COURT FILE NO.: 502/09

DATE: 2014/08/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION

Paul Heinen, for the Applicant

Applicant

- and -

L. P. and

A. L.

Keith R. Newell, for the Respondent Mother

(found not to be a father in March 2014)

Respondents

HEARD: August 8, 2014

The Honourable Madam Justice W.L. MacPherson

Overview

[1] The Children’s Aid Society of the Niagara Regional (“the Society”) brings this motion pursuant to Rule 16 (6) of the Family Law Rules seeking an order for summary judgment on its status review application regarding the child, G. J. P. L. (“G.”), born […], 2013, asking that the child be made a Crown ward without access for the purpose of adoption.

[2] Ms. P. identified A. L. (“Mr. L.”) as the father of G. In late March 2014, the Society received results of a DNA paternity test which excluded him as the biological father of G. with the probability of paternity being 0%. Following these test results, Mr. L. advised that he would not be presenting a plan and he is no longer pursuing his plan of care regarding the child.

[3] Ms. P. has not identified another possible father for the child.

[4] The mother, L. P., is opposed to summary judgment being granted and submits that there is a genuine issue for trial which should be determined at the trial scheduled for September 22, 2014. In defence of the motion, the mother has submitted a six page affidavit detailing the efforts that she has made to demonstrate her ability to work with the Society and to follow through on their recommendations.

[5] A Statement of Agreed Facts (Status Review) was filed at the commencement of the motion.

Background Facts

[6] L. P., born […], 1985, is the biological mother of three children, D. A. P., born […], 2005; F. J. K.-P., born […], 2006; and G. J. P. L., born […], 2013.

[7] Ms. P. has been involved with the Society both as a child and as an adult. During her childhood, the Society investigated numerous concerns regarding her mother’s mental health and her father’s extreme use of physical discipline. Ms. P. was made a Crown ward on January 3, 2001 as a result of significant child protection concerns.

[8] Commencing in July 2005, the Society investigated numerous child protection concerns regarding Ms. P.’s ability to provide for the care of her children, D. and F. Four investigations took place regarding the care of D. and F., with concerns around the mother’s relationship with a convicted sexual offender and the lack of stability in her home. Additional child protection concerns related to her failure to address ongoing substance abuse, her failure to address her mental health and anger management issues and her lack of motivation to follow through and engage in any supportive services.

[9] D. and F. were apprehended from Ms. P.’s care on May 11, 2011. Over the course of the next twenty-three months, Ms. P. did not attend and complete any programs or services recommended by the Society and failed to address any of the child protection concerns with respect to D. and F.

[10] A summary judgment motion regarding those two children was heard on April 22, 2013. On April 30, 2013, Justice Walters granted the motion and issued its decision that D. and F. would be made Crown wards with no access for the purpose of adoption.

Current Application

[11] G. was apprehended at birth with a warrant on […], 2013. A child protection application was commenced on [...], 2013. G. was ordered into the temporary care and custody of the Society on a without prejudice basis by court order dated […], 2013. G. has remained in the Society’s care continuously since then.

[12] G. was found to be in need of protection on November 19, 2013 pursuant to s. 37 (2)(b)(i) and s. 37(2) (b)(ii) of the Child and Family Services Act. On the same date, the temporary order dated […], 2013 was confirmed.

The Child

[13] G. has been followed medically by Dr. Bhetasi. While there were initial concerns due to the mother’s failure to obtain prenatal care and admitted marijuana use during pregnancy and the meconium test results which were positive for cannabinoids, the child has continued to be healthy, to grow and thrive and to meet all expected age appropriate developmental milestones.

[14] She has remained in one foster home and has been able to develop a bond and attachment to her foster caregivers.

[15] As of the date of the motion, the child has been in care for 358 days.

Society’s Current Involvement & Society’s Protection Concerns

a) Substance Abuse

[16] The Society has concerns with regard to the mother’s drug use. During her previous involvement with the Society, Ms. P. admitted to regular use of marijuana. She stated that she required this for pain management of an injury sustained in a car accident. She did contemplate seeking a prescription for medical marijuana, but felt the process to do so would be too lengthy.

