ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC 09-751-04

DATE: 20130315

BETWEEN:

Children’s Aid Society of the County of Simcoe

Applicant

– and –

B.D. and S.S

Respondents

David Winnitoy, for the Applicant

Martin Prost, for the Respondents

HEARD: October 26, 2012

REASONS FOR JUDGMENT

On a Motion for Summary Judgment

Olah J.

I. Introduction

[1] The applicant, the Children's Aid Society of the County Simcoe (the Society), brings a motion pursuant to Rule 16 of the Family Law Rules for Summary Judgment, and, seeks an order for Crown Wardship with no access pursuant to sections 37(2)(b)(i), (ii) and 2(g) of the Child and Family Services Act (CFSA), with respect to A.J.D. -S., born […] 2012.

[2] The parents of A.J.D.-S., strongly believe that they are capable of parenting him in their home and that it would be in his best interest to be placed in their full-time and permanent care, subject to an initial period of supervision by the Society.

II. Litigation Background

[3] Following a lengthy trial, on December 8, 2011, four other children were taken out of the care of these parents on a permanent basis by the order of Justice D. Gunsolus. Although the parents launched an appeal from this decision, they ultimately abandoned their appeal.

[4] Nevertheless, notwithstanding the negative conclusions against them in Justice Gunsolus’ reasons for judgment, these parents intend to prove their ability as parents. In particular, they intend to rely on the evidence of Dr. Peter Marshall who has provided a report with respect to their ability to parent their son, A.J.D.-S.

III. Factual Background

[5] The child, A.J.D.-S. was born […], 2012. He is of non-native status and non-Catholic faith.

[6] A.J.D.-S.’s mother is the respondent, B.D. A.J.D.-S.’s father is the respondent, S.S

[7] B.D. has four other children: T.D. age 7, L.D.-S. age 3, B.D.-S. age 2 and R.D.-S. age 17 months. The father of three of the children is S.S. and, the oldest child's father is P.B. who did not participate in the trial before Justice Gunsolus.

[8] A.J.D.-S. was apprehended at birth and remains in the care of the Society.

[9] None of the other four children are in the mother or father's care.

[10] The Society has been involved with the mother since 2006 after which the Society commenced a protection application with respect to the oldest child, T.D., on December 19, 2006. The protection application reflected concerns that the mother displayed erratic, confrontational and threatening behaviours towards society workers and other community services; the mother refused numerous occasions to meet with the society worker to discuss continued protection concerns; the mother refused to obtain a psychiatric assessment at the recommendation of Dr. McCutchen who expressed concerns regarding the well-being of T.D. in the care of the mother with the community supports. T.D. was diagnosed with "failure to thrive” and the Scan unit from The Hospital for Sick Children observed bruising on T.D.'s ears and found that the bilateral nature of the bruising, the size of the bruising and the pattern of location resulted in substantial concern for inflicted injury.

[11] T.D. was returned to the care of the mother in January 30, 2007 and apprehended again on May 11, 2007 as a result of unexplained injuries which were assessed as non-accidental. Further, it was alleged that the mother was not adhering to any treatment plans to eliminate feeding issues for T.D., the mother provided medications to T.D. which were not warranted; and the mother continued to refuse to follow through with a court ordered psychological/psychiatric assessment.

[12] On October 1, 2008 a final order was made finding T.D. in need of protection and placing her in the care of maternal grandparents subject to the supervision of the Society for a period of six months.

[13] On June 1, 2009 the Society commenced a protection application regarding the second child, L.D.-S., apprehending him at birth. On October 9, 2009, a final order was made finding L.D.-S. to be a child in need of protection and placing him in the care of the father, subject to the supervision of the Society.

[14] On October 26, 2009, the Society commenced an early status review application as a result of L.D.-S. suffering a spiral fracture of his left tibia while in the care of the father and mother.

[15] On December 15, 2009 the temporary order was made placing L.D.-S. in the care of the maternal grandparents subject to the supervision of the Society.

