COURT FILE NO.: C-1479-09

DATE: 2012-01-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CATHOLIC CHILDREN’S AID SOCIETY OF HAMILTON, Applicant

AND:

J.M. and T.M., Respondents

BEFORE: R.B. REID, J.

APPEARANCES:

S. EDWARDS, Counsel, for the Applicant

J.M. (father), self-represented

T.M. (mother), self represented

J. GRANT, Counsel, Office of the Children’s Lawyer, for N.

HEARD: November 9 and 10, 2011

ENDORSEMENT

[ 1 ] The applicant (the “Society”) brings this motion for summary judgment under Rule 16 of the Family Law Rules [1] seeking relief as follows:

a. a finding that N., born […], 1998, be found in need of protection pursuant to section 37(2) (b)(i)(ii) and (h) of the Child and Family Services Act [2] ;

b. an order that N. be made a Crown Ward and placed in the care of the applicant; and

c. an order that access to the parents of N. be in the applicant’s discretion and supervised in the applicant's discretion.

[ 2 ] N.’s mother, T.M., agrees with the request by the Society as does counsel for N.

[ 3 ] N.’s father, J.M., opposes the motion, requests that the matter proceed to trial and ultimately that N. be returned to his care.

[ 4 ] For the reasons set out below, the Society’s summary judgment motion is granted.

Background facts:

[ 5 ] N. is a 13-year-old boy who has been diagnosed with autism and global development delay. Although his current chronological age is 13, it was determined after assessment in November 2010 that he was completing tasks at an early two-year-old level and required extensive assistance and strong supervision in matters of daily living. He has limited verbal skills. His social adaptive skills are in the lower limits of the moderate range of delay, below the 1st percentile.

[ 6 ] N. lived with his parents and two siblings until J.M. and T.M. separated in 2007. N. continued to live with his mother until August 2008. He then lived with his father until August 10, 2009 when he was apprehended by the Society.

[ 7 ] Since the time of the separation, N.’s siblings have continued to reside with their mother. They are currently 14 and about 6 years of age.

[ 8 ] In August 2009, N. was made a temporary ward of the Society with access by his parents in the Society's discretion. That status has continued to date. In April 2011, the protection application was amended to request that N. be made a Crown Ward with access.

[ 9 ] N. requires a highly structured environment with extensive one-on-one care and supervision. This is in order to minimize the risk of physical harm to himself and others as well as to ensure that his physical needs are met and to assist N. in his development to his maximum potential.

[ 10 ] Subsequent to his apprehension, N. was placed by the Society in group home settings. His current placement at Cedar Heights Residential Living in Scarborough Ontario began in May 2010 and is anticipated to continue indefinitely. N.’s residence at Cedar Heights was interrupted from August 18 through November 28, 2010 during which time he was assessed in a residential setting at the Child and Parent Resource Institute (“CPRI”) in London Ontario. Currently at Cedar Heights, N. has one-on-one staff support for nine hours each day during which time his activities are highly structured. Since September 2011, N. has also attended school in an Intensive Support Programme on a limited basis, geared to his needs.

[ 11 ] T.M. typically exercises access to N. on weekends at her home with N.’s siblings. J.M. has not exercised regular access to N. since December, 2010. More will be said on that matter in the reasons that follow.

Proposal by the Society:

[ 12 ] In its plan of care dated April 4, 2011, the Society seeks to have N. continue in his current residential and educational setting and encourages access to N. by both parents. The Society agrees:

• to ensure routine medical and dental care,

• to make routine visits to the group home to monitor development and progress,

• to provide referrals for service as needed to both the parents and N.,

• to liaise with community professionals to monitor progress,

• to ensure that N. is enrolled in an appropriate school placement, and

• to meet regularly with the parents to address any concerns and provide feedback on N’s progress.

[ 13 ] Owing to the lapse of time since the initial order, the Society has no legislative option to seeking Crown Wardship other than returning N. to a parent. It opposes the return of N. to his father and, as noted above, his mother supports the Crown Wardship request.

