Children’s Aid Society of Ottawa v. M., 2015 ONSC 5971

CITATION Children’s Aid Society of Ottawa v. M.,: 2015 ONSC 5971

COURT FILE NO.: FC-13-1818-1

DATE: 20151116

ONTARIO

SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF E. W. born […], 2004, Z. W. born […], 2007, A. M. born […], 2009

BETWEEN:

Debora Scholey, for E.W., Z. W. and A. M.

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant (Applicant on Motion)

– and –

B.M. (Mother) A.W. (Father) Respondents Respondent (Respondent to the Motion)

Mark E. Hecht, for the Applicant

*Mother noted in default and did not appear Ross Stewart, for the Respondent Father

HEARD: September 25, 2015

MOTION FOR SUMMARY JUDGMENT

SHEARD j.

[1] This motion for summary judgment is brought by the Children’s Aid Society of Ottawa (“the Society”) under Rule 16 of the Family Law Rules (“FLR”).[^1]

[2] The Society seeks a finding that the three children, E. H. W. (“E.W.”), born […], 2004 (age 11), Z. A. A. W. (“Z.W.”), born […], 2007 (age 8), and A. L. M. (“A.M.”), born […], 2009 (age 6), are in need of protection and a final order for Crown Wardship with no access to the mother, B. M. (“B.M.”) or to the father, A. W. (“A.W.”).

[3] The Society argued that the evidence in support of the motion for summary judgment was overwhelming and that there are no genuine issues requiring a trial in this case.

[4] The Office of the Children’s Lawyer (“OCL”), appointed to represent the three children, strongly supported the Society’s motion for summary judgment. At the hearing of this motion, the OCL lawyer advised that in her meetings with the children, she received consistent information from them that A.W. used physical discipline and hurt them, and that the children felt that their current foster family, with whom they have lived for approximately two years, were the people who loved them most. All three children expressed a wish for a permanent mommy and daddy and were ambivalent about ongoing visits with their father.

[5] B.M. was noted in default and did not participate in the motion for summary judgment.

[6] A.M. opposed the motion for summary judgment.

[7] On October 1, 2015, I granted the motion for summary judgment, with reasons to follow. I ordered that all three children be made Crown Wards, without access. The order will allow for their permanent placement planning, including adoption.

[8] The Society shall be at liberty to seek adoption placements for each of the three children. The children may be placed all together, each one singly, or such that any two children are kept together but the third is placed separately, in the Society’s discretion.

[9] The reasons for the order are set out below.

Preliminary Issue: Family Court Clinic Assessments as Evidence on this Motion

[10] On November 12, 2013, the court ordered the completion of a Family Court Clinic Assessment (“FCCA”) under s. 54(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). Pursuant to s. 54(6) of the CFSA, a s. 54(1) assessment report is evidence and is part of the court record of the proceeding.

[11] The assessment was completed by Dr. David McLean and released on March 5, 2014.[^2] In preparing his assessment, Dr. McLean reviewed: affidavits sworn by Society workers and by A.W.; medical and other records; and documentation obtained from schools, daycare providers, foster parents and others. He interviewed and spoke to relevant persons, including A.W. and the children. The 2014 FCCA referenced source documents and original records that were not otherwise part of the evidentiary record on the motion, such as medical records and school notes.[^3] The court is satisfied that the 2014 FCCA is based on a comprehensive review of the relevant and, where possible, firsthand evidence and information. The report provides a comprehensive summary of the historical facts.

[12] In 2015, Dr. McLean wrote to the court to correct an accidental omission in the 2014 FCCA.[^4] Also in 2015, Dr. Stephen Floyd Wood of the Family Court Clinic prepared an updated FCCA.[^5]

[13] A.W. has raised concerns about the conclusions reached by Dr. McLean in the 2014 FCCA. He argues that the information given to Dr. McLean was limited in its scope. In particular, he submits that with respect to the supervised access visits, Dr. McLean relied on a report from Allysun Lowe (“Lowe”), and may not have seen her notes of the visits. A.W. notes that Dr. McLean declined to review A.W.’s audio and video recordings of the visits, which, he argues, would have provided him with a more accurate picture of them.

[14] A.W. filed a separate motion for an order that the court consider receiving into evidence the approximately 200 hours of videos he had made of his supervised access visits. At the hearing, A.W. accepted that neither the motions judge nor the trial judge could spare the 200 or so hours it would take to watch the videos. A.W. conceded that his request was impractical and declined to pursue the motion at the hearing of the summary judgment motion. This issue is dealt with more fully below.

[15] As an example of his concerns with the 2014 FCCA, A.W. noted that the 2014 FCCA references Society records in which A.W.’s behaviour is described as “aggressive” and “confrontational”, whereas A.W. sees his behaviour as “direct and blunt”. The court accepts that A.W. may view his conduct differently than it is viewed by others. As the record contains numerous instances in which A.W.’s behaviour is also seen by others to be aggressive and confrontational, the court accepts that characterization of his behaviour.

[16] Apart from his own affidavit evidence, A.W. led little independent evidence to challenge the accuracy or reliability of the facts as summarized in the 2014 FCCA.

[17] The FCCAs, and especially the 2014 FCCA, were a core component of the evidence put forth by the Society. Reference to the 2014 FCCA can be found in the first 15 paragraphs of the Society’s Factum.

[18] A.W., himself, adopts and relies upon some of the comments and conclusions set out in the 2014 FCCA. In his Factum, A.W. repeated and relied upon the historical facts contained in paras. 1 to 15 of the Society’s Factum with the exception of the following two facts:

1. the allegation contained in paragraph 4 of the Society’s Factum that A.W. had been physically abusive toward the children and was the cause of the injuries discovered on the body of A.M.; and

2. the allegation contained in paragraph 10 of the Society’s Factum that the three children should be considered as “special needs” children.

[19] I find the evidence put forth by A.W. insufficient to undermine or challenge the reliability of the 2014 FCCA or to detract from its weight on this motion.

[20] As permitted by the CFSA, I accept the 2014 FCCA and the 2015 FCCA as evidence on this motion. Therefore, to the extent the facts summarized in the 2014 FCCA and in the updated FCCA prepared in 2015 are neither challenged nor contradicted by credible or reliable evidence, both the 2014 FCCA and the 2015 FCCA are relied upon here as evidence to be considered by the court in determining the issues on this motion.

Background

[21] The agreed-upon facts (i.e. paras. 1-15 of the Society’s Factum, subject to the two exceptions noted above) set out the family’s lengthy history with the Society. The Society’s primary concerns have been the mental health of the parents, domestic violence between them and their high-conflict custody and access dispute.

Voluntary Involvement with the Society

[22] At the request of Justice McNamara, in July 2010, child protection worker Stephen Savage (“Savage”) prepared a lengthy summary of the Society’s involvement with this family.[^6] Savage noted significant conflict between A.W. and B.M.[^7]

[23] The Society’s file was first opened in 2007 as a result of a report from the Ottawa Police Service: A.W. had been charged with assault with a weapon and had been in an altercation with B.M., then nine months pregnant.

[24] The Society’s file was open from January 2007 to late 2010, during which time B.M. and A.W. worked with the Society on a voluntary basis. The children resided with B.M. until August 2010, when she relinquished custody of them to A.W. While they resided with B.M., A.W. saw the children at access visits.

[25] Many of the Society’s concerns were with B.M., who has an older child who was made a Crown Ward.

[26] There were also concerns with A.W.:

• In 2007, A.W. stopped communicating with the Society and could no longer be referred to the Infant Stimulation Program, which was intended to provide one-on-one time with A.W. and Z.W., then an infant.[^8]

• In September 2009, A.W. had been enrolled in the Society’s Infant Stimulation Program. The coordinator of the program reported that A.W. made a derogatory remark toward another participant, was very resistant to direction, was not complying with program rules and was “being argumentative with the staff”.[^9] A.W. was expelled from the program.

• Also in 2009, a Society Child and Youth Worker was present during an altercation between A.W. and B.M. The worker escorted the children away from the conflict. When this altercation was raised with A.W. at a Society meeting and attempts were made to discuss concerns with him, A.W. was reportedly “belligerent and confrontational”. The meeting was reportedly terminated when A.W. continued to “display irritability and paranoia.”[^10]

[27] In October 2009, A.W. disclosed to Savage that he was on a waiting list for the mood disorder clinic at the Royal Ottawa Hospital and for an anger management program.

[28] By Christmas 2009, A.W.’s supervised access to the two older children had progressed to unsupervised access.

[29] In January 2010, concerns about E.W. and Z.W. were reported by daycare workers and by E.W.’s school. Z.W. was reportedly attending daycare dirty, without diapers and was exhibiting behaviour problems.

[30] In March 2010, E.W. was showing aggression towards her peers and had issues with her fine motor skills. It was recommended that she be referred to a doctor for assessment. Concerns were also raised about the healthcare of Z.W. and A.M. A.W. was also voicing concerns about B.M.’s poor care and supervision of the children.[^11]

[31] There were allegations of possible inappropriate supervision of E.W. by B.M.’s new partner and allegations that B.M. might have physically abused one or more of the children. On May 25, 2010, A.W. reported that B.M. had asked him to take the children to “give her a break” from them. He declined this request. B.M. retaliated by denying him his next scheduled access.

[32] After the Society closed its protection file, A.W. commenced a custody application. On November 3, 2010, on a temporary and without prejudice basis, an order was made granting the primary care and residence of the three children to A.W.

[33] There is some evidence that in December 2010 there was conflict between A.W. and Z.W.’s daycare. When Z.W.’s daycare told A.W. that it was unable to handle Z.W.’s violent behaviour, A.W. was seen to be verbally and physically aggressive with Z.W. and to comment “[a] good spanking never hurt anyone.”[^12]

[34] The 2014 FCCA states that Society affidavits indicate its file on this family was re-opened in September 2011 after B.M. had alleged that A.W. had disciplined Z.W. inappropriately and that the children were “terrified of him”. Although those affidavits were not produced on the motion, there has been no assertion that this was not the evidence in those affidavits.

[35] The Society was briefly involved with the family again in November 2012. The Society wrote to A.W. on November 23, 2012, concerning reports from the community regarding his family and stating that he had been heard yelling, swearing and threatening harm toward the children. The letter further stated that the Society had been told that Z.W. had a mark on his neck and a bruise on his cheek, which the worker also observed when she attended his school on November 7, 2012.[^13]

[36] The 2014 FCCA refers to an interview of Z.W. and E.W. which took place on November 13, 2012, in which they reported physical discipline by A.W. Z.W. reported that A.W. made him sit on a bench in the bathroom from after school until A.W. went to bed at night, and that he was fed bread and water for dinner. E.W. similarly reported that she had “to sit on the bench in the bathroom from after school until A.W. went to bed if she had a bad day.” That evidence was not contradicted by A.W., who refused an interview by the Society at that time.[^14]

Apprehension August 17, 2013: Alleged Abuse by A.W.

