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.

85.-(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 and Parties

Court File No.: C 246/07 Date: 2013-10-01 Ontario Superior Court of Justice

Between: Catholic Children’s Aid Society of Hamilton Applicant

– and –

T. D. and A. A. Respondents

Counsel: Toni Hammond-Grant, for the Applicant George Johnson, for the Respondent T. D.

Heard: July 5, 2013 Before: The Honourable Madam Justice Deborah L. Chappel

JUDGMENT

I. INTRODUCTION

[1] This was a summary judgment motion which the Catholic Children’s Aid Society of Hamilton (“the Society”) brought in the context of a Status Review application respecting the male child E.J.A.-D., born […], 2009. The Society requested an order that the child be made a crown ward without access for the purposes of adoption. The Respondent T.D. is the mother of the child, and the Respondent A.A. is the child’s father. The Respondent father did not participate in the Status Review proceedings and was noted in default on December 19, 2011. T.D. opposed the relief which the Society requested. She sought an order dismissing the summary judgment motion and remitting the matter to the trial scheduled to commence during the trial sittings commencing September 30, 2013.

[2] The issues to be decided in this case are as follows:

a) What is the test for the determination of a Status Review application? In particular, is there a requirement that the court make a preliminary determination as to whether ongoing court intervention is required to protect the child?

b) If the preliminary determination referred to in subparagraph (a) is still necessary, is there a genuine issue for trial in this case as to whether E.J.A-D. requires ongoing protection?

c) Is there a genuine issue for trial as to the placement disposition which is in E.J.A.-D.’s best interests within the meaning of the Child and Family Services Act[^1] (the “CFSA”).

d) In the event that the court determines that an order for crown wardship is in the child’s best interests, is there a genuine issue for trial on the question of whether T.D. should be granted access to the child?

[3] For the reasons that follow, I find that the test which the Supreme Court of Canada articulated in Catholic Children’s Aid Society v. M.(C.)[^2] (hereinafter referred to as “M.(C.)”) respecting the determination of Status Review applications still applies, despite amendments to the CFSA that came into effect in 2000 and which repealed former section 65(3) of the Act.[^3] I have concluded that there is no genuine issue for trial in this case, and that an order should issue making E.J.A.-D. a crown ward without access.

II. BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[4] I make the findings set out below respecting the family background and history of court proceedings involving the Respondent mother and her children based on the evidence which the Society adduced in this matter and which the mother did not contest.

[5] T.D. gave birth to her first child. J.D., a son, on […], 2006. The Society became involved with T.D. in relation to J.D. in May 2006, prior to the child’s birth. J.D. remained in T.D.’s care for a period of approximately four months following his birth but the Society apprehended him from T.D.’s care on February 8, 2007. J.D. was placed in the care of his maternal grandmother, J.M., who obtained a final custody order respecting the child on December 6, 2007. J.D. has remained in the custody of his maternal grandmother since that time.

[6] T.D. gave birth to her second child A.D.-A., another son, on […], 2008. The father of A.D.-A. is A.A., who as noted above is also the father of E.J.A.-D. The Society apprehended A. D.-A. from St. Joseph’s Hospital on July 22, 2008, based on its history of concerns in relation to the child J.D. In addition, the Society was concerned about risk of sexual abuse by the Respondent father, as it had verified sexual abuse by the father towards a seven year old girl in 2000. A.D.-A. was placed in the care of the maternal grandmother J.M. pursuant to a six month supervision order on September 8, 2010, and has remained in the care of J.M. to date. On June 6, 2011, a final order was made terminating the supervision order dated September 8, 2010 and granting J.M. custody of A.D-A.

[7] E.J.A.-D. was born on […], 2009. He was discharged to the care of T.D. following his birth. T.D. was residing in a highly supervised setting at Grace Haven Home at that time. The Society commenced a Protection Application respecting E.J.A.-D. on July 15, 2009, in which it requested an order providing for the child to remain in T.D.’s care subject to Society supervision for six months. Mazza, J. granted a temporary order respecting the child on that date, which included a term that the mother was not to permit contact between the Respondent father and the child except with the approval of the Society. T.D. did not consent to terms respecting a temporary supervision order, and therefore the Society brought a motion on August 21, 2009 to request additional terms of supervision. On that date, Maddalena, J. ordered additional supervision terms, including a term that the mother participate and complete an addiction treatment program.

[8] E.J.A.-D. was apprehended from T.D.’s care on December 3, 2009. The Society filed an Amended Protection Application on December 8, 2009, requesting an order for six months society wardship. On December 8, 2009, Mazza, J. made a temporary order for the child to remain in the care of the Society, with access to the Respondents in the Society’s discretion. On December 11, 2009, a further temporary order was made requiring the Society to use its best efforts to arrange access visits for the Respondents three times per week.

[9] On March 26, 2010, Dr. Kimberly Harris completed a parenting capacity assessment respecting the Respondents relating to the child A.D.-A. Lafrenière, J. had ordered this assessment on January 9, 2009. Dr. Harris recommended that the child A.D.-A. be made a crown ward without access, but concluded that there was some hope of T.D. being able to progress in her parenting to the point that she could parent E.J.A.-D. She noted that a further assessment relating to the child E.J.A.-D. may be advisable depending on T.D.’s progress.

[10] The Society and T.D. resolved the Society’s Amended Protection Application respecting E.J.A.-D. on a final basis on November 22, 2010. On that date, Mazza, J. noted the Respondent father in default, and made a final order finding the child in need of protection pursuant to section 37(2)(b)(i) of the CFSA. He also granted an order returning the child to the care and custody of T.D. subject to Society supervision for twelve months, and providing for no access to the Respondent father.

[11] E.J.A.-D. remained with T.D. until July 7, 2011, when the Society apprehended him again from his mother’s care. The apprehension occurred after the Society received a referral from Hamilton Police Constable Oakes, who reported concerns about having witnessed T.D. yelling and screaming at the child and hitting him on the hand while T.D. was attempting to put the child in his stroller. On July 12, 2011, the Society commenced the early Status Review application that is the subject of this summary judgment motion, requesting that E.J.A.-D. be made a crown ward without access. I was the judge presiding at the first appearance on this early Status Review application, and I made a temporary without prejudice order on that date providing for the child to remain in care, with access to T.D. to occur twice per week for two hours on each occasion. E.J.A.-D. has been in foster care on a consistent basis since July 7, 2011. Since his initial apprehension on December 3, 2009, the cumulative amount of time that he has spent in foster care has been approximately 37.5 months.

[12] On November 10, 2011, Steinberg, J. made an order on consent of T.D. requiring her and her partner, R.W., to participate in a parenting capacity assessment to be carried out by Dr. Kim Harris. Dr. Harris completed this assessment on October 19, 2012. Dr. Harris has recommended that the child be made a crown ward without access for the purposes of adoption.

III. POSITIONS OF THE PARTIES

[13] The Society seeks an order making E. J.A.-D. a crown ward without access. If this order is made, its plan is to place the child for adoption as soon as possible. The Society’s position is that the 2000 amendments to the CFSA changed the test that applies on a Status Review application, and that the only issue to be determined in Status Review proceedings is the disposition that is in the child’s best interests. However, it argues that even if the preliminary protection analysis is still required, there is no genuine issue for trial as to whether E.J.A.-D. continues to require protection through court intervention. It submits that although T.D. has addressed some of the historical problems that led to Society involvement, such as substance abuse issues, there are still pressing concerns respecting her parenting skills, her ability to maintain a stable residence and healthy relationships, her anger management skills, her judgment and her ability to place the child’s needs above her own. It states that the mother has not adduced any credible evidence responding to these concerns.

[14] The Society is also of the view that there is no genuine issue for trial regarding the disposition that is in the child’s best interests. It states that long term planning for E.J.A.-D. cannot be put on hold any longer, and that the ongoing concerns respecting T.D. are such that a return of the child to her care either with or without terms of supervision would not be in the child’s best interests. With respect to access, the Society acknowledges that the child has an attachment to his mother, but states that T.D. has not satisfied the onus of proving that ongoing access is meaningful and beneficial to the child, or that an access order would not impair the child’s opportunity for permanency through an adoption placement.

[15] Counsel for T.D. argued that the evidence raises genuine issues for trial in this case. He submitted that the Society’s position is based largely on the evidence and conclusions of Dr. Harris. With respect to Dr. Harris’ report, counsel stated that this evidence must be tested through cross examination since in his view, there is concern about Dr. Harris’ impartiality. This argument was based on the fact that Dr. Harris did not answer some of the questions that were put to her, because she felt that they were inapplicable based on the recommendations which she made. Counsel for the Respondent also raised concerns about the inclusion of hearsay evidence in the Society’s evidence which he submitted was improper in the context of a summary judgment motion.

[16] The Respondent argued that she has a reasonable plan for the care of the child, that she is able to provide for the child’s needs, and that the evidence indicates that the child has a strong attachment to her. She requested that the summary judgment motion be dismissed and that the matter be remitted to trial so that she can challenge the Society’s case through cross examination and oral evidence from her witnesses.

IV. THE LAW

A. Legal Principles Relating to Status Review Proceedings

1. Placement of the Child

[17] The Society initiated this Status Review application pursuant to section 64(1)(a) of the CFSA. The orders which a court may make on a status review application are set out in section 65(1) of the CFSA, which provides as follows:

Court may vary, etc.

65. (1) 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. R.S.O. 1990, c. C.11, s. 65 (1); 2006, c. 5, s. 23 (1).

[18] Section 65(1) stipulates that on a Status Review application, the court may make a further order or orders under section 57 of the CFSA, which is the provision that sets out the disposition options in the context of protection applications, or an order under section 57.1. The relevant provisions are as follows:

Order where child in need of protection

57. (1) 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:

Supervision order

1. 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.

Society wardship

2. 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.

Crown wardship

3. 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.

Consecutive orders of society wardship and supervision

4. 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. R.S.O. 1990, c. C.11, s. 57 (1); 2006, c. 5, s. 13 (1-3).

Terms and Conditions of Supervision Order

(8) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on,

(i) the child’s parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services. 2006, c. 5, s. 13 (5).

Where no court order necessary

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part. R.S.O. 1990, c. C.11, s. 57 (9).

Custody order

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2006, c. 5, s. 14.

Deemed to be order under Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act. 2006, c. 5, s. 14.

[19] Section 70(1) of the CFSA circumscribes the relief available on a Status Review application by precluding the court from making an order for society wardship that will result in the child being in a Society’s care for a period exceeding the time limits set out in that section. Sections 70(2)-(3) describe the manner in which the time periods are to be calculated, and section 70(4) sets out circumstances when the court may extend the time limits:

Time limit

70.(1) 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.