[16] Shortly thereafter, on December 22, 2009, the Society commenced a motion to vary the placement of L.D.-S. as a result of maternal grandparents indicating that they were not able to care for L.D.-S. and a new allegation that the mother had recently twisted T.D.’s arm during an access visit. L.D.-S. was placed in the care of the Society.

[17] The third child, B.D.- S., was born on […], 2010 and apprehended at birth.

[18] On June 4, 2010, by way of final order, T.D. was placed in the custody of the maternal grandparents.

[19] The matters involving B.D.-S. and L.D.-S. proceeded to trial in the summer and fall of 2010. On September 24, 2010, Justice Gunsolus provided Reasons for Judgment finding both L.D.-S. and B.D.-S. to be children in need of protection. A temporary order was made providing for graduated access between the children and the maternal grandparents and a section 54 parenting capacity assessment was ordered to be completed on the parents and maternal grandparents.

[20] On October 24, 2010 the Society commenced a protection application for the fourth child, R.D.-S. R.D.-S. was also apprehended at birth.

[21] On or about November 22, 2010, the maternal grandparents returned L.D.-S. to the care of the Society.

[22] The section 54 assessment was completed by McMaster Children's Hospital and the Child Advocacy and Assessment Program (CAAP) and released on August 9, 2011. This assessment recommended that all the children be permanently removed from the mother and father’s care and expressed concerns about the mother and father having further children indicating that they would have "significant concerns for any future children in the parents’ care”.

[23] On March 21, 2011, the fourth child, R.D.-S. was born and apprehended in Cambridge, Ontario after the parents had left the County of Simcoe.

[24] On December 8, 2011 T.D. was found to be a child in need of protection pursuant to section 37(2)(a)(i), b(ii) and (2)(f) and (g) of the CFSA; and, R.D.-S. was found to be a child in need of protection pursuant to section 37(2) of the CFSA. Both T.D. and B.D.-S. were placed in the maternal grandparents care under strict terms of supervision. L.D.-S. and R.D.-S. were made Crown Wards without access for the purpose of adoption. A restraining order was put in place prohibiting any contact, direct or indirect, between the parents and T.D. and B.D.-S. while they were in the care of the maternal grandparents. So the first and third born were placed with the grandparents and the second and fourth born were placed for adoption.

[25] During the final week of trial in November and December, 2011, the mother and father both testified that the mother was not pregnant. It is now clear that this was false information.

[26] On […], 2012, once again, the mother left the jurisdiction of the County Simcoe to give birth to A.J.D.-S., traveling to Bracebridge, Ontario. The child was apprehended at birth in Bracebridge by Muskoka Child and Family Services.

[27] The mother indicated to the Bracebridge hospital staff that this was her first child; that she had not received any prenatal care; and that she lived in Mississauga and did not know where Simcoe County was. The mother denied having knowledge of the Society worker, and did not indicate how she had arrived in Bracebridge.

[28] The Knight’s Inn in Bracebridge, Ontario, confirmed that the mother and father had checked in on […], 2012 at 1:00 a.m. and checked out on […], 2012 later in the day.

[29] By Notice of Appeal dated January 6, 2012 and a supplementary Notice of Appeal dated March 29, 2012, the parents attempted to appeal the decision of Justice Gunsolus. Pending the disposition of the appeal, on January 19, 2012 the parents issued a motion seeking temporary care and custody of T.D., L.D.-S., B.D.-S., and R.D.-S.

[30] This motion, pending appeal, was heard before Justice Wood on March 20 and April 10, 2012, after which, on April 19, 2012, Justice Wood dismissed the parents’ motion for temporary care and custody, providing detailed reasons.

[31] On May 10, 2012 the parents abandoned their appeal and the Society placed L.D.-S. and R.D.–S. for adoption. T.D., and B.D.-S., remain placed with the maternal grandparents under strict terms of supervision with no contact, direct or indirect, with their parents.

IV. Motion for Summary Judgment

[32] The basis for the Society’s request to make a finding that the fifth child is in need of protection, are found in past evidence as per s. 50 of the Child and Family Services Act, R.S.O. 1990, c. C-11 ( CFSA) which states as follows:

s. 50. Consideration of past conduct toward children – (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for decision in an earlier civil or criminal proceeding, is admissible into evidence.