[37] An overview of the facts relating to the August 17, 2013, apprehension is set out in paras. 3 to 5 of the Society’s Factum. As mentioned above, with the exception of the allegation that A.W. was physically abusive to A.M., A.W. repeats and relies on these paragraphs.

[38] A.W. had the custody of the children from mid-2010 to their apprehension on August 17, 2013. That apprehension was precipitated by a report by B.M. made after she noticed bruises on A.M.’s back and buttocks and red scratch marks on E.W.’s neck on an access visit. According to B.M., E.W. reported that the scratches on her neck were from A.W. “choking and pinching her”. B.M. took the children to the Children’s Hospital of Eastern Ontario (“CHEO”) to be examined. A Society protection worker met them there.

[39] The children were seen by an emergency doctor, Dr. Harmon, at CHEO. He concluded that the bruises on A.M.’s back were 48 hours old and those on his buttocks at least 24 hours old. Neither was believed consistent with an injury from a fall. The doctor informed the Society that the injury was significant enough that the primary caregiver should have sought medical attention for the child.

[40] The three children were apprehended by the Society at CHEO. All three children apparently told the emergency doctor that the injuries had been inflicted by A.W.

[41] On August 22, 2013, the court granted a without prejudice temporary care and custody order to the Society with supervised access to A.W. a minimum of twice per week and to B.M. at the discretion of the Society.

[42] On September 10, 2013 the Society learned that A.W. had been charged with one count of assault under s. 266 of the Criminal Code, R.S.C. 1985, c. C-46. On September 11, 2013, a with prejudice temporary care and custody order was made in favour of the Society.

[43] The terms of his release prohibited A.W. from having any direct or indirect communication with the children or with B.M. with the exception of access provided at the discretion of the Society.

[44] On November 12, 2013, the OCL was appointed to represent the children and the 2014 FCCA was ordered.

[45] The 2014 FCCA states that Z.W. volunteered that A.W. hit the children on the buttocks and apparently informed the Society worker that “Daddy gives us reddings”. The three children apparently reported that the bruises on A.M.’s buttocks were caused by A.W. having given A.M. a “redding”. E.W. apparently demonstrated to the police detective how A.W. would “put his hand around her neck and pinch her neck”.[^15]

[46] During Dr. McLean’s interview of A.W., A.W. was “quite guarded in regards to physical discipline. He acknowledged that he had spanked the children, despite the fact he does not believe in it. He added that he would refer to the spankings as ‘reddings’.”[^16]

[47] The court notes that the comments of A.W. as set out in the 2014 FCCA corroborate the evidence apparently given by the children concerning timeouts and “reddings”.

2014 FCCA

2014 FCCA: E.W.

[48] The 2014 FCCA reported on E.W.[^17]

[49] E.W. has had academic and social challenges since grade one. E.W. made significant gains in written expression while in foster care and by grade four was beginning to approach grade level.

[50] E.W. is described as a “sad girl”. She bottles up her feelings. She has difficulty playing with other children, including her own siblings. E.W. is seen as the instigator behind some of her brothers’ poor behaviour. She is seen to taunt her siblings and does not like “peace”.

[51] E.W.’s medical and dental history raises some concern. E.W. was late on her vaccinations. In October 2006, she needed extensive dental work that had to be done under general anaesthetic at CHEO. E.W. had temper tantrums at a young age. During one such tantrum, she held her breath until she passed out which led to a full body seizure and a visit to CHEO.

[52] At her interview by Dr. McLean, E.W. informed him that living in a foster home was good, including having nice foster parents.

[53] Dr. McLean concluded that E.W. should be viewed as a special needs child:

She demonstrates delays in many areas, including academic, social skills, and self-help…. The biggest concern would be E.W.’s difficulties in relationships with others, including parental figures or peers…. She has also seemingly had great difficulty in forming emotional attachments with the foster parents and her relationship with both biological parents also seems somewhat insecure. Unfortunately, evidence of this apparent attachment disorder would suggest that the more E.W. moves from one home to another, the more she might be emotionally scarred….

E.W.’s current guardedness also raised concerns as to whether she would disclose future abuse or neglect, should she be returned to her father.[^18]

2014 FCCA: Z.W.

[54] The 2014 FCCA reported on Z.W.[^19] When interviewed, A.W. reported that Z.W. had been neglected and physically abused by B.M. Throughout his submissions on the motion, counsel for A.W. suggested that A.W. was not treated fairly by the Society. He saw an example of that unfairness in that the Society never contacted the police about B.M. despite the physical abuse he alleges she inflicted on Z.W.

[55] According to A.W., Z.W. had been expelled from one daycare centre due to aggression. A.W. enrolled him in a different daycare, from which Z.W. was also expelled as he was “so out of control.”

[56] Information provided by Mothercraft Daycare confirmed that two months after being enrolled, Z.W. was discharged due to behaviour issues and the inability of the staff to protect the other children. On one occasion Z.W. stabbed a little girl with a fork, leaving marks. On another, he ran up to a pregnant daycare provider and punched her in the belly. The daycare provided extra staff support when Z.W. was there. It was not enough to manage him. Mothercraft stated that Z.W. displayed levels of aggression beyond those normally seen in the program and that “a skill set outside of our area of expertise would be required to appropriately manage his behaviour.”[^20]

[57] A.W. described Z.W. as more active than E.W. A.W. said that when Z.W. first came into his care, he was “wild”. He claimed that Z.W. became well-mannered under his care and that Z.W.’s behaviour had deteriorated in the foster home.

[58] A.W. stated that he had to stay on top of Z.W. and that disciplines included sitting on a step, losing a privilege or not being able to do something with the other children.

[59] Z.W. is far behind academically, especially in reading. He has a poor attention span, frequently needing individual attention, lacks problem-solving strategies, is oppositional and defiant at times and is working below grade level. He has problems with peers, and difficulty complying with classroom rules.[^21]

[60] Z.W. was interviewed by Dr. McLean. While playing a game, Z.W. was asked who loved him most in the world. He answered: his foster father. He next mentioned his foster mother. When asked about living in the foster home, he said it was good living there because the foster parents are nice. As part of the game, Z.W. identified a smart person as a judge. It was pointed out that a judge might decide where it was best for him to live and he replied that this would be with his father. He then told Dr. McLean that while his father was nice, on other occasions he was not. Later he reversed his stance and said he would like to live with his foster parents and also with his mother.[^22]

[61] When asked what a parent might do if a child was bad in school, Z.W. replied that a parent would send them to bed for an hour. This would happen even if they were having problems at school.

[62] The 2014 FCC concludes that Z.W. should be seen as a special needs child. It also states that the cause of his behavioural issues could include domestic violence and inconsistent, harsh and possibly abusive disciplining. At p. 43:

...Z.W. should definitely be seen as a special needs child. He has significant academic delays, being far behind his peer group at school. Z.W. will need a specialized educational program, as well as parents who can provide additional stimulation at home, while working cooperatively with the school. Z.W. also has notable behavioural difficulties and can be aggressive with others, including peers and authority figures…. He still cannot be left unsupervised with other children at the foster home, and has had to be separated from his brother and others when transported to school. The origins of Z.W.’s behavioural issues are quite likely multifaceted. They could include exposure to domestic violence; inconsistent, harsh, and possibly abusive disciplining; the understandable anger and anxiety created by the acrimony between his parents; and the instability he has experienced. I would concur with the findings of Dr. Palframan that Z.W.’s aggressive behaviour would be in keeping with a diagnosis of conduct disorder. … Z.W. shows evidence of an insecure attachment to his parents and was, in fact, identifying the foster father as the person he loves most in the whole world…. [emphasis added]

2014 FCCA: A.M.

[63] The 2014 FCCA reported on A.M.[^23] When Dr. McLean interviewed A.W. about A.M., A.W. reported that A.M.’s speech was delayed. A.W. stated that A.M. was involved in First Words at CHEO by age 2 and was getting assistance for the speech program through weekly visits at the Pinecrest Queensway Community Centre. A.W. stated he also did home exercises with A.M. which helped with his speech. The CHEO records included a letter dated February 5, 2013 confirming that A.M. had attended 7 of 8 small group speech and language therapy sessions from late November 2012 to the end of January 2013. A.W. accompanied A.M. to each session.

[64] A.W. stated that A.M. was a calm child and required little discipline. He handled discipline with timeouts and acknowledged that he spanked him once or twice. He denied spanking hard enough to leave a bruise.[^24]

[65] There had been many problems with A.M. in a home daycare, which included problems in dealing with B.M. A.M. had been discharged from a second daycare, which A.W. blamed on B.M. When A.M. came into his care, A.W. enrolled him in another daycare. A.W. reported that A.M. had a lot of aggression there. After a few months A.W. gave up his job and had the children stay home with him.

[66] The Mothercraft Daycare reported that A.M. was enrolled with them from mid-August 2010 until shortly after Christmas. A.W. took him out of daycare when he decided to stay home with the boys while E.W. was at school. A.M. was described as “a happy, easy-going, and typical toddler who adjusted well to routines….”

[67] Mothercraft had some negative comments about A.W.: at Christmas, all the daycare children had made gifts for each other. A.W. refused to take these stating he “didn’t do Christmas presents.” Despite the staff’s repeated attempt to persuade him to appreciate that the children had made these gifts for each other, A.W. refused to take them home.[^25]

[68] Dr. McLean was informed that A.M. attended St. Mary’s daycare from July 2012 to May 2013. A.M. was described as a quiet and clingy child who had a hard time separating from his father in the first month. St. Mary’s noted that if A.M. liked a teacher, he would stay close to her and behave well. He did not socialize with playmates and played alone. Apparently in the registration questionnaire completed by A.W., he reported that A.M. had temper tantrums at home. These were never witnessed in daycare.

[69] According to the supervisor at St. Mary’s Daycare, A.W. yelled and blamed the daycare for reporting him to the Society. When she denied that the daycare was involved, he asked to speak to each of the teachers to find out who reported him. In November 2012, the daycare noticed a mark above A.M.’s eyebrow. A.W. stated that A.M. had hit his head on a door. In December 2012, A.W. came to the daycare again and screamed at the supervisor accusing her and the staff of calling the Society.

