COURT FILE NO.: (Kingston Family Court) 140/10

DATE: February 8, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FRONTENAC CHILDREN’S AID SOCIETY

TINA L. TOM, for the Applicant

Applicant

- and -

E.B.

- and -

J.W.

Respondents

LINDA J. CHRISTIE, Counsel for the Respondent E.B.

DOUGLAS R. HAUNTS for the Respondent J.W.

JUDITH A. MILLARD, for the child J.P.B.

HEARD: November 22, 2011

RELEASED: February 8, 2012

REASONS FOR JUDGMENT

Trousdale, J.

[1] This is a motion for summary judgment brought by the Frontenac Children’s Aid Society (“the Society”) pursuant to Rule 16 of the Family Law Rules. The Society seeks an Order for Crown Wardship of the child, J.P.B., with no access to the father, E.B, and with access to the mother, J.W. at the Society’s discretion, taking into account the child’s wishes, his health and his best interests.

ISSUE

[2] The issue before me is whether the Society’s motion for summary judgment should be granted, or whether this matter should proceed to trial.

BACKGROUND

[3] The male child, J.P.B. was born […], 1998. He is now thirteen years old. His mother is J.W. (“the mother”). His father is E.B. (“the father”).

[4] When the child was four months old, he was diagnosed as having cystic fibrosis. Throughout his life, the child has had specialized medical and treatment needs. When the child was two years old, the mother and the father separated. The child resided with the mother until age three in 2001 when he was apprehended from the mother’s care due to her inability to protect the child from physical abuse by her then partner.

[5] The child was eventually placed in the father’s care under a supervision order. The father and the child moved to Kingston. The father obtained an order for custody of the child. The child lived with the father in Kingston until March 4, 2010 when the police requested the Society to provide a placement for the child as a result of the father being arrested for domestic assault against a woman who is not a party in this proceeding.

[6] The child has been in the care of the Society since March 4, 2010 and has lived in the same foster home since that time.

[7] At the outset, the Society was seeking an Order for six months Society Wardship. On March 9, 2010, a temporary order was made placing the child in the Society’s care and custody with access to the parents at the Society’s discretion. Although the Society was initially willing to consider supervised visits between the father and the child, the father’s probation conditions prohibited contact between them.

[8] Dr. Sian Phillips, a psychologist, completed a psychological assessment of the child. In her assessment report dated June 9, 2010, Dr. Phillips recommended that any attempt at a relationship between the child and the father needed to be initiated by the child. To date, the child has not wished to have visits with the father, although the child has indicated he may want visits in the future if the father gets help for his anger problems.

[9] On July 13, 2010, the Society amended its application to seek Crown Wardship.

[10] The child had little contact with the mother from 2001 to his apprehension on March 4, 2010. Shortly after his apprehension, the child commenced telephone access with the mother. This relationship has now progressed to a daytime visit with the mother approximately once per month in Kingston, Ontario.

[11] The father has had no access with the child since March 4, 2010. The father brought a motion for access which was heard on May 17, 2011. The motion for access was not granted, although the presiding Justice did leave open the possibility of access by the father if the child requested to initiate it.

POSITIONS OF THE PARTIES

[12] The Society’s position is that the child is in need of protection as the father has mental health difficulties which have impaired his ability to provide appropriate care for the child. The Society submits that the father was emotionally abusive to the child, and that the father failed to meet the child’s medical needs when the child was in his care.

[13] The Society submits that the child should be made a Crown Ward. The Society contends that the child cannot be adequately protected in the care of the father even with supervision by the Society. The Society argues that the two year period for Society Wardship is close to expiring and that the period should not be lengthened as the father has not dealt with his mental health difficulties, and the child does not wish to return and live with his father.

[14] The Society has encouraged the child to re-establish access between the mother and the child. However, the Society is not supportive of the mother’s claim that the child should be placed in her care. The Society argues that the mother has had instability issues in the past, and that she smokes marijuana on a daily basis. Placement of the child with the mother would require the child to move from Kingston to St. Thomas, Ontario, and would result in a total change of medical team for the child. The child would also lose the beneficial relationship he has forged with his foster family over the last 20 months. The child has flourished medically, socially, and academically in this foster family, and this foster family is prepared to provide long-term care for the child.

