CITATION: Children and Family Services for York Region v. L.B., 2015 ONSC 2242

NEWMARKET COURT FILE NO.: FC-13-043738-00

DATE: 20150409

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN AND FAMILY SERVICES FOR YORK REGION

Applicant

– and –

L.B. AND K.B.

Respondents

Alison Moonsie-Mohan, for the Applicant

William K. Doodnauth, for the Respondents

HEARD: March 5, 2015

REASONS FOR DECISION

DOUGLAS J.

[1] The Applicant (hereinafter referred to as the “Society”) moves for summary judgment pursuant to Rule 16 of the Family Law Rules seeking a finding that the child C.B. (hereinafter “the child”) is in need of protection pursuant to s.37(2)(a)(i)(ii) and s. 37(2)(b)(i)(ii) of the Child and Family Services Act (hereinafter “the Act”).

[2] The child’s parents, the Respondents, oppose the motion.

[3] On consent of K.B. (hereinafter “K.”), unopposed by L.B. (hereinafter “L.”), the following statutory findings with respect to the child are made:

(a) The child’s full legal name is C.J.X.Z.M.B.

(b) The child’s date of birth is […], 2012.

(c) The child’s religion is non-Jewish, non-Catholic.

(d) The child does not have native status.

(e) The child was apprehended from her parents’ care on June 16, 2013 in Bruce Grey County but she was normally resident at that time in Newmarket, Ontario.

(f) L. is the child’s mother by birth.

(g) K. is the child’s father by birth and K. is a parent under the Act.

[4] The issues before me are:

(a) Is there a genuine issue requiring a trial in this proceeding?

(b) Is the child a “child in the need of protection” pursuant to s.37(2)(a)(i)(ii) and s.37(2)(b)(i)(ii) of the Child and Family Services Act?

(c) If yes in response issue (b) above, what is the appropriate disposition?

THE EVIDENCE

[5] Before me on this motion are many affidavits including:

(a) Affidavits of Shannon Reith sworn November 1, 2013, December 11, 2013 and November 6, 2014 (protection worker with carriage of the Society file from October 16, 2013 to July 8, 2014),

(b) Affidavits of Kimberly Biding sworn November 17, 2014 and January 9, 2015 (protection worker with carriage of the file from July 8, 2014 and ongoing),

(c) Affidavit of Katie Simpson (child protection worker with Bruce Grey Child and Family Services) sworn June 18, 2013,

(d) Affidavits of Josie Rose (family services worker employed by Children and Family Services for York Region) sworn June 17, 2013 and August 7, 2013,

(e) Affidavit of Tammie Milburn (registered nurse employed by Children and Family Services for York Region) sworn September 24, 2013,

(f) Affidavit of Dr. Doherty (child and parents’ family physician) sworn August 9, 2013,

(g) Affidavits of K. sworn December 19, 2014 and February 10, 2015, and

(h) Affidavits of K. and L. jointly sworn July 10, 2013, August 12, 2013, October 16, 2013, October 24, 2013, November 26, 2013 and December 24, 2013.

Evidence of Shannon Reith

[6] Ms. Reith was the assigned family services worker from October 16, 2013 to July 7, 2014. During this time concerns regarding C.’s parents persisted. The parents did not engage in any meaningful services or programs in order to improve their parenting skills. Despite the advice and therapeutic services that were provided to them, they did not make any gains and ignored all of the suggestions made by her, access workers and the family intervention team worker. The parents refused to engage in a Parenting Capacity Assessment (“PCA”) that had been ordered pursuant to s.54 of the Act.

[7] C.’s health and development improved after she was removed from the care of her parents.

[8] C. had been diagnosed with developmental delays that had been linked to a lack of stimulation at an early age. C. also suffers from a congenital heart condition. The parents’ response to C.’s medical needs, their lack of follow through with medical recommendations and advice, as well as their misrepresentation of medical recommendations have been concerning throughout the Society’s involvement and have placed C. at risk of harm.

[9] The parents have been accusatory, suspicious and un-cooperative with the Society throughout Ms. Reith’s involvement and have not acknowledged or demonstrated an understanding of C.’s development, her medical and developmental issues or their lack of parenting abilities.

[10] The parents’ communication with Ms. Reith was minimal and at times she was unable to reach K. on his telephone.

[11] C. was in the Society’s care from June 16, 2013 to September 24, 2013 when she was placed in the care of relatives (K.D. and P.T.) in a kinship services arrangement pursuant to a temporary supervision order. The kinship caregivers advised in December 2013 that they were not able to care for C. beyond the court date in January 2014. On February 26, 2014 C. was placed in another kinship home with K.’s brother, A.B., and sister-in-law, B.B. in Owen Sound on a temporary supervision order. C. continues in the care of A.B. and B.B. C. has been doing well in the care of her paternal uncle and aunt and they have expressed their intention to permanently care for C.

[12] The parents completed a parenting workshop in September and October 2013. Despite this, Ms. Reith saw no improvement in the quality of the parents’ access with C.

[13] According to the access notes for visits that took place from September 6 to October 25, 2013, there were recurring themes of poor interactions between L. and C. and between the parents. There was resistance to accepting and following through with advice, feedback and recommendations. There was a demonstrated lack of understanding of C.’s developmental needs, basic safety practice and parenting skills. This raised concerns regarding the parents’ capacity as the parents had in the past taken the child to the doctor but did not follow recommendations and despite attending the parenting program they demonstrated no gains in their parenting.

[14] In the fall of 2013 K. had not demonstrated bonding with C. He rarely held the child even when he was encouraged to do so. There was a marked absence of physical affection for the child demonstrated by either parent. On October 25, 2013 L. did not attend access due to illness but K. had access by himself and requested that the kinship mother assist him in the access room for the visit. The parents had been previously asked to attend access prepared with food, diapers, toys and hygiene products. On that date K. had forgotten to bring the “baby bag”. With some difficulty he changed the baby’s full diaper. K.’s interactions with C. were “awkward” and C. “screamed, kicked and reacted throughout the visit”.

[15] During the visits the parents verbally engaged C. only minimally, especially L. The parents appeared “zoned out” or emotionally absent from time to time. They rarely spoke to each other.

[16] Both the access worker and the kinship mother made suggestions to the parents that could improve their parenting including bringing books that were age appropriate, how to feed the child, how to play with her, her likes and dislikes and how to meet instrumental needs like diapering. These suggestions were ignored.

[17] In October 2013 an access worker spoke with K. about adjusting the child’s car seat harness to a safe position and tightening the straps. K. argued with the worker and did not follow through; however, L. did adjust the car seat as recommended.

[18] The parents were given literature about developmental activities that were appropriate for C. with a request that they review it and choose some activities for their next visit with C. K. promptly gave the material to the kinship mother rather than retaining it for his own use and edification.

[19] Despite the effort to provide useful information to the parents, at the next visit there was no change to the quality of access. K. attended but had not prepared any activities.

[20] During the visit in November 2013 the access worker suggested to the parents that they put a blanket on the floor in order to play with C. but K. indicated that they were not there to play with the child.

[21] The parents have failed to demonstrate an appreciation of basic safety skills; for example, in September 2013 K. offered C. a plastic bag for her to play with. Also, after being warned of safety issues with respect to cords associated with blinds, K. offered the cord to C.

[22] K. indicated his belief that that C.’s development had been stopped by her hospital intervention.

[23] C. has made tremendous gains following her apprehension yet her parents continue to engage with her as though she was an infant. They did not play simple games that would engage her. They did not engage in creative or fun activities with C.

