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

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

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

CITATION: Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557

COURT FILE NO.: C-887/17

DATE: 2017-09-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicant

– and –

V.C.

Respondent Mother

Imran Kamal, for the Applicant

Alisa Williams, for the Respondent Mother

I.L.

Norman Williams and Ramon Petgrave, for the Respondent Father, I.L.

Respondent Father of I.B.L. and L.W.L.

R.S.M.

Respondent Father of A.G.A.M.

Self-Represented Respondent

Renee Roy, Office of the Children’s Lawyer

HEARD: September 6, 2017

Judgment

The honourable mr. justice a. pazaratz

1. There’s no such thing as being a good parent half the time. Parenting requires consistency. You can’t mathematically average the impact of alternating wonderful and terrible experiences on a young child. In child protection, it’s the “low’s” we have to worry about.

INTRODUCTION

2. On May 17, 2017 the Catholic Children’s Aid Society of Hamilton (“the Society”) commenced this summary judgment motion pursuant to Rule 16 of the Family Law Rules (”the Rules) in relation to three children:

a. A.G.A.M. born […], 2006 (she is now almost 11 years old).

b. I.B.L. born […], 2013 (she is now four years old).

c. L.W.L. born […], 2015 (he is now two years old).

3. The participants on this motion:

a. The Society is represented by Mr. Kamal.

b. V.C. is the mother of all three children. She resides in Hamilton. She is represented by Ms. Williams and filed an affidavit and cross-motion.

c. R.S.M. is the biological father of A.G.A.M.. He resides in Calgary, Alberta and represents himself. He had filed an Answer but did not file an affidavit on this motion. He participated in the hearing by teleconference. He and the Society agree on the appropriate disposition in relation to A.G.A.M..

d. I.L. is the biological father of I.B.L. and L.W.L.. He also resides in Hamilton. He is represented by Mr. Williams and Mr. Petgrave, and filed an affidavit.

e. The older two children are represented by Ms. Roy through the Office of the Children’s Lawyer (“the OCL”). On July 17, 2017 Justice Madsen made an order on consent that the children’s views and preferences could be set out in the OCL’s factum to be filed in relation to this motion. The OCL filed no affidavit materials.

FINDINGS

4. After the Society brought its motion, on July 17, 2017 the parties consented to the following findings in relation to all three children:

a. They are in need of protection pursuant to section 37(2)(l) of the Child & Family Services Act (“the Act”).

b. They are not Roman Catholic.

c. They do not have and are not eligible for native of Indian status.

SOCIETY’S REQUEST

5. The Society seeks the following final order in relation to A.G.A.M.:

a. She is to be placed in the custody of her father R.S.M. pursuant to section 57.1 of the Act.

b. Access between A.G.A.M. and V.C. and I.L. shall be at the discretion of R.S.M. and supervised in his discretion. The Society says the intention would be for such access to occur a minimum of once each year.

c. The Society shall be served with any Notice or Application to change the custody or access provisions of the resulting Order.

6. The Society seeks the following final order in relation to I.B.L. and L.W.L.:

a. Both children would be made Crown wards and placed in the care of the Society.

b. There would be no access.

OCL’S REQUEST

7. The OCL’s position in relation to the two older children A.G.A.M. and I.B.L.:

a. The OCL agrees summary judgment should be granted placing A.G.A.M. with her father R.S.M. in Calgary pursuant to a section 57.1 order.

b. The OCL agrees summary judgment should be granted making I.B.L. and L.W.L. Crown Wards.

c. However, the OCL does not agree that summary judgment should be granted in relation to parental access to any of the children, or sibling access.

d. Presuming that A.G.A.M. is placed with R.S.M. in Calgary, the OCL is content that access between A.G.A.M. and V.C. shall be in the discretion of R.S.M. and supervised in R.S.M.’s discretion. The OCL would like this to include as a minimum face-to-face contact four times per year. Telephone and Facetime contact is also proposed.

e. The OCL proposes similar contact between A.G.A.M. and I.L.. In the discretion of R.S.M. and supervised. But not necessarily including face-to-face time.

f. Presuming that I.B.L. and L.W.L. are made Crown wards, the OCL proposes that V.C. and I.L. have access to the two youngest children in the discretion of the Society and supervised in the discretion of the Society, perhaps monthly – or at least with some regularity.

g. The OCL strongly favours sibling access and does not agree that this issue should be determined by summary judgment.

h. The OCL wants more than the Society’s general statement that it would make its best efforts to encourage A.G.A.M. having face-to-face contact with her Ontario siblings at least once a year.

i. The OCL proposes that I.B.L. and L.W.L. should have generous contact with each other. (The OCL acknowledges that this will occur if the Society is able to implement its expectation that the two children would be placed in the same adoptive home).

j. The OCL proposes that A.G.A.M. should have face-to-face access to I.B.L. and L.W.L. at least four times per year, together with indirect contact.

k. The OCL proposes that the children be the “access holders” for the purpose of notice provisions under section 145.1.1 of the Act.

l. The OCL proposes that if the aforementioned access proposals are not implemented at this time, summary judgment should not be granted, and there should be a “mini-trial” on the issue of parental and sibling access.

V.C.’S REQUEST

8. In opposing the Society’s motion and bringing a cross motion, the mother requested the following:

a. She is putting forward a plan to parent all three children full-time, without either of the fathers. She says she and I.L. are no longer living together.

b. She opposes the Society’s request that A.G.A.M. be placed in R.S.M.’s custody pursuant to a s.57.1 order. She opposes the Society’s proposal regarding her access to A.G.A.M. if the oldest child is placed with R.S.M..

c. She opposes the Society’s request that I.B.L. and L.W.L. be made Crown wards. And if they are made Crown wards, she opposes the Society’s request that there be no access.

d. She says she wants a trial to determine what dispositions are in the best interest of each of the three children.

e. The mother’s ultimate objective is that all three children be returned to her care pursuant to a supervision order, with reasonable terms and conditions.

f. If an immediate return of the children is not possible, she seeks an extension of timelines under the Act, so that the children can remain in care under a temporary order, with her access being expanded.

I.L.’S REQUEST

9. I.L. set out his position in relation to all three children (including A.G.A.M. whom he described as his step-daughter):

a. He and V.C. are no longer living together or in a relationship with each other.

b. He is not proposing that any of the children be placed in his care.

c. He supports all three children being returned to the mother’s care pursuant to a supervision order, with I.L. having access.

d. In the alternative, if A.G.A.M. ends up in R.S.M.’s custody, I.L. still wants access for himself and V.C., including face-to-face contact in R.S.M.’s discretion, four times per year.

e. Also in the alternative, if I.B.L. and L.W.L. are made Crown wards, he wants continuing access to his biological children.

f. He asks that the Society’s summary judgment motion be dismissed. He wants a trial “to reveal the untruths and misrepresentations” in the Society’s materials.

CHRONOLOGY

10. The seven affidavits filed by Society employees set out the following chronology:

a. The Society has had continuous involvement with this family since approximately February 2014. The Society worked extensively with the family prior to commencing a Protection Application.

b. On June 9, 2016 the children were apprehended due to domestic violence between V.C. and I.L. and concerns about the father being left in a caregiver role. The parents had previously committed to a safety plan which required that I.L. would not be in the home. But the Society discovered the parents had secretly breached that safety plan.

c. On June 14, 2016 the Society commenced a Protection Application asking that the children be made Society Wards for a period of six months.

d. On June 14, 2016 Justice Mazza made a temporary without prejudice Order that the children be placed in the care of the Society.

e. I.B.L. and L.W.L. were immediately placed in a foster home together and have remained in the same foster home.

f. V.C. filed an Answer and Plan of Care dated September 13, 2016.

g. I.L. filed an Answer and Plan of Care dated September 20, 2016.

h. Initially, the Society was unaware of R.S.M.’s location and service on A.G.A.M.’s father was dispensed with. On March 22, 2017 the Society Family Finder located R.S.M. in Alberta and confirmed he was the biological father. He had not been aware that A.G.A.M. was in foster care and indicated that he wanted to care for her. At that point the Society amended its pleadings and started working with R.S.M..

i. On April 12, 2017 Justice Madsen granted an extension to R.S.M. to serve and file his Answer and Plan of Care by May 29, 2017. He filed his Answer and Plan of Care dated April 14, 2017.

j. On April 28, 2017 the Society commenced an Amended Application asking that A.G.A.M. be placed in the care of her father R.S.M., subject to terms of supervision for a period of six months, and that L.W.L. and I.B.L. be made Crown Wards without access.

k. On April 28, 2017, this Court made a temporary Order on consent of the OCL, R.S.M. and V.C., and not opposed by I.L.. A.G.A.M. was placed in the temporary care of her father R.S.M. in Calgary under Society supervision. Access between A.G.A.M. and V.C. and I.L. was to be at the discretion of the Society. Sibling access was also at the discretion of the Society. The children L.W.L. and I.B.L. remained in the care of the Society with access at the Society’s discretion.

11. The Society submits that in consenting to a protection finding under s.37(2)(l) of the Act, the parents have specifically acknowledged that they are “unable to care” for the children. It argues that based upon the extensive evidence before the Court on this motion, there is no possibility that either V.C. or I.L. will become able to care for any of the children, within a time frame consistent with the children’s needs and the legislative requirements.

12. I.L. acknowledges he is unable to care for any of the children.

13. But V.C. says she only consented to a protection finding – not a disposition. She insists that she is able to care for the children – or that in any event she soon will be.

14. I will briefly review the Society’s concerns.

AGGRESSION & VIOLENCE

15. The Society’s materials set out allegations of aggressive behaviour by I.L. (especially toward A.G.A.M.):

a. Although he was cautioned on several occasions about using physical force to discipline A.G.A.M., he continued to do so.

b. I.L. does not deny using physical discipline, but he says some of the allegations are exaggerated.

c. The Society says in the most recent incident A.G.A.M. was injured after I.L. threw her across the living room. I.L. disputes “throwing” the child. He says A.G.A.M. was accidently injured when she came running at him. He says he re-directed her, and she fell to the floor. He acknowledges she was injured.

d. I.L. denied ever intentionally hurting any of the children.

e. But he did not deny past anger issues or violent behavior.

