SUPERIOR COURT OF JUSTICE - ONTARIO

RESTRICTION ON PUBLICATION

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any child involved in the proceedings as a party or a witness or any information likely to identify any such child, or the child’s parent or foster parent or a member of the child’s family. This judgment complies with this restriction so that it can be published.

BRACEBRIDGE COURT FILE NO.: FC-10-199

DATE: 20131205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family, Youth and Child Services of Muskoka, Applicant

AND:

L.W.-B. and A.B., Respondents

BEFORE: The Hon. Madam Justice R.A. Wildman

COUNSEL:
Lauren H. Hall/Peter Marshall, Counsel for the Applicant

Patricia File, Counsel for the Respondents

Graham Butler, Counsel for the Children’s Lawyer

HEARD: November 12, 2013

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any child involved in the proceedings as a party or a witness or any information likely to identify any such child, or the child’s parent or foster parent or a member of the child’s family. This judgment complies with this restriction so that it can be published.

ENDORSEMENT

[1] This is a summary judgment motion brought by the Muskoka Children’s Aid Society (“FYCSM” or “the Muskoka Society”). I will not be granting summary judgment as there are several genuine issues for trial.

The positions of the parties

[2] This motion is brought within FYCSM’s status review proceeding. The order being reviewed is a November 5, 2012 Crown wardship with access order (“the Crown wardship order”). This order was made on consent on the eve of a trial but there were no minutes of settlement filed, as the presiding judge wrote out the terms of the order himself in his endorsement.

[3] The parties do not agree about which terms of this order are open to review. In particular, they disagree about whether or not the term of Crown wardship is able to be changed.

[4] FYCSM says the Crown wardship term is final, and this status review relates only to the terms relating to access. They say that the terms about access were included to try to preserve a relationship between the children and their parents until adoption, and to test the ability of these parents to support a future adoption with an openness order.

[5] FYCSM seeks an order amending the terms of access, so that the children can now be placed for adoption. The access provisions in the order require FYCSM to make best efforts to place the children in London, which is where the parents are living. FYCSM has not been able to find an appropriate placement in the London area, so they now wish that term removed, so that they can look for adoptive homes in other jurisdictions.

[6] The parents feel they have been tricked. They say that they would never have consented to the order if they had understood that they were agreeing to permanently place their children in care. Now that FYCSM has brought a status review, the parents say that it is open to the court to review all the terms of the order, including the order for Crown wardship. They say that the access terms were specifically included to transition the children back into their care, on the understanding that their children might be returned to them, if they “proved themselves”.

[7] The parents are asking that their children be returned to them. They say that they have secured stable housing, and are now able to adequately care for their children. Alternatively, they will be asking for specified access.

The order in question

[8] The Crown wardship order is an unusual one. As the interpretation of the order is a key issue on this motion, the terms of the issued order are set out in full below:

1. The children, namely [Child One][^1] (D.O.B. September 19, 2002) [Child Two] (D.O.B. January 11, 2004), [Child Three] (D.O.B. May 30, 2005) and [Child Four] (D.O.B. July 8, 2006) shall be made wards of the Crown with access on the following terms:

2. FYCSM shall use its best efforts to place the four children in the London area.

3. In the event that FYCSM is unable to do so within 6 months of the date of this order, then FYCSM shall apply for a review of this order before placing any child for adoption.

4. Until placement in London, access shall continue as set out in the order of July 26, 2012 plus one overnight visit for the elder two children, and possibly for the younger two children if FYCSM deems it appropriate. This visit is to occur in London during the Christmas school vacation.

5. Upon placement in London, the elder two children shall have one overnight visit every two weeks. The younger two children shall have 1 day of access every two weeks to coincide with the elder children’s access.

6. This access shall be reviewed three months after it has commenced and increased if FYCSM deems it appropriate to do so.

7. During the first 6 months following the date all 4 children are placed in the London area, the parents shall have the right to:

(a) attend at all school functions such as Parent-Teacher interviews, concerts, sports events at their own expense;

(b) attend at all medical appointments for the children, at their own expense, and to facilitate this shall be advised of times and locations in a timely fashion;

(c) be provided with school information such as report cards and notices of events;

(d) be provided with copies of any significant reports generated by the children’s caregivers.

