CITATION: DCAS v. J.T, 2015 ONSC 8010

OSHAWA COURT FILE NO.: FC-08-190

DATE: 20151221

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Durham Children’s Aid Society

Applicant

– and –

J.N., J.T. and L.R.

Respondents

Kristy Davidson, for the Applicant

Sandra Grant, for the Respondent, J.N.

Michael Tweyman, for the Respondent, J.T.

Lesley Taafe, for the Respondent, L.R.

Sandra Scovino, for the child, M.T.

HEARD: July 19 and September 25, 2015

W A R N I N G

This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILD — 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.

76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (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.

REASONS FOR JUDGMENT RE: M.T.

Fryer j.:

I. Introduction

[1] The Durham Children’s Aid Society has brought two motions for summary judgment pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99 (FLR), that were heard on July 17, 2015 and September 25, 2015. The Society seeks the following:

(a) With respect to the child L.W.R. (born […], 2010) an order for Crown wardship without access.

(b) With respect to the child M.T. […], 2004), an order for Crown wardship with access.

[2] This is my decision with respect to the child M.T.

[3] The parents of M.T. are J.N. (the Mother or the Mother JN, to distinguish her from the other mothers referred to herein) and J.T. (the Father). The mother of L.W.R. is L.R., who has resided with the Father since 2009. She also filed an Answer Plan of Care with respect to M.T.

[4] The Mother consents to the relief sought by the Society. She signed a Statement of Agreed Facts (Status Review) as did the Children’s Lawyer, Sandra Scovino, on behalf of M.T.

[5] The child M.T. is now 11 years old.

[6] M.T. has been apprehended three times. M.T. and her younger sister R.T. were first apprehended from the Father and the Mother on December 9, 2008 due to concerns of neglect including malnourishment, chronic lice and the parent’s failure to have the children immunized. The children were apprehended from the Father and the Mother a second time on September 1, 2009 due to lack of supervision and the state of the home. After a period in foster care, in June 2011, M.T. was placed in the care of the Father supervised by the Society. M.T. was apprehended a third time from the care of the Father and L.R. on December 3, 2013 following M.T.’s disclosure that L.R. had caused bruising on her arm during a fight.

[7] The Father, whose Plan of Care is premised on him continuing to reside with L.R., opposes the motion for Crown wardship. He proposes that M.T. be returned to his care supervised by the Society on certain terms. L.R. also delivered a Plan of Care; she supports the Father’s position and asks for access with M.T. should she not be returned to the Father’s care.

[8] This matter was set for a trial in November 2014. At an exit pre-trial held on October 28, 2014, it was recommended that a Parenting Capacity Assessment be conducted.

[9] On December 18, 2014 Rowsell J. ordered a Parenting Capacity Assessment to be conducted by Dr. K. McDermott pursuant to s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA). In her parenting capacity assessment dated April 16, 2015 Dr. K. McDermott found that neither the Father nor L.R. “have the capacity to provide ongoing safety and security, as well as nurturing to…. M.T. on an ongoing basis.” She stated further that neither of these parties has “the ability to recognize and meet [M.T.]’s needs” or “to advocate effectively with community service providers to ensure that her special needs are met”.

[10] This matter came before me as a summary judgment motion with respect to both a finding that M.T. is still a child in need of protection and with respect to disposition. M.T. has been in care for over 4 years as of the date of the motion–well past the statutory maximum set out in s. 70(1)(b) of the CFSA. The options with respect to disposition are therefore limited to the relief requested by the Society and consented to by the Mother and M.T. through her lawyer, being Crown wardship with access, and the relief requested by the Father and L.R., the return of M.T. to their care.

II. Issues

[11] The issues to be decided on this motion are as follows:

(a) Is there a genuine issue requiring a trial with respect to the following issues:

(i) Is the child M.T. still a child in need of protection?

(ii) If so, what is the appropriate disposition pursuant to s. 57 and having regard to the factors in s. 37(3) of the CFSA?

(iii) If the disposition is Crown wardship and as the Society proposes that there be access, what should the terms of access be?

(b) If the answer to (a) is yes, what terms if any should be applied to the trial?

III. Background Facts & History of Proceedings

[12] The Mother and Father have had four children including MT. The circumstances of these children are detailed below.

[13] In addition to these four children, the Mother has two older children S.H. (born […], 1997) and V.H. (born […], 1998); these children live with their biological father J.H.

[14] In addition to these four children, the Father, J.T., has three other children who are not the subject of this protection matter: two with another mother, one with L.R. (the child L.W.R., who is the subject of the concurrent summary judgment motion).

[15] The Father’s oldest two children K.T. and S.T. were apprehended from the care of their mother, S.A., in November 2002 due to concerns that included medical neglect and a “failure to thrive”. These children were returned to the care of their mother under a Voluntary Service Contract. The Father did not sign the contract. He had minimal access to the children. These children continue to reside with their mother; the Father states that he has visits with these children.

[16] Sometime after his relationship with S.A. ended, the Father entered a relationship with the Mother. Prior to the parties’ relationship, the Mother had been involved in a serious car accident that left her with neurological damage, memory loss and chronic pain. On […], 2004 the child M.T. was born at home in the bathtub; at this time the Mother also had custody of her two children, S.H. and V.H. The Society became involved with the family upon M.T.’s birth due to concerns about the Mother’s functioning and cognitive ability, her possible abuse of prescription drugs, a lack of hygiene for the children, both parents’ inability to maintain a feeding schedule for M.T., and both parents’ lack of follow-through on medical care for M.T. S.H. and V.H. went to live with their father, J.H.

[17] The Father and the Mother had a second child R.T. born on […], 2005. The Society remained involved with the family pursuant to a Voluntary Service Contract.

[18] The Society closed its file with respect to the children M.T. and R.T. in November 2005 as it appeared that the Mother was coping. However, the Society became involved with the family again in July 24, 2008 pursuant to a Voluntary Service Contract based on similar concerns to the earlier involvement. The Mother was suffering from seizures and continued to abuse medications including Tylenol and Gravol.