Factors in support of the request for a protection finding and Crown Wardship:

[ 14 ] The Society relies on several bases for its submission that N. is a child in need of protection and that it is in his best interest to be made a Crown Ward, some of which are inter-related:

a. the mother's inability to care for N.;

b. the father's history of mental health and alcohol-related concerns;

c. the circumstances of N.’s apprehension in August, 2009;

d. the lack of cooperation between the father and the Society;

e. the lack of substantial contact between the father and N. since December, 2010;

f. the high level of care needed by N.;

g. the father's lack of stable and adequate accommodations; and

h. the lack of a plan of care on the part of the father.

Mother's inability to care for N.:

[ 15 ] The Society's position that T.M. is not able to care for N. is not contested. In August 2008, the father took custody of N. because T.M. was no longer physically capable of handling N.’s violent behavior. There had been assaults by N. on his mother, grandparents and siblings.

[ 16 ] T.M. has observed that N. is looking healthier and behaving better since he became a temporary ward of the Society. Her affidavit evidence is to the effect that she believes it is in N.’s best interest to live in supportive housing with access to both parents. She observes that his daily needs are being met and that he has proper support which prevents him from being at risk of harming himself or others. She believes it is in N.’s best interest to become a Crown Ward.

[ 17 ] Based on the affidavit evidence provided by the Society, supported by affidavits and submissions of the mother, I have no hesitation in finding that it is not a feasible option that N. is to be returned to T.M.’s care. It would be reasonable to assume that to do so would create the risk that N. would be likely to suffer physical harm resulting from T.M.’s failure to adequately care for, provide for, supervise or protect N., despite her best efforts.

Father's history of mental health and alcohol-related concerns:

[ 18 ] The Society identified concerns about the father's mental health and alcohol use, initially based on advice from the mother who indicated in February 2007 that she had required J.M. to leave the matrimonial home due to his manic tendencies. She reported a diagnosis of borderline personality disorder and previous hospitalization on his part. She also reported that J.M. had an ongoing drinking problem.

[ 19 ] The issue of alcohol use was also reported to the Society in May 2009 by the principal of N.’s school in that alcohol had been smelled on J.M.’s breath at various times of the day at school. This was during the period that N. was living with his J.M.

[ 20 ] In his contacts with the Society from as early as May 2009, J.M. admitted mental health issues and a diagnosis of bipolar disorder. Although he also admitted to alcohol use, he denied being intoxicated while in a care-giving role.

[ 21 ] By court order, a Parenting Capacity Assessment of J.M. pursuant to s. 54 of the Child and Family Services Act [3] was undertaken by Dr. K Harris of the London Family Court clinic, dated March 3, 2011. Dr. Harris addressed the mental health and alcohol use concerns raised by the Society.

[ 22 ] Dr. Harris noted that J.M.’s profile is consistent with his diagnosis of bipolar disorder. She reported that in J.M.’s view, his mental health was relatively well managed with medication supervised by a psychiatrist and ongoing psychotherapy with a psychologist. At that time, J.M. reported that he was self-directing changes to his medication independently of his psychiatrist’s advice.

[ 23 ] As to alcohol use, Dr. Harris advised that she had administered an assessment tool called “Substance Abuse Subtle Screening Inventory-3” the results of which indicated that there was a high probability that J.M. had a substance dependence disorder.

[ 24 ] J.M. reported to Dr. Harris and to the Society that he had been completely sober since the end of December, 2010. He provided no evidence on this point in his affidavit material filed or in his oral submissions. J.M. had made contact with the Alcohol Drugs and Gaming Services organization (“ADGS”) on a voluntary basis. According to Dr. Harris, J.M.’s last contact with that organization was January 31, 2011 at which time J.M. advised ADGS that he was receiving advice on the alcohol issue from a case manager at the Canadian Mental Health Association (“CMHA”).

[ 25 ] J.M. has not allowed the Society access to current information from the CMHA. J.M. provided evidence that he was advised by a psychologist, a psychiatrist and his CMHA nurse case-manager not to share further information as a method of reducing stress on himself that arose from contact with the Society, thereby justifying his failure to allow continued contact between the Society and the CMHA. He did not file affidavit evidence by anyone to give direct evidence in support of his comment.

[ 26 ] Quoting Dr. Harris at page 28 of her report:

with regard to alcohol addiction, this allegation did not appear to resonate with [J.M.]. He reported that historically he has used alcohol to self medicate and restore mental health balance, but wondered aloud: “is that misuse?”

