Children’s Aid Society of London and Middlesex v. L.L., 2015 ONSC 2448

CITATION: Children’s Aid Society of London and Middlesex v. L.L., 2015 ONSC 2448

COURT FILE NO.: C1045/12-02

DATE: April 21, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant

AND:

L.L. and S.W., respondents

BEFORE: MITROW J.

COUNSEL: Benjamin Leschied for the Society Toenie Hersch for L.L. No one appearing for S.W.

HEARD: March 20, 2015

ENDORSEMENT

INTRODUCTION

[1] The applicant Children’s Aid Society of London and Middlesex (“Society”) brings this motion for summary judgment seeking an order of Crown wardship in respect of the child H, age 1 (“hereafter referred to as “the child” or “H”).

[2] The respondent, L.L. (“Ms. L.”), is the child’s mother. The respondent, S.W. (“Mr. W”), is the child’s father.

[3] Mr. W has had no involvement with the child since the child’s birth. The Society was unable to locate him. Accordingly an order was made dispensing with service on Mr. W.

[4] The child was apprehended at birth and has been in the temporary care and custody of the Society pursuant to an order dated March 28, 2014.

[5] Ms. L submits that there is a triable issue, that the Society motion for summary judgment should be dismissed and that this matter should proceed to trial.

[6] The Society submits that if an order for Crown wardship is made then the order should be silent as to access.

[7] The only issue on the summary judgment motion is disposition. On February 13, 2015 Korpan J. made an order that the child H is in need of protection pursuant to sections 37(2)(b) and 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] (the “Act”); and Korpan J. also made statutory findings pursuant to section 47(2).

[8] For reasons that follow the Society motion for summary judgment is granted, the child is made a Crown ward, silent as to access.

THE PREVIOUS CASE

[9] In the case at bar, the Society relies on a trial judgment that I rendered on April 23, 2013, London docket C105/12-01, (hereinafter referred to as the “previous case”), involving Ms. L, where an order of Crown wardship was made in regards to Ms. L’s first child, J, aged 3.

[10] In the previous case, the Society relied on a psychological assessment of Ms. L, that concluded, in part, that Ms. L’s general cognitive ability was in the “high moderate range of Intellectual Disability”. The assessment further concluded that Ms. L’s deficits would create challenges for Ms. L to live independently without peer support, and that Ms. L’s condition will have “lifetime duration”.

[11] The Society relies on the same psychological assessment in the case at bar. Set out below is para. 13 from the previous case that examined the findings of the psychological assessment in detail:

[13] The findings and conclusions set out in the report can be summarized as follows:

a) The report acknowledges that a psychological assessment was requested by the Society to determine Ms. L’s cognitive functioning in order to know how best to work with her, as well as to determine her eligibility for developmental services;

b) At the time of the assessment, Ms. L was age 25;

c) The report noted that Ms. L had been assessed in the past, including a psychological services assessment (date: 1995/04/06 by Dr. Bruce Murray) that contained a finding of “mild mental retardation”;

d) It was noted in the report that Ms. L was “generally very slow” in her processing of test items and that Ms. L required and was given extra time and some support to complete various tests;

e) Ms. L’s general cognitive ability was found to be in the “high moderate range of Intellectual Disability”;

f) The report concludes her overall thinking and reasoning abilities exceed only 0.1% of other individuals of the same age;

g) Ms. L’s Verbal Comprehension Index (“VCI”), which is a measure of expressive vocabulary, fund of factual knowledge and abstract verbal reasoning ability was found to be in the “low mild range of intellectual disability” at the 0.3 percentile. The report concludes the results strongly suggest that Ms. L will have difficulty understanding and responding to verbally presented material;

h) Ms. L’s perceptual reasoning abilities, as measured by the Perceptual Reasoning Index (“PRI”) were found to fall in the “low mild range of intellectual disability” at the 0.3 percentile. The report concludes the results suggest that Ms. L will have difficulty with tasks requiring non-verbal learning skills;

i) There was an assessment of Ms. L’s Working Memory Index (“WMI”), which the report states assesses the ability to memorize new information, hold the information in short-term memory, concentrate and use that information to produce a result or reasoning process. The importance of the WMI is in relation to cognitive flexibility and planning ability, as well as learning and ability to self-monitor. Ms. L’s WMI abilities fell in the “low mild range of intellectual disability” at the 0.4 percentile. The report concludes this suggests that Ms. L will have difficulty with tasks requiring her to manipulate information in her mind;