[15] The father’s position is that the child is not in need of protection. The father seeks that the child be returned to his care. The father does not support the mother’s request that the child be placed in her care, as he argues that the mother was unable to care properly for the child when the child was previously in the mother’s care. If the Court determines that the child should be made a Crown Ward, the father seeks access to the child. The father’s position is that there is a genuine issue for trial and that this matter should not be decided on a motion for summary judgment. The father does not believe that the child does not want to live with him nor to see him. The father wants the child to give evidence at trial. The father wants to be able to cross-examine all the witnesses put forward by the Society and the mother. The father maintains that the genuine issue for trial is whether it is in the child’s best interest to have some type of contact with the father.

[16] The mother agrees with the Society that the child is in need of protection in the care of the father. She does not support the father’s claim that the child be returned to his care. She is seeking that the child be placed in her care in St. Thomas, Ontario, preferably without the supervision of the Society, or alternatively with the supervision of the Society. The mother argues that there are genuine issues for trial and that the motion for summary judgment should be dismissed. She submits that she should have the right to have her counsel be able to cross-examine the witnesses put forward by the Society and by the father. She argues that the process would be unfair to her to have these issues regarding her son’s future be decided on a motion for summary judgment. She has put forward a plan for the placement of the child with her. She relies on the fact that another of her children was previously made a Crown Ward, but that he has now been returned to her care.

[17] Counsel for the child supports the Society’s request that this matter be determined on this motion for summary judgment by an Order for Crown Wardship with access to the mother on the terms requested by the Society, and with no access to the father. Counsel for the child argues that the father was not adequately looking after the child’s medical issues which led to a significant deterioration in the child’s health. Counsel for the child submits that the evidence put forward by the mother and by the father does not raise any triable issue as to where the best interests of the child lie.

[18] Counsel for the child states that the child has been consistent in his wishes to stay with the foster family on a long-term basis where he feels safe, cared-for, and healthy. The child wishes to continue to have access with his mother, but not to live with her. The child fears that his mother would not be able to look after him medically, and that he cannot always count on her to follow through with what she says she will do. The child wishes to have no contact with his father until his father has his anger under control, as the child is afraid of his father. The child has been intimidated and threatened by the father.

ANALYSIS

Is it appropriate to determine this matter on a motion for summary judgment?

[19] Subrules 16(1) and (2) of the Family Law Rules allow a party to bring a motion for summary judgment, including in a child protection case, for a final order without a trial on all or any part of any claim made or any defence presented in the case.

[20] Pursuant to Subrule 16(4), the party making the motion shall serve an affidavit or other evidence setting out the specific facts showing that there is no genuine issue requiring a trial.

[21] In this case, the Society brought a motion for summary judgment on June 15, 2011. The Society relies on all of the affidavits filed by the Society in the Child Protection continuing record.

[22] Pursuant to Subrule 16(4.1), the party responding to the motion for summary judgment may not rest on mere allegations or denials, but shall set out specific facts showing that there is a genuine issue for trial.

[23] The father filed a Factum in response to the Society’s motion for summary judgment. He did not file an affidavit specifically in response to the Society’s motion. His Counsel relied upon the father’s affidavit sworn April 22, 2011 filed in support of the father’s motion for access which was heard on May 17, 2011.

[24] The mother filed an affidavit sworn November 4, 2011 in response to the Society’s motion for summary judgment. She also filed an affidavit of her common law spouse, T.S. sworn November 4, 2011. On the consent of all parties, the mother filed a series of pictures of her accommodation in St. Thomas, Ontario at the hearing of this summary judgment motion.

[25] Pursuant to Subrule 16(6), if there is no genuine issue requiring a trial, the court shall make a final order accordingly.

[26] Justice Sherr in Catholic Children’s Aid Society of Toronto v. L.M. 2011 ONCJ 146, [2011] O.J. No. 1361 reviewed the law on summary judgment as follows:

6 On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine whether there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. See Children's Aid Society of Hamilton v. M.N. and H.S.N., 2007 CanLII 13503, 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 CarswellOnt 2453 (Ont. Fam. Ct.).

7 Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. See Jewish Family and Child Service of Toronto v. R.A. and J.G. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47, 2001 CarswellOnt 73 (Ont. S.C.); affirming Jewish Family and Child Service of Toronto v. R.A. and J.G., 2000 CanLII 22546, [2000] O.J. No. 6045, 2000 CarswellOnt 5169 (Ont. C.J.).

8 A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. See Children's Aid Society of Toronto v. K.T. and C.W., 2000 CanLII 20578, 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.).

9 The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. See Children's Aid Society of Toronto v. K.T. and C.W., supra; and Children's Aid Society of Waterloo Region v. T.L.H. and D.S.C., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005 CarswellOnt 8104 (Ont. C.J.).