[17] Ms. P. has admitted to using marijuana during her most recent pregnancy, but she stated that she stopped doing so as soon as she found out that she was pregnant. According to the hospital staff, she admitted to using marijuana throughout her pregnancy.

[18] Ms. P. admitted that she has continued to use marijuana subsequent to the birth of G., but she indicates that her usage has decreased from 1 to 2 joints per week, to only 1 to 2 joints per month.

[19] The meconium testing of G. was done on […], 2013 and indicated positive for cannabinoids (more than 80ng/g) with such a reading indicating in utero exposure during the third trimester of pregnancy.

[20] Ms. P. submitted to a hair follicle test in November 2013 and the results were received on December 13, 2013, which indicated positive for cocaine use at a level of 0.70ng/mg and trace levels of benzoylecgonine. This hair sample represents drug exposure history from August to October 2013.

[21] In the report of Motherisk Laboratory dated March 27, 2014, the low level of cocaine suggested isolated or infrequent use of cocaine during the tested time period. However, the presence of benzoylecgonine suggested that the positive cocaine result is due to active use of cocaine. While there was reference to the possibility of passive exposure to cocaine in the individual’s environment, it was noted that this explanation should be accepted with caution due to the pre-analytical decontamination of the sample and the presence of benzoylecgonine.

[22] Ms. P. stated that she had never knowingly used cocaine and as an explanation submitted that marijuana suppliers may have sprayed their plants with cocaine residue to create an addiction and that she is now more careful where she obtains her marijuana.

[23] On September 27, 2013, the Society worker discussed with Ms. P. the importance of attending for drug assessment and treatment. Ms. P. denied that such services were necessary as they are only “for crackheads” but she indicated she would be willing to follow any recommendations made by the Society.

[24] On November 11, 2013 the Society worker and Ms. P. discussed her continued use of marijuana and Ms. P. indicated that she would abstain from substances to work toward reunification with her child.

[25] On November 27, 2013, the Society worker referred Ms. P. to Community Addiction Services of Niagara (“CASON”) to address the ongoing substance abuse. The Society worker was clear that the Society would continue with the current application of Crown ward no access, unless there was a demonstration of a change in the mother’s lifestyle.

[26] On January 27, 2014, the Society worker reviewed the Service Plan with Ms. P. who indicated that she was agreeable to the terms which included that she would abstain from non-prescribed medications and alcohol and street drugs and that she would complete an assessment through CASON and follow through with any recommendations. The Target Date for completion was March 15, 2014.

[27] On March 19, 2014, Ms. P. confirmed to the Society Worker that she had reduced her use of marijuana to 1 to 2 joints in the past month. The Society worker indicated that she needed to abstain from any substances and she was directed to CASON for an assessment which could be done on a drop-in basis on Mondays, Wednesdays and Fridays. Ms. P. indicated that she preferred to complete this process at Quest Community Health (“Quest”)

[28] On April 2, 2014, the Society worker attended the residence of Ms. P. (and Mr. L.). The worker detected the odour of marijuana. Both denied smoking marijuana and attributed the smell to the neighbours doing so, and the smell of marijuana coming through the ventilation system. This had never previously been identified by Ms. P. or Mr. L. as a concern with the home environment.

[29] In the mother’s Affidavit sworn July 31, 2014, she states that she sought treatment for her marijuana use at Community Addictions Services of Niagara “last week”. She further states that due to her minimal use of marijuana, “no treatment is likely required” and “treatment may not be necessary”.

[30] In this Affidavit, she also indicates that she has requested addiction services from Quest, but to date she has not received any services.

b) Mental Health

[31] On September 17, 2013, Ms. P. (and Mr. L.) expressed a willingness to attend counseling to work toward a reunification with the child and to accept a referral to the Family Counselling Centre, which referral was done on September 18, 2013.