8. The children will not be placed for adoption within the meaning of section 143 of the Child and Family Services Act for 7 months following the date the last of them is placed in the London area.

9. Thereafter, unless the parents have applied for a review of this order under section 65.1(4) of the Child and Family Services Act, which they may do so as of right, FYCSM may make adoption placements and the parents’ right to review such placements will be restricted to application for an openness order under section 145.1(3) of the Child and Family Services Act.

10. This Court retains jurisdiction over any further review or application contemplated by this order.

11. This case is adjourned to January 24, 2013 for FYCSM to report on the status of its search for placement in the London area.

The agreed facts

[9] These four children have been in the care of FYCSM since September 8, 2010. Initial concerns included several prior referrals from different jurisdictions over the preceding seven years, as well as a history of transience. The parents were living in a motel at the time they came to the attention of the FYCSM. The children appeared to have developmental delays, in part because of their limited attendance at school, and in part because of the challenges presented by their parents’ deafness and inability to access resources to assist their children.

[10] A review of the endorsements shows that, right from the time the children came into care, their parents consistently were making requests for the children to be returned to them.

[11] Unfortunately, the issue of housing was a problem, particularly given the parents’ limited finances and special needs related to their deafness. The parents initially tried to relocate to Midland, where their counsel attempted to assist by connecting them with community resources and housing. They thought they had obtained an apartment but believe it was given to someone else as a result of the landlord’s reaction to the special requests related to their disability (such as smoke alarms for the hearing impaired). Ultimately, the parents relocated back to London, where Ms. W-B’s mother was living. Since August of 2011, the parents have been living in the same three-bedroom townhouse in London.

[12] The parents have also had another baby, KW, on May 17, 2011, who was apprehended in London. A trial is scheduled in London for February of 2014, regarding the London Society’s request to make KW a Crown ward without access, for the purposes of adoption. Part of the concern of the London Society has been the fact that these proceedings are ongoing in Muskoka. At the London temporary care hearing, the judge specifically quoted the Muskoka judge’s temporary care endorsement of September 16, 2010, which states:

… the parents’ previous transience and lack of parenting skills, the children’s failure to thrive to date, the challenges posed by the parents’ and children’s deafness and the lack of suitable accommodation together mean that there is a real risk of harm if the children are returned (to their parents).

[13] However, immediately preceding the above quote in the September 16 endorsement is this sentence:

The society [FYCSM] has indicated that with suitable accommodation and the present community supports in place it would not opposed a temporary supervision order.

[14] So, at least in September of 2010, the parents had been told if they could find suitable accommodation, their children would be returned to them. That context is important in understanding what happened subsequently, and assessing whether the Crown wardship order is subject to review.

[15] As mentioned in paragraph 11, the parents focused their efforts on obtaining suitable housing. Although it took some time, given their limited finances and special needs, they were ultimately successful. When they found their townhouse in London in August of 2011, they thought that they had done what they needed to in order to have their four children in Muskoka returned to them.

[16] However, because of the past concerns of transience, FYCSM understandably took the position that, not only did the parents have to find suitable accommodation, they also needed to demonstrate an ability to maintain it. So, at the next court event in Muskoka, which was a September 16, 2011 settlement conference, the parties agreed to a six-month Society wardship order (“the Society wardship order”).

[17] This order found the children in need of protection under s. 37(2) (b, g and l)[^2]. However, there was not a lot of detail about the facts that supported the order, so it is difficult to assess how much emphasis the Society was placing on concerns other than housing. The sole agreement regarding the facts, and the basis of the order, is a short statement that, “The parents’ transiency and failure to access supports and services have resulted in the children suffering significant developmental and social delays and serious dental neglect.”

[18] The order provided for two initial supervised terms of access, one weekend a month in either Muskoka or London, with the parties sharing the responsibility for transportation. It contains a term that, upon status review, if the matter was not resolved at the first conference, it should proceed immediately to trial. The order concludes with a term:

The purpose of this period of Society wardship is to enable the parents to demonstrate the extent to which they can maintain stable, suitable housing, and engage with needed services for themselves and their children.