[19] The children M.T. (then four and one-half years old) and R.T. (then three and one-half years old) were apprehended from the care of the Mother and the Father on December 9, 2008. The following protections concerns were identified by Child Protection Worker, Suzanne Cantin:

a. the children were still in diapers and were not toilet trained; M.T., who was eligible to attend kindergarten, could not to do so for this reason;

b. the children were still using baby bottles;

c. the children were malnourished;

d. the children presented as pale with dark circles under their eyes due to possible iron deficiency;

e. the children had tooth decay; M.T. had a chipped tooth and R.T. had a gum infection;

f. the child R.T. was not speaking when apprehended;

g. the child R.T. would require orthopaedic braces to correct muscle restriction due to walking on her toes;

h. the children were not immunized; and

i. the parents had not obtained health cards for the children.

[20] On June 10, 2009 this court made a final order, on consent, that the children M.T. and R.T. were in need of protection pursuant to ss. 37(2)(b)(i), 37(2)(b)(ii), and 37(2)(g) of the CFSA. The children were returned to the care of the Mother and the Father subject to Society supervision.

[21] On […], 2009 the Mother gave birth to twins, Ju. N. and Je. N. The Father, who had been away for several days, was not present for the birth; the Mother called an ambulance to be transported to the hospital. The twins remained in the neo-natal intensive care unit of the hospital. The Mother, who had a caesarian section including a blood transfusion, was discharged and returned home.

[22] The twins were apprehended on July 24, 2009. The Mother had only visited the twins once in hospital. Neither of the parents had made inquiries of the hospital about the twins. On October 26, 2009 the twins were made Crown wards for the purpose of adoption. The Father still denies that he is the Father of the twins although he signed the Statement of Agreed Facts for the Crown wardship.

[23] According to the Father’s Plan of Care dated March 12, 2014, the Mother and the Father separated in July 2009; he left M.T. and R.T. in the physical care of the Mother despite his stated concerns about her that included the fact that she suffered from seizures, abused medication, and the often slept during the day.

[24] On September 1, 2009, the children M.T. and R.T. were apprehended for a second time. The apprehension was due to the children being left unsupervised, the state of the home, and also due to the fact that “no other appropriate arrangements could be made”.

[25] The child M.T. was in care for the next 22 months with the same foster family with whom she currently resides.

[26] The Father moved in with L.R. after the apprehension of M.T. and R.T. on September 1, 2009 – he said and continues to say that their relationship is one of roommates.

[27] L.R. has two other children who are not the subject of these applications: T.R. (born […], 2004) and K.G. (born […], 2006). The Society was involved with L.R. with respect to both of these children on seven previous occasions. The child T.R. lives with his maternal grandmother; L.R. has infrequent and supervised access to T.R. The child K.G. lives with her paternal grandparents; L.R. has infrequent and supervised access with K.G.

[28] The child L.W.R. (the subject of the summary judgment heard by me concurrently) was born […], 2010 to the Father and L.R. Although the Father and L.R. were living together at the relevant time both the Father and L.R. denied that L.W.R. was the Father’s biological child. The Father initially did not file a Plan of Care for L.W.R. and he was noted in default on March 19, 2014. Later he sought to participate in the proceedings. The Society obtained an order on April 28, 2014 - ultimately on consent - that the Father participate in DNA testing for paternity and the noting in default was set aside. It was confirmed that the Father, J.T., is the biological father of L.W.R.

[29] On April 20, 2011, the court made a final order on consent finding both of the children M.T. and R.T. in need of protection on the original grounds. At this time, the child R.T. was made a Crown ward with access. However, the Father does not exercise access to R.T. Per this same order, in June 2011, the child M.T. was placed in the care of the Father for a period of nine months subject to Society supervision. The Father and L.R. were residing together with their child L.W.R. at this time.

[30] On February 22, 2013 a further final order was made pursuant to a Statement of Agreed Facts (Status Review) that the child M.T. was in need of protection under the original grounds. M.T. continued to reside with the Father under Society supervision. The Mother had supervised access twice per month for two hours at the Society office.

[31] The Society supervision was required due to concerns about the Father that included his lack of follow-through with medical appointments, his failure to ensure that MT was involved with extra-curricular activities and his lack of attendance at school meetings.

[32] The child L.W.R. was apprehended at Lakeridge Hospital from the care of the Father and L.R. on March 19, 2013 when he was two years and nine months old. He was apprehended for failure to thrive and neglect. He weighed just over 20 pounds at the time of his apprehension. Further details are set out in the reasons of Magda J. dated July 21, 2014 and my decision released concurrent with this one in which L.W.R. was made a Crown ward without access.

[33] On September 9, 2013 the Society initiated a Status Review Application with respect to the child M.T. relying upon the same protection concerns. M.T. continued to reside with the Father and L.R. on the same terms as the original order.

[34] On December 2, 2013, M.T. disclosed at school that her “step-mother”, L.R., had bruised her arm during an argument; she was interviewed by Society Worker, Vincent Lopresti, and by the police the same day.

[35] On December 6, 2013 M.T. was placed in the care of the Society. On December 6, 2013, the Society commenced an Amended Status Review Application seeking a disposition order that M.T. be made a Crown ward.

[36] MT has remained living with the same foster family since that time. She has access visits with the Father every Saturday from 10 a.m. to 5 p.m. L.R. is not to be present for visits. The Father is not to smoke during visits and he is to ensure that M.T. engages in an activity preferably outside of the home.

[37] L.R. was permitted to have one supervised visit with M.T.; this visit took place on August 21, 2014. Further visits with L.R. were subject to M.T.’s wishes. L.R. has not had any other visits with M.T.

[38] The matter was then set for a trial. At an exit pre-trial held on October 28, 2014, it was recommended that a Parenting Capacity Assessment be conducted.

[39] On December 18, 2014 Rowsell J. ordered a Parenting Capacity Assessment to be conducted by the assessor agreed upon by the parties pursuant to s. 54 of the CFSA. Dr. K. McDermott was the agreed upon assessor.

[40] This matter came before me as a summary judgment motion with respect to both the finding that M.T. was in continuing need of protection and disposition. At the time the motion was argued on September 25, 2015 M.T. had been in care for periods totalling over four years and two months - well past the statutory maximum set out in s. 70(1)(b) of the CFSA. The options with respect to disposition are therefore limited to the relief requested by the Society, being Crown wardship with access, and the relief requested by the Father and L.R., the return of M.T. to their care.