[33] The basis for the finding is found in the following evidence filed in the Society’s exhibit book, namely:

i) Decision of Justice D. Gunsolus dated September 24, 2010.

ii) Decision of Justice D. Gunsolus, dated December 8, 2011.

iii) Decision of Justice T. Wood dated April 19, 2012.

iv) Parenting Capacity Assessment by Abraham, Bonsu and Fazari, dated December 18, 2007.

v) Parenting Capacity Assessment by McMaster Children’s Hospital, dated August 9, 2011( CAAP).

[34] Although the parents were not permitted to file Dr. Pater Marshall’s critique of the two parenting capacity assessments[^1], they were permitted to tender evidence of Dr. Marshall’s psychological testing and conclusions with respect to both the mother and the father, as well as his observations of the parental interaction with the child during a 1 day observation period.

[35] Their affidavits and Dr. Marshall’s report are the basis for the parents’ argument that they have established a triable issue both with respect to a finding and placement for the new born child, now 1 year old.

V. Triable issue re Finding

[36] As required by Rule 16 of the Family Law Rules, the Society asserts the past parenting as the basis for its position that it has a prima facie case, as each of the four children have been found to be in need of protection. I highlight the following evidence as the basis of past findings:

i) “T.D. had a history of failing to thrive under the mother’s care and being administered medication against medical advice. T.D. was apprehended after an incident in May 2007 where she was found to have significant bruising on her ears bilaterally which was likely caused by either boxing of the ears are pulling of the ears. She had a history of seizures and was on Tegretol. Subsequent to apprehension, T.D. did not experience any seizures. .. T.D. has alleged … That her mother pushes and pulls her arm and scares her when she is in her care.” Exhibit brief, Tab D, p.2.

ii) “B.D.-S.’s history includes a possible shaking incident where it was alleged by the grandfather that the mother shook B.D.-S. during a visit, supervised by a CAS worker…”. Exhibit brief, Tab D. p.2.

iii) “L.D.-S. was apprehended at birth due to the mother’s history with T.D. but spent the first six weeks of life in the hospital due to “the blue spells” and a history of what appeared to be seizures and poor feeding habits at the time. On October 9, 2009 L.D.-S was placed with the father with the understanding that the mother’s contact with L.D.-S would be supervised. After 10 days in the parents’ home, it was discovered that L.D.-S. had multiple leg fractures. .. It was identified that L.D.-S. suffered inflicted injuries.” Exhibit brief, Tab D. p.3.

iv) R.D.-S. was apprehended from birth and subsequently, on consent, was found to be a child in need of protection pursuant to s.37(2)(l) of the CFSA. Upon the parents’ abandonment of their appeal of Justice Gunsolus’ Judgment, L.D.-S. and R.D.-S. have been placed for adoption.

v) “Overall, it appears that Mr. S.S. has been either unwilling or unable to see the risk posed to the children by being in the care of the mother. He failed to protect L.D.-S. while in his care and has either minimized or denied the nature of the chronic conflict with the maternal grandparents as well as with the CAS. The affidavit by Ms. Belcourt (April 13, 2011) provides extensive detail suggesting that Mr. S.S. at least participated in – and may have initiated – the apparent deception that occurred regarding the birth of R.D.-S. in Cambridge Memorial hospital rather than Georgian Bay Hospital as planned. There are also numerous inconsistencies between the information that was reportedly provided by Mr. S.S. to CAS and information provided by his family members regarding how the mother came to deliver at Cambridge Memorial Hospital.”

vi) “Although Mr. S.S. was noted to have some appropriate interactions with the children during supervisory visits, there were also times when he appeared angry and behaved inappropriately. Mr. S.S. did not demonstrate sufficient ability and his parenting to overcome the risks posed by the mother. Further, he appeared to exhibit his own difficulties in parenting. It is CAAP’s opinion that the risk factors associated with Mr. S.S.’s parenting far outweigh any protective factors. Thus, CAAP would have concerns about Mr. S.S.’s capacity to parent his children under any circumstances.”

