ONTARIO

SUPERIOR COURT OF JUSTICE

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

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

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

COURT FILE NO.: C-1333/06
DATE: 2012-10-31

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton Applicant – and – A.M. (mother) Respondent

Suranganie Kumaranayke, Counsel for the Applicants
Self-Represented

HEARD: October 29, 2012

The Honourable mr. justice pazaratz

1 . The Children’s Aid Society of Hamilton [”the Society”] brought this motion for summary judgment within its status review application regarding the child S.C.M. born […], 2010. The Society seeks a finding that the child continues to be in need of protection, and an order making the child a Crown Ward and placed in the care of the Society, with no access to the mother.

2 . S.C.M. was apprehended at birth. He has been in care his entire life – 22 months – and the mother has only had supervised or partially supervised access.

3 . The biological father is unknown to the Society. At one point the mother stated she believed her current partner T.L. is the child’s biological father, but a paternity test ruled this out.

4 . The mother is 29 years old. She has five other children – four older than S.C.M. and one younger. None of those children are in her care:

a. Three of the older children have been made Crown Wards without access.

b. One child is in the custody of a maternal aunt and uncle.

c. The youngest child E.L. is seven months old. She was also apprehended at birth and is the subject of a separate summary judgment motion scheduled for next month, with the Society also requesting Crown Wardship with no access. T.L. is E.L.’s father.

5 . The Society’s materials on this summary judgment motion are voluminous: Seven affidavits of Society workers, a plan of care, a factum, and a book of authorities.

6 . The mother filed no materials. She now represents herself. She attended in court on the afternoon of October 29, 2012 when the summary judgment motion was scheduled to be heard. She requested an adjournment to allow her to file materials.

7 . I accepted the submissions of Society counsel that there should be no adjournment, and that the summary judgment motion should proceed. Among my considerations:

a. The mother was personally served with the Society’s motion documents on September 28, 2012.

b. Although the mother is currently self represented, she has had a lengthy history of involvement in child protection proceedings.

c. In relation to this child, the mother was previously represented by Susan Sullivan, local counsel well experienced in child protection matters.

d. On March 19, 2012 – while the mother still had counsel – S.C.M.’s case was set for a 7 to 10 day trial during the sittings of November 26, 2012.

e. On June 11, 2012 the mother filed a notice of change in representation, discharging Ms. Sullivan and indicating that she had decided to appear in court without a lawyer.

f. The mother appeared in person for court dates involving one or both of these children on June 11, July 5, September 10, and October 2, 2012.

g. On October 2, 2012 the mother declined duty counsel. She was present in court when Justice Brown endorsed timelines for the production of materials in relation to each of the two pending summary judgment motions. On this motion in relation to S.C.M., the mother was to serve and file her reply affidavit by October 19, 2012, with facta be served and filed by October 26, 2012 at 4 p.m. As stated, the mother filed no materials.

h. The mother offered no real explanation as to why she had not filed any reply materials, other than to generally comment that she found procedures confusing. She also said she has been preoccupied trying to find suitable housing. As it happens, the mother’s self-admitted inability to secure or maintain suitable housing is a central aspect of the Society’s request for Crown Wardship with no access.

8 . In the circumstances, given the opportunities which the mother has had to obtain legal advice [through retained counsel and subsequently through duty counsel]; given her lack of attentiveness to S.C.M.’s issues generally; and given the lack of any apparent good faith efforts on her part to assume the responsibilities which follow from her decision to represent herself in these proceedings – I concluded it would be unfair to the child to allow any further delay in the court process.

9 . As it happens, when I invited the mother to explain what information she wanted to convey to the court if she had been granted an adjournment to file materials, she stated she would like an opportunity to raise her children, and she wanted to clarify that she had only been homeless since just before S.C.M.’s birth in 2010 – rather than the longer period of homelessness suggested in the Society’s materials. For reasons set out below, those representations would not affect the outcome of this motion.

10 . The Society has a history of involvement with the mother dating back to 2002.