j) The report measured the Processing Speed Index (“PSI”), which provides a measure of a person’s ability to process routine visual information quickly and efficiently and to quickly perform tasks based on that information. The report concludes that Ms. L’s skill in processing visual material without making errors is in the “low mild range of intellectual disability” at the 0.3 percentile. This suggests that Ms. L will have difficulty with tasks requiring speed;

k) The report measured Ms. L’s independent living scales assessment and made a number of findings ranging from “extremely low” to “moderate.” Assessed as extremely low was Ms. L’s ability to manage money, manage home and transportation and problem solving. The subscales regarding health and safety and performance and information were noted to be low and Ms. L’s memory and orientation was noted to be moderate, as was her social adjustment;

l) The report concludes that in comparison to others her age, Ms. L’s memory/orientation does not appear to be a major concern. The report found Ms. L’s memory abilities fell in the moderate range and she was able, for example, to recall a list of grocery items, however she required the list to be read to her because she could not read it and she had no difficulty with respect to orientation of time and space;

m) The report then emphasized that Ms. L’s money management skills were very weak. (It should be noted that evidence from the Society witnesses corroborated that Ms. L had to have an arrangement that her rent would be paid directly to the landlord from her ODSP cheque. It was Ms. Howard’s evidence that on a number of occasions, prior to the birth of the child, Ms. L requested from the Society food vouchers, as she apparently had no money left to buy groceries. The Society was also providing Ms. L with bus tickets in order to assist her in going to various appointments, including access visits.);

n) The report found that managing home and transportation was an area where Ms. L was also very limited. According to the report, Ms. L was able to give “short term solutions or vague descriptions” of what she would have to do, for example, if things in her apartment would stop working or if she needs repairs to be done. (This was also in part corroborated by evidence from Ms. Howard that Ms. L had difficulty in attending at certain locations for meetings, as she was not able to find out on her own as to what buses to take. Despite being given directions by Ms. Howard in this regard, there were still problems with Ms. L knowing what bus to use to attend on time to a particular destination.);

o) The report found that it was in terms of social adjustments that Ms. L’s scores were stronger than in other areas;

p) In relation to items of health and safety, the report noted that Ms. L’s scores suggested her abilities are weak. The report found that while Ms. L knows how to call 911, it appeared Ms. L did not have a complete understanding of the level of danger of some situations, for example, smelling a gas odour in her home or basic first aid. Ms. L also did not have a full understanding of managing her own physical care, including understanding the importance of taking medication and understanding side effects. (This finding was also corroborated by Ms. Howard, who testified that Ms. L at various times presented with poor hygiene and on several occasions Ms. Howard told Ms. L that Ms. Howard saw bugs in her hair and that Ms. L needed to get treatment for head lice. According to Ms. Howard, Ms. L did not appear to understand that she had lice and, in fact, initially quarrelled with Ms. Howard and rejected the suggestion that she in fact had lice. This required Ms. Howard to attend at Ms. L’s residence to give her a bottle of shampoo treatment to deal with the head lice. Ms. L’s response was to shave all her hair off as she said it was easier than doing the treatment and, according to Ms. Howard, Ms. L told her she gave the shampoo bottle to someone else.);

q) The report assessed Ms. L’s academic skills as weak and consistent with her overall level of cognitive functioning. The report found that her word reading skills and arithmetic skills were at the grade two level and that these scores represent “significant academic weaknesses in comparison to same aged peers, and will hinder [Ms. L] significantly in her everyday living skills”;

r) The report states that Ms. L’s test scores in relation to the academic assessment suggests that Ms. L is functioning within the “moderate range of intellectual disability”;

s) The report finds that Ms. L meets all specified criteria to be eligible for further supports through agencies that are funded under the Developmental Services Act;

t) The report finds that Ms. L is not a good candidate for competitive sustainable employment as she would encounter “extreme difficulties with multitasking, organizational skills, problem solving, following instructions (verbal or written), dealing with the public in a mature and responsible fashion, and tasks with some mechanical aptitudes”;

u) Importantly, the report finds that the deficits mentioned above would create some challenges for Ms. L in attempting to live independently and without peer supports to assist her with various areas of everyday living skills;

v) In dealing with summary and recommendations, the report concludes that the test results, taken as a whole, reveal that Ms. L has a “moderate intellectual disability” which should qualify her for a full range of developmental services;

w) The test results also signify that Ms. L will “always experience difficulty learning and performing cognitive tasks in relation to same aged peers in a wide variety of situations”;

x) The report notes that if Ms. L is to be taught new skills, then Ms. L would benefit from having as many visual aids as possible given that she will have great difficulty following written instructions. Ms. L would likely need reminders for appointments, including having it written on a calendar for her, and she will likely have the need to be given reminder phone calls the day before the appointment and even the day of the appointment;

y) Finally, the report concludes that given that Ms. L has an intellectual disability, that this will not disappear and will have a “lifetime duration.”