[32] On September 24, 2013, Ms. P. enquired about alternate services while on the waitlist for Family Counselling Centre and the Society worker provided a referral to Quest. Quest is a clinic that allows clients access to a multi-disciplinary team that provides support for people with mental health issues.

[33] On November 27, 2013, Ms. P. (and Mr. L.) reported that they had not yet connected with Quest, but were planning to do so that week. The Society worker discussed with Ms. P. about her historical lack of follow through with supportive services and how this contributed to the Crown Wardship order regarding her two older children. Ms. P. acknowledged that her lack of follow through was an issue in the past and further stated that her mental health issues impeded her ability to follow through. It was pointed out to Ms. P. that if her mental health issues were having such a significant impact, she needed to complete a mental health assessment and she agreed to do this.

[34] On December 9, 2013, Ms. P. advised that she had an appointment scheduled with Quest for December 13, 2013. Ms. P. did not attend this appointment.

[35] On January 27, 2014 Ms. P. advised the Society worker that she would be attending an appointment with Quest to obtain a mental health and addiction assessment through that agency. This was also set out in the Service Plan signed by Ms. P. on that date.

[36] On March 19, 2014, the Society worker reminded Ms. P. about the necessity of completing the mental health assessment.

[37] On May 7, 2014, Ms. P. advised that she had recently contacted Quest and learned that, contrary to her belief, she had not been on a waitlist for a mental health assessment for the past several months, but had now placed herself on the waitlist.

[38] On May 21, 2014, Ms. P. advised that she was continuing to work on being referred for a mental health assessment and that the delay was due to the medical office not having completed the referral. The Society worker requested that Ms. P. obtain written confirmation as to the reason the assessment was delayed, but no such documentation was ever provided to the worker.

[39] On June 11, 2014, Ms. P. was advised by the Society worker that to date she had not progressed with important parts of the Service Plan such as the mental health and addiction assessment. It was noted by the worker that Ms. P. had faced multiple traumatic events in her own life, both in childhood and adulthood, including losing her own children. Ms. P. expressed a desire to make changes in her life and feeling guilty for not having done so for her other children.

[40] In her Affidavit, Ms. P. acknowledges that the Society has continually requested that she obtain a mental health assessment. However, she now states that there is no basis for the Society’s claim that she has mental health issues as she has have never been diagnosed with a mental illness.

[41] Ms. P. also notes the difficulty in obtaining a mental health assessment. She confirms that she believed that she was on a waitlist, but that due to an error, she was not and so she has once again requested an assessment. Ms. P. also indicates that “just last week” she was advised that Quest no longer provides these assessments and that this must be done at the hospital. Ms. P. indicates that she “will be following through with this assessment”.

c) Lack of Stability, Supports and Appropriate Housing

[42] The Society has concerns regarding the mother’s choice of partners as in the past she was involved with known sexual offenders. This pattern continued as Mr. L. had also been convicted of sexual interference.

[43] During the current Society involvement, the mother has moved three times. The most recent move arose as a result of the paternity testing which confirmed that Mr. L. was not the father of G. Rather than moving into a shelter, Ms. P. began to live with two individuals who are currently involved with the Society and who are not able to care for their own child.

[44] Ms. P. confirmed that the current accommodations were bed-bug infested and a known “crack house” and she agreed that these were not appropriate accommodations for a young child.

[45] Ms. P. indicated that she was aware that she would need to obtain proper accommodations for herself and G., but there was no indication as to any steps taken to accomplish this.

[46] Ms. P. stated that her parents reside in Winnipeg Manitoba. She has two sisters, one of whom (Laura P.) is prepared to assist in any way that is needed. There is no indication as to how Laura P. would provide support.

[47] There are no other family or friends identified as being available to assist Ms. P. in the care of G.

d) Counselling

[48] The Society acknowledges that Ms. P. has made some effort to obtain some of the recommended services.

[49] Ms. P. was required to attend an anger management course. As of January 29, 2014, she was requesting a volunteer driver for the next day, to attend an anger management classes. She was reminded that notice of three days was required for such requests.

[50] On February 6, 2014, Ms. P. advised that she had missed a few of the anger management classes and may have to wait for the next session beginning in March 2014.

