This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: C25/14

DATE: 2015-12-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Monis Anis – Counsel for the Applicants

Applicants

• and -

B.W-B. (Mother)

-and-

F.M. (Father)

-and-

S.B. (Maternal Grandmother)

B.W-B. (Mother) – Not appearing

F.M. (Father) – Not appearing

Jennifer Swan – Counsel for the Maternal Grandmother

Respondents

HEARD: December 2, 2015

THE HONOURABLE MR. JUSTICE PAZARATZ

[1] This was a summary judgment motion brought by the Catholic Children’s Aid Society of Hamilton (“the Society”) in relation to a male child A.W.M. born […], 2014.

[2] A.W.M. was apprehended at birth. He has been in care his whole life -- 20 months now. The Society seeks an order that he be made a Crown Ward with no access.

[3] On April 4, 2014 the Society commenced a Protection Application.

[4] A.W.M. was found to be in need of protection pursuant to s. 37(2)(b) and 37(2)(l) of the Child and Family Services Act (“the Act”) on July 21, 2014. All of the other preliminary findings were also made, in relation to religion and non-native status.

[5] The mother is B.W-B. She also has a daughter A.M.M. born […], 2015, who was also apprehended at birth.

[6] The father is F.M.

[7] S.B. is B.W-B.’s mother (A.W.M.’s maternal grandmother).

[8] B.W-B., now age 18, is the oldest of S.B.’s five children. S.B.’s other children are currently 14, 12, 10 and seven. S.B. has been a single parent toward these children since she separated from their father in October 2013.

ORIGINAL SUMMARY JUDGMENT MOTION

[9] On May 28, 2015 the Society initially brought this motion for summary judgment. After the motion was commenced, S.B. was added as a party to the proceedings on June 3, 2015.

[10] The Society’s motion was originally heard on June 26, 2015. B.W-B. and S.B. were both represented by counsel and opposed the Society’s request. F.M. had already been noted in default on April 29, 2015.

[11] On August 7, 2015 Justice Mazza issued a 15 page endorsement granting summary judgment against both B.W-B. and S.B.

[12] However, the Society and S.B. subsequently consented to an order that the August 7, 2015 order as it related to S.B. would be set aside, to be re-argued based on the original motion record as it existed on June 26, 2015.

[13] When the motion was re-argued on December 2, 2015, counsel for the Society and S.B. both confirmed there was no need for any updating materials to be filed.

CURRENT SUMMARY JUDGMENT MOTION

[14] The only question on the motion before me is whether there is a genuine issue for trial in relation to S.B.’s claims. She proposes that A.W.M. be placed in her care, either pursuant to a custody order under section 57.1 of the Act; or under a supervision order. In the alternative she seeks ongoing access.

[15] While I will focus on the outstanding issues in relation to S.B., it will also be necessary for me to refer to the evidence as it relates to B.W-B. and F.M. This will provide important context.

B.W-B. & F.M.

[16] The Society became involved with B.W-B. and F.M. as expectant parents on October 11, 2013, when a Society worker attended S.B.’s home as part of his ongoing involvement with S.B. and her children. At that time the Society learned B.W-B. was four months pregnant.

[17] B.W-B. and F.M. resided together in the home of the paternal grandmother E.M. from July 2013 until August 2014. E.M. made numerous reports of mutual physical and verbal aggression between B.W-B. and F.M.

[18] B.W-B. and F.M. both minimized the extent of conflict between them. But they acknowledged that conflict occurred, including both having punched holes in the walls of E.M.’s home while arguing. The Society repeatedly expressed concern about the conflict in the couple’s relationship and recommended couples counselling, but the parents did not follow through prior to the birth of A.W.M.

[19] On March 31, 2014 (just prior to A.W.M.’s birth) the parents denied to the Society worker that there had been any recent incidents of conflict between them. They said they had accomplished this through their personal effort, acknowledging that they had not attended any counselling services.

[20] Following A.W.M.’s apprehension at birth, the paternal grandmother E.M. minimized the many incidents of physical aggression between the parents which she had previously reported to the Society.

[21] In an affidavit sworn May 26, 2014 B.W-B. “categorically denied” any physical aggression between herself and F.M.

a. She acknowledged that they argued, “sometimes loudly”, and blamed these arguments on the stress caused by the Society’s involvement.

b. B.W-B. stated: “Our relationship would have been relatively peaceful without the involvement of the CCAS”.

c. She described the couple as “inseparable”, stating “we have loved being with each other for all hours of every day.”

d. She also stated “My relationship with F.M. is stronger than ever. Our couples’ counselling has been successful and we have no trust issues anymore.”

[22] Home visits for the parents commenced on June 3, 2014 but ended on June 25, 2014 following a domestic violence incident between the parents. Access was then moved back to the Society.

[23] On July 21, 2014 a four-month Society Wardship order was made on consent.