[12] In the previous case, the findings and recommendations of the assessment report were accepted. In dealing with the disposition in the previous case, various findings were made as follows in paras. 53 – 56:

[53] I find that Ms. L has a number of serious cognitive issues and delays that are identified in the report. Given the identified concerns in that report, I find it is unrealistic, and not possible, to protect J by placing him with Ms. L subject to terms and conditions.

[54] Ms. L herself requires some oversight and assistance to meet her own day-to-day needs. I find that Ms. L, on her own, does not have the ability to parent J. This is not intended to be a criticism of Ms. L as she clearly has identified cognitive issues.

[55] Ms. L is a person who would require continuous oversight and monitoring while a child is in her care. It is not realistic to achieve that type of goal pursuant to a supervision order. In any event, there was no evidence at trial as to anyone who was able to step forward to monitor the care of the child and who would constantly be with Ms. L or would ensure that other adults were always there.

[56] Furthermore, there are other significant concerns in addition to the requirement of constant supervision. Ms. L is prone to anger outbursts, as described by Ms. Howard. These potential outbursts would place the child at risk.

[13] In the previous case, the father of the child J, was C.H. (“Mr. H”). Mr. H had a criminal history in relation to sexual offences. The issue of Mr. H’s history and Ms. L’s minimization of the history was dealt with in paras. 17 and 18 of the judgment:

[17] Another concern that Ms. Howard had was in relation to Ms. L’s apparent inability to perceive Mr. H as being a potential risk to the child. It was Ms. Howard’s evidence that she was told by Mr. H about his criminal history. Mr. H told Ms. Howard that when he was 20 or 21 years old he had exposed his penis over the internet by webcam to a person he believed to be a 6 year old, when in fact it was a police officer. Mr. Howlett told Ms. Howard that he had been charged with sexual offences and had spent one month in jail and was thereafter placed under house arrest at his parents’ residence, followed by probation. He also told Ms. Howard that he had to take courses to learn what he was permitted to do and not permitted to do with children but apparently he did not remember what organization offered the classes.

[18] According to Ms. Howard, Ms. L minimized Mr. H’s behaviour (that he had admitted to) and refused to believe that he was a potential risk to a child. Ms. Howard testified that at one point Ms. L yelled at her that Mr. H did not show his penis to a six year old child but rather he showed it to a police officer “who was 16” and Ms. L then yelled at Ms. Howard that Mr. Howlett would not hurt anyone.

SUMMARY OF THE EVIDENCE IN THE PRESENT CASE

[14] The Society’s motion for summary judgment centres largely on the findings made in the previous case. The Society appends as an exhibit the same psychological assessment as was used in the previous case, dated July 5, 2012, signed by Dr. Karin Baker, a psychologist, and also signed by Hilary Holmes, a psychological associate, who was supervised by Dr. Baker.

[15] There is no dispute from Ms. L about the admissibility of the psychological assessment as evidence in the present case; nor does Ms. L dispute its findings.

[16] Colleen Howard (“Ms. Howard”) was a Society worker in the previous case and she was also one of the workers in the present case and she filed a lengthy affidavit in support of the Society motion for judgment. Much of her affidavit focused on events relating to the previous case. It is not necessary to deal with a summary of those events given the findings made at the trial in the previous case.

[17] Ms. Howard deposes that the child’s father, Mr. W, had been involved with the Oxford County Children’s Aid Society and that he had been convicted of sexual offences against young girls ages 12 and 13.

[18] The evidence filed by Ms. L on the summary judgment motion consisted of her 5 page affidavit sworn March 4, 2015. Ms. L did not deny the accuracy of Ms. Howard’s evidence regarding Mr. W’s past, rather, Ms. L deposes that she knew nothing about Mr. W’s involvement with the Children’s Aid Society and that she is no longer in a relationship with him. It is concerning that the fathers of Ms. L’s two children were perpetrators of sexual offences.

