Court File and Parties

COURT FILE NO.: FC-04-548-7 DATE: 2016/09/19

ONTARIO SUPERIOR COURT OF JUSTICE

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

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF A.J.M. ([…] 2015)

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON Applicant – and – N.J-L. Respondent – and – B.M. Respondent

Counsel: Judith Hupe, for the Applicant Cedric Y.L. Nahum, for the Respondent N.J.-L. The Respondent, B.M., unrepresented

HEARD: May 9, 2016

REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION

CORTHORN J.

Overview

[1] The Children’s Aid Society of Ottawa-Carleton (“the Society”) brings this motion for summary judgment, and requests:

1. A finding that the child, A.J.M.J-L. (a boy born on […], 2015 and hereinafter, “A.J.M.”) is a child in need of protection; and
2. An order placing A.J.M. in the care and custody of the Society as a ward of the Crown.

[2] The child’s mother N.J-L. responded to this application and opposes the motion. The child’s father, B.M., did not respond to the application and did not participate in the motion for summary judgment.

[3] The application was issued in November 2015. On November 16, 2015, an order was made placing the child in the temporary care and custody of the Society. The terms of access are as follows:

• To the father at the discretion of the Society;
• To the mother at a minimum of three times per week; and
• If the mother missed two consecutive access visits or two visits within a two-week period, access to the mother was to revert to the discretion of the Society.

[4] In November 2015, the mother was given an extension of time to January 5, 2016, within which to file her answer. The mother’s answer and plan of care was filed approximately two weeks after that deadline.

[5] A settlement conference was scheduled for January 23, 2016. The mother did not attend on that date and the motion for summary judgment was scheduled for May 9, 2016.

[6] The motion for summary judgment was heard on May 9, 2016. The mother, who was represented on the return of the motion, had filed an affidavit in response to the Society’s materials, and attended on the return of the motion.

[7] A.J.M. is the fifth child of N.J-L. Her four other children are no longer in her care. They were not in her care when A.J.M. was born. The circumstances of the four other children are as follows:

• The first child was born in […], 2004; became a Crown ward in October 2004; and was placed for adoption in Quebec, with one of the mother’s family members, in February 2005. The adoption was finalised in June 2006.
• The second child was born in […] 2006; remained in the care of N.J-L. and the child’s father until 2008; was in the father’s care on a full-time basis from 2008 to 2010; came into the care of the Society in January 2010; was placed with an aunt of the mother; and was returned to the father and the paternal grandmother in 2011, with the Society remaining involved on a voluntary basis until 2012. To the knowledge of the Society, the second child remains in the care of the father.
• The third child was born in […] 2009; was apprehended at birth; became a Crown ward in October 2009; and was placed for adoption with a maternal aunt in December 2009. The adoption was finalised in October 2011.
• The fourth child was born in […] 2014 and is the only other child of N.J-L. who has the same father as A.J.M. This child, a boy, was apprehended at birth and placed in foster care. On the consent of his parents, the child was made a Crown ward in September 2014. The boy was placed for adoption in Quebec with one of the mother’s cousins and the cousin’s spouse in February 2015. That adoption is not yet finalised.

[8] A.J.M. was apprehended at birth because of the Society’s concerns about the mother’s history of housing instability, criminal activity, anger management, mental health issues, substance abuse, and lack of pre-natal care. The Society was also concerned about what it describes as the “significant domestic violence” between the mother and father, including charges against each of the parents, and breaches by each parents of conditions imposed with respect to the criminal charges.

[9] N.J-L. and B.M. are not married. They are not involved in a traditional relationship with any degree of permanence. The Society alleges that N.J-L. works as an escort/sex-worker, with B.M. as her procurer.

[10] A.J.M. has remained in the care of the Society since he was born. In the late winter of 2016, two of the mother’s family members informed the Society that they are each in a position to present a plan for adoption of A.J.M. One of the family members is the maternal cousin who is in the process of finalizing the adoption of A.J.M.’s older brother (N.J-L.’s fourth child). The second family member is another maternal cousin. The Society’s preference is for A.J.M. to be adopted into the same family in which his older brother has been placed for adoption. The Society’s hope is that the two full siblings would be raised in the same family.

[11] The mother’s position is set out in her answer and plan of care and in her affidavit filed in response to the motion for summary judgment. N.J-L. says that she has established suitable, stable housing for herself and A.J.M.; the behaviours alleged by the Society are exaggerated, untrue, or resolved; she has the support of family members; and she is taking steps to improve her parenting skills.

[12] As to the motion for summary judgment more generally, the mother’s position is that the Society’s motion was made much too early in the process – six months after the apprehension of A.J.M. As a result, the mother has not been given an opportunity to demonstrate that she has the ability to improve her parenting skills, develop a meaningful relationship with A.J.M., and ultimately have A.J.M. returned to her care.

The Law

a) Motion for Summary Judgment

[13] When determining a motion for summary judgment in a family law proceeding, consideration must be given to both rule 16 of the Family Law Rules [1] and rule 20 of the Rules of Civil Procedure [2]. With respect to the latter, the principles established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [3] must be applied. It is well-established that the principles from Hryniak, although based on rule 20 of the Rules of Civil Procedure, are to be applied in motions for summary judgment in the family law context including in child protection cases. [4]

i) The Family Law Rules

[14] The Society’s motion is made pursuant to rule 16(1) of the Family Law Rules. On a motion for summary judgment, if there is no genuine issue requiring a trial the Court must grant summary judgment. The wording of rule 16(6) of the Family Law Rules makes it mandatory for the court to do so. If on a motion for summary judgment the only genuine issue is a question of law, the court must decide the issue and make a final order.

[15] The evidentiary requirements on a motion for summary judgment are prescribed in rule 16. The moving party is required to deliver an affidavit or other evidence setting out the specific facts to show that there is no genuine issue requiring a trial. [5] A responding party is also required to deliver an affidavit or other evidence in which they set out the specific facts to show that there is a genuine issue requiring a trial. [6] The responding party is not entitled to rely on “mere allegations or denials”, for example as may be set out in the responding party’s answer to the application. [7]

[16] When considering the evidence relied on by the parties, the court is entitled to exercise the following powers:

• To weigh the evidence;
• To evaluate the credibility of a deponent; and
• To draw any reasonable inference from the evidence.

[17] The court is not required to exercise those powers if it is in the interests of justice that the powers be exercised only at trial. [8]

[18] The burden of proof rests initially with the moving party – to demonstrate that there is no genuine issue requiring a trial. The moving party must establish that it has a prima facie case. If that onus is met, the burden of proof shifts to the responding party to establish that its defence or answer has a real chance of success. Each party on the motion is required to put their best foot forward. The court is entitled to assume that the record contains all of the evidence that the parties would present at trial. [9]

[19] If, in determining the motion for summary judgment, the court does not make a final order, or it makes an order for a trial of an issue, it is open to the court to make an order with respect to the following matters:

a) To specify the facts that are not in dispute and give directions as to how and when the case is to proceed to trial; b) Give directions generally; and c) Impose conditions. [10]

ii) Rule 20 and Hryniak v. Mauldin

[20] The decision of the Supreme Court of Canada in Hryniak established key principles to be followed in the context of the cultural shift mandated by the decision. That cultural shift is the recognition by parties, lawyers, and judges alike “that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.” [11]

[21] In Hryniak, the Supreme Court of Canada set out the framework within which the court is to determine whether there is a genuine issue requiring a trial:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: 1) allows the judge to make the necessary findings of fact; 2) allows the judge to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result. [12]

[22] The first step on a motion for summary judgment is for the judge to determine, based only on the evidence before the judge and without using the expanded fact-finding powers, [13] whether there is a genuine issue requiring a trial.