vii) Other risk factors with respect to Mr. S.S. were identified as follows:

1. “Mr. S.S. showed little insight into the problems that the mother had experienced with regard to parenting;

2. Mr. S.S. has only had limited opportunity to parent for any significant period of time;

3. Mr. S.S. presented as angry and frustrated in his interactions with T.D;

4. When the mother was inappropriate in front of the children, Mr. S.S. did not intervene;

5. Mr. S.S. exhibited a limited knowledge and understanding of children’s developmental needs (physical, emotional, cognitive and social);

6. Mr. S.S. had difficulties related to aggression and use of alcohol; he was not open about acknowledging being charged and convicted with driving under the influence of alcohol and misuse and/or abuse of alcohol is a risk factor for poor parenting;

7. Mr. S.S. does not have significant personal supports;

8. Mr. S.S. is unwilling or unable to see the risk posed to the children by being in the care of the mother.”

see exhibit brief, tab D, pages 68 to 72.

[37] These findings are of a recent nature, and are based on the direct observations of the many witnesses, who were subject to the scrutiny of cross examination. Accordingly, this evidence of past parenting should be given considerable weight, despite the parents’ disagreement with virtually all the findings.

[38] To rebut the Society’s prima facie case, the parents produced a psychological assessment, prepared by Dr. Marshall who indicates that: “concerns about the marital relationship and risk of children being raised in an atmosphere of conflict and possible violence had been raised in the PCA. As a result, I recommended further clinical interviewing, which would involve individual and joint sessions.” The suggestion in the preamble “clinical interviews” is to the effect that the psychological assessment will address the issue of the conflict and possible violence as between the mother and father and the mother and others. It is to be noted, however, that the first and second PCA referenced in the decision of Justice Gunsolus, identified conflict between the mother and her parents, and, between the mother and multiple service providers which significantly impeded progress/improvement in parenting. Conflict between the parties was not the only conflict addressed at trial.

[39] At page 4 of the psychological assessment, Exhibit 1, Dr. Marshall indicates that at the joint interview both parents participated fully; and, “their comments and nonverbal responses almost always communicated support of one another.” Not only did their demeanour at the psychometric testing, and joint interview, exhibit an absence of conflict, their psychometric profiles also commented on the potential for conflict between the parties.”

[40] At pages 6 and 7, Dr. Marshall reviews his psychometric profile of the mother and indicates as follows:

i) “The profile from the MCMI is valid and interpretable. The results do not conform to the pattern associated with a personality disorder… In this context, (there is) a distinction between personality style’ and personality disorders’. Both can be problematic, but ‘disorders’ indicate that the characteristics are likely to be entrenched and more difficult to modify… Findings relating to personality style indicate a number of areas of potential difficulty… Individuals with the MCMI personality profile are dependent and negativistic... insecure… have low self-esteem… Look to others for protection and support… tend not to trust others to be reliable are dependable.”

[41] These conclusions at paragraph 40 make the Mother vulnerable to conflict.

ii) “PRQ: the profile from the prior assessment could not be interpreted. The scores on the validity scales indicated a strong likelihood of biased responding, which created an unrealistically positive image of the parent – child relationship.”

[42] The conclusion at paragraph 41 also identified the potential for risk in a child/parent relationship.

iii) “PSI/SF: the profile could not be interpreted. There is also a high score on the validity scale they can reflect strong bias to present oneself positively and minimize areas of stress. As stated in the interpretive manual, a score of this nature can also reflect the fact that the person may not be experiencing the usual stresses associated with caring for a child. As a result, all the scales are likely to be relatively low… “When the parent is not involved with the routine care of the child, this lack of regular involvement rather than deliberate distortion can account for the profile. “

[43] At best, the conclusions at paragraph 42 may raise the potential for stress and conflict when the Mother has the care of any child.

iv) “CAPI: The elevations on the validity scale... still indicate a tendency to answer questions defensively. There weren’t nonetheless two elevations. These suggest difficulties with respect to relationships – more specifically, relationship with adults, including family members. Collectively the scale indicates “that relationships are seen as a source of personal difficulties, unhappiness, and pain. Relationships are viewed as the cause of disappointment rather than as a resource because others cannot be counted on.”