[19] The Society’s evidence is that its workers have not been permitted entry to Ms. L’s residence that she shares with her mother S.L. and her step-father, J.D.

[20] Society worker Sarah Kaczynski (“Ms. Kaczynski”) deposes that on October 9, 2013, the Society received a community complaint reporting that Ms. L was pregnant; the caller allegedly expressed concerns about Ms. L’s ability to care for a child; the caller reported that Ms. L had 3 dogs and 4 cats and that there was animal feces all over Ms. L’s residence, and the caller further alleged that Ms. L did not pay her rent, that she rarely had food because she spent $400 to $500 a month on marijuana and finally the caller reported that both Ms. L and Mr. W had mental health issues. I summarize this information, not for the truth of its contents, but to explain why Ms. Kaczynski then contacted Ms. L.

[21] Ms. Kaczynski deposes that after some effort, that she together with Ms. Howard, were able to meet with Ms. L at her residence; however upon arrival it is Ms. Kaczynski’s evidence that Ms. L refused entry into the apartment, stating that her mother would not permit the workers inside and stating that she had dogs. Ms. L then met with Ms. Kaczynski and Ms. Howard in the hallway; Ms. L advised that she was participating in prenatal care with Dr. Grace.

[22] In her affidavit, Ms. L deposes that the caller’s information was “absolutely not true”. Ms. L then specifically denies the presence of animal feces, states that her rent was paid, denies that she spent money on marijuana and finally she deposes that she does not use marijuana or any other illegal drugs. However Ms. L did not specifically deny that there were dogs and cats in the apartment. (In fact Ms. L does not deny Ms. Kaczynski’s evidence that Ms. L had stated she “had dogs”.)

[23] Ms. L then denies refusing entry into her apartment, stating “…the workers were quite able to enter the home”.

[24] Ms. L however offers no explanation as to why Ms. Kaczynski and Ms. Howard ended up speaking to Ms. L in the hallway if they were “able to enter the home” as Ms. L puts it.

[25] Ms. L does not dispute Ms. Kaczynski’s evidence that Ms. Kaczynski had attended Ms. L’s apartment building for a home visit on February 24, 2014, along with Society kinship services worker Vicky Cochrane. The uncontradicted evidence is that Ms. L met in the hallway with Ms. Kaczynski and Ms. Cochrane, alleging that the apartment was “messy”. Ms. L at that time refused, when requested, to sign a consent for a kinship search; Ms. L indicated specifically she did not want Mr. W’s family to have anything to do with the child. At this point, Ms. L went into her neighbour’s apartment, returning with a woman named “L”; Ms. L advised that if she was not able to keep the baby, that she would propose “L” as a placement. Beyond that, in the evidentiary record, there is no further evidence about “L”, nor any evidence from “L” as part of any plan of care.

[26] Ms. Kaczynski deposes in that same affidavit (that was sworn in January 2015) that to date she has not been allowed by Ms. L to enter her residence to determine its appropriateness. In response to this allegation Ms. L deposes that it is not true that she has not allowed the worker to enter her residence to determine its appropriateness.

[27] The final piece of the factual puzzle regarding the evidence of Ms. L that she never prevented the Society workers from entering her home, is found in the affidavit of Ms. Kaczynski sworn March 12, 2015. In that affidavit Ms. Kaczynski deposes that on February 26, 2015 that she, along with a Society student worker, attempted to view Ms. L’s residence on an unannounced basis. Ms. L’s mother S answered the door. She then shut the door and went to get Ms. L. According to Ms. Kaczynski, Ms. L then indicated that she was sleeping and she refused entry to the apartment and spoke with Ms. Kaczynski and the Society student worker very briefly in the hallway. Ms. L stated that she was upset that they had arrived announced and told Ms. Kaczynski to return another time “with an appointment”.

[28] Ms. Kaczynski was able to make some observations from the entrance to the residence. Ms. Kaczynski deposes “… there were at least two dogs in the residence and it smelled strongly of smoke and feces”. In that same affidavit Ms. Kaczynski also deposes that Ms. L has not allowed her to view the inside of her residence and Ms. Kaczynski further confirmed that Ms. L has not allowed any other worker to view the residence since the birth of the child.