[24] In August 2014 the parents had another physical confrontation.

a. F.M. showed the Society worker marks on his body which he said were caused by B.W-B.

b. B.W-B. had two black eyes which F.M. attributed to her punching herself in the fact.

c. According to B.W-B.’s family, F.M. had smashed her face off a wall.

d. B.W-B. advised the Society that she had been afraid to report the ongoing conflict between her and F.M. because it might have jeopardized them getting A.W.M. back.

e. F.M. reported to the Society that he once gave B.W-B. a concussion and he did not want her to get all the blame for the physical confrontation. He admitted he had hit her as well.

f. B.W-B. said the incident was caused by F.M.’s continued use of pornography, during which argument F.M. punched B.W-B. and she “responded for self-protection”.

[25] Following this incident access visits by the couple were separated. F.M. did not attend for access between late August and October 2014. Joint visits for both parents resumed at that time.

[26] In September 2014 the paternal grandmother E.M. brought a motion to be added as a party, but she subsequently withdrew that motion. She did not pass a kinship assessment conducted by the Society.

[27] Also in September 2014 the parents moved into their own apartment in Hamilton.

[28] In an affidavit sworn November 10, 2014 B.W-B. stated: “The most significant concern the CCAS appears to have is that our relationship has been volatile from time to time. I am very pleased to report that since we have had our own apartment away from the pressures of living in E.M.’s home that we have had no blow-ups whatsoever. I acknowledge that we have had normal disagreements but we have been able to handle and minimize conflict.”

[29] B.W-B. stated that moving out of E.M.’s home was “the best thing that has happened to us” and added that there had been no further incidents of domestic violence since August 2014.

[30] On November 12, 2014 the Society commenced a Status Review Application seeking Crown Wardship without access.

[31] On January 12, 2015 a further four-month Society Wardship order was made for A.W.M., on consent. The order provided that the parents’ six hours per week of semi-supervised home access would continue “with a view to further expansion on a monthly basis, based on the positive nature of the current access, their regular attendance, their continued cooperation with Society workers, their continued attendance in programming, their compliance with court orders, and no new protection concerns arising such as a further incident of domestic violence or loss of residence.

[32] In mid-February 2015 the parents cancelled a visit because they had been arguing about F.M.’s use of pornography. The parents identified at this time that F.M. was not helping with A.W.M.’s care during access.

[33] In early March 2015 the Society wrote to counsel for B.W-B. clearly identifying that not enough progress had been made to return the child to the parents’ care.

[34] On […], 2015 A.M.M. was born. She was apprehended at the hospital and on April 9, 2015 a temporary without prejudice order was made that A.M.M. remain in care. A.M.M. continues to be in foster care.

[35] By April 2015 the parents had approximately 20 hours of semi-supervised in-home access with A.W.M.

[36] On April 22, 2015 B.W-B. and F.M. engaged in conflict in their home, which resulted in both of them being arrested and charged with assault level one. F.M. was also charged with assault with a weapon.

[37] Immediately following this incident, the couple separated. B.W-B. went to live with a former boyfriend J.M., whom she is now identifying as the father of A.W.M.

[38] On April 29, 2015 F.M. was noted in default. B.W-B. was given an extension of time to file an Answer to the current Status Review Application regarding A.W.M. Deadlines were imposed for the proposal of a kinship plan, and for a summary judgment motion to be commenced.

[39] In her Answer/Plan of Care dated May 7, 2015 B.W-B. proposed to parent A.W.M. in the home of J.M., with whom she had begun to reside approximately one week prior.

[40] In an affidavit sworn May 7, 2015 B.W-B. described “tapping” F.M. on the forehead in response to his insults and threats on April 22nd, and F.M. holding a big chef’s knife to her throat.

a. She stated that she had “misjudged F.M. as a good life partner for me and my children.”

b. She described her “reconciliation” with J.M. as “nothing short of miraculous”.

c. She stated that “most of the concerns expressed by the CCAS about me parenting my children resulted from my relationship with F.M. I believe that the concerns will be seen to have resolved by my separation from F.M. and by my rediscovered relationship with J.M.”

[41] Following the separation of B.W-B. and F.M. in late April 2015, F.M. advised the Society about numerous concerns regarding B.W-B., including that she regularly physically assaulted him and that she neglected A.W.M. during access visits.

[42] B.W-B. denied these allegations and made her own allegations about F.M., including that he masturbated in front of A.W.M. during visits and yelled at the child when he was crying during visits. B.W-B. had not previously made these allegations to the Society.

[43] In the Answers filed by B.W-B. and F.M. they both identified F.M. as A.W.M.’s biological father.

[44] On May 27, 2014 B.W-B. deposed that she and F.M. “are confident that A.W.M. is F.M.’s biological child” and that she and F.M. did not agree to a paternity test because it was not necessary. She said “I know that A.W.M. was F.M.’s son.”

[45] In Answers filed to the November 12, 2014 Status Review Application, both parents again identified F.M. as the father of A.W.M.