IV. Law

A. Law re Summary Judgment Generally

[41] Rule 16 of the FLR sets out the criteria for summary judgment. Rule 16(2) confirms that summary judgment may be sought in child protections matters.

[42] To succeed on a summary judgment motion, the Society must prove on a balance of probabilities that there is no genuine issue requiring a trial: FLR, r. 16(4.1).

[43] “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”: J.C.J.-R v. Children’s Aid Society of Oxford County, 2003 2388 (ON SC), at para. 8, citing Prete v. Ontario, 1993 3386 (ON CA), 16 O.R. (3d) 161, at p. 170, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 46.

[44] Other courts have held that there is no genuine issue for trial when the “outcome is a foregone conclusion” (Catholic Children's Aid Society of Metropolitan Toronto v. L.O., 1996 7271 (ON SC), 139 D.L.R. (4th) 534, at para. 80, aff’d 1997 4445 (ON CA), 149 D.L.R. (4th) 464) or when there is “no realistic possibility of an outcome other than that as sought by the applicant” (Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC) 61 R.F.L. (6th) 328, at para. 43).

[45] Rule 16(6) is mandatory; if the court concludes that there is no genuine issue requiring a trial of a claim or defence, the court must make a final order accordingly.

[46] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, held that the court must first determine if there is a genuine issue requiring a trial based on the evidence, without using the new fact-finding powers. Only if it appears that there is a genuine issue for trial, should the court determine if the need for a trial can be avoided by utilizing the new fact finding powers; this would mean looking to r. 16(6.1)

[47] Rule 16(6.1) of the FLR has been recently amended and it provides as follows:

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.

[48] In interpreting r. 16, r. 2 of the FLR must be considered. As well, reference to s. 1(1) of the CFSA–which provides that the paramount purpose of the Act is to promote the best interest, protection, and well-being of children–is necessary to the interpretation of the Act: Children’s Aid Society of Hamilton v. M.W., 2003 2309 (ON SC), 63 O.R. (3d) 512, at para. 25.

[49] The burden is on the Society in this case to set out evidence of specific facts showing that there is no genuine issue requiring a trial. However, when and if the Society makes a prima facie case, an evidentiary onus shifts to the parents. The parents must then point to evidence of specific facts showing that there is a genuine issue for trial: Children’s Aid Society of Northumberland v. K.S., 2012 ONSC 6847, 32 R.F.L. (7th) 87 (Div. Ct.), at para. 28. Each parent must put his/her best foot forward and cannot rest on mere allegations or denials: FLR, r. 16(4.1); and Children’s Aid Society of Hamilton v. K.F., 2014 ONSC 576, [2014] O.J. No. 429, at para. 37.

[50] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material: Children’s Aid Society of Toronto v. K.T., 2000 20578 (ON CJ), at paras. 10, 12-13.

[51] The court must consider the full evidentiary record and is entitled to assume that the record contains all the evidence that the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, [2012] O.J. No. 4309, at para. 5. The evidence tendered must be evidence that would be admissible at trial: Children’s Aid Society of Hamilton v. M.N., 2007 13503 (ON SC), at para. 30.

[52] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial: Children’s Aid Society of Dufferin Country v. J.R., 2002 45514 (ON CJ), at para. 39.

[53] 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. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084, at para. 33; and Children’s Aid Society of Hamilton v. C.R., 2006 79342 (ON SC), at para. 55. Furthermore, “[s]elf-serving evidence that merely asserts a defense or a claim without providing some detail or supporting evidence is not sufficient to create a genuine issue for trial”: Goldman v. Devine, 2007 ONCA 301, [2007] O.J. No. 1491, at para 23, citing Rozin v. Ilitchev, 2003 21313 (ONCA), 66 O.R. (3d) 410, at para 8.

[54] Hearsay evidence can only be admitted when it meets the criteria of necessity and reliability: Children’s Aid Society of Hamilton v. M.N., at para. 30. The court is entitled to draw an adverse inference against a party whose evidence is not based on the personal knowledge of the person swearing the affidavit: FLR, r. 16(5).

[55] Courts must be cautious in granting summary judgment in child protection cases, since the stakes for the family are high, and granting summary judgment deprives the parent of the procedural safeguards of a trial: C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357, 33 R.F.L. (7th) 67, at paras. 3-6.

[56] However, I also consider the following excerpt from the decision of Pazaratz, J in Children’s Aid Society of Hamilton v. A.M. and T.L., 2012 ONSC 6828, 2012ONSC 6828:

37. Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent. (Children’s Aid Society of Toronto v. H. (R.), 2000 3158 (ON.CJ), [2000] O.J. No. 5853 (O.C.J.), paragraph 15). In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children’s Aid Society of Ottawa v. C. (S.), 2003 67754 (ON SC), 2003 CarswellOnt 9373 (S.C.J.)).

38. Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. (Children’s Aid Society of Toronto v. R.H., 2000 3158, 2000 3158 (ON.CJ), [2000] O.J. No. 5853).

39. The court must assume that a responding parent has "put their best foot forward" in their responding material and that this is the most they have to offer at that stage. "The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?" (Kawartha-Haliburton Children's Aid Society v. W.M., 2003 2441 (ON.SC), [2003] O.J. No. 3903).

40. 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 (ON. SC), 13 R.F.L. (5th) 220; [2000] O.J. No. 4853).

B. Law re Status Review

[57] Pursuant to s. 64(2) of the CFSA where a child is the subject of an order under s. 57(1) for Society supervision or Society wardship, the Society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child’s status;

(b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of subsection 71 (1); and

(c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for Society supervision.

[58] Pursuant to s. 65 of the CFSA upon an application for Status Review under s. 64, the Court may, in the child’s best interests:

(a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

[59] The original order being reviewed is presumed to be correct: Children’s Aid Society of the Regional Municipality of Waterloo v. T.F., 1994 6483 (ON CJ), at para. 5.

