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: CAS v. M.C. et al, 2017 ONSC 7132

COURT FILE NO.: FC 1674/05

DATE: 2017-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

S. Kumaranayake, for the Applicant

Applicant

• and -

M.C. Respondent Mother T.P. Respondent Father

A. Katz, for the Respondent Mother

M.P. Paternal Aunt

R.B. Paternal Uncle

HEARD: November 27, 2017

THE HONOURABLE MADAM JUSTICE C. LAFRENIÈRE

Matter before the Court

[1] This is a motion for summary judgment (“MSJ”) brought by the Applicant Children’s Aid Society of Hamilton (“CAS” or “the Society”) within two Protection Applications (“PA”).

Litigation History

[2] The first PA originally returnable June 22, 2016, was in regards to the child, M.A.C., born – 2010 and now 7 years of age. The Society seeks an Order of Crown wardship without access for M.A.C. The Respondents in this PA are the mother, father, paternal aunt and paternal uncle.

[3] On June 22, 2016, Justice Mazza granted a temporary order placing the child in care with access at the Society’s discretion.

[4] The second PA was originally returnable on October 7, 2016 regarding the child, A.S.C., born – 2016. In the second PA the Society sought an order the child be made a Society ward for a period of six months. The Respondents in this PA are the mother and father.

[5] On September 12, 2016, Justice Brown granted an order noting the father, paternal aunt and paternal uncle in default with respect to the first PA regarding M.A.C.

[6] On October 7, 2016, Justice Brown granted a temporary order placing the child in care with access at the Society’s discretion in the second PA regarding A.S.C.

[7] On December 12, 2016, Justice Brown ordered the mother to participate in a s.54 Parenting Capacity Assessment (“PCA”) with a cognitive component, on consent of the mother and the Society.

[8] On February 27, 2017, Justice Brown made a Final Order on consent of the mother and the Society finding both children in need of protection pursuant to s.37(2)(l) of the Child and Family Services Act (“CFSA”). Justice Brown also made the findings that the children are non-Native, non-Indian and non-Catholic.

[9] Also on February 27, 2017, Justice Brown made a temporary order placing A.S.C. in the care of the maternal grandparents as of March 7, 2017, subject to the Society’s supervision with access in the Society’s discretion.

[10] The placement of A.S.C. with the grandparents broke down. On April 4, 2017, Justice Mazza granted the Society’s motion that A.S.C. be placed in care with access at the Society’s discretion.

[11] On July 24, 2017, the two PAs were placed on the trial sittings of November 27, 2017 for a 15 day hearing.

[12] On August 23, 2017 the Society amended the PA regarding A.S.C. (“APA”). The Society seeks an Order of Crown wardship without access for A.S.C.

[13] On September 28, 2017, Justice Brown granted an order noting the father in default with the APA regarding A.S.C.

[14] On November 20, 2017, this matter was spoken to in Purge Court before Justice Pazaratz. Justice Pazaratz set the MSJ for November 27, 2017.

[15] The mother has not filed any material in response to the MSJ.

[16] The Society served a Request to Admit. The mother did not respond to it.

Mother’s Request for an Adjournment

[17] The mother appeared at court and through her counsel requested an adjournment of the MSJ. She was not able to state how much time she needed and would only say she wanted as much time as she could have, through her counsel.

[18] Ms. Katz submitted that she had not been able to file responding material on her client’s behalf because she had not been able to contact her client for a significant period of time.

[19] The mother submitted that her anxiety and agoraphobia prevented her from leaving her house to deal with the MSJ.

[20] The Society opposed the mother’s request for an adjournment.

[21] The Society’s MSJ was served on the mother’s counsel on November 2, 2017.

[22] The Notice of Motion sets out that the MSJ is to be heard at the commencement of the trial on the sittings of November 27, 2017 or on a date to be fixed by the trial co-ordinator.

[23] On October 23, 2017, the mother’s counsel was served with the Society’s Evidence Briefs (four volumes) to be relied upon at the MSJ and the trial in the event the trial proceeded.