[70] The supervisor described A.W. as giving the daycare staff a very hard time, constantly complaining about everything. A.W. blamed the Centre for lice when E.W. caught these, despite that she did not attend there and that A.M. did not have lice. She also recalled encouraging A.W. to take A.M. to the doctor for speckles over his body to rule out chickenpox or bed bugs. She reminded him three times before this was done. A.W. did get cream for A.M. but blamed the daycare for giving his son bed bugs. He did so despite the fact that no other children in the daycare had the same speckles. A.W. himself developed a rash and continued to blame it on the daycare. The supervisor described A.W. as very defensive and noted that while he wanted the best for A.M., nothing was his fault.[^26] A.M. left the daycare reportedly due to A.W. complaining that it had bed bugs.

[71] CHEO Records confirm the November 2012 incident: an Emergency Note from November 5, 2012, reports that A.M. was seen for a laceration over the right eyebrow reportedly caused by A.M. pulling the door open and hitting himself on the head. It was noted he had been brought in too late for suturing. CHEO Records also confirm that A.M. has had bed bugs: in April 2013, A.M. was brought to CHEO for a two-week old rash, determined to be caused by bed bugs.

[72] In junior kindergarten, the school noted that A.M.’s academic skills were extremely weak: he was just beginning to recognize his own name and could not print it, or letters. He did not recognize any letters or sounds.

[73] The school also noted that A.M. apparently does not recognize the importance of personal boundaries and appropriate touching and requires structured one-to-one time with an adult. He is reported to have a difficult time dealing with Z.W. He also has difficulties relating to peers and requires reminders as far as behaviour in less supervised situations.

[74] A.M. has a poor attention span and needs reminders to focus, pay attention and not shout out. He has a poor ability to complete assignments or organize or manage his belongings.

[75] The CHEO records included the August 17, 2013, attendance. In addition to the alleged cause of the bruises not matching the alleged source, the emergentologist noted: “Also concerning is that an injury capable of causing this bruise was not brought to medical attention until discovered incidentally.”[^27]

[76] Dr. McLean also reviewed a report from the Child and Youth Protection Team meeting of September 10, 2013, which concluded:

… physical abuse of 4-year-old A.M. by his father as per his clear disclosure. Physical examination in emergency department revealed a large 6×7 cm purple bruise on the left buttock which appears to have a linear pattern. He also had a large yellow bruise of the left lower back. There is no current laboratory evidence that he has a predisposition to easy bruising. The emergency note does not make reference to any apparent statement from A.M., although it advises that his 6-year-old brother had accused the father of drinking beer which contributed to his spanking them.[^28]

[77] Dr. McLean met with A.M. when he was four. He observed:

[n]otable delays in social skills, expressive language, language comprehension, and understanding of letters and numbers. A.M.’s general development was scored around a 2-year 8-month level when he was in fact 4 years, 10 months. A number of problems were also identified including speech difficulties, not understanding well, immaturity, dependent and clingy, passive, poor listener, cannot sit still, disorganized, demanding and strong-willed, disobedient, overly aggressive, unhappy, and seldom playing with other children.[^29]

[78] The 2014 FCCA concluded that A.M. also needs to be considered a special needs child:

A.M. shows serious developmental and academic delays, particularly affecting social skills and language. He will need a home that can provide extra stimulation, as well as one that can work cooperatively with the specialized school programs that A.M. will require. A.M. also demonstrates a number of behavioural difficulties, although some of these may be reflective of his intellectual delays. I would, however, add that the fighting with siblings, possible exposure to domestic violence, or violent movies in the home, as well as the inconsistent and possibly harsh or abusive discipline may also contribute. There are also concerns that A.M. may have been subjected to inappropriate physical discipline and physical abuse at the hands of his father. These matters have resulted in criminal charges against the father which have yet to be ruled on by the court. A.M. also shows a lack of attachment to his parents and was identifying his foster father as the person who loves him most in the whole world. Given A.M.’s substantial delays, the quality of parenting could well determine what level of independent functioning A.M. might achieve as an adult.[^30] [emphasis added]

2014 FCCA: Foster Parents’ Report about Children’s Behaviour while in Care

[79] The children’s first foster placement lasted less than a week: the foster parents could not handle the children’s challenging behaviours. The children have remained in the second foster home since August 22, 2013.

[80] The foster parents reported that all three children arrived lacking hygienic skills such as brushing their teeth or toileting properly. They also had difficulties with basic tasks such as tying bows and shoelaces. E.W. still requires help with washing her hair but can now tie a bow and shoelace. Z.W. can now do his buttons but not tie his shoelace. A.M. was then able to attach snaps but not do buttons or tie a shoelace.

[81] When they first arrived, the foster mother had to stop the children from eating too much. Their overeating has improved in foster care.[^31]

[82] Z.W.’s behaviour appears to have been particularly challenging for the foster parents. The foster parents reported that Z.W. is tough on toys and required constant supervision when he first arrived. He was quite threatening at times, particularly with A.M. to whom he said: “I’m going to kill you.”

[83] Z.W.’s emotions are “close to the surface” and he is seemingly terrified of many things. He has shown sexualized behaviours. One incident of sexual play was reported when Z.W. was found pulling on A.M.’s penis. Other times he pulled A.M.’s pants down. When trying to show affection, rather than hugging her, he grabbed at his foster mother’s behind. He does this less now but if she bends down he will slap her on the behind. On one occasion he was found lying on top of the female dog trying to suck at the dog’s “titties”. He also threatened to hit the dog with a shovel, which required intervention by the foster parents.[^32]

[84] If any mention was made about getting into trouble, Z.W. would be very anxious. Z.W. is described as appearing frightened of repercussions if the foster father walks towards him to intervene. On the other hand, he apparently responds well when rewarded and praised for good behaviour.[^33]

[85] Z.W. has reported getting “reddings” from his father and being put on a bench for lengthy periods. Apparently when the younger siblings talk of spankings or “reddings” from A.W., E.W. tells them to be quiet and has declared: “Daddy says not to talk about that.”

[86] The three children started at their school in September 2013. The discipline issues on the bus were such that special transportation had to be provided for Z.W. Z.W. also had a difficult time with A.M. and in avoiding physical issues with other students.

[87] The school noted good communication with the foster parents and that the foster parents followed up at home with appropriate consequences for issues occurring at school or on the bus. It also noted that A.M. often speaks of the foster parents and is excited to be picked up by the foster father, running out to him for hugs.[^34]

2014 FCCA: Supervised Access

[88] As at the date of this motion, all three children had been in foster care for over two straight years – exceeding statutory timelines. In those years, A.W. was granted only supervised access to the children. B.M. was also allowed supervised access, which she rarely exercised.

[89] At p. 50 of the 2014 FCCA, Dr. McLean reported on supervised access. He refers to reports from Lowe, who had supervised A.W.’s visits with his children since September 13, 2013. She reported the following positive aspects of the access visits: A.W. set clear limits with the children, repeated the limits and followed through on them; A.W. generally provided a healthy snack or meal for the children; and the children seemed excited to see A.W. and were affectionate. She noticed that he offered praise to the children and brought activities, including some that would encourage Z.W. to work on letters and writing.[^35]

[90] Concerns were also identified about A.W.’s access. These included:

…adult topics of conversation, lack of trust in A.W.’s working with the supervisor, and the children being placed under scrutiny including pictures taken of marks or bruises and repeated questioning. It was noted that in a November 26, 2013, access meeting, A.W. was described as argumentative with the CAS workers. …concerns raised at the meeting had apparently included A.W.’s telling the children to “get off” when they were seeking affection, his using food as a discipline technique, his refusal to help the children with their homework, and unrealistic expectations of the children, given their age and development. It was pointed out that A.W. was initially quite disrespectful and sarcastic with the supervisor, calling her “the watcher.”[^36]

[91] The Society worker expressed ongoing concerns about A.W.’s access visits: “[r]epeated instances…where the children’s emotional needs did not appear to be met…”. Although the Society tried to cue and address these behaviours with A.W.,

[i]t often appear[ed] that he d[id] not grasp these concerns, often seeing that he completed a task that was asked of him (e.g. complete homework, provide a meal, set limits with the children), but d[id] not appear able to grasp the emotional impact of his response or lack of response.[^37]

[92] On the September 2013 visit, A.W. apparently interrogated the children and photographed a mark on A.M.’s back claiming that it was a result of a “redding”. E.W. disagreed. An investigation showed that it arose from an altercation between A.M. and Z.W.

[93] A.W. was described as having “rigid expectations which included the children sitting with straight legs forward at the table, not touching walls when walking, and the children asking before hugging him.”

[94] In the November 15, 2013, visit, A.W. apparently told the children that the doctor would determine if they would return to his care or not and perhaps the doctor should decide for Z.W. to go with his mother and E.W. and A.M. to stay with A.W.[^38]

[95] The November 22, 2013, visit ended early. A.W. initially refused to provide the children with food and offered only water because they were not listening. A.W. refused to assist with homework and offered no comfort or affection to Z.W. who was frustrated with his homework.[^39]

[96] The Society worker noted that E.W. has become less withdrawn and more engaging with her as time progressed. Z.W. was described as having trouble regulating his emotions. She also reported that Z.W. had told her (the worker) on more than one occasion that when A.W. became angry he would bring them to the bedroom for “reddings”.[^40]

[97] The worker also observed visits with B.M. These were seen as very different from those with A.W.: the children appeared more relaxed and natural and much more as described by their foster home. They were spontaneously affectionate with B.M.

[98] On access visits, all children are seen to have run off without saying goodbye to B.M. and to be energized after visits with A.W.

[99] The worker noted a difference in how the children behaved during access and at the foster home. On an unscheduled visit to the foster home, she found E.W. smiling and engaging with Z.W. and A.M. both asking her to help them with homework. The worker stated:

E.W. was the biggest surprise for me. She was so relaxed, smiling and genuinely happy, during the visit [with A.W.] she appears, in my opinion, very tense, and presenting with a flat affect, rarely smiling, and struggling to even make eye contact with me. She was a different child that night. I would say the children’s demeanour was closer to that observed during the access visit with their mother, but they appeared even more relaxed.[^41]

2014 FCCA: Conclusions about A.W.

[100] The 2014 FCCA noted that “a proper assessment” of A.W. was made quite difficult on account of his guardedness. In fairness to A.W., the 2014 FCCA acknowledged that A.W. was justified in being reserved in his disclosure to the Family Court Clinic: he was facing criminal charges related to the alleged assault on the children. Nevertheless, the 2014 FCCA identified serious concerns about A.W.:

Aside from any possible physical abuse of the children, A.W. appears to be a rather rigid gentleman when it comes to setting limits and disciplining, which has allegedly included emotionally abusive behaviour such as having these young children sit for inordinantly [sic] lengthy periods of time on a timeout bench. Finally, we would suggest that aside from bipolar disorder, A.W. does show evidence of personality dysfunction of a primarily paranoid or suspicious nature. This would be in keeping with A.W.’s repeatedly blaming others including daycares for any problems with the children, and accepting no personal responsibility.[^42]

[101] Dr. McLean stated, in the 2014 FCCA, that it was the opinion of the Family Court Clinic that A.W. loves his children. What was less certain was his ability to meet the needs of his three “special needs children”—a significant concern in view of Dr. McLean’s opinion that “the quality of parenting they receive may well determine their future ability to function as independent, productive, and happy adults.”[^43]

[102] The report continued:

All three children have significant difficulties in peer relationships as well as a seemingly insecure attachment to their biological parents. This raises worries as to their ability to establish and maintain intimate relationships with others as they grow older, including partners and children. It was revealing that both younger boys identified the foster father as the person who loves them most in the world. E.W. talked of how living in the foster home was good, but she was guarded when it came to comparing her parents versus the foster home. While she seemed happy to have visits with her mother, she attributed this to her mother’s bringing food. Her interaction with B.M. was, in fact, characterized by their eating corn chips and dip together, with very little verbal or emotional exchange.