[23] If, based only on the record before the judge, there appears to be a genuine issue requiring a trial, the judge must then determine whether the requirement for a trial may be avoided by the exercise of the expanded fact-finding powers. Those powers may be exercised, in the discretion of the judge hearing the motion, provided that the exercise of those powers does not run contrary to the interests of justice. The interests of justice will be served if the exercise of those powers will lead to a fair and just result and serve the goals of timeliness, affordability, and proportionality in the context of the case as a whole. [14]

iii) Child Protection Cases

[24] Despite the call for a cultural shift and the search for methods of resolution that are timely, cost-effective, and proportional, it is imperative that the court exercise caution when determining a motion for summary judgment in a child protection matter. The court must ensure absolute fairness to the parties and that a party is not deprived of a trial on the full merits. [15]

[25] The caution to be exercised must be balanced against the understanding that it is not every disputed fact or every question of credibility that gives rise to a genuine issue requiring a trial. The genuine issue must relate to a material fact or to material facts. [16]

[26] Historically, summary judgment was granted in family law matters, in child protection cases in particular, only in “the clearest of cases”. [17] However, in a number of cases in which the amendments to rule 16 of the Family Law Rules have been considered, it has been held that summary judgment is more widely available. In his decision in Jewish Family & Child Services v. A.(R.), 2001 CarswellOnt 73 (Ont. S.C.), Lane J. said the following:

[T]he enactment of Rule 16 has made summary judgment more widely available than before. It is no longer necessary that every case be ‘the clearest of cases’. The rule does not so provide and, given the procedures in place to make such rules, the omission cannot be unintentional. The test is whether there is an issue of act requiring a trial for its resolution. By analogy, the case law under rule 20 is persuasive and useful, but regard must be had to the special duty of a child protection court to place the best interests of the child foremost. The court cannot be unaware of the fact, as Chapnik J. pointed out, that the making of an order that a child become a Crown ward without access is a very serious step having profound effects on child and parent alike. The court must ensure that the best interests of the child are adequately addressed on the available evidence. Caution is thus called for. Nevertheless, if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child’s future. [18]

[27] In making my determination in this matter, I am mindful that the court is mandated to determine whether there is a genuine issue requiring a trial and not a “triable issue” as referred to above.

b) The Child and Family Services Act

[28] The Society relies on sections 37(2)(b)(i) and 37(2)(g) of the Act in support of its request for a finding that A.J.M. is in need of protection. Those sections provide as follows:

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect caring for, providing for, supervising or protecting the child.

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety, (ii) depression (iii) withdrawal (iv) self-destructive or aggressive behaviour, or (v) delayed development,

And there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f), (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[29] If a finding is made that A.J.M. is in need of protection, the second step in the process is to make a disposition. It is at the disposition stage of the process that the Society’s request for Crown wardship is considered.

[30] The disposition of the matter requires consideration of the best interests of A.J.M. In addition, consideration must also be given to whether there are alternatives to an order for Crown wardship available that are less disruptive to A.J.M.

[31] The “best interests of the child” are defined in section 37(3) of the Act as follows:

(3) 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.

[32] Section 57 of the Act addresses a number of considerations for the Court when it is faced with a request for an order of Crown wardship. The portions of section 57 relevant to this matter are sub-sections (1), (2), (3) and (4):

(1) 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. 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. 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. 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. 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.

(2) 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.

(3) 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.

(4) 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.

[33] My decision in this matter is made within the framework of these statutory requirements, including those reviewed in the paragraphs immediately above.

Evidence

[34] The evidence before the court consists of the following affidavits:

1. Affidavit of Michele Thorn, a Child Protection Worker with the Society, sworn on November 13, 2015 (19 pages and 61 paragraphs – and hereinafter, “the Thorn Affidavit”);
2. Affidavit of Evangeline Ellicott, a Child Protection Worker with the Society, sworn on January 14, 2016 (11 pages and 43 paragraphs – and hereinafter, “Ellicott Affidavit No. 1”); [19]
3. Affidavit of Evangeline Ellicott, sworn on April 28, 2016 (33 pages and 118 paragraphs – and hereinafter “Ellicott Affidavit No. 2”);
4. Affidavit of Jenn Campbell, a Child and Youth Counsellor with the Society, sworn on April 28, 2016 (13 pages and 67 paragraphs – and hereinafter “the Campbell Affidavit”);
5. Affidavit of Gianna Aitken, a Child and Youth Counsellor with the Society, sworn on April 28, 2016 (3 pages and 7 paragraphs – and hereinafter, “the Aitken Affidavit”);
6. Affidavit of Laura Cater, a Child and Youth Counsellor with the Society, sworn on May 2, 2016 (3 pages and 9 paragraphs – and hereinafter, “the Cater Affidavit”); and
7. Affidavit of N.J-L. sworn on May 4, 2016 (5 pages and 50 paragraphs – and hereinafter, “the Mother’s Affidavit”).

[35] There were no cross-examinations on the affidavits.

[36] The evidence on behalf of the Society includes a brief description of the involvement of each of the mother and father, as children, with the Society. That evidence is cursory and lacks documentary substantiation, in particular as it relates to the diagnosis of mental health issues for N.J-L.

[37] The Society’s evidence otherwise falls into five categories:

a) N.J-L.’s history as a caregiver (i.e. with respect to her first four children); b) N.J-L.’s conduct during her pregnancy with A.J.M.; c) N.J-L.’s conduct subsequent to the birth of A.J.M.; d) B.M.’s conduct with respect to both his first child (the fourth child born to N.J-L.) and A.J.M.; and e) Relationship between N.J-L. and B.M.

a) N.J-L.’s History as a Caregiver

[38] The detailed evidence presented by the Society with respect to N.J-L.’s history as a caregiver to her first four children is before the Court in an effort to demonstrate that N.J-L. is repeating with A.J.M. the same types of behaviour she exhibited with respect to her first four children. That behaviour resulted in each of the first four children being placed with or remaining in the care of others on a permanent basis, with no access to N.J-L.

[39] The history of N.J-L and her four previous children is set out in detail in the Thorn Affidavit and in Ellicott Affidavit No. 1. I find that the evidence in that regard is not contradicted by N.J-L. in any material way, if at all, to my determination in this matter.

[40] Based on the Thorn Affidavit and Ellicott Affidavit No. 1, I find that the mother’s behaviour with respect to her first four children was as set out immediately below and in paragraphs 41 and 42.

• N.J-L. failed, despite receiving the assistance of the Society, to prepare for the arrival of her first child. As a result, the first child was apprehended at birth. Thereafter, N.J-L. missed the vast majority of scheduled access visits (42 out of 45 visits). N.J-L. did not respond to the Society’s Application for Crown Wardship and ultimately, the first child was made a ward of the Crown.
• With respect to the second child, N.J-L. was unable to demonstrate that she had adequate parenting capacity and that she would provide appropriate supervision for the child. When presented with the concerns of the Society, N.J-L.’s response was to deny the concerns and to be vague about her personal daily routine and the address at which she was living. N.J-L. did not have ongoing involvement with the Society with respect to the long-term plan for the second child. Despite informing the Society that she wished to have custody of the second child, N.J-L. failed to respond to the Crown Wardship application and failed to attend in court on the one occasion when she informed the Society that she would be present. To the knowledge of the Society, the second child is in the father’s care.
• N.J-L. became pregnant with her third child while the Society was attempting to address the concerns with respect to the second child. The third child was apprehended at birth because N.J-L. did not receive any pre-natal care and her personal circumstances remained unstable. N.J-L. consented to the third child being made a ward of the Crown and this child was adopted by a maternal aunt.