[24] As noted above, the matter was scheduled for trial by Justice Brown on July 24, 2017. The matter was placed on the November 27, 2017 sittings (a four week sitting) for an estimated time of fifteen days.

[25] Justice Brown conducted a combined settlement conference and trial scheduling conference on September 28, 2017.

[26] The mother and her counsel were in attendance on both July 24, 2017 and September 28, 2017.

[27] In the trial scheduling endorsement, Justice Brown stated the Society was permitted to bring its MSJ.

[28] The Society submitted because the PA regarding M.A.C. has always requested Crown wardship without access, the mother has been aware of the seriousness of the request made by the Society, since service of the application in June 2016.

[29] The Society submitted the children have been in care a lengthy period of time. And, significantly, M.A.C. has been out of her mother’s care since September 2014 and A.S.C. was only parented by his mother for a few days at the hospital after his birth. These children deserve to have these proceedings come to an end. M.A.C. has experienced several disruptions in her life and needs stability and consistency for her well-being.

[30] The Society relied on the facts that the mother has not seen the children since July 25, 2017 and her access was suspended in August 2017 for the fourth time since April 2017 because she was either late, appeared to be under the influence or simply did not attend at access.

[31] The Society submitted that the evidence is overwhelming that the mother has deteriorated over the last nine months and an adjournment to file an affidavit is not likely going to assist her, but, may jeopardize the trial which is scheduled on the current sitting and, thus, potentially delay permanency for the children.

[32] The Society also relies on the PCA conducted by Dr. Ashbourne in which he concluded that M.A.C. has an “anxious attachment” to her mother and A.S.C. does not have an attachment to his mother.

[33] After the Society’s submissions, the mother candidly acknowledged that she is aware she is not now in a position to have the children returned to her care. She seeks access to them. The children are receiving excellent care in the foster home and she does not want to jeopardize the placement.

[34] I denied the mother’s request for an adjournment. I found it was not in the children’s interests to delay this matter any further. The 15 day trial must commence later this week if it is to be completed during this sitting. There was not any time to delay the hearing of the MSJ and ensure the trial time was not lost. Further, I was and am satisfied the mother has had ample opportunity to respond to this MSJ and for whatever reason has simply failed to do so.

The MSJ

[35] The paramount purpose of the CFSA is to promote the best interests, protection and well-being of children, and accordingly, the focus of any case must be on the needs and interests of each subject child or children.

[36] An additional purpose of the CFSA is to consider the least disruptive course of action that is available and appropriate in a particular case to help a child. The CFSA identifies purposes in addition to the paramount purpose, but, only to the extent that they are consistent with the best interests, protection and well-being of the child.

[37] The court must focus on these children, their needs, and their right to have their situation resolved. They are now in limbo and entitled to permanency.

[38] The MSJ is allowed.

[39] I find the children continue to be in need of protection and court intervention is required to protect them.

[40] There are no family or community placements proposed for the children.

[41] I find that there is no genuine issue for trial and that it is in the best interests of the children to be made Crown wards without access for the purpose of adoption.

[42] This result is the least disruptive alternative available for these children that will protect them, meet their needs and promote their best interests.

[43] I have considered the best interests of the children and specifically the factors enumerated at s.37(3) of the CFSA. In applying the best interests test, I have tried to maintain a child-centered focus bearing in mind the paramount purpose of the CFSA as set out in s.1.

[44] It is very significant that the mother has not filed any affidavit material in response to the Society’s MSJ. She has not provided any evidence which could form the basis of a genuine issue for trial.

Material Filed

[45] I have read all of the material filed and considered the submissions of counsel for the CAS and the submissions of counsel for the mother.

[46] The Society served a Request to Admit to which the mother did not respond and pursuant to Family Law Rule 22(4) the mother is considered to have admitted the facts set out for the purposes of this proceeding.

[47] I accept and rely on the evidence set out in the affidavits and the Request to Admit filed by the Society. It is not necessary, I find, to review the Society’s evidence in detail in this judgment. The evidence has not been challenged by the respondent parties.