[24] In October 2013 the child was observed to have grown taller and she had put on two pounds since going to the kinship home. The child was sitting and reaching for toys, pointing at objects, saying no, bringing toys midline, transferring them hand to hand and she made many vocalizations. Her skin had improved enormously and her tone was nice and pink. Her head had rounded out and she had developed quite a personality playing peek-a-boo.

[25] In November 2013 during an access visit the mother appeared to have spells where she “zoned out”. At one point she nearly dropped C. and walked past the highchair towards the wall when she attempted to put the child in the highchair.

[26] L. subsequently missed eight visits out of ten.

[27] On January 23, 2014 the Society received a letter from the parents’ counsel stating the parents were leaving for China for four weeks for the lunar New Year and as such they would not be attending access or court.

[28] Since she was removed from her parents’ care, C. began receiving services of a physiotherapist and her motor skills improved significantly. C. is also receiving services from a dermatologist and cardiologist at Hospital for Sick Children. Her skin condition has improved significantly.

[29] Following C.’s placement with B.B. and A.B., Ms. Reith attempted to contact K. in order to arrange access in March 2014; however, she could not reach him easily.

[30] The Children’s Aid Society in Owen Sound completed the kinship assessment for B.B. and A.B. There were no reported concerns with respect to this home.

[31] C. was registered to attend daycare in March 2014 and started attending once per week. C. loved the daycare.

[32] In April 2014 Ms. Reith again encountered difficulties in contacting K. Eventually she attended the parents’ home and left a letter in their mailbox requesting that she be contacted regarding the PCA.

[33] On May 9, 2014 K. confirmed that the parents were not going to go forward with the PCA.

[34] B.B. advised there were times when the parents attended their home in Owen Sound but did not come over to see C.

[35] K. would not confirm that he would be attending the child’s medical appointments. He indicated that C.’s lazy eye had been caused by the incident that started the police involvement that precipitated these proceedings.

[36] After receiving a report from Dr. Doherty the Society sent a letter to Dr. Doherty putting a series of questions to him about the content of his report. Dr. Doherty provided his responses in a letter dated October 14, 2013. Dr. Doherty responded to the letter but often his responses were vague and at times he did not answer the specific questions put to him at all.

[37] The parents completed a parenting workshop in September and October 2013. Having had the benefit of this workshop and having had the kinship mother model parenting behaviours during access and after receiving assistance from access workers and the family intervention team worker, there was still no improvement in the quality of the parents’ access with C.

[38] The access notes for visits taking place in September and October 2013 confirmed recurring themes of poor interactions between mother and child and between the parents, resistance to accepting and following through with advice, feedback and recommendations, lack of understanding of C.’s developmental needs, basic safety practices and parenting skills.

Evidence of Kimberly Biding

[39] Kimberly Biding (protection worker with the Society) first met K. on July 8, 2014. He was asked about L.’s whereabouts and he explained that she did not want to come because of the rain.

[40] In the summer of 2014 arrangements were being made for C. to have a checkup appointment regarding her cardiac condition. A pre-surgery test appointment was scheduled for September 2014 with surgery possibly the following day. This appointment was cancelled and rescheduled for October 1, 2014. On September 10, 2014 K. confirmed that he was not opposed to C.’s appointment for testing. His only concern was that C. be subjected to less sedation.

[41] B.B. attended with C. for her cardiac testing. She did a very good job keeping C. quiet during the testing. K. was sitting outside the clinic. Ms. Biding left K., B.B. and C. there so they could have a visit before the scheduled appointment with the doctor. When the worker returned K. was waiting for B.B. and was changing C.’s diaper. When B.B. returned to the waiting room with C., B. was the one who sat and coloured with C. while K. looked at a magazine. B. suggested to K. that he could come and colour with C. At first he said no, that she seemed fine, and he continued reading his magazine. After a few minutes he walked over and sat with C. and started colouring with her. B. then came over and sat with Ms. Biding. C. wanted to walk around the waiting room so K. walked around with her.

[42] During the subsequent meeting with the doctor, K. was able to settle C. for a minute, but she became very upset and wanted B. B. who held her and settled her. C. fell asleep during the appointment with the doctor. The doctor indicated that C. was doing very well but he could still hear a heart murmur and that she still needed to have the duct closed but that he was prepared to wait six months to reassess her needs.

[43] K. then spoke to the doctor about a test that he wanted to have done on C. to determine if C. has sensitivity to the metals that were used in surgery and that this was a simple blood test. The doctor indicated he had never heard of the test.

[44] The doctor explained that C. had three issues with her heart: one was at the bottom of her heart, and would not give C. any difficulties unless she decided to become a deep sea diver. The doctor also explained that C. had a leak, and the duct would not close; if they closed the duct (via surgery) that should also help the leak. The doctor said that the leak seemed to be getting better which was the reason for him focusing on the duct. The doctor indicated that if this did not improve in six months, C. would need surgery.

[45] B.B. provided a summary of the access exercised by the parents. The frequency of visits had been decreasing as well as duration. L. had last seen C. on May 4, 2014.

[46] From the onset of Ms. Biding’s carriage of this matter, neither parent had demonstrated any interest in working with her with a view to getting C. back in their care. L. had been absent from her daughter’s life since May 2014. Neither parent adhered to the court ordered PCA.

[47] She received information from B.B. on January 9, 2015 advising that neither parent attended for C.’s second birthday. In the month of November 2014 K. visited with C. for about an hour on or about November 1, 2014. Only K. visited C. on December 4, 2014. The parents did not bring presents for C. for her birthday or for Christmas. A neighbour of the parents in Newmarket had sent some presents for C. with K.

[48] After B.B. had “done all the leg work to arrange for the blood test that Mr. K.B. wanted for C. prior to her surgery,” when advised that he had to pay between $800 to $1,000 for it as it was not OHIP covered, K. refused to pay for the blood test.

[49] L. had been “formed under the Mental Health Act” at about 2:00 a.m. on January 9, 2015. She had been taken to Southlake Regional Health Centre.

[50] C. has been in a very stable, nurturing environment with her aunt and uncle who are prepared to care for her long-term. The protection concerns remain unaddressed.

Evidence of K.B. and L.B.

[51] The parents deposed that C. had been seen by many health care workers before May 7, 2013. The parents had not been advised by any health care professionals that C. had a heart condition prior to the CAS involvement.

[52] On May 7, 2013 while at Southlake Hospital C. was given in excess of 600 ml of intravenous liquid pumped into her at 20 ml per hour. At the Hospital for Sick Children C. was given more intravenous liquid in excess of 2500 ml, pumped into her at 30 ml per hour. It is K.’s “understanding” that this extra liquid pumped into her at such a high rate of speed can increase her blood pressure and it is his further understanding that this rise in blood pressure caused her to have issues with her heart.

[53] There were two medications prescribed for C., an anti-itch medication to be applied orally and a topical cream. It was the parents’ understanding that they were to administer C.’s anti-itch medication as needed.

[54] The parents believed that they attentively followed the directions of the health care professionals following C.’s May 7, 2013 visit to the Hospital for Sick Children.

[55] A Society Worker told the parents that they were going to “give C. away and adopt her out”. This comment scared the parents and really upset L.

[56] Ms. Reith never offered to assist the parents by making any referrals for services or counselling. To date the parents have not been provided any services for C.

[57] No medical opinion has been provided confirming any link between lack of stimulation and observed delays.

[58] After C. came into the Society’s care she became covered in red spots, rashes and major scratches.