[19] It is clear to me that, at least at that point, the parents were still being given the impression that, if they maintained their housing, the FYCSM would consider returning the children to their care.

[20] When the status review of that order was filed at the end of February 2012, there were several initial conferences relating to the logistics of transferring the proceedings to London. There was also a kinship assessment completed about the maternal grandmother, and a discussion of integrating the children into her care. However, that plan does not appear to have come together, as the children remained in foster care.

[21] A transfer to London made sense for a number of reasons. There were already child protection proceedings ongoing in London for the youngest child. Also, the parents were having a lot of trouble exercising their access in Muskoka, and it was difficult for them to get to court in Bracebridge.

[22] These parents have very limited resources. They were having difficulty getting to Muskoka for access, as they did not have a car. They made attempts to find friends and relatives who could assist them, but they also needed a vehicle that was large enough to transport all four children, the parents and the driver. They had to save money for the $300 round-trip bus fare for the two of them. At the time of the motion before me, I heard the poignant details of what was involved when they had to take the bus for access. Their counsel advised that these parents were getting up in the wee hours of the morning, walking to the bus station in the dark because they could not afford a taxi, taking the bus to Muskoka for access, and then getting back to London around midnight and walking home again.[^3]

[23] So, the parents brought a motion to transfer the Muskoka court proceeding to London. Although this was agreeable to the Muskoka Society, it was opposed by the London Society. Ultimately, that motion was denied. At the time the motion was heard, there was a backlog of child protection files in London awaiting trial and the presiding motions judge was concerned that a transfer would unduly delay the Muskoka case, which would be contrary to the children’s best interests. The matter was scheduled for a lengthy trial in Muskoka commencing November 19, 2012.

[24] The parties came up with a last minute resolution to avoid the trial. At the trial management conference on November 5, 2012, the parties agreed to the consent order for a Crown wardship with access order, as set out in paragraph eight above.

[25] As there was again no Statement of Agreed Facts, the facts on which the order was based are unclear. This contributes to the mystery that is central to this case: was the November 5, 2012 order intended to permanently make the children Crown wards, albeit with the potential for continued contact with the parents, or was it “one last chance” for the parents to build a relationship with their children and prove to FYCSM that the children could safely be returned home?

[26] The settlement involved an undertaking by the Muskoka Society to try to place all four children in London. Unfortunately, this never materialized. As required by the final term of the Crown wardship order, the FYCSM reported back to the court by January 24, 2013 about the status of its search for placements in London.

[27] Justice Wood’s[^4] January 24, 2013 endorsement reads:

[FYCSM] has reported on its efforts to place the children in London. London Flex Homes[^5] are resistant to the amount of parental involvement in the order. London Foster Homes are all full.

The first offer of placements occurred yesterday. FYCSM resists this move because it must be immediate and it does not occur near a natural break in the school year.

[28] Unfortunately, there were no other “offers” for placement. That resulted in FYCSM bringing this status review application.

[29] On June 24, 2013, Justice Wood provided a further endorsement, which indicates:

The CAS has brought a review of the November 5, 2012 Crown wardship order as required by clause 4 of that order.

I am satisfied that despite the best efforts of this society, placement of the children in the London area has proved impossible.

The parents remain unwilling to settle for anything less than a return of the children to their care. The Society argues that after 3 years in care the children require permanency.

This matter must therefore go to trial. It is set for the November sittings with priority. The findings have been made. Therefore the issues are:

1. Whether the society may place the children for adoption notwithstanding Paragraph 10 of the November 5, 2012 order.

2. Whether it is in the best interests of the children to be placed for adoption or to be returned to their parents.

3. If the former, whether it is in the best interests of the children that there be an openness component to the search.

[30] FYCSM then brought this summary judgment motion, arguing that the parents were bound by the Crown wardship order, and only the issue of access was subject to review. Their position was that, as the access order was placing an impediment on finding potential adoptive placements, the parents could not meet the statutory test to have the access terms continue.