[60] The function of the status review hearing is not to retry the original need for a protection order but rather to evaluate whether there is a need for a continued order for protection. Children’s needs are continually evolving and these ever changing circumstances must be taken into account. The courts must continually evaluate the need for state intervention in order to insure that the objectives of the Act are being met. 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, at p. 203.

C. Law re Disposition:

[61] In Children’s Aid Society of Toronto v. T.L., 2010 ONSC 1376, [2010] O.J. No. 942, at para. 25, Perkins J. laid out the statutory pathway to follow with respect to disposition:

In a case such as this one (not involving a native child or a potential custody order), the decision process on a disposition hearing is as follows:

1. Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57.)

2. If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

3. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

4. Determine whether the access would impair the child’s future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

5. Determine whether an access order is in the child’s best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child’s best interests. (Section 58.)

[62] Pursuant to s. 57(2) of the CFSA the court is required to inquire as to what efforts the Society or another agency or person has made to assist the child before intervention under this Part.

[63] Pursuant to s. 57(3) of the CFSA the court must be 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.

[64] Pursuant to s. 57(4) of the CFSA the court must 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.

V. Position of the Parties

[65] The Society’s position is that there is no genuine issue requiring a trial. The Society stresses that this is a longstanding case of neglect and while the recent incident involving L.R. led to the apprehension there were significant pre-existing protection concerns. The Society also points to the fact that the child L.W.R. was apprehended from the care of the Father and L.R. for failure to thrive during a period when M.T. was in their care. The Society stresses that M.T. has been in care well past the statutory time limit and a timely decision must be made.

[66] The Mother consents to the relief sought by the Society.

[67] The Children’s Lawyer on behalf of M.T. supports the Society’s position. M.T.’s life has been chaotic including three apprehensions. She is happy with her foster family who have agreed to foster her until adulthood. While M.T. enjoys her visits with both her Mother and her Father, it would not be in her best interests to be returned to the care of her Father and L.R., the latter of whom is an integral part of the Father’s Plan of Care.

[68] The Father’s position included the following:

(i) Much of the Society’s case is based on historical concerns.

(ii) The “most that can be said” about his recent care of M.T. is that “there are allegations against [L.R.] and she resides with him”.

(iii) The Society’s case hinges on the incident between M.T. and L.R. that led to M.T. having bruises on her arm. This incident raises credibility issues that can only be resolved through viva voce evidence and cross-examination.

(iv) If M.T. is made a Crown ward, the issue of access is one requiring a trial as there is insufficient evidence put forward by the Society regarding the logistics and particulars of the proposed visits.

(v) A trial would allow for a more fulsome introduction of evidence.

(vi) A trial would better enable the court to assess the parents’ demeanour and credibility.

(vii) The parents should be entitled to have “their day in court”.

[69] L.R.’s position is that “the Society is continuing with this litigation based on superficial findings”. She did not deliberately harm M.T. in the incident that gave rise to M.T. being apprehended most recently. She supports the Father’s position that a trial is necessary for a determination of the issues.

[70] The Society seeks an order that M.T. be made a Crown ward. The Society proposes that M.T. have access with the Father and the Mother once per month for three hours.

[71] The Father seeks to have M.T. placed in his care subject to Society supervision. He will continue to reside with L.R. and she will assist in parenting M.T. He presents no plan of care for M.T. that does not involve L.R. If M.T. is made a Crown ward, he seeks access but makes no specific proposal either for his own access or for M.T. to have access with the Mother. L.R. also seeks to have access to M.T.

VII. Analysis

1. Status Review – Continued Need of Protection

1.1 Original Finding

[72] On June 10, 2009 Timms J. made a final order finding the child M.T. and her sister, R.T. in need of protection pursuant to ss. 37(2)(b)(i), (2)(b)(ii), (2)(e) and (2)(g) of the CFSA.

[73] These original protection concerns continued to be present in subsequent Status Review Applications resolved by way of Statements of Agreed Facts on April 20, 2011 and February 22, 2013. The terms of the Final Order dated February 22, 2013 included the following:

a. The Father will ensure that M.T. is taken for all appointments with medical professionals and any other service providers recommended by the Society worker;

b. The Father shall find a family doctor for M.T.;

c. The Father shall be responsible for ensuring that M.T. is brought to access visits with the Mother;

d. The Father shall not use any physical discipline and shall not allow any other caregiver to use physical discipline;

e. The Father shall maintain a residence that is hygienic and free from hazards for a child; and

f. The Father shall ensure that M.T. is registered for and attends extra-curricular activities in the community such as swimming lessons, art lessons, dance, Brownies etc.

1.2 Recent Parenting History of the Father and L.R.

1.2.1 Failure to Comply with Terms of Supervision

[74] During the period that M.T. was in the care of the Father from June 2011 to December 2013, L.R. appeared to have a significant caregiving role. The Father was working full time including some shiftwork at Johnson Controls.

[75] In January 2013, an incident occurred and L.R. was prohibited from entering M.T.’s school property by way of a trespass letter dated January 30, 2013 that had also been sent to Durham Regional Police. On this occasion, L.R. attended the school since M.T. had a rash on her arms. L.R. made threats to the school Secretary and Vice-Principal; she exhibited belligerent and aggressive behaviour including swearing in front M.T. and other children. As a result of the ban, M.T. was required to cross a busy street to meet L.R. after school.

[76] On March 19, 2013 the child L.W.R. was apprehended from the care of the Father and L.R. due to failure to thrive. Details of L.W.R.’s case are set out in my decision released concurrently.

[77] The Society Worker, Suzanne Cantin, visited the home of the Father and L.R. on March 20, 2013. She noticed plenty of food in the fridge and cupboards. The Father and L.R. both described M.T. as a hearty eater. However, due to concerns regarding L.W.R.’s failure to thrive, the Father was asked to bring M.T. to the doctor. M.T. was found to be in the sixth percentile (low) weight for children of her age and she had lost weight since the year before.

[78] M.T. attended an access visit with L.W.R., the Father and L.R. The Access Facilitator made particular note of the negative treatment that M.T. received from L.R.