10 As Justice Alex Pazaratz stated at paragraph [43] of Children's Aid Society of Niagara Region v. S.C. and B.M., 2008 CanLII 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (Ont. Fam. Ct.): "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."

[27] I find that it is appropriate to determine this matter on a motion for summary judgment if there are no genuine issues for trial.

Is the child in need of protection?

[28] The Society seeks a finding that the child is in need of protection pursuant to subclauses 37(2)(b)(i), 37 (2)(g) and 37(2)(i) of the Child and Family Services Act, R.S.O. 1990, C.11, as am. (“the Act”).

[29] On the evidence before me, I find that there is no triable issue as to whether the child is need of protection. I find that the child is in need of protection pursuant to the aforesaid subsections. I find that there is no realistic possibility of any other conclusion being arrived at after a trial. In that regard, I make the following findings:

(1) (a) The father loves the child and wants to care for the child and to have contact with the child. The father has had the primary care of the child for approximately eight to nine years. In the earlier years, the father was providing adequate care for the child. However, the father’s care of the child has deteriorated over the last two years prior to the child’s apprehension due to the father’s mental health difficulties and the father’s obsession with numbers and religious matters. The father regularly expressed the belief that he is God and that the child is Jesus, and he encouraged the child to concur with the father in those beliefs. The father does not understand or accept the negative impact that his mental health difficulties have had on the child, both physically and emotionally.

(b) The child’s physical and emotional health deteriorated significantly in the care of the father over the last two years prior to his apprehension, which was of serious concern to the child’s Cystic Fibrosis (CF) clinic physician. The child’s lung capacity and his weight were in a continuing decline.

(c) The foster mother, who has had no prior experience in caring for children with cystic fibrosis, has provided careful attention to the child’s medical, nutritional and treatment needs. As a result, the child’s physical health and emotional well-being have improved substantially since the child came into the care of the Society.

(d) On October 20, 2011, the CF clinic physician noted:

“We have long had concerns regarding J.’s health with respect to his cystic fibrosis. He has had significant instability in his lung disease as well as poor nutritional status through most of the years that we have known him. More recently, since he has come into the care of the Society, we have seen substantial stabilization. His lung function has stabilized to the point now that he causes really no significant concern. He also has shown much greater nutritional stability.

Most notably, we have seen substantial improvements in J.’s emotional health. He is much more interactive during his visits to clinic and seems happier. It is my belief that his ability to comply with his demanding schedule of CF specific maintenance therapy has been improved by his current stable environment.”

(2) (a) The father has a mental illness for which he is not taking medication and which is untreated at this time.

(b) On March 4, 2010, in the presence of the child, the father broke down the door of his girlfriend’s residence and dragged her from the residence and down the street. He was charged with breaking down the door, assault, uttering threats, mischief and choking. The father maintained that he broke down the door as he was concerned for the safety of his girlfriend and thought she was unwell inside. This version of events is contradicted by an internet blog which the father wrote earlier that day addressed to the child, where the father states that he was going to get this woman and do whatever he had to leash her permanently and that he was prepared to kill any man in his way or bust down any door in his way. He expressed the view in this blog that as this woman was his property, he could beat “it” into submission as the laws of Canada cannot get in his way in how he can discipline or protect his family the way he needs to. I find that the conduct of the father on March 4, 2010 led to his arrest and left the child with no one to provide for the child’s care.

(c) Dr. R. Kimberley initially assessed the father as being unfit to stand trial for the charges arising from the incident which occurred on March 4, 2010. The father was refusing medication at that time. Subsequently after the father started taking medication, Dr. Kimberley found the father fit to stand trial. Dr. Kimberley stated that he found significant improvements in the father’s thought disorder with medication. Dr. Kimberley’s discharge diagnosis of the father was schizotypal personality with an acute psychotic decompensation.

(d) On June 23, 2010, the father pleaded guilty to the charges arising from the March 4, 2010 incident. He states he did so in order to be released from jail. His sentence was time already served (120 days) and probation for 3 years. He was also ordered to follow up with mental health services and to take any prescribed medication.

(e) The father was subsequently assessed by Dr. Burley at Frontenac Community Mental Health Services. In his report, dated August 25, 2010, Dr. Burley confirmed that the father more closely fits the diagnosis of schizoaffective disorder. Dr. Burley stated that the father’s thought might be seen as delusional, in that the father’s beliefs about his system for finding moral behaviour in a code involving numbers, letters of the alphabet and biblical texts is unusual and would not be shared by most people. Dr. Burley stated that the father’s belief in it is unshakeable. Dr. Burley found it to be positive that the father has insight that few people share his belief in his “system”.