[48] I will outline the basic themes consistent in the affidavits filed by the Society workers involved with the family from the most recent file opening of December 2011 to date. These themes remained throughout the Society’s work with the mother and persist to date with the exception that those concerns while the children were in her care are not on-going because M.A.C. has not been in the mother’s care since September 30, 2014 and A.S.C. has not been in the mother’s care since shortly after his birth - 2016.

[49] The themes can be described as follows:

a) the mother’s inability to maintain stable housing;

b) the mother’s periods of transience between homes and frequent periods, when her whereabouts were unknown and her family advised the Society she was missing;

c) the mother’s suspected substance abuse;

d) the conflict in the home between the parents and between the mother and the older children, A.C. and N.C.;

e) the unhealthy relationship between the parents which involved domestic violence to which the four children were exposed;

f) the mother’s untreated mental health concerns, particularly her struggles with anxiety;

g) the child M.A.C. being left alone and unsupervised;

h) the mother’s inability to engage with the Society coupled with the mother’s frequent periods when her phone was not working, was lost or was broken and the mother’s failure to take the initiative and maintain contact with the Society during these times;

i) The mother’s lack of follow through with programming to which she was connected by the Society, including, subsidized housing, Choices and Changes, Alcohol Drugs and Gambling Services (“ADGS”), Parent Adolescent Conflict (“PAC”), Womankind and Violence Against Women (“VAW”); and,

j) the mother’s sporadic and inconsistent access to M.A.C. and A.S.C. resulting in her access being suspended on four occasions the most recent of which is August 22, 2017 and continuing to date—the mother last saw the children on July 25, 2017.

[50] Sarah Guhl was the Family Services Worker (“FGSW”) for this family from December 19, 2014 until February 25, 2016. In her affidavit, sworn October 18, 2017, she stated at paragraph 309:

During my carriage of the file, the mother lacked engagement with the Society toward addressing the protection concerns. The Society continued to be concerned the mother was using substances, the mother continued to engage in an unhealthy relationship with the father, the mother remained transient, the mother continued to struggle with mental health concerns and access to [M.A.C.] remained inconsistent and sporadic. . . . The mother did attend a residential program, but did not continue with services to maintain her abstinence once this program was completed. It was the Society’s position at the time, that the mother would require an extensive period of demonstrated commitment to substance use treatment and engagement with long term mental health services for [M.A.C.] to return to the mother’s care. Given that [M.A.C.] required permanency, the mother would not be in a position to be considered a stable caregiver for [M.A.C.]

[51] Heather Cowan is the current FSW having assumed carriage of the file on February 25, 2016. She stated at paragraph 39 of her affidavit sworn October 23, 2017:

During the course of my involvement there have been persistent concerns with my ability to contact the mother. I did not have any direct contact with the mother from February 25, 2016 (when I took carriage of the file) to June 2016. The mother’s phone was frequently out of service, lost or broker and she did not appear to take the initiative to find other ways to stay in contact with the Society. Between approximately late June 2016 and March 2017 this did improve and the mother was easier to reach, would regularly attend for access visits and meetings with the Society and would call with updates on her progress in addressing the protection concerns. Starting approximately late March 2017, this deteriorated and the mother was, again, difficult to get in contact with, frequently did not have a working phone and was regularly missing access visits with her children. Between July 25, 2017 and October 3, 2017, the mother had no contact with the Society.

[52] At paragraph 40, Ms. Cowan stated:

Ease of communication with the mother appeared to fluctuate based on her overall stability and well-being. As my concerns increased about her suspected drug use, conflict with her daughter [N.C.], the condition of her home, her general mood and well-being and her attendance at access, she became more difficult to get a hold of and evasive or defensive in her conversations with me.