[51] The Society arranged for volunteer driver transportation on a weekly basis for attendance at the anger management classes. Ms. P. states that this is an ongoing service and that meetings are held on Monday evenings and she attends most meetings. There was no documentation provided to verify her attendance at the anger management course nor when same would be completed.

[52] Ms. P. has been attending counselling at Family Counselling Centre. The initial referral had been made on September 18, 2013. An intake appointment was scheduled for March 18, 2014, which appointment was cancelled in error by Ms. P. The next intake appointment was scheduled for May 7, 2014 and the counselling began on May 22, 2014 and has continued to date.

[53] Ms. P. has also attended two parenting programs including “Strengthening Families” through the Society as well as an 8 week Creative Parenting course through Bethlehem Place (November 6, 2013 to December 11, 2013).

Access

[54] Ms. P. commenced access with the child on […], 2013. The visits began as two days per week for two hours each, but in September 2013, an additional two hour visit was added. All visits have occurred on a supervised basis as the Society’s office in St. Catharines.

[55] Ms. P. has been consistent in attending all of her scheduled access visits since the apprehension of G. She has demonstrated an ability to interact with the child in a loving and affectionate manner during the visits.

[56] In January 2014, Ms. P. and G. began to attend the Positive Parenting Access Program for parents with infants in place of one of the visits. Ms. P.’s attendance at this program has been consistent and her participation in the program has been positive.

The Law

[57] To be successful, the Society must prove that there is no genuine issue requiring a trial. Rule 16 (6) of the Family Law Rules reads as follows:

NO ISSUE FOR TRIAL

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

[58] In determining whether a genuine issue exists requiring a trial, the court must review the entire evidentiary record.

[59] In response to a motion for summary judgment, the responding party must “put his or her best foot forward.” (See Children’s Aid Society of the County of Simcoe v. K.D. (2008) 2008 CanLII 7743 (ON SC), O.J. No. 763, pp. 9-11)

[60] Rule 16 (4.1) states the following:

EVIDENCE OF RESPONDING PARTY

16. (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.

[61] In hearing a motion for summary judgment, the court may weigh evidence, evaluate the credibility of deponents and draw reasonable inferences. (See Children’s Aid Society of Ottawa v. C.B. 2010 ONSC 6961, [2010] O.J. No. 5644, paras. 37-41)

[62] If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. (Rule 16 (6))

[63] The application before the court is a status review of the order of Madam Justice Scott dated November 19, 2013. Under review, the court may, in the children’s best interests, vary or terminate the original order; order that the original order terminate on a specified date; make a further order or orders pursuant to s. 57; or make an order under s. 57 (1) for legal custody of the child. (Sections 57, 64 and 65 (1) of the Child and Family Services Act)

[64] On a status review, the court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for her protection. The second consideration is the best interests of the child.

[65] In a status review application, the possible orders available to the court are as set out in s. 57 (1) of the Child and Family Services Act:

Order where child in need of protection

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

Supervision order

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

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

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

[66] The test to determine what disposition should be made is that of the child’s best interests. Subsection 37 (3) of the Act provides a non-exhaustive list of factors the court should consider in determining the best interests of any child.

[67] Always, when making an order, the Act specifically directs the court to employ the least disruptive alternative that is in the child’s best interests.

[68] Pursuant to s. 70, the court has the discretion to extend an order for Society wardship for a very brief period of time if such an extension is in the best interests of the child.

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

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

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

(2) In calculating the period referred to in subsection (1), time during which a child has been in a society’s care and custody under,

(a) an agreement made under subsection 29 (1) or 30 (1) (temporary care or special needs agreement); or

(b) a temporary order made under clause 51 (2) (d),

shall be counted.

[69] If the court makes an order for Crown wardship, the issue of access must be determined. Section 59 (2.1) of the Act directs that the court shall not make an access order to a Crown ward unless:

(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.

[70] The onus is on the person seeking access to satisfy the court that the relationship between the person and the child is beneficial and meaningful to the child and that access to the child will not interfere with the child’s possible adoption.