[79] The Society continued to have concerns about the lack of stimulation provided to M.T. while in the care of the Father and L.R.; it appeared that M.T. spent most of her time playing in her room. There was no evidence that the Father and/or L.R. had arranged for her to have play dates with other children or independently arranged for extra-curricular activities. The Society arranged for dance classes for M.T. but the Father indicated that he could not transport her to them. The Society arranged for a volunteer driver but the Father and L.R. were still not consistent in ensuring that M.T. attended the dance classes.

[80] The Father refused to bring M.T. for access visits with the Mother after July 2013 (the Mother was inconsistent in seeking to exercise access prior to this time). Despite the existing order he advised that he felt that access visits were detrimental to M.T. and he could not facilitate access as he was working the night shift.

[81] The Father and L.R. continued to smoke in or around their home despite the fact that M.T. suffers from asthma and she is required to use a puffer to treat symptoms of asthma.

[82] On September 9, 2013 the Society commenced a Status Review Application citing many of the foregoing protections concerns.

[83] This Status Review Application was amended on December 6, 2013 to seek Crown wardship following M.T.’s disclosure L.R. had harmed her. However, the Society also continues to rely on the original grounds detailed above.

1.2.2 Access Visits

[84] The Father is granted access with M.T. every Saturday from 10 a.m. to 5 p.m.

[85] For the period from December 9, 2013, when M.T. was apprehended through to May 22, 2014 the Father cancelled 50 percent of the scheduled visits. He cancelled seven visits due to illness, three due to transportation problems, and two visits due to having to attend in Court.

[86] Commencing in May 2014 the Father was to have unsupervised visits in the community every Saturday provided that he gave 48 hours’ notice of the activity that he had planned for M.T. The Father cancelled 10 of the 46 scheduled visits; eight were cancelled due to illness and two for unknown reasons.

[87] The Father suffers from illness including asthma and vertigo that have interfered with his ability to attend for access visits with M.T. The Father’s truck is unreliable; the Father does not explain why he could not take public transit for visits with M.T. or L.W.R. other than to say that his truck breaks down last minute.

[88] L.R. had one visit on August 21, 2014 with M.T. fully supervised. Although no concerns were observed, there have been no further visits.

[89] The Father and L.R. had only attended 9/31 possible visits with L.W.R. between January 1, 2015 and the hearing of the motion in July 2015. The access centre discharged the Father and L.R. for failure to attend visits with L.W.R.

[90] Society Worker, Suzanne Cantin, stated that on occasions when she attended at the Father and L.R.’s apartment it smelled strongly of smoke. The foster mother too noted that when M.T. returned home from visits she smelled strongly of cigarette smoke and when M.T. did not attend as many access visits her asthma symptoms improved.

1.2.3 Evidence from the Child

[91] The parties agreed that M.T. should not be called upon to provide evidence in this matter whether it went to trial or proceeded by way of summary judgment.

[92] On December 2, 2013 M.T. spontaneously disclosed at school that she had been injured by L.R., whom she referred to as her step-mother; M.T. had significant bruising on her arm. The school contacted the Society. Child protection worker, Vincent Lopresti interviewed M.T. the same day. According to his Affidavit, M.T. spontaneously showed him the bruising on her arm. She did not know why L.R. did this but she knew that L.R. was angry. She said that L.R. had never done anything like this before. M.T. said that her Father was not present with L.R. hurt her. When he saw what happened to her he expressed dismay, saying “oh gosh” twice. After her Father became aware of the incident, she overheard the Father and L.R. swearing at each other.

[93] Vincent Lopresti took M.T. to the police the same day. Durham Regional Police Detective Baldini interviewed M.T. twice regarding this incident. No charges were laid against L.R. or the Father. The parties consented to me watching the videos of these interviews and the video CDs form part of the evidence in this matter.

[94] The Father and L.R. depose that the incident took place at the top of the stairs. M.T. was walking backwards and did not notice that she was about to fall down the stairs (something she had done before). L.R. grabbed her by the arm to stop her fall. Contrary to M.T.’s version of the events, the Father states that he witnessed the whole event. L.R. stresses that there was no ill intent and she acted only to protect M.T. from hurting herself.

[95] In my view, the parties’ agreement that M.T. would not be called upon to testify satisfies me that the hearsay evidence is reasonably necessary: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531. The question, therefore, is M.T.’s evidence reliable. Counsel for the Society and M.T.’s counsel, Sandra Scovino, urged me to find that it was for the following reasons:

a. M.T.’s initial disclosure was made spontaneously to the school official and similarly spontaneously to Vincent Lopresti.

b. Her description of the events including her observations of L.R.’s demeanour (angry) and her Father’s reaction (saying “oh gosh” twice) remained uniform through four different interviews (one with Vincent Lopresti, two with Detective Baldini, and one with Suzanne Cantin).

c. In the police interviews, Detective Baldini stressed the need for M.T. to tell the truth and M.T. indicated that she understood and would tell the truth.

d. There did not appear to be any motivation for M.T. to lie. She repeatedly said that she did not know why L.R. had hurt her. While she expressed negative comments about L.R., she was emphatic that L.R. had never done something like this in the past.

e. There was no evidence that M.T. had been manipulated or coerced. All of the parties who interviewed her with respect to the incident were independent.

f. The interview with Vincent Lopresti and the videotaped interview with Detective Baldini were conducted within a day or two after the incident.

[96] In the Parenting Capacity Assessment, Dr. McDermott describes M.T. as follows:

[M.T.] has always been described, with the exception of [L.R.] in their latter time together, as an exceptionally easy-going pleasant child who is eager to please. Due to her undemanding nature and ability to occupy herself, she was easy to manage. Early on in her development, it was noted that [M.T.] would always smile in response to praise or reprimands and that she had difficulty articulating any dissatisfactions or emotional pain. [M.T.]’s foster mother and school personnel from [M.T.]’s schools all consistently stress that [M.T.]’s naiveté and over-compliance leave her vulnerable to manipulation and victimization by others.

[97] M.T.’s foster-mother specifically stated: “I have known [M.T.] for a number of years and [M.T.] has never been a ‘story maker’. She tells it like it is, straightforward.”

[98] The Father and L.R. stressed repeatedly that this incident was the only reason that M.T. was removed from their care. Their position is that this court would be unable to make a finding without having the benefit of their oral evidence with respect to this event from them and others.

