Court File and Parties

KINGSTON COURT FILE NO.: 228/16 DATE: 20170501

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant and B.M.E.J.L. and D.R., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Ms. Deborah H. Souder, for the Applicant Society Mr. Douglas R. Haunts, for Respondent B.M.E.J.L. Ms. Elizabeth T. French, for Respondent D.R.

HEARD: April 12, 2017

Endorsement

Nature of the Case/Positions

[1] This is the applicant Society’s motion for summary judgment on its amended protection application with respect to the female child A.N.L-R. who was just under one year (342 days) old at the time of the hearing. It is seeking Crown wardship without access pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”). The respondent father D.R. did not participate or file any materials. Without instructions, his counsel was excused from the hearing. The mother B.M.E.J.L. opposes the motion.

Law re Summary Judgment

[2] The following is a brief summary of the law on a motion for summary judgment as found in Rule 16 of the Family Court Rules, O. Reg. 114/99 (“Rules”) along with the steps set out in Hryniak v. Mauldin, 2014 SCC 7 at paragraphs 66 to 68.

(a) “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly” - Rule 16(6). There are two steps in this analysis.

(b) First, the judge should determine if there is a genuine issue requiring a trial considering only the evidence submitted by the parties (Hryniak at para. 66). The evidence requirements are set out in Rules 16(4), (4.1) and (5), and there are positive obligations on both the moving and responding party to set out specific facts supporting their positions.

(c) Second, if there appears to be a genuine issue requiring a trial following the above, the court should then determine whether there is genuine issue requiring a trial (Rule 16(6.1)) and if the need for a trial can be avoided (Hryniak para. 66) upon exercising the new fact-finding powers set out in Rules 16(6.1) and (6.2). These involve weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided they do not run contrary to the interests of justice. There will be no genuine issue requiring a trial if the summary judgment process allows the court to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (Hryniak paras. 49 and 67).

(d) If after the above analysis there is a genuine issue requiring a trial, the court still has discretionary powers to give directions, specify the issues, identify which facts are not in dispute, and to impose conditions (Rule 16(9)).

Factual Summary

[3] There is little disagreement on the background facts. The mother is 19 years old. She was a Crown Ward for most of her childhood. It appears that she left her foster home around the age of 16 and was engaging in risky behaviors such as multiple intimate relationships where domestic violence was present, drug experimentation, and multiple residence changes with various cohabitants. That continued up to and after she became an adult (age 18) in late 2015.

[4] The mother has a documented history of involvement with the police and the health care system, primarily related to her mental health. While there might be some slight disagreements on her illnesses, the mother herself confirms anxiety, depression and post-traumatic stress disorder. The symptoms associated with these are at times extreme. She was assessed by a clinical psychologist in the winter of 2015 when she was pregnant, and the report is dated early 2016. It confirms a psychological basis for the mother’s tendency towards poor and unstable relationships and her erratic and unpredictable moods. The mother came into care around the age of eight (the parties in argument suggested somewhat earlier), prior to which she suffered horrific neglect, sexual abuse, and exposure to domestic violence.

[5] At some point after leaving her foster home the mother began dating the father and moved in with him. It was another of her relationships that was unstable and marked by domestic violence. She became pregnant at age 17. After A.N.L-R. was born DNA testing was undertaken to confirm that D.R. was the father.

[6] Immediately prior to the birth the Society had the concerns touched on above about the mother’s mental health, drug use, unstable residence including being homeless, and relationships with domestic violence. Her own doctor voiced concerns about her lack of preparation, physically, emotionally and practically for the baby. He had concerns similar to the Society’s related to her multiple troubled relationships and her “very troubled emotional, psychological past with frequent outbursts, self harm attempts and multiple psychiatric admissions”. Following the birth the hospital staff also had concerns about the mother’s abilities to parent, noting her mood variations and instability, and difficulty handling her emotions. The child was apprehended while still in the hospital and placed in the same foster home that had raised the mother when she was in the Society’s care. She remains there to date.

[7] The Society brought its application for 6 months Society wardship, and within five days of the apprehension an interim order was made placing the child in the temporary care and custody of the Society with access to both parents in the Society’s discretion.