…Setting aside any such concerns of [physical] abuse, we have reservations as to A.W.’s ability to provide for the special needs of three children as a single parent, lacking in family or community supports. (…)

Should no family or kinship options be available, we would suggest the courts might wish to consider Crown Wardship alternatives for the children with a view to adoption. Given the children’s violence towards one another and special needs, we would have serious concerns about whether placing them together in a single adoptive home would be in their best interest. We would, in fact, suggest that a better option might be to place the children in separate homes with the hope that the adoptive parents could arrange ongoing contact of the three children. Were any two of the children to be kept together, it would probably be most viable that this involved E.W. and one of her brothers, given the extent of A.M.’s and Z.W.’s aggressive behaviour towards one another. The question of openness to the parents would depend upon the parents’ ability to support any such placement and make the access a positive factor for their children. (…) With A.W., one major concern would be that his paranoid or suspicious thinking would result in the likelihood that he would undermine any adoptive placement. ...[^44] [emphasis added]

Events post-2014 FCCA

Consent Finding that Children are in Need of Protection & Family Court Clinic Reassessment

[103] The 2014 FCCA was released on March 5, 2014. On consent, at the settlement conference on March 20, 2014, the court made a finding that the children were in need of protection. There was also a finding of the children’s birth, parentage and religion. On consent, a six-month Society Wardship order was made for the children, with access to the parties at the discretion of the Society. The order also authorized the parties to return to the FCC for a reassessment as soon as possible.

[104] A.W.’s criminal trial began on March 2, 2015. On the second day of the trial, the charge was resolved by way of a 12-month Peace Bond.[^45] At that point it was possible for an updated FCCA report to be prepared.

[105] An updated FCCA, dated July 21, 2015 (“the 2015 FCCA”),[^46] was completed by a different expert, Dr. Stephen Wood. Dr. Wood’s conclusions were consistent with those reached in the 2014 FCCA.

Post-2014 FCCA Access

[106] Since the children’s 2013 apprehension, A.W. has consistently attended supervised access at the Society. At the hearing, A.W. expressed frustration that his access never moved beyond supervised access. He blames that on the Society and complains that his behaviour on the access visits has been wrongly characterized. He points to comments in the 2014 FCCA that were favourable to him and, especially, to Dr. McLean’s June 9, 2015, letter amending the 2014 FCCA, which states, in part:

…A.W.’s speech was spontaneous and free-flowing and there was no evidence of any disorder in the formation of thought. A.W.’s mood showed no evidence of any significant depression or hypomania. There was, nevertheless, a great deal of anger which surfaced through A.W.’s critical and argumentative demeanour.… There was no … evidence of a psychotic or major psychiatric illness.

The social worker had observed the boys running up to A.W. in an excited matter when they greeted him for the interaction. E.W., on the other hand, was described as more indifferent and commenting on how the one-hour interaction would be a long time. A.W. came with lunch for the children…

A.W. was insisting that all the children sit at the table while they ate and he was chatting with them and asking appropriate questions. He was able to place limits on the number of chocolate chip cookies the boys were wanting. He was also informing them that they would have to finish their sandwich before they had any more sweets. A.W. appeared generally calm and relaxed with the children. While he was actively involved in play with them, there was not a lot in the way of affection or nurturing behaviour demonstrated. A.W. seemed better when it came to providing cognitive stimulation or teaching, as he would often explain various objects to boys that they were playing with. While he was attempting to get the boys involved together with cards or Lego, the boys were not accepting of the offer. E.W., however, approached her father and suggested a game of cards once she had stopped eating and they played this until Z.W. brought over a Sorry game and they switched activities. When A.M. and Z.W. were both wanting the same toy truck, A.W. was instructing them to take turns. Nevertheless, Z.W. was wanting the toy and losing his temper, stomping his feet, and whining when A.M. would not give it to him. A.W. was instructing Z.W. that “whining is not going to get it,” and suggested that he ask A.M. nicely. Overall, A.W. demonstrated some good abilities in interacting with the children, although dealing with the three of them over longer periods could be challenging.[^47]

[107] Child protection worker Velma Guvenc (“Guvenc”), who has been involved with this family since September 13, 2013, swore two affidavits in support of the Society’s motion.[^48]

[108] In her 2014 affidavit, Guvenc outlines many instances in which concerns about A.W.’s behaviour were brought to his attention. For example, one concern was that A.W. responded inappropriately to the children’s emotional needs when he became frustrated by their behaviour. He was seen to threaten the children with removal of privileges, cancelling planned trips or withholding treats.[^49]

[109] A.W.’s behaviours in front of his children are mimicked by them. When he argues with Society workers or mocks them, the children copy that behaviour. On one occasion, A.W. began stopping strangers and staff in the hallway on his access visit to say hello and ask who they were, and if they knew him. He left the children unsupervised while he did this. On another visit, A.W. became upset and raised his voice at the worker, causing the co-worker to alert security.[^50]

[110] A.W. was inconsistent with providing meals for the children on his access visit. At one point, the foster parents were asked to provide the children’s meals for these visits. Sometimes A.W. would allow the children to eat these meals and other times the meals would be wasted when he decided to take them out to eat. Between April 2014 and May 2015, A.W. refused to provide dinner for the children stating that it was easier for him if the foster parents did so.[^51] A.W. disputes this version of events.[^52]

[111] A.W. also questioned the children about their foster home during his access visits. A.W.’s behaviour is believed to be disruptive and destabilizing for the children and to undermine their foster placement.[^53]

[112] Stephanie Beamish, a Child and Youth Counsellor (“CYC”), who has supervised almost one-half of A.W.’s access visits (66 visits), reported that from May 30, 2015, to September 17, 2015, A.W. had 16 visits, 7 of which he ended early due to his inability to manage the children’s behaviour.[^54]

[113] Guvenc reports that she provided A.W. with a summary of the access notes between February and March 2014, which outlined his strengths and weaknesses. A.W.’s response was that the information was “all lies”.[^55] A.W. disagrees with the access supervisors when they point out how he managed or responded to the children. He is observed to have “visible contempt” for the Society.[^56] He refused to meet with the Family Visitation Program staff or with the foster parents to discuss the concerns.[^57]

[114] Instead, A.W. decided to make audio and then video recordings of his access visits to dispute the Society’s characterization of the visits.[^58] A.W. continued to make these videotapes over the objection of the Society and in the face of the objection by E.W. that she did not want the visits recorded.[^59]

[115] A.W. denied any problems during visits and accused the Society of keeping his children from him without cause. Guvenc reported numerous telephone and in-person meetings with A.W. that were spent arguing over these issues, blaming the Society, blaming the foster parents, and denying that he had hurt A.M.[^60]

Failure to Complete Parenting Courses

[116] In her 2014 affidavit, Guvenc outlines the efforts she took to advise A.W. about parenting education opportunities available to him and to assist him in enrolling in these programs. As at the date of this affidavit, A.W. had declined to enroll in any programs. He did so in the face of being told by Society workers of concerns they had identified with his parenting skills.

[117] A.W. has not been able to successfully complete parenting education offered to him. In October 2014, he asked for assistance in enrolling in a program called “Beyond the Basics”. He commenced the weekly program on January 15, 2015. On February 4, 2015, the Program Co-Supervisor wrote to him listing concerns regarding his behaviour in the group. Those concerns included his being rude, sarcastic and argumentative; not responding to direction or redirection from the facilitators; demonstrating little interest in the program material; interrupting the facilitators and derailing the group discussions; making negative comments about the Society, foster homes and past workers; and having a negative influence on the other participants. On April 16, 2015, A.W. was expelled from the program.[^61]

[118] A.W. then asked for help to enrol in a different parenting program: “Caution: Parents Learning”. Despite many phone calls and messages left with A.W., inviting him to contact the program supervisor, he did not do so and lost his place on the waiting list.[^62] A.W. disputes this version of events.[^63]

Stepping Stones Evidence regarding the Children’s Play Therapy and Support for the Foster Parents

[119] The Society’s record included the affidavit of Krysteli Needham (“Needham”).[^64] Needham is a Social Worker and Play Therapy Intern and works at Stepping Stones Foster Care as a clinician.

[120] Needham began seeing the children in 2014: E.W. since March 18, Z.W. since January 14 and A.M. since July 26, 2014. Her August 28, 2015, report[^65] details the behaviours the children presented when they were first apprehended and their progress over time, including that achieved in play therapy. Her report also outlines the strategies and supports that have assisted the children in making progress since their apprehension, including:

a. The foster parents are experienced and skilled. This is a two-parent foster home in which both parents are stay-at-home parents in order to meet the needs of the children. The parents are also able to provide one another with support and relief in order to deal with difficult situations. They are consistent parents and have implemented structure and routine and, in addition to providing the necessaries of life, have also given the children love and support while teaching them life skills, co-regulation and how to manage their own emotions and behaviours.

b. The foster parents receive ongoing support from Stepping Stones Foster Care, including: the case manager; 24 hour on-call emergency services; team consultation on parenting strategies; weekly support and psycho-education from a therapist; monthly training focusing on parenting children with special needs; access to a library on therapeutic parenting; and peer support from other foster parents.

c. All three children require constant supervision and a high level of attention. The children also receive weekly counselling during the school year.

[121] Needham’s report concludes with a lengthy list of recommendations as to the qualities and skills required of a caregiver for the children.[^66] It might be argued that only a professional and trained caregiver could ever meet these expectations. However, these are not ordinary children and their needs are greater than most. The list of recommendations includes:

A primary caregiver must be able to manage stressful and atypical behaviours without demonstrating anger, scorn, ridicule, panic, or retaliation. They must be able to provide a warm and positive environment, clearly express expectations, be able to implement daily routines, set firm limits, and use non-punitive consequences. Appropriate interventions need to be based on age, gender and developmental needs.[^67]

[122] Based on the record put before the court on this motion, there is no doubt that A.W. does not possess Needham’s recommended caregiver qualities. Even if A.W. had been able to educate himself on how to parent the children and meet their many needs, the record leaves little doubt that A.W. could not, or would not, work as part of a therapeutic team.