“The CAPI profile from the current assessment is valid and interpretable. As was the case previously, there are two elevations, which are identical to those discussed above. There is no elevation on the abuse scale; the overall profile does not, therefore, conform to the pattern associated with high risk of maltreatment. There are no elevations on scales reflecting high levels of stress, rigidity with respect to expectations of children’s behaviour, or the perception of having a child with problems.”

[44] Although, there is no elevation on the abuse scale, this testing identifies the potential for increased stress and conflict when the Mother cares for a child, wherein she must rely on others to assist: Public health, Society social workers, Doctors, with whom the Mother’s historic conflict was borne out by the tested evidence before Justice Gunsolus.

[45] With respect to the father, Dr. Marshall’s psychometric testing reflects the following:

i) MCMI: “The original administration led to an invalid profile. The most likely reason was a tendency to answer questions in an excessively positive manner. The reasons for the lack of validity were explained to Mr. S.S. And he agreed to complete the inventory again during the current assessment. Although the scores on the validity scales also suggest somewhat defensive responding, this tendency was far less than was obtained in the previous profile. It was therefore, possible to proceed with interpretation; at the same time, it needs to be recognize that some of the scores might be unrealistically low, which could lead to an underestimation of areas of difficulty. All of the scores fall below the “clinical” range (i.e., the Range associated with personality and other mental health difficulties).”

[46] At 10 underestimations of areas of difficulty, the father has a potential for conflict and stress associated with parenting.

ii) PRQ: “The profile from the PMQ is valid and interpretable. All scores fall within the normal range and do not suggest the presence of attitudes and perspectives that are associated with significant problems in any of the areas evaluated. As noted, however, it is important to emphasize that such scores are not measures of parenting skills themselves but rather attitudes and perspectives consider to be related to such skills. My approach to interpretation of the PRQ in a parenting capacity assessment is to consider those studies that have looked at the behavioural correlates of low scores. These studies, which are reviewed by Kamphaus and Reynolds, indicate that low scores on certain scales can be associated with a range of problems, including behavioural acting out, depression, low academic success and low adaptive skills. This implication is that a normal range profile suggests their absence.”

[47] As noted above by Dr. Marshall, this measure does not measure actual parenting skills.

iii) PSI/SF: “The profile is valid and interpretable. The results indicate overall low stress associated with parenting, as well as low stress and all of the three specific areas – stress specific to parenting; the degree to which the child is not seen as meeting the parents expectations; and the degree to which the child is seen as being “difficult.”

[48] However, this father has limited parenting experience in the past and minimal experience parenting this particular child.

iv) CAPI: “The profile from the clinical scales does not conform to the pattern associated with a high risk of physically abusive parenting. There are, however, elevations on certain subscales. These are characteristic of adults who are experiencing general unhappiness with life, as well as specific dissatisfaction with respect to relationships. Self-esteem also tends to be low.”

[49] Again, the elevations with respect to the subscales, opens this parent to the potential for stress as a parent and conflict in relationships.

[50] Dr. Marshall concludes with respect to the psychometric testing, a page 13 of his psychological assessment, as follows:

“CAPI profiles: neither profile conforms to the pattern associated with above average risk of maltreatment. As cautioned by the many authors, no one instrument should ever be seen sufficient in reaching a conclusion regarding risk. The value of the CAPI as part of a parenting assessment is, however, recognized in the clinical literature. As discussed in Reader et al (2003), studies in the assessment of parenting, for example, the CAPI has been “the most extensively researched instrument… in family assessment proceedings.” They also state: “it has been shown to be reliable, valid, sensitive to changes resulting from treatment.”

[51] Dr. Marshall, at page 13 also identifies the limitations and concerns as follows:

i) “The assessment was not intended to be a full parenting capacity assessment. As a result, recommendations regarding in the future care cannot be made; rather the purpose of the assessment was to provide information that the court may wish to consider.

ii) “Mr. S.S. has a history of domestic assaults. As far as could be determined from the interviews, testing, and observations, there is no indication of problems with anger or poor frustration tolerance. There were also indications that he has learned ways of managing anger from his involvement in counselling. However, confidence in concluding that emotional control is not a current issue for Mr. Shea would be greater if of fully valid personality profile had been obtained.”