[31] It is clear to me from a reading of the enumerated “point 2” of Justice Wood’s June 24, 2013 endorsement that he, at least, anticipated that the issue of returning the children to their parents remained an issue for trial. Justice Wood is an experienced family law judge, who had case managed this matter throughout its entire history. He is the one who crafted the terms of the Crown wardship order that was now subject to review. If he was under the impression that the issue of returning the children to their parents was a live issue, it is certainly understandable that the parents might have the same impression.

[32] At the very least, the circumstances surrounding the parents’ agreement to the Crown wardship order, and whether they should be bound by the Crown wardship consent, is a genuine issue for trial.

[33] These parents are deaf and were receiving information through an ASL translator, which would add to the challenges of ensuring that everyone had the same understanding of what was happening. For whatever reason, as previously mentioned, the parents and the FYCSM disagree about the effect of the consent order. The ambiguity, which is understandable on the basis of the evidence before me on this motion, is not one that I can realistically resolve on this summary judgment motion. This issue requires a trial.

[34] The parents say that they agreed to the order of Crown wardship on the express understanding that this was necessary in order to expedite the transfer of the children to London, as the London Children’s Aid Society had refused to accept the transfer with a trial immediately pending. The parents were concerned that their Muskoka trial might not be until the next May. They say that they were told that, by agreeing to this consent, the children would be moved to London as soon as possible. The parents say they understood that they would then be able to start access on alternate weekends in London, as travel to Muskoka had been so difficult for them. They would also be able to be involved in their children’s medical appointments, parent-teacher activities, and other community activities, so that they could prove themselves to the Children’s Aid. They say that paragraphs nine and ten were included in the order to document that they had been told that they could ask for a review within seven months, and request an order that the children be returned to their care.

[35] They maintain that they have been given the impression throughout this file that the primary concern of the Society has been their ability to maintain suitable housing for their children. They point out that they have now been living in the same three-bedroom townhouse for over two years. These two parents did not need such a large home for themselves, and it was difficult to pay the rent on their limited disability payments. However, they have sacrificed and made it a priority to stay in this house, so that they could demonstrate this stability to the Society.

[36] It is unimaginable to me that, having worked for so long to do what they say they were asked to do, these parents would now have their relationship with their children permanently severed, without them having an opportunity to participate in a trial to determine whether their children can safely be returned to their care.

The Law

[37] Rule 16 of The Family Law Rules, O. Reg. 114/99 sets out the law relating to summary judgment in Family Court. The relevant portions of the rule are set out below.

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) 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. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) 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. O. Reg. 114/99, r. 16 (2).

EVIDENCE REQUIRED

(4) 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. O. Reg. 114/99, r. 16 (4).

EVIDENCE OF RESPONDING PARTY

(4.1) 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. O. Reg. 91/03, s. 5.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) 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. O. Reg. 114/99, r. 16 (5).

NO ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

ONLY ISSUE QUESTION OF LAW

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. O. Reg. 114/99, r. 16 (8).

ORDER GIVING DIRECTIONS

(9) 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). O. Reg. 114/99, r. 16 (9).

COSTS OF UNSUCCESSFUL MOTION

(10) 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. O. Reg. 114/99, r. 16 (10).

COSTS — BAD FAITH

(11) 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. O. Reg. 114/99, r. 16 (11).

MOTION FOR SUMMARY DECISION ON LEGAL ISSUE

(12) 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. O. Reg. 114/99, r. 16 (12).

EVIDENCE ON MOTION FOR SUMMARY DECISION OF LEGAL ISSUE

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission. O. Reg. 114/99, r. 16 (13).