[29] Ms. Kaczynski’s evidence as to what happened on February 26, 2015 stands uncontradicted.

[30] In response to the Society motion for summary judgment, Ms. L would know that a viable plan of care would be an important component of any responding materials she files.

[31] Ms. L’s plan is briefly summarized in paragraph 30 of her affidavit when she states that she has a “stable” residence and that her mother and step-father live with her on a full-time basis and that she has their support. Accordingly, it can be gleaned from Ms. L’s material that her plan of care is to continue living in her stable residence, to have the child there with her, to have her mother and step-father living with her and to have their support. Presumably this would be the path to a supervision order if Ms. L’s position was to be accepted by the court.

[32] Ms. Kaczynski deposes in her January 2015 affidavit that for the period September 2014 to January 2015 that Ms. L did continue to meet with Ms. Kaczynski at the Society offices and that Ms. L had not indicated that she is participating in any services outside of the Society to address the Society’s protection concerns. Ms. Kaczynski deposes that on two occasions she provided Ms. L with contact information from Merrymount Children’s Centre.

[33] Ms. L specific response is that she had requested to be signed up for programs, but “… none have been provided to me”. However what is not in dispute is that despite the various findings made in the psychological assessment, there is no evidence from Ms. L that she has taken the initiative to enrol herself in any parenting or similar programs either prenatally, or after H’s birth.

[34] Finally, it is clear that Ms. L’s plan includes having the support and assistance of her mother and her step-father. There is no indication from Ms. L that she has any other plan of care other than caring for the child while continuing to reside with her mother and step-father.

[35] It is noteworthy that there is no affidavit evidence from either Ms. L’s mother or Ms. L’s step-father supporting Ms. L’s plan of care. A reason for their silence may be found in the aforementioned March 2015 affidavit of Ms. Kaczynski. Ms. Kaczynski deposes as follows as to protection concerns involving Ms. L’s mother and step-father:

(a) that the mother and step-father have an extensive history with various child welfare authorities in London and surrounding area;

(b) that the mother’s history of involvement with Oxford Children’s Aid Society and Elgin Children’s Aid Society dates back to 1973;

(c) that the Children’s Aid Society of London and Middlesex has had involvement with the mother dating back to 1979;

(d) that protection concerns over the years have included an infant child being apprehended from the mother’s care;

(e) that there has been inadequate supervision of children in the mother and step-father’s care;

(f) that there has been sexual abuse perpetrated by individuals residing in the mother’s home, including one of the mother’s children;

(g) the mother’s apparent inability to protect her children from being sexually abused, including allowing the abusers to return to the home after learning of the abuse;

(h) use of physical discipline on children by the mother;

(i) allegations of allowing young children to be padlocked in the basement;

(j) Society concerns about inadequate food in the home;

(k) extreme unsanitary and hazardous conditions of the home, including the presence of dog feces, urine and rotting food; and

(l) as a result of the above concerns, the Society has apprehended children from the care of the mother and step-father on numerous occasions.

[36] Ms. Kaczynski’s evidence concerning the past history of Ms. L’s mother and step-father stands uncontradicted; there was no material filed by Ms. L, or her mother or step-father disputing any of these allegations, nor did Ms. L request an adjournment of the summary judgment motion to seek additional time to dispute the allegations in Ms. Kaczynski’s March 2015 affidavit.

THE TEST ON A MOTION FOR SUMMARY JUDGMENT UNDER RULE 16 OF THE FAMILY LAW RULES

[37] Rule 16 of the Family Law Rules, O. Reg. 14/99 governs the procedure on a motion for summary judgment. The moving party must show there is “no genuine issue regarding a trial”. The relevant subrules of r. 16 are set out below:

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.

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

(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.

(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.

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

[38] In Ontario the weight of the jurisprudence is that the amendments set out in r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 giving the court expanded powers are not applicable to a motion for summary judgment under r. 16 of the Family Law Rules.

[39] In Children’s Aid Society of London and Middlesex v. M.(L.), 2014 ONSC 5813 (S.C.J.), I stated as follows at paras. 117 - 119:

[117] I proceed on the basis that the amendments to r. 20 of the Rules of Civil Procedure, allowing a court on a motion for summary judgment to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence, do not apply to a motion for summary judgment under r. 16. There is ample jurisprudence to support this approach: Children’s Aid Society of Toronto v. T.H., 2012 ONSC 3916 (S.C.J.); Children’s Aid Society of the County of Simcoe v. O.P., 2012 ONSC 2349 (S.C.J.); Children's Aid Society of London and Middlesex v. K.B.P., 2013 ONSC 5 (S.C.J.); and Catholic Children’s Aid Society of Hamilton v. T.B., 2013 ONSC 6300 (S.C.J.).

