COURT FILE NO.: C-2068-07

DATE: 2013-10-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicants

– and –

T. B (mother)

And

B.S. (father)

Respondents

Mr. S. James Mountford

Counsel for the Society

Mr. Salvatore Garcea

Counsel for Respondents

HEARD: October 3, 2013

THE HONOURABLE MR. JUSTICE PAZARATZ

INTRODUCTION

1. This is a summary judgment motion brought by the Catholic Children’s Aid Society of Hamilton [the Society] seeking an order of Crown wardship with no access for the purpose of adoption, in relation to eight-month-old boy M.S. born […], 2013. M.S. was apprehended February 14, 2013 and has remained in care since then.

2. The mother T.B. is 26. The father B.S. is 29. The parents live with T.B.’s mother and stepfather E.P. and F.P.

3. The mother’s two previous children, C.H.B. (born […], 2006) and N.B. (born […], 2007) were each apprehended at an early age and made Crown wards with no access. B.S. is N.B.’s father.

4. On this motion, in addition to numerous affidavits, the Society filed a lengthy parenting capacity assessment (PCA) which had been prepared pursuant to section 54 of the Child & Family Services Act (the Act) in relation to the child N.B.:

a. That April 30, 2009 assessment concluded both parents had such profound cognitive delays that they were unable to care for a young child.

b. Clinical psychologist Dan Ashbourne also concluded the maternal grandparents could not be counted on to help, by either assisting the parents or assuming responsibility for N.B. themselves.

5. The Society says nothing has changed: The same overwhelming concerns justify an immediate order of Crown wardship with no access in relation to M.S.

6. In response, T.B. and B.S. argue that a number of things have changed and improved since the 2009 PCA – both in relation to the parents and also in relation to the maternal grandparents. They submit there are triable issues in relation to their alternate claims that M.S. either remain in their care (with or without the participation of the maternal grandparents); or in the alternative M.S. should be placed in the care of the maternal grandparents.

7. Notably, the maternal grandparents are not parties, and did not seek legal representation. They filed a joint affidavit in support of the parents’ position. At the hearing of the motion, they confirmed they were content that Mr. Garcea (representing the parents) could also outline their position to the court.

2009 PCA ADMISSABILITY

8. Counsel for the parents acknowledged the 2009 PCA prepared in relation to the previous child N.B. was admissible in the current proceeding in relation to M.S. In Catholic Children's Aid Society of Hamilton v. R. (C.) (2009), 2009 34047 (ON SCDC), 2009 CarswellOnt 3850, 69 R.F.L. (6th) 69 the Ontario Divisional Court confirmed sections 50 and 54(8) of the Act create a special evidentiary rule allowing the admission of such documents in proceedings under part three of the Act.

9. The issue is the weight to be attached to the earlier assessment. In Catholic Children's Aid Society of Toronto v. K. (A.), 2008 CarswellOnt 1815, 2008 ONCJ 148 (Ont. C.J.) the court admitted a previous PCA into evidence, but cautioned that such evidence while admissible under s. 50 of the Act, must meet some basic reliability threshold test before it is admitted. The court stated the report is not decisive of the issue but is opinion based on testing, the weight of which the court must determine. The court must look for corroboration in other evidence presented in the case to test the soundness of the assessors' conclusions.

10. Similarly, in Children's Aid Society of Ottawa v. W. (C.) (2008), 2008 13181 (ON SC), 2008 CarswellOnt 1762 (Ont. S.C.J., the court stated evidence relating to past parenting should be admitted for the limited purpose of providing "a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed."

2009 PCA SIMILARITIES

11. The Society argues the 2009 PCA is both relevant and helpful because of the similarities between N.B.’s situation then and M.S.’s situation now. Both involve:

a. A young, vulnerable child.

b. The same mother.

c. The same father.

d. The same maternal grandparents, offering the same range of support including housing and offers to either help with the child or assume full responsibility.

e. The same fundamental concerns about cognitive limitations by both parents – characteristics and deficits which do not lend themselves to improvement or correction.

12. Indeed, the Society submits the 2009 findings and recommendations are even more compelling currently, because M.S. has recently been identified as having very significant medical needs, requiring a high level of care, and elevated parenting skills. As a result, time and permanence are even more urgent considerations with this third child.