2015 FCCA: Observations and Children’s Views

[123] Consistent with the 2014 FCCA, in 2015 the children are still reported to be stating that A.W. is “mean”. E.W. does not want to live with him although she “adores” B.M. and is hardest hit when B.M. cancels a visit. A.W. calls the children once per week, but the children all tell A.W. that they do not want to talk to him. According to the foster mother, A.W. gets upset with her and the foster father when this happens and A.W. believes the foster parents are telling the children not to speak to A.W.[^68]

[124] Since the 2014 FCCA, E.W. has been treated by Dr. Cadotte, a psychiatrist at CHEO. The intake was in October 2014 and E.W. has been seen 10 times since then. The psychiatrist diagnosed E.W. with ADHD and possible PTSD with social phobia.[^69]

[125] Dr. Cadotte’s clinical report dated October 20, 2014, records that she met with E.W. and her foster mother. The foster mother expressed concerns about E.W. and revealed knowledge of E.W.’s previous punishments by her father including physical abuse, being sat in front of a scary movie, and being sat on a step without bathroom privileges, which has caused some bathroom issues in the foster home.[^70]

[126] When interviewed by Dr. Wood, E.W. indicated that her father had the most rules and would get angry easily. She recounted being scared of A.W. once, when he purposely broke a lamp at home while he was angry. She added that she saw A.W. argue or fight with B.M. and argue with CAS workers “a lot”.[^71]

[127] E.W. denied that A.W. hurt her but looked away when asked that question. Dr. Wood concluded that she was being evasive and guarded. Her guardedness raised a concern about whether she would disclose future abuse or neglect.[^72]

[128] Dr. Wood interviewed the foster mother about Z.W. His behaviour continues to be difficult and violent: he recently stabbed his teacher with a pencil at school. His foster mother does not feel safe when she is alone with him due to his yelling at females and grabbing their buttocks. He is well-behaved around his foster father. Z.W. does not display much happiness in any activity (other than breaking branches in the backyard) and she believes he thrives on getting people angry.[^73]

[129] Z.W.’s behaviour is observed to worsen after his visits with A.W. He has apparently stated he does not want to live with A.W. but does wish to live with B.M.

[130] Z.W. is also being treated by Dr. Cadotte. Z.W. is reported to have told Dr. Cadotte that A.W. is “rude” and that he has received “reddings” from him. He mentioned that A.W. made him watch bad movies that included a murder. He told Dr. Cadotte that he would like to live with his mother. Z.W. was also diagnosed by Dr. Cadotte with possible ADHD and possible PTSD.[^74]

[131] When interviewed by Dr. Wood, Z.W. was asked what it would be like to live with his father. He answered: “it would be bad…and I would be scared.” When playing a game with Dr. Wood, he was asked what was the worst punishment he ever received and why. He answered “my dad hit me on the bum really hard…but A.M. had it worse, he had bruises on him from dad.” Z.W. was not sure what he had done wrong but said he felt “sad” after it happened.[^75]

[132] At the time of his interview with Dr. Wood, Z.W. was unsure who he would most want to live with. Dr. Wood concluded this to reveal an insecure attachment to his parents and indicated the need for a “stable, consistent, loving environment”.

[133] The 2015 FCCA also comments on A.M. At p. 42, Dr. Wood agrees with Dr. McLean’s opinion that A.M.’s behaviours could be the result of intellectual delays and that other contributors to his behaviour could be the possible exposure to domestic violence, violent movies in the home, as well as inconsistent and possibly harsh or abusive discipline. During the 2015 assessment, A.M. identified his foster parents as the persons he would most like to live with. Dr. Wood concludes the section of his report on A.M. as follows:

Given A.M.’s ongoing delays in multiple areas, the quality of parenting could well determine what level of independent functioning he might achieve as an adult. Also, being in a consistent, loving environment will help improve his attachment and provide better chances that he will be able to form meaningful relationships in the future.[^76]

[134] Consistent with the conclusions reached by Dr. McLean in the 2014 FCCA, Dr. Wood concludes that the children need to be viewed as special needs children.[^77]

[135] Dr. Wood is fair to A.W. He refers to the positive comments communicated by the CYCs about A.W. They note A.W.’s consistent attendance and prompt arrivals, bringing healthy snacks, offering affection at the start and end of the visit—with the children reciprocating at times, and recent increased flexibility at the visits in regard to providing the children options, praising the children at times and often bringing appropriate toys/activities.

[136] However, the same CYCs also mention a number of concerns consistently noted on A.W.’s visits—concerns that were significant enough to make them worry for the children. They cite examples of A.W. ridiculing the children by saying “told you so” when the children fail at doing something; threatening to end the visit early and not return; making inappropriate and misleading comments such as telling the children he sold their belongings after hearing they wanted to stay in care; difficulty in managing the children’s behaviour, which is often attempted by removing them physically instead of talking to them or problem solving; being inappropriate, argumentative and disrespectful to staff in front of the children; and engaging the children in inappropriate conversations on adult topics.[^78]

[137] The CYCs expressed concern that the behaviours of A.W. cause the children emotional harm, which will compromise their emotional development in future relationships and even adversely affect the security they feel in their foster home.[^79]

[138] The 2015 FCCA confirms the information given by the children to others that none wishes to be returned to their father. They all have a fondness for their mother, who has all but abandoned them. At p. 47, the 2015 FCCA sets out the Family Court Clinic’s recommendation for placing the children: if no extended family or kin options are available, it recommends Crown Wardship alternatives with a view to adoption. The 2015 FCCA adds that the Family Court Clinic “would have serious concerns” about placing the three children in a single adoptive home. With respect to openness, the FCCA recommended that any further access visits to B.M. be conditional on her consistent attendance and that any openness to A.W. be limited to indirect contact (e.g. provision of pictures of the children to A.W.). As a final alternative, the report states that, should the court determine to return the children to A.W., this should only be done conditionally upon his participation in further parenting classes, anger management training and a progression to supervised from unsupervised access.

[139] On a plain reading of the 2015 FCCA, the Clinic’s first recommendation for these children is Crown Wardship for the purpose of adoption.

OCL Supports Crown Wardship

[140] At paragraph 7(35) of his affidavit, A.W. asserts that it is the function of Counsel for the OCL to represent the views and wishes of the children and not those of the social worker.

[141] The submissions of the OCL in support of the Society’s motion were unequivocal: it is the children’s wishes that they not be returned to their father. At the hearing, counsel for A.W. objected to the submissions being made by the OCL on the basis that they were too strongly advocating for Crown Wardship.

[142] This court accepts A.W.’s position that it is the role of the OCL to speak for the children and to advocate for their wishes. Those wishes were communicated clearly and persuasively by the OCL.

The Law

Preliminary Issue: Timeliness of Summary Judgment Motion

[143] Counsel for A.W. argued that the Society did not act in a timely manner in bringing this summary judgment motion and that it should have done so after the 2014 FCCA was received.

[144] I do not accept this argument. Given that the completion of the 2015 FCCA report had to await the disposition of the criminal charges against A.W., his complaint on this ground is ill-founded. Moreover, given A.W.’s consistent denial that he harmed A.M., it seems likely that he would have resisted any motion for guardianship on the basis that until his charges were resolved, any decision was premature.

Summary Judgment

[145] Rule 16 of the FLR governs motions for summary judgment, including those brought in child protection cases. Rule 16 of the FLR provides, in part, as follows:

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. O. Reg. 114/99, r. 16 (5).

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

[146] The language in r. 16 of the FLR, like that in r. 20 of the Rules of Civil Procedure, is mandatory: the court shall make a final order whenever the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.[^80]

[147] Hryniak v. Mauldin[^81] is the starting point for the principles that apply on a summary judgment motion. In Hryniak, the Supreme Court considered r. 20 of the Rules of Civil Procedure;[^82] however, courts have held that the Hryniak principles are applicable to motions for summary judgment in child protection cases (i.e. under r. 16 of the FLR).[^83] For example, in her judgment in Children’s Aid Society of Ottawa v. S.K., Justice Parfett concluded that the principles in Hryniak applied to summary judgment motions brought under r. 16 of the FLR,[^84] relying on the following passage from the Superior Court decision of Afolabi v. Fala:

The Supreme Court explained in Hryniak that while Rule 20 in the Ontario Rules of Civil Procedure goes further than other summary judgment rules in Canada, the values and principles relevant to its interpretation are of general application. In essence, the appropriate use of a motion for summary judgment under the (Ontario) Rules of Civil Procedure is an access to justice issue for parties to a civil action. I see no reason why parties to a family law case should not be accorded the same access to justice under the same principles. If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.[^85] [emphasis added]

[148] In view of Justice Parfett’s incorporation of the Hryniak principles into r. 16 child protection summary judgment motions, I refer to the following passage from Hryniak for guidance on what “genuine issue requiring a trial” means:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^86]

[149] Hryniak sets out the following key principles respecting the standard for granting summary judgment:

When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.[^87]

[150] Other principles that courts have developed to determine the appropriateness of summary judgment include the following:

• “A triable issue is one which is relevant to the issues to be decided. The test is whether the question at issue is a foregone conclusion. There may be a factual dispute on an issue, but that does not necessarily raise a triable issue if the balance of the admitted and undisputed evidence leads to an inevitable outcome. If, for example, it is a foregone conclusion, based on the admitted and undisputed evidence, that the best interests of the child require an order for crown wardship, then there is no genuine issue for trial. While there may be issues to be decided, the question is whether they are issues that require trial.”[^88]

• Parties must put their best foot forward; in other words, they “must lead trump or risk losing.”[^89]

• The determination of whether there is a genuine issue requiring trial is specific to the circumstances of a particular case including the nature of the order being made.[^90]

• “While it may not be appropriate in the face of the child’s best interests and the new rules to suggest that the parent’s position must be ‘untenable’ in order to resort to summary proceedings, it is clear that the nature of the evidence to be before the court, the reasonableness of any potential plans and the statutory time frames all have a role to play in the determination of whether there is a genuine issue for trial.”[^91]

• The legal process is not to be used as a strategy to “buy time” to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a parent’s heartfelt expression of his desire to resume care of the child; the parent’s evidence must support that he faces better prospects than what existed at the time the society removed the child from his care and that he has developed new parenting skills.[^92]

[151] I note, as did Justice Parfett in para. 80 of Children’s Aid Society of Ottawa v. S.K., that the court must be very cautious in considering summary judgment motions, especially in this context. At para. 81 of her decision, she reviewed the following holdings from other courts on this point:

• A court seized of a motion for summary judgment in a child protection case must “take a good hard look at the merits” to determine if there is a genuine issue for trial.[^93]

• While caution is important, it is nevertheless the case that “[i]f 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.” [^94]

• Extra caution is needed in cases where the resisting party is unrepresented.[^95]

• Motion judges “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.”[^96]

[152] Both the FLR (at r. 16(6.1)) and the Rules of Civil Procedure (at r. 20.04(2.1)-(2.2)) provide for enhanced fact-finding powers that a judge may choose to employ on summary judgment motions. For example, the FLR rule is

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 69/15,

s. 5 (1).