11 . On […] , 2010 – days after S.C.M. was apprehended at birth – the Society commenced a protection application seeking an order that the child be found in need of protection, and asking that the child be made a Society Ward for a period of 6 months, with access to the mother in the discretion of the Society. At the time, the Society’s concerns included:

a. The mother’s history of involvement with the Society regarding a lack of parenting skills, in relation to her four older children.

b. Lack of supervision.

c. Domestic violence.

d. Substance abuse.

e. Cocaine use by the mother’s partner.

f. Alcohol consumption by the mother, including alcohol consumption during her pregnancy [as well as smoking cigarettes regularly during her pregnancy].

g. S.C.M.’s meconium was collected at birth and was positive for marijuana at a very low concentration.

h. The mother’s continued lack of housing and stable living situation.

i. The turbulent relationship between the mother and T.L., as he had choked the mother days after S.C.M. was born.

j. The mother’s association with friends and roommates who used marijuana.

k. The mother’s lack of community supports.

l. The mother’s failure to follow through with recommendations made by the Society to attend for prenatal programs, obtain a family doctor, and secure appropriate housing.

m. The absence of other family members who had presented a plan for the child.

12 . On December 17, 2010 Justice Mazza granted a temporary order placing the child in the care of the Society, with access at the discretion of the Society. The Society was to use best efforts to arrange access at least twice per week.

13 . On March 14, 2011 Justice Mazza granted a final order pursuant to minutes of settlement signed by the mother. S.C.M. was found to be in need of protection pursuant to s. 37(2)(1) Of the Child and Family Services Act (“CFSA”); was found to be non-Catholic, non-native and non-Indian; and was made a Ward of the Society for six months. Access to the mother was to be in the discretion of the Society and supervised in the discretion of the Society, at a minimum of three visits per week for 1.5 hours per visit. The Society agreed to view the mother’s residence should she obtain one, to determine whether the residence was appropriate for the child’s visits to be moved from the Society into her home.

14 . On August 31, 2011 the Society commenced the current status review application requesting that the child be made a Ward of the Crown, with no access to the mother. In addition to historic concerns noted in the protection application, the Society had further concerns including:

a. The mother’s inconsistent attendance for access visits which were placed on hold multiple times due to consecutive missed visits without explanation.

b. Continuing concerns regarding the nature of the relationship between the mother and T.L.

c. The mother had only recently obtained housing but the Society was unable to view the housing as the mother advised she needed to clean it first.

d. A maternal aunt and uncle had presented a plan to care for the child and the Society was in the process of assessing the plan (they were subsequently not approved by the Society).

e. The mother advised the Society on multiple occasions that little had changed in her life since the Society’s previous involvement regarding her four older children.

15 . On August 11, 2011 Justice McLaren granted a temporary order that the existing order would continue.

16 . On December 12, 2011, on consent of the mother, Justice McLaren granted a temporary order that the existing order was partially varied such that the mother’s access was to be in the discretion of the Society and supervised in the discretion of the Society.

17 . On March 6, 2012 the Society commenced a protection application regarding the mother’s sixth child E.L., seeking an order that E.L. be made a Society Ward for six months with access to the mother and T.L. at the discretion of the Society and supervised in the discretion of the Society. In addition to the concerns noted in the protection application and status review application regarding S.C.M., the Society continued to have concerns regarding:

a. The mother’s housing instability.

b. The mother’s admission of consuming alcohol during the first two months of her pregnancy with E.L.

c. The mother’s lack of supplies for E.L.

d. T.L.’s criminal involvement which resulted in incarceration.

e. Information provided by the mother regarding incidents of verbal and emotional abuse perpetrated by T.L.

f. The mother’s disclosure that T.L. used marijuana, Percocets, and consumed alcohol.

CURRENT SITUATION:

18 . The Society’s materials set out that housing has been a major problem for the mother:

a. She has been unable to obtain and maintain appropriate housing since S.C.M.’s birth in […] 2010.

b. She has a pattern of being evicted because of unpaid rent.

c. On June 23, 2010 the mother advised that she had moved into a new residence. The worker attended the residence the same day but there was no answer at the door. The mother then agreed to meet with the worker on July 12, 2010 but there was no answer when the worker attended at the residence on that date. The following day the mother left a voicemail message advising the worker that it was “none of [the worker’s] business what [the mother is] fucking doing with the baby”.

d. Since January 2011 she has moved at least eight times and has admitted that many of these residences were temporary or unsuitable for the child.

e. On April 1, 2012 the mother moved into a new residence with T.L. The mother agreed to meet with a Society worker at this home on April 12, 2012 in order for the worker to assess the home environment and the possibility of moving access into the home. However there was no answer when the worker attended at the home. The worker subsequently attended on April 19, 2012 but the mother advised the worker she could not enter the home due to wet paint on the walls. The worker finally observed the home in late April 2012 and noted that the residence was clean and tidy. The property would have been suitable for access in the home, but the very next month, May 2012, the mother’s landlord evicted her as a result of non-payment of rent.