[8] The father as noted has not participated this motion, and while there are positive aspects to his access, his life appears to be unstable in that he is transient and struggles with substance abuse. Given that he is not opposing any aspect of this motion, the remaining facts focus more on the mother.

[9] The initial plan was that the mother would live with the child’s foster mother, who again had been her own foster mother, with whom she had a positive relationship. This was intended to give her an opportunity to provide full day care for the child and to learn parenting skills, with the hope that with success the child could eventually be placed in her custody.

[10] That arrangement lasted only two weeks. The mother did not engage and take on a parenting role and soon left the home. Arrangements were then made for weekly full-day access visits in the foster mother’s home, as well as access at the Society’s office, both with the same goal of assisting the mother to acquire parenting skills. The mother did not stay for the duration of the visits at the foster home, and asked for them to be shorter. They were eventually reduced to two hours a week at the mother’s request and then, after an incident of conflict with the foster mother, ended all together with continuing access only taking place supervised at the Society’s office or at a play group. Early on that access was with both parents together three times per week. When the parents asked for separate access they both had two visits per week. It was later changed to once per week for three hours for the mother, and later, around November of 2016, she asked that it be decreased even further to two hours a week which is the current schedule.

[11] There are positives in the mother’s visits, and in particular positive interaction and affection between her and the child. However, at times she gets frustrated, and there are many concerns relating to her ability to read the child’s cues, take directions, and focus on A.N.L-R. As such the visits remain supervised.

[12] The mother was connected to services, which will be touched on further below. With the Society seeing little progress and the access stalling at two hours once per week supervised, in September of 2016 the Society amended its application to seek Crown wardship. The father has not filed an Answer to the amended application.

Issues/Law

[13] It was difficult to discern from the mother’s submissions and her materials what she maintained were the issues for trial. However, for the Society to obtain the order it is seeking the court must find pursuant to section 57 of the Act that there is no genuine issue requiring a trial that: (1) the child is in need of protection; (2) intervention is necessary to protect the child in the future, and (3) the disposition of Crown wardship is in the child’s best interests. In assessing the latter the other available dispositions must be considered, and in that regard I note the following.

[14] In seeking a return of the child the mother fails to address in her Answer whether that would be with or without supervisory conditions (sections 59(1)1) and/or 57(9)). However, the court cannot order Crown wardship unless satisfied that less disruptive alternatives, such as a supervision order to the mother, would be inadequate to protect the child (s. 57(3)).

[15] Because the mother has raised the issue of community placements, I note per section 57(4) that the possibility of a supervision order to another person (section 57(1)1) is to be considered before making an order of Crown wardship.

[16] As for other possible dispositions, there is no request by either party for a period of Society wardship pursuant to section 57(1)2, even though that is still technically available pursuant to section 70(4).

[17] Lastly, in deciding which of the possible dispositions to order, the court is required to ask what efforts the Society made to assist the child before its intervention (s. 57(2)).

Is There a Genuine Issue Requiring a Trial that the Child is in Need of Protection?

[18] The Society is seeking protection findings pursuant to sections 37(2)(b)(i) and 37(2)(g). This was not identified by the mother as an issue requiring a trial. In Children’s Aid Society of Hamilton-Wentworth v. K.R., Justice Czutrin noted at para. 50:

I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date.

[19] Regarding the first ground, the mother clearly loves A.N.L-R. and there is no suggestion that she would inflict physical harm on the child. However, there is evidence that she failed to properly clean the baby during diaper changes and failed to support her head, and required direction from the care supervisor in both cases. There is also evidence that her mental illness could at times leave her functionally incapacitated. Both prior to and after the baby was born her living accommodations had deteriorated such that they were not suitable if a young child were in her care. The health professionals had grave concerns regarding the mother’s self-care and her stability, and her knowledge of what an infant needed in terms of care, well-being and supplies. While this is not the strongest of the two grounds, in my view there is no genuine issue requiring a trial that there is a risk that the child is likely to suffer physical harm resulting from the mother’s failure to adequately care for, supervise, or protect the child. This was particularly so around the time of apprehension when the mother did not have the physical and practical necessities to care for a child and was not focussed on providing care.