[59] On June 16, 2013 at the Wiarton Hospital the doctor stopped C.’s medications because she felt that C. did not need them as her skin looked fine. At that time there were no issues with C. in the parents’ care.

[60] C.’s heart issue started at the Hospital for Sick Children. It was not detected before that time. The staff at the Hospital for Sick Children never advised the parents that they had done anything neglectful. C.’s paternal aunt and uncle offered to care for C. because their former lawyer suggested to the parents that kinship is better than foster care; however, the parents do not like either option.

[61] The parents did attend the parenting workshops held in September and October 2013; however, this workshop was mostly for newborn children to six months of age and C. was ten months old at the time.

[62] Regarding the October 25, 2013 visit with C., L. was not feeling well and decided not to go. K. got “mixed up” going on his own and forgot to bring the diaper bag. C. needed to be changed upon his arrival. He did not have any diapers and so he asked the kinship mother if she could help. He did not change the child with difficulty. C. “screamed and kicked because she is an infant”.

[63] The only time that L. was “zoned out” was when she was “stressed about the super typhoon that was going to hit her homeland where her Mom and Dad lived”. L. was “worried about her family and was stressed with the CAS involvement as she became upset every time she thought about C. and how she has had to suffer so much”.

[64] The parents did not ignore suggestions that could improve their parenting. The kinship mother is hard to understand.

[65] Regarding adjustment to the car seat, the seat strap was twisted and he had to make it right. He did not finish it in the time the worker thought it should have been done so she assumed that he was not doing anything but he was fixing the car seat strap so that C. would be made safe.

[66] The Society gave the parents a list of activities with C. but assumed that since the kinship mother has C. 162 hours a week and the parents see her for less than six hours per week that the activities were meant for the kinship mother. The parents did not feel that it made sense for them to use any of their short time with C. to do exercises.

[67] At the October 23, 2013 visit the Society “demanded” that they put C. on the floor and play with her. C. did not want to play and was fussy and this should not be held against the parents.

[68] The parents had been doing exercises with C. for the five months before the Society had become involved with the family. He believes that the Society is “picking at” the parents’ interaction with C. because they “appear socially different”. It does not mean that they do not bond with C. just because they are not “animated people by nature”.

[69] Regarding the plastic bags, C. enjoyed touching the plastic bags, not playing with them. These are two different things. C. would hold the bag for perhaps 20 seconds and then lose interest. She liked the feel of it. Regarding the cord for the blinds, it was a chain, not a cord. C. enjoyed the shiny chain because it was sparkly and she likes shiny and sparkly things. She would hold the chain in fascination and at times the parents would let her fall asleep holding it but were always there to watch her.

[70] Regarding the suggestion that the parents were treating C. as though she were an infant, C. was only ten months old at the time and he considers this to be an “infant”. C. was in a “mood” at the time and she did not want to be on the floor. L.B. sat in front of her and Mr. B. sat behind C. They only see C. six hours a week so it takes time for them to find out what she likes and dislikes. They were simply trying to see what C. wanted to do.

[71] It is not surprising that C. looks bigger and has put on weight as she is growing. She would look bigger and put on weight under her parents’ care as well. He feels that C. is not doing as well as when she lived with her parents as she is not gaining the weight that she should at this point. According to the World Health Organization her weight to age ratio was better under her parents’ care than it is now.

[72] The Society never bothered to reschedule visits that the Society cancelled. They only increased the access after the judge questioned them on it. L. has only missed eight out of 94 visits up to February 28, 2014.

[73] The parents went to China for a break as they had not been there since 2005 and it appeared there was not to be any progress in the CAS matter. The parents were very “stressed out” and felt that it would be good for L. to go home.

[74] C.’s skin was “totally clear” on June 16, 2013 when the Society took C. into their care. They had her for approximately 8.5 months and had professionals looking after her but were still unable to get her skin fully under control. This shows that C.’s eczema is hard to manage. After the parents got the Hospital for Sick Children to reduce the strength of her cortisone her movements started to get progressively better. When the Society took her they went back to the high strength cortisone and her movements “went down again”. Medications do affect C. so the less medications that are used on her as time goes by, she will improve significantly by default and not because she is being treated any better in kinship care.

[75] No one has ever been unable to get in touch with him or leave him a message on his home phone. There is an answering machine there.

[76] Sometimes A.B. and B. B. go out on week-ends and the parents are not able to see C. or C. is sleeping when they arrive or C. or B.B. are not well and the parents cannot attend.

[77] C.’s left eye has been different from her right eye since May 7, 2013. The left eye was the reason they went to the hospital as they were concerned about her eye. No one has ever acknowledged the parents’ concerns about it.

[78] K. did not say that he would not sign consents for C.’s blood work or treatment. He was only concerned about excessive sedation.

[79] Regarding the cardiac testing, K. settled C. but then the doctor put the cold stethoscope on her and she got startled and became upset. K. did not upset her.

[80] The Society has not shown any kindness or interest in working with the parents. The Society has not addressed any of the parents’ concerns. They do not show any sign of feelings that one would expect regarding parents and their baby.

[81] The parents would like C. returned to their care. K. would hire a nanny to assist them in taking care of C. until the parents become accustomed to caring for her again.

[82] L. was taken to Southlake Regional Health Centre by the York Regional Police on January 9, 2015. “L. must have had a dream that Prince William and Prince Harry were in trouble and needed assistance and she called York Regional Police (911) to get some help.” The police attended the parents’ home and determined that L. should go to Southlake.

[83] L. was admitted to the mental health unit of the hospital and he was advised that she was admitted on a “72 hour paper”. This was then extended to a “two week paper” on January 12, 2015.

[84] L. recounted difficulty in securing legal assistance while at the hospital. She wanted a Chinese interpreter to assist her in ensuring there was no misunderstanding.

[85] On January 24, 2015 she was released from hospital. K. told L.’s doctors that she was under “a tremendous amount of stress which started on May 7, 2013 when the troubles with the Society began”. The stress of having C. taken away from the parents had taken a tremendous toll on L.

[86] L. is “no longer the same person that she once was”. It is likely that L. will never get over this as she has lost so much and all of her dreams of bonding with C. and her dreams of C. learning the Chinese language have been lost.

[87] He was not privy to any medical information or documentation as it could not be released without L.’s consent.

Evidence of Katie Simpson

[88] Ms. Simpson deposed that on June 16, 2013 the Bruce Grey Child and Family Services received a referral from York CAS to request assistance in apprehension of the child.

[89] York CAS obtained a warrant to apprehend the child on June 14, 2013. The child was apprehended by Wiarton Ontario Provincial Police on June 16, 2013.

[90] Ms. Simpson attended Grey Bruce Health Services Wiarton Hospital and observed the child being medically assessed. L. visited with C. in the medical room providing her feedings, diaper changes and affection. L. was supported by B. B. K. subsequently attended. He held C. and provided her physical affection, changed her diaper and fitted her into her car seat.

[91] The attending physician advised that the information the parents provided with regards to the prescribed medication for C. and what C. presented was questionable. There were no concerns of the child’s dehydration. There was no visible bruising. There was no concern with heart sounds. The child did not appear to be hungry. The child did have eczema covering her body. The child presented with a flattened posterior skull which was possibly due to a lack of “tummy time”. The child was observed to have poor head control in that it was apparent she had difficulty lifting her own head while being held by her mother.

[92] C. was transported from the hospital to a foster home.