[41] Aware of N.J-L.’s history with respect to her first three children, upon receiving a referral with respect to N.J-L. being pregnant with her fourth child (of which the respondent B.M. is the father), the Society opened a file.

[42] In late 2013, during the latter part of N.J-L.’s pregnancy, as of the fourth child’s date of birth in early 2014, and until September 2014 when the fourth child was made a Crown ward, the concerns of the Society included the following:

• As of September 2013, N.J-L. and B.M. were reported to have been involved in numerous incidents of domestic violence, with both having been charged with assaulting the other person.
• N.J-L. and B.M. were both possibly using drugs and alcohol.
• B.M. is thought to be developmentally delayed and to potentially be on the Autism spectrum.
• It was only after two months of effort that Ms. Ellicott was able to meet with N.J-L. regarding her lack of pre-natal care. It is Ms. Ellicott’s evidence that at this meeting (in December 2013), N.J-L. took no responsibility for her first three children no longer being in her care.
• N.J-L. acknowledged that she had, on one occasion during her ninth month of pregnancy, consumed three glasses of champagne. She also tested positive for cocaine in […] 2014, approximately 10 days prior to the birth of her fourth child. She later maintained to the Society that someone had ‘slipped’ drugs into her champagne.
• One week prior to the birth of her fourth child, N.J-L. pled guilty to a number of charges including assault, harassing calls, and breaches of condition, the latter, as they related to prohibition of contact order with B.M.
• Test results on the fourth child indicated that he was potentially exposed to drugs in utero, including cocaine and alcohol. The level of drugs detected indicated cocaine use on at least two occasions during the third trimester.
• Following the apprehension of the fourth child, the Society received numerous calls from the police with respect to continuing conflict between N.J-L. and B.M. and their respective breaches of prohibition of contact order.
• Neither of N.J-L. and B.M. actively participated in service plan goals for the fourth child.
• The participation of both parents in access visits was sporadic and inconsistent.
• In the period from January to August 2014, N.J-L. was offered a total of 36 access visits with the child. She attended 10 visits, with the final one occurring in May 2014, when the boy was approximately four months old. N.J-L. was permitted to see the child again in July 2014 when she attended at the Society’s office unannounced and the child was, coincidentally, at the office for a visit with his father.

[43] N.J-L.’s evidence in response to the Society’s detailed evidence regarding her history with respect to her four previous children, is limited to the following statements:

14. In relation to my previous children, I was not ready to be a mother. I consented to the children being placed with family members because I wanted what was best for them.
15. I love my children but I was not prepared to care for them.

[44] I have reviewed and made findings with respect to the Society’s historical concerns regarding N.J-L. because the Society relies on the repetition by N.J-L. of her historical behaviour in support of its position that A.J.M. is in need of protection in relation to N.J-L.

[45] During the Society’s involvement with N.J-L. with respect to the fourth child, the Society received a report from psychiatrist Dr. Norris summarizing the results of a post-natal mental health assessment of N.J-L. That report was prepared approximately one month after the birth of the fourth child. Some of the opinions expressed in that report by Dr. Norris are set out in the Thorn Affidavit.

[46] A copy of the report prepared by Dr. Norris is not included as an exhibit to the Thorn Affidavit. In the context of a Crown Wardship application, I am concerned about the reliance on the contents of that report without an affidavit from the author of the report or, at a minimum, the inclusion of a copy of the report as an exhibit to the Thorn Affidavit. In any event, the portions of the report of Dr. Norris excerpted in the Thorn Affidavit do not include a diagnosis of a particular condition; rather there are references to the personality traits which N.J-L. had exhibited historically and was exhibiting when she met with Dr. Norris.

[47] The point to be taken from the reference to Dr. Norris is that he recommended that N.J-L. participate in an anger management program and a substance abuse program and she did not follow through on either recommendation. In relation to A.J.M., the Society’s position is that N.J-L. continues to fail to follow through on recommendations made with respect to her personal well-being in an effort to ensure that she is in a position to improve her parenting skills and develop a meaningful relationship with A.J.M. The failures of N.J-L. in that regard are discussed in sections (b) and (c), which follow.

b) N.J-L.’s Conduct – Pregnancy with A.J.M.

[48] N.J-L. became pregnant with A.J.M. in early 2015. The Society’s evidence as to how it became involved with N.J-L. during her pregnancy is as follows. The Society was contacted by the police with respect to two incidents that occurred in May 2015. The first communication was with respect to a public dispute, possibly over money, between N.J-L. and B.M. The police contacted the Society based on the former’s understanding that a condition remained in place, from the Society’s historical involvement with the respondents, which provided that the respondents were not to associate with one another “without permission from the CAS”. The second communication arose from an apparent breach by N.J-L. of her ‘no contact’ order with respect to B.M. Both of the respondents were arrested for breach of a ‘no contact’ order.

[49] N.J-L. does not address either of the May 2015 incidents in her affidavit.

[50] There are a number of other incidents involving the police and N.J-L. during the latter’s pregnancy with A.J.M. The evidence of N.J-L. with respect to those incidents conflicts with the evidence of the Society, as set out in the Thorn Affidavit. It is Ms. Thorn’s evidence that in July 2015, the Society was informed by the police that: a) N.J-L. had been arrested for assaulting a man; b) N.J-L. was on probation for uttering threats; and c) when N.J-L. was arrested for the alleged assault, it was noted that her breath smelled of alcohol.

[51] N.J-L. admits being arrested in July 2015. She denies assaulting anyone at the time. N.J-L. describes an incident involving a friend of B.M.’s. N.J-L.’s evidence is that this friend, a man, stole her iPad and cell phone. She tried to retrieve the items from the man.

[52] Missing from N.J-L.’s affidavit is evidence as to the status of the assault charge. Also missing from N.J-L.’s affidavit is evidence as to the existence of any probation or other order. In the submissions made by counsel for N.J-L. it was stated that there:

• Are no current charges;
• Is no probation order; and
• Have been no charges laid against N.J-L. since the birth of A.J.M.

[53] Absent a statement in N.J-L.’s affidavit to that effect, there is no evidence to support a finding in that regard.

[54] As a result, I am limited to making the following findings with respect to the July 2015 incident. At a time when she was approximately five months pregnant, N.J-L. became involved in an altercation with a man which resulted in N.J-L. being charged with assault. I am not in a position, based on the record, to make any findings with respect to: a) the physical nature, if any, of the altercation; and b) the extent, if any, to which N.J-L. put the well-being of the baby at risk by engaging in the altercation.

[55] As to the information from the police that alcohol was on N.J-L.’s breath at the time of her arrest, N.J-L.’s evidence is that the day before the date of the arrest was her birthday. She admits that she consumed three glasses of champagne during that evening. [20] According to Ms. Thorn, when she met with N.J-L. immediately following the birth of A.J.M., she reviewed with N.J-L. various events that occurred during the pregnancy. The evidence of Ms. Thorn is that during this meeting N.J-L. said she had consumed one glass of wine the night prior to the date of arrest. At that time, N.J-L. offered the same reason for the consumption – that it was her birthday.

[56] N.J-L.’s evidence with respect to the consumption of alcohol during her pregnancy with A.J.M. only adds to the extent of the contradictions in her evidence on the point. At paragraph 19 of her affidavit, N.J-L. says that during the pregnancy she “ate healthy food and avoided alcohol.” At paragraphs 21, 22 and 23 of her affidavit, N.J-L. explains the consumption of champagne on the evening prior to the date of her arrest as follows:

21. The night before, I had about three glasses of champagne. It was my birthday.
22. I did not drink at any other time during my pregnancy.
23. I thought it was ok to drink a small amount of alcohol because it was an isolated occasion and I had been told that it is not dangerous to drink a small amount of alcohol when pregnant.