[20] Regarding the second ground, it is clearly documented that the mother has difficulty understanding and following the child’s cues. She has had long periods of residential instability. It is almost a certainty that the child would be exposed to the mother’s mental health difficulties, her inability to regulate her emotions, and to her conflictual approach to relationships. The child was already exposed to the mother yelling at the foster mother in a vehicle which precipitated the end of the regularly scheduled access visits in the foster home. The mother has been unable to avoid or extract herself in a timely way from intimate relationships where there is domestic violence, raising the strong risk of exposure to the child. There are examples of domestic violence prior to the apprehension, around the time of the apprehension, and continuously. The mother is currently pregnant, and indicates that there are two potential fathers. She admitted to recently slapping one across the face. The other potential father was expected to be a big part of her plan, however, he was charged with assaulting her in the weeks before this hearing. In my view there is no genuine issue requiring a trial that there is a risk that the child is likely to suffer emotional harm in the care of her mother.

Is There a Genuine Issue Requiring a Trial that Intervention Through a Court Order is Necessary to Protect the Child in the Future (Section 57(1))?

[21] While the protection finding could relate to circumstances predating the hearing, the judge must also be “satisfied that intervention through a court order is necessary to protect the child in the future”. This point is not usually argued, as parents often concede a return of the child subject to supervisory conditions. The mother’s position in that regard is not clear. However, one of her main arguments as seen below is that a trial is needed because it would give her time to address the protection concerns. This in effect concedes the need for a continuation of the interim order. Regardless, given my findings below related to the Society’s request for Crown wardship, I am satisfied that a court order is necessary to protect the child in the future.

Is There a Genuine Issue Requiring a Trial that Crown Wardship is in A.N.L-R.’s Best Interests?

[22] The circumstances the court is required to consider when making a determination in the child’s best interests are set out in s. 37(3). I have examined them and note those that I consider relevant.

Plans

[23] Not only does subsection 37(3)8 indicate that the court can consider the merits of the plans of each party, section 56 and subsection 53(1)(b) require it.

[24] The mother provided no discernable plan in her Answer. She referred to a Schedule in which she complains about the two weeks she was in the foster home with the child, and complains about the foster mother’s care of both the child and her when she was a child. The Answer further indicates that she has “referral letters on the way”, would like a psychiatric evaluation, and that she has been “taking living and working with children’s courses”. It needs to be noted that this was an updated Answer following a change of counsel. All it really indicates about plans was that as of the Fall 2016 she was about to move into a town house “with two responsible adults” to secure stable housing.

[25] Her actual plan is found in an affidavit filed two months later dated January 4, 2017. Despite being a Crown ward herself, she claims that her birth family is her support system. She provides no specific facts relating to them or statements from them. There is no evidence of any actual support being provided. No family member has put in a plan. She also referenced her boyfriend J.R. He subsequently became her fiancé, and was going to move in with her at the end of March 2017. As noted, the mother is pregnant and apparently due in July. J.R. is one of the two possible biological fathers, but the mother indicated that regardless he was going to be in the parenting role. She was insisting that he attend access visits with her. Her doctor had the impression that J.R. was a good influence and a stabilizing factor. The doctor provided a letter in support indicating that he felt that “with appropriate supports, [Ms. B.M.E.J.L.] and her partner will do well with this child” referring to J.R. and the unborn baby. As such J.R. was a big part of the mother’s plan, including financial support. However, as also touched on above, there was an incident of domestic violence between the mother and J.R. just before this hearing. He has been charged with domestic assault. While the mother in speaking to the workers suggested they may still be together, she admitted that he is not allowed to have contact with her at this time. She failed to address J.R.’s status or any changes to her plan in her subsequent affidavit.

[26] In her January affidavit the mother indicated that she needed time to get her new place child proofed. As of the end of March she still did not have her new apartment ready to care for a child. As noted another couple were about to move in with her. The female had previous dealings with the Society and it had no knowledge of the male.

[27] The mother’s plan refers to an “old group home staff” who she said was helping her with baby supplies and furniture for her new home. She indicated a number of things she would like to do if the child were returned to her, such as apply for subsidized day-care and sign the child up for a Mommy and Me swim or playgroup. She indicated that she would continue to go to school two days a week and continue to volunteer at “Theatre with a Meal” four days a week. There was no specific information on either of these, although the latter was identified as a non-profit organization and left the impression that it was a soup kitchen with entertainment. The mother’s participation was connected to her need to get a set number of volunteer hours in pursuit of her high-school diploma.