16. V.C. says she and I.L. used to have many happy times together, between the incidents of conflict and violence.

a. She says she always objected when I.L. spanked the children.

b. She admits she didn’t keep I.L. away from the children pursuant to a safety plan she had agreed to with the Society. She admits this was poor judgment.

c. She acknowledges her children were taken away from her because she remained in an abusive relationship with I.L..

d. She says prior to the children being apprehended, she was torn between her loyalty to I.L. and her loyalty to her children.

e. She admits she was wrong to tolerate and excuse I.L.’s bad behaviour. She says “my eyes have been opened and I feel like a new person.”

17. The Society’s materials set out that I.L. was also extremely verbally abusive towards A.G.A.M. using obscene language and derogatory words when speaking to her.

a. In his brief affidavit I.L. does not deny this. He does not specifically deny or even comment on many of the Society’s allegations.

b. V.C. says she wasn’t aware of the extent of I.L.’s poor parenting skills. Now she’s aware.

18. The Society says there were times when I.L. did not give A.G.A.M. her meals on time as a form of punishment.

a. V.C. does not deny that this happened. In her affidavit she says I.L. “would often take everything from A.G.A.M. for long periods of time.” She appears not to have done anything about it.

b. But V.C. clarified that she has never denied food to her children as a form of punishment, and that she would not do so.

19. The Society’s materials also set out inappropriate discipline by V.C..

a. In her affidavit, V.C. admits to “lightly” slapping A.G.A.M. when she was screaming and running towards her swinging her arms.

b. She says she regrets doing so.

20. The Society’s materials set out serious concerns about the tumultuous and unstable relationship between V.C. and I.L., and the impact of all this upheaval on the children:

a. Historically, I.L. was charged and incarcerated as a result of domestic violence. I.L. was under the influence of alcohol when these incidents occurred. A.G.A.M. was present and witnessed these incidents.

b. There have been relatively recent reports of domestic violence between I.L. and V.C.. In November 2016, V.C. and I.L. reported that they were involved in a physical altercation where both were physically aggressive with one another and police attended the home, but no charges were laid. The parents separated but reconciled in January 2017.

c. In February 2017, V.C. reported another physical altercation where both were physically aggressive with each other. V.C. advised that I.L. punched her in the face, she punched him back and he pulled a knife on her. I.L. denied that this occurred. They separated for about a week. But V.C. then retracted her allegation, and the parents reconciled again.

d. In February 2017, a Society worker observed I.L. being verbally aggressive towards V.C. in public.

e. In March 2017, I.L. spoke about how he and V.C. were going through a rough patch and that he may need to present his own parenting plan. V.C. stated she wanted to find a shelter bed, but shortly thereafter she returned to live with I.L..

f. In April 2017, V.C. reported that I.L. threatened her by swinging a chair in her direction. He was charged with assault and uttering death threats against V.C.. But a week later she advised that she wanted to change her police statement and revoke their no contact order. Ultimately he pleaded guilty and was incarcerated until recently.

g. The Society is concerned that neither V.C. nor I.L. have demonstrated any insight into the impact on the children of exposure to this tumultuous on again/off again relationship.

INATTENTIVENESS

21. The Society’s materials set out concerns about V.C. and I.L.’s lack of supervision of the children.

a. I.B.L. was injured on two separate occasions.

b. The first time she fell off a chair and injured her mouth. She was taken to the hospital by V.C..

c. In the most recent incident I.B.L. fell down 15 stairs while I.L. was in the bathroom. (I.L. admits the incident but denies it was 15 stairs.) Again the child had to be taken to the hospital to treat her injuries.

d. Ontario Early Years Centre staff have reported that during access I.L. will leave the children in their care while he goes out to smoke.

MENTAL HEALTH

22. The Society’s materials set out serious concerns about I.L.’s struggles with mental health issues:

a. He has reported that he hears voices telling him to harm himself and others.

b. He has also reported that he has had periods where he is “ranting and raving” about things that did not happen. He does not remember these periods of “ranting and raving”, but was told they occurred by neighbours.

c. He has stated that he has seen people and things that are not there. For example, he has reported that he struggles to sleep because a child is outside his window and tells him to come outside.

d. I.L. has reported that he has engaged in self-harm by cutting his wrist after throwing A.G.A.M. across the living room. He subsequently spent five days at the Barrett Centre after which he disclosed that he may have Asperger's, Schizophrenia and paranoia.

23. More recently, at the end of April 2017, I.L. acknowledged that he attempted suicide by hanging himself in the bathroom after becoming physically aggressive towards V.C.. She saved his life by cutting him down.

a. When interviewed by a Society worker on May 11, 2017 at the Hamilton Detention Centre, I.L. advised that he did not remember the events that led him to be incarcerated. All he remembered was that V.C. had cut him down from hanging himself and that he was mad about that.

b. I.L. stated that according to a report he and V.C. were arguing. It escalated to the point where he stood up and grabbed a chair, swinging it above his head as if to hit V.C.. He said according to the report, V.C. locked herself in a bedroom, and he then grabbed a skipping rope and went upstairs to hang himself. The report said after V.C. heard noise upstairs, she went up and cut him down.

c. I.L. advised the Society worker he didn’t remember any of the hanging incident, and there had been previous occasions when he had acted aggressively but later did not remember what he had done.

d. While I.L. admitted the suicide attempt, he placed a lot of blame on V.C., describing her as manipulative and unsupportive. He said she would provoke him with hurtful comments such as questioning his masculinity. He said she knew this would trigger him and lead to arguments in which his behaviour would escalate. He said they would also blame each other for the events leading to the children coming into care.

24. I.L. advised the Society that he struggles with having some traumatic flashbacks from physical abuse that he experienced in his childhood.

a. He has not received any treatment to address the aforementioned issues.

b. I.L. is currently on Cymbalta 60 mg to manage his anxiety and mood.

c. He has taken some parenting courses and says he’s willing to take any programs recommended by the Society.

d. He feels he now has things under control.

25. The Society’s materials also set out serious concerns about the mother’s mental health:

a. V.C. has reported that she is struggling with her mental health.

b. In November 2016, I.L. reported that V.C. had attempted to kill herself by taking cocaine and sleeping pills together. He reported that V.C. was running down James Street North in Hamilton with one shoe on and fighting off police and paramedics before she was hospitalized. V.C. says she has no memory of being on James Street fighting anyone. She acknowledges that she was hospitalized due to a nervous breakdown. Her recollection is that she was taken to hospital from her home due to depression and anxiety.

c. I.L. reported that V.C. was also hospitalized in January 2017.

d. The maternal grandparents have also reported that they believed that V.C. struggles with her mental health.

e. V.C. has also recently reported that her anxiety and depression have worsened. For example, on February 17, 2017, V.C. left a two hour access visit after forty five minutes. She explained that she had a panic attack.

f. In March 2015, V.C. acknowledged that she was hearing voices and that she completed an intake at the Cleghorn Clinic early intervention for psychosis program.

g. On April 11, 2017, V.C. stated that she had been hospitalized on the weekend of April 8, 2017 for attempted suicide and the Society subsequently telephoned the Crisis Outreach and Support Team. She admitted one suicide attempt but denied a second.

h. Family Doctor DiValentino who the parents regularly see has reported to the Society Worker that both I.L. and V.C. should not be in a parenting role and has expressed concerns regarding the parents’ mental health and their capacity to consistently parent.

i. On May 11, 2017, V.C. left a message and stated that she wanted to revoke all medical consents that she had provided to the Society. The mother says eventually she changed her position and reinstated the consents.

j. The mother says she has recently been diagnosed with bipolar disorder, post-traumatic stress disorder, depression and anxiety.

26. In her affidavit V.C. admits she has “made many mistakes” over the past year, and allowed her mental health struggles to overwhelm her.

a. A recurring theme in the mother’s affidavit is “remorse”. She acknowledges all the mistakes she has made, and how her children have been adversely affected.

b. She says she had been struggling with anxiety and depression for years without mentioning it to anyone.

c. She says she despises herself for the emotional harm she has caused to her children.

d. However, apart from her general statements that she now has insight into her problems, the mother has not provided any clear evidence of any significant or enduring stabilization of her mental health.

SUBSTANCE ABUSE

27. The Society’s materials set out serious concerns about substance abuse by I.L.:

a. V.C. has reported that I.L. abuses methamphetamine and has begun to use alcohol again.

b. She has reported that he has attended an access visit with the children under the influence of a substance.

c. While the children were in I.L.’s care, he was cautioned on numerous occasions about using marijuana while in a caregiving role, but he continued to do so. Society worker Lisa Persad attended a routine home visit where he was found smoking marijuana while caring for the three children. V.C. was at work at the time.

d. I.L. has also reportedly attended a Men’s Anti-Violence counselling appointment under the influence of marijuana.

e. I.L. has acknowledged that he has used methamphetamine and that he has engaged in excessive alcohol use.

f. There are also concerns about I.L.'s inability to use his medication as directed by his doctor. He is currently using Percocet to manage his pain, however, I.L. reported that he abused this medication in the past. He is now required to obtain a single dose of Percocet from his doctor on a daily basis.

g. I.L. has signed a consent form for a referral to be made in relation to dealing with substance abuse.

h. I.L. disputes having a drug problem currently. He says he is prepared to complete urine screens every four to six weeks.