Same

(2) 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.

Previous periods to be counted

(2.1)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. 1999, c. 2, s. 21 (1).

Idem

(3) 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. R.S.O. 1990, c. C.11, s. 70 (3); 1999, c. 2, s. 21 (2).

Six-month extension

(4)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. 1999, c. 2, s. 21 (3).

[20] Section 65(1) directs the court making an order in a Status Review proceeding to do so based on “the best interests of the child.” The factors which the court is required to consider in carrying out an analysis respecting the best interests of the child under the CFSA are set out in sections 37(3) and (4) of the legislation, which provide as follows:

Best interests of child

37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The child’s cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child’s views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3).

Where child an Indian or native person

(4) Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity. R.S.O. 1990, c. C.11, s. 37 (4).

[21] In considering the appropriate disposition on a Status Review application, the court must keep in mind the purposes of the CFSA, which are set out in section 1 of the Act as follows:

Paramount purpose and other purposes

Paramount purpose

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

Other purposes

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

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

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

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

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

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

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

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

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

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1.

[22] Before making an order in a Status Review application, the court must obtain and consider a Plan of Care for the child prepared by the Society. This requirement is set out in section 56 of the CFSA, which also outlines the information which must be included in the Plan of Care:

Society’s plan for child

56. The court shall, before making an order under section 57, 57.1, 65 or 65.2, obtain and consider a plan for the child’s care prepared in writing by the society and including,

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

(b) a statement of the criteria by which the society will determine when its wardship or supervision is no longer required;

(c) an estimate of the time required to achieve the purpose of the society’s intervention;

(d) where the society proposes to remove or has removed the child from a person’s care,

(i) an explanation of why the child cannot be adequately protected while in the person’s care, and a description of any past efforts to do so, and

(ii) a statement of what efforts, if any, are planned to maintain the child’s contact with the person;

(e) where the society proposes to remove or has removed the child from a person’s care permanently, a description of the arrangements made or being made for the child’s long-term stable placement; and

(f) a description of the arrangements made or being made to recognize the importance of the child’s culture and to preserve the child’s heritage, traditions and cultural identity. R.S.O. 1990, c. C.11, s. 56; 2006, c. 5, s. 12.

[23] The Supreme Court of Canada set out the fundamental principles that apply on a Status Review application under the CFSA in M.C. It stated that in dealing with child protection cases pursuant to the CFSA, the court always must keep in mind the overall purpose and rationale of the global legislative scheme. It held that the underlying philosophy of the Act is that the best interests of children must be balanced with the importance of keeping the family unit intact. The court emphasized the importance of avoiding unduly restrictive and strict interpretations of the individual sections of the Act which may work at cross purposes with this overall philosophy. It concluded that a determination of the applicable test on a Status Review application involves an analysis of the interplay between sections 57 and 65 of the legislation, using the philosophical underpinning of the legislation as the foundation for this analysis.

[24] The Supreme Court held in M.C. that in a Status Review application, the court is not required to retry the original need for protection order. As the court stated, “that order is set in time, and it must be assumed that it has been properly made at that time.”[^4] However, the court also rejected the suggestion that the test in Status Review proceedings involves a pure best interests analysis that places the state and parents on an equal footing with respect to the care of the child. Rather, it set out a two-fold test for the determination of Status Review applications. It held that the first branch of the test requires the court to determine whether the child continues to be in need of protection, and as a result requires a court order for their protection. The second branch of the test involves a consideration of the best interests of the child.

[25] With respect to the first part of the test in Status Review proceedings, the Supreme Court did not state that the child must be found to be “in need of protection” as that phrase is defined in section 37(2)(b) of the CFSA. Rather, it concluded that the first branch of the test requires the child welfare agency involved to justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future. The Ontario Court of Appeal recently confirmed in the case of Children’s Aid Society of Oxford County v. C. (W.T.)[^5] that this is the proper interpretation of the first branch of the test set out in in M.C.

[26] The Supreme Court emphasized in M.(C.) that a preliminary determination of whether ongoing state intervention is required to protect the child is important to ensure that the overall objectives of the CFSA are protected and promoted. In support of its decision on this issue, the court relied heavily on the fact that these statutory objectives include the preservation of the autonomy and integrity of the family unit, and the provision of child protection services in the least restrictive and disruptive manner. The court also held in M.C. that the inquiry into the child’s continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on concerns respecting the parents’ ability to meet the child’s needs, or for reasons unrelated to the parties’ parenting, such as concern about the effects of removing the child from a long term caregiver who is able to present a permanent plan.

[27] A number of amendments were made to the CFSA in 2000. These amendments included the repeal of section 65(3) of the Act, which set out a number of factors which the court was required to consider on a Status Review application. Former 65(3) of the Act stipulated as follows:

Criteria

65(3) Before making an order under subsection (1), the court shall consider,

(a) whether the grounds on which the original order was made still exist;

(b) whether the plan for the child's care that the court applied in its decision is being carried out; (c) what services have been provided or offered under this Act to the person who had charge of the child immediately before intervention under this Part; (d) whether the person is satisfied with those services; (e) whether the society is satisfied that the person has co-operated with the society and with any person or agency providing services; (f) whether the person or the child requires further services; (g) whether, where immediate termination of an order had been applied for but is not appropriate, a future date for termination of the order can be estimated; and

(h) what is the least intrusive alternative that is in the child’s best interests.

[28] The Ontario Court of Appeal noted in Children’s Aid Society of Oxford County v. C. (W.T.),[^6] that the repeal of section 65(3) has led to debate in the courts as to whether the first branch of the test set out in M.C. still applies, or whether a pure “best interests” test now applies in Status Review proceedings. Unfortunately, neither of the parties in that case raised the question of the proper test, and therefore the court did not decide the issue. The Court of Appeal’s decision in Children’s Aid Society of Oxford County v. C.(W.T.) was released after I reserved my decision in this case. In their submissions and Facta, counsel did not address the question of whether the amendments to the CFSA that came into effect in 2000 altered the test which the Supreme Court of Canada articulated in M.C. Given the importance of this legal issue, I invited counsel to provide written submissions on the point. Counsel for the Society filed written submissions, and argued that the repeal of former 65(3) of the CFSA resulted in a best interests only test in Status Review proceedings. Counsel for the Respondent took the position that it was improper to invite further submissions from counsel on a point of law after a decision is reserved but before judgment is rendered, and chose not to file written submissions on that basis.

[29] In my view, the repeal of section 65(3) did not alter the test which the Supreme Court articulated in M.C. The Supreme Court’s decision in M.C. regarding the need for the first branch of the test was not based on the factors set out in former section 65(3) of the CFSA, but rather on the broad objectives of the CFSA which seek to strike a balance between the best interests of the child and the need to prevent unwarranted state intervention in family life. The amendments which were proclaimed in 2000 did not alter those overriding objectives. The Supreme Court referred to former 65(3) of the CFSA in the context of the best interests analysis which the second branch of the test requires,[^7] and did not cite that subsection in its discussion regarding the first prong of the test. The repeal of section 65(3) did not have the effect of eradicating the first branch of the test set out in M.C., but simply placed the factors formerly outlined in that section on the same footing as other factors which the court is required to consider in carrying out the best interests inquiry pursuant to the second branch of the test.

[30] In this case, the Society is requesting an order for crown wardship. This is the most intrusive order that the court can make in child protection proceedings. The court should only grant this relief with “the highest degree of caution and only on the basis of compelling evidence, and after a careful examination of possible alternative remedies.”[^8] Further, caution should be taken not to judge parents of limited means and potential by unfair, unrealistic middle class standards of child care, provided that the standard that is actually used is not contrary to the child’s best interests.[^9] However, the court must ultimately maintain a focus on the needs of the child, and the importance of pursuing permanency planning for the child within a timeframe that is sensitive to those needs.[^10] Where a parent has demonstrated a significant history of dysfunction impacting on their parenting capacity, a request that they be given more time to prove their parenting capacity must be very carefully and critically scrutinized to determine whether any meaningful, longstanding change is realistic. The longer the child has been in care, the more intense the focus will become on the child’s right to a secure and stable long term placement within a reasonable time frame.[^11] As Pazaratz, J. stated in Children’s Aid Society of Hamilton v. A.M., “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.”[^12]

2. Access

[31] Pursuant to section 58(1) of the CFSA, the court may make, vary or terminate an order respecting a person’s access to the child, or the child’s access to the person, and may impose terms and conditions on this access which the court considers appropriate. If an order for crown wardship is made, the focus of the CFSA is to ensure that the child benefits from a permanent and stable placement.[^13] Section 59(2.1) of the CFSA establishes a presumption against access if the child is made a crown ward, as follows:

Access: Crown ward

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

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

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

[32] The onus is on the party seeking access to satisfy the court on a balance of probabilities that the criteria set out in section 59(2.1) have been satisfied.[^14] With respect to the first branch of the test, the focus is on the importance of the relationship from the child’s perspective. Quinn, J. outlined a number of important principles relating to the test in Children’s Aid Society of Niagara Region v. J.(M).[^15] He held that a beneficial relationship is one that is “advantageous,” and a meaningful relationship is one that is “significant.” He concluded that the existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in section 59(2.1); rather, it must be shown that the relationship is significantly advantageous to the child.[^16] Further, he held that the focus of the inquiry is the nature of the current relationship between the child and the party in question, and not on how that relationship may unfold in the future. Finally, he concluded that even if the parent proves that the relationship is beneficial and meaningful, the court must still weigh the overall benefits of access to the child as opposed to no access before making a decision on the access issue.