[46] But after A.W.M. had been in foster care for approximately one year, B.W-B. reversed her long-standing insistence that F.M. was the father of A.W.M.

a. In an affidavit sworn June 10, 2015 B.W-B. revealed that in April 2015 she confirmed with J.M. by text she believed it was “possible” that he was the father of A.W.M. and they began to explore resuming their relationship.

b. B.W-B. then proposed to co-parent A.W.M. with J.M.

c. But J.M. has not come forward with a proposal and he is not a parent within the meaning of the Act.

[47] Even though any further parental involvement by either B.W-B. or F.M. has now been precluded, I have set out the details of this sadly unproductive first year of A.W.M.’s life, to put S.B.’s current claim in better perspective.

a. During all of that time S.B. did virtually nothing to step in or become involved in A.W.M.’s life.

b. She sought out virtually no access to A.W.M. until he was more than a year old.

c. And she has continued to describe B.W-B. as “a great mother who has never been given a chance.”

S.B.’S PLAN

[48] On May 15, 2015 the maternal grandmother S.B. and maternal great-grandmother K.M. brought motions seeking to be added as parties to this proceeding. At the beginning of June 2015 S.B.’s motion was granted and K.M.’s motion was dismissed.

[49] S.B. has her own lengthy history of child welfare involvement.

a. S.B.’s children were apprehended from her sole care in November 2007.

b. They were returned to the joint care of S.B. and her husband following a May 2009 parenting capacity assessment (“PCA”).

c. S.B. relies on this PCA in support of her kinship plan.

d. But the PCA also raised many serious concerns about S.B. Many of those concerns continue to exist.

[50] The Society outlined a long history of conflict between S.B. and B.W-B. But S.B. has minimized that conflict.

a. B.W-B. was removed from S.B.’s care in November 2007 and placed in foster care.

b. While in care, B.W-B. was very aggressive with her brother J.

c. She also reportedly threatened her foster mother with a knife in response to being grounded from using the computer.

d. The Lynwood Hall Treatment Foster Care program was involved to assist the foster family in coping with B.W-B.

e. After B.W-B. was moved into a kin placement, she was physically aggressive with the other children in the home.

f. In November 2012 B.W-B.’s younger siblings expressed fear of her as they described an incident when she stole and broke their things. She threatened violence towards them. She would slap and hit them. She would harm and/or threaten to harm their dogs.

g. She would mistreat her parents.

[51] S.B. and her husband corroborated these concerns. They reported being unable to manage B.W-B.’s behavioural difficulties which included:

a. Violent outbursts directed at S.B., the younger children and pets in the home.

b. Threats of violence directed at peers.

c. Chronic lying, stealing and destruction of property.

[52] But even without B.W-B.’s disruptive behaviour in the home, S.B. couldn’t properly care for her other children. The PCA concluded that after S.B. and her husband initially separated, “she did not provide her children with the minimal care that they required.” “The children were also found to have suffered from neglect.”

[53] Parenting capacity assessor Dr. Michelle Sala made the following observations in her report:

a. S.B. was observed to be a “skilled liar”.

b. During the assessment S.B. pretended to be expecting her fifth child. She and her husband concocted an elaborate lie to cover the fact that their fifth child had already been born. The assessor noted S.B. lied about this “without flinching”. (As soon as the birth was discovered, that fifth child was apprehended.)

c. S.B. spent most of the assessment defending her position and criticizing the Society’s actions. “S.B. showed little insight or understanding when asked to consider why her children were placed in care.”

d. S.B. tends to deny reality when stressed. “The ongoing concern given this personality style is that she may fool herself into denying reality again in the future when she feels overwhelmed or unable to cope…Her use of denial could also lead her back into involvement with drugs when the stress gets too high.”

e. While S.B.’s children were in her sole care prior to the 2007 apprehension, they suffered from neglect.

f. S.B.’s four younger children have ADHD tendencies and “therefore, need consistent structure and discipline.”

[54] The Society acknowledged that while the PCA concluded S.B. does not have a diagnosis of depression, “she has a personality trait that is characterized by a tendency towards a denial of reality. She tends to minimize issues that arise in her life and this can have ramifications in her functioning as a parent…”

[55] The Society expressed concern about repeated substance abuse:

a. S.B. in her affidavits denied ever having tested positive for cocaine.

b. Dr. Sala noted in her report that she obtained positive cocaine results for S.B. and her husband during her assessment.

c. According to Dr. Sala, S.B. (and her husband) “are and will always be at risk of becoming re-involved with drugs by virtue of their history.”

d. Dr. Sala also stated: “Her use of denial could also lead her back into involvement with drugs when the stress gets too high.”

e. The Society noted that even after S.B. assured Dr. Sala in 2009 that she’d never take drugs again because she wouldn’t want to jeopardize her children – she again relapsed.