[71] The Society seeks to have the court consider past conduct of a person toward any child as provided for under s. 50 of the Child and Family Services Act , which states

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

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

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

Analysis

[72] The Society has invited the Court to use the judgment of Justice Walters as a marker for the progress made by the mother in addressing the protection concerns. In particular reference was made to paragraph 44 of that judgment which reads:

“I do not doubt the mother’s sincerity that she loves her children and does not wish to lose contact with them. However, as of the date of this motion for summary judgment, the children have been in care in excess of 700 days. On April 2, 2012, an order was made extending the time to permit an order for Society wardship. Another year has passed and nothing has changed. At the eleventh hour, Ms. P. has come forward showing that she has now made a referral to Quest Community Health Centre. However, that was only an intake appointment and nothing has been done to date. There is no timetable for when or if any further steps and assessments will be completed. There have been no courses completed. There is no up-to-date medical or mental health information before the court. No family members or other community supports have come forward to assist Ms. P. The court does not even have basic information regarding Ms. P.’s ability to satisfy the children’s basic physical needs such as shelter, income, medical and childcare.”

[73] Having reviewed that judgment in its entirety, this court is struck by the many similarities in the mother’s situation then and now. The issues of concern identified by Justice Walters included:

a) failure to complete any parenting programs;

b) failure to follow through and complete an anger management program and attend counselling at the Family Counselling Centre;

c) failure to complete a mental health assessment even though an appointment had been scheduled for January 2013, the mother had only attended for an intake appointment the day prior to the summary judgment motion being heard;

d) failure to complete an assessment to address her substance abuse, although she did provided the court with an appointment card from Quest Community Health Center showing a follow-up appointment later that month to obtain blood work.

[74] As noted by the mother’s counsel, Ms. P. is not in the same position as she was in April 2013, as she has now followed through on some of the Society’s recommendations. This is evident from the fact that the mother has attended and completed two parenting programs. She has also begun attending counselling at the Family Counselling Center. However, there was an eight month delay in the counselling getting underway, and while some of this was due to being placed on a waitlist, at least two months of the delay related to the mother having cancelled an intake appointment scheduled for March. Another improvement in the mother’s situation is that she has been attending an anger management course for more than six months. However, Ms. P. acknowledged having missed some of the weekly sessions in that time period, and there remained some dispute as to whether this course had ever been completed or whether this was an ongoing service.

[75] Other changes in the mother’s situation noted by her counsel, included that she is no longer in a relationship with Mr. L., who had a criminal record for sexual offences. However, this did not come about as a result of any insight by Ms. P. into the harmful nature of being in this relationship, but due to Mr. L. being found through paternity testing to not be the father of G. The separation came about as he no longer wanted to be in a relationship with Ms. P. and an incident of domestic violence against Ms. P., leading to criminal charges being laid against Mr. L. Since the end of this relationship in March 2014, and the loss of all financial support by Mr. L., Ms. P. has not been able to take the necessary steps to obtain suitable accommodations for herself and the child, nor does she have a viable plan for doing so in the near future.

[76] It was also noted by the mother’s counsel that in contrast to 2013, the mother now has support from her sister, Laura P. However, there was no indication as to the specific ways that she might be able to provide assistance to the mother in caring for an infant.

[77] While the follow through by the mother regarding the parenting and anger management programs and counselling can certainly be considered as a positive improvement, it is apparent that the mother is no further ahead than she was in April 2013 in addressing the serious protection concerns regarding her mental health and substance abuse. In these circumstances, it is appropriate for this court to take into consideration the decision of Justice Walters and the facts in that case, pertaining to the mother’s ability to recognize and address the mental health and substance abuse issues as this relates to the current protection proceeding involving G.

[78] The application before me is a status review of the Order of Justice Scott dated November 19, 2013. On the basis of the evidentiary record, I am satisfied that the child remains in need of protection and as a consequence requires a court order for her protection. As such the possible orders available to the court are as set out in s. 57 (1) of the Child and Family Services Act.