[33] Evidence indicating that a parent loves the child, that the child loves the parent, and that some visits were pleasant will not necessarily be sufficient to establish that the relationship is meaningful and beneficial to the child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child’s emotional health and well-being.[^17] Furthermore, the focus of the inquiry is the nature and quality of the relationship between the child and the parent at the time of trial, and not a relationship hoped for in the future.[^18]

[34] With respect to the issue of whether access will impair the child’s future opportunities for adoption, the onus of proof remains on the parent to demonstrate the access will not result in any such impairment. Pazaratz, J. described this onus in Catholic Children’s Aid Society of Hamilton v. L.S. as being an onus “to satisfy the court that access to the Crown Ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption.”[^19] There is no onus on the Society to establish that the child is adoptable, or to identify an actual prospective adoptive family for the child.[^20] While permanency planning through adoptive placement is the preferred long term option for crown wards under the CFSA, the Society cannot be expected to guarantee that adoption will occur or be successful in every case. The Society’s obligation regarding placement of crown wards is described in the legislation in more reasonable terms as an obligation to “make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family” through adoption, a custody order or a plan for customary care in the case of Indian or native children.[^21]

[35] In the past, a Society was not able to place a crown ward for adoption if there was an access order in place.[^22] As a result of recent amendments to the legislation, Societies may now place crown wards for adoption even where there is an outstanding access order, provided that they give anyone who has been granted an access order thirty days’ notice of the plan to place the child for adoption.[^23] The amendments have given parties seeking access to crown wards a somewhat greater scope of argument in advancing their case for access, since an access order is no longer an absolute bar to placing a crown ward for adoption. However, these changes open the door only slightly with respect to an access claim, since a person whose access rights to a crown ward have been terminated as a result of the child’s placement for adoption may apply for continued contact to the child through an openness order.[^24]

B. Summary Judgment in Child Protection Proceedings

[36] Rule 16 of the Family Law Rules[^25] (“Rule 16”) provides that a party may bring a motion for summary judgment for a final order without a trial on all or part of any claim. The summary judgment procedure is available in child protection proceedings. The test on a summary judgment motion is set out in Rule 16(6), which stipulates that the court may make a final order on a summary judgment basis if it determines that there is no genuine issue requiring a trial, or if the only genuine issue is a question of law. The Rule is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim, the court must make a final order.[^26]

[37] Summary judgment has become more widely available since the passage of Rule 16. It is no longer considered an extraordinary remedy that is limited to only the “clearest of cases.”[^27] However, the jurisdiction to grant relief on a summary judgment basis in child protection and Family Law cases must be exercised cautiously, in keeping with the principles of justice, fairness and the best interests of children.[^28]

[38] Since January 2010, amendments to Rule 20 of the Rules of Civil Procedure (“Rule 20”) have been in effect which significantly expanded the scope of judicial authority on summary judgment motions initiated pursuant to that Rule. These amendments allow the court to grant summary judgment if it is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence” or the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. The amendments grant the court additional tools for determining whether there is a genuine issue requiring a trial. Specifically, they allow the court to weigh the evidence, evaluate credibility and draw reasonable inferences on the evidence, “unless it is in the interest of justice for such powers to be exercised only at trial.” The amendments also provide the motion judge with the option of allowing oral evidence to assist in exercising these new powers.[^29]

[39] There is no consensus to date as to whether the court may rely on these amendments to Rule 20 to exercise expanded powers on a summary judgment motion initiated pursuant to Rule 16, with Mulligan, J. holding in Steine v. Steine [^30] that the expanded powers are available in family law matters, and Perkins, J. concluding in Starr v. Gordon[^31] that the amendments should not be applied in family law summary judgment proceedings. The Ontario Court of Appeal recently dealt comprehensively with the issue of summary judgment motions brought pursuant to Rule 20 in Combined Air Mechanical Services Inc. v. Flesch,[^32] but did not address whether a motion judge hearing summary judgment motion pursuant to Rule 16 could exercise the expanded powers set out in Rule 20. 04(2.1).

[40] In my view, the expanded powers that have been incorporated into Rule 20 do not apply in cases governed by the Family Law Rules (“the Rules”). Rule (1) provides that if the Rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to the Rules, by reference to the Courts of Justice Act and the Act governing the case and, “if the court considers it appropriate, by reference to the Rules of Civil Procedure.” This Rule is clear that the court should only resort to the Rules of Civil Procedure for assistance in determining the practice of the Family Court if the matter in question is not adequately covered by the Rules. Rule 16 covers the issue of summary judgment and the scope of the court’s role adequately. The limited scope of the judge’s powers under Rule 16 is consistent with the powers which the court had under the former Rule 20. The amendments to Rule 20 occurred after the Government of Ontario considered comprehensive recommendations regarding Rule 20 from the former Associate Chief Justice of Ontario, the Honourable Coulter Osborne, in his report entitled “Civil Justice Reform Project: Summary of Findings and Recommendations.”[^33] Given the history of consultation and analysis that preceded the introduction of the Rule 20 amendments, it cannot be assumed that the failure to include expanded judicial powers in Rule 16 was simply an oversight, or that “the Family Rules Committee has simply forgotten to catch up with the recent amendments to the civil rules” to use the words of Perkins, J. in Starr v. Gordon.[^34]

[41] The issue on a summary judgment motion brought pursuant to Rule 16 is whether it is possible to conclude based on the materials contained in the Motion Record that the Respondents have no realistic chance of success.[^35] The decision of the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch related to the interpretation and application of new Rule 20, but the court’s analysis and comments are of great assistance in understanding the circumstances in which a summary judgment motion pursuant to Rule 16 is appropriate. The court held in that case that summary judgment is appropriate in cases where the court is able through the summary judgment route to obtain a “full appreciation of evidence and the issues that is required to make dispositive findings.”

[42] The onus is on the moving party in a summary judgment motion to prove on a balance of probabilities that there is no genuine issue that requires a trial for its resolution, and the moving party must file affidavit materials that set out specific facts to support this determination.[^36] While the judge hearing a summary judgment motion initiated pursuant to Rule 16 is not permitted to resolve credibility issues, draw inferences from the evidence or weigh the evidence, he or she is required to take a good hard look at the evidence to determine if there are grounds for the order that is being requested on a summary judgment basis.[^37] Once the moving party has adduced evidence that indicates that there is no genuine issue of material fact requiring a trial, the responding party must then advance evidence of specific facts that establish their claim as being one with “a real chance of success.”[^38] If there is a genuine issue with respect to a material fact or facts relating to the case, then the matter must be directed to trial regardless of how weak or strong the claim or defence may appear.[^39]

[43] A party responding to a summary judgment motion cannot defeat the motion by relying on mere allegations, blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial. Rather, they have a positive obligation to put their best foot forward to defend the motion with fulsome affidavit evidence.[^40] The court must assume that the information put forward by the responding party is the best they have to offer at that stage.[^41]

[44] Not every disputed fact or question of credibility gives rise to a genuine issue for trial. A genuine issue for trial must relate to a material fact or facts. It must be an issue that is real and authentic, is not spurious to the case, and is substantial and sufficiently important to warrant a judicial determination. The issue must be relevant, in the sense that it must relate to material facts that are critical to the determination that the court is called upon to make.[^42] Disputed facts, the existence or non-existence of which will not affect the outcome of the case, do not raise a genuine issue for trial.[^43]

[45] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion.[^44]

[46] In child protection cases, the existence of a genuine issue for trial must arise from something more than an expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent’s evidence that the parent faces some better prospects than those that existed at the time of the Society’s initial involvement, and has developed some new ability as a parent.[^45] The courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include “the nature of the evidence on the motion, any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issue to the case.”[^46] In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the CFSA, which is “to promote the best interests, protection and well-being of children.”[^47] Summary judgment is a means of controlling a child’s drift in litigation and allowing for appropriate planning for the child in a timely manner.[^48]

[47] The time limits set out in the CFSA for a child to remain in care play a significant part in the determination of whether there is a genuine issue for trial regarding the disposition that is in the child’s best interests. Where there are ongoing concerns regarding a parent’s ability to care for a child, but the time limit for the child to remain in care has passed, the result of the trial will be a foregone conclusion.[^49]

V. ANALYSIS

Issue # 1: Is There a Genuine Issue for Trial Based on a Reasonable Apprehension of Bias on the Part of the Assessor?

[48] I wish to address as a preliminary matter the Respondent’s argument that there are weaknesses in the report of Dr. Harris which create a reasonable apprehension of bias on the part of the assessor, and that this in and of itself raises a genuine issue for trial. The suggestion that Dr. Harris lacked impartiality is based on the fact that she did not answer two of the questions that were put to her. Specifically, Dr. Harris outlined questions 5 and 6 which were put to her, and simply noted “N/A”, meaning “not applicable” in her report. These questions related to the supports and services which would be necessary for the family to maintain a placement with the mother if the child were returned home, and whether T.D. and her partner R.W. have the ability to work with services in such a way as to support the child’s needs and development.

[49] I do not agree that Dr. Harris’ notations “N/A” under questions 5 and 6 in her report raise a reasonable apprehension of bias on her part. With respect to question 5, although Dr. Harris noted “N/A” under the portion of her report dealing with that question, it is clear upon reviewing her report in its entirety that in her view, there are no supports and services that could be implemented for the family that would ensure the child’s safety in T.D.’s care. Similarly, although she noted “N/A” in relation to question 6, a review of her findings as set out in her report makes it clear that in her view, T.D. and her partner R.W. are unable to meet the needs and development of the child, regardless of any services that may be implemented. I am satisfied upon reviewing the report of Dr. Harris in its entirety that the questions have in fact been answered.

[50] Even if I had concluded that were concerns regarding Dr. Harris’ failure to specifically answer questions 5 and 6, such a finding would not have been fatal to the Society’s summary judgment motion, since all of the other evidence before me would have led me to the same conclusion in this matter. Dr. Harris’ findings and conclusions as set out in her report mirror in most respects those which the Society workers and visit supervisors have reached as a result of their contact and work with T.D., R.W. and the child. Accordingly, Dr. Harris’ report, while helpful, was not determinative of the issues which I have had to decide. I would have reached the same result even if I had not had the benefit of Dr. Harris’ report, based on the balance of the Society’s evidence.

Issue # 2: Should the Case be Remitted to Trial on the Basis of the Presence of Hearsay Evidence?

[51] As previously noted, counsel for the Respondent raised concerns that the Society included information in its materials which amounted to hearsay. The objection related to historical information respecting T.D. and her previous children, and to a police occurrence report relating to the events that led to the apprehension of E.J.A.-D. on July 7, 2011. Counsel for the Respondent referred to the case of Cole v. Hamilton[^50] and Children’s Aid Society of Toronto v. M.F. [^51] in support of the proposition that this type of historical narrative and the inclusion of police occurrence reports is improper and requires the court hearing a summary judgment motion to remit the matter to trial.