[56] S.B. said she is currently enrolled and participating in a methadone program.

a. She said she has been complying with the program since 2013.

b. She has full carries and will likely be enrolled in the program for another four months.

c. But she admitted that she had previously been kicked out of a methadone clinic.

d. She missed a lot of drug tests in 2008.

[57] In Dr. Sala’s parenting capacity assessment she recommended that the children be slowly re-integrated to the care of both parents (S.B. and her husband).

a. Dr. Sala noted that as a couple “they are stronger than each individually” and that “S.B. has already shown that she has a lot of difficulty managing all the children on her own…”

b. Dr. Sala emphasized that the recommended reintegration plan “hinges on the couple remaining together” and both being involved in parenting.

c. The Society expressed concern S.B. ended up separating from her husband in October 2013. She hasn’t had assistance from her husband which Dr. Sala said she so desperately needed.

d. S.B.’s lawyer suggested it was a testament to her parenting skills that she has managed to care for four children even without assistance from her husband for the past two years.

[58] Most recently S.B. had an open file with the Society from November 2012 until April 25, 2015.

a. S.B. said the 2012 file opening was due to a referral from B.W-B.’s school about her possibly being pregnant and not wanting to reside with her parents at that time.

b. S.B. and her husband were having difficulty managing B.W-B.’s teenager behaviour.

c. B.W-B. eventually went to live with her grandmother K.M. This was recommended and supported by the Society.

d. The Society said concerns included unexplained school absences, unstable housing, overall neglect of the children’s basic needs, and S.B.’s misuse of prescription medication.

e. S.B.’s 14 year old son J was identified as taking on a parentified role for his younger siblings.

f. When the Society closed its file, it noted that the children were not reporting any protection concerns, but also that they “remain very guarded and closed.”

[59] S.B. explained her delay in coming forward for A.W.M.

a. She said she always wanted to put forward a plan for her grandson.

b. But she said she was advised she couldn’t put forward a plan while she still had her own file open with the Society.

c. Her file wasn’t closed until April 25, 2015.

d. But she noted that the Society knew as of December 9, 2014 that any concerns about her had been resolved.

e. She felt she had been prejudiced by the Society’s needless delay in closing her file. She felt had they acted sooner, she could have come forward sooner.

[60] The Society disputed S.B.’s explanation for her delay.

a. It said even with an open file, S.B. could have come forward with a plan much sooner.

b. It suggested that if S.B. had been seriously interested in A.W.M., she didn’t have to wait until her grandson had been in care for a year.

c. If she really wanted to help this infant, she would have shown interest in access to A.W.M. sooner.

[61] S.B. said the fact that the Society closed its file in April 2015 confirms that she has successfully managed to care for her four children.

[62] The Society countered that just because it agreed further court intervention wasn’t required for S.B.’s four youngest children, it doesn’t mean adding a vulnerable infant as a fifth child in an already stressed household is a safe idea.

[63] S.B. said she has shown considerable improvement in her parenting.

a. She said she is currently a stay at home mother and can provide A.W.M. with daily one on one attention that he requires when the other four children are at school.

b. She resides in a five bedroom townhome. A.W.M. would have his own room.

c. She would put A.W.M. in daycare if required by the Society.

[64] She said she did not believe having A.W.M. in her care would put her other four children at risk.

a. She said she has been a single mother with five children in her care in the past.

b. She said she believed she would be able to provide for her current four children as well as A.W.M. with structure, routine and the love and affection that they all require.

c. She said none of the four children in her care have been diagnosed with any learning disabilities. She admitted the children exhibited some behavioural issues, especially when her husband left the home in 2013.

d. But S.B. said she sought out services and worked with the children and the Society to address those behaviours.

e. She said criticisms of difficulties she was having with her four children – getting them to school on time, for example – were minor and didn’t merit continuing Society involvement.

[65] The Society expressed concern about S.B.’s ability to add 20 month old A.W.M. to her household.

a. During the PCA she admitted being overwhelmed by having four children (before her fifth child was born).

b. The parenting capacity assessor commented S.B. “does not seem to appreciate the magnitude of the issues confronting her.”

[66] The Society characterized S.B.’s last minute interest in A.W.M. as a hastily cobbled temporary plan to derail a pending summary judgment motion.

a. In her affidavit S.B. stated she is prepared to offer a nice stable home until A.W.M. is able to live with B.W-B.

b. The Society said this is a clear indication S.B. is not offering a permanency plan for A.W.M. And permanency is what he needs.

c. The Society alleged S.B. has simply stepped forward to circumvent section 70 time limits under the Act, which have already been greatly exceeded.

d. It said S.B.’s proposal is premised explicitly on the perception that B.W-B. would be able to resume care and this as a short term arrangement.

[67] S.B. denied her plan is temporary. She insisted she is offering a permanent commitment.