[53] At paragraph 460, Ms. Cowan stated:

During the Society’s numerous involvements with the mother, she has had [sic] shown some periods of time where she appeared more stable and seemed to be providing good care of the children. Unfortunately, these periods of stability were not long standing and previous protection concerns resurfaced necessitating the Society’s intervention. The mother has not always been open about what was going on in her life making it, at times, difficult for Society workers to get an honest picture of what was happening with the children. This lack of transparency impacted the Society workers ability to fully assess the overall risk to the children and understand their exposure to dangerous and potentially traumatic experiences.

[54] At paragraph 462, Ms. Cowan stated:

During the course of my involvement, I have continually encouraged the mother to engage in counselling, mental health treatment and substance abuse programming. The mother does not appear ready to engage in these services or even really acknowledge that she needs these services. This significantly impacts my assessment that the mother will not be able to make the real, substantive and sustained change required for the Society to feel confident that the children would be safe and have their needs met in her care.

[55] At paragraph 463 and 464, Ms. Cowan spoke about the mother’s access and its benefit to the children:

Further, the mother’s access with the children has been put on hold on four separate occasions since April 2017 for a combination of either being late, suspicion she was attending for access under the influence or non-attendance. The mother has not seen the children since July 25, 2017 and I have had to seek her out to attempt to understand her position as to her children. This is not the first time the mother has disengaged with the Society or her children.

Due to the mother’s long term instability, it is the Society’s assessment that the children require permanency, and, to achieve this, it is in the children’s best interests that they be made Crown Wards. Further, as a result of the mother’s inability to be consistent and reliable, the Society cannot support the children’s ongoing access with her. This Society is not confident the mother would attend for access, be sober or in the right frame of mind to be around the children. [M.A.C.] has already expressed that she thought the mother was dead, when she did not see her and it [sic] unlikely, at this time, the mother would be able to offer the children any predictability or consistency such that it would enhance their overall wellbeing or sense of security. There is no question as to the mother love for her children or her wish to be a positive presence for them; however, her long term involvement with the Society shows this alone is not enough and it is my assessment that access would ultimately be for her benefit and not for the benefit of the children.

Findings of Fact

[56] Relying on the Society’s affidavit evidence and the Request to Admit, I make the following findings of fact:

a) the mother was born on June 25, 1978 and is now 39 years of age;

b) the father was born on November 10, 1982 and is now 35 years of age;

c) the mother has three older children, who are not subject to this proceeding;

d) the three older children are N.C. now 20 years old, A.C. now 19 years old, and N.C. now 14 years old;

e) the mother was involved in child protection proceedings regarding her older children from 2005;

f) the older children were placed in the care of their maternal grandparents and were out of their mother’s care from June 2005;

g) the maternal grandparents secured a custody order for the two oldest children and a joint custody order with the paternal grandmother for the youngest child in November 2008;

h) the mother’s motion seeking the return of the children under the Children’s Law Reform Act (“CLRA”) was granted in June 2012 – the mother’s motion was not opposed by the Society, maternal grandparents or paternal grandmother;

i) when the three older children returned to the mother’s care, she was also caring for M.A.C. who had been in her care from her birth in October 2010;

j) in November 2012, the Society began receiving reports regarding the mother’s suspected drug use, conflict in the home and M.A.C. being left alone or unsupervised; while the initial concerns were not verified similar concerns continued to be reported along with concerns of the mother’s mental health, lack of follow through with recommended services and her ability to care for the four children;

k) there was a lot of conflict in the home reported by neighbours and police intervention was required – the conflict was between the mother and the older children and the mother and the father who regularly visited the home;

l) the mother admitted to using ecstasy occasionally and cannabis in January 2014;

m) the mother participated in a drug test on January 30, 2014 and the results were positive for methamphetamines, amphetamines and opiates;

n) the Society made a safety plan with the mother and the maternal aunt and maternal grandmother were supports;

o) the mother was to ask her doctor about counselling and random drug testing and attend ADGS;

p) the mother did not follow through with any counselling or treatment, although she attended one appointment with ADGS on March 19, 2014;

q) in late March 2014, the mother agreed to place the children in the care of family until she was able to produce negative or steadily decreasing drug tests;