28. In her materials V.C. stated she “frowned upon” I.L.’s use of marijuana.

29. The Society’s materials also set out serious concerns about substance abuse by the mother:

a. I.L. has reported that V.C. has used cocaine and sleeping pills. The mother says he made false allegations about her after she refused to allow him to live in her home.

b. But V.C. admits she used inappropriate substances because her “mental health was becoming overwhelming.”

c. The Society submits V.C. keeps minimizing her drug problem. In her affidavit she stated she hadn’t used drugs since “early 2017”. But in March 2017 she acknowledged using cocaine and methamphetamines a few times. And in July 2017, V.C. acknowledged that she had recently slipped and used methamphetamine.

d. The Society had requested drug testing of the mother on numerous occasions, but V.C. has not participated in the requested testing.

e. The Society has recommended that V.C. engage with Alcohol Drugs and Gambling Services. V.C. has only recently signed a consent form for a referral to be made.

f. The mother submits she has recently started to receive counselling for substance abuse.

SERVICES/COUNSELLING

30. The Society’s materials set out concerns about the parents’ lack of ability or commitment to follow through with professional assistance which they desperately need:

a. I.L. has stated that neither he nor V.C. have made progress on their Plan of Care.

b. V.C. has only recently self-reported that she has attended Violence Against Women counselling.

c. V.C. has reported that she is looking for a counsellor and has only recently connected with the Cleghorn Clinic.

d. I.L. has not consistently attended his Men’s Anti-Violence counselling. He has failed to follow through with other recommendations.

e. I.L. admits he hasn’t made as much progress as V.C.. He doesn’t think he’s ready to care for the children. But he thinks V.C. is ready.

31. The Society notes that while the children were apprehended from the mother in June 2016, V.C. waited one full year until June 2017 to get any sort of professional help. She did virtually nothing for one full year, and then started counselling only after the Society’s summary judgment motion was served.

a. In her affidavit, the mother blames the Society for her lack of progress. She says they should have told her sooner what they expected her to do.

b. However, I note that the Society’s Plan of Care dated July 7, 2016 very clearly set out detailed expectations of the parents. Specific service providers and programs were named and recommended.

c. I agree with the Society that from the very outset, the mother knew exactly what was expected of her in terms of counselling and rehabilitation.

d. I also agree with the Society that her recent efforts amount to “too little, too late.”

POST-APPREHENSION ACCESS

32. The Society’s materials set out significant concerns about access by V.C. and I.L. since the date of apprehension:

a. The parents have had poor attendance. V.C. and I.L. attended approximately 55 out of 110 total visits.

b. Visits were missed for a number of reasons. Sometimes the parents would cancel. Sometimes they would confirm they were coming, and then simply fail to attend without explanation. Sometimes visits were suspended by the Society as a result of the inconsistent pattern of access.

c. For example, at the beginning of September 2016, V.C. and I.L. had access to I.B.L. and L.W.L. on Tuesday, Wednesday and Thursday from 9:30 a.m. until 12:00 p.m. and access to A.G.A.M. on Monday from 3:30 p.m. until 4:30 p.m. and Tuesday from 4:30 p.m. until 6:30 p.m. But V.C. often did not attend access visits with A.G.A.M. citing her work schedule – even though the access schedule for A.G.A.M. was created with the mother’s input.

d. V.C. also inconsistently attended access with L.W.L. and I.B.L.. Eventually access was reduced by the Society because of the many missed visits, and repeated failures to give notice if the parents weren’t going to be attending.

e. The Society attempted to address inconsistent access by requiring the parents to call ahead to confirm if they were coming. But sometimes the parents would call to confirm, and then simply fail to attend without explanation.

f. V.C. and I.L. were provided the opportunity for a minimally supervised community access visit at the Kiwanis children’s centre. But they missed five consecutive appointments and were discharged from the program.

g. Even after the Society attempted to secure a commitment that the parents would attend access, they were still inconsistent. As a result their access was suspended in January 2017. They were requested to attend three consecutive meetings with a Society Worker to have their access reinstated. But they were inconsistent with respect to those meetings. As a result it took nine scheduled meetings before their access was re-instated.

h. The most recent access regime provides that V.C. and I.L. see I.B.L. and L.W.L. once a week for two hours. V.C. had access to A.G.A.M. once a week for one hour until she went to live with R.S.M. in Calgary in June 2017. Since this access plan has been re-instated I.L. has consistently attended his access visits. V.C. missed one week of access without notice. She missed a visit the day before the Society filed its most recent affidavit in July 2017.

33. V.C. acknowledges that she has missed many visits, and that the children have been negatively affected.

a. She says at times she missed visits because she had work commitments.

b. At times she missed visits because she was feeling unwell either physically or mentally.

c. She did not differentiate which visits were missed for what reasons.

d. She provided no elaboration as to any steps she took to address any of the factors which caused her to miss visits.

e. She said if she wasn’t able to attend for visits, she encouraged I.L. to attend. She acknowledged that he also missed many visits.

34. The Society acknowledges that generally when V.C. and I.L. attended for access, the visits were enjoyable for the children. But the Society’s materials set out that the parents’ lack of commitment to regular access has been a serious problem which has caused significant emotional upset and disruption for the children.

a. The children were repeatedly inconvenienced and frustrated by being brought to the Society office for scheduled visits, only to end up waiting for parents who never showed up.

b. For example, on January 6, 2017, I.B.L. spoke with Society worker Jodi Klynstra about her going to a restaurant on the previous day. Then, unsoliciated, I.B.L. told Klynstra that “I no visit with mom. She gone. I go down in car. No mom. Then I come back. I sad. Dad gone too. Mom and dad gone and I sad.”

c. The foster mother reported to Klynstra that I.B.L. would attend the Society for access visits, but that the parents would often not show up and I.B.L. would have to return to the foster home, disappointed.

d. On February 3, 2017, at a foster home visit, I.B.L. again mentioned to Ms. Klynstra that “Mom all gone and I sad.” The visits were still sporadic at that point.

e. A.G.A.M. has reported that she is upset with V.C. and I.L. for not following the Society’s recommendations and not attending access visits. She had told her Children’s Service worker, Leianne Cockerill, that she is not ready to live with her parents.

35. The Society notes that apart from the inconsistent attendance issue, sometimes issues arose during visits.

a. There were concerns regarding I.L. engaging A.G.A.M. in adult conversations.

b. A.G.A.M. also reported that during a visit the mother had yelled and slammed doors.

36. I agree with the Society that throughout these proceedings, there has never been a period of stability or consistency with respect to access by V.C. and I.L..

a. When the parents showed up, visits were enjoyable.

b. But when -- on an equal number of occasions -- the parents didn’t show up, the children were negatively impacted.

c. Even V.C. and I.L. acknowledge that the children experienced significant emotional upset as a result of all the missed visits.

MOTHER’S HOUSING

37. In her materials the mother submits one of the main reasons she’s not able to have her children return to her immediately is that she hasn’t been able to obtain subsidized housing.

a. She criticizes the Society for failing to provide a letter of support to assist her in obtaining housing. She mentioned this several times in her affidavit.

b. In his affidavit, I.L. repeated the mother’s request that the Society provide her with a letter for housing.

c. The mother’s cross-motion dated July 21, 2017 includes a request that the Society be required to “provide a letter of support in order for the mother to obtain housing.”

d. However, during reply submissions Society counsel correctly noted that the Society has already provided the mother with a letter of support in relation to public housing. That letter was included in the Society materials and was dated July 12, 2017 – prior to the mother’s cross-motion requesting such a letter.

e. In any event, the Society has made it clear that the mother’s lack of housing is not a protection concern and is not part of the basis for the Society’s requests. Society counsel characterized the “housing letter” issue as a red herring.

38. I agree with the Society:

a. The mother’s emphasis on blaming the Society for not helping her get housing raises questions about her candor and insight.

b. In reality, the Society has already helped her. And housing was never a primary or determinative issue

V.C.’S AFFIDAVIT

39. V.C.’s affidavit sworn July 10, 2017 includes the following additional statements:

a. She is able to provide permanency for all of her children, despite the fact that she is currently in a women’s shelter.

b. She is on Ontario Works and applying for ODSP, as a result of her mental health problems and for a knee condition.

c. She has an excellent relationship with all three children.

d. She says as their mother she can provide the children with everything they need. She quit her job to be able to care for the children.

e. If the children are made Crown Wards, at the very least she wants ongoing access.

f. She wants A.G.A.M., (the oldest child), returned to her after she spends six months living with her father R.S.M. in Calgary.

g. She says currently R.S.M. doesn’t allow her very much telephone access.

h. She says she has cooperated with the Society and will continue to do so.

i. She regrets all of her actions and the emotional harm she caused her children.

j. She wants to ensure that sibling access continues.

40. I agree with the Society’s characterization of the mother’s evidence on this summary judgment motion:

a. Her affidavit sets out a number of blanket denials, but with little elaboration.

b. She focuses narrowly on small discrepancies and relatively minor factual disputes. But she does not really address the totality of the evidence, or the Society’s overall themes and concerns.

c. And in a number of instances her sworn evidence is easily shown to be factually incorrect. For example, she disputes having signed certain consents for the Society to receive information, but the Society materials confirm she signed.

d. Most notable is her criticism that the Society didn’t tell her what they wanted her to do, even though it is clear they were telling her all along.

I.L.’S AFFIDAVIT

41. I.L.’s affidavit of July 10, 2017 was relatively brief and included some additional denials, clarifications and general statements:

a. He denies having substance abuse issues “as they are in remission”. He will attend for urine screens.

b. He uses marijuana for pain control as a result of being hit by a truck, but he denies using methamphetamine or other drugs.

c. He is more than capable of meeting the basic needs of his children.

d. He attended an eight week “Parenting with Love” program and is willing to participate in any programs suggested by the Society.

e. He admits the mother has made more progress than he has. He feels she has made sufficient progress that she should be given more time, so that the children can be reintegrated to her care.

f. If L.W.L. and I.B.L. are made Crown wards, he would still like to have access.