[68] But the Society cautioned that even if S.B. thinks she’s able to make a permanent commitment, her materials reveal that she lacks a realistic perception of the responsibilities she wants to take on.

a. The Society said S.B.’s descriptions of what she has to offer A.W.M. sound superficial and almost naive. “Like a fairy tale story about taking him to the park.”

b. S.B. has referred to having the support of B.W-B. and S.B.’s four younger children “to help out with things like playing with A.W.M.”

c. But in her materials she showed no insight. No realistic understanding.

d. The Society emphasized the strong warnings contained in the PCA. S.B. lives in a world of denial and avoidance. When she becomes stressed or overwhelmed she reacts inappropriately, including turning to drugs.

[69] The Society expressed concern placement with S.B. would inevitably involve B.W-B. being in the picture.

a. This would lead to a significant risk of altercations and conflict arising out of the volatile relationship between S.B. and B.W-B.

b. The Society said S.B.’s comments about B.W-B. being a great mother who has never been given a chance raise serious doubts about her ability or inclination to protect A.W.M. from B.W-B.

c. The Society noted how difficult it would be to monitor A.W.M.’s situation if he were to be placed in S.B.’s home.

d. The Society emphasized that S.B.’s avoidant, denying and dishonest personality would make it very unlikely that she would acknowledge or disclose any problems. Or even perceive them.

e. Her younger children have been previously described as “closed and guarded”.

f. And at 20 months of age, A.W.M. would not be in a position to disclose or articulate concerns to Society workers or others.

[70] S.B. said she would be able to manage and control B.W-B.’s access to A.W.M., if necessary.

a. She said her previous conflict with B.W-B. was precisely because she stood up to her daughter and insisted she comply with rules.

b. S.B. said she’d be prepared to stand up to B.W-B. in the future.

c. The Society emphasized S.B. hasn’t been able to control B.W-B. in the past.

d. And B.W-B.’s ongoing physical aggression with F.M. is a sobering reminder that she has anger management and control issues, which would quite predictably surface during interactions with A.W.M.

[71] S.B. said she has continuously worked with the Society over the years and she can be trusted to cooperate and comply with Society supervision.

[72] The Society countered by referring to S.B.’s repeated deceptions over the years – including dishonesty when the safety of children was at stake.

[73] S.B. challenged the Society’s refusal to assess her as a kin provider for A.W.M.

a. She felt it was unfair they relied on her past Society involvement as the main reason A.W.M. couldn’t be placed in her care.

b. She acknowledged she had been involved with the Society since 2000. But she denied it was continuous involvement. She said her file had been opened and closed on a number of occasions.

[74] The Society countered that there are fundamental concerns about her insight and reliability.

a. It said S.B. has historically minimized her own limitations and her conflicts with B.W-B. – and she is still deluding herself.

b. The Society said from its extensive historical involvement and the comprehensive PCA, it is clear that there would be a significant risk that S.B. would not be able to successfully parent A.W.M. and meet his needs.

c. There is also a significant risk of A.W.M. being harmed while in the care or presence of B.W-B.

d. The Society said with A.W.M. having already been in temporary foster care for 20 months, if he were to be placed with S.B. and the plan fell apart, it would be devastating for the child. And there is a significant risk that would happen.

[75] The Society described A.W.M.:

a. He is a healthy and happy boy.

b. He has spent his entire life – 20 months -- in foster care.

c. A.W.M. is meeting all of his developmental milestones.

d. He has no serious medical conditions and no concerns have arisen with respect to his health or development.

e. The Society’s permanency plan for A.W.M. is adoption.

SUMMARY JUDGMENT

[76] Rule 16 of the Family Law Rules allows a party to bring a motion for summary judgment without a trial -- on all or part of a claim -- after the Respondent has served an Answer or after the time for serving an Answer has expired.

[77] Rule 16(2) specifically allows for summary judgment in child protection proceedings. The rule does not preclude such a motion in cases in which the Society requests Crown Wardship.

[78] Pursuant to Rule 16(4) the party bringing the motion must serve an affidavit, or provide other evidence, that sets out specific facts establishing that there is no genuine issue that requires a trial.

[79] Rule 16(4.1) provides that a responding party must also set out by way of affidavit or other evidence specific facts establishing that there is a genuine issue for trial.

[80] A party answering a motion for summary judgment must put their “best foot forward” in responding to the case for the moving party. When presented with a prima facie case for summary judgment, they must provide evidence of “specific facts showing that there is a genuine issue for trial”. Mere allegations or blanket denials contained in self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial are insufficient to defeat a claim for summary judgment. Children’s Aid Society of Toronto v. K.T., 2000 20578, [2000] O.J. No. 4736 (OCJ); Children’s Aid Society of Haldimand & Norfolk v. S.V., 2015 ONCJ 147 (OCJ).

[81] Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[82] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial.

[83] In a child protection proceeding, the onus is on the Society to show there is no genuine issue for trial.

[84] “No genuine issue for trial” has been equated to “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed”, and “where there is no realistic possibility of an outcome other than that sought by the Applicant.” CCAS Toronto v. S.M., 2015 ONCJ 651 (OCJ); Children's Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC), [2008] O.J. No. 3969 (SCJ).