(f) The father told Dr. Burley that he had stopped his medication for several weeks prior to seeing Dr. Burley as he did not like the sedating effects. The father agreed with Dr. Burley to a trial of risperidone with the idea that Dr. Burley would assess his symptoms on and off the medication, although Dr. Burley did not think it would make much difference. Dr. Burley was doubtful that the father’s beliefs and ideas would change with an anti-psychotic medication.

(g) In putting his best foot forward in this summary judgment motion, I find that it was incumbent on the father to provide up-to-date evidence of his current mental health status and details of any treatment. The father failed to do so. There is no evidence before the Court that the father is taking medication at this time for his mental health difficulties, or that the father is receiving any treatment for his mental health difficulties at this time.

(h) On the evidence before me, the father has continued to have ongoing mental health problems. As recently as July 10, 2011, the father threatened in his internet blog to kill one of the Society’s workers. The father was charged with uttering a death threat against the worker. The father was in jail until October 18, 2011 when he pleaded guilty to the charge and received time served, and probation for 2 years with conditions.

(3) (a) The child has consistently told his Counsel and the Society worker that he does not wish to return to live with the father and that he does not wish to see the father until the father deals with his anger problem. The child witnessed the father being arrested and the child saw how many police officers it took to restrain the father. As a result, the child does not feel protected even if access were to be supervised by Society workers. The child was intimidated and threatened by the father when the child was in the father’s care. The child is afraid of the father and the child has reasonable grounds for his belief, based on the father’s conduct towards the child when the child was in his care.

(b) On the evidence before me, I find that the father has:

(i) repeatedly told the child that the child would not live past his 21st birthday;

(ii) threatened to cut the child’s hand off while holding a knife to his wrist as the father thought that the child was not telling the truth;

(iii) made the child appear in videos with the father regarding the father’s beliefs which were subsequently posted on You-tube;

(iv) exposed the child to the father’s obsession with numbers and to the father’s belief that the father is “God” and that the child is “Jesus”;

(v) exposed the child to discriminatory beliefs, especially towards women, such as women being “property”;

(vi) exposed the child to the violent incident against a woman on March 4, 2010, which led to the father’s arrest and the apprehension of the child;

(vii) threatened to take away the child’s medication if the child did not listen to the father, which the child knew could lead to the child’s death; and

(viii) told the child to stop taking his medication if the Children’s Aid Society apprehended him.

(c) Dr. Phillips in her psychological assessment of the child dated June 9, 2010 made a number of observations and recommendations including the following which I find to be valid and reasonable:

(i) The child expressed to her that he is aware of how much better he feels since being in foster care and is able to participate so much more in social and family activities;

(ii) The child told her that he wishes to stay in the foster home for the long term;

(iii) The child expressed that he is willing to see his mother but does not want to live with her;

(iv) The child expressed to her that that he is angry at his father, afraid of him and that he does not want to go back to live with his father. He might be prepared to see the father in the future if his father is able to control his anger;

(v) While in the care of the father, the child was subjected to intimidation and fear. The child felt he was being blamed by the father for everything;

(vi) The child experienced many frightening events and interaction while living with the father and continues to experience the emotional and cognitive ramifications of such trauma;

(vii) Because of so many years of living with fear, the child continues to be hypervigilant and acutely sensitive to his foster parents’ moods, and fears any raised voice or frustrated tone will lead to violence;

(viii) The child still struggles with feeling unlovable and thinks that he is a “bad kid”. He has a very low self-esteem;

(ix) The child requires a stable, predictable environment to help him learn how to trust relationships and become less fearful. Continued placement in the current foster home with the skilled, nurturing foster mother there is recommended;

(x) The child has been emotionally manipulated and intimidated about his health needs and he will need support to come to terms with his Cystic Fibrosis and to learn how to care for himself;

(xi) If the father is not able to follow a no-contact arrangement, the child will continue to be hypervigilant which will place him at risk for ongoing psychopathology; and

(xii) Given how little control the child has experienced in his life with his father, any attempt at a relationship needs to be initiated by the child. The father should not be given information about the child’s address or phone numbers.