f. The mother and T.L. eventually went to live with T.L.’s mother in July 2012. However, the mother and T.L. have not permitted the Society to view that residence, as they report that this is only temporary accommodation.

g. The Society had agreed to move access into the mother’s home if she obtained appropriate housing, but to date she has not obtained housing suitable for visits with the child.

h. The Society worker offered to write a letter of support to advocate for the mother to receive subsidized housing, but the mother did not accept this offer.

i. The lack of appropriate housing has meant the Society has been unable to assess the mother’s parenting ability in a home environment.

19 . As a result, the mother’s access has never really been able to evolve:

a. For the whole of S.C.M.’s life, visits have taken place at the Society’s access center. The visits became partially supervised starting in January 2012.

b. For the most part interaction between the mother and S.C.M. has been appropriate. The mother is able to complete basic child care tasks, although she does not consistently interact or engage with him.

c. But the Society has significant concerns about the mother’s attendance for access. Her visits were placed on hold on June 24, 2011 due to three consecutive missed visits. The mother missed a total of seven visits in June 2011.

d. Access was reinstated in July 2011 but after the mother missed visits on July 13 and July 15, visits were again briefly placed on hold.

e. Since July 2011 there have only been two months during which the mother attended for all of her visits with S.C.M.

20 . The Society’s materials set out concerns about the mother’s on again/off again relationship with E.L.’s father T.L.:

a. T.L. has refused to meet with Society workers.

b. T.L. admits to using marijuana to manage chronic pain due to a bullet wound.

c. T.L. has refused to obtain a family physician, and has refused to meet with an addictions worker to discuss his substance abuse. T.L. does not view his marijuana use as an issue.

d. T.L. has a concerning history of involvement with the Catholic Children’s Aid Society (“CCAS”) regarding his own children, but he refuses to cooperate with that agency. He denies a report that he previously kidnapped his other two children from their mother for three days, before being apprehended by the police.

e. T.L. has been incarcerated multiple times after S.C.M.’s birth, and was convicted of assault against a female neighbour in mid 2012. He has admitted to historical charges of uttering death threats, as well as numerous assault charges and weapons charges. He has also admitted to pulling a butcher knife at a party because he thought some people were going to start a fight.

f. A CCAS worker has advised that T.L. had previously been charged with assault against an ex-partner, and had pleaded guilty to threatening to stab an ex-partner’s 6-month-old baby in the face. T.L. has denied this.

g. The mother and T.L. have engaged in multiple domestic disputes, and T.L. has admitted to choking the mother four days after S.C.M.’s birth. He said he lost his temper.

h. In August 2011 the mother disclosed that during a verbal argument with T.L., he threatened to push her down the stairs if the Society continued to contact them. The mother was 3.5 months pregnant at the time with her sixth child E.L. The mother and T.L. resumed their relationship several days later, and the mother said she felt safe with him. The mother later denied that the incident had occurred.

i. In November 2011 the mother reported escalating conflict between herself and T.L. as a result of a paternity test which indicated that T.L. was not S.C.M.’s biological father.

j. In December 2011 the mother disclosed that T.L. had been verbally abusive toward her, and accused her of “cheating” on him. The mother insisted she was no longer in a relationship with T.L.

k. Also in December 2011 the mother attended a consultation meeting with Violence Against Women clinical consultant Nancy Smith who recommended further safety planning. As of May 2012 the mother advised that she had not followed through on Ms. Smith’s recommendations. The mother was given more information about community resources to address violence in her relationship and to safety plan. The mother subsequently said she would be willing to follow through with Ms. Smith’s recommendations “so people will get off [her] back.”

l. However in July 2012, when T.L.’s most recent period of incarceration ended, the mother resumed her relationship with him. They remain together at this time.

m. Both the mother and T.L. minimize their domestic incidents.

n. The mother has indicated to the Society that T.L. is part of her plan for S.C.M.