[93] In K. and L.’s affidavit sworn July 10, 2013, he disagrees with the observation that there was “oozing” on C.’s head, indicating C.’s head was dry. He denied that there was scabbing. The red rash was a “flare up because she has eczema”.

[94] At the Newmarket hospital given that C.’s condition was rapidly improving, this demonstrated that there was no infection as suggested by the medical staff.

[95] They did not switch to 100% goat milk; rather, they were only giving a little amount to C. and the goat milk was not raw. The goat milk was used with other things such as formula, breast milk, glass jar food, etc.

[96] It is not true that the parents were reluctant to use the cream. They were concerned over the amount and power of the cream.

[97] K. disagrees with the “clutter” allegation. The parties were in the process of moving things and cleaning up one area at a time.

[98] The parents followed the instructions from the Hospital for Sick Children to the letter without fail.

[99] After the potency of the cream was lowered C. started to come back with energy and happiness.

[100] In their joint affidavit sworn August 1, 2013 the parents indicate that there were many appropriate medical attendances following C.’s birth to address issues of mild jaundice, flat head, diaper rash, rash on her face, facial eczema, contact dermatitis, child scratching herself.

[101] Regarding the alleged “control issue” between the parents, L.’s first language is not English. She does not always understand what is said to her and as a result she often defers to K. because he has a ready understanding of the English language.

[102] The parties’ belief that there was a correlation between the prescribed medication and C.’s heart condition was based on their own research.

[103] When C. was observed in their care to be lethargic, it was because the observations were conducted after she had been fed and at such times she would typically be tired and present with a low level of energy.

[104] K. denies ever having said that his cell phone company was tracking him; rather, he was trying to explain that sometimes he was not able to receive phone calls on his cell phone.

[105] Regarding the foul smell in the home, that may be due to “Asian foods and spices cooked and perhaps dirty diapers in the garbage that had to be thrown out”.

[106] The parties did tell the Society what they fed C. and were perfectly forthcoming. They explained that they gave her solid food such as peas and brown rice. They tried to feed her meat as suggested by the Society; however, C. would spit it out indicating she was not ready for it. The parents were going by the Health Guide of Canada.

[107] The parties took C. outside for walks around Fairy Lake but they did not take her out needlessly on cold winter days.

[108] The Society misinterpreted K.’s comments regarding not trusting the medical profession. He was simply trying to express concern about the inconsistent information he was receiving.

[109] The affidavit evidence included multiple photos of the child on her tummy holding up her head and turning it.

Evidence of Josie Rose

[110] Ms. Rose deposed that the Society’s involvement with this family commenced on May 7, 2013 when a nurse at Southlake Regional Health Centre contacted the Society with serious concerns for C. who had been seen that morning at the emergency department by an ER physician. The nurse reported that the child was at imminent risk and her parents had removed her from the hospital against medical advice placing her at further risk.

[111] The child had presented at the hospital with facial injuries. The nurse described the injuries as scratches and although the child was known to have eczema, the medical staff was worried because the child had a flat effect and she had no physical movement. The child had been conscious but she displayed signs of neglect as she was quite listless and she appeared to be malnourished.

[112] The treating physician told the parents that he wanted to admit the baby to the hospital and to refer the child to a paediatrician as the scratches could become infected. K. had indicated that if doctors could not fix their daughter’s face they would leave and go home. The parents did in fact leave the hospital with the child who had not been formally discharged.

[113] The police were contacted by the Society who attended at the parents’ residence. The home was extremely cluttered with no clean surface. The police and paramedics observed C.’s face was covered in eczema.

[114] K. was still opposed to C. being taken to the hospital. C. was placed in the ambulance and accompanied by L.

[115] The parents subsequently explained to the police that the information had not been clearly communicated to them and that was why they initially left with the child. K. indicated that the child had battled with eczema almost since birth and the parents were of the belief that it was due to the formula the child had been consuming. The parents stated that they had tried many different types of formula as well as visiting their family doctor just one week prior.

[116] L. advised that their family doctor, Dr. Robert Doherty, had told them that there was no infection and he had referred to them to the Hospital for Sick Children. They were waiting for an appointment that was scheduled for September 2013. L. indicated that C. had been seen by a skin specialist in April 2013 as referred by Dr. Doherty. The parents indicated the doctors had all explained that C.’s skin condition was due to the eczema and no one advised them that there was an infection.

[117] The parents explained that earlier that night they woke to find C. scratching her face just under her left eye. The parents immediately used water to wash off the blood and took her to the ER at Southlake Hospital. They explained that the doctors had informed the parents that they were unable to treat the scratch wound due to her severe eczema. The parents confirmed that they had been told that a paediatrician had been called to see C. The parents had been concerned about C.’s fresh wound, particularly as it was so close to the eye, and were frustrated as they felt the doctors had been dismissive of the scratch.

[118] The parents stated that they had decided to take C. home as they believed they were not being helped at the hospital and wanted to take C. to the hospital in Barrie that morning. No one had told them clearly that they had to wait for the paediatrician.

[119] When the police and workers arrived at the hospital, L. had been holding C. in her arms and C. was observed to have yellow oozing scabs on her entire scalp and covering her face, a red fresh scratch was observed under her left eye, a red inflamed rash was noted on her torso and body, and her left eye appeared to be only able to open a small amount. A strong, foul odour emanated from the baby. L. appeared appropriately concerned about C.’s health and wellbeing and continued to question why the doctors had not treated the scratch on the child’s face.

[120] A paediatrician assessed C. and indicated that C. had a bad infection that required immediate treatment at the Hospital for Sick Children. The doctor made a telephone call to Sick Kids Hospital and arranged for C. to be transported to the hospital by ambulance for a proper assessment and further treatment. After some initial hesitation arising from frustration about the inconsistencies, the parents agreed for C. to be transported to Sick Kids Hospital for treatment.

[121] The parents explained they had been feeding C. goat’s milk as they found it had cleared her skin up. Medical staff explained to the parents that goat’s milk may not be the best for the child because of its lack of nutritional value for a growing baby. The parents fed C. goat’s milk anyway while at the hospital.

[122] Hospital staff admitted C. into the hospital for treatment including intravenous antibiotics for the infection, steroids and daily baths (twice a day) for the eczema.

[123] The parents both agreed to the child’s admission into the hospital and L. appeared to be relieved and in better spirits that the child was receiving treatment. The parents signed consents for the Society to follow up with Sick Kids Hospital and their family doctor.

[124] The parents continued to question and challenge the doctor’s assessment of C. and did not believe that C. had an infection, despite the fact that C.’s skin was rapidly improving under the treatment at the hospital.

[125] A case conference was held at Sick Kids Hospital on May 13, 2013 with the parents. The doctors all clearly discussed that C. had been admitted and treated for an infection and they stressed the importance of using the medicated cream as prescribed to help address her eczema. The dietician and dermatologist also emphasized that there was no correlation between foods and eczema as the parents strongly believed that C.’s eczema resulted from drinking formula and that was why they later switched her to goat’s milk. The doctors all expressed their concern to the parents regarding feeding C. goat’s milk and referenced many research papers that discussed the high risk of anemia and other difficulties arising from feeding goat’s milk for children under one year old. The parents verbally expressed their understanding at the case conference but did not appear convinced by what the doctors were telling them. They did agree to follow the cream regimen for C. to address her eczema.

[126] C. was discharged on May 14, 2013.