THE CHILDREN

42. Society counsel Mr. Kamal noted that by all accounts A.G.A.M., I.B.L. and L.W.L. are “great kids”.

43. In relation to A.G.A.M. the Society says:

a. R.S.M. resides in Calgary, Alberta with his common law partner of four years. He has two other children in his care. He has had no child welfare involvement.

b. R.S.M. has been consistent and persistent in presenting a plan to care for A.G.A.M. since he was made aware of the Society’s involvement.

c. Similarly, ever since she learned her father was presenting a plan for her, A.G.A.M. has been adamant that she wishes to reside with R.S.M. in Alberta.

d. Prior to A.G.A.M. being placed with R.S.M., the father had telephone and overnight visits and the access went well. R.S.M. has consistently been child-focussed.

e. A.G.A.M. has been living with R.S.M. in Calgary since the order of this court on April 28, 2017. She appears to be happy and well taken care of. She wishes to remain in R.S.M.’s care.

f. R.S.M. has been cooperative in working with the Hamilton Society and Calgary Region Child and Family Services, and he is prepared to continue to cooperate in the future.

g. Record checks, including child welfare checks and criminal record declarations, have not yielded any concerns regarding R.S.M..

h. It is the Society’s position that any child should not be in foster care if there is a viable parent or family member able to care for them. R.S.M. offers a viable plan for A.G.A.M., so the Society submits that A.G.A.M. should be placed in R.S.M.’s care.

i. It says permanency for A.G.A.M. is best achieved through a custody Order pursuant to section 57.1 of the Act.

44. In relation to I.B.L. and L.W.L. the Society says:

a. The younger two children were developmentally behind upon coming into the care of the Society.

b. I.B.L. has begun to catch up and meet developmental milestones.

c. L.W.L. has made slow gains and remains developmentally delayed.

d. The Society completed a referral to the Ron Joyce Centre.

e. At this time, I.B.L. and L.W.L. are doing well in their foster placement. Although L.W.L. is showing some developmental delays in speech and language, he continues to make some gains in his overall development.

f. L.W.L. and I.B.L. are happy and social children who love to interact with others.

SUMMARY JUDGMENT FRAMEWORK

45. Rule 16 allows a party to bring a motion for summary judgment without a trial — on all or part of a claim — after the Respondent has served an Answer or after the time for serving an Answer has expired.

46. Rule 16(2) specifically allows for summary judgment in child protection proceedings. The onus is on the Society to show there is no genuine issue requiring a trial. The rule does not preclude such a motion in cases in which the Society requests Crown Wardship.

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

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

49. A party answering a motion for summary judgment must put their "best foot forward" in responding to the case for the moving party. When presented with a prima facie case for summary judgment, the onus shifts to the responding party to provide evidence of "specific facts showing that there is a genuine issue for trial". Mere allegations or blanket denials contained in self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial are insufficient to defeat a claim for summary judgment. CAS of Toronto v. T. (K.), 2000 20578 (OCJ); CAS of Haldimand & Norfolk v. V. (S.), 2015 ONCJ 147 (OCJ); Children & Family Services for York Region v. J.V. and N.B., 2017 ONSC 4770 (SCJ).

50. I am satisfied that the Society materials set out a prima facie case in relation to all relief sought.

51. In the absence of a specific enumeration of supportive facts he intends to rely on, I.L.’s request for a trial so that he can “reveal the untruths and misrepresentations” in the Society’s materials amounts to little more than a blanket denial. That’s not enough to resist a summary judgment motion. CAS of Hamilton v. A.M. and T.L., 2012 ONSC 6828 (SCJ).

52. Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule is mandatory. If the court concludes that there is no genuine issue requiring a trial, the court shall make a final order accordingly. CAS of Toronto v. R. (T.), 2017 ONCJ 252 (OCJ); Kawartha-Haliburton CAS v. A.K., 2016 ONSC 586 (Divisional Ct).

53. Rule 16(8) states that if the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. This provision is also mandatory.

54. On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue requiring a trial. The court must consider the reasonableness of any potential plans, particularly in the context of statutory time frames. CCAS of Hamilton v. T.B., 2013 ONSC 6300 (SCJ).

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

56. The court must proceed cautiously on a motion for summary judgment and ensure absolute fairness to the parties – particularly since the stakes are so high in child protection proceedings. CAS of Toronto v. M. (P.), 2002 53206 (ON CJ), [2002] O.J. No. 2321 (OCJ); CAS of Toronto v. L.S., 2017 ONCJ 506 (OCJ). But summary judgment is not limited to or granted only in the clearest of cases. CAS of Peel v. P. (I.), 2016 ONCJ 318 (OCJ).

57. Considerations of due process, statutory requirements and the best interests, protection and well-being of the children will ultimately determine the appropriateness of summary judgment. CAS of Waterloo v. S. (T.,) 1999 14252 (ON CJ), [1999] O.J. No. 5561 (OCJ).

58. While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the necessary evidence is available, the best interests of children and their particular needs should be addressed in a timely way. CAS of Waterloo v. S. (R.), 2000 22902 (ON CJ), [2000] O.J. No. 4880 (OCJ).

59. A summary judgment motion is a tool that can contain and control a child's drift in litigation. A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. CAS of Toronto v. H. (R.), 2000 3158 (ON CJ), [2000] O.J. No. 5853 (OCJ); CAS of Ottawa v. I.C., A.D., and A.T., 2016 ONSC 4792 (SCJ).

60. Delay in the litigation process in child protection matters must be measured from the child's perspective. The court must consider the impact of delay on the best interests of the child. CAS of Toronto v. T. (L.), 2016 ONCA 146 (OCJ); CAS of Ottawa v. F. (L.), 2016 ONSC 4044 (Divisional Ct).

61. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that the child faces some better prospect than what existed at the time of the Society's removal of the child from the parent, and that the parent has developed some new ability as a parent. CAS of London & Middlesex v. A. (L.), 1999 20470 (Ont. Gen. Div.); CAS of Toronto v. H. (R.), (supra).

62. It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of parents are secondary to the best interests of the children. Worthington v. Worthington, 2000 22469 (SCJ).

63. In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether - in that evidence - there are specific facts to support a triable issue in any of the determinations required to be made by the court. CAS of Waterloo v. S. (R.), (supra); CCAS of Hamilton v. T.B., (supra).

64. The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial.

65. In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on — and evaluate — the sufficiency of the evidence as disclosed by the affidavits. CAS of Toronto v. H. (C.), 2004 ONCJ 224 (OCJ); CAS of Hamilton v. R. (C.), 2006 7934 (SCJ); Kawartha-Haliburton CAS v. A.K., (supra).

66. The test on a motion for summary judgment is whether there is a need for a trial to establish the material facts that are necessary to the determination of the application. CAS of Waterloo v C.A.D. & T.S., 2011 ONCA 684 (Ont C.A.). Not every disputed fact or question of credibility gives rise to a genuine issue requiring a trial. The fact must be material. CAS of Toronto v. S.A. and O.E.A., 2013 ONCJ 367 (OCJ).

67. The court can consider hearsay evidence if it meets the criteria of necessity and reliability. CAS of Hamilton v. N. (M.), 2007 13503 (ON SC), [2007] CarswellOnt 2453 (SCJ). But the rule in relation to hearsay on summary judgment motions is stricter than Rule 14(19) applying to motions generally. Under Rule 16(5) if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and how much weight to give it. Jewish Family & Child Service v. K. (S.), 2015 ONCJ 246 (OCJ).

68. In light of the serious consequence of a child protection proceeding, the court must be cautious not to rely on flawed evidence. There is no justification for a lower standard of admissibility for evidence on a summary judgment motion. Generally the evidence on a summary judgment motion should be of the same level and quality to meet the same standards as at a trial. CAS of Toronto v. W. (C.J.), 2017 ONCJ 212 (OCJ).

69. In determining if there is a genuine issue requiring a trial, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. CAS of Dufferin (County) v. R. (J.), 2002 45514 (ON CJ), [2002] O.J. No. 4319 (OCJ); CAS of Toronto v. W. (C.J.), (supra).

70. As part of the summary judgment analysis, the court must consider the strict guidelines governing the child protection procedure under the Act and also the best interest of the child. In determining whether a genuine issue exists requiring a trial, the court must give paramount consideration to the best interest test which would include, among other factors, as certain a future as possible. CAS of Algoma v. L.P. [2002], OJ No. 2895 (SCJ); Children and Family Services for York Region v. J.V. and N.B., (supra).

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

16(6.1) Powers

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

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

16(6.2) Oral Evidence (Mini-Trial)

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

72. In Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) the Supreme Court of Canada clarified the court's expanded summary judgment powers:

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

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

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

74. The expanded powers are not to be employed by the judge hearing the summary judgment motion unless he or she determines, on the evidence before the court, that there is a genuine issue requiring a trial. Hryniak (supra); CAS of Toronto v. S. (L.), 2015 ONCJ 527 (OCJ).

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

76. The Supreme Court in Hryniak endorsed that if a summary judgment motion is dismissed then the motion judge should, if possible, be seized as the trial judge. This permits the judge to use the insight gained from hearing the summary judgment motion to craft a trial procedure that will resolve the dispute in a way that is sensitive to the complexity and importance of the issue.

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

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

b. Saving expense and time;

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

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

78. The principles in Hryniak have been applied to summary judgment motions in many child protection cases since the amendments to Rule 16 came into effect. CAS of Toronto v. L.S., (supra).

79. The court must also consider the strict timelines that govern child protection proceedings, and section 1(1) which sets out that the paramount purpose the Act is to promote the best interests, protection and well-being of children. M. (C.) v. CAS of Waterloo, 2015 ONCA 612 (Ont CA); CAS of Ottawa v. B.H., 2017 ONSC 4799 (Divisional Ct).