21 . The Society’s submissions are straightforward:

a. A 2007 parenting capacity assessment (“PCA”) regarding the mother and her 3 oldest children [together with a 2008 supplementary PCA] set out a continuing pattern of childcare concerns on the part of the mother.

b. The mother’s situation has not improved.

c. The mother’s fundamental inability to organize her life and secure stable and appropriate housing has made it impossible to facilitate an expansion of interaction between the mother and S.C.M., and to assess her parenting skills in an unstructured environment.

d. The mother shows no sign of being able to overcome her difficulties in the foreseeable future.

e. The mother’s lifestyle, substance abuse issues, parenting deficiencies, and her unstable and volatile relationship with T.L. preclude S.C.M. being placed in the mothers care at any time in the foreseeable future.

f. The mother has been given clear guidance as to the steps and progress expected of her, and she has failed to take advantage of multiple opportunities for assistance.

g. The mother shows no sign of being able to reorganize or structure her life. She is not currently able to meet S.C.M.’s needs. It is unclear if she will ever be able to make the changes in her life necessary for her to be able to safely and successfully parent the child.

h. S.C.M. has been in care for almost two years now. He is doing well in foster care placement. He is a bright, happy child who is meeting all of his developmental milestones and has no health issues. There is no more time left to keep his life “on hold” while the mother is given more chances to improve her situation. He needs permanence, and the only option is Crown Wardship without access, with a view to adoption.

i. There is no genuine issue for trial in relation to any aspect of this case.

22 . The mother made no submissions.

SUMMARY JUDGMENT

23 . Rule 16 of the Family Law Rules allows a party to bring a motion for summary judgment after the respondent has served an Answer or after the time for serving an Answer has expired.

24 . Rule 16(2) specifically allows for summary judgment in child protection proceedings. The rule does not preclude such a motion in cases in which the Society requests Crown Wardship.

25 . Pursuant to Rule 16(4) the Society is obligated to serve an affidavit, or provide other evidence, that sets out specific facts to convince the court that there is no genuine issue that requires a trial.

26 . Rule 16(4.1) provides that a responding party must also set out by way of affidavit or other evidence that there is a genuine issue for trial. Mere allegations or denials of the evidence of the Society will not be sufficient.

27 . Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

28 . The court must proceed cautiously in a motion for summary judgment and ensure absolute fairness to the parties ( Children's Aid Society of Toronto v. M. (P.) , 2002 53206 (ON CJ) , 2002 CarswellOnt 1883 (O.C.J.) ). Considerations of due process, statutory requirements and the best interests, protection and well-being of the children will determine ultimately the appropriateness of summary judgment ( Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.) , 1999 14252 (ON CJ) , [1999] O.J. No. 5561 (O.C.J.) ).

29 . While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the evidence available, the best interests of the child and their particular needs should not be discounted. ( CAS of the Regional Municipality of Waterloo v. R.S. 2000 22902 (ON CJ) , [2000] O.J. No. 4880 ).

30 . In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether — in that evidence — there are specific facts to support a triable issue in any of the determinations required to be made by the court. ( Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.) , 2000 22902 (ON CJ) , [2000] O.J. No. 4880 (O.C.J.) (page 8) ). The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. ( Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.) , 1999 14252 , (1999), [1999] O.J. No. 5561 , 1999 CarswellOnt 4859 (O.C.J.) ).

31 . The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence; this is reserved for the trier of fact: ( Children's Aid Society of Nipissing (District) v. M. (M.) 2000 22922 , [2000] O.J. No. 2541 , 2000 CarswellOnt 2372 (S.C.J.) ). However, the court can and should examine the evidence to decide whether it meets the threshold test of reliability: ( Children's Aid Society of Toronto v. D. (C.) , [2004] O.J. No. 2461 (O.C.J.) ).

32. In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration which might be available for trial. The court must rely on — and evaluate — the sufficiency of the evidence as disclosed by the affidavits. ( Children's Aid Society of Toronto v. H. (C.) , 2004 ONCJ 224 , [2004] O.J. No. 4084 , 2004 CarswellOnt 4076 (O.C.J.) ).

33. The court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the applicant to show that there is no genuine issue for trial ( Children's Aid Society of Hamilton v. N. (M.) , 2007 13503 (ON SC) , [2007] O.J. No. 1526 (S.C.J.) ).

34. The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. A party cannot rest on a denial and must put his or her best foot forward. ( Children's Aid Society of Metropolitan Toronto v. A. (M.) , 2002 53975 (ON CJ) , [2002] O.J. No. 2371 (O.C.J.) (page 6) ); ( Jewish Family & Child Service v. A. (R.) , [2001] O.J. No. 47 (S.C.J.) ).