[52] At best, Dr. Marshall identified the mother with a personality style, as opposed to a personality disorder, which may, with assistance and counselling, the time frame for which is not identified, result in improved parenting. However, Dr. Marshall did not provide a full Parenting Capacity Assessment (PCA), and received some negative results, or, results which were incapable of interpretation on two of the tests. Also, it cannot be said that Dr. Marshall’s Psychological report reviewed all the past assistance both the mother and father received with parenting the mother’s four children; all of which were unsuccessful in advancing the parenting skills of either the mother or the father.

[53] Although, the father fared better in the test results, the MMPI test could not be fully interpreted with the potential of 10 underestimations of areas of difficulty. Further, Dr. Marshall is not confident that the father has his emotions under control to avoid conflict between the parties.

[54] Dr. Marshall’s psychometric testing, does not rebut the evidence of the parents’ past parenting. As such the report cannot be viewed as establishing a triable issue with respect to their ability to parent their son, A.J.D.-S., especially since the apprehension of the fifth child, the Society is not aware of either the mother or the father obtaining any therapeutic services in order to assist them in understanding why the Society has parenting concerns about their ability to recognize the risk that they pose in parenting any child.

[55] The answer/plan of care filed by the parents demonstrates their ongoing failure to appreciate the Society’s protection concerns despite the mother participating in two Parenting Capacity Assessments (PCA), the father in the last assessment, and, the findings of Justice Gunsolus with respect to their parenting ability.

[56] They do not rebut the findings of Justice Gunsolus, nor Justice Wood, with respect to their ability to parent the fifth child. They took no parenting classes, no marital counselling, no personal counselling between the date of the last day of trial and the birth of the fifth child. Their best argument is the fact that Dr. P. Marshall provided a psychological report which addresses some underlying factors in parenting.

[57] Having taken into consideration all the factors identified in s. 37(3) of the CFSA, the child never having been in the care of the parents; and, the parents having failed to raise a triable issue with respect to the finding, I find that the fifth child, A.J.D.-S., is a child in need of protection pursuant to s. 37(2)(b)(i) (ii) and (g) of the CFSA.

VI. Triable Issues re Placement and Access

[58] Having made the finding that the child A.J.D.-S. is in need of protection, I must review the evidence of Dr. Marshall to satisfy myself, that it is in the child’s best interest to be returned to the care of the parents, under supervision, as the parents propose, or be made a ward of the Crown, with or without access.

[59] The parents’ affidavits focus on their objections to the CAAP Report primarily because it was “completely negative to both the parents and appear(s) to mirror the arguments and opinions of the Children’s Aid Society.” They further indicate that Dr. Marshall, despite the Court’s rejection of his critique of the CAAP assessment, agreed to continue with an assessment of the parties to be presented at the appeal and in support of their request for custody of their expected child. Although repeated reference is made by the parents to the assessment conducted by Dr. Marshall, clearly Dr. Marshall’s report is a psychological assessment not a parenting capacity assessment. Also, the parents relied almost exclusively on Dr. Marshall’s report to rebut the prima facie case, such that their first affidavit makes minimal reference to any counselling, parenting courses or the like, as indicia of their plan to rehabilitate themselves as parents for any child.

[60] The first affidavit includes two sentences referring to a change in circumstances affecting their ability to parent, namely: “We continue to live in the town of Midland in a three-bedroom home where we have lived since 10 September 2010. This home is more than adequate for us and our son A.J.D.-S. in the event that our son is returned by this court to our care.” This comment, almost an afterthought, is contained in the last paragraph of a 16 paragraph affidavit.

[61] But, in the parents’ second affidavit dated August 13, 2012, the parents acknowledge that they made an error in the first affidavit in that they “lived in the three-bedroom home until May 1, 2012 but then discovered mould in it…. When the landlord refused to remediate, the parties moved on short notice to a two-bedroom apartment in Midland.” Such comment is less than positive and fails to rebut the Society’s suggestion of the parents’ instability.