[28] The Society’s amended plan is for Crown wardship. Section 63.1 directs it to make all reasonable efforts to assist a child who is a Crown ward to develop an enduring relationship within a family, and this includes an adoption. The specific plan is to place the child for adoption not with the foster mother as the current caregiver but with the foster mother’s adult daughter. She has been living in the same home throughout and providing care for the child. The evidence indicates that the child is thriving in that home. Before the mother began making progress tied to her relationship with J.R., she indicated a number of times that she was supportive of that adoption plan. As the prospective adoptive parent is in a sense the mother’s foster-sister and there is an existing relationship, and all parties expected post-adoption contact or openness between the mother and child to occur if Crown wardship is ordered.

[29] In comparing the two, in my view it is obvious at this point that there are serious questions about whether the mother can carry out her plan. Independent of J.R. there is no evidence that her own mental health, relationships, and behavior will stabilize in a consistent and sustained fashion in short order. Her anxiety and the related concerns about her ability to follow-through with services raises questions about whether her educational and parenting goals are obtainable and, as will be noted below, she has had minimal engagement over the past year. Her ability to protect the child from her own unhealthy relationships is another major concern.

Needs, Care and Development

[30] I have considered the child’s level of development and his physical, mental and emotional needs, and the appropriate care or treatment to meet those needs (subsections 37(3)1 and 2).

[31] While A.N.L-R.’s development seems to be satisfactory, she is approaching one full year of age and is in need of permanence and stability. I note that while struggling with her own needs the mother has not been available to meet the child’s needs. Her access remains supervised, and at times it is a challenge for her. There is no evidence that would give a court confidence that she will be able to meet the child’s needs in the near future. Her supports seem to be only her service providers at this stage, and she is not diligent about sustained engagement. It is not clear whether J.R., who was going to be her main support, is still in the picture. I am concerned that when the optimal learning/parenting arrangement was put in place in the foster home the mother chose not to take it, but rather reduced her time with the child. Meeting a child’s needs is a full-time job and it was clear that the mother was not ready. With few sustained services since that time, there is little evidence to suggest that she has made herself ready in the past year.

Positive Relationships and Security

[32] I have considered the importance for the child’s development of a positive relationship with a “parent” (which does not include a foster parent) and a secure place as a member of a family (subsection 37(3)5).

[33] For the first aspect, all the evidence points to the child having a positive relationship with his mother. There is also a positive relationship with the father, but his ability to sustain it waned prior to the hearing. He only attended six of the 13 available access visits in 2017 up to the end of March.

[34] For the second aspect, the child has not been in a secure place as a member of the mother or father’s family. His stable placement was with the foster mother for his whole life. The mother has been a visiting parent for two hours per week in the months leading up to this hearing. While the mother clearly loves her child and wants her returned to her care, her mental health has led her to the poor decisions that put her into that periphery role.

Emotional Ties

[35] I have considered 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 (subsection 37(3)6). Other than the mother and the father themselves, and the foster mother and her daughter, there is no evidence of any other adults or children in the mother’s and father’s world who have a relationship with A.N.L-R.

[36] The mother being out of options appears to have reached out to her birth family who were unable to raise her in childhood. There is no evidence of any emotional ties between the mother and her family, let alone her family and the child, and still no evidence of support or of a plan.

Continuity of Care

[37] I have considered the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity (subsection 37(1)7).

[38] As noted at 11 months old the child has never been in the mother’s full-time care. The two weeks that the mother lived with the child in the foster parent’s home was a glorious opportunity lost; she chose not to step up to the plate and grow into the role of primary parent. The child has been in the care of the foster mother and her daughter her whole life, the latter of which will adopt her if a Crown wardship order is made. To disrupt that continuity the court would need to be confident that the mother was presenting a viable permanent, safe, and stable plan.

Services

[39] When deciding which of the possible dispositions to order, as noted the court is required to ask what efforts the Society or another agency or person has made to assist the child before intervention under Part III of the Act. While no services were provided to the child prior to intervention because she was apprehended at birth, services to the mother pre-apprehension and subsequent efforts to reunite the parent and child are always relevant and important considerations in a child protection hearing. I address that now as the mother has woven adequacy of services into one of her main best interest arguments below. Pursuant to s. 57(2) the assistance need not come only from the Society but includes other agencies and persons, and I would add that the mother, represented by counsel, has some obligation herself to seek out services that she feels are necessary.