[127] The care team at Sick Kids Hospital also discussed other concerns with the Society including L.’s lack of bonding and attachment with C. as she did not hold her often. They shared concerns regarding L.’s mental health as they felt she displayed some paranoid behaviours at the Hospital such as believing people outside her room were watching her. Control issues between the parents were also a concern as L. refused to make any decisions without her husband. Their biggest concerns were for the child’s delayed development as observed while in hospital.

[128] Following C.’s discharge from the Hospital it appeared that the parents had continued to follow through with using the medicated cream and Vaseline as prescribed as C.’s skin was observed to have significantly improved; however, C.’s development continued to raise great concerns as she presented as being very delayed. This included limited head control, no facial expressions, a flat affect, limited muscle tone and strength and an extremely flat head. It was suspected that the parents did not stimulate the child enough at home. The parents admitted they did not put C. in “tummy time” often as they feared she would scratch herself due to her eczema. The parents continued to fixate on their strong belief that her delays were due to the medicated cream for her eczema.

[129] The family met with Cathy Nash, a nurse practitioner from the family health team in Newmarket on a weekly basis at that time. Ms. Nash worked with the family doctor, Dr. Doherty, and had been involved with C. since her birth. Ms. Nash and Dr. Doherty share the same concerns regarding C.’s development and the parents’ reluctance to receive proper treatment.

[130] The family continued to have follow-up appointment at Sick Kids with the dermatology clinic. During C.’s admission at Sick Kids it was discovered that she has a heart murmur and that there was an abnormality in the left ventricle of her heart. C. was being seen by a cardiology clinic at Sick Kids as well. It was likely that C. would need to have heart surgery in the near future.

[131] The child protection concerns were verified as the parents had neglected to use the prescribed cream in the past as instructed, which had exacerbated the child’s eczema. The parents continued to be reluctant and hesitant to utilize services to help with the child’s severe, delayed development. They had also been resistant to feeding C. the appropriate foods to ensure that her nutritional needs were met.

[132] During a meeting on May 30, 2013 both parents were very withdrawn and C. appeared lethargic and floppy. She did not reach for objects or respond to her mother who was shaking a rattle in front of her. Her skin did look better and hydrated. K. mentioned that prior to going to the hospital, C. was walking and talking, saying “I love you” and “hello” at four months. He also mentioned that C. was reading books and not interested in baby toys but now she had lost all those abilities because of the cortisone cream and her visits to the hospital.

[133] When questioned about C.’s daily routine and what she ate, her parents were not very forthcoming. K. questioned the worker about her nursing credentials and her work title. He also stated that his telephone would stop working because the communications company was tracking him through his phone. The home was quite messy with a foul odour. There were a lot of boxes and items piled up high against the wall and a lot of clutter. The floor was dirty and cluttered with lined up boxes of water bottles.

[134] At the next meeting on June 11, 2013 the child seemed to be deteriorating. Her skin looked dry, red and she had a greyish colour to her face. When asked about what C. was eating the parents were again not forthcoming. K. was resistant to suggestions of appropriate diet for C., blaming the hospital experience for delaying her development by two months. The importance of this issue was explained but K. refused to listen. K. was provided nutritional information from Health Canada which he accepted. K. stated they were not always giving C. the medicine prescribed because she did not need it although her skin was dry and red. He said that the internet said that cortisone cream was the cause of C.’s heart defect and when she got a needle she would get an infection.

[135] The worker asked to hold C. but K. refused. C. was observed on the ground on her tummy and she did not possess the skills or muscle tone to raise herself, her head or to roll over. K. stated that when strangers were not around she was able to talk, walk and roll over.

[136] K. indicated that none of C.’s extended family had seen C. and her parents did not like to take her out of the house other than for medical appointments. K. said that the medical profession was not to be trusted because they did not tell the truth or that they only told half-truths.

[137] Based on the above concerns it was decided to seek a warrant to apprehend C. The Society was of the view that C. was at risk of harm if she continued to reside in her parents’ care. It appeared both parents may be struggling with mental health issues; the parents were non-compliant with the advice from medical professionals and the Society. The family was fairly isolated so there were no people with whom a safety plan could be developed. C. was extremely vulnerable due to her very young age.

[138] The affidavit of Josie Rose sworn August 7, 2013 indicates that despite the content of the parents’ affidavit sworn August 1, 2013, the medical staff noted that there was a flat side to C.’s head at the time of her birth. C.’s medical records make no mention of this condition at the time of the child’s birth. Further, a practitioner’s note of December 20, 2012 notes that the parents declined a referral for a lactation consultant and frequent follow up for the assessment of weight gain due to the holidays at that time. This refusal of services has been a consistent theme with the parents.

[139] On February 5, 2013 the child was seen at a walk-in clinic and the doctor recommended that the family take the child to the emergency department due to her presenting concerns. The parents refused to do so for fear of infections. Instead they purchased Aveeno cream to apply to the child’s skin. The use of hydrocortisone cream 1% and Vaseline was recommended. The parents did not follow through with the community services and the medication recommended.

[140] The parents did take the child to medical appointments but the protection issue was that they failed to follow recommendations for the treatment of the eczema and chose to believe the child’s skin condition was as a result of her diet despite what was being told to them by medical professionals.

[141] Regarding the child’s delays, the parents’ position has been that the child had been meeting all her milestones and all the observed delays that C. had been demonstrating were as a result of the cortisone creams that had been administered to her.

[142] C. was a child in decline when she was apprehended. The parents had changed her formula numerous times, they were feeding her goat’s milk that did not have the nutrients that she needed and they were not following the medical recommendations. The child at six months was about four months developmentally behind due to lack of stimulation.

[143] Since C.’s apprehension she has made startling gains that demonstrate that the cortisone cream that is being used on her since that time had not negatively impacted her development. The child responded well to the application of the medication such that the eczema is being controlled. The foster mother has been following the recommended skin care regime, she has been feeding C. solids and formula and the foster mother has been spending a considerable amount of time stimulating the child. After just being in care for five days, the foster mother reported noticeable improvements to C.’s appearance. C. is still significantly delayed. She cannot consistently roll over but she can finally sit up on her own to eat. Her affect is no longer flat. At first she appeared to be startled easily by noises such as voices or laughter, but now she responds to voices and the sound of laughter.

[144] On June 24, 2013 paediatrician Dr. Levine determined that the child was significantly delayed due to lack of stimulation.

[145] The parents never followed through with a referral for early intervention services for C.

Evidence of Dr. Doherty

[146] The affidavit of Dr. Robert Doherty sworn August 9, 2013 indicates that he is the family physician for the child. He was contacted by the Children’s Aid Society but did not tell them that he had concerns regarding C.’s development or that the B.s were reluctant to receive proper medical treatment. He was not concerned about C.’s weight. She was within the average for her age. He did not feel she was malnourished. The parents were following his directions regarding adding formula to her diet. He did not feel that C. was behind in her development. His only concern was that C. suffered from a severe case of eczema.

[147] The parents brought C.’s flat head to the attention of Dr. Doherty. It was discussed specifically on February 2013. This was not an unusual occurrence in infants. Advice was given to the parents on what they should do.

[148] He has been K.’s family physician for 30 years as of July 2013 and L.’s physician for approximately nine years. He did not feel that any psychological issues or concerns were present. He found the parents to be receptive to his instructions although they did not always follow his advice exactly.

Evidence of Tammie Milburn

[149] The affidavit of Tammie Milburn sworn September 24, 2013 indicates that she reviewed video clips of C. provided by the parents in an effort to demonstrate that she was not in fact delayed in her development but was meeting her milestones.