[85] The court must proceed cautiously on a motion for summary judgment and ensure absolute fairness to the parties. Children's Aid Society of Toronto v. M. (P.), 2002 53206 (ON CJ), [2002] O.J. No. 2321 (O.C.J.).

[86] Considerations of due process, statutory requirements and the best interests, protection and well-being of the children will determine ultimately the appropriateness of summary judgment. Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.), 1999 14252 (ON CJ), [1999] O.J. No. 5561 (OCJ).

[87] While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the evidence available, the best interests of the child and their particular needs should not be discounted. CAS of the Regional Municipality of Waterloo v. R.S., 2000 22902 (ON CJ), [2000] O.J. No. 4880.

[88] A summary judgment motion is a tool that can contain and control a child's drift in litigation. A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. Children’s Aid Society of Toronto v. R.H., 2000 3158 (ON CJ), [2000] O.J. No. 5853 (OCJ).

[89] Delay in the litigation process in child protection matters must be measured from the child’s perspective.

[90] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that the child faces some better prospect than what existed at the time of the Society’s removal of the child from the parent, and that the parent has developed some new ability as a parent. Children’s Aid Society of London and Middlesex v. L.A., 1999 20470, [1999] O.J. No. 5839 (SCJ); Children's Aid Society of Toronto v. H. (R.), (supra).

[91] It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. Worthington v. Worthington, 2000 22469 (SCJ), 13 R.F.L. (5th) 220; [2000] O.J. No. 4853.

[92] In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether - in that evidence - there are specific facts to support a triable issue in any of the determinations required to be made by the court. Children's Aid Society of Waterloo (Regional Municipality) v. S.(R.), 2000 22902 (ON CJ), [2000] O.J. No. 4880 (OCJ).

[93] In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on – and evaluate – the sufficiency of the evidence as disclosed by the affidavits. Children’s Aid Society of Toronto v. H.(C.), 2004 ONCJ 224, 2004 O.J. No. 4084 (OCJ); Children’s Aid Society of Hamilton v. R.(C.), 2006 79342 (SCJ), 2006 O.J. No. 3442.

[94] The court can consider hearsay evidence if it meets the criteria of necessity and reliability. Children's Aid Society of Hamilton v. M. N., 2007 13503 But the rule in relation to hearsay on summary judgment motions is stricter than Rule 14(19) applying to motions generally. Under Rule 16(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. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and how much weight to give it. Jewish Family and Child Service v. S.K., 2015 ONCJ 246.

[95] The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. Children's Aid Society of Waterloo (Regional Municipality) v. S.(T.), 1999 14252 (ON CJ), [1999] O.J. No. 5561 (OCJ).

[96] In determining if there is a genuine issue requiring a trial, the court must consider if there is sufficient evidence led by the parent to support a trial. The question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. Children's Aid Society of Dufferin (County) v. R. (J.), 2002 45514 (ON CJ), [2002] O.J. No. 4319 (OCJ).

[97] On May 2, 2015 the Family Law Rules were amended to broaden the powers of the court on a summary judgment motion:

16(6.1) Powers 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.

16(6.2) Oral Evidence (Mini-Trial)

The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[98] In Hryniak v. Maulin 2014 SCC 7 the Supreme Court of Canada clarified the court’s expanded summary judgment powers:

a. The court should first determine if there is a genuine issue requiring a trial based on the evidence presented, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgment process provides the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.

b. If there appears to be genuine issue for trial, the court should then determine if the need for a trial can be avoided by using the new powers under Rules 16(6.1) and (6.2).

[99] Accordingly, the first step in dealing with a summary judgment motion is to determine if there is a genuine issue for trial based on the evidence presented without relying on any expanded powers to weigh evidence or assess credibility. CAS Toronto v. A.G., 2015 ONCJ 331 (OCJ).

[100] The expanded powers are not to be employed by the judge hearing the summary judgment motion unless he or she determines, on the evidence before the court, that there is a genuine issue requiring a trial. Hyrniak (supra); Children’s Aid Society of Toronto v. L.S., 2015 ONCJ 527 (OCJ).

[101] If the expanded powers are utilized, the quality of the evidence on the summary judgment motion need not be equivalent to the evidence at a trial. The evidence on the motion must be sufficient to give the court confidence that a fair resolution of the dispute or issue can be determined without a trial. Children’s Aid Society of Toronto v. O.G. [2015] O.J. No. 1124 (OCJ).

[102] The court in Hyrniak endorsed that if a summary judgement motion is dismissed then the motion judge should, if possible, seize themself as the trial judge. This permits the judge to use the insight gained from hearing the summary judgement motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue.