[99] In many respects M.T.’s evidence regarding the events of December 1, 2015 appears reliable for the reasons posited by the Society and the Children’s Lawyer. However, out of abundance of caution and having regard to the relief sought by the Society – Crown wardship - I decline to make a finding with respect to what actually occurred that night.

[100] I am prepared to find that M.T.’s version of the event tells me that her relationship with L.R. is not a positive one. She was clear that she felt that L.R. was angry and that she felt L.R. intended to hurt her. Furthermore, in the first police interview when she was left alone in the interview room, M.T. stated repeatedly that she would like to return home to her Father but not to L.R.

[101] The Father states in his Affidavit that he was the ‘sole caregiver’ for M.T. after she was placed with him in June 2011. However, from his own evidence it is clear that when he was working he relied upon L.R. to care for M.T. The Father declined to put forward a Plan of Care for M.T. that was independent of L.R.

1.2.4 Parenting Capacity Assessment

[102] In her Parenting Capacity Assessment, Dr. McDermott describes the strained relationship between M.T. and L.R. At p. 16 of the Report, Dr. McDermott sets out L.R.’s information regarding M.T.:

Once [M.T.] began to live with them, she changed. At first, she was very polite, well mannered – she behaved like an average child…..[then] she refused to do things, [she would] lie, steal. ….[L.R.] also described that [M.T.] started “telling stories, lied, swore, hissed and spit at me – became [like] a cat at times with me. With [the Father] she did the same, though not as much with him because I was around more – he was working.”

[103] Again, L.R.’s description of M.T. in Dr. McDermott’s report is markedly different than the way she is described by many others. L.R. did not deny making these statements to Dr. McDermott.

[104] Dr. McDermott finds:

Overall, in terms of parenting, [the Father] is able to manage a child’s immediate needs in the short run; however, historical and current indicators strongly suggest he will be negligent and/or abdicate responsibilities for those needs to others in the end. This is not to say that [the Father] would wilfully harm a child, but that when a child’s needs compete with his own, he will minimize, distort or be truly blind to the child’s needs. [The Father] may not intend it but his negligence will ultimately affect the child’s physical, social and emotional development, nonetheless, as it appears to have done with [M.T.] and [L.W.R.].

[105] There is ample evidence to support Dr. McDermott’s finding that the Father has a longstanding and recent history of abdicating responsibility and care for his children in favour of inadequate caregivers.

[106] Dr. McDermott summarizes her findings as follows:

[N]either [L.R.] nor [the Father] have the capacity to provide ongoing safety and security, as well as nurturing, to [L.W.R.] and/or [M.T.] on an ongoing basis. Neither parent has the ability to recognize and meet their needs nor will they be able to advocate effectively within the community and school to ensure that their special needs are met.

[107] I agree.

1.3 M.T.’s Time in Care

[108] The Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M.:

The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection.

Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. As the Court of Appeal further noted:

We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as her psychological parents, is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing.

[109] In Catholic Children’s Aid Society of Hamilton v. R.M and M.M. 2015 ONSC 5101, Chappell, J. also relies upon Catholic Children’s Aid Society of Metropolitan Toronto v. C.M in stating at paragraph 29:

A finding that the child continues to require protection can be based on ongoing concerns respecting the parents’ ability to meet the child’s needs, or for reasons unrelated to the parties’ parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan.

[110] M.T. has now been away from the care of the Father and L.R. since December 2013 – over two years. She has spent approximately 4 ½ years in care with the same foster family. While she enjoys her time with her Father, the evidence suggests that she is integrated into her foster family. M.T. has not seen L.R. at all since the single visit in August 2014. I consider as one factor in the assessment of the continuing need of protection the fact that M.T. could suffer from emotional harm if she was now separated from her foster family and returned to the care of the Father and L.R.

1.3 Summary of Finding

[111] While the most recent apprehension of M.T. was triggered by the incident with L.R. on December 1, 2013, there is ample evidence to suggest that other significant protection concerns still exist. I am satisfied that on a balance of probabilities a trial is not required in order to determine the issue that M.T. is a child in continuing need of protection.

2. Analysis re Disposition

2.1 Genuine Issue re Disposition – s. 37 Factors – Best Interests

[112] Once the finding that the child is in need of protection has been made, the court must determine what available disposition is in the child’s best interests. Section 37(3) of the CFSA sets out some of the factors that the court can consider in determining what disposition is in the best interests of the child. This list is non-exhaustive and the court can consider any other circumstance it deems relevant. I have considered some of the relevant aspects of this best interests test below.

2.1.1 The child’s physical, mental, and emotional needs, and the appropriate care or treatment to meet those needs

[113] M.T. is in many respects a happy and healthy child. However, she has certain unique needs. She has been diagnosed with autism spectrum disorder. She struggles with communication and processing information. She has limits on her ability to communicate her troubles and dissatisfaction.

[114] M.T. suffers from asthma. Despite stipulations on supervision and later on access that the Father not smoke while she is in his care, the evidence suggests that he did not follow this requirement. When M.T. is not in her Father’s care, her asthma improves significantly.

[115] The Father had yet to arrange for a doctor for M.T. at the time the Status Review Application was initiated. Furthermore, a referral for M.T. was made to a paediatric neurologist who is difficult to see and takes referrals only once per year; the Father and the Mother did not complete the referral form.

[116] The Father has missed a large number of his visits with M.T. due to his health challenges and due to transportation problems.

[117] The Society had a concern that M.T. was not being provided with stimulation while in the Father’s care. The evidence suggests that despite being a specific requirement of a supervision order, the Father failed to consistently arrange for activities outside of the home for M.T.

[118] The Father has confirmed that L.R. will be co-parenting M.T. with him. L.R. has been barred from attending at M.T.’s school and would not be in a position to advocate for her or support her at the school.

[119] Many of these concerns are similar to those that were the foundation of protection concerns regarding other of the Father’s children.

2.1.2 The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; and

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

[120] In his Affidavit sworn July 3, 2015 the Father states: “It is true that [M.T.] has been in the care of the DCAS for a couple of years throughout her life” (emphasis added). At the time this motion was argued before me, M.T. had been in care for over four years or over one-third of her life. Her time in care was spent with the same foster mother.