2009 PCA COMMENTS RE: PARENTS

13. Dr. Ashbourne’s 2009 PCA included the following information and conclusions about the parents:

a. There are significant, long-standing concerns about the cognitive functioning of both T.B. and B.S.

b. In 2003 a psychological assessment was completed by Dr. Caroline Shilton and determined that T.B. cognitively functioned at a borderline level.

c. Dr. Shilton stressed that deficits in T.B.’s cognitive functioning would impact her chance for success in living independently in the community, such that she would need significant guidance, support and direction.

d. Dr. Ashbourne conducted his own cognitive testing in relation to both parents as part of his 2009 PCA.

e. T.B.’s verbal ability placed her at the age range of a 9 to 11-year-old, while her non-verbal skills were around age 6 years. Her overall cognitive abilities placed her at the 1st percentile in the extremely low range of intelligence.

f. B.S.’s verbal abilities ranged from 11 to 12 years old while his non-verbal skills ranged from 6 to 8 years old. His overall cognitive abilities placed him at the 2nd percentile at the bottom of the borderline range.

g. At page 55 of his report Dr. Ashbourne concluded “neither T.B. nor B.S. has the capacity to parent a child on a full-time basis. Both will struggle to meet their own basic needs, let alone the needs of another fragile individual.”

h. At page 56 the psychologist stated: “In general, the degree of assistance required for this young couple is such that live-in therapy as well as ongoing live-in parenting guidance and support will be required, and that clearly cannot be provided. Furthermore, the couple has trouble following the healthcare needs for themselves, let alone also being responsible to ensure a child’s medical and emotional health needs are properly met.”

i. Also at page 56 Dr. Ashbourne stated: “Both T.B. and B.S. have multiple behavioral and emotional health challenges that impact of their day-to-day functioning, and these challenges would place a child inadvertently at risk of emotional and/or physical harm. Cognitive challenges can sometimes be compensated for by a strong network, if the parents are open to accepting help. However, the support network needs to recognize the deficits and what their role is in terms of ensuring all goes well and the support network for this couple does not appreciate the couple’s many significant limitations.”

2009 PCA COMMENTS RE: MATERNAL GRANDPARENTS

14. Dr. Ashbourne described the maternal grandmother and step-grandfather, who at the time were offering to help with N.B. – just as they are currently offering to help with M.S.:

a. The maternal grandparents both overestimated the capabilities of T.B. and B.S. to competently meet all of N.B.’s parenting needs.

b. They were “reluctant to hold firm to rules/boundaries that are clearly necessary” to protect a vulnerable infant.

c. Dr. Ashbourne said he would be concerned if E.P. and F.P. were to take on a role supervising or assisting the parents. He did not feel the maternal grandparents truly understood the cognitive limitations and impairments of these two parents.

d. At page 57 the assessor concluded the maternal grandparents should not have the care of T.B.’s child as they did not appreciate the serious concerns regarding T.B. and B.S.’s capacity to parent.

e. Even if the grandparents were assigned the full-time parenting role, they might inadvertently place a child at risk by leaving the child for extended periods of time alone with T.B. and B.S. As a result, the child would be at risk of physical and/or emotional harm.

2009 PCA NOT UPDATED

15. On behalf of the parents, Mr. Garcea did not dispute the 2009 PCA findings and recommendations. He argued however that in deciding M.S.’s fate, it was dangerous and inappropriate to rely on a four-year-old report in relation to another child. He suggested the Society could and should have arranged for Dr. Ashbourne to prepare an updated PCA in relation to the current child based upon the current circumstances.

16. Mr. Garcea said his office contacted the assessor about the possibility of an update. He was advised:

a. Dr. Ashbourne was prepared to update his assessment at the legal aid rate of $150.00 per hour for a psychologist.

b. But he would require 20-30 hours rather than the 7-15 hours authorized by legal aid.

c. A note from Dr. Ashbourne’s office explained the extra hours were required because “for an update that is four years old…a lot could/might have changed.”

d. However, the Society was not prepared to provide the necessary funds to top-up what legal aid was willing to pay.

17. Mr. Garcea suggested Dr. Ashbourne’s comment that “a lot could/might have changed” was directed specifically at these parents and grandparents. I agree with Society counsel however, that the more logical interpretation is that Dr. Ashbourne’s office was explaining in more generic terms that in any family situation, things might change in four years.

18. The more pressing question on this summary judgment motion: whether any evidence has been presented to suggest that things actually have changed.