[ 27 ] Collateral evidence on the alcohol issue comes from an investigation undertaken by the Halton Children's Aid Society in November and December 2010. That organization completed a child protection investigation in relation to J.M.’s access visits with his other two children while using alcohol. According to the lawyer appointed to represent those children, they did not like it when he used alcohol during access visits and stated that he behaved differently while under the influence of alcohol. A joint meeting was held with the Halton CAS representative and a representative of the Society in which J.M. admitted using alcohol during access visits with those children. Subsequently, in January 2011 after negotiations with the Society, J.M. agreed to undergo a breathalyzer test prior to visits with N., to demonstrate the absence of alcohol in his blood.

[ 28 ] On February 24, 2011, in advance of a planned access visit with N., J.M. tested positive for alcohol in the breathalyzer test administered on behalf of the Society as part of the agreed access protocol. Following that test, a second test was refused by J.M. Although the reading was not high, I find it significant that alcohol was detected at 9:41 a.m. on a day when J.M. knew in advance that he would be tested, and when zero blood alcohol was required as a precondition of unsupervised access to N. In my view, the positive blood alcohol reading helps confirm his inability to control alcohol use. In addition, if being “completely sober” since December 2010 as he advised Dr. Harris meant being abstinent, his comment was not true.

[ 29 ] Dr. Harris found no evidence of a current problem with J.M.’s bipolar disorder, assuming continued medication under the direction of a psychiatrist and a supportive connection with the CMHA. However, J.M.’s refusal to allow continuing contact with the CMHA makes it difficult to reach a conclusion that no problem exists now. Likewise, his self-directing of medication dosage without the prior direction of his psychiatrist calls the efficacy of his decision-making into question.

[ 30 ] As to the alcohol issue, Dr. Harris concluded that alcohol misuse would impact on J.M.’s ability to care for N. on an ongoing, full-time basis. Dr. Harris commented at page 49 of her report:

The available data collected throughout this assessment and from multiple sources is consistent with [J.M.] misusing alcohol at times over the years. There is no doubt that this would impact on his ability to care for [N.] on an ongoing full-time basis. Historically, alcohol use seems to have impacted [J.M.]’s ability to provide adequate supervision, thus compromising a key parenting skill where a child with autism is involved.

Moreover, alcohol use over the long term is contraindicated with some of the medications [J.M.] is taking as well as with his diagnosis of bipolar disorder. It is this assessor's understanding that alcohol could contribute to a relapse or deterioration of [J.M.]’s mental health.

Finally, alcohol use creates stress in his relationship with others, including apparently his daughter [E.], as well as those whom [J.M.] will have to work with over the long term for [N.]’s sake including [T.M.], the CAS, and other family.

… While the assessor acknowledges this [alleged sobriety since December 2010] and wishes [J.M.] success, it remains early stages. The assessor would like to see a longer period of abstinence before [J.M.] would be considered recovered. Until that time, it is this assessor's opinion that placing [N.] in [J.M.]’s full-time care would be risky because he would be unlikely to consistently meet [N.]’s high needs and provide a safe environment for him.

[ 31 ] In my view, based on un-contradicted evidence, much of which is summarized in the previous paragraphs, J.M. has alcohol issues which can negatively impact on his ability to care for N. He has not been forthcoming with up-to-date information about his alcohol use and has prevented CMHA representatives from commenting. He provided no evidence to alleviate concerns identified by the Society that N. would not be adequately cared for if custody of N. was returned to J.M.

[ 32 ] I find that the Society’s concern is justified, and that a return of N. to J.M.’s care would bring a real risk that N. would be likely to suffer physical harm resulting from J.M.’s failure to adequately care for, provide for, supervise or protect N.

The circumstances of N.’s apprehension in August, 2009:

[ 33 ] J.M. was in contact with the Society during the year he had custody of N. which ended with the apprehension in August 2009. He acknowledged N.’s violent, aggressive and out-of-control behavior including assaults on N.’s siblings.

[ 34 ] On June 29, 2009, J.M. advised a Society worker that he intended to vacate his apartment and to reside with N. in a camping environment. He was advised against that plan because of the potential safety risk to N.

[ 35 ] Apparently without regard to the advice received from the Society, J.M. took N. to the Algonquin Park for 20 days and then camped in his father's backyard.