[62] Rather than focus on assertions of improvements to parenting, a good deal of the affidavit sets out the party’s objections to the Society’s affidavit and information about their historic parenting, citing their perception of their good parenting. They confirmed, as did the Society, that they have consistently attended visits with A.J.D.-S. and their perception that they have a bond with the child despite the fact that the visits are limited to one hour visit per week. They agree that they will take counselling only as recommended by Dr. Marshall related to their care of the child, especially since the Outpatient Services and the Family Life Center in Midland reported to the mother that they did not recognize any need for counselling for her. No objective evidence from either the Family Life Center or the Outpatient Services was tendered to corroborate such assertion.

[63] Once again the parties suggest that the Justice Gunsolus heavily relied on a flawed assessment conducted by CAAP, implying it was the sole source of Justice Gunsolus’ findings.

[64] In addition to the psychometric testing and personal interviews, Dr. Marshall observed the parents with the child in the family room of the Midland Children’s Aid Society on September 14, 2012, as well as in the community. The observations, which took place between 9:00 a.m. to 5:00 p.m., were highly positive with respect to the parents’ preparation for the visit as well as the parents’ responses to the child’s needs.

[65] Essentially, Dr. Marshall observed the two parents babysitting/interacting with the child in a supervised setting. Although he did so over a prolonged period of time, his observations were for one visit only; certainly, an insufficient period of time to assess whether the child would be at risk if in the care of the parents over prolonged period of time. In fact, Dr. Marshall asserts, that his psychological report is not intended to be a full PCA, on which a court could rely on in order to satisfy itself that a material change in circumstance had occurred from the time of Justice Gunsolus’s order of December 08, 2011, to the date of the hearing of this motion for summary judgment.

[66] On the evidence before me, I find that no such material change in circumstances has occurred to improve their parenting of a child. The parties have moved. The parties have taken no counselling to address the issues raised by Justice Gunsolus or the first PCA in 2007. The parties have taken no counselling to address the issues raised by Dr. Marshall. The parties have taken no parenting courses. Nothing has changed.

[67] Their reliance on Dr. Marshall’s conclusions which may differ from that of the original psychological report considered by Justice Gunsolus, is unfortunate, especially since the reading of Justice Gunsolus’ judgment would suggest that the mother’s personality style was not the significant reason for the judgment rendered. At page 6 of his decision, Justice Gunsolus stated: “Based upon the totality of the evidence, including, but not limited to, B.D.’s past parenting and apparent lack of development of parenting skills, the ongoing adult conflict between her and her parents, B.D.’s unaddressed emotional and mental health issues and S.S.’s inability to intercede. I found that L. and B. were children in need of protection.” His review of the evidence did not focus primarily of the finding of B.D.’s personality disorder/style.

[68] Further, Justice Gunsolus acknowledged that much of the hearing involved a challenge to the Parenting Capacity Assessment and found that the collateral attack on the assessment was nothing more than “an attack on results that are not favourable to the parents in this case.” He also acknowledged that the assessment was only one factor that he took into consideration and was not determinative of the outcome of this matter. With respect to the attacks on the assessment that no psychometric or psychiatric testing of the parties was conducted, Justice Gunsolus identified that the assessors determined that no further testing would elucidate the issue of parenting capacity and the assessors determined that there was no clinical need to include such testing. In fact, at page 65 of the assessment, the assessor’s noted as follows:

“With regard to parent factors, there are numerous risk factors that would increase the risk for poor parenting for Ms. B.D. With regard to her mental health functioning, Ms. B.D did not present to with an Axis I mental health disorder (which relates to mood, anxiety, thought disorder). However, Ms. B.D. was previously diagnosed “with four personality disorders that are very resistant to treatment and these disorders in a parent show a pervasive and chronic course, which are more difficult for children to cope with.” (PCA, December 2007).

