)(g) of the Child and Family Services Act.

4. The child is hereby made a Crown Ward, and shall remain in the care of the Catholic Children’s Aid Society of Hamilton.

5. There shall be no access to the child.

The Honourable Madam Justice Chappel

Released: January 20, 2012

[^1]: Child and Family Services Act, R.S.O. 1990, c. C-11, as amended.

[^2]: CFSA, Section 57(1).

[^3]: Jewish Family and Child Services v. K.(R.), 2008 ONCJ 774 (Ont. C.J.); affirmed 2009 ONCA 903 (Ont. C.A.).

[^4]: Children’s Aid Society of the Niagara Region v. T.P., 2003 2397 (ONSC).

[^5]: Children’s Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458 (Ont. C.J.); Children’s Aid Society of Ottawa-Carleton v. T. And T., 2000 21157 (ONSC).

[^6]: Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.), 1995 6216 (Ont. C.J.)

[^7]: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.)., 1994 83 (SCC), [1994] S.C.J. No. 37, 2 R.F.L. (4th) 313, 18 O.R. (3d) 160n., 165 N.R. 161, 113 D.L.R. (4th) 321 (S.C.C.).

[^8]: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), Ibid.; Catholic Children’s Aid Society of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122 (Ont. S.C.J.).

[^9]: CFSA, Section 57(9).

[^10]: Catholic Children’s Aid Society of Hamilton v. M.(L.), (April 28, 1989), Doc. Hamilton-Wentworth C-1096/85 (Ont. U.F.C.); Catholic Children’s Aid Society of Hamilton v. M. (M.A.), Supra.

[^11]: CFSA, s. 71(1)(a).

[^12]: Catholic Children’s Aid Society of Toronto v. S. (S), 2010 CarswellOnt 10496 (Ont.C.J.); Catholic Children’s Aid Society of Hamilton Wentworth v. G. (J.), (1996) CarswellOnt 1428 (Ont. Div. Ct.).; Children’s Aid Society of Toronto v. U. (L.), 2008 26661 (ON SC), 2008 CarswellOnt 3192 (Ont. S.C.J.).

[^13]: Catholic Children’s Aid Society of Toronto v. S. (S). Ibid.; Catholic Children’s Aid Society of Hamilton v. M. (M.A.)., Supra.

[^14]: CFSA, section 50.

[^15]: Catholic Children’s Aid Society of Toronto v. M. (L.), 2011 ONCJ 146, 2011 CarswellOnt 2068 (Ont. C.J.).

[^16]: Children’s Aid Society of Niagara Region v. J. (M.) 2004 2667 (ON SC), 2004 CarswellOnt 2800 (Ont. S.C.J.).

[^17]: See also Children’s Aid Society of Niagara Region v. J.C., 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.).

[^18]: S.O. 2011, c. 12.

[^19]: Family Law Rules, O.Reg. 114/99, as amended.

[^20]: Children’s Aid Society of Haldimand and Norfolk v. T.(S.L.), 2011 ONSC 4990, 2011 CarswellOnt 8480 (Ont. S.C.J.).

[^21]: Children’s Aid Society of Toronto v. P.M., [2002] O.J. 3221 (O.C.J.); R.A. v. Jewish Family and Child Services, [2001] O.J. No. 47 (S.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., 2000 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.); Children’s Aid Society of Hamilton v. C.R., 2006 79342 (ON SC), [2006] O.J. No. 3442 (S.C.J.).

[^22]: F.B. v. S.G. and Children’s Aid Society of Toronto, 2001 28231 (ON SC), [2001] O.J. No. 1586 (S.C.J.); Children’s Aid Society of Halton Region v. K.L.A.,2006 33538 (ON CA), [2006] O. J. No. 3958 (Ont. C.A.).

[^23]: Rules of Civil Procedure, O. Reg. 575/07, s. 6., Rule 20.

[^24]: 2010 ONSC 4289, [2010] O.J. No. 3331 (S.C.J.).

[^25]: 2010 ONSC 4167, [2010] O.J. No. 3223 (S.C.J.).

[^26]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 2011 CarswellOnt 13515 (Ont. C.A.).

[^27]: Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007).

[^28]: Starr v. Gordon, Supra.

[^29]: Canada (A.G.) v. Lameman, [2008] S.C.R. 372 (S.C.C.).

[^30]: Combined Air Mechanical Services Inc. v. Flesch, Supra., at para. 44.

[^31]: Canada (A.G.) v. Lameman, Supra.; J.C.J.-R. v. Children’s Aid Society of Oxford County, 2003 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.); Catholic Children’s Aid Society of Metropolitan Toronto v. L.M.O. and M., 1995 6216 (ON CJ), [1995] O.J. 3971 (Ont. S.C.J.).

[^32]: Rule 16(4), Family Law Rules; Children’s Aid Society of Halton Region v. K.L.A., Supra.; Irving Ungerman Ltd. v. Galantis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 (Ont. C.A.); Dawson Rexcraft Storage and Warehouse Inc. (1988), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), 1999 Carswell Ont 3171 (S.C.C.).

[^33]: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. M.C., 2010 ONSC 4256 (Ont. S.C.J.); Children’s Aid Society of Ottawa v. C.B., 2010 ONSC 6961, [2010] O.J. No. 5644 (Ont. S.C.J.).

[^34]: Guarantee Co. Of North America v. Gordon Capital Corp., Ibid., at para. 27; Hercules Management Ltd. v. Ernst & Young, [1977] 2 S.C.R.165 (S.C.C.).

[^35]: Children’s Aid Society of Toronto v. M.F., 2002 45134 (ON CJ), [2001] O.J. No. 6076 (Ont. C.J.); Dawson v. Rexcraft Storage and Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 (Ont. C.A.).

[^36]: Rule 16(4.1); Canada (A.G.) v. Lameman, Supra., at para. 11; Children’s Aid Society of Hamilton v. C.R., Supra.; Children’s Aid Society of Metropolitan Toronto v. A. (M.), 2002 53975 (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.).

[^37]: Kawartha-Haliburton Children’s Aid Society v. W.M., 2003 2441 (ON SC), [2003] O.J. No. 3903.

[^38]: Children’s Aid Society of Algoma v. E.W.,[ 2001 37515 (ON CJ), 2001] O.J. No. 2746 (O.C.J.); Children’s Aid Society of Toronto v. R.H., 2000 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.).

[^39]: Kallaba v. Bylykbashi, 2006 CarswellOnt 729 (Ont. C.A.).

[^40]: Children’s Aid Society of Toronto v. Cynthia H. and Hassan S., 2004 ONCJ 224, 2004 CarswellOnt 4076 (Ont. C.J.); Children’s Aid Society of Haldimand and Norfolk v. T.(S.L.), Supra.

[^41]: Children’s Aid Society of Toronto v. R.H., Supra.

[^42]: Children’s Aid Society of Algoma v. E.W., Supra.

[^43]: Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, s. 1; Catholic Children’s Aid Society of Hamilton v. L.H., [2008] O.J. No. 4609 (S.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., 2000 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.).

[^44]: Children’s Aid Society of Toronto v. C. (M.), 2003 67754 (ON SC), 2003 CarswellOnt 9373 (Ont. S.C.J.); Children’s Aid Society of Haldimand and Norfolk v. T. (S.L.), Supra.