[52] The Society’s affidavit evidence does include historical narrative relating to T.D.’s other children, and an occurrence report of Police Constable Oakes relating to his involvement with this family on July 7, 2011. I agree with counsel for the Respondent that a Society bringing a summary judgment motion has a high standard to meet in terms of the quality of the evidence which it adduces on the motion. If at all possible, the individuals with direct knowledge of pertinent information should swear affidavits in support of the motion. This would include, for instance, Society Intake Workers and Emergency After Hours staff who have been involved. I do not agree with counsel for the Respondent, however, that the inclusion of background information that is within the knowledge of individuals other than the affiants in and of itself requires the court to remit the matter to a trial. As Katarynych, J. stated in Children’s Aid Society of Toronto v. M.F. (“M.F.”), the Family Law Rules permit hearsay in motions. The issue is whether the hearsay will be given any weight in the context of such a serious motion as a summary judgment proceeding in which the request is for a crown wardship order. Rule 16(5) of the Family Law Rules provides that if a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. In M.F., Katarynych, J. outlined a number of factors which the court may wish to consider in deciding how to handle objections respecting hearsay evidence on a summary judgment motion. One of the factors which she highlighted was the level of importance of the hearsay information to the determination of the issues which the court must decide. Other considerations which Katarynych, J. outlined were the opportunity that the Society reasonably had to obtain and present direct evidence, and the extent to which the parent was present when the second hand observations were made and was given an opportunity to respond to them.[^52]

[53] Counsel for the Respondent referred in general terms to historical Society information included in the affidavit materials which related to T.D.’s previous children. He did not bring a motion to strike the paragraphs of the affidavit evidence which he considered to be objectionable, but rather argued that the case should be remitted to trial because of the hearsay objection. I note that much of the historical information respecting T.D.’s previous children is set out in the affidavit evidence of Ms. Ward, who was the Society Services worker for T.D. commencing September 26, 2007, and who has provided direct evidence regarding her involvement. With respect to other historical evidence which was derived from the Society’s records, it would have been preferable for the Society to serve a Notice of Intention to Adduce Business Records respecting historical business records which included this information, or to have the previous Society workers who had direct knowledge of the information swear affidavits. However, the inclusion of this historical information in narrative form is not in my view a basis to remit the matter to trial in this case. I have considered the importance of this historical information to the determination of the issues that I have been asked to decide, and I am satisfied that the outcome of this case does not turn on that information. The direct historical and current evidence from Ms. Ward, coupled with the direct evidence of other Society personnel relating to the child E.J.A.-D. is sufficient to support the conclusion which I have reached that there is no genuine issue for trial in this case.

[54] Similarly, with respect to the occurrence report of Police Constable Oakes, the outcome of this case does not turn on the contents of that report. T.D. acknowledged herself that she was experiencing considerable difficulty managing E.J.A.-D.’s behaviour when Constable Oakes observed her and the child on July 7, 2011, and that Constable Oakes called the Society because of his concerns about how she was interacting with the child. These direct acknowledgements from T.D., coupled with the other evidence of concerns outlined below, are sufficient to support an order for crown wardship without access on a summary judgment basis without relying on all of the details set out in Constable Oakes’ report.

Issue # 3: Is there a Genuine Issue for Trial as to Whether E.J.A-D. Continues to Require Protection?

[55] Based on the material before me, I am satisfied that the Society has met the onus of proving that the child continues to require protection through court intervention. The materials which the Society has filed raise serious concerns regarding T.D.’s ability to meet the child’s physical needs, her ability to manage his behaviour, her ability to maintain consistently positive interactions with him and satisfy his emotional needs, her poor impulse control, her judgment in relation to her partners and issues impacting upon her parenting, her capacity to present a stable and secure plan for the child, her support network, her willingness and ability to work cooperatively with the Society and other community professionals and her capacity to benefit from community services. The specifics relating to these concerns are detailed below. T.D. has not adduced sufficient evidence in response to these concerns to establish that she has a chance of success with respect to her claim to have E.J.A-D. returned to her care.

1. Concerns Respecting T.D.’s Ability to Ensure E.J.A.-D.’s Physical Well-being and Safety

[56] The Society’s evidence indicates that there are no concerns regarding T.D.’s ability to carry out basic tasks relating to the child’s physical needs during visits which she has had, such as changing and dressing him, feeding him and providing him with appropriate food. However, a parent’s ability to meet a child’s basic physical needs during short periods of access is a different matter than their ability to do so on a consistent, full time basis. The evidence satisfies me that T.D. would not have the ability to consistently meet the child’s physical needs and ensure his safety if the child were placed in her care on a full time basis. There are numerous examples in the Society’s evidence dating from the outset of the Society’s involvement with this family of T.D.’s failure to follow through with medical attention or directions, her failure to ensure and prioritize her children’s physical well-being and her lackadaisical attitude to important issues relating to her children’s safety. Some of these examples include the following:

a) T.D. failed to follow through with prenatal educational programming during her pregnancy with her first child, J.D.

b) T.D. had to be constantly prompted to care for her first child J.D. She did not seek out medical care for the child.

c) J.D. suffered from failure to thrive in T.D.’s care. T.D. did not meet the child’s basic needs, kept him out late at night, and put him at risk by exposing him to cold weather.

d) T.D. did not receive prenatal care during her second pregnancy with A. D.-A. until she was approximately 6 months pregnant. She continued to smoke marijuana on a daily basis during that pregnancy.

e) Following the birth of A.D.-A., there were significant concerns regarding T.D.’s ability to appropriately respond to the child's basic cues.

f) T.D. did not receive prenatal care during her pregnancy with E.J.A.-D. until she was approximately 5 months pregnant.

g) T.D. was given extensive information and direction from multiple professionals, including staff from Grace Haven, regarding appropriate sleep practices and the dangers of sleeping with E.J.A.-D. when he was an infant. However, Grace Haven staff repeatedly found her sleeping with the child despite the numerous warnings which they gave her. Staff were required to carry out regular checks of T.D. and the child every two hours at night in order to ensure that T.D. was not sleeping with the child, and to place the child in his crib when he was found in his mother’s bed.

h) The child E.J.A.-D. suffers from asthma, for which his paediatrician Dr. Punthakee has prescribed medications and an aero-chamber. T.D. and her partner R.W. did not properly administer these medications to the child on a consistent basis. When E.J.A.-D. was apprehended on July 7, 2011, he was struggling to breathe and Society worker Ms. Ward had to direct T.D. and R.W. to give the child his medication. R.W. only gave one of the prescribed medications to the child and did not use an aero-chamber to administer the medication. When Ms. Ward questioned T.D. about why R.W. did not use the aero-chamber, T.D. stated that two year old E.J.A.-D. knew how to administer the medication himself, and that an aero-chamber was not used because the child did not like to use the aero-chamber.

i) When the child E.J.A.-D. was apprehended on July 7, 2011, T.D. advised Ms. Ward that she did not have a valid health card for the child. She insisted that the Society was to blame for this, alleging that Ms. Ward had to give her a letter confirming that the child was no longer in the Society’s care in order for her to obtain a valid health card. At that point, the child had been in the mother’s care for 7.5 months, without a valid health card. Furthermore, Ms. Ward had in fact written letters to Ontario Works, the Ministry of Health, the child's paediatrician Dr. Punthakee and the family physician Dr. Ifabiyi confirming that the child had been returned to the mother’s care, and had provided the mother with at least 2 copies of each letter.

j) After E.J.A.-D. was diagnosed as suffering from asthma, his paediatrician Dr. Punthakee directed that he was not to reside in a home where animals were present, since pet dander could aggravate his condition. Despite this direction, T.D. had a cat in her home in 2011, and had a dog in her home in 2012, resulting in the child being exposed to pets during visits in the home. Furthermore, in April 2011, T.D. reported to Dr. Punthakee that E.J.A.-D. had vomited a hairball which appeared to consist of cat hair.

k) Dr. Punthakee also directed that the child not be exposed to any type of smoke due to his asthma. Despite this direction, both T.D. and her partner R.W. continued to smoke cigarettes in the home after E.J.A.-D. was returned to their care in November 2010, and allowed R.W.’s mother to smoke marijuana in the home.

l) There were concerns regarding E.J.A.-D.’s weight while he was in T.D.’s care. When he was born, his weight was in the 50th percentile. At the time of his apprehension in December 2009, the child was 16 months of age and was still in the 50th percentile in terms of his weight. During his admission to foster care from December 2009 until November 2010, his weight increased to the point that it fluctuated between the 90th and 95th percentile. Following his return to T.D.’s care in November 2010, his weight dropped again to the 10th percentile.

m) The evidence indicates that both T.D. and R.W. have failed to appreciate and respond appropriately to significant health and safety issues relating to E.J.A.-D. For example:

a) During a home visit on March 14, 2011, Ms. Ward advised T.D. that the absence of a screen on an upper floor window posed a risk to E.J.A.-D., since he could climb up to the window and fall out. T.D. was resistant to this advice, insisted that the child could not reach the window, and stated that she did not have the name or telephone number of the landlord when Ms. Ward offered to call him in an attempt to resolve the problem.

b) On October 17, 2011, Ms. Ward relayed concerns about a torn screen in the upper floor living room window of T.D.’s residence, and the fact that there was no railing around the roof. She requested that T.D. fix the screen. The problem had still not been resolved as of November 1, 2011, when Ms. Ward met with T.D. again. During that meeting, T.D. stated that she did not comprehend why the absence of a proper screen on the window posed a safety hazard.

c) There have also been a number of occasions when E.J.A.-D. has been in the mother’s home and the safety gate for the child has not been installed.

d) Finally, the evidence indicates that T.D. lacked an appreciation of the seriousness of a bed bug infestation that developed in her home in early 2012, and the need to properly address the problem. She was resistant to signing a contract with the Society setting out a detailed plan to resolve the issue, and was angry about having to comply with precautions to deal with the problem during a visit on February 9, 2012. She accused the Society of discriminating against her by making her comply with these precautionary measures. When Society staff Family Resource Worker Tracie Testardi informed her that a picture frame which she had brought into a visit contrary to the terms of the contract was found to be infested with bed bug eggs and adult bed bugs, she was indifferent and did not take any responsibility for the fall-out from her failure to comply with the contract.

[57] T.D. has not adduced any evidence of material facts to refute these concerns.

2. Concerns Regarding T.D.’s Ability to Meet the Child’s Emotional Needs

[58] The Society’s evidence also raises serious cause for concern about T.D.’s capacity to meet E.J.A.-D.’s long term emotional needs. The concerns in this area are based on the overall impressions of Society staff, confirmed by the impressions of Dr. Harris, regarding the quality of T.D.’s interactions with the child, her ability to prioritize the child’s needs over her own issues and needs, and her ability to foster a calm and nurturing environment for the child. Consistency in these areas has been a longstanding area of concern respecting T.D. in relation to all of her children. The evidence indicates that T.D. did not demonstrate a commitment to caring for her child J.D., and has not had contact with him for many years despite the fact that he was placed in the care of T.D.’s mother. With respect to the child A.D.-A., there were concerns regarding T.D.’s consistency in visiting with the child, resulting in the Society requiring T.D. to call ahead of time to confirm whether she would be attending. There were also concerns regarding T.D.’s ability to engage and interact with A.D.-A. in a consistently positive manner. Dr. Harris noted in her report dated March 26, 2010 that although there were examples of positive interactions between T.D. and the child, T.D. did not meet A.D.-A.’s emotional needs on a consistent basis. Dr. Harris’ impression based on the visits which she observed between T.D. and the child was that overall, T.D. was not engaged emotionally with A.-D.A. She found that T.D. demonstrated little affection towards the child, did not soothe him when he fell, did not interact with him at his level, and often engaged in activities unrelated to the child, such as texting on her cell phone. Dr. Harris concluded that overall, the attachment between T.D. and A.D.-A. was not strong. The weak attachment between T.D. and A.D.-A. is evidenced by the fact that T.D. has not had any contact with A.D.-A. since December 2011, even though the child has been residing with T.D.’s mother since that time.