[57] As to the date of the July 2015 arrest, it is not possible to make a finding as to whether it occurred on the day after N.J-L.’s birthday. A number of Ottawa Police Service records are attached to Ellicott’s Affidavit No. 2. The records for the July 2015 arrest are not included. I note from an Ottawa Hospital record attached to Ellicott Affidavit No. 2 that N.J-L.’s date of birth is July 22, 1988.

[58] Regardless of the timing of the arrest, as it relates to N.J-L.’s birthday, N.J-L.’s evidence with respect to the consumption of alcohol during the pregnancy with A.J.M. is concerning for a number of reasons. First, she gave two different responses as to the amount of alcohol consumed on the night prior to the date of her arrest. One of the responses is reminiscent of N.J-L.’s response in relation to alcohol consumed while pregnant with A.J.M.’s older brother.

[59] Second, the responses are contradictory to the statement in N.J-L.’s affidavit to the effect that she avoided alcohol during the pregnancy. The inconsistencies with respect to alcohol consumed both generally and specifically on the July 2015 occasion demonstrate a lack of credibility on this point.

[60] Third, N.J-L. was by July 2015 well aware of concerns expressed to her by the Society and a number of professionals regarding the consumption of alcohol during pregnancy. Concerns of this kind had been expressed to her during her previous pregnancies. N.J-L.’s purported beliefs about the propriety of drinking small amounts of alcohol while pregnant demonstrate a disregard for the well-being of her unborn child. Those beliefs are not credible given that on two occasions N.J-L. has admitted to consuming three glasses of champagne on a single occasion while pregnant.

[61] The third incident involving communication with the police occurred in August 2015. That incident is described in both the Thorn Affidavit and in Ellicott Affidavit No. 2. That incident involves N.J-L. residing in a University of Ottawa student housing unit – potentially in an unauthorized sublet. N.J-L. is said to have left the unit when the police arrived, leaving her belongings behind. The police found a three-quarters full bottle of whiskey on the dresser in the room N.J-L. was occupying. An officer who returned to the same premises at a later date is said to have found needles in one of the bags that N.J-L. left behind when she departed the premises in August 2015.

[62] It is Ms. Thorn’s evidence that when she met with N.J-L. immediately following the birth of A.J.M., N.J-L. admitted that there was a large bottle of whiskey in her room. N.J-L. told Ms. Thorn that an ex-boyfriend by the name of “Tom” had stayed with her for one night in the student housing unit.

[63] N.J-L. offers no explanation as to why or for how long, if for any period at all, she was living in University of Ottawa student housing. N.J-L. denies drinking “Jack Daniel’s” at all during her pregnancy. She also denies that the bag in which the needles were found was hers and denies any use of needles whether for recreational or prescription drugs.

[64] It is the Society’s information, as provided by the Ottawa Police, that the August incident at student housing also includes an allegation that N.J-L. stole a woman’s cell phone. N.J-L. denies having done so. It is her evidence that it was B.M. who stole the woman’s phone.

[65] In October 2015, the Society was contacted by the paternal grandmother of A.J.M. She expressed concerns about N.J-L.’s lack of pre-natal care, use of drugs, consumption of alcohol and unstable housing; in particular, with the imminent birth of the child. N.J-L.’s response is a blanket denial of the statements made by the paternal grandmother to the Society.

c) N.J-L.’s Conduct – After Birth of A.J.M.

[66] The Society relies on information provided by staff at the Gatineau Hospital (where A.J.M. was born). N.J-L.’s behaviour in the period immediately following the birth of A.J.M. is described as aggressive and un-cooperative. The level of aggression was to the point that hospital staff were on the verge on contacting security.

[67] Ms. Thorn’s evidence includes a description of the difficulties she encountered with N.J-L. – lack of co-operation and loud, aggressive language – when A.J.M. was taken to the neo-natal intensive care unit. A security guard who was present is said to have tried to convince N.J-L. to permit A.J.M. to be taken to that unit.

[68] In her affidavit, N.J-L. does not deny the events as described in the Thorn Affidavit and repeated in Ellicott Affidavit No. 2. N.J-L. offers the following explanation for her behaviour: “It was devastating that the Society wanted to apprehend my son and I argued with the worker when she wanted to apprehend my son… [I] did not agree with him being apprehended.” [21]

[69] Child and Youth Counsellor, Jenn Campbell (“Ms. Campbell”), was assigned to N.J-L.’s file on November 16, 2015. Her evidence is with respect to N.J-L.’s interaction with the Society and access visits with A.J.M. for the 5.5-month period until late April 2016. Ms. Campbell’s evidence is as follows:

• N.J-L.’s access visits were scheduled to commence on November 24, 2015. N.J-L. cancelled the first four access visits.
• In November and December 2015, N.J-L. attended three out of eight scheduled access visits. Two additional visits were cancelled by the Society because of poor weather conditions and a physician appointment for A.J.M.
• As a result of the multiple missed access visits, and in accordance with the […] 2015 order for temporary care and custody, the frequency of the access visits was reduced from three times per week to twice a week.
• Three make-up visits were offered to N.J-L. in January 2016. However, they did not occur because N.J-L. did not communicate by e-mail with the worker with whom she was to arrange the make-up visits.
• N.J-L. did not attend any of the 10 scheduled access visits for February 2016.
• Three additional make-up visits were scheduled and confirmed with N.J-L. Ultimately, she did not attend any of them.
• In March 2016, N.J-L. attended six of eight scheduled visits.
• In April 2016 N.J-L. attended four of eight scheduled visits.

[70] It is Ms. Campbell’s evidence that in summary, N.J-L. attended 19 of a possible 46 visits.

[71] N.J-L. acknowledges that she has missed “a significant number of visits.” I find that her explanations for doing so are less than reasonable and indicative of the continuation of her inability to take responsibility for her own actions and to give priority to her role as a parent to A.J.M.

[72] For example, N.J-L. says that she missed “some of the visits” because she was sick. N.J-L. does not state how many of the 27 missed visits were missed because of illness. She provides no particulars of any sickness or medical condition which caused her to miss an access visit. There is no supporting documentation from a physician to verify the nature or date of any illness from which N.J-L. was suffering. The absence of any corroborative evidence in this regard gives rise to a lack of credibility of the explanation for missed visits.

[73] The explanation offered by N.J-L. in her affidavit as to why she missed all of the access visits in February is that she travelled to Niagara Falls and stayed with friends. Her stated reason for doing so was to get away from B.M., whom she says was making it difficult for her to move forward without him. According to Ms. Ellicott, N.J-L.’s explanation for missing visits in February was that she had travelled to Toronto for a week after February 5 to clear her head. [22]

[74] Regardless of the specific reason for the visits missed in February, what is of concern is that N.J-L., fully aware of the potential consequences of missed access visits, chose to leave Ottawa for a period of time and miss access visits – all without any advance notice to the Society. That behaviour once again demonstrates N.J-L.’s inability to prioritize her role as a parent to A.J.M. above her own needs and desires. Even if N.J-L.’s explanation for her absence in February 2016 is accepted, I find that her failure to be proactive in dealing with the Society with respect to access visits demonstrates that she is unable to consistently be responsible in her role as A.J.M.’s mother.