[40] Prior to the apprehension the mother had lived in shelters, and when she had serious mental health episodes she refused to follow up with services. For example, after an overdose on prescription medication in 2014, she refused to follow up with the psychiatrist as an outpatient.

[41] As a young adult who was previously a Crown ward, the mother was assigned a Society worker through the voluntary Continued Care and Support of Youth program. This was to provide her with support, and continues until today. That included an element of financial support. However, the agency assisted her in obtaining a psychological report and qualifying for the Ontario Disability Support Program. Therefore as of September 2016 the mother is only receiving non-financial support services, although she is being helped with a Criminal Injuries Compensation Board claim. The mother has difficulty with simple tasks, for example assistance was given to help problem solve how to book an appointment to see a dentist. Over past two years this CCSY worker has spoken to her regarding accessing mental health supports in the community and the mother has been resistant to following through. She agreed to get help in March 2015, but it was short term as she moved from Kingston to Napanee.

[42] The mother had services from other agencies such as shelters. She agreed to move into a foster home provided by the Society from September 2014 until February 2015, but then refused to stay.

[43] After the mother became pregnant with A.N.L-R., roughly after the summer 2015, her family doctor referred her to Addictions and Mental Health Services (“AMHS”) to be assessed and to Public Health for a mental health screening.

[44] By early 2016, the Society had already also assigned a Family Services Worker prior to the child’s birth who met with mother to review her status. The worker confirmed she was seeing an obstetrician and her family doctor. The Public Health Nurse (“PHN”) tried to engage the mother with services.

[45] Upon the birth, the Social Worker at the hospital recommended to the mother that she follow up with AMHS for assessment by a crisis worker.

[46] In the Society’s original Plan of Care filed immediately following the birth, it said services that would be provided were mental health supports, individual counselling, relationship counselling, parenting, self-care, and household cleaning skills. It addressed these as follows.

[47] The Society worker met with the mother and confirmed that she was taking her anxiety medication and meeting with a worker from Streethealth who was in turn going to provide counselling services and work on healthy relationships, hygiene and home maintenance. That service provider indicated that while it would be beneficial that the mother attend AMHS, she was not yet ready. She booked appointments for her with Sexual Assault Centre Kingston (“SACK”) and Better Beginning for Kingston Children (“BBKC”) regarding parenting. Regarding the SACK, Dr. Philips also confirmed that the mother would benefit from trauma work but felt it would take several years to be successful.

[48] The services related to the parenting have already been alluded to. Along with the plan to learn parenting from the foster mother, the Society provided supervised access and group access with attempts at guiding the mother, and also assigned an Enhanced Support Services worker.

[49] The mother did not follow up with the appointments booked with her for SACK and BBKC, and her meetings with her Streethealth counsellor were inconsistent, dropping off early this year.

[50] Even though the mother suggests she now wants time to explore kin supports, the Society provided a Kin Finder who spoke with her family and to date there is still no indication of any plan.

[51] In the month preceding this hearing the mother indicated that she wanted to attend other programs relating to the child she is currently expecting. Information was provided by the Society as well as a referral to the PHN.

[52] Other than her family doctor, the mother has provided no information about the services she has been receiving. Despite having counsel, there is no evidence of her actively advocating for services, and no evidence of services requested and denied. In summary, there is no evidence to support her claim that the Society has not assisted her “in any way” or that she has been left without services or assistance and therefore “set up to fail”.

Risk of Harm and the Degree of Risk

[53] I have considered 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 (subsection 37(3)11). I have also considered the degree of risk that justified the finding that the child was in need of protection (subsection 37(3)12).

[54] The initial concerns regarding the mother’s drug use no longer appear to be a protection concern. However, there is no suggestion that the mother has addressed the issues relating to her mental health and her unhealthy relationships such that the child is no longer at risk. The very serious concerns from all service providers and the medical professionals at the time of the apprehension remain.