[153] Of the new fact-finding powers provided for in r. 20 of the Rules of Civil Procedure, Hryniak said:

The new powers in Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences.

These new fact-finding powers are discretionary and are presumptively available; they may be exercised unless it is in the interest of justice for them to be exercised only at a trial; Rule 20.04(2.1). Thus, the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication.[^97]

[154] Counsel for A.W. submits that Hryniak requires the court to look at the issue of summary judgment without trying to weigh credibility and to determine if a decision can be made without assessing credibility. If so, he submits, then r. 16 of the FLR requires the court to grant summary judgment. He further submitted that if the evidence was not clear, then the court could weigh credibility.

[155] I consider this submission to be consistent with the “roadmap” provided in Hryniak:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.[^98]

Onus

[156] The onus is on the Society to show that there is no genuine issue for trial. Once it has advanced a prima facie case then the onus shifts to the Respondent to show that there is a genuine issue requiring trial.

Analysis: Is there a Genuine Issue Requiring a Trial?

[157] I find that the Society has established a prima facie case that summary judgment should be granted and that an order of Crown Wardship without access, for the purpose of adoption, should issue. I find that the evidence advanced by the Society in support of its motion for summary judgment, reviewed above, clearly establishes the ongoing existence of the Society’s protection concerns and supports the order sought by the Society.

[158] Having found that the Society has made out a prima facie case, the onus shifts to A.W. to demonstrate that there is a genuine issue requiring a trial.

A.W.’s Arguments that there are Genuine Issues Requiring a Trial

[159] A.W. argues that there are genuine issues for trial and, therefore, that this is not an appropriate matter to be determined by way of summary judgment. He identifies a number of concerns that he asserts give rise to triable issues, including:

1. Whether the allegations that he has failed to co-operate with Society workers and staff are true and whether the Society’s workers’ negative evaluation of him and his ability to parent, as observed on the access visits, is accurate. He says that the Society has overly relied on hearsay, especially with respect to the allegations that he physically disciplined his children, and that the evidence needs to be tested by cross-examination;

2. Whether his possible bi-polar disorder or other alleged mental health issues or disorders affect his ability to parent. He questions any reliance on comments made by Society workers as to his mental health, as none of these workers have the qualifications to make a psychiatric diagnosis. Also, he questions whether either Dr. McLean or Dr. Wood reviewed his full medical/mental health history when preparing the 2014 and 2015 FCCAs; and

3. Whether the children are “special needs children” and, if so, whether the paper record is sufficient to test whether he can parent the children and manage their special needs. A.W. argues that it is premature to identify them as “special needs” as they have been in treatment for a relatively short time and their diagnoses are provisional.

Issue 1: A.W.’s Access Visits and his Co-operation with the Society

[160] A.W. argues that there is a “fundamental disagreement” between him and the Society regarding the latter’s allegations of his behaviour during access visits. He challenges the Society’s opinion that he has had difficulty cooperating with the rules of the access program. He is critical of the Society’s failure to “increase [his] access, make it semi-supervised or unsupervised, or to allow [him] to have meaningful access in the community”, despite the fact that he has had such access in the past without incident.[^99]

[161] Again, A.W. asserts that the Society has been unfair to him. A.W. compares his treatment to that given to B.M. and states that “despite her [B.M.’s] rather bleak history with mental health issues and assaultive behaviour, the Society was very open to working with the biological mother and assessing her permanency plan for the children.”[^100]

A.W.’s Motion to Introduce his Recordings of Access Visits

[162] As mentioned above, A.W. accused the Society of mischaracterizing his behaviour. His assertion that the Society was unfair to him was a reason for his taping the access visits. A.W. argues that a trial is required at which a number of his audio and video recordings could be admitted as evidence in order for him to challenge the reliability of the written records made by the Society’s access supervisors. According to A.W., his video and audiotapes contradict the access supervisors’ notes.

[163] On this issue, A.W. had filed a separate motion seeking leave to introduce video evidence of approximately 200 supervised access visits. Counsel for A.W. was invited to make submissions on whether that evidence should be considered on this motion for summary judgment. Counsel readily conceded that it would take many more hours (perhaps 200) to see this evidence than there was time available.

[164] A.W.’s counsel also conceded that the purpose of this proposed evidence was to demonstrate inconsistencies between A.W.’s recording of a visit and the notes and summaries made by the Society with respect to that visit. In this way, the evidence was intended to demonstrate that the Society’s notes and summaries were inaccurate and, hence, unreliable.

[165] Despite this purpose, A.W. had not prepared the transcripts of any of these visits. His counsel conceded that as the court would not have 200 hours to watch the videos, verbatim transcripts would likely be required in order to properly consider whether or not there was any discrepancy between A.W.’s audio recordings and the notes made by the access supervisor. Instead, A.W. proceeded as follows:

Given that it would be impractical, in a context of a motion, to produce and play almost 200 hours of recordings, I have chosen to proceed as follows. For the dates listed below, I have produced copies of the report prepared by the access supervisor. I have then listened to the corresponding tape and produced a summary of its contents. This approach was adopted as the most efficient method of demonstrating inconsistencies between the written recordings and the audio tapes….[^101] [emphasis added]

[166] Notwithstanding the acknowledgement of A.W.’s counsel that A.W. was not in a position to put his audio/video recordings into evidence and his advising the court that he did not wish to pursue that motion, counsel for the Society and for OCL were permitted to make submissions on the issue.

[167] Both the Society and the OCL argued against admitting A.W.’s audio/videotaped evidence on this motion for summary judgment. They shared A.W.’s concern that the court would not have 200 hours to view or listen to the tapes. They also agreed with A.W. that transcripts of the audio/videotapes would be required to properly assess any conflicts between the tape and the Society’s summary.

[168] Counsel for the OCL also argued that even if A.W. had prepared transcripts, neither they nor the videos should be admitted as evidence as they were taken without notice or consent of the Society and over the objections of E.W.

[169] On reviewing the summaries prepared by A.W., I did not find any noticeable contradiction between A.W.’s summaries and the Society’s reports. It must be noted that the Society’s Observation Report is not intended to be a complete record of the supervised access and specifically states that for additional information reference may be made to the Case Note.

[170] The evidence that was put forth by A.W. failed to achieve his stated goal of showing inconsistencies between the notes taken by the Society and his own recordings of the visits. He has not provided a full transcript of the recordings but provided only his summary of the recorded visit. Also, he has not produced the Case Notes which would have provided a fuller record of the visit.

[171] For the reasons set out above, had I been asked to decide this motion I would have concluded that even if it had been admitted, A.W.’s evidence on this issue would have been of limited probative value.

[172] Consideration was also given to whether this video evidence might be admitted at trial and, therefore, whether it might justify a trial. For the reasons set out above, the court concludes that the objections raised on the motion would have similar validity at a trial.

[173] On a motion for summary judgment, parties must put their best case forward: “[L]ead trump or risk losing”.[^102]

[174] A.W. was well aware of how the Society was perceiving his conduct on the access visits. That is why he began to record them. Despite that known concern, he did not put forth any evidence upon which this court could conclude that the Society’s summaries were inaccurate or biased against him.

[175] In addition, the court notes that much of the information and records reviewed and relied upon by Drs. McLean and Wood in the FCCAs corroborates the type of behaviours that were documented by the access supervisors.

[176] On the issue of the accuracy of the record of A.W.’s access visits, I find that there is no genuine issue for trial.

Did A.W. cause Physical or Psychological Harm to the Children?

[177] In oral submissions, counsel for A.W. identified a core concern over the Society’s use of “hearsay” evidence related to the allegation that A.W. used physical violence or discipline with his children and on the question of whether he caused the injuries observed on the children. In particular, A.W. challenged the accuracy and reliability of the evidence that was apparently communicated by Dr. Harmon to the Society on August 17, 2013.

[178] Evidence that the children were regularly physically disciplined appears throughout the Society’s materials on the motion. Dr. Harmon’s report is but one example. The children consistently reported to Society workers, foster parents and the OCL counsel, among others, that A.W. gave them “reddings” and other discipline, for example prolonged periods of sitting on a bench in the bathroom. A.W. himself corroborates that evidence and acknowledges that he has spanked all of the children and given them “reddings”. Speaking for the children, the OCL also confirmed that evidence.

[179] The material on the motion is also filled with examples of A.W.’s behaviours that have caused emotional harm to the children. Those include his arguments and altercations with B.M. and his arguments and conflict with the children’s daycare providers and with Society workers, witnessed by the children.

[180] In view of the overwhelming evidence gathered over a long history of Society involvement, I am satisfied that a trial is not required to determine whether A.W. had inflicted physical or psychological harm to the children. It is fair to make that finding based on the evidence on this motion, which includes A.W.’s admissions and also comes out of the mouths and behaviours of his children.

Issue 2: A.W.’s Mental Health and its Impact on his Ability to Parent

[181] A.W.’s counsel states that allegations that his client was unable to parent were based, in part, on his diagnosis of Type 2 Bipolar Disorder and mental health issues. A.W. challenges any diagnosis of mental illness, which he asserts is not supported by sworn medical evidence. A.W.’s counsel argued that the evidence showed that even if A.W. suffers from Type 2 Bipolar Disorder, which is not entirely clear, A.W. is compliant with his medication and any such disorder has no impact on his parenting ability.

[182] A.W. further questions whether Dr. McLean and Dr. Wood had seen the medical evidence that he has referenced in his responding affidavit.[^103] In fact, while A.W. refers to only some of his own medical records, Drs. McLean and Wood reviewed those and other medical records relating to A.W., as listed in the 2014 and 2015 FCCAs. In that same paragraph, A.W. suggests that both assessors were “acting with very limited information”. That assertion is contradicted by the extensive list of sources of information set out in the FCCAs.