[75] As a third explanation for missed access visits, N.J.-L. offers the rigours of the Society’s punctuality requirements. Specifically because of the number of missed visits in early December 2015 a requirement was put in place for N.J-L. to arrive at the access location and complete a “physical check-in” by a specific time, failing which the access visit would not take place. As explained in Ellicott Affidavit No. 2, the physical check-in was implemented to avoid having A.J.M. transported unnecessarily to access visits only to have his mother fail to attend.

[76] In N.J-L.’s affidavit she refers to the physical check-ins as a “hurdle” which the Society has put in place. She complains about having to arrive an hour early. She says, “[t]he time that I am waiting at the check-in is also time that I am not able to do other programming or things.” [23]

[77] It is not clear why N.J-L. has difficulty arriving at the access visits one hour early. There is no evidence that her schedule is full or tight because of work and other commitments. N.J-L. has provided no explanation as to why she does not have the freedom in her schedule to make the adjustments required and do all that is in her power to ensure that she is more than on time for the access visits. Sadly, N.J-L. views the time (approximately two hours per week in total) to be spent physically checking in for access visits as a waste of her time.

[78] N.J-L.’s complaint that she is sometimes late for access visits because the time on her watch differs from the clock used at the location of the access visits is, in a word, feeble. In that regard, N.J-L.’s evidence is as follows:

35. … I have to arrive an hour early for my visits for a physical check-in. My visits are cancelled if I arrive late at all. Sometimes my watch has been off the Society’s time and I believe that I am arriving on time and they are off by a minute or two.
36. It is frustrating to have visits cancelled for being a minute late, especially when I would have to arrive an hour before the visit actually commences.

[79] The solution in the circumstances is obvious – N.J-L. adjusts her watch ahead by several minutes or takes other steps to ensure she is not late. For N.J-L. to blame missed visits on differences between time-keeping devices is another indication of her inability to take responsibility for her conduct and to give priority to her role as a parent to A.J.M. Once again N.J-L.’s focus is on herself and her circumstances in the absence of consideration of the care which A.J.M requires.

[80] In Ellicott Affidavit No. 2, there is evidence with respect to at least two meetings set up with N.J-L. over time to review the issue of access visits and other matters. N.J-L. missed both meetings. That evidence is uncontradicted. N.J-L. does not offer any explanation as to why she missed either of the meetings. Nor does she deny the explanation which Ms. Ellicot says N.J-L. gave for missing a meeting in early 2016. It is Ms. Ellicott’s evidence that N.J-L.’s explanation for missing the meeting was that “she had a bottle of wine the night before [the] meeting and slept in the next day; missing [the] appointment.” [24]

[81] At a meeting with N.J-L. in late March 2016, Ms. Ellicot reviewed with her the procedure for cancelling access visits, provided N.J-L. with the telephone number to call in relation to visits, and stressed the importance of calling that number in a timely manner to cancel visits. Ms. Ellicot also reviewed with N.J-L. that anything which impacts A.J.M. needs to be top priority. N.J-L.’s response, rather than to acknowledge her responsibility and role in the circumstances, was to say that if A.J.M. was home with her everything would be fine.

[82] Based on the evidence of Ms. Ellicott, I find that on any number of occasions in the latter part of 2015 and the first three to four months of 2016, N.J-L. was encouraged by the Society to enroll in parenting programs and an anger management program. I also find that N.J-L. was, despite her repeated denials of having an addiction problem, encouraged to seek counselling in that regard.

[83] The uncontradicted and undisputed evidence as to the programs and counselling pursued by to N.J-L. is as follows:

a) As of January 2016, N.J-L. had missed two successive meetings arranged with a counsellor at Bethany Hope Centre. As a result, the counsellor requested that N.J-L. seek assistance elsewhere. b) As of late March 2016, N.J-L. had contacted the Sandy Hill Community Health Centre and been advised that there was a workshop she could attend, for three days from April 18 to 25, 2016, at the end of which she would receive a certificate. The nature of the workshop is not identified. There is no evidence from N.J-L. that she attended the workshop (the dates for which pre-date the date on which she swore her affidavit). c) As of late April 2016, N.J-L. told the Society that she had been referred for a psychological assessment. [25] There is no evidence from N.J-L. that she has been pro-active in any way in arranging the assessment. d) Also as of late April 2016, N.J-L. told the Society that she had been referred to see a family doctor. [26]

[84] The Society provided N.J-L. with contact information so that she could arrange an addictions assessment. Her response to the information was to say, “she drinks on the weekend like everyone else and wants to go on vacation and get really drunk.” N.J-L. does not dispute the evidence as to her response on that occasion.

[85] N.J-L. does not deny the evidence as to what she did on a trip to Mont Tremblant on a weekend in the spring of 2016. It is Ms. Aitken’s evidence that in response to an inquiry of N.J-L. as to how she spent that weekend, N.J-L. said that she, “partied and drank all weekend … she was drunk for the whole weekend as she was feeling stressed.” [27] N.J-L. does, however, deny that she has an addictions problem.

[86] It was submitted on behalf of N.J-L. that there is no evidence of a problem with drugs or alcohol, at this time, which is relevant to the determination of the summary judgment motion. I find that N.J-L.’s attitude towards the use of alcohol is such that at a time when the potential to lose her fifth child exists, N.J-L. continues to place her desire or need to consume alcohol, to excess on occasion, ahead of the best interests of her child.

[87] N.J-L. enrolled in and was, as of late April and early May 2016, attending an anger management program through the Elizabeth Fry Society. The program has two components and requires the individual to attend eight weekly group sessions to complete the group portion of the program. The sessions were scheduled to start on April 29 (the day after Ellicot Affidavit No. 2 was sworn). It is N.J-L.’s evidence that, as of early May 2016 when she swore her affidavit, she was attending the weekly group sessions.

[88] It is N.J-L.’s evidence that she is also attending individual counselling as part of the anger management work she is doing with Elizabeth Fry. The information provided by the Elizabeth Fry Society to Ms. Ellicott is to the effect that N.J-L. started the individual counselling, but missed one or two sessions. N.J-L. does not deny missing the session(s).

[89] I find that N.J-L.’s delayed response to the requirement that she enrol in a number of programs and her inconsistent participation once enrolled are another element of her inability to be responsible in her role as a parent to A.J.M.

[90] The Society’s concerns also extend to what it refers to broadly as N.J-L.’s “lifestyle”. At the less significant end of this category of concerns is N.J-L.’s choice of clothing from time-to-time. Based on the uncontradicted evidence relied on by the Society, I find as follows:

a) N.J-L. attended a meeting with the Society in December 2015 to swear the birth, parentage, and religion affidavit. She wore beach sandals. Her explanation for doing so was that she was out of sorts and not at her best. b) N.J-L. attended one of her access visits with A.J.M. in the spring of 2016 wearing pajamas and a bathrobe. Her explanation for doing so was that she was on “March Break”. c) N.J-L. attended a meeting with Ms. Ellicot in late April 2016 wearing “onesie pajamas and furry slippers.” [28] N.J-L.’s explanation for doing so was that she was having a pajama day.

[91] Ms. Ellicot’s evidence is that she tried to explain to N.J-L. that wearing night clothes in public might not impact A.J.M. when he is a baby. However, doing so would cause embarrassment to an older child. In my view, the problem with N.J-L.’s inability, on occasion, to dress appropriately goes beyond being a potential source of embarrassment for A.J.M. at an older age. These incidents are evidence, once again, of N.J-L.’s inability to take responsibility for herself and her lack of appreciation for the seriousness of circumstances in which she finds herself – facing the potential loss of her fifth child.

[92] At the most serious end of the concerns expressed by the Society with respect to N.J-L.’s lifestyle are the allegations that she earns income through work as an escort and as a sex-worker. The allegations are based on information provided to the Society by B.M. and his mother. The allegations are also based on internet searches conducted by Society employees which led to “escort ads” and photographs of N.J-L. less than fully-clothed.