PARENTS’ POSITION

19. Mr. Garcea identified a short list of actual changes, and speculated a longer list might be discovered at a trial. Those actual changes:

a. The mother did not attend prenatal classes in relation to N.B. She did attend prenatal classes in relation to M.S.

b. The mother did not organize proper medical care in relation to her pregnancy with N.B. She arranged an obstetrician in relation to M.S.

c. Housing was previously a problem. In anticipation of M.S.’s birth, she arranged housing in St. Catharines.

d. The mother did not consistently attend supervised access in relation to N.B. She has now consistently attended supervised 90 minute visits in relation to M.S., three times per week. (The father has been less consistent with visits, even in relation to M.S.)

e. T.B. has now attended parenting programs and anger management programs as recommended by the Society.

f. M.S. was actually allowed to go home with the parents immediately after he was born, but a few days later the Society apprehended. The parents say those few days were successful and “fantastic”.

20. Mr. Garcea says the maternal grandparents have also experienced important changes and improvements to their situation since 2009.

a. The assessor concluded the grandparents were likely to be preoccupied with responsibilities toward the other children in their household, and unable to devote proper attention to either helping the parents or caring for N.B.

b. But now those other children are all four years older. The youngest is 10. The other children are less demanding, so the grandparents will have more time to devote to M.S.

SOCIETY POSITION

21. The Society counters that the “changes” suggested by the parents and grandparents are superficial and misleading.

a. While the mother claims credit for finding a doctor and housing in St. Catharines, she has admitted that her real motive was to give birth to M.S. in a City other than Hamilton, so she could avoid any involvement with the Hamilton Society.

b. Similarly, while the parents and maternal grandparents now claim to be cooperative and trustworthy, they were evasive in relation to M.S.’s birth.

c. The maternal grandmother did not disclose to the Society that T.B. was pregnant, even though E.P. was involved with the Society in relation to her own children; and even though E.P. knew the Society had warned that T.B. was never to be left alone in a caregiving role for a child.

d. T.B. and her mother falsely represented to hospital staff that T.B.’s eldest child was being cared for by the maternal grandmother (whereas the child had been made a Crown ward without access).

e. T.B. reported to hospital staff in St. Catharines that she was in the area visiting her boyfriend. In fact, she and B.S. had already gone to live with her parents in Hamilton.

f. T.B. was noted by hospital staff to be agitated around family members and the newborn.

g. After M.S. was placed in care (after spending a few days with the parents), the child was observed to have a diaper rash so severe it required treatment by prescription medication.

22. The Society notes the parents have provided no evidence that they have addressed – or even comprehend – the profound and enduring concerns clearly identified in the 2009 PCA.

23. For example, the parents describe their current supervised visits with M.S. as a success, and proof of how well they are doing. The Society admits they are punctual and show some strengths. But overall both T.B. and B.S. lack basic instrumental parenting skills:

a. Society workers report the parents don’t understand a young child’s developmental stages. Neither has ever parented a child.

b. They don’t understand M.S.’s feeding schedule despite repeated explanations.

c. For a period of time the mother was arriving for visits with what she mistakenly described as breast milk even though it was really commercial formula.

d. They can’t read the child’s cues as to when he’s hungry or tired.

e. While B.S. was receptive to parenting suggestions and feedback, he was noted to have challenges with basic parenting skills.

f. They appear to be focussed on their own needs in priority to the child’s needs.

g. Recent attempts by the parents to deal with M.S.’s physiotherapy needs have been disastrous.

h. Overall, the visit supervisor reported that she could never leave the parents alone with M.S. because the risk to the child was too high.

24. The Society says the parents have provided no evidence to suggest either has dealt with long-standing personal issues and limitations:

a. T.B. has significant anger control problems. She has been the subject of police investigations regarding assault.

b. T.B. has been unable to remain at any one placement for any extended period due to her aggressive behavior.

c. T.B. previously had to be removed from her mother’s home by police as a result of her aggressive behavior.

d. The mother has been diagnosed as having oppositional defiant disorder and attention deficit hyperactive disorder.

e. T.B. has displayed anger toward Society workers and other professionals hampering their ability to assist her. She is not receptive to information provided, and has refused to work with many professionals.

f. The parents have been observed having a conflictual relationship.

g. The Society materials set out various examples of situations in which the parents have simply been unable to comprehend or pay attention to direction or parenting suggestions provided staff. They are easily distracted or become preoccupied with irrelevant matters.