A subsequent psychiatric assessment by Dr. Bragstrome, (Consultation Report, August 19, 2010, document brief of CAS) suggested that Ms. B.D did not have a personality disorder. It is important to acknowledge that a psychiatric diagnosis (whether it is for a mood, anxiety or thought disorder or personality disorder) does not preclude a parent from parenting adequately. Rather a psychiatric diagnosis is helpful for the medical community in identifying treatment, intervention and prognosis. Regardless of whether Ms. B.D. has a diagnosed personality disorder or not, her behaviour and personality functioning is such that any child in her care would be at risk.”

[69] Even though the CAAP team recognized the possibility that the mother did not have a personality disorder, as does Dr. Marshall, on the basis of their thorough assessment, which included a review of the parents’ history of parenting, they did not recommend placement of any child with the mother or the father.

[70] Despite my high regard for Dr. Marshall’s work, I do not find that his conclusions have raised a triable issue, especially, in light of the fact that Justice Gunsolus, after days of evidence from many witnesses, who were subject to cross-examination, and a thorough analysis of the evidence, concluded that, despite repeated and historic efforts to assist the mother and the father, they were incapable of parenting any child.

[71] Accordingly, having relied almost exclusively on Dr. Marshall’s report, which itself raises issues of concern, neither parent has adduced sufficient evidence which rebuts the Society’s prima facie case that assures the Court that the child would be protected in their care subject to supervision.

[72] As there is no evidence that the parents have been fully rehabilitated, or have the capacity to adequately protect the child in a safe manner, I make an order that under section 57(1), it is in the child’s best interest that the child be made a ward of the Crown and placed in the care of the Society.

VII Access

[73] The governing provisions in Part III of the CFSA are s. 58 and s. 59(2) ( 2.1). They read as follows:

58. ACCESS ORDER– (one) the court may, in the child’s best interest,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

59 (2.1) ACCESS: CROWN WARD – A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

(b) the ordered access will not impair the child’s future opportunities for adoption

[74] Further, the onus rests on the parents to establish both portions of the test in subsection 59 (2. 1). In these circumstances, the parents face a daunting task. Granted, they attended the access faithfully for one hour per week. However, they did not have the care of the child from his birth and they have not established that the visits were any more enjoyable to the child, than the child’s visits with other third parties. Clearly, the visits were enjoyable to the parents.

[75] The meaning of the phrase “beneficial and meaningful” was examined by Justice Quinn in Children’s Aid Society of Niagara Region v. J. M. [ 2004 2667 (ON SC), 2004] O. J. No. 2872 where he said:

“(45) What is a “beneficial and meaningful “relationship in clause 59(2) (a)? Using standard dictionary sources, “beneficial” relationship is one that is “advantageous”. “Meaningful” relationship is one that is significant. Consequently, even if there are some positive aspects of the relationship between parent and child, that is not enough – it must be significantly advantageous to the child.”… “The requirements to meet the test of meaningful and beneficial go beyond enjoyment and require the relationship which is maintained through the access visits to be of consequence to the child’s development and well-being.”

[76] The parents have adduced no evidence whatsoever that the visits are of consequence to the child’s development and well-being.

[77] As the child has been in care since birth, for a period in excess of one year, pursuant to section 70 of the CFSA, it is the intention of the legislation that permanency planning be established for the child. Given that there is no indication in Dr. Marshall’s report what type of counselling the parents require, and, how long it would take to address the issues raised by Dr. Marshall and his psychometric testing, this child cannot languish indefinitely while the parents consider or formulate their rehabilitation plan.

[78] Further, given the fact that the parents have not met the onus in the first part of the test in section 59 (2.1), I need not consider the amendments relating to access and adoption.

VIII Orders:

1. The child A. J. D. – S., Born […], 2012, is a child in need of protection pursuant to sections 37 (2) (b) (i) and (ii) and 2 (g) of the CFSA.

2. The child’s parents have not put forward a plan for the child that would be in the child’s best interests.

3. The child shall be made a Ward of the Crown and placed in the care of the Society.

4. There shall be no access for the child to either parent for the purposes of adoption.

Released: March 15, 2013

OLAH J.

[^1]: see Court of Appeal Sordi v. Sordi[1] 13 R.F.L.(7th) 197