35. The respondent is obliged to provide a full evidentiary record and put his or her best foot forward in the material. The genuineness of the issue for trial must arise from something more than a heartfelt expression of desire to be given an opportunity to parent. ( Children's Aid Society of Toronto v. H. (R.) , 2000 3158 (ON CJ) , [2000] O.J. No. 5853 (O.C.J.) ).

36. In determining whether there is a triable issue, the court must not speculate as to possible evidence but rather rely on the evidence as disclosed by the affidavits filed with the court. A submission that the Society’s evidence must be tested through cross-examination is akin to the “bald allegation” or “mere denial” referred to in Rule 16(4.1) of the Family Law Rules. ( Children’s Aid Society of Hamilton v. M.A. [2007] O.J. No. 2454 ; 158 A.C.W.S. (3d) 766 (S.C.J.) ; Children’s Aid Society of Hamilton v. S.P. [2008] O.J. No. 4608 (S.C.J.) ).

37. The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. ( Children's Aid Society of Toronto v. T. (K.) , 2000 20578 (ON CJ) , [2000] O.J. No. 4736 (O.C.J.) ). A genuine issue must relate to a material fact or facts ( B. (F.) v. G. (S.) (2001), 2001 28231 (ON SC) , 199 D.L.R. (4th) 554 , [2001] O.J. No. 1586 (S.C.J.) ). There must be some connection between the determination of that disputed fact and the outcome of the trial. If determination of the issue will have no bearing on the outcome of the trial, it is not a "genuine issue for trial". ( Children’s Aid Society of Hamilton v. A.D.L . [2009] O.J. No. 4390 (S.C.J.) ).

38. "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed." ( Children's Aid Society of Oxford (County) v. J. (J.) , 2003 2388 (ON SC) , [2003] O.J. No. 2208 (S.C.J.) ); when the "outcome is a foregone conclusion" ( Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (1996), 1996 7271 (ON SC) , 139 D.L.R. (4th) 534 (Ont. Gen. Div.) ). To put it another way, no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant. ( Children's Aid Society of Simcoe (County) v. S. (C.) , [2001] O.J. No. 4915 (S.C.J.) ; Children's Aid Society of the Niagara Region v. S.C. , 2008 52309 , 61 R.F.L. (6th) 328 , [2008] O.J. No. 3969 , 2008 CarswellOnt 5929 (S.C.J) .

39. In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the CFSA . The court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible. ( Children's Aid Society of Algoma v. P. (L.) , [2002] O.J. No. 2895 (S.C.J.) (page 4) ).

40. It is no longer necessary that every case be "the clearest of cases". Caution is called for but if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child's future. ( Jewish Family & Child Service v. A. (R.) , supra).

41. Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent. ( Children's Aid Society of Toronto v. H. (R.) , 2000 3158 (ON CJ) , [2000] O.J. No. 5853 (O.C.J.) , paragraph 15 )). In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion ( Children's Aid Society of Ottawa v. C. (S.) , 2003 67754 (ON SC) , 2003 CarswellOnt 9373 (S.C.J.) ).

42. Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent’s right to correct parenting inadequacies must be balanced with a child’s right to appropriate development within a realistic time frame, if damage to the child is to be minimized. ( Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ) , [2000] O.J. No. 5853 ).

43. The court must assume that a responding parent has “put their best foot forward” in their responding material and that this is the most they have to offer at that stage. “The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?” ( Kawartha-Haliburton Children’s Aid Society v. W.M. 2003 2441 (ON SC) , [2003] O.J. No. 3903 ).

44. It is impossible for parents to overcome many years of destructive ways with an 11 th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. ( Worthington v. Worthington 2000 22469 (ON SC) , 13 R.F.L. (5 th ) 220 ; [2000] O.J. No. 4853).

45. While a parent’s desire to “have their day in court” is understandable, delay – particularly needless delay, as contemplated by Rule 16 – must be considered from the child’s perspective. ( Children’s Aid Society of Hamilton v. S.P. [2008] O.J. No. 4608 (S.C.J.) ).

46. In all cases, the court must consider the primary objective of the Family Law Rules, set out in Rule 2.

THE LEGISLATION

47. This is a Status Review Application pursuant to section 64 of the Child and Family Services Act R.S.O. 1990 c. C.11, as amended. Pursuant to s. 65 of the CFSA, the legal issue to be determined on this Status Review Application is what order is in the children's best interests.