[79] G. has just turned one year of age. She is a very young and vulnerable child and has been in care her entire life. The only possible orders that could be made are to return her to the care of her mother or to make an order of Crown wardship with or without access.

[80] Although there is discretion for the Court to extend the time limits by up to six months, given the child’s young age and the mother’s lack of progress in addressing the protection concerns arising from her mental health and use of marijuana, I find that it would not be in the child’s best interests to grant such an extension.

[81] The mother’s position with regard to her substance abuse is concerning. She admits to continuing to use marijuana despite being told that complete abstinence was required to be re-united with G. and despite an acknowledgement in November 2013 of the necessity of abstaining from using all street drugs and agreeing to do so in subsequent Service Plans.

[82] Ms. P. states that her marijuana use is occasional, having decreased to only once or twice in the previous month (as of March 2014). The reliability of this is brought into question by the fact that in early April 2014 the smell of marijuana was detected by the Society worker in when she attended the residence, with the explanation being offered that it was coming from the neighbor’s dwelling. The court might be persuaded to ignore this incident, as Ms. P. is no longer living with Mr. L. who was an admitted marijuana user. However, that does not dispel the concerns as to the mother’s stated drug use and the reality of her actual drug use. The mother’s statements as to her drug use during her pregnancy with G. are informative. While the mother maintained that she stopped using marijuana completely when she learned of her pregnancy, this is in stark contrast to the meconium drug test results which suggest that marijuana was used into her third trimester.

[83] Similarly, when faced with the fact that the mother’s drug test results showed that cocaine was found, there was a denial by the mother of knowingly using cocaine and an explanation offered, which I am not able to give any weight to, absent expert evidence. While the interpretation of those results by Motherisk Laboratory was not conclusive as it could suggest infrequent use of cocaine, with the presence of benzoylecgonine, this suggested active use of cocaine. What is clear is the continued risky behavior of using street drugs, despite an acknowledgement that this must stop and would stand in the way of reunification with G.

[84] If, as the mother alleges, she does require marijuana for a medical purpose, one would expect that she would have proceeded with an application for a prescription to obtain medical marijuana. The mother’s comment that the process to obtain the license is too lengthy is yet another example of the mother’s inability to follow through, even though it might then allow her to establish a legitimate reason for the continued use of marijuana and the removal of this as a barrier to reunification with G.

[85] Finally, the mother has been aware since the prior protection proceeding in 2011 that her substance use has been a significant concern. Even in the context of this proceeding, the mother was referred to CASON for a drug assessment in September 2013 and it took the mother until July 2014, a period of 10 months, before she took steps to actually attend for the assessment. As before, only at the “eleventh hour” and the week before the summary judgment motion, the mother finally takes some action to address these concerns. On a summary judgment motion, a parent is required to put her “best foot forward” and to make a bald assertion that “no treatment is likely necessary” due to her minimal marijuana use is simply not sufficient to dispel the protection concerns.

[86] The other troubling aspect relates to the mother’s failure to obtain a mental health assessment. The court accepts that these are not easily or immediately obtained and there will undoubtedly be some delays in such assessments being completed.

[87] It is apparent that the mother was aware as early as April 30, 2013 when Justice Walters rendered her decision and no doubt was aware for most of the two years prior to that and while D. and F. were in the care of the Society, that a mental health assessment was necessary. When considering the steps taken by the mother and any delay in doing so, it has not simply been the one year time period since the apprehension of G., but in fact has been a much longer delay.

[88] In reviewing the affidavits of the Society workers, in November 2013, the mother appeared to be showing some insight into the fact that her inability to follow through in the past might have arisen from her mental health issues and recognizing the importance of proceeding with an assessment so that the necessary steps to address the issues could be taken so that what had happened with D. and F. (being made Crown wards with no access) would not be repeated with G.

[89] Unfortunately, this glimmer of insight was quickly lost. The same pattern of inability to follow through was reflected in the fact that despite being referred to Quest in September 2013, and assurances by the mother that an appointment would be scheduled in November 2013, this did not happen. When an appointment was actually scheduled for December 13, the mother missed the appointment. Repeated assurances by the mother that she was on a waitlist, turned out to be incorrect, due to an error and the fault of others, with no evidence being provided by the mother to verify this.