[150] A video dated June 3, 2013 showed C. at six months of age. C.’s head sagged backward or forward when not supported which was consistent with the development of a one month old infant’s skill. C.’s arms and legs movement was consistent with the skills for a two month old. C. began fussing and there was no response from K. C. arched her back and turned away when she had had enough interaction which was consistent with the emotional skills of a four month old. The only vocalization heard on the video was fussing. At her age C. should be babbling double consonants.

[151] The second video showed C. at approximately six and a half months of age. C. was observed lying on her tummy with her arms extended backwards. K. brought her arms forward and propped her upper body up by placing her arms under her chest so she was resting on her forearms. At her age at that time C. should be lifting her head and chest when on her tummy and extending arms out front. She was not observed independently pushing her upper body up with her arms.

[152] In another video showing C. at six and a half months of age she was observed reclining in a rocking bouncy chair. She was not strapped into the seat, posing a risk that she might fall out and injure herself. She kicked out her legs but did not bring her arms to midline nor did she have control over her arms which would be a skill for a three month old. Her vocalizations were consistent with the skills of a one month old.

[153] In another video showing C. at approximately six and a half months of age she was observed swiping at her toys on the play gym which was consistent with the motor skills of a four month old child. C. was not observed turning her head, rather just following with her eyes.

[154] In another video when C. was approximately six and a half months of age she was observed on her tummy and K. brought her arms from her sides and propped her arms under her chest so her chest could rest on her forearms. She was not observed actually pushing her upper body up herself while on her tummy, something she should be able to do at four months of age. C. was observed smiling when she heard her mother’s voice. C. was not heard making any laughing sounds, something that babies should be doing by four months of age.

[155] In another video taken when C. was approximately six and a half months of age, toy rattles were shaken around her and C. was not observed tracking them or reaching for them which is a skill in the three month age range. L. brought her hands next to C. but C. was not observed responding or looking at her mother.

[156] Some of the developmental milestones for a six month old include rolling from back to side, sitting with support, using hands to grasp, reach, bang and splash, bringing hands or toys to mouth. In the six videos reviewed by this deponent, none of these developmental milestones was observed.

[157] On February 5, 2013, Ms. Nash had made subtle recommendations for services for the parents to address C.’s development, none of which was pursued by the parents. K. stated: “You can refer, but whether or not we use it is another thing.”

[158] Following apprehension and placement in the foster home, C. was observed to have pink skin tone. She was grabbing for toys midline, making eye contact with the foster mother, reaching for toys when placed on her tummy, holding her head midline when supported in sitting position by foster mother and tracking side to side by turning her head.

[159] At an early intervention services intake appointment in August 2013, C. was making babbling sounds, sitting upright independently for about eight minutes, exploring her environment and reaching for toys.

[160] In September 2013 C. was observed exploring toys and buttons on an exerciser with both hands, reaching for and hanging onto toys with both hands, grabbing for a toy midline, transferring hand to hand and examining it, rolling back to front independently and pulling hands out front palms flat on ground and pushing her upper body up off ground using her arms, sitting upright independently on floor, smiling and animated when exploring toys, smiling at nurse and kin parents and sitting upright strapped into a highchair anticipating spoons of food. C.’s skin was observed to have red scratch marks on her arms, upper thighs, ankles but her face remained clear. Her skin felt moist and there was no overall redness on her body as there had been noted prior to C. coming into care.

[161] C.’s weight on discharge from Hospital for Sick Children May 14, 2013 was 13 pounds, on June 24, 2013 was 13.15 pounds, and on August 1, 2013 was 15 pounds.

POSITIONS OF THE PARTIES

[162] The Society’s position may be summarized as follows:

(a) Under Rule 16 of the Family Law Rules if there is no genuine issue requiring a trial the court shall make a final order accordingly. The burden is on the Society as the moving party to show that there is no issue requiring a trial for final determination. Once the Society demonstrates on balance of probabilities there is no genuine issue requiring a trial it becomes the task of the responding parties to lead sufficient and cogent evidence to avoid an order for summary judgment.

(b) It is appropriate to grant summary judgment when the result is a foregone conclusion.

(c) The child is in need of protection as a result of the parents’ consistent failure to follow medical directives. Instead, the parents scoured the internet for information to contradict medical directives. The parents presented as paranoid and mistrustful of authority.

(d) When the child was apprehended, she was in serious decline. Following apprehension she has thrived.

(e) The Society seeks a deemed custody order. The child has not been in her parents’ care since June 16, 2013. She has been placed with the paternal aunt and uncle in Owen Sound and she has been residing in their care since February 20, 2014 following a kinship assessment. The child has been flourishing in that placement and the kinship caregivers are prepared to care for her long time. The kinship caregivers are also prepared to accommodate access by the parents.

(f) The parents have demonstrated that they will not work with the Society and that court orders are not meaningful to them. They have not followed the Society’s recommendations and directions regarding childcare improvements. They have disobeyed an order that they participate in a parenting capacity assessment without explanation.

(g) The mother has not had any contact with the child at all since May of 2014. The father’s contact has declined over time and has been inconsistent.

(h) The mother was “formed” under the Mental Health Act on January 9, 2015 and remained hospitalized until January 24, 2015. She has not provided any medical evidence that can speak to her mental health issues. She has filed no evidence in response to this motion.

[163] The parents’ position may be summarized as follows:

(a) There are genuine issues for trial. Assessment of credibility is required, especially regarding the parents’ perspective regarding care of the child and medical evidence.

(b) There is no clear medical evidence that the parents have been neglectful. The evidence shows that the parents were seeking out medical care, conducting research and asking questions. They were being prudent by asking the questions they did.

(c) The mother’s access was regular until January 2014 when the parents went for a trip to China. Up to that point of a total of 94 visits the mother only missed eight.

(d) The father continues to attend medical appointments regarding the child. He co-operates regarding consents.

(e) The father has improved his play with the child.

THE LEGAL FRAMEWORK

[164] Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:

• 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.

• 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 trial.

• 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.

• 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.

• 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.

[165] Rule 16(6) 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.

[166] On a motion for summary judgment, 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 society to show that there is no genuine issue for trial. Children’s Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) per Gordon J.

[167] Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child’s future. Jewish Child and Family Services of Toronto v. A.(R.) 2001 O.J. No. 47 (SCJ) per Lane J.

[168] The court’s role on a summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material requiring a trial. Because summary judgment is now explicitly contemplated by Rule 16, this may “broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness of summary judgment.” Children’s Aid Society of the Regional Municipality of Waterloo v. T.S., [1999] O.J. No. 5561 (Ont.C.J.) per Hardman J.

[169] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. 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] O.J. No. 4736 (Ont. C.J.).

[170] 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. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment. (Children's Aid Society of Metropolitan Toronto v. A. (M.), [2002] O.J. No. 2371 (Ont. C.J.).

[171] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged, the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence that the parties would present at trial (see Toronto-Dominion Bank v. Hylton, 2012 ONCA 5, par. 5).

[172] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. Children’s Aid Society of the. District of Nipissing v. M.M., [2000] O.J. No. 2541 (SCJ) per Valin J; Children’s Aid Society of Hamilton v. M.N. (supra).

[173] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial (see CAS Dufferin v. J.R. (2002), O.J. No. 4319).

[174] In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on – and evaluate -- the sufficiency of the evidence as disclosed by the affidavits (see Children’s Aid Society of Toronto v. C.H. 2004 ONCJ 224, [2004] O.J. No. 4084; Children’s Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442). Self-serving evidence that merely asserts a defense or a claim without providing some detail or support evidence is not sufficient to create a genuine issue for trial (see Goldman v. Devine 2007CarswellOnt 2352 (Ont.CA)).