25. The Society submits that – particularly with the maternal grandparents taking no steps to become parties or advance any claim of their own – the parents’ proposal in relation to M.S. remains unclear.

26. In response, Mr. Garcea submits the parents have identified three very specific alternate proposals:

a. Their first choice is to have M.S. returned to their care. During submissions, Mr. Garcea was candid in acknowledging this was a very unlikely outcome.

b. Their second choice is that they and M.S. would all reside with the maternal grandparents, with E.P. and F.P. being the primary caregivers.

c. Their third choice is for the maternal grandparents to assume complete care of M.S., with T.B. and B.S. moving out.

MATERNAL GRANDPARENTS

27. T.B. and B.S. describe the maternal grandparents as being an important source of support. They say:

a. E.P. and F.P. have a stable residence.

b. F.P. works outside the home but has a flexible schedule. E.P. is home full time to help or care for M.S.

c. The mother says her stepsiblings are doing well in school and do not have the same cognitive delays as T.B. and B.S.

d. Despite the mother arranging accommodation in St. Catharines, the parents recognized they would need help with M.S. When E.P. and F.P. offered to let them live in their basement, the parents gratefully accepted the offer.

28. The maternal grandparents feel the Society has been unfair in refusing to conduct a kinship assessment of their proposal as alternate caregivers. But the Society says it has consistently explained to E.P. and F.P. why they will not consider them for a kin placement. The Society says the maternal grandparents have a terrible history, and still show no insight:

a. E.P. and F.P. have an extensive history of involvement with the Society including 13 protection involvements and other protection involvements with the Brant Society.

b. At age 15 T.B. was assaulted by E.P. with a broom resulting in bruising. T.B. became a Crown ward on January 8, 2003. E.P. eventually agreed to Crown wardship as she stated that she recognized that she could not manage T.B.’s behavior.

c. E.P. repeatedly allowed T.B. to care for E.P.’s younger children, despite being warned this was inappropriate. There is a recurring pattern of E.P. inappropriately leaving younger children to be cared for by older children.

d. The maternal grandparents now say they feel the parents deserve a chance and should be allowed to parent, because they have “grown up”. E.P. has stated T.B. is now able to care for a young child.

e. E.P. has been uncooperative, concealing T.B.’s pregnancy with M.S. She has also at times been confrontational with Society staff and caused tensions to escalate.

f. The Society is concerned that if the maternal grandparents still think T.B. and B.S. can overcome their profound cognitive limitations simply by “growing up”, their insight remains as poor as Dr. Ashbourne described in the 2009 PCA.

29. Mr. Garcea suggested a trial may be necessary to resolve confusion and uncertainty about other issues:

a. How did the newborn experience a broken clavicle? (The Society says it was likely caused during the birthing process – the parents are not being blamed.)

b. Why was the child suddenly transferred to a second foster home when the issue of the broken clavicle first arose?

c. Why was a doctor discussing adoption of M.S. with a third party, soon after apprehension? (The Society says the doctor’s actions were unilateral, entirely inappropriate, and unrelated to its activities on this file.)

30. I agree with the Society: these extraneous issues may be worth further discussion in a different context, but they are irrelevant to the determination of this motion for summary judgment.

SUMMARY JUDGMENT

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

16(1) When Available

After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

16(2) Available in Any Case Except Divorce

A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

16(3) Divorce Claim

In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12(6).

16(4) Evidence Required

The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

16(4.1) Evidence of Responding Party

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

16(5) Evidence not from Personal Knowledge

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.

16(6) No Issue for Trial

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

16(7) Only Issue Amount of Entitlement

If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount.

16(8) Only Issue Question of Law

If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

16(9) Order Giving Directions

If the court does not make a final order, or makes an order for a trial of an issue, the court may also,

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure).

16(10) Costs of Unsuccessful Motion

If the party who made the motion has no success on the motion, the court shall decide the amount of the other party's costs of the motion on a full recovery basis and order the party who made the motion to pay them immediately, unless the motion was justified, although unsuccessful.

16(11) Costs — Bad Faith

If a party has acted in bad faith, the court shall decide the costs of the motion on a full recovery basis and shall order the party to pay them immediately.

16(12) Motion for Summary Decision on Legal Issue

The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process.

16(13) Evidence on Motion for Summary Decision of Legal Issue

On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission.