[90] As of the date of the summary judgment motion, when faced with the reality of an 11 month delay in obtaining the requested mental health assessment, the mother is now suggesting that there is no need for a mental health assessment as she has never been diagnosed with a mental disorder and that if it is still required, some additional time is required to complete same.

[91] Over the past year, it is abundantly clear that the mother has not been able to address the protection concerns relating to her mental health and substance abuse. While the court accepts that the mother loves G. and is sincere in her desire to be given an opportunity to parent her, having such strong feelings does not equate to an ability to provide for the proper care of an infant child. Given the emphasis in the legislation on the best interests of the child and the need for permanency and stability for young children such as G., time has run out for the mother to show that she is able to provide for the child’s physical and emotional needs. G. should not have to wait any longer to see whether her mother is prepared to give the protection concerns priority and follow through on remaining drug free and getting the help needed to address her own mental health and physical and emotional needs. G. needs to and should have permanence.

[92] Having considered the entire evidentiary record before the court, I am satisfied that there is no possibility currently or in the foreseeable future that G. could be placed in the care of her mother and that there is no genuine issue that requires a trial to be held as there is no realistic possibility of an outcome other than an order of Crown wardship.

[93] In arriving at this, the court has considered all available options and dispositions; the lack of progress of the mother in addressing many of the protection concerns; the lack of an alternative kin placement; the timelines under the legislation and no evidence being provided by the mother that she could realistically address the multiple and fundamental issues within those timelines even with a six month extension; and considering the best interests of the child; and the objectives of the Child and Family Services Act and the Family Law Rules: the only realistic option is an order of Crown wardship. There is no other or less intrusive alternative available that is consistent with the best interests of the child.

[94] The Society is seeking an order of Crown wardship, without access, for the purpose of adoption. Under the Act, once there has been a Crown ward order made, there is a presumption against access. The onus falls on the mother to satisfy the court that ongoing access would be “beneficial and meaningful” to the child. This must always be looked at from the child’s perspective and not from the perspective of a parent. There must be a demonstration that an access order would not impair a child’s future ability to be adopted.

[95] On the evidence before me, it is clear that the mother has exercised access to the child on a regular basis and that the access visits have gone well. They have continued to be supervised for the past year. As a result of this regular contact, there may very well be a relationship between the mother and the child, but there was no evidence presented that such ongoing access would be meaningful or beneficial to the child.

[96] There was also nothing in the material filed by the mother that would satisfy the second part of the test, namely that an access order would not impair the child’s future ability to be adopted. As Ms. P. has not been able to satisfy either of the elements under s. 59 (2.1) the presumption against access to a Crown ward must prevail.

[97] The Society has provided evidence from an adoption worker which confirmed that G.’s half siblings, D. and F., are in the process of being transitioned into an adoptive home. While this family would be given an opportunity to adopt G. and in an ideal situation, this would support the goal of keeping siblings together, if that was not a possibility, there are 27 adoptive families available to provide a home for a child of G.’s age and gender. Given her young age and that there are no identified special needs, the Society is confident that they would easily find an adoptive home for G. to provide her with the necessary stability and permanency.

[98] G. should not have to wait to see if or when her mother might be able to follow through and if or when she might be in a position to parent her. G. should not be required to remain in limbo between her biological family and an adoptive family. As mandated by the legislation, G. is entitled to the permanence and stability of a forever home.

Order

1. For the reasons set out above, summary judgment is granted.

2. G. J. P. L., born […], 2013, shall be made a Crown ward with no access, for the purpose of adoption.

___________________________

MacPherson J.

Released: August 25, 2014

COURT FILE NO.: 502/09

DATE: 2014/08/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION

Applicant

- and -

L. P. and

A. L.

Respondents

REASONS FOR JUDGMENT

MacPherson J.

Released: August 25, 2014