[59] With respect to E.J.A.-D, Dr. Harris concluded in her March 26, 2010 assessment report that T.D. showed signs of a closer attachment to E.J.A.-D. than to A.D.-A. She recommended at that time that further assessment be undertaken respecting T.D.’s capacity to meet E.J.A-D.’s long-term needs, with the assistance and support of R.W. Since that time, there have been ongoing concerns regarding T.D.’s ability to maintain consistently positive interactions with E.J.A.-D. and to meet his emotional needs on a long-term basis.

[60] In determining T.D.’s ability to meet E.J.A-D.’s emotional needs, I have considered the evidence respecting her commitment to maintaining regular access with the child. From July to October 2011, visits were fully supervised at the Society’s offices. In October 2011, access was expanded to two visits per week, with one visit occurring in T.D.’s home and the second visit taking place at the Kiwanis Centre. From February 2012 until November 2012, visits returned to the Society’s offices due in part to a bed bug infestation at T.D.’s home. These visits remained supervised until November 2012, when they became semi-supervised.

[61] T.D. has generally been consistent in attending visits with E.J.A.-D. However, I find that she was unable to make access a priority when she faced challenges in her personal life. Again, as in other areas, the concern in this area relates to T.D.’s ability to demonstrate consistency and her capacity to place the child’s needs above her own. Following R.W.’s arrest and incarceration in March 2012 in relation to numerous charges, T.D.’s access became inconsistent. She cancelled the visit on March 26, 2012, did not show on April 5, 2012, cancelled on April 12, 2012, and failed to show again on April 19, 2012. Society worker Karen Ward spoke with T.D. on May 1, 2012 about missed visits, and the impact on E.J.A.-D. of being brought to the Society for visits and then having her not show up. T.D.’s only explanation was that she had moved and was under stress. She showed no remorse for having missed visits, for the disruption to E.J.A.-D. of being brought needlessly to the visitation centre, or for the emotional impact which her non-attendance had caused for E.J.A.-D. The Society responded to T.D.’s inconsistency respecting access in the spring of 2012 by requiring T.D. to call and confirm that she would be attending visits, failing which the visit would be cancelled. Visits were cancelled on May 3, 2012, May 24, 2012, June 18, 2012, June 21, 2012, August 20, 2012, September 17, 2012 and February 7, 2013 because the mother did not call to confirm. T.D. has not adduced any evidence that responds in a meaningful way to the concerns respecting her failure to attend these visits. The Society’s evidence indicates that T.D. objected to having to call and confirm visits, stating that she had problems accessing a telephone. However, T.D. did not provide any credible evidence to explain why she could not borrow a telephone to place the calls to the Society.

[62] With respect to quality of T.D.’s relationship with E.J.A.-D., the evidence relating to visits between T.D. and E.J.-A.D. unfortunately reveals significant inconsistency in the quality of T.D.’s interactions with the child and T.D.’s ability to meet the child’s emotional needs. Following the child’s apprehension in December 2009, Society staff noted some improvements in these areas. Specifically, Ms. Ward noted that T.D. began to show more evidence of attachment to the child, began to engage him more actively, was more consistent in showing affection towards him, showed greater patience, and demonstrated progress in recognizing and responding promptly to the child's cues. The progress which T.D. made in these areas contributed to the society's decision to return the child to the mother’s care in November, 2010. However, as will be discussed in further depth below, E.J.A.-D. was re-apprehended on July 7, 2011 as a result of T.D. handling him roughly, yelling at him loudly and slapping his hand when he resisted being placed in his stroller. Society staff have documented many concerns regarding T.D.’s interactions with E.J.A.-D. and her ability to meet his emotional needs since that time.

[63] On a positive note, it is clear that T.D. loves E.J.A.-D. very much. She gives the child hugs and kisses during visits, and frequently tells him how much she loves him. In addition, there are many examples of occasions when Society staff and other professionals have observed both T.D. and R.W. engaging and interacting with E.J.A.-D. appropriately, giving him praise and encouragement and responding to the child’s emotional needs. However, the Society’s evidence demonstrates that T.D. is unable to implement these parenting skills and meet the child’s need for emotional security on a regular and predictable basis, even during the limited periods when she has had visits with the child. The concerns that have been noted are as follows:

a) There have been numerous occasions when T.D. has not reacted to the child when he has asked questions or shown excitement about showing her something. By way of example only, during a visit which Family Resource Worker Ms. Key supervised on January 9, 2013, T.D. did not respond to the child when he asked her a number of questions, and simply told him to eat.

b) T.D. was inconsistent in giving praise and encouragement to the child for his accomplishments or when he behaved well or was able to complete tasks, and had to be frequently reminded to do so.

c) There were many times when T.D. was rigid and controlling with the child and either restrained him from playing or directed him to engage in activities that she was interested in rather than allowing him to take the lead with respect to play.

d) There have been numerous examples of T.D. prioritizing her wishes and needs above the child’s. For instance, Family Resource Worker Sharon Dickerson observed that E.J.A-D. enjoyed himself while swimming, but T.D. refused to participate in this activity with him, insisting that he did not like to swim. By way of further example, E.J.A.-D. made a gingerbread house with his mother during the visit on December 20, 2012, and wanted to take the house with him at the end of the visit. However, T.D. insisted on taking it with her.

e) T.D. would often not respond appropriately and promptly when the child required soothing.

f) There are significant concerns respecting T.D.’s ability to maintain an environment for the child that will provide him with a sense of emotional security. There have been numerous occasions throughout the Society’s involvement when T.D. has exposed E.-J.A.D. to negative and angry commentary about the Society and the foster parents. In addition, T.D. has often become extremely escalated and unable to control her emotions many times, often in the child’s presence. For instance:

a) During one visit at the Kiwanis Centre, T.D. approached Ms. Key in an angry and aggressive fashion and began yelling at her while Ms. Key was holding another child.

b) When the child was apprehended on July 7, 2011, T.D. became extremely escalated and swore in the presence of the child, the Society staff and the police.

c) During a visit on July 19, 2011, Ms. Ward entered the room to attempt to soothe the child because he was screaming uncontrollably for a protracted period of time. T.D. became extremely angry and yelled at Ms. Ward so loudly and persistently that Ms. Ward was required to remove the child from the room to protect him from the conflict and settle him down.

d) During a visit in T.D.’s home on November 29, 2011, T.D. began to scream at someone over the telephone when E.J.A.-D. was present, causing the child to become afraid and run to another part of the residence. Efforts on the part of Society Family Resource worker Ms. Testardi to calm the mother down were unsuccessful, and the mother ended the conversation with an extremely long, loud scream. During this incident, both T.D. and her partner R.W. were oblivious to where E.J.A-D. had gone and what he was doing.

e) On May 1, 2012 and June 21, 2012, T.D. became extremely agitated and screamed at Society workers Ms. Ward and Ms. Allen when they attempted to discuss access issues with her.

f) On June 19, 2012, T.D. became escalated and yelled at Ms. Allen when she refused to remove the requirement that T.D. call to confirm her attendance at visits. T.D. demanded that Ms. Allen leave her home, but then followed Ms. Allen down the road in an angry state and continued to yell and swear at her.

g) On July 11, 2012, T.D. began yelling at Ms. Allen when Ms. Allen asked if she had the child’s birth certificate.

h) On December 3, 2012, T.D. became escalated with Ms. Allen and left a meeting in anger when Ms. Allen spoke with her about having missed a visit with the child on November 30, 2012.

i) On December 24, 2012, T.D. became irate and yelled loudly at Ms. Allen in the presence of E.J.A.-D. when the child arrived thirty minutes late for a visit, despite the fact that Ms. Allen assured her that she would be given make-up time with the child.

j) There were several occasions during visits which Ms. Testardi supervised when T.D. became so frustrated and angry that she became red in the face.

g) There have also been ongoing concerns about T.D. and R.W. exposing E.J.A.-D. to inappropriate violent and frightening television programming and video games, and their inability to appreciate how this may impact on E.J.A.-D. emotionally. Society staff have attempted to educate T.D. and R.W. many times about how E.J.A.-D. may be negatively impacted by exposure to this type of programming, but neither of them appreciated the Society’s concerns. They have responded by stating that the child should not be treated like a baby, and that he will inevitably be exposed to violence in society, so he may as well be exposed now. Both T.D. and R.W. have demonstrated an inability to appreciate that the child’s level of development is such that he would not be able to process and deal with the violence in an appropriate manner. When Ms. Testardi addressed this issue again with T.D. on October 27, 2011, T.D. became so angry that she became red in the face and left the room.

h) T.D. and R.W. have also exposed E.J.A.-D. to foul language on a regular basis. Efforts on the part of Society worker Ms. Ward to redirect them on this issue and explain how exposing the child to such language may affect his long term social development have been unsuccessful.

[64] Dr. Harris’ clinical findings during her assessments respecting the child A.D.-A. and E.J.A.-D. support the concerns outlined above respecting T.D.’s ability to meet E.J.A.-D.’s need for emotional security. Dr. Harris found that T.D.’s moods were unpredictable. She noted that at times, the mother presented as friendly and sociable, whereas on other occasions she presented as irritable and abrasive. She indicated that T.D.’s responses on psychological measures suggested that she struggles to regulate her emotions in the face of criticism. Her ratings in psychological testing indicated that she has few adaptive coping strategies, and that she experiences elevated levels of impulsivity. Her ratings on the Personality Assessment Inventory indicated that T.D. described herself as being easily angered and having difficulty controlling her emotions. The ratings also suggested that she may be quite sensitive, can be easily offended, and tends to hold grudges against those who anger her. Dr. Harris found that T.D.’s poor impulse control may be attributable to disappointments which she suffered in her family of origin, which had caused her to have high anger levels. She concluded that this high level of anger may explain why T.D. is prone to experiencing fairly intense temper outbursts.