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

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

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

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

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

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

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

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

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

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

42. The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. A party cannot rest on a denial and must put his or her best foot forward. (Children's Aid Society of Metropolitan Toronto v. A. (M.), 2002 53975 (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.) (page 6)); (Jewish Family & Child Service v. A. (R.), [2001] O.J. No. 47 (Ont. S.C.J.)). The genuineness of the issue for trial must arise from something more than a heartfelt expression of desire to be given an opportunity to parent. (Children's Aid Society of Toronto v. H. (R.), 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.)).

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

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

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

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

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

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

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

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

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

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

2(2) Primary Objective

The primary objective of these rules is to enable the court to deal with cases justly.

2(3) Dealing with Cases Justly

Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

2(4) Duty to Promote Primary Objective

The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

2(5) Duty to Manage Cases

The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

SOCIETY’S PROTECTION APPLICATION

53. Where a child has been apprehended by a Society, the Society is required to commence an application under section 40(1) of the Act.

54. There are two stages to a protection application. The court must first determine whether the child is in need of protection pursuant to section 37(2).

55. The Society asks that M.S. be found in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(b)(ii) of the Act. The relevant provisions state:

37(2) Child in need of protection

A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

56. Section 57(1) sets out the options available and relevant considerations once a child is found to be in need of protection:

57(1) Order where child in need of protection

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

1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

2. Society wardship — That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

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

57(2) Court to inquire

In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

57(3) Less disruptive alternatives preferred

The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

57(4) Community placement to be considered

Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

57(5) Idem: where child an Indian or a native person

Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child's extended family;

(b) a member of the child's band or native community; or

(c) another Indian or native family.

57(7) Idem

When the court has dispensed with notice to a person under subsection 39(7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47(1) has been held upon notice to that person.

57(8) Terms and conditions of supervision order

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.

(d) [Repealed 2006, c. 5, s. 13(5).]

57(9) Where no court order necessary

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.

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

70(1) Time limit

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

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

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

70(4) Six month extension

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

58. The factors to be considered in determining the best interests of a child are contained in section 37(3) of the Act:

37(3) Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

14. Section 50 (1) of the Act specifically allows for the Court to consider past conduct toward any child and any oral or written statement or report that the Court considers relevant as well as the reasons for a decision in an earlier civil proceeding.

15. I have considered all of these criteria in reviewing the evidence on this summary judgment motion. In applying the best interests criteria set out in section 37(3), I have attempted to maintain a child-centered focus, reflecting the paramount purpose of the CFSA as set out in section 1:

1(1) Paramount purpose

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

1(2) Other purposes

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

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

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

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

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

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

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

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

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

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

APPLICATION OF RULE 16

61. Parents with cognitive limitations present the greatest challenge and frustration in child protection proceedings. While deliberate or even inadvertent misconduct is often correctable, inherent cognitive limitations don’t easily change. No matter what the level of effort or good faith, T.B. and B.S. face enormous challenges and limitations inherent in their rankings in the first and second percentile respectively. This is a sad reality which cannot be ignored.

62. The methodology and results of the 2009 parenting capacity assessment in relation to N.B. were not challenged. Dr. Ashbourne provided a clear and cogent analysis of his overwhelming concern about the safety of a young child if left in the care of the parents and/or the maternal grandparents. I accept that this provides a relevant 2009 benchmark, against which current parenting skills and adult dynamics may be assessed.

63. Similarly, the essential ingredients of the Society’s current evidence in relation to M.S. were not challenged with any degree of specificity.

64. In the final analysis, the theme advanced by the parents and maternal grandparents is two-fold:

a. “Things aren’t quite as bad as the Society says.”

b. “We’re willing to do anything to keep this child.”

The former amounts to a blanket denial. The latter is little more than a heartfelt request to be allowed to parent.

65. The essential ingredients remain the same:

a. A vulnerable infant.

b. Biological parents who cannot be entrusted with care of that child, by virtue of their cognitive limitations and long-standing personal issues.

c. Maternal grandparents whose offer of help is undermined by their own parenting deficiencies and complete lack of insight.

66. T.B., B.S., E.P. and F.P. have all made bald statements that things have improved – but with virtually no acknowledgement that any of them understand what needed to improve; no demonstration of capacity to improve; and no particulars as to how things have actually improved. Cumulatively it amounts to little more than all of them coming to court and saying “things are better now.” On a summary judgment motion, that’s not nearly enough.