[183] At pp. 23 and 24 of the 2015 FCCA, Dr. Wood acknowledges that there is a question with respect to A.W.’s diagnosis of bipolar disorder. He confirms that his physicians have not seen any symptoms or evidence of this disorder. Dr. Wood makes reference to A.W.’s recent assessment at the Mood Disorders Program at the Royal Ottawa Hospital in 2015. He states that A.W. sees his family physician and his psychotherapist on a regular basis and that they all report that he is asymptomatic. On the subject of his psychotherapy, Dr. Wood notes that A.W. “seemingly continues to have minimal insight into how his behaviours and demeanour affects others despite his participation in counselling.”

[184] Dr. Wood’s comments satisfy the court that he has fully informed himself of A.W.’s medical history and records and that he does not base his conclusions on a finding or diagnosis of mental illness.

[185] A.W.’s own affidavit puts his mental health into issue: he states that he last worked in 2011 and receives ODSP for bi-polar disorder. A.W. includes the notes and report of Dr. Ribeyre of April 20 and June 29, 2015.[^104] In the April note, Dr. Ribeyre noted that A.W. is on disability. She states that there are no evident psychotic symptoms but notes, parenthetically, that: “he may present with paranoid personality disorder traits.” In her June 29 report, Dr. Ribeyre states that A.W. does not meet the DSM5 criteria for paranoid personality disorder.

[186] The evidence of Dr. Ribeyre establishes that A.W. is compliant with and benefits from medication to treat bipolar disorder and that he has not been diagnosed with paranoid personality disorder. These conclusions are consistent with those of Dr. Wood found at page 21 of the 2015 FCCA:

A.W.’s mood showed no evidence of any significant depression or hypomania.… There was no gross disturbance of memory, nor were there any delusions, hallucinations, or evidence of a psychotic or major psychiatric illness.

[187] A.W. also relies on a letter from Dr. Peter Duffy dated March 26, 2015.[^105] Dr. Duffy states that he has been providing A.W. with cognitive behaviour therapy since May 2014 to help A.W. “cope with the court proceedings and ongoing investigation of his suitability as a parent being conducted by the Childrens’ [sic] Aid Society. This process was causing him stress and Dr. Djuricic felt that cognitive restructuring tools and cognitive behavior techniques might benefit him.”

[188] Dr. Duffy is clear that he is not a psychiatrist and, also, that he is not commenting on and is not in a position to comment on A.W.’s history with his children. The evidence of Dr. Duffy therefore does not assist this court in its determination of the issues on this motion for summary judgment.

[189] The court concludes that there is no genuine issue for trial in respect of whether A.W.’s diagnosis of bi-polar disorder and other mental health concerns affect A.W.’s ability to parent his children. The evidence relied on by the Society in support of its motion for summary judgment does not depend on a finding or diagnosis of mental illness.

Issue 3: “Special Needs” of the Children and A.W.’s Ability to Parent “Special Needs Children”

[190] A.W.’s submission is that the children do not have “special needs” and that their behavioural challenges are instead a result of their being in foster care:

It is my position that it is entirely possible that many of the behaviours that [the children] are exhibiting derive from the stress and anxiety of their current situation. (…) No consideration appears to have been given to the fact that this type of care may be one of the primary causes of their current issues. It is, in my respectful opinion, premature and unsafe based on the currently available evidence to classify these children as being ‘special needs’.[^106]

[191] The argument put forth by A.W. entirely conflicts with the evidence. It even contradicts his own position in his Factum, at para. 20, that “[t]he most consistent and compelling evidence of therapeutic involvement with the children relates to the work that they have done with Krystali [sic] Needham…”.

[192] Among other things, Needham’s report provides a snapshot of the children as at the time of apprehension. She then sets out pages and pages of the children’s needs and concludes with over one page of qualities a caregiver would require to manage their “complex needs”.[^107]

[193] In the 2015 FCCA, A.W. is observed as “argumentative and overly critical” throughout his assessment. Dr. Wood made positive observations of A.W. on the access visit with the children, but nevertheless noted some significant concerns. Dr. Wood observed that A.W.’s biggest struggle was dealing with Z.W. During the interaction visit at the Family Court Clinic, Z.W. punched A.M. and A.W. gave him an appropriate timeout. However, Z.W.’s behaviour escalated to yelling and slamming his fists on the ground. A.W. threatened to end the interaction if Z.W. did not stop. He did not stop and A.W. then asked for the Child Protection Worker. The situation resolved when E.W. came back to the room and A.M. was removed for an interview. At the end of the visit Z.W. still appeared angry and A.W. “raised his voice in an unfriendly tone to redirect him”.[^108]

[194] The above is just one small example of the challenges presented by Z.W.’s behaviour and the difficultly A.W. had in dealing with it. The evidence is undisputed that Z.W. has behavioural challenges and needs that are challenging even for those with professional training and skill.

[195] On its face, the record leaves no doubt that A.W. could not handle the children’s behaviours or realistically meet their needs. The historic record has documented that A.W. has resorted to physical and other forms of discipline (long timeouts, food deprivation) to cope with and control the children’s behaviours. The evidence is that his actions have harmed the children.

[196] There is no evidence that A.W. has done anything to improve his parenting skills. To the contrary, the evidence is that he was expelled from the two parenting courses in which he had enrolled.

[197] All the experts agree that the children’s needs demand a team of professionals. Their care will also require regular co-operation and collaboration among the team members (e.g. the foster parents, school, counsellors and physicians).

[198] The record contains many examples of A.W. blaming others for his children’s behavioural and other challenges: he blames the foster home for their behavioural problems; the daycare for their health problems, including lice and bed bugs; B.M., whom he asserts was treated better than he was by the Society; and ultimately the children themselves, who were punished if they had a bad day at school. In addition, the 2014 FCCA (via Dr. McLean’s June 2015 letter) records “a great deal of anger which surfaced through A.W.’s critical and argumentative demeanour.”[^109] Such behaviour is not compatible with the co-operative and collaborative approach required for these children.

[199] The ample record leads to the clear conclusion that A.W. could not manage the three children on his own and also that he would not be able to work with the various professionals.

[200] There is no reason to doubt that A.W. would resort to the methods he has historically used to try to control or punish the children for behavioural problems. Even in the controlled environment of a supervised, time-limited visit, A.W. struggled to manage the children, even with the help of two supervisors (e.g. cuing him to the needs of the children).

[201] A similar lack of success with Z.W. was observed on a supervised visit to A.W.’s home. Again, faced with Z.W.’s difficult behaviour, A.W. threatened to end the visit. In the visit Z.W. was aggressive toward E.W. and A.M. After a “short period” during which things seemed to be going smoothly, Z.W.’s behaviour deteriorated to his hitting E.W.’s shovel and arguing with her. Consistent with the record that documents A.W. blaming others for his children’s behaviours and health problems, A.W. is noted to have said: “Makes you wonder what is going on before they come for visits”.[^110]

[202] Dr. Wood notes that A.W. “seemingly continues to have difficulty in accepting personal responsibility for his actions, often stating that Children’s Aid had no previous complaint of him, and that his current situation is the result of Children’s Aid and B.M.”[^111]

[203] Of significance to the court is that after their apprehension and placement in foster care, the children’s behaviour and their academic success have improved. Since their apprehension, the children’s many needs have been identified and there are now ongoing strategies and plans in place to meet those needs and to help the children to become independent and happy adults.

[204] On the issue of whether or not the children have special needs and the related issue of whether A.W. is able to meet any such needs there is absolutely no doubt. These are not triable issues.

Does the Society rely on A.W.’s Alleged Refusal to Co-Operate?

[205] A.W. argues that a triable issue exists on the issue of whether A.W. did or will co-operate with the Society. His counsel points to the fact that A.W. had almost 200 supervised access visits and argues that the Society ought to have taken steps to move beyond supervised access. A.W. argues that the Society did not do so because it presumed he was guilty of assaulting his children, when, in fact, the charges were withdrawn.

[206] The record does not support A.W.’s arguments on this point. There have been many problems with the supervised access, which has been terminated at times and reduced as a result of A.W.’s behaviour and the effect his visits have had upon one or more of the children.

[207] That the Society has worked with this family since 2007 is evidence that it has been trying to help them for many years. Even the fact that this motion was not brought until the children had been in care for over two years is some evidence of the Society’s willingness to give A.W. time to ready himself to care for the children. He has not done so to date. The evidence offers no reasonable basis to conclude that he could ever do so.

[208] There is no evidence that the Society and other caregivers have a personal animosity toward A.W. or that they are trying to punish him by keeping his children from him. Rather, the evidence is that the needs of these children are so great that their only chance of achieving independent functioning may be by finding them parental caregivers who possess certain skills and who can work together with the children’s team of counsellors, therapists, and educators, to help them grow up and succeed as adults.

[209] A.W.’s ability to co-operate with the Society is not a triable issue.

Is it Necessary to Resort to the New Fact-Finding Powers in this Case?

[210] I find that the Society’s evidence is sufficient to grant summary judgment without requiring me to weigh credibility. The evidence is overwhelming that the children are in need of protection and that further intervention is necessary in order to protect them in the future. As discussed above, A.W. has not demonstrated that there are any genuine issues requiring a trial in this case. For that reason, I conclude that summary judgment is appropriate in this case.

[211] Were I to weigh credibility as between the evidence of A.W. and the evidence put forward by the Society, in view of the very long factual record, the key admissions made by A.W. that corroborated the evidence of physical and emotional abuse while the children were in his care and the records and information obtained from independent third parties (e.g. daycare providers, course instructors, and treating physicians), I would prefer the evidence put forward by the Society.

Best Interests of the Children

[212] Applying the applicable legal principles to this case, the evidence allows me to find the facts necessary to conclude that a Crown Wardship order, without access, for the purpose of adoption, is in the children’s best interests.

[213] The fundamental purpose of the CFSA is to promote the best interests, protection and well-being of children.[^112] All of the evidence put forth by the Society must therefore be analysed within that context.

What Are the Children’s Needs and How Can those Needs be Addressed?

[214] The children’s needs have been identified in the 2014 FCCA, the 2015 FCCA and the affidavit evidence, including the Needham affidavit. The nature of the children’s needs have been referred to extensively in these reasons.

[215] The court finds that there is ample evidence for a finding that all three children should be considered “special needs children”.

[216] At paragraph 17 of his Factum, A.W. concedes that there may be validity to Dr. Wood’s conclusion that all three children should be considered as having special needs.

[217] Recommendations concerning how those needs can be met and by whom those needs can be met are also contained in the material put forth by the Society. There is overwhelming evidence that A.W. cannot meet his children’s needs, and that his actions have contributed to their needs.

[218] In argument, counsel for A.W. submitted that A.W. had demonstrated that he was able to properly parent the children, given that he had had sole custody of them for more than three years prior to their apprehension in 2013. Having thoroughly reviewed the evidence, it is reasonable to conclude that the children suffered emotional and physical harm in the years during which A.W. was their sole custodian.