r) the mother agreed to random drug testing;

s) in June 2014, the mother tested positive for morphine and at that point refused to attend for random or on demand drug testing;

t) in September 2014, the mother admitted to using drugs four times over the summer, when none of the children were in her care;

u) the mother failed to pick up M.A.C. from school on September 30, 2014;

v) the school reported the mother attended late to pick up M.A.C. the previous afternoon, was incoherent and appeared to be under the influence of something;

w) the worker made arrangements for M.A.C. to stay with the maternal aunt and attended the home to find only A.C., age 15 and N.C., age 11 home alone;

x) N.C. advised the mother had not returned home the previous evening and he and M.A.C. had been alone all night;

y) A.C. showed the worker where the mother kept her drug paraphernalia in the home and reported the mother had shown him her ecstasy, when she was high;

z) as the worker was driving N.C. and M.A.C. to the maternal aunt’s home, N.C. directed the worker to a place he thought the mother might be;

aa) the mother was present at this location and clearly under the influence of something;

bb) the mother agreed N.C. could be placed with the maternal aunt, but, did not inquire about M.A.C.;

cc) neither N.C. nor M.A.C. have been in the mother’s care since that time;

dd) from that time through the end of 2014, the Society received reports from the mother directly and her family members that she was continuing to use drugs;

ee) the mother was evicted from her apartment in April 2015 and moved from shelter to shelter or accessed various detox beds;

ff) the Society had difficulty locating the mother;

gg) the mother completed a 5 week residential treatment program at Womankind from July 27 to August 27, 2015;

hh) the mother registered for the 2 year after care program, but, only attended one time;

ii) after a neighbour’s report the mother appeared to be under the influence, police attended her home and she admitted to using marijuana;

jj) in January 2016, the mother’s landlord reported an incident between the mother and one of her older children, who had been visiting her and the landlord reported seeing drug paraphernalia in the mother’s apartment;

kk) the mother was evicted in early 2016; the landlord reported frequent police activity and suspected drugs at the mother’s home;

ll) the mother did not maintain contact with the Society between February and June 2016;

mm) when the worker reconnected with the mother in June 2016, the mother was living in a shelter and pregnant with A.S.C.;

nn) since A.S.C.’s birth in September 2016, the mother has not maintained stable housing, has not been able to establish she is no longer using drugs, and, has refused to complete drug screens;

oo) the mother had no contact with the Society between July 25, 2017 and October 3, 2017;

pp) the mother has not seen either of the children since July 25, 2017;

qq) the worker met briefly with the mother at her home on October 3 and 5, 2017 and November 9, 2017;

rr) on October 3, 2017, the mother’s apartment front door was broken; the worker had trouble following the mother’s comments;

ss) the worker attended on October 5, 2017 to have the mother sign forms confirming A.S.C.’s birth information; the mother refused to sign the form without speaking to her lawyer;

tt) the mother did not ask the worker about resuming access with M.A.C. and A.S.C. during these brief meetings;

uu) the worker went to the mother’s home on November 9, 2017 to obtain the mother’s consent for the foster parents to cut A.S.C.’s hair; the front door to the mother’s apartment had been nailed shut from the inside; the mother was using a window to get in and out of her residence; the mother said the heat had been turned off; she refused the worker’s suggestion she go to a shelter;

vv) the mother agreed to meet with the worker at the agency the next day to receive bus tickets;

ww) the mother did not attend the meeting on November 10, 2017;

xx) M.A.C. has not been in her mother’s care since September 2016;

yy) A.S.C. has never been in his mother’s care except for a few days after his birth before he was discharged from the hospital;

zz) the father has not had access to M.A.C. since June 2016;

aaa) the father has never had access to A.S.C.;

bbb) M.A.C. has been in the care of the Society for 17 months, since June 22, 2016;

ccc) M.A.C. has not been in her mother’s care since September 30, 2014;

ddd) M.A.C. was placed with her maternal aunt from September 30, 2014 until December 18, 2015 and then with her paternal aunt and uncle from December 18, 2015 until June 22, 2016; both of these placements were with the mother’s consent;