67. Mr. Garcea was candid in acknowledging the parents’ profound cognitive limitations. But he speculated that while they may not be “book smart”, they may still be “street smart” – ie, that despite their intellectual limitations, with the right amount of help they can still accomplish a great deal; they can still parent. Sadly, I received no evidence to suggest this is a realistic possibility – and certainly not within the timelines required for an eight month old child.

68. Mr. Garcea speculated about evidence which might have been available had an updated parenting capacity assessment been conducted. However:

a. In her endorsement of May 6, 2013 Justice Chappel adjourned the issue of the scheduling of the summary judgment motion to May 31, 2013.

b. Justice Chappel also endorsed that the parents “may make a motion for a PCA returnable on the same date…”

c. The parents never brought such a motion.

d. Given the comprehensive nature of the relatively recent 2009 PCA, the Society’s reluctance to incur the cost and delay of an updated assessment is understandable.

e. In any event, no update has been ordered, and I must deal with this summary judgment motion in the context of the evidence which would actually be available for the trial judge.

69. Mr. Garcea speculated about answers and evidence which might arise at trial. But faint hope and wishful thinking that helpful evidence might arise at trial isn’t enough.

70. Having reviewed the evidence, the legislation, the Plans of Care, and the case law, I am satisfied that the Society has put forward a prima facie case for summary judgment both in relation to findings and disposition. Neither the parents nor the maternal grandparents have set out any allegation, fact, or collection of facts or information which – even if accepted by a trial judge – would change the result in their favour. The Society has met the onus of establishing that there is no genuine issue for trial.

71. In child protection proceedings, summary judgment is not merely a tool to expedite the litigation process. If there are genuine issues to be determined, the matter should proceed to trial as quickly as possible. But inevitably trials entail delay – and needless trials entail needless delay. Where there is no genuine issue for trial, it is unconscionable to keep young children’s lives “on hold” simply because the parents are unwilling – or unable – to come to terms with the reality of the situation.

72. M.S. is young and vulnerable. He has significant health needs and challenges. He requires – and deserves – the best possible chance in life. Neither the parents nor the maternal grandparents can give him what he needs – currently or in the forseeable future.

73. I find that M.S. is in need of protection. The only realistic and appropriate disposition in his case is Crown wardship for the purpose of adoption. I am satisfied that this would be in the best interests of the child, and that no less disruptive alternative would be appropriate or realistic. I am satisfied that no community or familial placements would be appropriate. I am satisfied that the Society has made reasonable and appropriate efforts to assist the child and this family unit, and that a supervision order would not be successful or productive. Based upon the evidence before me, I am satisfied that there is no genuine issue for trial.

ACCESS

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

75. An adoption.

76. A custody order under section 65.2(1).

77. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.

78. The Society seeks an order of Crown wardship with no access for purposes of adoption.

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

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

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

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

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

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

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

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

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

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

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

46 I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent. 47 Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

82. In M.S.’s case, the evidence sets out that while the parents attend supervised access regularly, they appear to be focussed on their own needs rather than the needs of the child. Visits have not been able to evolve because T.B. and B.S. lack basic instrumental parenting skills.

83. There is no evidence in the record to suggest that continuing access between the parents and M.S. – or even between the maternal grandparents and M.S. – would be “beneficial and meaningful” from the child’s perspective.

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

85. The Act now provides that Crown Wards who are the subject of access Orders are now still eligible for adoption. However, section 59(2.1) of the Act has not been amended. This means that the presumptive rule (and the test for access) remains the same. Catholic Children’s Aid Society of Hamilton v. S. (L.) 2011 ONSC 5850 (S.C.J.).

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

THE ORDER

87. The Society’s motion for summary judgment is granted on all issues.

88. The child M.S. born […], 2013 is found to be Roman Catholic, non-native and non-Indian.

89. The child M.S. is found to be in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(b)(ii) of the Child & Family Services Act.

90. The child is made a ward of the Crown and placed in the care of the Catholic Children’s Aid Society of Hamilton.

91. There shall be no access to the child.

Pazaratz, J.

Released: October 8, 2013

COURT FILE NO.: C-2068-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicants

And

T.B. (mother) and B.S. (father)

Respondents

REASONS FOR JUDGMENT

Justice A. Pazaratz.

Released: October 8, 2013