[118] Two recent decisions of the Court of Appeal for Ontario have mentioned, but did not decide, the applicability of r. 20 of the Rules of Civil Procedure to motions for summary judgment pursuant to r. 16 of the Family Law Rules: in Virc v. Blair, 2014 ONCA 392 (C.A.), at paras. 49 and 50, both parties on the appeal were in agreement that the expanded powers in r. 20 do not apply to r. 16, and accordingly, the appeal was dealt with on the assumption, but without deciding, that the expanded powers are not applicable under r. 16, with the court noting that the availability of the expanded powers under r. 20 in family law motions for summary judgment “should await a case where the issue is fully argued”; in Gallacher v. Friesen, 2014 ONCA 399 (C.A.), at paras. 13 – 20, being a case decided just after Virc, supra, the court acknowledged, and cited, the competing case law as to whether the expanded powers in r. 20 applied to r. 16; but given the specific facts of the case, the court disposed of the appeal without deciding the issue as to whether the expanded powers in r. 20 apply to r. 16.

[119] The case at bar is governed by the jurisprudence as to the meaning of “genuine issue for trial” developed prior to the amendments to r. 20, and which was often applied to motions for summary judgment pursuant to r. 16 because of the similar “genuine issue for trial” test. Accordingly, a court hearing a motion for summary judgment pursuant to r. 16 is not to assess credibility, weigh the evidence or find the facts; the genuine issue must relate to material facts and the onus is on the moving party to demonstrate that there is no genuine issue requiring a trial; “no genuine issue for trial” has been equated with “no chance of success” or “plain and obvious that the action cannot succeed”: see Children's Aid Society of London and Middlesex v. K.B.P., supra, at para. 21; and Catholic Children’s Aid Society of Hamilton v. T.B., supra, at paras. 31 – 51.

[40] A number of recent cases all support the conclusion that the expanded powers of r. 20 of the Rules of Civil Procedure are not available to a judge on a summary judgment motion pursuant to r. 16 of the Family Law Rules: the decision of Vogelsang J. in Children’s Aid Society of London and Middlesex v. T. (R.L.), 2014 CarswellOnt 14929 (S.C.J.); the decision of Aston J. in Children’s Aid Society of London and Middlesex v. L.(H.B.), 2014 CarswellOnt 15115 (S.C.J.); and the decision of Leach J. in Children’s Aid Society of London and Middlesex v. T.(R.) 2014 CarswellOnt 14912 (S.C.J.).

[41] In Catholic Children’s Aid Society of Hamilton v. T.(B.), 2013 ONSC 6300 (S.C.J.), Pazaratz J. provided a detailed analysis and guidance for the court to follow in deciding a summary judgment motion under r. 16. In particular, I adopt the principles set out by Pazaratz J. in paras. 36 – 50.

DISPOSITION

[42] The material facts that are relied on by the Society are not in dispute.

[43] Ms. L continues to suffer from the same cognitive issues and delays that she had at the time of the previous case. This is to be expected, as the assessment concluded that Ms. L’s intellectual ability would be a “lifetime duration”.

[44] Pursuant to r. 16(4.1), Ms. L, in response to the Society motion, may not rest on mere allegations or denials but must set out specific facts that show there is a genuine issue for trial.

[45] There is no evidence from Ms. L that she has taken any steps to attend parenting or other similar courses.

[46] Ms. L presents a plan for the child to live with her and with her mother and step-father, in the face of serious and undisputed Society allegations concerning a history of child protection concerns relating to Ms. L’s mother and step-father.

[47] The lack of any evidence from Ms. L’s mother and step-father serves to substantially undermine Ms. L’s plan of care. Further, there is no viable explanation offered by Ms. L as to how she can manage the care of H given the findings in the assessment report.