[93] N.J-L. vehemently denies the allegations that she earns an income as either an escort or as a sex-worker. Her explanation, as provided to the Society is that a friend used N.J-L.’s telephone number and posted the ads.

[94] The seriousness of the allegations and the contradictory evidence (with the Society’s evidence being hearsay) with respect to N.J-L. earning income as an escort and sex-worker are such that even with the expanded fact-finding powers, I am unable to make findings of fact in this regard. The manner in which N.J-L. earns an income is a material fact. However, even in the absence of a finding of fact with respect to N.J-L.’s ‘lifestyle’ it is possible to determine the issues on the motion for summary judgment. The allegations with respect to N.J-L.’s ‘lifestyle’ do not give rise to a genuine issue requiring a trial.

d) Conduct of B.M.

[95] It is the Society’s position that B.M. has, since the date of apprehension of A.J.M., done nothing to improve his behaviour, improve his parenting skills, or develop a meaningful relationship with A.J.M. The Society submits that A.J.M. is in need of protection pursuant to sections 37(2)(b)(i) and (g) of the Child and Family Services Act in relation to B.M.

[96] The evidence relied on by the Society with respect to the conduct of B.M. is uncontradicted. N.J-L.’s evidence is that B.M.’s behaviour is problematic for her in her efforts to develop a meaningful relationship with and become a better parent to A.J.M. As noted above, I find that evidence self-serving. Although I am concerned about the credibility of N.J-L.’s evidence as it relates to her conduct, I find that her evidence with respect to B.M.’s conduct is in general in keeping with that relied upon by the Society.

[97] With respect to B.M., on the basis of the record before me, I find as follows:

• Without the permission of the Society, B.M. attended an access visit which N.J-L. had scheduled with A.J.M. on November 27, 2015. As a result of B.M.’s loud and aggressive behaviour and his use of profane language, he was escorted from the premises by a security guard.
• A similar incident occurred on December 8, 2015 which resulted in the police being called and a trespass notice being issued to B.M.
• B.M.’s behaviour in court on the date of the apprehension hearing (November 16, 2015) was such that police were called to the court room and remained in the court for the duration of the hearing.
• During the period from November 28, 2015 to April 28, 2016, B.M. attended a total of seven access visits. B.M. either failed to attend or called to cancel 90 percent of the scheduled access visits. [29]
• During the access visits that B.M. attended, he struggled to meet A.J.M’s basic needs including supporting the child’s head, reading basic cues for hunger or a diaper change, feeding, and soothing. B.M. had difficulty interacting with A.J.M.
• On January 13, 2016, B.M. attended for his access visit with A.J.M. carrying a large bag of empty beer cans. Although the cans were empty, there was a strong odour of beer. B.M. was asked to leave the bag outside the room in which the access visit would take place.
• The most recent access visit attended by B.M. was on March 30, 2016. Since that time his access visits with A.J.M. have been on hold.

[98] As noted above, it is the understanding of the Society that B.M. has some developmental delays and that his condition may be such that he is on the Autism spectrum. Ms. Campbell’s observations of B.M.’s behaviour with A.J.M. from the seven visits that he attended are as follows:

• B.M. is not able to look after A.J.M. on his own and requires a lot of support from staff.
• He is not always able to learn the skills being taught to him during visits. He is not able to reproduce what is recommended or showed to him.

e) Relationship Between N.J-L. and B.M.

[99] The relationship between A.J.M.’s parents has historically been and appears, based on undisputed evidence, to remain problematic. As noted in section (d) above, B.M.’s behaviour during N.J-L.’s access visits with A.J.M. in the child’s early months was problematic. Of concern to the Society is the perpetuation of the negative interaction between the two adults, with the risk of physical and/or emotional harm to A.J.M.

[100] Even at the date of the return of the motion for summary judgment, the status of the relationship between the respondents was unclear. The Society’s concern is that N.J-L. is incapable, including for some reasons beyond her control (i.e. B.M.’s conduct) to distance herself entirely for B.M.

[101] The evidence in the Mother’s Affidavit as to the status of her relationship with B.M. is contradictory. In her affidavit, N.J-L. initially states unequivocally that she has decided to “cut all ties” with B.M.:

9. [B.M.] is not welcome in my home and I am no longer in a relationship with him.
10. We have been separated for approximately three months. [30]
11. I have continued to speak to him and attempted to help him when he calls me because he needs support and his mother does not help him as much as he needs. He is unable to appreciate the support that I am giving him and continues to cause me difficulties as he did when we were together.
12. Though I care for him as the father of my children and someone whom I was very close to[,] I have decided to cut all ties with him because he is preventing me from moving forward and having my son return to my care.

[102] The evidence in the paragraphs quoted immediately above is contradicted by evidence set out in a subsequent paragraph in the Mother’s Affidavit:

43. I am also registered for couples counselling with [B.M.]. We were supposed to start next week but I am not certain if I will continue with this because it may be best for me to simply cut ties with [B.M.] completely. I am prepared to discuss this with my worker. She had requested that we attend couples counselling and I am prepared to do so if she would like me to. [31]

[103] There is a lack of definitiveness to the statements made by N.J-L. in that regard. The statements are “only indicative of intentions”. [32] The stated intentions of N.J-L. are not only contradictory to the statements made in the earlier paragraphs of her affidavit; they are a reflection of the lack of progress made, since the state of apprehension, to sever ties once and for all with B.M. in an effort to ensure the well-being of A.J.M. in the short-term and in the long-term.

Plan for A.J.M.

[104] The Society has, since the spring of 2016, been working with N.J-L. in an effort to plan for A.J.M. in the long-term. Following the apprehension, he was placed in foster care where he remains to this date. The Society’s plan for A.J.M. has from the outset been that he be named a ward of the Crown for the purpose of adoption. The Society’s priority plan is that A.J.M. be placed for adoption by the same family that is in the process of finalizing their adoption of A.J.M’s older brother.

[105] N.J-L.’s plan for A.J.M. is set out in her answer and plan of care and in her affidavit. She plans to reside on her own with A.J.M. in the apartment in which she was living in January 2016 when her pleading was delivered. I note that the apartment is located on the same street on which both N.J-L. and B.M. are said to have been living at one point in time. It is not entirely clear whether the respondents were living together at any point in time in 2016. As of the date of the motion for summary judgment, it was N.J-L.’s evidence that she resides in the apartment on her own.

[106] There is nothing in N.J-L.’s plan regarding education, employment, her immediate source of income (other than Ontario Works), or how she plans to provide financially for A.J.M. in the long-term.

[107] As of January 2016 when her pleading was delivered, N.J-L. cited both her sister (a nurse who lives in Orleans) and A.J.M.’s paternal grandmother as potential sources of family support. There is, however, nothing in the way of particulars from N.J-L. as to the type of support which she would receive from her sister. There is no affidavit from the sister confirming that she is in a position to provide support or describing the type of support she would be able to provide.

[108] N.J-L.’s plan to rely on the paternal grandmother is troubling given that the latter is one of the two sources of information upon which the Society relies on in support of their concerns about N.J-L. working as an escort and/or a sex-worker. In her affidavit, N.J-L. says that the paternal grandmother is lying in that regard. N.J-L. also claims that she and the paternal grandmother otherwise get along well when communicating with one another.

[109] The third person upon whom N.J-L. says she would rely for support is her aunt (“C.E.”). Once again, there is no affidavit from C.E. and there are no particulars of the type of support that N.J-L. anticipates receiving from her aunt.