[ 36 ] In August, 2009 J.M. took N. camping at Valens Conservation Area in Hamilton. In the early morning hours of August 10, 2009, Hamilton Police Service officers attended at the park responding to a call that a child had been found on the road-side throwing rocks. That child was N. No caregivers were present. The police were unsuccessful in identifying any caregiver in the campsite and as a result N. was apprehended and placed in a Society foster home. N. was noted to be dirty and disheveled, wearing ill fitting clothes, not wearing shoes and had urinated in his pants.

[ 37 ] J.M. was located by the police in the conservation area after 8 AM. J.M. subsequently contacted a Society worker and advised that he had noticed that his son was missing between 4 AM and 5 AM. No explanation was provided by J.M. at the time as to how N. had left the campsite undetected or as to how J.M. had failed to be aware of the police search for a caregiver. J.M. admitted to drinking a modest amount of alcohol prior to arriving at the park, but denied drinking in the park. He advised Dr. Harris that sound sleeping is one side effect of his alcohol use, which he suggested contributed to his not waking up when N. left the tent.

[ 38 ] The circumstances of the apprehension are obviously indicative of N. being in need of protection in August 2009, some 29 months ago. The question is whether or not they shed light on whether N. is in need of protection now. I consider that the apparent underlying problems from August 2009 continue to exist. The alcohol issue has been addressed above and still appears to be current. N.’s special needs continue with the attendant requirement for close and careful supervision. The choice to ignore the Society’s advice about attending at a campground setting with N. is consistent with J.M.’s continuing lack of co-operation with the Society (see below) and with his decision to self-adjust his medication without medical advice. In effect, the circumstances of the apprehension represent an example of what can happen to N. while in the custody of J.M. and I see no convincing evidence from J.M. to persuade me that the underlying problems have been resolved.

Lack of cooperation between the father and the Society:

[ 39 ] Mention has already been made of J.M.’s decision to ignore Society advice about the camping plan with N. in 2009 and of J.M.’s recent decision not to allow the Society access to current information from the CMHA, apparently because of the stress that contact with the Society causes to J.M.

[ 40 ] Other examples abound in the material filed. J.M. has hung up on or refused to speak with Society representatives. On one occasion in October 2011, he requested a home visit, then attempted to change its time. When the worker arrived, J.M. gave her a letter that he had composed and was unwilling to discuss matters with her directly.

[ 41 ] In advance of the summary judgment motion, J.M. insisted on urgent further disclosure of documents and then failed for a considerable time to attend and sign the required disclosure statements, thus delaying the requested disclosure.

[ 42 ] J.M. insisted on the opportunity to question Dr. Harris. The matter was negotiated and the Society agreed to the questioning as well as to pay professional fees for Dr. Harris’ attendance. The date and time for the questioning in Hamilton was agreed upon between the Society and J.M. On the day prior to the scheduled questioning, J.M. e-mailed Dr. Harris advising that the examination was canceled and would take place later in London -- all without any consultation or notice to the Society.

[ 43 ] There appears to be a significant if not total breakdown of communication between J.M. and the Society. Considering that even J.M. acknowledges that he is not able to care for N. without significant community support, his lack of a positive relationship with the Society makes it even more unrealistic to anticipate that appropriate community services could be allocated to assist J.M. in care for N. in that the Society would normally be the main conduit for such services.

The lack of contact between J.M. and N. since December, 2010:

[ 44 ] J.M. seeks the return of N. to his care, despite the fact that he has had minimal contact with N. for over one year.

[ 45 ] During the period of the CPRI evaluation in August through November 2010, J.M. and frequent occasions to observe and interact with N. It appears to have been a period of significant learning for J.M. who initially had opposed the placement. After N.’s return to Cedar Heights, the Society’s concern about unsupervised access when J.M. had been drinking sparked a series of discussions and negotiations which resulted in the agreement by J.M. that he would be alcohol free as confirmed by a breathalyzer test as a precondition to unsupervised visiting. After two visits in February 2011 and the subsequent breath test failure referred to above, J.M. stopped regular visiting with N.

[ 46 ] In part, J.M. explained the lack of visits by the fact that J.M. did not have a car, that he could not visit during weekdays during the daytime according to the Cedar Heights rules and that T.M. had appropriated the weekend time for visiting.