[219] In keeping with the legal principles set out in CAS of Toronto v. H. (R.), A.W.’s heartfelt expression of his desire to resume the care of his children is not enough.[^113] A.W. must show that he has “better prospects” for the children’s care than existed when they were apprehended. He has not done that.

[220] As stated above, the OCL strongly supported the Society’s motion. That support was based upon the expressed wishes of the children, referred to elsewhere in these reasons. Of the three, A.M. is the only child who appeared inconsistent in his views about not wanting to live with his father. His inconsistency can easily be explained by his young age. What he has not been inconsistent about is that his father caused him physical harm.

[221] The children have expressed a reasonable wish for a permanent home. They should not have to wait a minute longer for that opportunity.

[222] For the reasons above, I found there to be no genuine issue for trial and granted summary judgment, ordering Crown Wardship without access for the purpose of adoption, which I conclude to be the just result.

Sheard J.

Released: November 16, 2015

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

CITATION Children’s Aid Society of Ottawa v. M.,: 2015 ONSC 5971

COURT FILE NO.: FC-13-1818-1

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant (Applicant on Motion)

– and –

B. M. (Mother) *Mother noted in default and did not appear

A.W. (Father)

Respondent (Respondent to the Motion)

MOTION FOR SUMMARY JUDGMENT

Sheard J.

Released: November 16, 2015

[^1]: O. Reg. 114/99. [^2]: Throughout these reasons, this report will be referred to as the “2014 FCCA”. It is located at Vol. 2, Tab 7F of the Child Protection Continuing Record (“CPCR”). [^3]: 2014 FCCA, CPCR, Vol. 2, Tab 7F, at pp. 1-4. [^4]: CPCR, Vol. 2, Tab 7K. [^5]: This FCCA is referred to as the “2015 FCCA” throughout these reasons and is located at CPCR, Vol. 1, Tab 8. See paras. 103-105 regarding the need for the 2015 FCCA. [^6]: CPCR, Vol. 1, Tab 5A. [^7]: Ibid, at p. 2 (and see also pp. 5, 13-14, 18, 20 & 21-22). [^8]: 2014 FCCA, CPCR, Vol. 2, Tab 7F, at p. 7. [^9]: Ibid, at p.8. [^10]: Ibid. [^11]: CPCR, Vol. 1, Tab 5A, at pp. 19-23. [^12]: 2014 FCCA, CPCR, Vol. 2, Tab 7F, at p. 8. [^13]: CPCR, Vol. 2, Tab 7D (letter from Ms. Dominique Leeman, child protection worker, to A.W. dated November 8, 2012). [^14]: 2014 FCCA, CPCR, Vol. 2, Tab 7F, at p. 9. [^15]: Ibid, at p. 10. [^16]: Ibid, at p. 37. [^17]: Ibid, at pp. 29-35. [^18]: Ibid, at p. 35. [^19]: Ibid, at pp. 35-43. [^20]: Ibid, at p. 36. [^21]: Ibid, at p. 38. [^22]: Ibid, at p. 43. [^23]: Ibid, at p. 44-50. [^24]: Ibid, at p. 46. [^25]: Ibid, at p. 45. [^26]: Ibid. [^27]: Ibid, at p. 49. [^28]: Ibid. [^29]: Ibid, at pp. 49-50. [^30]: Ibid, at p. 50. [^31]: Ibid, at p. 39. [^32]: Ibid. [^33]: Ibid. [^34]: Ibid, at pp. 46-47. [^35]: Ibid, at p. 50. [^36]: Ibid. [^37]: Ibid, at pp. 41-42 [^38]: Ibid, at p. 51. [^39]: Ibid. [^40]: Ibid. [^41]: Ibid. [^42]: Ibid, at pp. 24-25. [^43]: Ibid, at p. 54. [^44]: Ibid, at pp. 54-55. [^45]: CPCR, Vol. 2, Tab 2, at para. 47. [^46]: 2015 FCCA, CPCR, Vol. 1, Tab 8. [^47]: CPCR, Vol. 2, Tab 7K. [^48]: Affidavits of Velma Guvenc, dated Sept. 2, 2014, and Sept. 15, 2015, are found at CPCR, Vol. 1, Tab 2 and CPCR, Vol. 2, Tab 2, respectively. [^49]: CPCR, Vol. 1, Tab 2, at para. 18. [^50]: Affidavit of Stephanie Beamish, dated Sept. 17, 2015, found at CPCR, Vol. 2, Tab 3, at paras. 20-22. [^51]: Ibid, at para. 18. [^52]: Affidavit of A.W., dated Sept. 23, 2015, found at CPCR, Vol. 2, Tab 7, at para. 63(18). [^53]: Affidavit of Stephanie Beamish, dated Sept. 17, 2015, found at CPCR, Vol. 2, Tab 3, at para. 22. [^54]: Ibid, at para. 10. [^55]: Affidavit of Velma Guvenc, dated Sept. 2, 2014, CPCR, Vol. 1, Tab 2, at paras. 15-16. [^56]: Ibid, at para. 13. [^57]: Ibid, at para. 16. [^58]: Affidavit of A.W., dated. Sept. 23, 2015, CPCR, Vol. 2, Tab 7, at para. 45. [^59]: Affidavit of Velma Guvenc, dated Sept. 2, 2014, CPCR Vol. 1, Tab 2, at para. 19. [^60]: Ibid, at para. 24. [^61]: CPCR, Vol. 2, Tab 2A (note: the affidavit to which this letter is attached states that it is at Exhibit B; in fact, it is appended at Exhibit A). [^62]: Affidavit of Velma Guvenc, dated Sept. 15, 2015, CPCR, Vol. 2, Tab 2, at paras. 44-46. [^63]: Affidavit of A.W., dated Sept. 23, 2015, CPCR, Vol. 2, Tab 7, at para. 70(46). [^64]: Affidavit of Krysteli Needham, dated Sept. 14, 2014, CPCR, Vol. 2, Tab 1. [^65]: Stepping Stones Report, CPCR, Vol. 2, Tab 1A. [^66]: Stepping Stones Report, CPCR, Vol. 2, Tab 1A, at pp. 10-11. [^67]: Ibid, at p. 11. [^68]: 2015 FCCA, CPCR, Vol. 1, Tab 8, at p. 26. [^69]: Ibid, at p. 28. [^70]: Ibid. [^71]: Ibid, at p. 30. [^72]: Ibid, at p. 31. [^73]: Ibid, at p. 33. [^74]: Ibid, at p. 35. [^75]: Ibid, at p. 32. [^76]: Ibid, at p. 43. [^77]: Ibid, at p. 46. [^78]: Ibid, at p. 44. [^79]: Ibid. [^80]: FLR, supra note 1, r. 16(6); Rules of Civil Procedure, R.R.O. 1990, Reg 194, r. 20.04. [^81]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [“Hryniak”]. [^82]: Rules of Civil Procedure, supra note 80. [^83]: See e.g. Children's Aid Society of Ottawa v. S.K., 2015 ONSC 4623 [“S.K.”]; CAS v. Al-Wazzan (5 August 2015), Ottawa, FC-13-00002784 (Ont. Sup. Ct.). [^84]: S.K., supra note 83, at para. 74. [^85]: Ibid, at para. 76, quoting Afolabi v. Fala, 2014 ONSC 1713, 46 R.F.L. (7th) 75, at para. 38 [“Afolabi”]. [^86]: Hryniak, supra note 81, at para. 49. [^87]: Ibid, at para. 50. [^88]: Children's Aid Society of Ottawa v. T. (R.N.), 2014 ONSC 916, 2014 CarswellOnt 4195, at para. 8. [^89]: Afolabi, supra note 85, at para. 47, citing 1061590 Ontario Ltd v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547, 77 O.A.C. 196, at p. 557. [^90]: Children’s Aid Society of Waterloo (Regional Municipality) v. S. (T.) (1999), 14 O.F.L.R. 90, at para. 6 (C.J.) [“S. (T.)”]; B. (F.) v. G. (S.) (2001), 2001 CanLII 28231 (ON SC), 199 D.L.R. (4th) 554, at para. 28 (Ont. S.C.J.). [^91]: S. (T.), supra note 90, at para. 9. [^92]: Children's Aid Society of Toronto v. H. (R.), 2000 CanLII 3158 (ON CJ), 2000 CarswellOnt 6170, at para. 18 (C.J.) [“H. (R.)”]; cited with approval in Family, Youth and Child Services of Muskoka v. W. (L.), 2013 ONSC 7040, at para. 38 [“W. (L.)”]. [^93]: B(F.) v. G.(S.), supra note 90, at para. 28. [^94]: Catholic Children’s Aid Society of Toronto v. M. (A.), 2007 ONCJ 743, 89 R.F.L. (6th) 209, at para. 7. See also Jewish and Child Family Service v. A. (R.), 2001 CarswellOnt 73 (S.C.); Children’s Aid Society of Hamilton v. W. (M.), 2003 CanLII 2309 (ON SC), 63 O.R. (3d) 512, at paras. 47 & 49 (S.C.). [^95]: Children’s Aid Society of Toronto v. M. (P.), 2002 CanLII 53206 (ON CJ), 2002 CarswellOnt 1883. [^96]: Family, Youth and Child Services of Muskoka v. W. (L.), supra note 92, at para. 38b. [^97]: Hryniak, supra note 81, at paras. 44-45 [internal citation omitted; emphasis in original]. [^98]: Ibid, at para. 66 [emphasis in original]. [^99]: Affidavit of A.W., dated Sept. 23, 2015, CPCR, Vol. 2, Tab 7, at para. 43. [^100]: Ibid, at para. 44. [^101]: Affidavit of A.W., dated Sept. 23, 2015, CPCR, Vol. 2, Tab 8, at para. 16. The summaries, and the Society’s reports against which they are to be compared, are Exhibits A through H of this affidavit. [^102]: See note 89. [^103]: Affidavit of A.W., dated Sept. 23, 2015, CPCR, Vol. 2, Tab 7, at para. 57. [^104]: CPCR, Vol. 2, Tab 7I. [^105]: CPCR, Vol. 2, Tab 7J. [^106]: Affidavit of A.W., CPCR, Vol. 2, Tab 7, at para. 61. [^107]: CPCR, Vol. 2, Tab 1A, at p. 10. [^108]: CPCR, Vol. 1, Tab 8, at p. 22. [^109]: CPCR Vol. 2, Tab 7K, at p. 1. [^110]: CPCR, Vol. 1, Tab 8, at p. 23. [^111]: Ibid. [^112]: CFSA, s. 1(1). [^113]: H. (R.), supra note 92, at para. 18.