[65] T.D. has not responded to any of the concerns outlined above in a meaningful way. She states that she has a close and loving relationship with E.J.A.-D., that her visits with him are positive, and that she engages the child in various activities during access. There is no dispute, however, that there have been positive aspects to T.D.’s visits with the child. The concern relates to her ability to remain consistent in her ability to meet E.J.A.-D.’s emotional needs. T.D. has not addressed this concern in her evidence.

3. Concerns Respecting the Ability of T.D. and R.W. to Appropriately Manage the Child’s Behaviours

[66] One of the Society’s most significant concerns throughout its involvement has been the inability of T.D. and R.W. to acknowledge E.J.A.-D.’s behaviour as age appropriate, and to respond to these behaviours in an effective manner. There is a history of similar concerns respecting T. D. in relation to her second child A.D.-A. T.D. often described A.D.-A. as being exceedingly difficult to parent, despite the fact that others noted his behaviour to be age appropriate. With respect to E.J.A.-D., the evidence of the Society workers and visit supervisors who have been involved with the family indicates that both T.D. and R.W. have considered many of E.J.A.-D.’s age appropriate behaviours as being extraordinarily difficult. This concern has been compounded by the inability of both T.D. and R.W. to effectively manage these behaviours, which resulted in the development of highly escalated parent-child conflicts in the home.

[67] With respect to T.D.’s and R.W.’s perception of E.J.A.-D.’s behaviours, Society staff who have supervised visits have documented concerns that they both frequently chastised the child for behaviours that were normal and acceptable. Concerns have been noted that they often both have unrealistic expectations of the child which do not correspond with his developmental level. T.D. often became easily frustrated with and agitated by E.J.A.-D.’s normal behaviours. By way of example only, during a visit on August 15, 2011, she became so upset about the child not following her direction and not smiling for a picture that she gritted her teeth, began talking abruptly and angrily through her teeth, and became bright red in the face.

[68] Society staff have noted that T.D. often has difficulty managing the child’s behaviour during visits, and has been unable to implement appropriate child management strategies. Examples of ineffective child management approaches which Society staff have noted include T.D. being overly rigid, restraining the child and engaging in power struggles rather than logically explaining things to him and attempting to calm him down, and failing to consistently follow through with consequences which were threatened. Society visit supervisors observed a direct correlation on many occasions between T.D.’s ineffective child management approaches and serious escalations in the child’s behaviour.

[69] Attempts on the part of Society staff to provide direction to T.D. about appropriate ways of responding to E.J.A-D. when he is in distress and managing his behaviour have been met with resistance. For example, when Ms. Ward and Family Resource Workers Ms. Testardi and Ms. Key met with T.D. on November 1, 2011 to discuss this issue, T.D. became angry and belligerent. She stated sarcastically that she should just put the child down on the floor and let him hit his head, because that was what would make the Society happy.

[70] The inability of T.D. and R.W. to apply effective child management strategies in dealing with E.J.A.-D. while he was in their care from November 2010 until July 2011 led to numerous incidents of extreme parent-child conflict in the home which approached crisis levels. Both T.D. and R.W. described the child’s behaviour while he was in their care as extreme. They both talked about the child having major tantrums and screaming fits which occurred daily, and which would last anywhere from three to nine hours. They stated that they would often just let E.J.A.-D. scream in his crib until he calmed down. Both T.D. and R.W. stated that the police attended at their home numerous times due to reports of concerns about the child’s drawn-out screaming fits. The concern is that these descriptions of E.J.A.-D.’s behaviour did not correspond at all with the observations of the child’s foster parents and daycare providers respecting the child’s behaviours around the same time.

[71] T.D.’s inability to manage E.J.A.-D.’s behaviours was a major contributing factor to the incident which occurred on July 7, 2011. As previously noted, E.J.A.-D. was apprehended on that date after Police Officer Oakes observed T.D. roughly pushing the child into his stroller and hitting him on the hand when he did not cooperate with her efforts to get him into the stroller. The evidence indicates that T.D. hit the child’s hand after he accidentally smacked her on the face. T.D.’s reaction to this incident was inappropriate. She did not cooperate with the police officer, and instead blamed E.J.A.-D. for the incident, stating that the child had anger management problems. She told Society worker Ms. Ward that she had hit the child’s hand in response to the child punching her on the face. She later denied that she even hit E.J.A.-D., insisting that she simply grazed his finger.

[72] The Society’s evidence also highlights concerns regarding T.D.’s and R.W.’s negative descriptions of the child when discussing his behaviour. During a home visit on April 13, 2011, they stated in E.J.A.-D.’s presence that the child had been behaving like an “asshole”, and T.D. said that she thought the child was bipolar. T.D. also insisted during this home visit that E.J.A-D. was deliberately engaging in out of control behaviours in order to anger her and R.W. T.D. has also described the child as being violent and as a bully towards other children on occasions when Society staff observed the child to be engaged in behaviours that were appropriate for his age. T.D. described R.W.’s autistic nephew who stayed with them for a period of time in 2011 in a similar derogatory manner, calling him a “fucking retard” during a meeting with Ms. Ward on May 3, 2011.

[73] The Society’s evidence respecting the concerns outlined above establishes a prima facie case that the child continues to require the protection of this court. It satisfies me that E.J.A.-D. would be at significant risk of suffering both physical and emotional harm if he were returned to his mother’s care. T.D.’s evidence does not alleviate these concerns or raise a genuine issue for trial regarding her ability to appropriately manage the child in her care. T.D. acknowledges that she previously struggled to cope with E.J.A.-D.’s behaviour, and that the child screamed for hours on end when he lived with her and R.W. She did not address the reasons for those difficulties or how the situation may improve if E.J.A.-D. were returned to her care at this point in time.

4. Concerns Respecting T.D.’s Choice of Partners

[74] The evidence also establishes that T.D. has a longstanding history of choosing partners who contribute to the instability in her life, and who pose a potential risk to her children. The father of her first child was involved in gang related and violent activity. The father of A.D.-A. and E.J.A.-D. , A.A., was charged and convicted of sexual assault towards a minor. There was a history of domestic conflict between A.A. and T.D, and T.D. reported to Dr. Harris that this conflict led to violence at times. T.D. also advised Dr. Harris that following her separation from A.A., she was fearful that either A.A. or his friends would jump her.

[75] T.D.’s current partner R.W. has a historical profile which raises major concerns regarding his ability to make a positive contribution to T.D.’s life. He has been diagnosed with Attention Deficit Hyperactivity Disorder but is not receiving treatment for this condition. He has not had stable employment during the course of the Society’s involvement, and has collected Ontario Works benefits. Neither he nor T.D. reported to Ontario Works that E.J.A.-D. had been admitted to foster care in July 2011, resulting in the couple incurring a significant debt owing to Ontario Works for overpayment of benefits.

[76] T.D. acknowledges that R.W. has had violent tendencies in the past. The evidence indicates that he assaulted his sister and broke her jaw. R.W. acknowledged to Dr. Harris that there had been many incidents of violence between him and T.D., including two incidents when he pushed T.D., a number of occasions when he slapped T.D., one occasion when he kicked and hit her, an incident when T.D. threw something at him, two occasions when T.D. pushed him, several fights during which T.D. slapped him, three or four occasions when T.D. slammed him against a wall, two times when she beat him up, and one occasion when she kicked him. He stated that on one occasion when he and T.D. engaged in a fight, both of them suffered a broken bone as a result of their physical aggression.

[77] R.W. became embroiled in criminal proceedings during the course of the Society’s involvement with the family. On March 22, 2012, R.W. was charged with robbery, break and enter, theft, wearing a mask on his face, possession under $5,000.00 and carrying a concealed weapon. These charges were laid in connection with a home invasion which he participated in with other accused, during which the other accused allegedly assaulted the two occupants in the home. R.W. has been incarcerated since his arrest. On November 16, 2012, he was convicted of robbery and disguise with intent, and received a sentence of thirty months’ incarceration and one year of probation.

[78] R.W. also has a history of alcohol and drug abuse. Although he states that he has been sober since he has been with T.D., Dr. Harris found that he was at increased risk of relapse due to his longstanding history of substance dependence.

[79] T.D. has not adduced any credible evidence to alleviate the concerns respecting her poor judgment in choosing her partners, and the risk which her partners have posed to her children. She has not addressed the concerns respecting her historical pattern of choosing partners who have had a negative impact on her life. Despite the numerous red flags regarding R.W., she has expressed a clear intention to continue her relationship with him. Her plan is to reside with him again upon his release from incarceration which is anticipated to be this fall, and for him to play a significant part in E.J.A.-D.’s life. T.D. has minimized the seriousness of the home invasion incident that R.W. participated in and the risk which his lifestyle would pose for E.J.A.-D., stating that it was partly her fault that he participated in the crime because she was not home at the time. Despite the evidence respecting R.W.’s unstable past, T.D. is confident that he will stay on a straight path upon his release given that he is receiving counselling while he is incarcerated. While there may be a possibility of R.W. reforming himself, T.D. does not appreciate the risk involved in exposing E.J.A.-D. to R.W. while she “tests the waters” to see whether or not R.W.’s expressed intention to turn his life around actually comes to fruition.

5. Concerns Regarding T.D.’s Inability to Formulate and Implement an Appropriate Plan for the Care of E.J.A.-D.

[80] The Society’s evidence also establishes that T.D. has been unable to formulate and implement a safe and stable plan for the care of E.J.A.-D. Throughout the Society’s involvement with T.D. in relation to all of her children, T.D. has been unable to achieve a reasonable degree of stability with respect to housing, her education, employment or sources of support for herself and the children. With respect to housing, T.D. remained transient throughout most of the Society’s involvement with her first child J.D. During the involvement respecting T.D.’s second child A.D.-A., the assessor Dr. Harris noted that as of March 2010, T.D. had already moved several times that year. She further noted that as of the date when the assessment was completed, T.D. was living in a short term arrangement with her boyfriend and his father, and was unable to articulate a concrete plan for more permanent housing.

[81] T.D.’s residential situation has remained unstable throughout the Society’s involvement with E.J.A-D. The degree of instability in this area during the current involvement is of serious concern quite apart from T.D.’s historical residential uncertainty. Since the birth of E.J.A.-D, T.D. has resided at Grace Haven, with R.W.’s father on Stonechurch Avenue, with R.W.’s mother in Mount Hope, at a residence on Cannon Street, in an apartment on Kenilworth Avenue, at an apartment on Emerald Street and with R.W.’s brother and his partner, where she continued to live as of the date of the hearing of this matter. The partner of R.W.’s brother has a history of Children’s Aid Society involvement, and her children are not in her care. T.D.’s only response to the concerns regarding her longstanding history of residential instability was that she has been living with R.W.’s brother and his partner for almost a year. She did not address the concerns respecting the partner’s history of child welfare involvement. She also blamed the Society for the move from her Emerald Street apartment, stating that the Society did not consider the home to be appropriate for the child. She provided no specifics regarding the concerns which she alleges the Society relayed to her.