[121] M.T. does appear to have a positive relationship with her Father. She speaks warmly of him and they appear to have positive interactions during access. Dr. McDermott described the Father’s interactions with M.T. as indicating “a capacity to be gentle and affectionate”.

[122] M.T. enjoys visits with her Father although sometimes complains that they are too long. She is happy with her foster family; she refers to them by first name or calls them Mom and Dad.

[123] M.T. has regular access visits with the Mother and her sister R.T. M.T. enjoys these visits and has a positive relationship with her Mother. Despite this fact, the Father had refused to bring her for regular access visits for the reasons outlined above.

[124] M.T.’s relationship with L.R. is not as positive. In her Affidavit, L.R. describes herself as having a “strong bond” with M.T. However, to Dr. McDermott, L.R. herself describes her interactions with M.T. as strained; she indicates that M.T. lies and “spits at her like a cat”. M.T., who is described as generally eager to please has expressed negative feelings toward L.R. and was reluctant to return home to her care following the incident on December 2, 2013.

[125] The Plans of Care of the Father and L.R. are interconnected and assume that they will be living together. Despite having had a sexual relationship with each other in the past, the Mother and the Father continue to describe themselves as roommates and in a platonic relationship. They each have had a number of partners in the past with whom they have had children as detailed above. The parents do not set out a contingency plan should they meet someone else and wish to pursue a committed romantic relationship. The nature of the relationship between the Father and L.R. and the fact that their Plans of Care are so interdependent is a cause for concern about the permanency and stability of their plan for M.T.

[126] M.T.’s life to date has been chaotic. She has been apprehended on three separate occasions. Her sister R.T. and then her brother L.W.R. were apprehended. M.T. has been with the same foster family since December 2013 and this foster family has indicated a commitment to caring for her until adulthood.

2.1.4 The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity

[127] As indicated above, M.T.’s life has been marked by disruption. She is currently in a stable foster care home and appears to be thriving.

[128] Dr. McDermott states, at p. 60 of her report:

Overall, [M.T.] presents as a sweet-natured child who appears inured to the many traumas, losses and disruptions in her young life. It is likely that her autistic temperament is somewhat of a ‘protective factor’ that helps her to seemingly ‘float above’ all the negative experiences. However, this form of resiliency will not always be the case for [M.T.] as she enters adolescence. While [M.T.] presents as compliant and is certainly not a complainer, emotional upheavals in her life will likely be increasingly manifested in passive-aggression and/or defiant behaviour.

[129] In my view, given the extensive negative parenting history of the Father and of L.R. and their unresolved parenting deficiencies, returning M.T. to their care is more than likely to lead to further disruption in M.T.’s life. To the extent possible, M.T. should be shielded from this.

2.1.5 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

[130] Due to the statutory time lines under s. 70 of the CFSA the options available are limited.

[131] The Society seeks an order for Crown wardship. The Society acknowledges that the relationship between M.T. and the Mother and the Father is beneficial and meaningful.

[132] The Father’s Plan of Care is for him and L.R. to co-parent M.T. Originally the Father relied on L.R. as a co-parent, in part as he was working and needed assistance in caring for M.T. while at work. The Father was off work due to disability. His disability is such that he has missed a significant number of access visits. At the motion the Father suggested through counsel that he had in fact returned to work. In any event, the Father is reliant on L.R. to assist him in parenting M.T. Given the concerns about L.R.’s own parenting qualities and her relationship with M.T., this is not a satisfactory arrangement.

[133] The Father’s Plan of Care does not include a proposal for ensuring that M.T. has access visits with the Mother and with R.T.

2.1.6 The child’s views and wishes, if they can be reasonably ascertained

[134] On consent, counsel appointed by the Office of the Children’s Lawyer for M.T., Sandra Scovino, provided me with M.T.’s views and preferences. Ms. Scovino advises that M.T’s views and preferences were inconsistent. Sometimes she advised that she wanted to return to the Father and other times to her foster family. When asked for her views on September 23, 2015 she said that she wanted to reside with her Father and that she wanted access to continue. M.T. also said that she would like L.R. to participate in visits but also acknowledged that she thought that this is what her Father wanted; she did not want to hurt anyone’s feelings. M.T. also advised that she wanted to reduce her access visits with her Father. Due to the inconsistencies reflected above, I am unable to put much weight on M.T.’s views and preferences as expressed through Ms. Scovino.

2.1.7 The effects on the child of delay in the disposition of the case

[135] M.T. has been in care for over four years with the same foster family. She has been living with her foster family since December 2, 2013. As set out above, the delay in this matter reaching a resolution is such that it could be emotionally harmful to remove M.T. from the care of her foster family to return her to the Father and L.R.

2.1.8 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

[136] As set out above, in my view, there is a significant risk to M.T. being returned to the Father and L.R.’s care. The Father has declined to put forward a Plan of Care independent from L.R.

[137] L.R herself describes having a difficult relationship with M.T. L.R.’s treatment of M.T. during access visits with L.W.R. (relegating to her a corner to colour in silence) supports this.

[138] M.T. has a good relationship–on a short term basis–with the Father. In my view, this relationship should be supported through regular access as is proposed by the Society.

2.2 Efforts by the Society to Assist

[139] The Society has provided a number of services to the Father and L.R. to assist them in parenting MT:

a. Family Service Worker, Suzanne Cantin, was involved with the family starting in 2008.

b. The Society offered to pay for extra-curricular activities for M.T.

c. The Society organized weekend dance classes for M.T. in the summer of 2013 after she missed out on a local day camp (also arranged by the Society) as the Father could not get her to camp due to work commitments.

d. The Society assisted with transportation of M.T. to the dance classes when the Father and L.R. indicated that they were not prepared or unable to take her.

[140] The parents attended the No One is Perfect Program and obtained a certificate of completion. There was no evidence that the parents had attended any other programs or classes.