Delay

[55] I have considered the effects on the child of delay in the disposition of the case (subsection 37(3)10). This gets to the crux of the arguments made by the mother and her position on this motion. She asserted that a trial is necessary as it would give her more time and she made several arguments to why more time was needed.

[56] In her last affidavit the mother asserted that “a primary issue to be addressed at trial” is that she asked for a Family Court Clinic Assessment as to her parenting abilities in her Answer. However, since the 2006 amendments there is no need to wait for a trial or protection finding to make that request. The mother complains that “no order has been made … [for an assessment] to date”. However, she has had counsel throughout and almost a year to bring a motion. Notably, she did not cross-move for that relief on this summary judgment motion, and has yet to address the criteria for ordering an assessment (paragraph 2 of Regulation 25/07). It is hard to treat this as a serious argument.

[57] The mother has recently given to the Society a list of things she would like to discuss further, and that included “re-examine potential kin support.” As noted above there is no evidence of any support or plan from her family or community. Related to this the mother’s factum indicates that the issues for trial would be aspects of her plan such as access to family members, swimming lessons, and “to arrange regular visits with workers to discuss the goal of having [A.N.L-R.] return to her care and also a list of the things the Society would like her to do to prove she can care for the child …” These have already been discussed above. When counting the period she was receiving assistance while being pregnant with A.N.L-R., the mother has already had over a year to address her issues. I cannot see a need for a trial to discuss what needs to be done.

[58] In her last affidavit the mother has, for the first time, indirectly indicated that she feels bullied when a current worker asks her questions. There is no direct evidence to support a rational basis for this feeling. To the contrary, the only evidence indicates sincere efforts by the worker to assist her. The mother poses that the Society “will not let me request another worker”. Again, there is no evidence to support that statement, and no suggestion that a request was ever made notwithstanding that the mother has been represented by legal counsel throughout.

[59] As noted, strongly and centrally tied to her request for more time is the mother’s assertion that “the Society is setting me up to fail and has not assisted me in any way”. I have addressed services above, and find that this bald statement has no basis in the evidence.

[60] In my view all these requests and arguments are delaying tactics without substance, made in the face of a reality that as it now stands there is no genuine issue for trial. There is no realistic current plan for the return of the child. The mother’s only hope is that she can pull herself together and put a viable plan together at some point in the future.

[61] While there has to be an opportunity to rehabilitate a parent to resume care of a child, clearly waiting too long runs counter to the child’s need for a permanent and stable placement. The Act in section 70 allows for 12 months before making a decision on Crown wardship for a young child, with a possible extension of a further six months, but that does not mean that the court has to exhaust the full period: Children’s Aid Society of Ottawa v. C.(S.), 2003 ONSC 67754, 2003 CarswellOnt 9373 (S.C.J.). I adopt the following passage from Children’s Aid Society of Toronto v. R.H., 2000 ONCJ 3158 at para. 16:

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 chance 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. See Children's Aid Society of Kingston and Frontenac County v. J.G. and D.B. (1997), 1997 ONSC 17031, 73 A.C.W.S. (3d) 82, [1997] O.J. No. 3205, 1997 CarswellOnt 2830 (Ont. Fam. Ct.), per Justice Cheryl J. Robertson.

[62] Although a different case on its facts, using wording borrowed from the C.(S.) decision the mother here has squandered almost a full year of assistance by the authorities and service providers with no real concerted effort or plan to take over the primary care of the child.

[63] It has been noted that a child's need for permanency planning within a timeframe sensitive to that child's needs demands that legal processes not be used as a strategy to ‘buy’ a parent time to develop an ability to parent: Children’s Aid Society of Toronto v. R.H., 2000 ONCJ 3158, [2000] O.J. 5853 (O.C.J.). The mother must, at this hearing, present facts showing that there is a genuine issue for trial (Rule 16(4.1)). On a summary judgment motion in Children’s Aid Society of London and Middlesex v. L.A., 1999 ONSC 20470, [1999] O.J. No. 5839 (Ont. Gen. Div. – Family Court), the Court found no merit in the submission that the triable issue that required a full hearing was the mother’s possible reformation and her future ability to act as a parent. On the facts of this case I find these cases relevant and compelling.