[175] In interpreting Rule 16, Rule 2 of the Family Law Rules must be considered. As well, reference to subsection 1(1) of the Act, which provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children, is necessary to the interpretation of the Act. (Children’s Aid Society of Hamilton v. M.W., [2003] O.J. No. 220).

[176] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent (see Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J).

[177] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a Summary Judgment Motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the Motion (see Children’s Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842).

[178] 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 (see C.R. v Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357).

[179] As Justice Pazaratz stated at para. 43 of Children’s Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Sup. Ct.): “no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.”

29 Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications for temporary care and custody as s. 51 of the Act permits evidence the court considers "credible and trustworthy in circumstances." While Rule 16(5) appears to be permissive as to hearsay evidence, there is the penalty attached of a possible adverse inference.

30 Evidence on a motion for summary judgment must be restricted to "admissible" evidence given the nature of the proceeding, namely, it is comparable to trial, and the relief claimed. The admissibility of hearsay evidence must be supported by evidence of necessity and reliability, failing which it must be excluded. Simply put, if evidence is not admissible at trial, it is not admissible on a motion for summary judgment

Analysis

[180] There are many factual disputes on the affidavit evidence filed in respect of this motion. Those factual disputes include, but are not limited to, the following:

(a) The content of verbal communications between the parents on the one hand and the Society and third parties on the other;

(b) the causes of the child’s heart and skin issues;

(c) whether the parents heed or ignore professional direction regarding the child;

(d) whether the parents’ departure with the child from hospital on May 7, 2013 was due to miscommunication;

(e) whether K. has been difficult to contact by telephone;

(f) the reasons for respondent mother being “zoned out” while parenting the child on occasion;

(g) the reasons why the parents sometimes do not visit with the child even though visiting with B.B. and A. B. or near their residence;

(h) whether the child had been reading, walking and saying “I love you” and “hello” at home prior to the Society involvement.

[181] It is trite to say that factual disputes cannot be resolved, generally speaking, on the strength of conflicting affidavit evidence alone. Where there are significant factual disputes on the affidavit evidence I am not able to make any findings, including those specific areas of factual dispute outlined above. Having said that, the factual disputes outlined above have differing degrees of materiality in relation to the issue before me. 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] O.J. No. 4736 (Ont. C.J.).

[182] The first question is whether the Society has demonstrated a prima facie case that there is no genuine issue requiring a trial of the issue of the child being in need of protection under either s.37(2)(a)(i)(ii) or 37(2)(b)(i)(ii) of the CFSA. In other words, had the child suffered physical harm, or is there a risk that the child is likely to suffer physical harm, inflicted by the persons having charge of the child or caused by or resulting from the persons’ failure to adequately care for, provide for or supervise or protect the child, or a pattern of neglect in caring for, providing for, supervising or protecting the child?

[183] There are many material facts that are not in serious dispute on the evidence before me; for example, the child’s dramatic improvement in health following apprehension, K.’s diminishing and inconsistent contact with the child following apprehension, L.’s complete failure to pursue contact with the child following apprehension, L.’s failure to provide any meaningful disclosure regarding her recent hospitalization under the Mental Health Act, the parents’ joint failure to participate in the PCA ordered with their consent on March 20, 2014, the child’s having been out of her parents’ care since June, 2013 and in her current placement since February, 2014. C. is only two years old. All of these facts, taken together, persuade me that the Society has made out a prima facie case that there is no genuine issue requiring a trial.

[184] The next step is to consider whether the parents have shown that their defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence that the parties would present at trial. Toronto-Dominion Bank v. Hylton, 2012 ONCA 5, 2012 ONCA, para. 5.

[185] It is important to note that all of the affidavits filed by the parents prior to the motion for summary judgment were executed jointly by both parents. The only evidence filed by the parents directly in response to the motion for summary judgment has been sworn by K. As far as I can determine L. has not filed any evidence since late 2013.

[186] One of the best tools to assist in considering this issue is a parenting capacity assessment. A PCA was ordered, on consent, on March 20, 2014. Although the parents were self-representing at the time the order was made, the motion to secure the order was served upon the parties at a time when they were represented by counsel. Current counsel has been acting for the parents since mid-2014. There has been no motion to change or set aside that order, or to appeal it. It is presumed correct.

[187] Pursuant to the order for the PCA it appears that K. attended one appointment only with the assessor. There has been no further participation by either parent in the assessment process. There is no evidence before me explaining why the parents did not fully comply with the order in this regard.

[188] Compliance with an order of the court is not optional. In the absence of evidence to the contrary, I can only presume that the parents wilfully disobeyed the order of the court. Their behaviour in this regard has robbed the court of useful information pertaining to the best interests of their daughter. There is no element of conflicting evidence on this point. The fact that the parents did not comply with the March 20, 2014 order for a PCA is uncontradicted and unexplained.

[189] I can and do a draw an adverse inference from the parents’ wilful failure to comply with the court’s order that they participate in a parenting capacity assessment. In other words, I conclude that had the assessment been completed with their co-operation, it is likely to have contained information unhelpful to the parents’ position and helpful to the position of the Society on the issues in dispute on this application.

[190] Similarly, I am concerned with respect to L.’s failure to file any evidence in response to the Society’s motion for summary judgment. In particular, given her recent hospitalization under the Mental Health Act one would expect the mother to produce evidence of her diagnosis, presenting issue, prognosis and treatment plan so that the court might assess that evidence in relation to the child’s best interests. The mother neither sought an adjournment nor tendered this obviously relevant evidence. This evidence is clearly and uniquely within her control to produce. Given her failure to produce it, I can only conclude that, had she done so, it would have been unhelpful to the parents’ position and helpful to that of the Society. Again, I draw an adverse inference.

[191] This child was apprehended from her parents’ care on June 16, 2013. She remained in foster care until September 24, 2013 when she was placed with kin on a temporary basis following a placement motion. That placement was not of long duration and was replaced with another kinship placement with her current caregivers, A.B. and B.B., on February 20, 2014 pursuant to a supervision order. At the time the motion for summary judgment was argued, the child had been out of her parents’ care for almost 21 months. The child has been in her current placement over a year. She is only two years old. Permanency planning is of paramount importance for her.

[192] In answering a motion for summary judgment a party cannot just rest on bald denials. They must put their best foot forward, showing that there is a genuine issue for trial (see Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.)). I have reviewed the evidence of the parents filed on this motion and throughout the history of this proceeding. I find that “putting their best foot forward” should have included the parents’ active participation in the parenting capacity assessment and the production of medical records pertaining to the mother’s mental health hospitalization just weeks prior to argument of the motion for summary judgment. The affidavit evidence that has been filed consists substantially of contradiction of the concerns expressed by society workers and medical professionals. The contradiction is often based upon “research” by the parents (from the internet), without medical documentation in support. This is not the quality of evidence expected on a motion for summary judgment. The objective medical evidence from early 2013 confirms that the child was developing severe eczema and hydrocortisone cream was recommended. The parents had also been advised to take the child to the emergency department; however, they decided not to do so because of the possibility of exposing her to infections. The medical records confirm that the parents were convinced that the eczema was related to the child’s diet and the parents did not use the hydrocortisone cream as directed. By late April 2013 the eczema was “from head to toe, thick crusts on scalp and face, cheeks excoriated, erythematous and weeping areas noted in folds, dry rough skin on torso and extremities”. The parents were “strongly encouraged” to use topical steroids. Notwithstanding the clear evidence of the child’s serious problem with severe eczema, the parents consistently resisted the application of hydrocortisone cream. They were convinced, based on their own research, that the hydrocortisone would be harmful to their child and they minimized the importance of accepting medical direction in relation to care for their child.