[103] The process set out in Hryniak is consistent with Rule 2 of the Family Law Rules which sets out that the primary objective is to enable the court to deal with cases justly. This includes:

a. Ensuring that the procedure is fair to all parties.

b. Saving expense and time.

c. Dealing with the case in ways that are appropriate to its importance and complexity; and

d. Giving appropriate court resources to the case, while taking account of the need to give resources to other cases.

[104] The court must also consider the strict timelines that govern child protection proceedings, and section 1(1) which sets out that the paramount purpose the Act is to promote the best interests, protection and well-being of children. C.M. v. Children’s Aid Society of Waterloo, 2015 ONCA 612 (C.A.).

DISPOSITION

[105] The Society’s summary judgment motion was brought within the context of a status review application. A.W.M. has already been found in need of protection.

[106] If the court determines that A.W.M. continues to be in need of protection, the disposition options are set out in section 57(1) of the Act. Section 57 states:

57(1) Order where child in need of protection

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

1. Supervision order

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

2. Society wardship

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

3. Crown wardship

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

4. Consecutive orders of society wardship and supervision

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

57(2) Court to inquire

In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

57(3) Less disruptive alternatives preferred

The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

57(4) Community placement to be considered

Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

57(5) Idem: where child an Indian or a native person

Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the child's extended family;

(b) a member of the child's band or native community; or

(c) another Indian or native family.

57(7) Idem When the court has dispensed with notice to a person under subsection 39(7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47(1) has been held upon notice to that person.

57(8) Terms and conditions of supervision order

If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on,

(i) the child's parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

57(9) Where no court order necessary

Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

[107] The court also can make a custody order in favour of any person pursuant to section 57.1 of the Act, with that person’s consent.

[108] In determining the appropriate disposition, the court must decide what is in the child’s best interests. This requires consideration of the criteria set out in section 37(3) of the Act:

37(3) Best interests of child

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[109] Best interests must be examined from the child’s perspective and will take precedence to parental interests. Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.).

[110] I have reviewed the evidence on this summary judgment motion in the context of those best interest considerations.

[111] Counsel for S.B. challenged the admissibility of certain specific paragraphs in the Society material because it was hearsay. Counsel for the Society countered that the disputed evidence (a worker quoting information from another worker based on Society records) should not trigger any negative inference pursuant to Rule 16(5). In any event, I have excluded consideration of disputed hearsay evidence in making my determination.

[112] I have given particular consideration to section 70 of the Act which limits the available options for disposition and is a statutory recognition that permanency planning is of paramount importance for children.

a. That section limits the cumulative time in care for children under the age of six to only 12 months.

b. A.W.M. is already well past that time limit.

c. Even with an extension of time pursuant to section 70(4) – and there is no basis for any such extension – time would still be up.

[113] I have carefully reviewed S.B.’s evidence.

a. I do not doubt her sincerity.

b. I do not doubt that she would like to be part of A.W.M.’s life.

c. She would like to help her daughter B.W-B., as well.

[114] But in every respect S.B.’s evidence on this motion – her case stated at its strongest – amounts to little more than unsubstantiated hope and promise:

a. That her future life will be completely different from her past life.

b. That her future parenting skills will be completely different from her past deficient parenting.

c. That in the future she’ll tell the truth and be reliable and cooperative. Despite a long-standing history deception. And despite very strong professional evidence that by predisposition S.B. denies reality and escapes from it by turning to substance abuse.

[115] S.B. provided no evidence of actual parenting skills in relation to A.W.M. And only marginal evidence that things aren’t as bad with her own children – and with her own life -- as they used to be.

[116] She disputed the degree to which problems existed.

a. The extent to which she is responsible for the delay in becoming involved in A.W.M.’s life.

b. The extent of her drug history and problems.

c. The extent of her conflict with her estranged husband.

d. The extent of her family problems prior to the parenting capacity assessment.

e. The extent of hygiene concerns about her home.

f. The extent of her past conflict with B.W-B.

g. The extent of ongoing child management problems concerning things like getting her children to school on time.

[117] The factual disputes S.B. characterizes as “genuine issues for trial” are individually of little consequence. And even cumulatively, they would not be determinative of the outcome of this case.

[118] The court’s focus – now and at a trial – must always be on A.W.M. On the reality of a 20 month old child who has been in care his entire life. On the boy’s long-overdue need for permanence, stability and progression toward a future.

[119] I am not satisfied that S.B. has established a genuine issue for trial. This means I do not have to go to the next step of utilizing the court’s expanded powers per Hyrniak.

[120] But if I am incorrect, and if S.B.’s materials were deemed to establish a genuine issue for trial, I have no hesitation in concluding that application of the court’s expanded powers under Rule 16(6.1) would lead to the same conclusion. Enough evidence has been presented to give the court confidence that a fair resolution of this matter – of A.W.M.’s life – can be determined at this time, without the need for a trial. Sufficient evidence is available to confirm that the Society’s requested relief is not only appropriate, but also inevitable.