[ 47 ] It appears however from the affidavit material filed that the Society attempted to facilitate alternative visiting arrangements including weekday, daytime access at Cedar Heights. The alcohol abstinence provisions did not apply to supervised access at Cedar Heights. Despite these efforts, J.M. had no contact with N. after July 5, 2011 until attendance with a Society representative at N.’s school on one location on October 12, 2011 and there is no evidence of subsequent visiting by J.M. with N. prior to the date of this motion.

[ 48 ] A telling insight into J.M.’s approach to the visiting issue was captured in the affidavit of Society worker Erin Knoke (sworn October 25, 2011). During their drive to N.’s school on October 12, 2011, J.M. identified that he had not seen N. since July 2011. He described himself to her as “not an emotional guy” and was fine with the limited amount of access as long as his son’s needs were being met in a group home surrounded by “strangers”. The possibility that N. may have wanted to see him did not enter into the discussion. In fact, it is common ground amongst the parties and was confirmed by Dr. Harris that N. enjoys visiting with his parents and siblings.

[ 49 ] In my view, is not reasonable to consider placing N. with his father as an alternative to Crown Wardship based on his lack of any meaningful contact between them for an extended period of time, quite apart from the protection concerns referred to above.

The high level of care needed by N.:

[ 50 ] There is no dispute about the significance of N.’s autism on his need for care. He is described as a “big” thirteen year-old. His ability to interact with others is drastically affected by the autism. His level of dependence on others is similar to that of a two year old child. N. has a history of violent outbursts, as a result of which third parties, including his parents and siblings have been injured. His caregivers need to understand his needs and respond appropriately.

[ 51 ] In summary, N. needs as much one-on-one supervision as can be found, with the caregiver(s) being attuned to N.’s personal situation as well as to the CPRI recommendations and to autistic characteristics generally. He needs a regular routine and a highly structured environment. In effect, looking after N. requires a full-time commitment by a skilled person or group.

[ 52 ] Although J.M. certainly knows N. and has made it a point to become conversant with the nature of N’s autism and the CBRI recommendations, it is not reasonable to assume that he could care for N. on his own. This is so even without the underlying alcohol and mental health issues referred to above. The tendency to alienate service providers adds to the un-feasibility of having N. returned to J.M.’s care.

[ 53 ] There was no evidence that N.’s care could be provided within the confines and resources of a typical family. Not even J.M. indicated that he would be able to care for N. without significant (unspecified) community resources.

[ 54 ] In my view, N.’s high needs have a converse side: the result of failure to meet his needs carries the strong likelihood that N. will do harm to himself or others as has been the case in the past.

The father's lack of stable and adequate accommodations:

[ 55 ] After N.’s parents separated in 2007, N. lived with J.M. The detail of J.M.’s accommodations was not provided. However, J.M. gave up his rented accommodations in order to live in a camping environment with N. in the summer of 2009. Since then, J.M. has lived for a time with his girlfriend N.B., then with his father, then back with N.B. The evidence on the motion was not clear as to whether residence with N.B. was continuing, and if so, its detail and the likelihood of permanence. The lack of clear, adequate and secure accommodation offered by J.M. makes it difficult, to say the least, to consider any alternative to the group home situation at Cedar Heights provided under the Society’s plan.

[ 56 ] N.B. could conceivably be a significant part of N.’s life if N. was to live with J.M. and N.B. However, no affidavit material was filed by her, nor was there any detail of her potential involvement provided in the materials filed by J.M. Dr. Harris, in securing information for her report, did have conversations with N.B. and concluded that she had no expectation of being involved in N.’s care. There is no indication that N.B. has any kind of relationship with N.

The lack of a plan of care on the part of J.M.:

[ 57 ] The Society submitted that, given the difficult history in this case, it would not be reasonable to consider a return of N. to his father without a detailed current plan in which J.M. would set out his intentions as regards meeting N.’s high needs.

[ 58 ] J.M. was identified by Dr. Harris and by various Society representatives as being intelligent; loving his children and being committed to helping them achieve their potential. N. apparently enjoys his interactions with J.M. The Society encourages visiting by N. with both parents and has expressed some frustration at the lack of contact between J.M. and N. The relief being sought by the Society contemplates continued involvement with N. by both parents.

[ 59 ] No plan of any nature was provided by J.M. He was obviously aware of the need to put his “best foot forward” in response to a summary judgment motion since that principle was identified by him in his factum.