[193] One of the presenting concerns at the time of the child’s apprehension was clutter, and lack of cleanliness in the parents’ home. The parents presented no evidence that this area of concern has been addressed.

[194] At the time of the child’s apprehension, she was described by the Society worker as a “child in decline”. This observation is consistent with the objective medical evidence presented in the form of the hospital records.

[195] It is uncontradicted that, while in the care of the Society in the form of the foster and subsequent kin placements, the child has improved significantly in terms of her health and she is in fact thriving. The parents argue that this would have happened under their care as well; however, given their decision not to comply with the court’s order and participate in a parenting capacity assessment, this position cannot be supported by any evidence. In other words, it is speculative only.

[196] The Society also expressed concern about the parents’ lack of a bond with the child. That view is supported by the observations summarized in part above. The Respondent mother’s lack of bond with the child is supported by her failure to exercise any contact with the child of any variety whatsoever since May of 2014. The view is also supported in respect of the father, though to a lesser extent, given his dwindling and inconsistent contact with the child.

[197] In this regard I also note that the parents chose to forego 14 access visits with their daughter in order to accommodate a trip to China in January 2014 which they felt they needed because of “stress”. This decision further supports the Society’s concerns regarding the parents’ lack of bond with the child.

[198] The parents have demonstrated a refusal to abide by an order of this court. They have demonstrated a strong disinclination to accept direction from the Society workers, choosing instead to challenge Society workers regarding their credentials and motives. This is similar in their response to medical professionals involved with respect to the child. The parents preferred to conduct their own independent research, usually through the internet, in order to gather evidence refuting recommendations by the Society and medical professionals. I do not mean to suggest that parents should blindly follow the directions of Society or medical professionals at all times. A well founded, reasoned disagreement with professional advice is not a basis for concern; however, a consistent pattern of refusing advice, not based on sound medical opinion, but rather based on information secured from the internet, does not demonstrate a commitment to the child’s welfare.

[199] I have considered the evidence of Dr. Doherty. I attach little weight to it because it is not based on observations of the child after apprehension. What is important on this motion is the child’s condition now compared to the time of apprehension and the strides, if any, made by the parents following apprehension to address the protection concerns. Dr. Doherty’s affidavit does not assist meaningfully in this regard. He does note the parents’ failure to follow his advice consistently. This is consistent with the Society’s position.

[200] I am not particularly concerned regarding evidence that L. often waited for K.’s input when dealing with health care professionals or Society workers. English is not her first language and it would not be surprising in such circumstances for L. to await input from K. before making any decisions regarding C.

[201] In interpreting Rule 16, Rule 2 of the Family Law Rules must be considered. The primary objective of the Family Law Rules is to enable the court to deal with cases justly. Dealing with a case justly includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[202] I also consider s.1(1) of the Act which provides that the paramount purpose of the Act is to promote the best interests, protection and wellbeing of children.

[203] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heart-felt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parents’ evidence that the child faces some better prospects than existed at the time of the Society’s apprehension of the child and some new abilities as parents are evident. (See Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.). At best the evidence before me draws me to conclude that the status quo reigns in the parents’ household. I say this because the parents have failed to demonstrate a readiness to reasonably consider and follow the advice of medical and society professionals, they have not addressed Society concerns with respect to cleanliness of their home and bonding and they have not addressed issues with respect to the mother’s mental health. At worst, the parents’ situation has deteriorated given the lack of contact between mother and child, the waning contact between father and child, and the mother’s apparently deteriorating mental health.

[204] Pazaratz J., in Children’s Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Sup. Ct.), stated:

No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.

[205] I am mindful that 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 denies the parents their day in court and the procedural safeguard of cross-examination of witnesses before a judge. I also readily accept that the respondents love their daughter dearly and genuinely believe that their daughter’s best interests would be best served by her being returned to their care.

[206] However, I am of the view that there is no realistic possibility of an outcome other than that as sought by the applicant for the reasons set out above. In particular, the bond between the parents and child is tenuous at best, the parents have failed to “put their best foot forward” in response to this motion for summary judgment, the child has been out of her parents’ care for almost 21 months, the child is thriving in her current placement and the parents have demonstrated an unwillingness, or lack of ability, to accept the reasonable advice of the medical and Society professionals.

[207] I do not see how a trial, with viva voce testimony and cross-examination, could lead to any other conclusion.

[208] Accordingly the motion for summary judgment is granted. There shall be a finding that the child is in need of protection under s.37(2)(a) and (b) of the CFSA. There is no genuine issue requiring a trial for the foregoing reasons in respect of findings that the child is in need of protection under these sections.

DISPOSITION

[209] The next issue is whether there is a genuine issue requiring a trial in respect of disposition.

[210] The Society seeks a deemed custody order placing the child in the custody of A.B. and B.B., K.’s brother and sister-in-law. This placement would accommodate access by the respondents with the child. The placement would keep the child within her family and would continue a status quo that was established over a year ago. While in this placement the child has thrived. The Society has conducted an assessment of the child’s placement residence and has identified no basis for concern.

[211] Paragraph 1(2) of the Act identifies additional purposes of the Act to the extent that such are consistent with the best interests, protection and wellbeing of the child. Those additional purposes that are relevant to my considerations in this case are:

(a) 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;

(b) to recognize that children’s services should be provided in a manner that,

i. respects the 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 prominent 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.

[212] The child has been flourishing while in the care of her aunt and uncle. C. is only a little over two years old. She has spent much more of her short life out of her parents’ care than in it. This child needs permanency planning and the benefit of a stable home environment that is demonstrated to be responsive to her health care needs. That environment is her current placement with her paternal uncle and aunt. This is a familiar residence for the child. These have been her familiar and consistent caregivers since February, 2014. The child has been in the care of A.B. and B.B. longer than she was in the care of her parents. The Society has conducted an assessment of this home and found no protection concerns. There is no evidence to contradict this.

[213] For all the foregoing reasons, there shall be an order as follows:

(1) The court finds that pursuant to s.47(2) of the Child and Family Services Act, the full legal name of the child is C.J.X.Z.M.B. Her date of birth is […], 2012; her religion is non-Jewish, non-Catholic; she does not have native status, she was apprehended from her parents’ care on June 16, 2013 in Bruce Grey County but she was normally resident in Newmarket, Ontario; L.B. is her mother by birth; K.B. is her father by birth and K.B. is a parent under the Act; the child is found to be in need of protection pursuant to s.37(2)(a)(i)(ii) and s.37(2)(b)(i)(ii) of the Child and Family Services Act.

(2) The child shall be placed in the care and custody of her uncle A.B. and her aunt B.B. by way of a deemed custody order pursuant to s.57.1 of the Child and Family Services Act subject to reasonable access upon reasonable notice by the respondents.

(3) Should the child require any medical attention, the kinship parents, A.B. and B.B., may attend to those needs without first seeking the consent of the respondents; however, A.B. and B.B. shall advise the Society in advance if the care required is non-emergent and the Society shall in turn advise the parents.

(4) Any changes to the within order for custody and access shall be sought by motion on 14 days’ notice to the Society.

DOUGLAS J.

Released: April 9, 2015