[82] T.D. has also demonstrated instability in establishing a plan for her further education and/or employment. She indicates in her affidavit filed in support of this motion that she was undertaking studies in the Medical Assistant Program at Everest College and was in receipt of an Ontario Student Assistance Program (“OSAP”) loan. She did not provide any documentary proof of her enrolment in this program. Even if she is in fact enrolled in this course of studies, there is a concerning history of her failing to follow through with plans to stabilize her financial situation. In the spring of 2012, she advised Society worker Ms. Ward that she had continued to collect Ontario Works benefits on the basis of E.J.A.-D. being in her care following the child’s apprehension in July 2011, and that Ontario Works was now pursuing a significant repayment of benefits from her. She requested that Ms. Ward provide her Ontario Works worker with incorrect information respecting the date of the child’s admission to foster care in order to resolve the problem. T.D. advised Ms. Ward in March 2012 that she was working at a call centre, but that employment did not last. Following R.W.’s arrest in March, 2012, T.D. explained that R.W. became involved in the home invasion and robbery due to the family’s dire financial situation. In December 2012, T.D. arranged for visits with E.J.A.-D. to be changed to evenings because she allegedly had a job lined up to begin in January 2013. However, Society worker Mr. Allen learned in January 2013 that T.D. was not actually working. T.D. has not responded to this history of concerns regarding her inability to formulate a stable, long term plan for the support of E.J.A.-D.

[83] An additional area of serious concern is T.D.’s lack of positive support people in her life to assist her in caring for E.J.A.-D. She has identified R.W. as her major source of support. T.D. states in her evidence that R.W. has a loving and positive relationship with E.J.A.-D. The evidence indicates that R.W. has participated in many visits with E.J.A.-D., and that there have been many positive interactions between him and the child. R.W. has also written letters to E.J.A.-D. since he has been incarcerated. However, the concerns respecting R.W. which I have outlined above indicate that he has contributed significantly to the instability in T.D.’s life, and that he poses a risk to E.J.A.-D.’s safety and well-being. There are many concerns regarding R.W.’s commitment to E.J.A.-D. and his ability to meet the child’s needs. First and foremost, R.W. has as a result of his own choices and actions failed to be a consistent figure in the child’s life. He stopped visiting with E.J.A.-D. in early 2012 because he did not wish to attend visits at the Society, and he has not had any face-to-face contact with the child for eighteen months now due to his incarceration. With respect to R.W.’s parenting, as highlighted earlier in these Reasons, there are significant concerns regarding his inability to recognize the child’s behaviours as age appropriate, his child management skills, and his exposure of E.J.A.-D. to inappropriate programming and failure to appreciate the potential negative effects of this on the child.

[84] T.D. identified R.W.’s mother as an individual who would be able to assist her in caring for E.J.A.-D. and providing general support. However, the Society’s evidence indicates that R.W.’s mother has a long history of child welfare involvement, suffers from a disability that is of such a magnitude that she requires a motorized scooter, and uses medically prescribed marijuana on a regular basis to manage pain. Furthermore, Mr. Watters advised Dr. Harris during the assessment process that his mother had been hospitalized for several months due to cancer, that she had accused him of stealing her money and medications, and that he had “washed her hands of her.” T.D. has not responded to these concerns respecting R.W.’s mother.

[85] T.D. advised Society workers that R.W.’s extended family members were also possible sources of support to her. She did not provide any evidence relating to those individuals in her affidavit evidence. The evidence before me indicates that R.W. has had no contact with his father since the summer of 2010, and that his brother has a history of significant substance abuse but has allegedly addressed that problem.

[86] T.D. does not have the support of her own extended family. She harbours a great deal of anger towards her mother and has no relationship with her. She advised Dr. Harris that she has no meaningful relationship with her father and her siblings. Her grandmother lives in Dunnville and T.D. rarely sees her. T.D. asked Dr. Harris to speak with one of her friends who she identified as a source of support. However, there is no evidence that this individual has approached the Society to present a plan for the child or to offer any other type of support for the family.

Issue # 4: Is There a Genuine Issue for Trial Respecting the Disposition That is in the Best Interests of E.J.A.-D.?

[87] The second branch of the test in a Status Review application involves a determination of the disposition that is in the best interests of the child. In this case, because of the time limits set out in section 70 of the CFSA respecting the time that a child can remain in foster care before permanency planning occurs, the only available disposition options are crown wardship or a return of E.J.A.-D. to the care of T.D. No family members or other members of the community have advanced a plan for the care of E.J.A.-D.

[88] I am satisfied that there is no genuine issue in this case respecting the disposition that is in E.J.A.-D.’s best interests, and that an order for crown wardship should issue. While it is clear that T.D. loves E.J.A.-D. very much and wishes to parent him, the focus of the best interests analysis must remain on the child. The longstanding nature and seriousness of the many concerns summarized above have weighed heavily in my determination of the disposition issue. While T.D. has made progress in some areas that were identified in the past in relation to her other children, most notably the historical concerns respecting her substance abuse, the majority of the historical concerns have persisted over time.

[89] T.D. has demonstrated some improvements in terms of the quality of her interactions with E.J.A.-D. during visits, and she emphasized that the Society has in recent months allowed her some unsupervised time with the child. She argued that the positive evidence respecting her interactions with the child and the fact that she has been permitted unsupervised time with him raise a genuine issue for trial respecting disposition. I disagree. As emphasized above, the concerns regarding the quality of her interactions with E.J.A.-D. relate largely to her inability to sustain consistent progress on a long term basis. The evidence indicates that she has been unable to do so. The concerns also relate to her ability to maintain consistently positive interactions with E.J.A.-D. as a full time caregiver. Again, the evidence indicates that she is unable to do so. The fact that T.D. has been able to have limited unsupervised periods of time with E.J.A.-D. without any concerns arising respecting the child’s well-being during those periods does not detract from the real concerns in this case. Furthermore, even if there were no concerns at all respecting the quality of T.D.’s interactions with the child, the outcome of this case would remain a foregone conclusion. The myriad of other serious ongoing protection concerns described in detail above would lead me to the same determination that T.D. is unable to meet E.J.A.-D.’s physical and emotional needs and to provide him with the stability and security which he requires at this point in his life.

[90] In carrying out the best interests analysis, I have considered the services which T.D. has received, and the evidence relating to her ability to benefit from those services. T.D. has received extensive services from the Society and other community professionals over the years since the birth of her first child, including the following:

a) She received intensive, full time support and guidance respecting parenting from the Grace Haven residential program.

b) She completed the Beyond the Basics parenting program in 2008 and again in 2010.

c) She completed the Women’s Journey Anger Management program in 2010.

d) She received support in caring for E.J.A-D. through daycare.

e) She participated in the Incredible Years Parenting program which Child and Youth Consultant Ms. Lori Tomalty-Nusca from Chedoke Hospital recommended.

f) She received extensive parenting information and guidance from numerous Society workers and Family Resource Workers.

[91] The concerns described in detail above have continued despite the years of parenting instruction and other support which T.D. has received. Furthermore, T.D. has a longstanding history of not following through with other services and treatment which have been recommended to her in an ongoing effort to assist the family, including the following:

a) She did not receive appropriate prenatal care with respect to all three of her children.

b) She did not follow through with recommended prenatal educational programming when she was pregnant with J.D.

c) She was not consistent in following through with recommended substance abuse treatment programs during the Society’s involvement with the child A.D.-A.

d) She did not complete the COPEing with Toddler Behaviour program which Ms. Ward recommended to her in April 2011.

e) She did not follow through in attending further parenting instruction programs after Ms. Ward requested that she do so in May 2011, despite the fact that the supervision order dated November 22, 2010 required her to participate in any parenting programs which the Society recommended.

f) She did not undergo a mental health assessment which her family physician recommended, stating that she did not wish to know if she had any mental health difficulties.

[92] There are serious concerns as well respecting T.D.’s cooperation with community professionals and her ability to comply with directions and court orders aimed at ensuring the safety and protection of her children. As detailed earlier in these Reasons, she has had repeated explosive outbursts with many Society staff who have been involved with her. She ignored the numerous directions which Grace Haven staff gave to her regarding safe sleep practices with E.J.A.-D. As stated above, she did not comply with the term of the November 22, 2010 court order requiring her to complete parenting courses recommended by the Society. She hid her pregnancies with A.D.-A. and E.J.A.-D. from the Society. She also allowed R.W.’s mother to smoke marijuana in her home, contrary to paragraph 3(n) of the order dated November 22, 2010. She attempted to engage the Society worker in passing along false information to her Ontario Works representative. She misled the Society about the reasons for R.W.’s absence from visits following his incarceration. T.D.’s affidavit evidence does not respond to these examples of her lack of cooperation and non-compliance with directions and court ordered terms of supervision. Nor has T.D. responded to Dr. Harris’ findings that she has difficulty trusting others and accepting responsibility for her own actions and inaction.

[93] I have considered the evidence respecting E.J.A.-D. and his needs at this time. E.J.A.-D. is now four years and three months of age. He has been in the care of the Society for a cumulative period of approximately 37.5 months since December 3, 2009. He has experienced a significant amount of disruption in his life as a result of his removal from T.D.’s care on two occasions. Fortunately, E.J.A.-D. has had the benefit of stability with respect to his foster care experience. Following his second apprehension, he was placed with the same foster family that cared for him during his first admission to the Society’s care. He has exhibited some challenging behaviours around transitions to and from visits with T.D. in recent months, but this issue is being addressed through the services of Ms. Tamara Putland, a counselor with the Lynwood Treatment Foster Care Program.

[94] E.J.A.-D. suffers from asthma, but this condition is managed well with the medication which Dr. Punthakee has prescribed for him. E.J.A.-D. otherwise enjoys very good physical health. He has some mild delays in the areas of speech and language development and fine motor control, but is making progress with the assistance of professionals from the Early Words program. E.J.A-D.’s most important need at this point is for stability and security in the form of a long term placement with highly competent caregivers. The Society is satisfied that it will have no difficulties finding an appropriate long term adoptive placement for him.

Issue # 5: Is There a Genuine Issue for Trial Respecting Access to T.D.?