(d) The father argues that there needs to be a trial so that he can call the child as a witness as to whether he wishes to live with or to have contact with the father. The Court is generally reluctant to have a child called as a witness to give evidence and to be subject to cross-examination in child protection proceedings. The child is now 13 years of age. The views and wishes of the child are only one of the elements to be taken into account by the Court in determining the best interests of the child. I am satisfied that the child has had the benefit of having experienced Child’s Counsel represent him. I find that that she has carefully and accurately put forward his views and his wishes in this matter to the Court and to the parties. There is no evidence that the child has been coerced or influenced by the Society or others in expressing his views and wishes. The child’s views and wishes have also been corroborated by affidavit evidence from the Society’s worker and the psychological assessment of Dr. Phillips.

4. (a) The mother loves the child and wants to have him live with her. However, the child has consistently told his Counsel and the Society worker that although he wishes to visit with the mother, he does not wish to live with her.

(b) The mother resides in St. Thomas, Ontario with her common law husband and her teenage son. Her common law spouse’s two other children visit the home on the weekends. The mother’s oldest son is an adult who lives on his own down the street from the mother’s home. That son is not permitted any unsupervised contact with children under the age of 16 due to a conviction for sexual assault.

(c) The child had little access to the mother from 2001 to 2010. The mother claims that this is because the father prevented her from exercising regular access. I find however that there is no evidence the mother took any legal steps to obtain regular access. The child and the mother’s older two children were apprehended from the mother in 2001 because she failed to protect the three children from physical abuse by her then partner. At first the child did not want to have access to the mother. Since the child has begun access again with the mother, she has on occasion had to cancel a visit, which has been upsetting to the child. He sees it as the mother failing to follow through, which accords with his memories of her in the past.

(d) The child expresses concern to his Counsel and to his worker that the mother would not be able to manage and provide for all of his medical needs, which would result in a deterioration of his health from his current improved health status.

(e) The visits with the mother take place approximately once per month in Kingston. A visit was to take place at the mother’s home in St. Thomas at Easter, 2011. However, the visit had to be cancelled as the worker from Family and Children’s Services of St. Thomas and Elgin who inspected the home, smelled marijuana in the home.

(f) By letter of October 14, 2011, Family and Children’s Services of St. Thomas and Elgin stated that the mother has admitted to daily use of marijuana, which that Society characterized as “caregiver with a problem.” That Society completed a Family Risk Assessment and determined that the family of the mother and her common law husband was placed at a moderate level of risk due to the previous file history and the current concerns reported. That Society closed the mother’s file, but reported the concerns to the Society in this case. The mother did not file any affidavit material disputing this evidence.

[30] On the evidence before me, I find that there is no triable issue that the child is in need of protection. The Society’s motion for judgment on that issue is granted.

Issue of Disposition

[31] The next issue to consider is whether there is a genuine issue for trial with respect to disposition of this matter.

[32] Based on the evidence before me, and based on the aforesaid findings I made in determining that the child is in need of protection, I am satisfied that intervention through court order is necessary to protect the child in the future from physical and emotional harm and the risk of such harm.

[33] The possible options for disposition are set out in Section 57 of the Act.

[34] On the evidence before me, I find that there is no triable issue with respect to disposition in this matter. If this matter were to proceed to trial, there is no doubt that the outcome would be that the child would be made a Crown Ward. I find that the motion for summary judgment for Crown Wardship should be granted for the reasons that follow.

[35] I find that the father loves the child and wants to resume care of the child. However, the father has not presented any evidence of improvement in his mental health circumstances or in his parenting ability since the child was apprehended. Based on the evidence before me of the father’s mental health difficulties which have negatively affected the father’s ability to provide adequate care for the child, the serious deterioration in the child’s physical and emotional well-being when in the care of the father over the last two years prior to the apprehension of the child, the child’s expressed wishes not to return to live with his father, and based on the findings I have made earlier in these reasons, I find that placement of the child in the care of the father, even with the supervision of the Society, would be inadequate to protect the child from the risk of physical harm and emotional harm in the future.

[36] I find that the mother loves the child and wants to provide a home for the child. I have considered the evidence that the mother has put forward with respect to her plan that the child live with her and her common law spouse, and the mother’s older teenage son in St. Thomas, Ontario. However, I find that placement of the child in the care of mother, even with supervision of the Society, would be inadequate to protect the child from physical and emotional harm in the future.

[37] In coming to that conclusion, I find that the mother was unable to protect the child from abuse of her partner when the child was previously in her care. I find that the mother had little contact with the child from 2001 until 2010. I also find on the uncontradicted evidence before me that the mother has admitted to the Family and Children’s Services of St. Thomas and Elgin that she uses marijuana on a daily basis. The child has consistently expressed that he does not want to reside with the mother.