[110] With respect to her home, it is N.J-L.’s evidence that the home is “safe and appropriate”. The apartment is described as newly-renovated and spacious, having two bedrooms and a den, and being fully-equipped with the amenities required to care for A.J.M. It is also N.J-L.’s evidence that two invitations which she extended to the Society to visit her home were thwarted, on the most recent occasion, due to concerns related to B.M.

[111] Even if N.J-L.’s evidence as to the preparedness of her home is accepted, the concerns with respect to N.J-L. being able to provide a stable home environment for A.J.M. remain. In that regard, I point to the following statements made in N.J-L.’s answer and plan of care:

• The mother has previously attended parenting courses and has appropriate parenting skills.
• The mother is committed to caring for her son and will ensure that all of his needs are met.

[112] With respect to parenting programs, as of May 2016 when her affidavit was sworn, N.J-L.’s evidence was as follows:

42. In addition to that, I am registered for counselling for Positive Parenting and Buns in the Oven at Bethany Hope, starting next week. I had attempted to start these programs earlier but was not able to because of B.M.’s behaviour when I previously attended in the fall.

[113] Given N.J-L.’s track record when it comes to commitment to regularly scheduled activities – from access visits to anger management group sessions – I find that her statement with respect to “Positive Parenting and Buns in the Oven” is once again a statement of ‘intention’. In light of all the evidence, N.J-L.’s explanation as to why it took her from the fall of 2015 until the spring of 2016 to enroll in those programs is not that of someone who is committed to caring for her son and to ensuring that all of his needs are met.

[114] The uncontradicted evidence of the Society, as set out in the Thorn Affidavit, is that N.J-L. did not attend any parenting programs with respect to her four previous children. N.J-L.’s disregard of Society recommendations to attend such programs pre-dates the birth of A.J.M. by more than a decade and continued for a number of months following the birth of A.J.M. By her own admission, as of the date of the return of the motion for summary judgment, N.J-L. had not succeeded in taking any formal steps to improve her parenting skills.

[115] An alternative set out in N.J-L.’s plan is for A.J.M. to move with her to Miami, where N.J-L.’s mother lives. It is N.J-L.’s evidence that her mother has offered to have N.J-L. and A.J.M. live with her and to assist N.J-L. in raising A.J.M. The maternal grandmother is said to be prepared to present a plan “if it is necessary”. No further particulars are provided about what life would be like for either N.J-L. or A.J.M. in Miami. There is no affidavit from the maternal grandmother.

[116] As to the relationship with her mother, N.J-L. says, “I get along very well with my mother and I trust that my mother would be a great support to me and my son.”

[117] The only other evidence with respect to the maternal grandmother is found in the Thorn affidavit. It is Ms. Thorn’s evidence that a file was opened for N.J-L. as a youth from April to November 2003 (i.e. when N.J-L. was 15 years old). N.J-L. came into the Society’s care after spending time at the Sherwood Observation and Detention Centre. At the time, there was an allegation of physical abuse by N.J-L.’s father. Her mother was said to have been incarcerated at the time.

[118] As was noted earlier in these reasons, I am entitled to assume that the record contains all the evidence that would be presented at trial. [33] N.J-L.’s evidence on the motion falls far short of evidence to satisfy the Court that there is an alternative to consider, other than Crown wardship, which is less disruptive to A.J.M. and in his best interests.

Disposition

1) Birth, Parentage and Religion

[119] Based on the affidavit of B.M. sworn on December 9, 2015 and the affidavit of N.J-L., sworn on December 16, 2015, I find that:

• A.J.M. was born on […], 2015
• The parents of A.J.M. are N.J-L. and B.M.; and
• A.J.M. is of the Christian faith.

2) In Need of Protection

[120] On the basis of the record before me, including the evidence summarized in these reasons, I find that:

a) The Society has established a prima facie case that A.J.M. is in need of protection pursuant to section 37(2)(b)(i) and (g) of the Children and Family Service Act; b) N.J-L. and B.M. have not, in that regard, raised a genuine issue requiring trial; and c) A.J.M. is in need of protection with respect to both N.J-L. and B.M.

3) Best Interests of A.J.M.

[121] In C.(S.), De Sousa J. emphasized the importance of the need to plan permanently for a child who was four months old on the date of a motion for summary judgment. As did De Sousa J. in C.(S.), I find that it is in the best interests of A.J.M. (six months at the date of the motion for summary judgment and now 10 months old) to decide for his future quickly. Having considered all of the evidence presented by the Society, the evidence of N.J-L., and their respective plans for A.J.M., the time limits imposed by the legislation, and the paramount consideration of the best interests of the child, I find that the Society has raised a prima facie case for an order that A.J.M. be made a Crown ward and be placed for adoption.

[122] As relates to B.M., there is no genuine issue requiring a trial. He has made no efforts whatsoever to develop the skills required to spend time, let alone develop a meaningful relationship, with A.J.M. He has made little, if any, effort to be co-operative with the Society. B.M. has not demonstrated that he has the capacity to be a parent to A.J.M. in any way whatsoever.

[123] It is within the jurisdiction of the Court to make, vary or terminate an order respecting a person’s access to a child. [34] I find that it is in the best interests of A.J.M. that B.M.’s access to the child be terminated.

[124] I turn to N.J-L. and access to A.J.M. Are N.J-L.’s stated intentions to be given credence? Are there any real, meritorious differences between N.J-L.’s behaviour in relation to A.J.M. and her behaviour with respect to her four previous children? Would granting an order for anything other than Crown wardship without access be tantamount to permitting N.J-L. to ‘buy time’ to develop the ability to be a parent and remain in A.J.M.’s life in some way. [35]

[125] Three of N.J-L.’s four other children were made Crown wards. The timing of the Crown wardship orders made in those three cases was as follows:

• For the first child, within eight months of the child’s date of birth;
• For the third child, within nine months of the child’s date of birth; and
• For the fourth child, within eight months of the child’s date of birth.

[126] The Crown wardship applications were either not opposed or were consented to by N.J-L.

[127] The motion for summary judgment in this matter was heard six months after A.J.M. was born. N.J-L. acknowledges that she was not ready to care for any of her four other children, including A.J.M.’s older brother who was born in […], 2014. N.J-L.’s evidence is that as of […] 2015 she was able to care for A.J.M. That is one of the reasons why she behaved as she did when A.J.M. was apprehended; N.J-L. did not agree that A.J.M. should be apprehended.

[128] Believing that she could care for A.J.M., and “devastated” by his apprehension, what was N.J-L.’s response to that event? Did she do everything in her power to demonstrate to the Society and be in a position to demonstrate to the Court that it is in A.J.M.’s best interests that N.J-L. remain in his life? She did not; instead, N.J-L. did the following:

• N.J-L. attended less than 50 percent of the access visits scheduled;
• Knowing that her conduct and deportment would be under scrutiny, N.J-L. chose to attend at least one access visit and one meeting with the Society while wearing her night clothes and slippers;
• When N.J-L. failed to attend access visits and to attend meetings with the Society at which access visits were to be discussed, the vast majority of the time she did so without advance notice to the Society; and
• N.J-L. delayed for several months in following the Society’s requirement that she enroll and participate in parenting and anger management programs. Once enrolled, she was not consistent on her attendance.