[ 60 ] J.M. was a sophisticated litigant. He completed his law degree at the University of Toronto Law School in 2009. He has not yet secured an articling position required as a prerequisite to his call to the bar, but intends to engage in the private practice of law in due course.

[ 61 ] J.M. spent the vast bulk of his time in submissions articulating his high level of understanding of N.’s autism, the details of the various reports prepared while N. was at the CPRI, N.’s ongoing needs and the shortcomings of N.’s current situation. It left me with no doubt about his intellectual capacity to comprehend N.’s circumstances. He was critical of the care N. has been receiving at Cedar Heights and at N.’s current school although he has had very few occasions to observe it firsthand. He proposed that the Society employ people with a higher level of expertise in autism in order to supervise N’s care.

[ 62 ] Despite J.M.’s understanding of both the legal process and N.’s autism, he failed to address such basic issues as accommodation and how he would go about ensuring that N’s high needs would be met. As noted above, he did not deal with the Society's concerns about his alcohol consumption, or the circumstances leading up to and surrounding the apprehension of N.

[ 63 ] J.M. stated that he did not feel that a response to the affidavits filed by the Society could be made in affidavit form. I do not agree. I consider that the concerns clearly articulated by the Society could easily have been the subject of responding affidavit material filed by J.M. had he chosen to do so.

[ 64 ] Dr. Harris, in her Parenting Capacity Assessment, addressed an aspect of J.M.’s personality which may account for his choice not to articulate a plan of care and instead to focus on his intellectual comprehension of the problem. She said at page 48 of her report:

[J.M.] impressed as having intermittent insight into his strengths and weaknesses, depending on the extent to which he feels threatened by the person or circumstances challenging him. It is interesting that while he readily perceives the shortcomings in others, he is not always similarly self-reflective except when it seems that offering up some personal limitations seems in his best interests. It is notable that his self-reflections are often intellectualized, meaning that he focuses on the intellectual component of the stressor or shortcoming and remains distant from the reality of the situation. An example of this is his understanding of his own misuse of alcohol. From an intellectual standpoint, he views it as self-medicating which assists in maintaining mental health stability thereby avoiding the emotional and social repercussions of an alcohol addiction. Individuals who intellectualize generally focus on learning everything about the disease in order to avoid distress and remain distant from the reality of the situation. As with his own mental health, [J.M.] has amassed considerable knowledge about [N.]’s autism and its treatment, without completely understanding the practicalities or system limitations.

[ 65 ] The lack of any attention in J.M.’s materials or his oral submissions to a reasonable plan for N.’s care, despite his recognition of the legal requirements of responding to a summary judgment motion indicate to me that his focus has been misplaced, and confirms my view that that there is no reasonable alternative to the order requested.

Summary judgment procedure:

[ 66 ] In its application, the Society bears the onus of proving that N. is a child in need of protection as defined by the Family and Children's Services Act. [4] this determination must be made in keeping with the child's best interests. Once the child is found to be in need of protection requiring a court order, there are limited options available and in this case, the Society has opted to request that N. be made a Ward of the Crown.

[ 67 ] For a matter to be dealt with by way of a final order under the summary judgment rule ( Rule 16 of the Family Law Rules [5] ) the court must be satisfied that there is no genuine issue requiring a trial. This determination is to be made based on the affidavit or other evidence filed by the party making the motion. Sub-rule 19 (4.1) requires that 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.”

[ 68 ] In this case, J.M. submitted that a genuine issue requiring a trial does exist. He indicated that the genuine issue here is the competition between himself and the Society as to who is better able to meet the special needs of N. including love, companionship and safety. In his view, only a trial with oral evidence from witnesses for both parties will enable the court to make a proper determination.

[ 69 ] The Society submits that: (a) based on facts which are essentially undisputed, N. is a child in need of protection, (b) based on the evidence before the court, there is no triable issue about where the best interests of N. lie and that (c) there is no reasonable alternative to its proposed plan of care.

[ 70 ] In the case of Children's Aid Society of Toronto v. R.H ., Justice Katarynch endorsed the principle that, “in child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of the parent’s desire to resume care of the child. There must be an arguable notion discernible from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent.” [6]

[ 71 ] There is no doubt in this case that J.M. has a sincere desire to become the custodial parent for N. However, the lack of a plan articulated by him supporting a return of N. to his care as well as the contraindications which gave rise to the Society's concerns as set out in the reasons above convince me that there is no genuine issue requiring a trial.