2.3 The Father and LR’s Relationship with the Society

[141] The Plan of Care for M.T. of the Father and L.R. hinges upon Society supervision. However, the Father and L.R. do not appear to have a positive working relationship with the Society; this was referenced in my decision regarding the child L.W.R. Magda J. in his Reasons released July 21, 2014, with respect to L.W.R. found that the Father “seems more intent in continuing to malign and mistrust the Society”.

[142] In her Affidavit sworn July 6, 2015, with respect to the summary judgment regarding L.W.R., L.R states: “I firmly believe that the Society is using the apprehension of [L.W.R.] as a smokescreen for the Durham Children’s Aid Society’s inadequacies and wilful neglect of their responsibilities.” Although this statement was made in the context of a motion regarding her biological child, it provides insight into the Mother’s attitude toward the Society generally.

[143] No other kith or kin put forward a Plan of Care for M.T.

2.4 Summary re Disposition - Crown Ward

[144] There is sufficient evidence before me to find on the balance of probabilities that an order for Crown wardship with access is appropriate without the need for a trial. This order goes on consent of the Mother and the child by way of the Children’s Lawyer. The Father and L.R. have raised the competing versions of the event that lead to M.T. being injured on December 2, 2013; however, there is ample other evidence the supports the propriety of this order without making a finding as to what really happened that day.

2.5 Genuine Issue for Trial - Access

[145] Section 59(2.1) of the CFSA establishes a presumption against access if the child is made a Crown ward. The person seeking access has the burden of proving, on a balance of probabilities:

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

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

[146] With respect to the first criterion, the parents must demonstrate that the relationship is meaningful and beneficial from the child's perspective–not that it would be beneficial to a parent or family member. The quality of the relationship must be the focus. It will not be sufficient for there to be some positive aspects of the relationship; the relationship must be significantly advantageous. The court must consider the quality of the existing relationship between the person seeking access and the child, and not the potential for a future relationship. Thus, the court should not consider whether a parent might cure his or her parental shortcomings so as to eventually create a relationship that is beneficial and meaningful to the child: Children’s Aid Society of Hamilton v. C.G., 2013 ONSC 4972, [2013] O.J. No. 3520, at paras. 331-347.

[147] In this case, the Society has acknowledged that it is appropriate for M.T. to continue to have access with the Father, the Mother, and her sister R.T. M.T. through her counsel also takes this same position. There is an acknowledgement that the first part of the test is met.

[148] The foster family with whom M.T. has resided during her time in care have indicated that they are willing to care for her long-term. They do not propose to adopt her.

[149] The Society proposes that the Father and the Mother visit with M.T. on alternate weekends for three hours. It was not clear to me if both parents would have a three hour visit on alternate weekends or if each parent would have a visit once every four weeks. Either way this is a significant reduction in the current access afforded the Father that is seven hours every Saturday.

[150] The Society further submits that the Father has not sought increased access to M.T. in the intervening period since the apprehension and rather, he has missed a significant number of visits. Lastly, the Society submits that M.T. should be permitted to further integrate into her foster family including spending entire weekends with them.

[151] In her report, Dr. McDermott recommended that the Father’s access be reduced so that M.T. could integrate more fully into the lives of her foster parents. Dr. McDermott recommended that the Father visit with M.T. for four hours every other week and that visits be monitored to ensure that they are stimulating and age-appropriate for M.T. Dr. McDermott did not recommend that L.R. participate in visits with M.T. and if visits were permitted they should be supervised.

[152] The foster mother states that M.T. has had issues with Saturday visits with the Father as she misses out on the opportunity for sleepovers with her friends. The foster mother does not provide other details as to how the access schedule might impact their family life.

[153] The Father’s position is that if Crown wardship is ordered, there should still be a trial regarding access. He also seeks to have his access time include L.R. He does not put forward a specific alternate plan.

[154] I find that there is insufficient evidence before me with which to craft an access regime that balances the need for M.T. to spend time with each of her biological parents and also for her to integrate appropriately into her foster family and the community in which they live.

[155] In my view a focussed trial is required for me to make a decision with respect to an appropriate access schedule.

[156] I find that L.R. should not have access to M.T. unless it is as part of the Father’s access; whether or not she can be present for the Father’s visits with M.T. shall be part of the focussed trial.

VIII. ORDER

[157] The child M.T. is found to be in continued need of protection pursuant to ss. 37(2)(b)(i), (2)(b)(ii), (2)(e) and (2)(g) of the CFSA.

[158] The child M.T. shall be made a Crown ward with access.

[159] The following shall be the subject of a focussed trial to be heard by me:

(i) the duration and frequency of the Father’s access to M.T.;

(ii) the duration and frequency of the Mother’s access to M.T. only to the extent that the duration and frequency of the access contemplated by the Statement of Agreed Facts signed by her is impacted by the Father’s access; and

(iii) if L.R should be permitted to be present for access visits with the Father and, if so, the terms of same.

[160] The following shall apply to the focussed trial:

(i) The trial shall be fixed for half a day during one of the upcoming trial sittings or on one of my available CAS or long motions days;

(ii) The parties shall each deliver affidavit evidence with respect to their evidence in chief. Each witness’ affidavit shall not exceed five pages and shall be focussed on the issue of access only.

(iii) The Father, the Mother and L.R. shall file their affidavit evidence no later than 10 days prior to the date set for the focussed hearing. The Society shall deliver its affidavit evidence no later than 5 days prior to the date set for the focussed hearing

(iv) The Society, the Father, the Mother, and the Children’s Lawyer shall be entitled to cross-examine each of the opposing witnesses on their affidavit evidence. As L.R.’s position is essentially supportive of and the same as the Father’s, she shall not have an independent right of cross-examination. The cross-examination shall be limited to a total 40 minutes per witness; the examining parties may make arrangements to divide their time for cross-examination; failing agreement the time shall be divided equally. Any reply evidence shall be limited to 10 minutes per witness.

(v) The parties shall provide closing submissions in writing with the dates for delivery to be determined upon the conclusion of the evidence.

(vi) Each party shall serve and file a detailed draft order setting out the proposed terms regarding access at the same time as the affidavit evidence is delivered.

[161] The current temporary order dated May 15, 2014 with respect to access shall continue to apply until further order.

Justice L.E. Fryer

Released: December 21, 2015