[64] I have considered the most recent letter from the mother’s doctor and her letter to her workers of things that she would like to do and discuss. While they speak to the mother’s continued commitment and motivation, they fall short of being evidence that the situation for the mother and therefore the child will change in the following months. The genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child (per Children’s Aid Society of Hamilton v. H.(S.), [2005] O.J. No. 5114 (Ont. S.C.J.) at para. 22), or, in this case, more than a heartfelt expression of a parent’s desire to now after a year attempt to do what is necessary to resume care of the child.

Conclusion re Disposition

[65] Neither parent has or is close to having a viable plan. There are no kin plans. Disrupting the current stable placement in such circumstances would put the child’s safety into question and would be contrary to her best interests, protection, and well-being, and therefore contrary to the paramount purpose of the legislation (subsection 1(1)).

[66] As noted, the court cannot order Crown wardship unless satisfied that less disruptive alternatives, such as a supervision order to the mother, would be inadequate to protect the child (subsections 57(1)4, 57(3), and 53(1)(d)(ii)). I see no genuine issue here. Even while supported by services the mother has been unable to address the main protection issues regarding her unhealthy relationships and mental health that present clear risks. She still requires supervised access. I am not convinced that the court can craft conditions on the mother that will protect the child.

[67] The mother’s positive relationship with the child does not equate to a triable issue. Granting the mother more time to address her issues would not be in A.N.L-R.’s best interest for the reasons noted, and her current plan has no realistic chance of success. Her acquiring an ability to follow through is speculation and unconvincing. There has been no sustained progress on the core issues that bring her closer to where she could be a full-time parent. I find that there is no genuine issue requiring a trial that Crown wardship is in the child’s best interests, and so order.

Access

[68] Upon the child being made a Crown ward, the existing interim access order automatically terminates (subsection 59(2)). There is a statutory rebuttable presumption against the court making any further access order (subsection 59(2.1)). To rebut this presumption the onus rests on the mother to prove each of the following on a balance of probabilities: that the relationship between her and the child is meaningful to the child; that the relationship between her and the child is beneficial to the child; and that the ordered access will not impair the child’s future opportunities for adoption: Children’s Aid Society of the Niagara Region v. C.(J.), 2007 ON SCDC 8919 at para. 23. For the first two parts of the test found in subsection 59(2)(a), it is the relationship -- as distinct from the access itself -- that must be both meaningful and beneficial: T.L.K. v. Children’s Aid Society of Haldimand Norfolk, 2015 ONSC 5665. As observed in Children’s Aid Society of Toronto v. S.A. and O.E.A., 2013 ONCJ 737 at paragraphs 104 and 114, this is an extremely difficult and high onus. The presumptions have been accurately described as a “gateway” in the sense that only if rebutted can the analysis move on to the next step of considering whether access would be in the child’s best interests pursuant to subsection 58(1): see Children’s Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 at paragraph 30.

[69] Little attention was paid by the parties to this issue. The Society indicated that as the onus was on the mother and she did not provide evidence to rebut the presumptions, no order could be made. It added that there will be an ongoing relationship regardless given that the child’s prospective adoptive parent is committed to openness. Despite the positive obligation on the mother to set out specific facts showing that there is a genuine issue for trial on access, she simply indicated that she was asking that the motion be dismissed and that the issue would be addressed with proper evidence from her at trial. She reiterated that she wanted to proceed to trial for care and custody of the child.

[70] There is some evidence in the Society’s materials that the relationship with the mother, and for that matter the father, is meaningful to the child in that they have a positive relationship. However, I find that there is no genuine issue for trial that either parent can rebut all three presumptions against access. There is no evidence that the relationships are beneficial to the child in the sense of being significantly advantageous. Further, neither parent addressed the requirement that the access not impair the child’s future opportunities for adoption. In particular, there was no indication of what access, in terms of frequency, duration, and conditions, was being sought or how it would be managed; as noted it is currently supervised for both parents. Even more importantly, the parents failed to make a commitment not to disrupt the placement and failed to address whether or how they could support the adoption plan, an obvious concern related to the mother given her mental health issues.

Decision

[71] There is no genuine issue requiring a trial. I find that A.N.L-R. is a child in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(g). I am satisfied that intervention through a court order is necessary to protect the child in the future. She is hereby made a Crown ward. This is not an appropriate case for costs.

Mr. Justice Timothy Minnema

Released: May 1, 2017