80. Summary judgment rules should be interpreted broadly, to allow proportionate and fair access to affordable, timely and just resolutions. Undue process and protracted trials with unnecessary expense and delay can prevent a fair and just resolution of matters. Summary judgment allows individuals – and perhaps most importantly children -- to move on with their lives.

Hryniak v. Mauldin (supra); CCAS of Hamilton v. B.L.S., G.K.J., G.J. & S.D [2014] O.J. No. 4422 (SCJ).

DISPOSITION FRAMEWORK

81. There are two stages to a protection application.

a. The court must first determine whether a child is in need of protection pursuant to s. 37(2) of the Act.

b. If the protection finding has been established, the court must then determine the appropriate disposition order under s. 57.

82. As stated, there has already been a finding that A.G.A.M., I.B.L. and L.W.L. are in need of protection pursuant to section 37(2)(l) of the Act.

83. The court must now evaluate whether there is a continued need for state intervention to protect the children and consider what disposition would be in their best interests. In balancing the best interests of the children with the need to prevent indeterminate state intervention, the best interests of the children must always prevail. The examination must have a child-centred approach and cannot solely focus on the parent's parenting ability. CAS of Toronto v. R. (T.), (supra).

84. As an overview, in CAS of Toronto v. T.L.,2010 ONSC 1376 (SCJ) Justice Perkins set out the statutory pathway to be followed on a disposition hearing (not involving a native child or a potential custody order) as follows:

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

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

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

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

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

90. With all three children having been found to be in need of protection, s. 57 of the Act sets out the following disposition options.

91. Order Where Child in Need of Protection

57(1) Order where child in need of protection Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

1. Supervision order

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

2. Society wardship

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

3. Crown wardship

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

4. Consecutive orders of society wardship and supervision

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

86. The Society’s request that custody of A.G.A.M. be granted to R.S.M. is pursuant to s.57.1 of the Act which states:

57.1 Custody Order

57.1(1) Custody order Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

57.1(2) Deemed to be order under Children's Law Reform Act An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

87. In determining the appropriate disposition, the court must decide what is in the best interests of the children. In making this determination, the court is guided by the criteria set out in subsection 37(3) of the Act:

37(3) Best interests of child Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

14. The wide focus of the best interests test encompasses an examination of the entirety of the situation and includes concerns arising from emotional harm, psychological bonding, and the child's needs and desires (to the extent that the latter can be ascertained, and subject to appropriate weight). CCAS of Toronto v. C.M., 1994 83 (SCC), [1994] 2 S.C.R. 165 (S.C.C.); Children and Family Services for York Region v. J.V. and N.B., (supra).

15. Subsection 57(2) of the Act requires the court to inquire as to what efforts the society or another agency or person has made to assist the children before intervention. I am satisfied that with respect to each of the parents and each of the children, the Society has made reasonable, timely, ongoing and diligent efforts to assist this family. I specifically reject V.C.’s general complaint that the Society didn’t tell her what they expected of her, or that they didn’t tell her soon enough.

16. Subsection 57(3) of the Act requires that before an order is made removing children from their caregivers that the court must be satisfied that less disruptive alternatives would be inadequate to protect the child. With respect to each of the children and each of the parents, I have specifically considered all of the available options with a view to identifying and implementing the least disruptive alternative.

a. None of the children can safely be returned to the care of V.C. or I.L. – separately or jointly – with or without supervision.

b. The least disruptive alternative for A.G.A.M. is to remain in the care of her biological father, R.S.M.. That placement has already been implemented on a temporary basis and is working well.

c. For reasons set out below, a further period of Society wardship for I.B.L. and L.W.L. is not available, and even if it were briefly available it would not be in the best interests of either child.

d. In any event, a further period of supervised access to I.B.L. and L.W.L. by V.C. and I.L. (within the context of Society wardship) would not be in the best interests of the children, because – although the access is enjoyable when it occurs – its periodic and inconsistent nature is disruptive for the children.

e. In the case of I.B.L. and L.W.L., there is no less disruptive alternative realistically available other than Crown wardship as requested by the Society, and (regarding I.B.L.) as supported by the OCL.

91. Subsection 57(4) of the Act requires that the court consider, if removal of the child from their caregiver is necessary, whether there are any family or community placements that are possible. I have considered this option. No alternate community or family placements are available.

92. In determining which disposition is in a child's best interests, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be made a Society ward under section 70 of the Act:

70(1) Time limit Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

70(4) Six month extension Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

93. With I.B.L. and L.W.L. having now been in care 15 months, given their ages, the 12 month maximum set out in s.70(1) has already been exceeded. The mother seeks an extension of the time limit pursuant to s.70(4), to give her more time to address housing and other issues. Counting from the June 9, 2016 date of apprehension, at this point the maximum available extension would only allow the parents an additional three months.

94. The length of time a child is in care is always an important consideration in determining disposition and placement when a child is found to be in need of protection. Time must be considered from the child’s perspective, particularly with young children where critical milestones come in quick succession. Delay in achieving permanence and stability is rarely in a child’s best interest. CAS Toronto v. D.S., 2009 60090 (SCJ).

95. The significance of the child-centred approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance. Children's Aid Society of Winnipeg (City) v. R., (1980) 1980 3654 (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. CAS of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (SCJ).

96. 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. Children’s Aid Society of Toronto v. R.H., (supra).

97. The pattern of behaviour must be considered: the lack of improvement in the pattern; the lack of insight; the lack of progress in addressing well-founded concerns, despite repeated opportunities to do so; the lack of candor; the lack of good faith; and the lack of any reason to have confidence that the parent has the ability and/or commitment to make necessary improvements within timelines sensitive to the child's needs. CCAS of Hamilton v. S.(B.L.) 2014, ONSC 5513 (SCJ).

98. In C.M. v. CAS Waterloo, (supra) the Ontario Court of Appeal unequivocally stated:

“It is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines.” The Court went on to say: “Where a statute requires that events occur within a specified time frame, it is simply unacceptable that justice system participants fail to adhere to those time frames.”

99. The time limits set out in s.70 of the Act are designed to reduce delay and provide timely permanency planning for children in care. Subsection 70(4) provides limited discretion in the court to extend the time limit – but only if it is in the best interests of the child.

100. I am not prepared to extend the timelines because based on the evidence it would not be in the best interests of any of the children to do so.

a. An extension of time pursuant to s.70(4) may be appropriate in circumstances where a parent has made timely, conscientious, and productive efforts to address all of the protection concerns and parenting deficiencies identified.

b. There must be some evidence of progress thus far, accompanied by a realistic expectation of continuing and determinative progress in the near term – within the limited additional time s.70(4) might offer.

c. But neither V.C. nor I.L. have demonstrated any meaningful or sustained progress.

d. I.L. admits he is nowhere near ready to care for any of these children.

e. V.C. seems to assume her primary challenge is to find housing. She glosses over more fundamental concerns about lifestyle, mental health, substance abuse, domestic relationships, reliability and a lack of parental insight. She has started to seek out help – but only recently.

f. I.B.L. and L.W.L. are very young children who have been in the care of the Society for 15 months. They both require permanency. They deserve a chance at a stable, secure future, within a family that wants to make a permanent commitment to them, through adoption.

g. There is no reasonable prospect that the options available for these children would be different – better -- if a brief extension were granted. Delay might help the parents strategically. But any delay hurts children in care. A.G.A.M., I.B.L. and L.W.L. need to get on with their lives.

h. Section 70(4) is intended for parents who are “almost there.” Not for parents who have “just started.”

i. The evidence does not satisfy me that any further extension of time – any further delay – would be in the best interests of any of the children.

101. A Crown wardship order is the most profound order that a court can make. To take someone’s child from them is a power that a judge must exercise only with the highest degree of caution; only on the basis of compelling evidence; and only after a careful examination of all possible alternative remedies. CCAS of Hamilton v. G. (J), (1997) 23 R.F.L. 4th 79 (SCJ); CAS of Ottawa v. R.& F., 2017 ONSC 3886 (SCJ).

102. It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests. CCAS of Hamilton v. J.I., I.M. and V.I.O., 2006 19432 (SCJ); Windsor-Essex CAS v. S.M., 2017 ONCJ 449 (OCJ).

103. In determining the best interests of the children, the court must assess the degree to which the risk concerns that existed at the time of the making of the last protection order still exist today. This must be examined from the children’s perspective. CCAS of Metropolitan Toronto v. C.M., (supra); CAS of Toronto v. B. (M.), 2017 ONCJ 120 (OCJ). This is not a status review application. But I find that the risks today for each of the children are substantially the same as they were when the children were apprehended in June 2016.

104. A comprehensive best interests analysis requires consideration of the strengths and weaknesses of every option.

a. The court must consider the risk each child may suffer by remaining or being placed in a parent or other person’s care.

b. The court must also consider the risk of emotional harm each child may suffer by being kept away from a parent or other significant person in their life. CAS of Toronto v. S. (G.), 2012 ONCA 783 (Ont CA); CAS of Hamilton v. C. (K.) 2016 ONSC 2751 (SCJ).

105. A lack of parental insight with respect to fundamental problems like physical and emotional harm may justify Crown wardship even if there are other positive aspects to a parenting plan. CAS of Hamilton v. C. (K.), (supra); CCAS of Toronto v. M. (M.), 2012 ONCJ 369 (OCJ); CAS of Hamilton v. S. (A.), 2017 ONSC 2226 (SCJ).

106. I have considered the Society’s Plan of Care; the affidavits filed by the Society, V.C. and I.L.; the submissions of all parties (including R.S.M. and the OCL, neither of whom filed affidavits pursuant to Rule 16); and the case law referred to.

107. I find that the Society’s affidavit evidence establishes a prima facie case for a section 57.1 custody order in relation to A.G.A.M., and Crown wardship with respect to I.B.L. and L.W.L.. The materials and evidence presented by V.C. and I.L. do not raise or allege specific facts which establish that there is a genuine issue requiring a trial on these issues.