[38] There are a number of cases that reinforce some of the principles that are particularly important in summary judgment motions related to child protection matters:

a. In a Crown wardship proceeding, the burden is on the Society as the moving party to show that there is no triable issue, not on the parents to show that there is. The moving party cannot define the issues on a motion for summary judgment simply by the material it files in support of the motion. Although the parents have signed an agreement with the society that the children were in need of protection, the issue was not simply whether the parents were bound by the agreement but, whether there were triable issues respecting the application for an order of Crown wardship with no access. Children’s Aid Society of Halton Region v. A. (K.L.) (2006), 2006 33538 (ON CA), 216 O.A.C. 148 (Ont. CA).

b. Courts should be very cautious in granting summary judgment in child protection cases, since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357 cited with approval in Windsor-Essex Children’s Aid Society v. L.V., 2013 ONCJ 569.

c. A genuine issue for trial must arise from something more than a heartfelt desire to resume care of the child. There must be an arguable motion discernible for the parent’s evidence that they face some better prospects than what existed at the time of the removal of the child, and has developed some new ability as a parent. Children’s Aid Society of Toronto v. R.H. and M.N. (2000), 2000 3158 (ON CJ), 131 A.C.W.S. (3d) 455 (Ont. Prov. Ct.) at para. 18 (“R.H.”); cited with approval in Children’s Aid Society of Hamilton, v. H.(S.) (2005), 2005 44183 (ON SC), 22 R.F.L. (6th) 221 at para. 22 (Ont. Sup. Ct).

d. 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. R.H. at para. 15.

e. 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 and Child Services v. A. (R.) (2001), 102 A.C.W.S. (3d) 554 (Ont. Sup. Ct.) at para. 20.

Discussion

[39] There are a number of triable issues.

[40] The first is whether or not the Crown wardship term in the final order is subject to review. This is partially a legal question, and partially a question of fact.

[41] FYCSM relies upon the decision of Goodman J. in Children’s Aid Society of Toronto v. M.W. (2005), 137 A.C.W.S. (3d) 759 (Ont. Sup. Ct.) (“the M.W. case”) in support of their position that, once a Crown wardship order has been made, the court cannot make an order that provides the parents with a further period of time to demonstrate that the child can safely be returned to them. In that case, Justice Goodman found that the trial judge had improperly included terms of access in a final order for Crown wardship, as the effect of such an order was to “buy more time” for a parent, after the Crown wardship order had been made, which was not contemplated by the Child and Family Services Act, R.S.O., C.c.11, as amended (the “CFSA”).

[42] I wish to spend some time dealing with that case because it is the basis of the FYCSM’s strongest argument. I agree that, in most instances, parents should not be able to relitigate the issue of Crown wardship once an order has been made. However, the facts in the M.W. case were much different than the case before me.

[43] First, the Crown wardship order that Goodman J. found incorrectly included terms of access had been made at a trial, with the trial judge making a finding that the child could not safely be returned to either parent’s care at the conclusion of the trial. In the case before me, the Crown wardship with access order appears to have been made as part of a “package”, on consent, to avoid a trial. If it was improper to include the terms of access in a Crown wardship order, the Society should have raised this issue at the time. Having consented to the order in question, it seems to me that the Society cannot take the position that the Crown wardship terms should stand, but, on the basis of the M.W. case, the access terms are subject to review because they are no longer properly included in the order.

[44] There is also an initial credibility finding that needs to be resolved. If a trial judge finds that the parents were led to believe, when they agreed to that order, that the Crown wardship order was not final, and they would have an opportunity to have the matter reviewed before the children were placed for adoption, as is suggested by paragraphs four and ten of the endorsement, it seems to me to be unlikely that they would be held to their consent, particularly given the drastic effect of the order.

[45] Unlike the M.W. case, these parents have never had the benefit of a judicial determination of the merits of their plan. Whether or not any of these children can be safely returned to their parents’ care remains a yet to be determined issue. Certainly, on the evidence before me in this motion, I am not able to conclude that the result of that issue is inevitable.

[46] If the evidence establishes that the parents are now in a position to care for their children, I cannot imagine any judge accepting that the M.W. case requires the court to keep these children in care, and have them adopted by another family or families, if they can safely be returned to their parents.

[47] The trial judge will need to determine the needs of these children, particularly given the progress they appear to have made in school, and assess whether these parents can adequately meet those needs. He or she will need to hear about the supports that these parents say they have put in place to assist these children in London. A decision needs to be made about whether these parents have other parenting defects that would render them incapable of adequately parenting any or all of their children. There would need to be an examination of what supports the Society has offered, or could offer, these parents to help them to parent their children. All of these are genuine issues for trial.