[121] Once the evidence demonstrates the outcome is inevitable, we can no longer countenance a “What’s the harm of having a trial?” approach. When young children have been in care all their lives, further delay is synonymous with harm.

[122] I am satisfied that:

a. The Society has made reasonable efforts to assist the parents and S.B.

b. The Society has identified the least disruptive alternative which would still adequately protect the child.

c. The Society has given proper consideration to available community placements.

d. The paramount purpose of the Act – promoting the best interests, protection and well-being of the child – is being safeguarded.

[123] I find that A.W.M. continues to be in need of protection.

[124] Having considered all of the remaining options available, I find that it is in the best interests of the child that he be made a Crown ward.

ACCESS

[125] Access is dealt with in sections 58 and 59 of the Act. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2.1) creates a presumption against access where the child is a Crown Ward.

59(2) Termination of access to Crown ward

Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

59(2.1) Access: Crown ward

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

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

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

[126] Once there is an order for Crown wardship, the focus of the Act is to establish a permanent and stable placement for the child. Children's Aid Society of Toronto v. I.H., 2013 ONCJ 495 (Ont C.J.); CAS of Hamilton v. W. (A.), 2013 ONSC 7849 (SCJ). There is a presumption against access to Crown wards. Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274, [2005] O.J. No. 2154 (Ont. C.J.). The person requesting access must provide evidence with respect to both requirements of s. 59(2.1). Children's Aid Society of Metropolitan Toronto v. A. (M.), 2002 53975 (ON CJ), 2002 CarswellOnt 1923 (Ont. C.J.); D. (C.) v. Children's Aid Society of Algoma, [2001] O.J. No. 4739 (Ont. S.C.J.). The rebuttable presumption under s. 59(2.1) is conjunctive. A person must rebut both elements of s. 59(2.1) or the access cannot be ordered. This is a difficult onus for parents to discharge.

[127] The Divisional Court provided guidance with respect to the first part of the s. 59(2.1) test in Children's Aid Society of Niagara Region v. C. (J.), 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.). Aitken J. stated at paragraph 29:

"Beneficial" has been held to mean "advantageous". "Meaningful' has been held to mean "significant" Children's Aid Society of Niagara Region v. J. (M.) (2004) 4 R.F.L. (6th Carswell 2800, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified".

[128] It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child; the child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: Children's Aid Society of Niagara Region v. J.C., (2007), 2007 8919 (ON SCDC), 36 R.F.L.(6th) 40 (Ont.Div.Ct.);Children's Aid Society of Owen Sound and Grey County v. T.T., 2005 24909 (SCJ). As Sherr J. stated in Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803 (OCJ), "Even if there are some positive aspects to the relationship between parent and child, that is not enough — it must be significantly advantageous to the child."

[129] Even if access is generally enjoyable for the child, the court may consider whether the beneficial aspects of visits outweigh the child's need for continuity of care, and a secure placement as a member of a stable family. Children's Aid Society of Toronto v. M.A., (2006) 2006 1671 (ON SC), O.J. No. 254. The quality of the relationship must be the focus. The parents have to show more than just that a child has a good time during visits. (Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ).

[130] Similarly, more is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being.

[131] The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examine the quality of the relationship from the child's perspective. Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850 (SCJ).

[132] The focus of the inquiry is the nature and quality of the relationship between the child and the person seeking access at the time of trial. Children's Aid Society of Bruce v. D.J., (2013 ONSC 717). Children's Aid Society of Niagara Region v. J.C., 2007 8919 (ON SCDC), [2007] O.J. No. 1058 (Div. Ct.); Huron-Perth Children's Aid Society v. J.F., ([2012] O.J. No. 5215 (S.C.J.)). Section 59(2.1) speaks of existing relationships, not potential future relationships. The court should not consider whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. Catholic Children's Aid Society of Hamilton v. T.D. & A.A., 2013 ONSC 5650 (Ont S.C.J.). The child cannot be expected to wait and suffer while a mother or father learns how to be a responsible parent:

[133] The decision about access to a Crown ward is not to be made lightly. An access order cannot be merely a consolation prize for disappointed adults. Catholic Children's Aid Society of Toronto v. M.M., (2012 ONCJ 440 (Ont. C.J.).

[134] In this case S.B. provided minimal evidence about her relationship with A.W.M. – certainly nothing to suggest her weekly brief visits are meaningful and beneficial. And she did not even address the second component of the s. 59(2.1) test in relation to impairing opportunities for adoption.

[135] Accordingly I find that there is no genuine issue for trial in relation to access. There shall be no access.

FINAL ORDER

[136] The Child A.W.M. born […] , 2014 shall be made a Crown ward and placed in the care of the Catholic Children’s Aid Society of Hamilton.

[137] There shall be no access.

Pazaratz, J.

Released: December 9, 2015

COURT FILE NO.: C25/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicants

• and -

B.W-B. (Mother)

-and-

F.M. (Father)

-and-

S.B. (Maternal Grandmother)

Respondents

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: December 9, 2015