108. The evidence of the Society and of the OCL confirms that A.G.A.M. has consistently indicated that she would like to reside with her biological father R.S.M. in Alberta. The placement has been tested and is working well. It would be contrary to A.G.A.M.’s best interests to remove her from this loving, stable and emotionally reassuring environment – and to consider returning her to a mother and/or stepfather who have demonstrated a complete lack of ability to maintain a stable and safe environment for any child.

109. Similarly, the Society has presented overwhelming evidence of profound and unresolved risks in relation to both V.C. and I.L.. Their problems include frightening mental health issues; recurring substance abuse issues; lifestyle and anger management problems; an inability to organize their lives or prioritize the children’s needs; a lack of candor, honesty and commitment; and a profound lack of parental insight. These are not problems which can be easily resolved – and there is little evidence of meaningful progress by either of them.

a. I.L.’s affidavit sets out virtually no facts he would seek to establish at a trial. He seeks an opportunity to test and challenge the Society’s case. That’s not enough on a summary judgment motion.

b. V.C. raises some specific factual disputes, but they are relatively minor. Even if her version of the facts on these narrow issues were to be accepted, the issues she raises are not material enough to affect the outcome of the case.

c. V.C. seeks a delay to position herself so that the children could be returned to her care, initially under a supervision order. But she has set out no evidence which could satisfy the court that a supervision order would provide realistic and reliable protection for the children. She has an admitted history of being unable to shield her children from domestic violence, and being unable to prioritize the children over an abusive partner. She has a history of deceiving the Society when it was trying to work with her, and violating an important safety plan even though she had made a commitment that she would comply. In that context, a supervision order now – or three months from now – would provide no assurance of safety for these children.

110. The test is not "beyond a reasonable doubt" or "is the parent completely hopeless." The test is on a balance of probabilities. As no one can predict the future with certainty, the court must decide whether or not the children's best interests are more likely to best be served by being raised by a parent or being made Crown wards. CAS of Toronto v. C. (L.), 2016 ONCJ 432 (OCJ).

111. I find that the evidence as presented on this summary judgment motion is sufficient to allow me to determine that there is no genuine issue for trial with respect to the Society’s respective s.57.1 and Crown wardship requests. I do not need to invoke any expanded powers to weigh evidence or assess credibility.

PARENTAL ACCESS - A.G.A.M.

112. The Society submits there is no genuine issue requiring a trial in relation to A.G.A.M.’s access to V.C. and I.L.. R.S.M. agrees. But V.C., I.L. and the OCL all propose at least a “mini-trial” on all of the access issues herein.

113. However, the facts on this specific issue have been clearly established. There are no disputed facts which require determination at a trial:

a. A.G.A.M. will continue to reside permanently in Calgary, Alberta with her biological father R.S.M.. She is already there.

b. I.B.L. and L.W.L. will continue to reside in Ontario, in a joint adoptive placement.

c. V.C. and I.L. say they are separated but they both reside permanently in Hamilton.

d. The OCL confirms that A.G.A.M. would like to have ongoing access with V.C. (in particular) and I.L.. Specifically, A.G.A.M. stated a hope that V.C. could visit her in Alberta perhaps once a month. OCL counsel readily acknowledged that the 11 year old child has no real comprehension of the logistical and financial considerations involved in arranging access between Ontario and Alberta. Particularly where the mother’s finances are so limited that she has trouble even finding housing. Nonetheless, OCL counsel requested that face-to-face contact between A.G.A.M. and V.C. could take place more frequently than the “minimum of once a year” suggested by the Society.

e. A.G.A.M. (likely correctly) anticipates I.L. may not be able to visit her in Alberta.

f. A.G.A.M. would also like to have ongoing contact with V.C. and I.L. by telephone, Facetime, and by exchanging cards, letters, etc.

g. The Society and R.S.M. agree: A.G.A.M. should have ongoing access to V.C. and I.L..

h. The Society proposes that such access be in the discretion of R.S.M. and supervised in his discretion.

i. R.S.M. has confirmed that he supports V.C. and I.L. having reasonable access, and he is willing to work with them. He has no specific proposal and appears unable to assume responsibility to fund anyone’s travel.

j. The uncontroverted evidence is that R.S.M. is a very reasonable, child-focussed parent, and that he is very sensitive and responsive to A.G.A.M.’s emotional needs and preferences.

k. In short: everyone agrees A.G.A.M., who lives in Alberta, should have some ongoing access to V.C. and I.L., who live in Ontario.

114. The OCL, V.C. and I.L. all appear to be asking for a “mini-trial” on this issue, to more specifically set out the details of such access. But the affidavit materials do not set out any specific proposal by anyone. And there is no indication as to what specific proposals – if any – would be presented at a “mini-trial”.

115. I.L.’s affidavit sets out no evidence as to the specifics of access, if A.G.A.M. is placed in R.S.M.’s custody.

116. In her affidavit V.C. briefly mentioned that R.S.M. isn’t currently giving her as much telephone access as she would want.

a. But she did not set out specific evidence of past events or future proposals which would require determination or adjudication by a trial judge.

b. She certainly provided no evidence which would have undermined the Court’s confidence in R.S.M.’s judgment and sensitivity as a custodial parent. At this stage in the analysis, the s.57.1 determination has been made. This Court has already decided that R.S.M. can be entrusted to make all decisions on behalf of A.G.A.M., including access decisions.

c. If we had the “mini-trial” as requested, what would it accomplish? What would be the benefit for A.G.A.M.?

d. If V.C. or I.L. had specific access proposals – dates, times, schedules, financial responsibility, etc. – that evidence and those proposals should have been set out in the responding affidavits. The Society’s summary judgment motion clearly identified that the Society was seeking an order that V.C. and I.L.’s access would be in the discretion of R.S.M.. The Society even identified that the intention was that personal contact occur at a minimum of once each year.

e. When they prepared their responding affidavits, V.C. and I.L. may not have directed their attention to the logistics of access to A.G.A.M. in Alberta, presumably because they still clung on to the hope that she would be returned (a) from Alberta and (b) to V.C.. But even if they hadn’t really fleshed out the details of their “second choice” (i.e., access to A.G.A.M.), they provided no evidence that they will be in a position to set out specific proposed terms of access to be dealt with at a mini-trial.

f. Beyond logistics, V.C. and I.L. have set out no evidence which would raise a genuine issue requiring a trial as to whether R.S.M. should have discretion over their access. The Society’s materials make it overwhelmingly clear that V.C. and I.L. both have frightening histories of bizarre, aggressive, irrational and confrontational behaviour. Neither of them has demonstrated good judgment or self-control in the presence of the children. Indeed, V.C. couldn’t control herself in the courtroom during the hearing of the motion. She started shouting at R.S.M. who was participating by teleconference. (At another point during the proceeding, I.L. also had to be admonished for disruptive behaviour.)

g. Speaking plainly: these people are not easy to get along with. It would be naïve and irresponsible to leave R.S.M. with no discretion or control over future interactions.

117. While “access in the discretion of R.S.M.” may not be as specific or reassuring as V.C. and I.L. (and even A.G.A.M.) would like, from a practical point of view I have received no evidence to suggest that there is a genuine issue requiring a trial.

118. Trials are only necessary if there are specific facts or legal issues which need to be determined. At this moment, everyone has agreed upon as much as can be agreed upon. Access should take place. Geographic challenges will have to be addressed, when someone comes up with a specific proposal. R.S.M. should retain discretion with respect to the details of access, both from a scheduling perspective, and also in recognition of personality and behavioural issues affecting V.C. and I.L. (and their parental interaction with A.G.A.M.).

119. That’s as much as a trial judge could decide right now. Future issues and arrangements will be better dealt with as they arise.

PARENTAL ACCESS – I.B.L. & L.W.L.

120. Now that I.B.L. and L.W.L. have been made Crown wards, the issue of whether V.C. and I.L. should have access is more complex.

121. Pursuant to s.58(1) of the Act, the court may make, vary or terminate an order respecting a person’s access to the child, or the child’s access to the person, and may impose terms and conditions on this access which the court considers appropriate.

122. Once an order for Crown wardship is made, the focus of the Act is to ensure that the child benefits from a permanent and stable placement. Section 63.1 creates an obligation on the Society to make all reasonable efforts to assist a child who has been made a Crown ward to develop a positive, secure and enduring relationship within a family through either adoption, a custody order or a plan for customary care in the case of an Indian or native child. CAS Hamilton v. A.W. & M.H., 2014 ONSC 2423 (SCJ).

123. The cornerstone of the Act insofar as Crown wardship is concerned, is to provide the child with permanence and stability. CAS of Toronto v. M.A., 2002 53975 (ON CJ), [2002] O.J. No. 2371; Children and Family Services for York Region v. J.V. and N.B., (supra).

124. The provisions of the Act relating to access after a Crown wardship order is made are aimed at promoting the chances of a Crown ward being able to move on to become part of a positive and secure family unit. CAS Hamilton v. A.W. & M.H., (supra).

125. After a Crown wardship order is made, all previous access orders terminate. At that point the court must determine whether an access order should attach to the Crown wardship order. In this case, the Society seeks an order of Crown wardship with no access to the parents for purposes of adoption.

126. Access is dealt with in sections 58 and 59 of the Act. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2.1) creates a presumption against access where the child is a Crown ward. CAS of Toronto v. C. (S.A.), 2005 ONCJ 274, [2005] O.J. No. 2154 (OCJ); D. (D.) v. Children's Aid Society of Toronto, 2015 ONCA 903 (Ont. C.A.). Post-Crown wardship access is the exception, not the rule.