[ 72 ] I accept the direction found frequently in the case law, for example in Catholic Children's Aid Society v P.B . [7] , to the effect that my duty is not “to speculate as to possible evidence, but rather rely on the evidence as disclosed by the affidavits filed with the court. A bald allegation or denial without setting forth facts in sufficient detail to show a genuine issue for trial are not enough.” It is therefore not appropriate for me to defer a decision in this matter to a trial so that J.M. has another opportunity to set out a plan that to date is absent.

[ 73 ] As was acknowledged by J.M. in his factum, the responding party’s responsibility on a summary judgment motion is to provide a complete evidentiary record in response to a motion for summary judgment and to put one's “best foot forward in the material”. [8] Presuming he has done so, he has not raised a genuine issue that requires the full hearing afforded by a trial.

[ 74 ] Submissions were made about whether or not the recent amendments to rule 20 of the Rules of Civil Procedure [9] apply by analogy in summary judgment motions under rule 16 of the Family Law Rules . The case law is not settled on the subject. The main difference between the civil and family law rules is the additional language in Rule 20 permitting the court to weigh evidence, evaluate the credibility of the deponent, and draw reasonable inferences from the evidence in coming to its conclusion about whether or not a genuine issue requiring trial exists. In this case however, there is very little conflict in the evidence presented and no reason to question the credibility of any witness, even if the provisions of the civil rule did apply. Drawing inferences of the type contemplated by the civil rule has not been required. I am confident that I have been able to fully appreciate the issues and evidence available in this matter without the need for a trial.

[ 75 ] Fully acknowledging that the outcome of this matter will have a significant impact on N. and his parents, I agree with the Society that the matter needs to be approached on a child-centered basis. Using that approach, and based on the evidence provided by all parties, I have no hesitation in finding that N. is a child in need of protection as defined by the Family and Children's Services Act [10] , that the Society’s plan for N. is reasonable and that there is no reasonable alternative, in N’s best interest, to the Crown Wardship Order being sought. I have no doubt about J.M.’s sincerity when he concludes his responding affidavit with the statement: “He [N.] should be returned to his father.” However, it is simply not a reasonable option in view of the factual matrix set out above.

Summary and Conclusions:

[ 76 ] N. is a 13-year-old autistic boy with high needs. He requires extensive one-on-one care to look after his physical and emotional needs. That care must be specialized. T.M. admits that she is not capable of providing that care. Based on the findings set out above, I find that J.M. is also unable to care for N. and that a return of N. to his custody would run a risk of physical harm to N. Therefore, I find that N. is a child in need of protection based on the criteria set out in section 37(2) (b)(i) and (ii) of the Child and Family Services Act . [11]

[ 77 ] I have considered the plan proposed by the Society for the continuing care of N. in a group home setting and school where there is specialized programming and expertise available. N. appears to have been well cared for and has progressed reasonably during his time at Cedar Heights since his arrival there in May 2010. J.M. has not put forward any workable alternative plan for N’s care. It is clear that a court order is necessary to protect N. in the future.

[ 78 ] Because of the passage of time since the apprehension of N. by the Society in August 2009, and given the ongoing nature of N.’s special needs, there is no reasonable option under section 57 of the Child and Family Services Act [12] but to make N. a Crown Ward, and I so order.

[ 79 ] Since there is no disagreement that both parents should have a continuing relationship with N. and since N. appears to benefit from that contact, I further order as requested by the Society that N’s parents have access to him in the Society's discretion and subject to such supervision as the Society may determine necessary.

Reid J.

Date: January 13, 2012

[1] O. Reg 114/99

[2] R.S.O. 1990, c. C.11

[3] Ibid .

[4] Ibid.

[5] See fn 1

[6] 2000 3158 (ON CJ) , [2000] O.J. No. 5853, par. 18

[7] (December 8, 2008) Hamilton C3-07 (S.C.J. Ont. F.C.) at par. 44

[8] Ibid. at par. 45

[9] R.R.O. 1990, Reg 194

[10] Supra , fn 2

[11] Ibid.

[12] Ibid.