65(1) Court may vary, etc

Where an application for review of a child's status is made under section 64 , the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

48. Section 57(1) of the Act prescribes that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:

57(1) Order where child in need of protection

Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

1. Supervision 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 12 months.

2. Society wardship — 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.

3. Crown Wardship — 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.

4. Consecutive orders of Society wardship and supervision — That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

57(2) Court to inquire

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.

57(3) Less disruptive alternatives preferred

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.

57(4) Community placement to be considered

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.

49. In making a decision, the court must give priority to the paramount purpose of CFSA as set out in section 1 :

1(1) Paramount purpose

The paramount purpose of this Act is to promote the best interests, protection and well being of children.

1(2) Other purposes

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.

6. The factors to be considered in determining the best interest of a child are contained in s. 37 of the CFSA :

37(3) Best interests of child

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.

14. In determining which disposition is in the best interests of the child, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be made a Society ward under s. 70 of the CFSA which provides:

70(1) Time limit

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

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

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

70(2) Same

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

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

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

shall be counted.

70(2.1) Previous periods to be counted

The period referred to in subsection (1) shall include any previous periods that the child was in a Society's care and custody as a Society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a Society's care and custody.

70(3) Idem

Where the period referred to in subsection (1) or (4) expires and,

(a) an appeal of an order made under subsection 57(1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 65 (status review),

the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.

70(4) Six month extension

Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

ANALYSIS

52. S.C.M. has been in care more than 22 months – longer than the amount of time permitted under s. 70 , even including a potential six month extension pursuant to s. 70(4). At a certain point – and section 70 helps us in determining that point – primacy has to be placed on the child’s actual needs over the parent’s potential progress. ( Children’s Aid Society of Hamilton v. A.D.L . [2009] O.J. No. 4390 , paragraph 144 (S.C.J.) ).

53. The materials filed by the Society on the summary judgment motion establish a prima facie case in support of all aspects of the Society’s position. The mother had an obligation to respond to the Society’s motion documents with an affidavit setting out her position – putting her best foot forward – to establish that summary judgment should not be granted because there is a genuine issue for trial.

54. As stated, the mother filed no materials, nor did she make any submissions challenging the Society’s analysis.

55. As an aside, I note that the mother’s explanation as to the information she would have wanted to convey to the court would not – even if properly presented – have established a genuine issue for trial. The mother’s emotional request that she be given an opportunity to parent her children is not enough, in the absence of some specific representation of facts suggesting she is actually able to do so. And clarifying that she has only been homeless since 2010 rather than 2008 is of little assistance to her case – the fact remains she has been unable to maintain a stable home for all of S.C.M.’s life, and even as of the date the summary judgment motion was argued she advised that she had recently relocated to stay with a friend on a temporary basis.

56. I have considered all of the available options; the mother’s overwhelming lack of progress in addressing fundamental parenting issues; secondary concerns about the mother’s chronic lifestyle and relationship problems; the best interests of the child and in particular the issue of timelines and S.C.M.’s need for permanence; efforts by the Society to assist the mother and the family unit; the lack of alternative kin placement options; and the objectives of the CFSA and the Family Law Rules.

57. I am satisfied that there is indeed no genuine issue for trial with respect to the motion brought by the Society. The mother has demonstrated that she is reasonably adequate as an access parent – for short periods of time, when she shows up at the Society access facility. But she has done virtually nothing to demonstrate that she has the ability to organize her life to provide a safe and stable physical and emotional environment for S.C.M.

58. S.C.M. cannot wait any longer. He remains in need of protection. He requires permanence. He cannot be placed in the care of the mother – even under supervision – currently or in the foreseeable future. I find that the only realistic option for S.C.M. is Crown Wardship. There are no other or less intrusive alternatives available.

ACCESS

59. Once there is an order for Crown Wardship, the focus of the CFSA is to establish a permanent and stable placement for the child. The Society has an obligation pursuant to section 63.1 of the CFSA to make all reasonable efforts to assist a child who is made a Crown Ward to develop a positive, secure and enduring relationship within a family through one of the following:

1.An adoption. 2. A custody order under section 65.2(1). 3. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.