[48] There are also triable issues regarding the questions of adoption and access. In the MW case, there was evidence of the child’s adoptability. There is no such evidence before me regarding these children.

[49] Ms. File correctly points out that these children have been raised in a particular culture: that of a hearing impaired family. She points out the misunderstandings that may have resulted from the Society dealing with them without an interpreter, such as when a worker said that the father was “flailing his arms and made a threatening gesture like a noose”, which the father explains as “signing” that she was “hanging him out to dry”. The impact that this upbringing has had on these children, and how it affects their current needs are issues that need to be explored further in a trial.

[50] Ms. File stresses that this family’s special “cultural” background would have an impact on the issue of adoption. She asks that the court consider that ASL, or “sign language”, be considered the first language of this family rather than English. She points out that some of the children are older, and all have expressed a wish to return home to their parents. The availability, or lack of availability, of adoptive homes that will be able to adequately respond to the particular needs of these children, given the hearing impaired “culture” that they were exposed to in their parents’ care, is an issue on which the trial judge will require evidence, particularly given the difficulties that the Society has had finding placements for these children up to now.

[51] There are credibility issues about whether or not the Society used best efforts to obtain placements for these children in the London area, as required by the November 5, 2012 order.

[52] There are issues about the experts’ reports that the Society is relying upon, such as the “telepsych” assessments done regarding the children by a psychiatrist at the Hospital for Sick Children. The parents are entitled to a written report and an opportunity to challenge the experts through cross-examination, rather than having the court rely on the untested letters attached to the worker’s affidavit that I received on this motion.

[53] I agree with the psychiatrist’s conclusion that these children need permanency planning in order to move forward. It is extremely unfortunate that they have been in care for over three years, which is far beyond the statutory maximum in s. 70 of the CFSA, even with any available extension under s. 71(4).

[54] However, the need for permanency planning cannot trump a parent’s right to a trial. In addition to the emphasis in the CFSA on timely permanency planning, there is a clear mandate in s. 1(2) of the CFSA. This includes, among other things, a duty to support the family unit, wherever possible; pursue the least disruptive course of action to help the child; to recognize cultural and other differences; and to pursue family services with the participation of the family, where appropriate.

[55] These parents cannot be faulted for most of the delay. Their efforts to have their children returned to them have been documented in the endorsements from the very beginning of the proceedings. They felt they had done what was requested of them immediately before the Society wardship order, but agreed to delay the children’s return until they had maintained their housing for a longer period of time. They did not pursue their right to trial in November of 2012, but rather agreed to a consent order that would allow for a period of contact with the children in London. Their cooperation in avoiding a trial previously should not now be held against them. Where, as here, they feel they have done everything they were asked to do, they have a right to a trial before their children are permanently removed from their care and made Crown wards without access.

[56] I find that there are several genuine issues for trial, as outlined by the case management judge in paragraph 29 above, and expanded in this decision. The Society’s summary judgment motion is dismissed. The matter is referred back to the case management judge to conduct any trial management conference that is deemed necessary and, hopefully, make arrangements for the hearing of this trial as soon as possible.

[57] If there is an issue of costs that the parties cannot resolve, they should contact the trial coordinator to arrange a date to attend before me in the next two months.

WILDMAN J.

Date: December 5, 2013

Footnotes

[^1]: The order in question sets out the names and birthdates in full. However, any reference to their given names would likely identify the children, as the names are quite unusual. The children all have the same initials, so I cannot distinguish between them by using initials. I have therefore chosen to avoid any reference to the children’s names.

[^2]: These sections basically refer to a risk of physical or emotional harm as a result of a failure to adequately care for the children, or a pattern of neglect, and with a child being brought before the court with a parent’s consent, due to an inability of the parent to care for the child.

[^3]: Fortunately, FYCSM is now paying for the return bus fare for access visits, but the logistics of each trip are still quite onerous.

[^4]: Justice Wood has been the case management judge for this file in Muskoka.

[^5]: “Flex Homes” are foster homes that have the potential to become adoptive placements.