[38] The child has specialized medical needs requiring daily medication, treatment, and careful attention to nutrition and routines. Placing the child in the mother’s care would involve arranging a completely new medical team for him in St. Thomas. The mother has not been able to follow through with all of the visits, nor to place the child’s interests ahead of her own in ensuring a drug-free environment for overnight visits by the child to her home. The child himself has expressed concern that his mother would not be able to look after him medically. I find that the mother is not able to provide on a long-term basis, adequate consistent care for this child who has special needs, even with the supervision of the Society.

[39] I find that the Society has made efforts to assist the child. The Society has assisted the child in stabilizing his physical health and emotional well-being. The Society arranged for the child to be psychologically assessed. The Society has encouraged access with the mother and has raised with the child the possibility of access to the father.

[40] The Society explored the possibility of whether there was a kin or community placement available for the child. There is no evidence of any other possible kin or community placement.

[41] The child has been in care since March 4, 2010. It would be possible to make an order that the child be a Ward of the Society until the two year period expired on March 3, 2012, and to consider making an extension of Wardship for a further six month period. I find, however, that it is not in the best interests of the child to do so.

[42] I find that the father has not made progress in dealing with his mental health issues which led to the apprehension of the child in March, 2010 and there is no realistic prospect that the father would make sufficient progress in that regard over the next seven months to be in a position to adequately provide care for the child at the end of that period. I also find that the child does not wish to return to the care of the father and that he is afraid of the father.

[43] I find that the mother has not made adequate progress in her relationship with the child and in her own personal circumstances since March, 2010, and that there is no realistic prospect that the mother would make sufficient progress in that regard over the next seven months. I also find that the child does not wish to live with the mother.

[44] On the evidence before me I find that it is in the best interests of the child that he be made a Crown Ward and that Crown Wardship is the least disruptive alternative that is adequate to protect the child. The Society’s motion for summary judgment for Crown Wardship is granted.

Access

[45] Subsection 59(2.1) of the Act creates a presumption against access where there is an order made for Crown Wardship unless the relationship between the child and the person requesting access to the child is beneficial and meaningful to the child, and the ordered access will not impair the child’s future opportunities for adoption.

[46] The Society agrees with the mother’s request for access to the child on the basis that the relationship between the mother and the child is beneficial and meaningful to the child. The Society has no plans to place the child for adoption at this time. The child wishes to continue to have access to the mother. I find that the relationship between the mother and the child is meaningful and beneficial to the child and that there would be an Order for access to the mother if this matter proceeded to trial. I find that the Society’s motion for summary judgment for an order for access by the mother to the child at the Society’s discretion, taking into account the child’s wishes, his health and his best interests, should be granted.

[47] At the time of the hearing of this motion for summary judgment, the father had not had any access with the child since the child was apprehended on March 4, 2010, which was a period of almost 20 months. The child has not initiated a request for access to his father. The child has expressed to his lawyer, to his worker and to Dr. Phillips that he is afraid of his father.

[48] I find on the evidence before me that the relationship between the father and the child is not meaningful and beneficial to the child at this time. I find that if this matter were to proceed to trial, it is clear on the evidence that the outcome would be that there would be no order for access to the father at this time. I find that the Society’s motion for summary judgment on that issue should be granted.

[49] Dr. Phillips has recommended that that any attempt at a relationship with the father needs to be initiated by the child. I find that recommendation to be in the best interests of the child.

[50] If the child does express the wish to initiate contact with his father, the Society would be able to permit contact or communication between the father and the child pursuant to Section 59(4) of the Act. If the child does express the wish to initiate contact with the father, I would expect the Society to explore the advisability of implementing contact with the father, with appropriate professional assistance for the child. Accordingly, the Order shall be silent as to access for the father, as an Order expressly stating no access to the father would prevent the Society from allowing contact with the father pursuant to section 59(4) of the Act.

ORDER

[51] An Order shall issue as follows:

(1) The Society’s motion for summary judgment is granted.

(2) The child, J.P.B. is found to be a child in need of protection pursuant to subclauses 37(2)(b)(i), 37(2)(g) and 37(2)(i) of the Child and Family Services Act.

(3) The child, J.P.B. shall be made a Crown Ward with access to the mother, J.W. at the Society’s discretion taking into account the child’s wishes, his health and his best interests.

[52] Order to go accordingly.

Justice A.C. Trousdale

Released: February 8, 2012