127. Section 59(2.1) of the Act clearly places the focus of the test for access on the child’s perspective.

59(2.1) Access: Crown ward A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

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

128. The rebuttable presumption under s.59(2.1) is conjunctive. The person requesting access must provide evidence and satisfy the court on a balance of probabilities with respect to both requirements of the section, or access cannot be ordered. CAS of Toronto v. A. (M.), 2002 53975 (ON CJ), 2002 CarswellOnt 1923 (OCJ); D. (C.) v. CAS of Algoma, [2001] O.J. No. 4739 (SCJ); D. (D.) v. CAS of Toronto, (supra).

129. The term "beneficial and meaningful" was considered by Justice Quinn in CAS of Niagara v. M.J., (2004), 2004 2667 (ON SC), 4 R.F.L. (6th) 245 (SCJ) at paragraphs 45-47 where he said:

What is a "beneficial and meaningful" relationship in clause 59(2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

130. In CAS of Toronto v. M.A., 2006 1671 (SCJ) it was held that even though the access visits were generally enjoyable for the child, it was open to a trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care and for a secure place as a member of a stable family. CAS of Ottawa v. T. (J.), 2016 ONSC 5155 (SCJ).

131. The “beneficial and meaningful” test focuses on the child’s experience of the relationship, not the parent’s. CAS of Hamilton v. L.S., 2011 ONSC 5850 (SCJ).

132. In order to satisfy the first requirement, the party seeking access must prove, on a balance of probabilities, that his or her existing relationship with the child brings a significant positive advantage to the child. It is not sufficient that there are some positive aspects to the relationship. CAS of Toronto v. M. (P.), 2015 CarswellOnt 15754 (Ont. C.A.).

133. Evidence indicating that a parent loves the child; that the child loves the parent; and that some visits were pleasant will not necessarily be sufficient to establish that the relationship is meaningful and beneficial to the child. CAS of Haldimand & Norfolk v. H. (B.), 2016 ONCJ 642 (OCJ).

134. It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child. The parent must show more than just that a child is having a good time during visits. The child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: CAS of Niagara v. C. (J.), (2007) 2007 8919 (ON SCDC), 36 R.F.L. (6th) 40 (Div. Ct.); CAS of Hamilton v. S. (A.), (supra); CAS of Peel v. S. (M.), 2006 ONCJ 523 (OCJ).

135. Similarly, the fact that access has been appropriate and uneventful with no particular concerns noted, may also be insufficient to support a claim for access after Crown wardship is ordered. Children’s Aid Society of Hamilton v. M.(W.), 2008 53130 (ON SC), [2008] O.J. No. 4052 (SCJ).

136. The focus of the inquiry is the nature and quality of the relationship between the child and the parent at the time of trial, and not a relationship hoped for in the future. CAS of Hamilton v. M.(W.), (supra); CAS of Niagara v. D.B., [2011] O.J. No. 4956 (SCJ); CAS of Niagara v. J.C., (supra).

137. Even if the relationship is beneficial and meaningful, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made. CAS of Niagara v. M.J., (supra); CAS Toronto v. R.H., (supra).

138. The challenge is finding the fine balance between what will preserve a beneficial and meaningful relationship in the best interests of the children and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the children in their new adoptive home. CAS of Ottawa v. B. (J.), 2017 ONSC 1194 (SCJ).

139. An access order cannot be merely a consolation prize for disappointed adults. CAS of Hamilton v. C.H., 2014 ONSC 3731 (SCJ).

140. The OCL (representing four year old I.B.L. but not two year old L.W.L.) supports V.C. and I.L.’s request that the Society’s motion for summary judgment on the “no access” issue be dismissed. Pursuant to Justice Madsen’s consent order dated July 17, 2017, OCL counsel was permitted to set out the children’s views and preferences in her factum. Ms. Roy noted:

a. I.B.L. has been having access with V.C. and I.L. since her apprehension, albeit sporadic.

b. The young girl likes seeing her biological parents and wishes to have access.

c. She loves her mom and dad very much.

d. The visits with them make her happy.

e. She gets very excited getting ready to go for visits.

f. I.B.L. has no understanding with respect to the absence of her parents, and has been confused at times about their current whereabouts, due to their lack of attendance at access visits.

141. None of that is disputed by the Society, which readily admits that when visits by V.C. and/or I.L. take place, they are enjoyable and the children are happy.

142. But neither the parents nor the OCL dispute the other side of the story, set out in detail in the Society’s materials:

a. V.C. and I.L. have had a terrible attendance record for access. As stated, they attended 55 of a scheduled 110 visits, as of the date of the Society’s most recent affidavits.

b. The pattern hasn’t significantly improved with the passage of time. Even the day before the Society’s last affidavit in July 2017, the mother missed a visit.

c. They continued to miss visits even after they knew this summary judgment motion was scheduled. Presumably that would have been the time to clean up their act.

d. The parents have been unable to maintain their access schedule even though the Society worked with them to create a schedule which would accommodate the parents’ other stated commitments.

e. The Society’s uncontroverted evidence is that the pattern of missed visits has been extremely disruptive and upsetting for the children. I.B.L. in particular has experienced terrible disappointment and sadness when she has been driven from the foster home to the access facility, excited by the prospect of seeing her parents – only to have no one show up. This happened repeatedly, so much so that the Society started requiring that the parents call ahead to confirm they were coming. But incredibly, sometimes one of the parents would call ahead to confirm they were coming – and they still wouldn’t show up.

f. In V.C.’s affidavit she acknowledges the devastating emotional impact the missed visits had on the children. She excuses some of the missed visits on work commitments, which she says no longer exist. She explains that other visits were missed because of her mental health and low emotional state. But she has not provided evidence that she has taken adequate or effective steps to better regulate her life in the future.

143. As this court stated in CAS of Hamilton v. C. (K.), (supra), a relationship cannot be considered "beneficial and meaningful" if it perpetually cycles children through the polar opposite emotions of happiness and heartbreak. Similarly, a part-time or intermittent parent-child relationship does not satisfy the first part of the s.59(2.1) test.

a. Love and affirmation are wonderful. But rejection and abandonment are devastating.

b. After a while, the exact proportions of those experiences become less relevant from a child's perspective.

c. Good childhood memories don't neatly cancel out bad childhood memories.

d. And mathematical averaging doesn't apply when it comes to children's mental health.

e. For a relationship to be meaningful and beneficial there must be consistency.

144. Although the OCL submits access should continue because four year old I.B.L. wants it to, the first part of the s.59(2.1) analysis entails a more rigorous test. Based upon the evidence, I do not find that the relationship between either of the parents and I.B.L. and/or L.W.L. is “beneficial and meaningful”.

145. Having determined that the first part of the s.59(2.1) conjunctive test has not been satisfied, it is not necessary to move on to the second part. But I will briefly review the onus on the parents to establish that any ordered access would not impair the child's future opportunities for adoption.

146. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable, or to identify an actual prospective adoptive family for the child. Children's Aid Society of Niagara v. J.C., (supra).

147. Similarly, evidence indicating that a child may be difficult to place for adoption because of their particular profile is not sufficient to satisfy the criterion set out in section 59(2.1)(b). Children’s Aid Society of Halton Region v. M.(K.C.), 2012 CarswellOnt 15061 (OCJ); Children’s Aid Society of Toronto v. P.(D.), 2005 34560 (ON CA), [2005] O.J. No. 4075 (Ont. C.A.). As an aside, I note that there is no suggestion that either I.B.L. or L.W.L. would be difficult to place for adoption. There is no reason to believe the Society will have difficulty finding a joint adoptive placement for them in the same home.

148. The onus is on the person seeking access to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption. Catholic Children’s Aid Society of Hamilton v. L.S., (supra). “Impairing” a child’s future opportunity includes causing undue delay to the child being adopted. Catholic Children's Aid Society of Toronto v. M. (M.), (supra).

149. Section 141.1.1(1) of the Act provides that a Society may plan for the adoption of a Crown ward in respect of whom there is an outstanding access order. If the Crown ward is in fact placed for adoption, s.143 provides that every access order made under Part III is terminated. However, in these circumstances, the Society is required to give notice to any person entitled to access of the intention to place the child for adoption, and the person has the right to apply for an openness order within thirty days after receiving the notice.

150. When we get to the second prong of the s.59(2.1) analysis, in most cases the Court will have no information about the prospective adoptive parent – but a great deal of information about the parent seeking access. And almost invariably we wouldn’t be at the stage of the s.59(2.1) analysis unless our information about the parent was so negative that Crown wardship was the only option.

151. That doesn’t necessarily rule out post-Crown wardship access for troubling or difficult parents. But the second part of the s.59(2.1) test specifically requires the court to address and evaluate future dynamics – inevitably including interpersonal dynamics – and the onus falls squarely on the parent to provide evidence to satisfy the court that those dynamics will not impair the child’s future opportunities for adoption.

152. Often – as in this case – parents don’t even address the second part of the s.59(2.1) test in their response to a Rule 16 motion, presumably because they’re not sure what they could say that would satisfy the court. While that dilemma is understandable, nonetheless it is a mistake to ignore the very specific onus on the parent seeking access, as set out in the legislation.

153. If we want adoptive placements for children to be early and successful, courts must be alive to the possibility that the prospect of further litigation may deter prospective adoptive parents. There are many ways in which an outstanding openness application could derail, delay or jeopardize an adoption by prospective adoptive parents:

a. They would be facing further litigation.

b. They would not know the result of such litigation.

c. They would not know what form an openness order might take.

d. At the very least, if an openness application is brought, the adoption could be delayed.

e. If an openness order is granted, adoptive parents would have to have ongoing interaction with potentially difficult people, likely in an emotionally charged context. They could easily be anxious about having to deal with people who are troubled, resentful, mentally ill, or violent -- without any ongoing assistance of buffering by the Society.

f. Adoptive parents might perceive ongoing parental involvement as interference, or an impediment to creating an exclusive and binding legal and parental relationship.

154. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements may find their access request refused because of their past disruptive behavior. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted will likely be viewed as a reason not to grant an access order because such an order would impair that child’s future opportunities for adoption. CCAS of Toronto v. L.D.E., 2012 ONCJ 530 (OCJ).

155. With respect to V.C. and I.L., their reply materials on this summary judgment motion set out no evidence they would be relying on to satisfy the onus pursuant to the second part of the s.59(2.1) test. The Society’s evidence of long-standing problematic behaviour by each of them was overwhelming.

156. Having made my decision, I note as an aside that during hearing of the motion I had to interrupt proceedings twice, to admonish each of the parents not to be disruptive. At one point I.L. stormed out of the courtroom. If I had trouble dealing with these parents in the protective environment of a courtroom – when you would think they would be on good behaviour – how can I in good conscience set them loose on some well-intentioned adoptive parents?

157. The onus to rebut the presumption against access to a Crown ward is on the person seeking access. However, in a summary judgment motion, the onus is on the society to prove that there is no genuine issue for trial. CAS of Toronto v. W. (C.J.), (supra). In this respect, I am satisfied that the Society has established that V.C. and I.L. would be unable to prove at trial that access would be beneficial and meaningful for the children, and they would be unable to prove at trial that an order for access would not impair the children’s opportunities to be adopted.

SIBLING ACCESS

158. That leaves the issue of sibling access between A.G.A.M. (in Calgary) and I.B.L. and L.W.L. (in their adoptive placement in Ontario). And once again, all parties agree on what they would like to happen. The issue is how much we can predict and control future events – and whether the issue of sibling access will be any better addressed if we have a trial.

159. As the OCL has noted, it is important that in any access regime the children should be identified not only as access recipients but also as access holders.

a. This distinction is critical because only an access holder has the right to apply for an openness order if the Society serves a Notice of intent to place a Crown ward for adoption. CAS Toronto v. R.H., 2016 ONCJ 181 (OCJ).

b. But the distinction also means that in determining the issue of sibling access in relation to Crown wards, the s.59(2.1) conjunctive test once again applies.

160. The Society’s position:

a. Without question, it is in the best interests of all of the children that there be sibling access, if it can be arranged. The sibling relationship is acknowledged to be “beneficial and meaningful” for all of the children.

b. However it is inappropriate – indeed, impossible – to pre-determine sibling access provisions in a court order.

c. The Society has made a commitment that once an adoptive family for I.B.L. and L.W.L. has been identified, the Society will make its best efforts to encourage and facilitate the youngest two children having access with A.G.A.M..

d. But we don’t currently have any information about who the adoptive parents are going to be. Or how they might feel about sibling access.

e. And even if summary judgment is not granted on this issue, at trial we still won’t have any better information than we have now.

f. Even if all of the children lived in the same community, prospective adoptive parents for I.B.L. and L.W.L. might be less inclined to become involved if they feel they will be forced to assume a commitment to sibling access.

g. The potential resistance by adoptive parents is heightened by the geographic challenges of this case. With A.G.A.M. living permanently in Calgary, an Ontario adoptive family might quite understandably be unwilling or unable to make a commitment to interprovincial access.

h. The onus is not on the Society to prove that access would not impair the children’s opportunities for adoption. The onus is on the person seeking access.

i. And in this case neither V.C., I.L. nor the OCL have provided any evidence that an order for post-Crown wardship sibling access would not impair adoption.

j. The Society proposes that no order should be made in relation to sibling access.

161. The OCL agrees with the Society on the facts, but not on the law. The OCL’s position:

a. The children are all closely bonded to one another. Prior to apprehension, all three children resided together since birth.

b. Following apprehension and prior to A.G.A.M. relocating to Alberta, the children consistently attended visits with one another and the visits went well.

c. A.G.A.M. definitely wants to maintain contact with I.B.L. and L.W.L.. She misses them a great deal.

d. Similarly, I.B.L. wants to maintain contact with A.G.A.M.. She is sad that A.G.A.M. is “gone” and does not understand where she went.

e. (The OCL does not represent L.W.L., but for purposes of this analysis it is safe to assume L.W.L. would also want to maintain contact with both of his older sisters.)

f. OCL counsel acknowledges there is no evidence before the court as to how sibling access might be arranged, in the unique and difficult circumstances of this case.

g. But the OCL submits that given the importance of this issue for the children, the Court should not speculate about whether a specific sibling access order would impair future opportunities for adoption, without evidence.

162. As for the parents:

a. V.C. and I.L. both submit there should be sibling access. They have provided no evidence or details as to what that access might look like. Neither of them has volunteered to assume financial or other responsibility to make sibling access happen.

b. R.S.M. has agreed he’ll do what he can to facilitate A.G.A.M. maintaining access to her younger siblings. But as with V.C.’s access to A.G.A.M., no one has presented R.S.M. with a specific proposal. And he’s unable to make any commitment with respect to travel.

163. The OCL insists that with all of these unknowns, this aspect of the Society’s summary judgment motion should be dismissed and we should have a mini-trial on sibling access. The OCL wants some sort of commitment that sibling access will take place.

164. But if there was ever a time for answers and evidence to be provided, surely all of that information should have been presented at this summary judgment motion, by anyone opposed to the relief sought by the Society.

a. None of the evidence presented by the parents provides any reassurance that a sibling access provision would not impair opportunities for adoption.

b. And the strongest proponent of sibling access – the OCL – filed no affidavit evidence whatsoever.

c. Justice Madsen’s July 17, 2017 consent order set out that the OCL would be entitled to convey the children’s “views and preferences” in the OCL factum. As it happens, the children’s views and preferences are not in dispute. But that’s only one of the relevant considerations under the Act.

d. The OCL filed no evidence on the sibling access issue.

e. And OCL counsel was unable to refer to anything in anyone’s evidence which would meet the onus of establishing that a sibling access order will not impair opportunities for adoption.

165. We often bend the rules for the OCL because of its mandate to assist children (although notably we rarely bend the rules for the Society, even though it also has an important child-focussed mandate). But there are no separate rules for the OCL on summary judgment motions.

a. The OCL has the option of presenting formal affidavit evidence in response to a Rule 16 motion, if the OCL opposes the relief requested by the Society.

b. The OCL also has the option of securing agreement – as it did here – that “views and preferences” could be less formally presented to the court, within a motion factum or otherwise.

c. But beyond there, there’s nothing in Rule 16 which permits the OCL to say: “We don’t have any evidence to support our position, but let’s have a trial so that hopefully some helpful evidence will surface at the hearing.”

d. We wouldn’t let the Society or parents get away with that.

e. And if we accept that submission from the OCL, it will undermine the availability of summary judgment in any of the many child protection files in which counsel have been appointed for a child.

f. If the OCL is going to submit that there is a genuine issue requiring a trial, that position will have to be founded upon evidence presented pursuant to Rule 16(4.1).

166. On this summary judgment motion, the Court must take a hard look at the facts:

a. All of the current players agree that sibling access is desirable and should be promoted.

b. But nobody has any idea exactly how sibling access should or can be implemented.

c. And we don’t even know the identity of some key players – the future adoptive parents for I.B.L. and L.W.L..

d. We have no idea how the future adoptive parents will feel about sibling access.

e. But we definitely don’t want to scare potential adoptive parents off.

f. We don’t have the answers on this summary judgment motion.

g. And even at a trial we still won’t have the answers.

h. Many of these questions can only be answered after a final order is made.

167. The OCL submits the Society has failed to establish that a sibling access order would impair the children’s opportunities for adoption. But I agree with the Society that this is a mis-statement of the actual onus. Section 59(2.1) places the onus on the person seeking an access order, to establish that access will not impair a child’s opportunities for adoption.

168. Based on the evidence presented by the Society – and based on the absence of any reply evidence by anyone seeking a sibling access order – I find that the Society has established that the persons seeking sibling access would be unable to establish that access would not impair opportunities for adoption. As a result there is no genuine issue requiring a trial on this topic.

169. I agree with the approach of Sherr, J who dealt with a similar situation in CCAS of Toronto v. J.D., [2007] O.J. No. 3575:

103 The society has acknowledged that there is a bond between these children and they recognize the importance of maintaining sibling access. I accept that they are committed to preserving this. I am content to take the approach taken in Children's Aid Society of London and Middlesex v. S.M., [2000] 97 A.C.W.S. 472 (Ont. Family Court), which is to make no order with respect to sibling access, but to encourage the society to promote it. I believe this meets the dual objective of ensuring that there is no impediment to the children's adoption and communicating the court's message that the society should promote access between the siblings, both before and after adoption.

170. In conclusion, with respect to all of the relief requested by the Society on this motion, I find that there is no genuine issue requiring a trial, and that a final order should be granted. The mother’s cross-motion is dismissed in its entirety.

THE ORDER

171. With respect to A.G.A.M.:

a. The child, A.G.A.M. born […], 2006, shall be placed in the custody of R.S.M., pursuant to s. 57.1 of the Child and Family Services Act.

b. Access between A.G.A.M. and V.C. and I.L. shall be at the discretion of R.S.M. and supervised in R.S.M.’s discretion.

c. The Catholic Children’s Aid Society of Hamilton shall be served with any Notice or Application to change the custody or access provisions of this Order.

172. With respect to I.B.L. and L.W.L.:

a. The children, I.B.L. born […], 2013 and L.W.L. born […], 2015 shall be made Wards of the Crown and placed in the care of the Catholic Children’s Aid Society of Hamilton.

b. There shall be no access.

Pazaratz, J.

Released: September 26, 2017

CITATION: Catholic Children’s Aid Society of Hamilton v. V.C. et al., 2017 ONSC 5557

COURT FILE NO.: C-887/17

DATE: 2017-09-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicant

– and –

V.C.

Respondent Mother

I.L.

Respondent Father of I.B.L. and L.W.L

R.S.M.

Respondent Father of A.G.A.M.

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: September 26, 2017