[95] The final issue to be addressed is whether there is a genuine issue for trial on the issue of access between T.D. and E.J.A-D. The onus is on T.D. to establish on a balance of probabilities that her relationship with T.D. is beneficial and meaningful to the child, and that an order for access would not impair the child’s future opportunities for adoption. I conclude that there is no genuine issue for trial on these issues, and that an order for no access to the child is appropriate. With respect to whether the mother-son relationship is beneficial and meaningful to T.D., there is no question that T.D. knows his mother, has some attachment to her and enjoys the time that he spends with her. However, these findings are not sufficient in this case to satisfy the first branch of the test for access. The relationship must be found to be significantly advantageous to the child. The evidence before me does not support such a finding. As discussed in depth above, there have been ongoing concerns regarding the quality of T.D.’s interactions with E.J.A.-D., significant power struggles between T.D. and the child which cause the child distress, exposure of the child to conflict, and exposure to inappropriate programming during visits. All of these concerns have impacted on the quality and strength of T.D.’s relationship with E.J.A.-D. There are occasions when the child has presented as anxious and frightened as a result of his mother’s angry outbursts. Furthermore, although E.J.A.-D. often shows affection towards his mother, he often only does so after prompting from T.D.

[96] Even if T.D. had been able to meet the onus of establishing that her relationship with E.J.A.-D. is meaningful and beneficial to the child, she has not satisfied the onus of proving that an access order would not impair the child’s future opportunities for adoption. She has not led any evidence relevant to this issue. If an order for access is made, the Society would have to serve a notice to terminate the order once it was ready to place the child for adoption. It would have to limit its pool of potential adoptive placements to those families which are willing to potentially go through the process of an openness application, and to accept the possibility of an openness order eventually being made in T.D.’s favour. These processes would create further unacceptable delay in securing a stable and secure long term placement for E.J.A.-D. Furthermore, the evidence before me suggests that T.D.’s ongoing involvement with E.J.A.-D. would undermine the adoption process and impair the child’s future prospects for adoption. As previously noted, the evidence reveals that there have been problems throughout the Society’s involvement about T.D. making negative comments about the child’s foster parents and the Society, and T.D.’s ability to work cooperatively with Society staff. This evidence raises significant concerns that T.D. would undermine the adoption process during the placement phase and during any openness application.

VI. TERMS OF ORDER TO ISSUE

[97] Based on the foregoing, an order shall issue as follows:

a) The child E.J.A.-D., born […], 2009 (“the child”), shall be made a crown ward and be placed in the care of the Catholic Children’s Aid Society of Hamilton.

b) There shall be no access to the child.

The Honourable Madam Justice Deborah L. Chappel

Released: October 1, 2013

[^1]: Child and Family Services Act, R.S.O. 1990, c. C-11, as amended. [^2]: Catholic Children’s Aid Society of Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165. [^3]: Child and Family Services Amendment Act, S.O. 1999, c.2, s. 19. [^4]: M. (C.), Supra., at para. 35. [^5]: Children’s Aid Society of Oxford County v. C. (W.T.), 2013 ONCA 491, 2013 CarswellOnt 10258 (C.A.). [^6]: Children’s Aid Society of Oxford County v. C. (W.T.), Supra. [^7]: See para. 38. [^8]: Catholic Children’s Aid Society of Toronto v. S. (S), 2010 CarswellOnt 10496 (O.C.J.); Catholic Children’s Aid Society of Hamilton Wentworth v. G. (J.), 1996 CarswellOnt 1428 (Div. Ct.); Children’s Aid Society of Toronto v. U. (L.), 2008 CanLII 26661 (ON SC), 2008 CarswellOnt 3192 (S.C.J.). [^9]: Catholic Children’s Aid Society of Toronto v. S. (S). Ibid.; Catholic Children’s Aid Society of Hamilton v. M. (M.A.), 2003 CarswellOnt 1122 (S.C.J.). [^10]: Catholic Children’s Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717 (O.C.J.); Jewish Family & Child Service v. K. (R.), 2008 ONCJ 774, 2008 CarswellOnt 9306 (O.C.J.), at para. 68. [^11]: Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.); Children’s Aid Society of Hamilton v. A.D.L., 2009 CarswellOnt 6358 (S.C.J.); Children’s Aid Society of Hamilton v. A.M., [2012] O.J. No. 5141 (S.C.J.). [^12]: Children’s Aid Society of Hamilton v. A.M., Ibid. [^13]: Catholic Children’s Aid Society of Hamilton v. L.S., 2011 ONSC 5850, 2011 CarswellOnt 11097 (S.C.J.) [^14]: Catholic Children’s Aid Society of Toronto v. M. (L.), 2011 ONCJ 146, 2011 CarswellOnt 2068 (O.C.J.). [^15]: Children’s Aid Society of Niagara Region v. J. (M.) 2004 CanLII 2667 (ON SC), 2004 CarswellOnt 2800 (S.C.J.). [^16]: See also Children’s Aid Society of Niagara Region v. J.C., 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Div. Ct.). [^17]: Ibid., at para. 29. [^18]: Ibid., at para. 46; Children’s Aid Society of Niagara Region v. D.B., [2011] O.J. No. 4956 (S.C.J.). [^19]: Catholic Children’s Aid Society of Hamilton v. L.S., 2011 ONSC 5850, [2011] O.J. No. 4512 (S.C.J.). [^20]: Children’s Aid Society of Niagara Region v. J.C., Supra.; Children’s Aid Society of Hamilton v. A.D.L., Supra., at para. 159.; Children’s Aid Society of Hamilton v. A.M., Supra.; Catholic Children’s Aid Society of Hamilton v. L.S., Ibid. [^21]: CFSA, section 63.1. [^22]: See former 141.1(a), CFSA. [^23]: See CFSA s. 141.1.1(1). [^24]: See CFSA section 145.1; Children’s Aid Society of Toronto v. A.B., [2013] O.J. No. 410 (O.C.J.). [^25]: Family Law Rules, O.Reg. 114/99, as amended. [^26]: Children’s Aid Society of Haldimand and Norfolk v. T.(S.L.), 2011 ONSC 4990, 2011 CarswellOnt 8480 (S.C.J.). [^27]: Children’s Aid Society of Toronto v. P.M., [2002] O.J. 3221 (O.C.J.); R.A. v. Jewish Family and Child Services, [2001] O.J. No. 47 (S.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., 2000 CanLII 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.); Children’s Aid Society of Hamilton v. C.R., 2006 CanLII 79342 (ON SC), [2006] O.J. No. 3442 (S.C.J.). [^28]: F.B. v. S.G. and Children’s Aid Society of Toronto, 2001 CanLII 28231 (ON SC), [2001] O.J. No. 1586 (S.C.J.); Children’s Aid Society of Halton Region v. K.L.A.,2006 CanLII 33538 (ON CA), [2006] O. J. No. 3958 (C.A.). [^29]: Rules of Civil Procedure, O. Reg. 575/07, s. 6., Rule 20. [^30]: Steine v. Steine, 2010 ONSC 4289, [2010] O.J. No. 3331 (S.C.J.). [^31]: Starr v. Gordon, 2010 ONSC 4167, [2010] O.J. No. 3223 (S.C.J.). [^32]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 2011 CarswellOnt 13515 (C.A.). [^33]: Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007). [^34]: Starr v. Gordon, Supra. [^35]: Canada (A.G.) v. Lameman, [2008] S.C.R. 372 (S.C.C.); J.C.J.-R. v. Children’s Aid Society of Oxford County, 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.); Catholic Children’s Aid Society of Metropolitan Toronto v. L.M.O. and M., 1995 CanLII 6216 (ON CJ), [1995] O.J. 3971 (S.C.J.). [^36]: Rule 16(4), Family Law Rules; Children’s Aid Society of Halton Region v. K.L.A., Supra.; Irving Ungerman Ltd. v. Galantis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545 (C.A.); Dawson Rexcraft Storage and Warehouse Inc. (1988), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.); Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), 1999 Carswell Ont 3171 (S.C.C.). [^37]: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. M.C., 2010 ONSC 4256 (S.C.J.); Children’s Aid Society of Ottawa v. C.B., 2010 ONSC 6961, [2010] O.J. No. 5644 (S.C.J.). [^38]: Guarantee Co. of North America v. Gordon Capital Corp., Supra., at para. 27; Hercules Management Ltd. v. Ernst & Young, [1977] 2 S.C.R.165 (S.C.C.). [^39]: Children’s Aid Society of Toronto v. M.F., 2002 CanLII 45134 (ON CJ), [2001] O.J. No. 6076 (O.C.J.); Dawson v. Rexcraft Storage and Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.). [^40]: Rule 16(4.1), Family Law Rules; Canada (A.G.) v. Lameman, Supra., at para. 11; Children’s Aid Society of Hamilton v. C.R., Supra.; Children’s Aid Society of Metropolitan Toronto v. A. (M.), 2002 CanLII 53975 (ON CJ), [2002] O.J. No. 2371 (O.C.J.). [^41]: Kawartha-Haliburton Children’s Aid Society v. W.M., 2003 CanLII 2441 (ON SC), [2003] O.J. No. 3903. [^42]: Children’s Aid Society of Algoma v. E.W.,[ 2001 CanLII 37515 (ON CJ), 2001] O.J. No. 2746 (O.C.J.); Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.). [^43]: Kallaba v. Bylykbashi, 2006 CarswellOnt 729 (C.A.). [^44]: Children’s Aid Society of Toronto v. Cynthia H. and Hassan S., 2004 ONCJ 224, 2004 CarswellOnt 4076 (O.C.J.); Children’s Aid Society of Haldimand and Norfolk v. T.(S.L.), Supra. [^45]: Children’s Aid Society of Toronto v. R.H., Supra. [^46]: Children’s Aid Society of Algoma v. E.W., Supra. [^47]: CFSA, s. 1; Catholic Children’s Aid Society of Hamilton v. L.H., [2008] O.J. No. 4609 (S.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., 2000 CanLII 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.). [^48]: Children’s Aid Society of Toronto v. C. (M.), 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 (S.C.J.); Children’s Aid Society of Haldimand and Norfolk v. T. (S.L.), Supra.; Children’s Aid Society of Niagara Region v. S.C., [2008] O.J. No. 396 (S.C.J.); Children’s Aid Society of Hamilton v. A.M., Supra. [^49]: J.C.J.- R. v. Children’s Aid Society of Oxford County, Supra. [^50]: Cole v. Hamilton (City), 2002 CanLii 49429 (Ont. S.C.J.). [^51]: Children’s Aid Society of Toronto v. M.F., 2002 CanLii 45134 (O.C.J.). [^52]: Ibid., para. 17.