[129] In the six months from the date of apprehension of A.J.M. to the date on which the summary judgment motion was heard, N.J-L. was inconsistent in all aspects of her dealings with the Society including, most importantly, the access visits with A.J.M. In addition, N.J-L. repeated behaviour demonstrated over a period of 12 years since the birth of her first child. I find that the steps taken by N.J-L. in the month prior to the date of the summary judgment motion are insufficient to raise a genuine issue requiring a trial with respect to the issue of access. Sadly for N.J-L., those steps amount to too little, too late. N.J-L. has squandered the time she had available to her to demonstrate that it is in A.J.M.’s best interest that N.J.-L. continue to have access visits with him. [36]

[130] The parenting skills demonstrated by N.J-L. in the positive moments of the access visits that she did attend are insufficient, when considered together with N.J-L.’s behaviour as discussed above, to demonstrate that there is a genuine issue requiring a trial with respect to continued access.

[131] I have no doubt that N.J-L. loves A.J.M., just as she loved her four previous children. N.J-L.’s experience with her first four children make the outcome in this matter all the more tragic. N.J-L. knew exactly what she was facing in […] 2015 when A.J.M. was apprehended. Yet, as I have found, N.J-L. did not respond in a way that supports her remaining a part of A.J.M.’s life:

The legal process is not to be used as a strategy to “buy time” to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a parent’s heartfelt expression of his desire to resume care of the child; the parent’s evidence must support that he faces better prospects than what existed at the time the society removed the child from his care and that he has developed new parenting skills. [37]

[132] I find that N.J-L.’s access to A.J.M. is also to be terminated as part of the order of Crown wardship. An access order would prevent A.J.M. from being adopted.

[133] The plan which the Society has put forward calls for A.J.M. to be adopted into the family of one of two family members of A.J.M. Understandably, the Society’s preference and priority is for A.J.M. to be adopted into the family which is in the process of finalizing the adoption of his older brother.

[134] N.J-L.’s stated preference for A.J.M. is for him to be adopted by a member of her family if he is to be made a Crown ward. If there can be any solace to N.J-L. in these circumstances it is because of the Society’s plan to that effect. A.J.M. has the potential to be adopted into a stable home and to be raised as part of a family with his older brother.

Order

[135] An order shall issue that A.J.M. born […], 2015 be made a Crown ward for the purpose of adoption.

Madam Justice Sylvia Corthorn Released: September 19, 2016

COURT FILE NO.: FC-04-548-7 DATE: 2016/09/19

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF A.J.-L. ([…], 2015) B E T W E E N: THE CHILDREN’S AID SOCIETY OF OTTAWA-CARLETON Applicant – and – N.J.-L. Respondent – and – B.M. Respondent REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION Madam Justice Sylvia Corthorn

Released: September 19, 2016

[1] O. Reg. 114/99 as amended. [2] R.R.O. 1990, Reg. 194 as amended. [3] 2014 SCC 7, [2014] 1 S.C.R. 87. [4] See Afolabi v. Fala, 2014 ONSC 1713, 46 R.F.L. (7th) 75; Children’s Aid Society of Ottawa v. T. (R.N.), 2014 ONSC 916, [2014] W.D.F.L. 2471, at para. 9; and Children’s Aid Society of Ottawa v. S.K., 2015 ONSC 4623, [2016] W.D.F.L. 4277, at paras. 76 to 79. [5] Rule 16(4) of the Family Law Rules. [6] Rule 16(4.1) of the Family Law Rules. [7] Rule 16(4.1) of the Family Law Rules. See also: Children’s Aid Society of Ottawa v. C.(S.), 2003 CarswellOnt 9373 (Ont S.C.), at paras. 13 to 15; and B.(F.) v. G.(S.), 2001 CarswellOnt 1413 (Ont. S.C.), at para. 14. [8] Rule 16(6.1) of the Family Law Rules. See: Children’s Aid Society of Ottawa v. C.B., 2010 ONSC 6800, 2010 CarswellOnt 9899 (Ont. S.C.), at para. 41. Note: These are the same powers granted to the court pursuant to rule 20 of the Rules of Civil Procedure. [9] Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, 2012 CarswellOnt 11407, at para. 5; and Children’s Aid Society of Metropolitan Toronto v. A.(M.), 2002 CarswellOnt 1923 (Ont. C.J.), at para. 5. [10] Rule 16(9) of the Family Law Rules. [11] Hryniak, at para. 27. [12] Hryniak, at para. 49. [13] Pursuant to rule 16(6.1) of the Family Law Rules. [14] Hryniak, at para. 66. [15] Children’s Aid Society of Ottawa v. C.(S.), 2003 CarswellOnt 9373 (Ont. S.C.), at para. 9. [16] B.(F.) v. G.(S.), 2001 CarswellOnt 1413 (Ont. S.C.), at para. 26; and Children’s Aid Society of Toronto v. K.(T.), [2000] O.J. No. 4736, 104 A.C.W.S. (3d) 333 (Ont. C.J.), at para. 13. [17] B.(F.) v. G.(S.), at para. 14; and Children’s Aid Society of Ottawa v. C.(S.), at para. 10. [18] Jewish Family & Child Services of Metropolitan Toronto v. A.(R.), 2001 CarswellOnt 73 (Ont. S.C.), at para. 20. Note: The reference in the passage to “Chapnik J.” is to the decision in Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.J.), [1996] O.J. No. 3018, 139 D.L.R. (4th) 534 (Ont. Gen. Div.); aff’d, , [1997] O.J. No. 3041, 149 D.L.R.(4th) 464 (Ont. C.A.). [19] I note that there is significant duplication between their affidavits. The evidence given by Ms. Thorn in her affidavit is repeated, albeit on a hearsay basis, in Ellicott Affidavit No. 2. [20] N.J-L. told the Society that she had consumed “three glasses of champagne” one evening during the ninth month of her pregnancy with her fourth child. See paragraph 42 above. N.J-L.’s ‘standard’ admission with respect to an amount of alcohol consumed appears to be “three glasses of champagne”. [21] See the Mother’s Affidavit, paragraph 28. [22] See Ellicott Affidavit No. 2, paragraph 79. [23] See the Mother’s Affidavit, paragraphs 35 and 37. [24] See Ellicott Affidavit No. 2, paragraph 80. [25] It appears the referral to the psychologist was through the Bethany Hope Centre. See Ellicot Affidavit No. 2, paragraph 90. [26] This referral was also through the Bethany Hope Centre. [27] See Aitken Affidavit at paragraph 6. [28] See Ellicot Affidavit No. 2, paragraph 108. [29] With respect to A.J.M.’s older brother, B.M. did not begin to participate in access visits until March 2014, despite being given the opportunity to do so following the birth of the child. In the five months thereafter B.M. was offered 23 visits and attended only 10 of them. [30] N.J-L.’s affidavit was sworn on May 4, 2016. This paragraph therefore suggests that the respondents separated as a couple sometime in February 2016. [31] With N.J-L.’s affidavit having been sworn on May 4, 2016, the reference to “next week” is to the week of May 9, 2016. [32] Children’s Aid Society of Ottawa v. C.(S.), at para. 29. [33] See footnote 9. [34] See section 58 of the CFSA. [35] See Children’s Aid Society of Ottawa v. S.K., 2015 ONSC 4623, 2015 CarswellOnt 20837, at para. 82; and Children’s Aid Society of Toronto v. H.(R.) (2000), 131 A.C.W.S. (3d) 455, 2000 Carswell Ont 6170 (Ont. C.J.), at para. 18. [36] C.(S.), at para. 22. [37] Children’s Aid Society of Ottawa v. S.K., 2015 ONSC 4623, 2015 CarswellOnt 20837. See also: Children’s Aid Society of Waterloo (Regional Municipality) v. S.(T.), at para 8; Children’s Aid Society of Toronto v. H.(R.) (2000), 131 A.C.W.S. (3d) 455, 2000 CarswellOnt 6170 (Ont. C.J.), at para. 15.