60. The Society seeks an order of Crown Wardship with no access for purposes of adoption.

61. Access is dealt with in sections 58 and 59 of the CFSA . Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2.1) creates a presumption against access where the child is a Crown Ward. Section 59(2.1) has not been changed by the recent amendments, and reads:

(2.1) A court shall not make or vary an access order with respect to a Crown Ward under section 58 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,

62. Once there is an order for Crown Wardship, the focus of the CFSA is to establish a permanent and stable placement for the child. There is a presumption against access to Crown Wards ( Children's Aid Society of Toronto v. C. (S.A.) (2005) 2005 ONCJ 274 () , O.J. No. 2154 (O.C.J.) . The person requesting access must provide evidence with respect to both requirements of s. 59(2.1). Children's Aid Society of Metropolitan Toronto v. A. (M.) (2002) 2002 53975 (ON CJ) , 2002 CarswellOnt 1923 (O.C.J.) ; D. (C.) v. Children's Aid Society of Algoma (2001) O.J. No. 4739 (S.C.J.) (pages 16, 17). The rebuttable presumption under s. 59(2.1) is conjunctive. A person must rebut both elements of s. 59(2.1) or the access cannot be ordered.

63. The first step is to consider whether or not the access to the Respondents would be "beneficial and meaningful." It must be shown to be beneficial and meaningful from the child's perspective — not that it would be beneficial to a parent or family member.

64. The Divisional Court provided guidance with respect to the first part of the s. 59(2.1) test in Children's Aid Society of the Niagara Region v. J.C. (2007) 2007 8919 (ON SCDC) , O.J. No. 1058 . Aitken J. stated at paragraph 29:

"Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant" ( Children's Aid Society of Niagara Region v. J. (M.) (2004) 2004 2667 (ON SC) , 4 R.F.L. (6 th ) 245 , 2004 Carswell 2800 , at para. 45 ). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified.

65. Justice Lafrenière adopted those comments in Children's Aid Society of Hamilton v. W.M. (2008) 2008 53130 (ON SC) , O.J. No. 4052 (S.C.J.) , finding that it was not sufficient for parents to state that "access was appropriate and that no concerns had been identified." The court held that the mother's access was not "beneficial" because "it does not bring any positive advantage" to the child.

66. The meaning of "beneficial and meaningful" was examined by Justice J. W. Quinn in Children's Aid Society of Niagara Region v. M.J., K.S. and S.S. (2004) 2004 2667 (ON SC) , O.J. No 2872 , where he commented:

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

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

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

67. In S.C. M.’s case, the Society materials established that the mother’s opportunities to develop a relationship with the child have been stunted by her inability to secure housing, and further undermined by her inconsistent attendance for access. She has filed no materials. There is no evidence in the record to suggest that continuing access between mother and child would be “beneficial and meaningful” from S.C.M.’s perspective.

68. Similarly, the mother has filed no evidence to address the second element of the s. 59(2.1) conjunctive test – that an access order would not impair a child’s future ability to be adopted. There is no onus on a Society to prove that a child for whom Crown Wardship is sought is adoptable. ( Children's Aid Society of Ottawa v. W. (C.) (2008) 2008 13181 (ON SC) , O.J. No. 1151 (S.C.J.) ; ( Children's Aid Society of Niagara Region v. C. (J.) (2007) 2007 8919 (ON SCDC) , O.J. No. 1058 (Ont. Div. Ct.) ).

69. Recent amendments to the Act mean that Crown Wards who are the subject of access Orders are now still eligible for adoption. However, section 59(2.1) of the Act has not been amended. This means that the presumptive rule (and the test for access) remains the same.

70. On the access issue as well I find that there is no genuine issue for trial. The mother has not satisfied any aspect of the s. 59(2.1) test.

THE ORDER

71. The Society is entitled to summary judgment, granting a final order without trial on the following terms:

a. The Child S.C.M. born […], 2010 continues to be in need of protection.

b. The Child S.C.M. is made a ward of the Crown and placed in the care of the Children’s Aid Society of Hamilton.

c. There shall be no access to the child S.C.M. by the mother.

d. Service of the Crown Wardship order on the mother, shall be by way of regular mail to her last known address 195 Wellington Street South, #120, Hamilton, Ontario, L8N 2R7.

72. The matter is removed from the trial sittings of November 26, 2012.

Pazaratz J.

Released: October 31, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Children’s Aid Society of Hamilton Applicant – and – A.M. (mother) Respondent REASONS FOR JUDGMENT Pazaratz J.

Released: October 31, 2012