[48] In para. 39 of the decision of Pazaratz J. in Catholic Children’s Aid Society of Hamilton v. T.(B.), supra, it is stated that although a court is not to assess credibility, draw inferences from conflicting evidence or weigh the evidence on a summary judgment motion, the court still can and should examine whether the evidence meets the threshold test of reliability. Ms. L’s evidence that she did not prevent the Society workers from entering her residence is, I find, bereft of any reliability. It is the job of Society workers to enter and view the homes of persons who propose to care for a child. The Society workers wanted to enter the residence. They did not. Against that background, it makes no sense that the Society workers, who wanted to enter Ms. L’s residence, would have declined to enter the residence having been permitted to do so. Also considering the undisputed evidence of Ms. Kaczynski in her last affidavit, Ms. Kaczynski provides credible evidence that entry to the apartment was denied, that there were dogs in the residence and that the residence smelled of smoke and feces.

[49] I am required to make an order that is in the child’s best interests and in doing so I must consider all of relevant factors in s. 37(3) of the Act.

[50] The child H has remained in the same foster home since being placed in Society care. She was placed in the same foster home as Ms. L’s first child, J, who has now been adopted by the foster parents. The Society’s evidence is that the foster parents are prepared to adopt H should she become available for adoption. H’s growth and development are described to be with normal limits and she does not have any health issues.

[51] H has been in Society care for over one year. Prompt permanency planning is important for her.

[52] H is in a secure and stable residence with her foster parents who have raised her since birth and her half-brother J resides in the same home. The foster parents have expressed a willingness to provide letters and pictures to Ms. L regarding H’s progress.

[53] The plan offered by the Society meets H’s needs for a stable long-term placement. In contrast, Ms. L has proposed no viable plan of care that can meet H’s needs. Ms. L’s plan would be contrary to H’s best interests and would expose her to risk.

[54] I find that there is no genuine issue for trial in relation to disposition. I find that the least intrusive order that is in the child’s best interests is Crown wardship.

ACCESS

[55] The Society family support worker, Anna Gavin (“Ms. Gavin”) filed an affidavit; she is the current supervised access worker for this case.

[56] Ms. Gavin’s affidavit notes a number of concerns made during her observation of supervised access visits that include: Ms. L not engaging with H; there being little interaction between H and Ms. L; Ms. L not following through with staff suggestions as to how to engage with H in a chid focused manner; Ms. L at times is rude and argumentative with staff; and Ms. L has difficulties reading H’s cues.

[57] For her part, Ms. L disputes, in a general way, the observations of Ms. Gavin. Ms. L deposes that she has been attending supervised access visits regularly (and this is not disputed by the Society) and Ms. L currently has supervised access two times per week. Ms. L deposes that her visits are positive and consistent and that she interacts well with H.

[58] Although the evidence is somewhat in conflict, I am prepared to accept that Ms. L has had positive access visits with H.

[59] As mentioned earlier, r. 16(4.1) prohibits Ms. L from resting on “mere allegations or denials”. Ms. L does in her affidavit address some specific allegations made by Ms. Gavin, where Ms. L refers to specific paragraph numbers in Ms. Gavin’s affidavit. However Ms. L fails to address specifically the very detailed allegations made in paragraphs 10, 11 and 13 of Ms. Gavin’s affidavit that deal with matters such as failure to follow staff recommendations, Ms. L’s difficulties in managing and responding to H’s cues, and Ms. L’s rude and argumentative behaviour.

[60] There is a statutory presumption against access to a Crown ward as set out in s. 59(2.1) of the Act as follows:

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

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

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

[61] The often-quoted decision of the Divisional Court in Children's Aid Society of Niagara Region v. C.(J.), 2007 8919 (ON SCDC), 2007 CarswellOnt 1680, is a leading authority on the interpretation of that section. The onus is on the person seeking access to prove on the balance of probabilities that the conditions set out in s. 59(2.1) have been met. In dealing with the condition in s. 59(2.1)(a), that the relationship between the child and the person is beneficial and meaningful to the child, the Divisional Court stated that “beneficial” has been held to mean “advantageous,” and that “meaningful” has been held to mean “significant.” In applying these definitions to the facts before it, the Divisional Court stated at para. 29:

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

[62] Accepting that Ms. L has had some enjoyable access visits with the child, I find there is no genuine issue requiring a trial on the issue of access. Ms. L has not established that the relationship between her and the child is beneficial and meaningful for the child.

[63] Accordingly, the order shall be silent as to access.

ORDER

[64] The child H is made a ward of the Crown and is placed in the care and custody of the Society.

“Justice V. Mitrow”

Justice V. Mitrow

Date: April 21, 2015