eee) A.S.C. has been in the care of the Society for a cumulative period of 12 months (September 30, 2016 to March 7, 2017 and April 4, 2017 to date);

fff) A.S.C. was placed in the maternal grandparents care from March 7, 2017 until April 4, 2017;

ggg) M.A.C. has been in the same foster home since June 22, 2016;

hhh) when A.S.C. came into care he was placed in the same foster home as M.A.C. and except for the short period when A.S.C. was in the maternal grandparents care, the children have continued to be together in this foster home; and,

iii) the foster parents want to adopt the children.

Society’s Submissions

[57] The Society submits there is no triable issue in this matter and that the result at trial is a foregone conclusion.

[58] The children’s situation needs to be finalized as soon as possible in their best interests.

[59] The protection concerns existing when the Society’s latest involvement began have remained constant in that the Society has received no evidence that the mother has addressed her mental health issues or her substance abuse issues.

[60] The children have been in care too long and are entitled to permanency and stability.

[61] The Society relies on the recommendations of Dr. Daniel Ashbourne in his PCA dated June 28, 2017 and the recommendations of Dr. Benjamin Klein, Developmental Pediatrician in his reports dated February 13, 2017 and August 23, 2017.

[62] The Society submits that the cycle must be ended. The mother’s three older children and M.A.C. have experienced significant disruptions in their lives as they were moved from their mother’s care to the care of family members and for the three older children returned to the their mother’s care for short periods of time and then returned to the family placements. A.S.C. has not experienced these disruptions as he has been in foster care except for the brief period of three weeks he was in the care of the maternal grandparents.

[63] The Society submits there is ample evidence to support a finding the Society has explored and attempted less intrusive alternatives to Crown wardship through these family placements.

[64] Further the Society submits the mother’s long standing struggle to address the protection concerns, deal with her mental health issues and address her substance abuse issues is persuasive evidence that the mother is not likely able to make the necessary changes to be in a position to parent her children in the near future.

The PCA and Dr. Ashbourne’s Recommendations

[65] Dr. Ashbourne was asked to provide an opinion as to:

Whether the mother is capable of caring for one or both of the children in a way that will meet their ongoing needs and not place either child at risk of harm

[66] Dr. Ashbourne’s response is:

[The mother] loves her children and would not knowingly place them at risk. She can show the ability to parent one or two children for short periods of time but is inconsistent, unreliable and unpredictable which is not appropriate when caring for children. This assessor is not convinced she can run a stable, loving, structured home and ensure the child or children in her care are cared for adequately or consistently. [M.A.C.]’s poor dental care and significant dental work required when coming into care is a testament to poor nutrition and inadequate caregiving by those responsible for the little girl when she was younger. [The mother] blames others and takes no responsibility for it happening, whether she was directly involved in poor parenting or unable to parent and relying on others to meet her child’s needs due to her own struggles in her life and substance abuse. The assessor worries this pattern would resurface again for [M.A.C. or A.S.C] or both children if they were being cared for by [the mother]. Thus, the assessor does not see either child doing well alone or together back in the care of [the mother]. Furthermore accidental rather than deliberate injury to either child is more the concern as her pattern in the past has been to rely on others to help raise her children and to not always be there when needed (failing to get a child from daycare) resulting in someone else needing to step in over the short or long term.

[67] Dr. Ashbourne was also asked to provide his opinion of:

The need for and likelihood of success of clinical interventions for observed problems

[68] Dr. Ashbourne’s response is:

[The mother] is to be commended for her efforts at Womankind and in the treatment work at that time. Although substance abuse dependence is a life-long struggle given the young age at which she began using drugs, some follow-through with treatment was noted. What is concerning to this assessor, along with the ongoing risk of relapsing, is that this client does not wish to address her extensive trauma history in counseling or the significant anger that lies just below the surface and which erupts quickly when disappointed or frustrated. Counseling might be able to help her deal with her disappointment in herself and others, reduce her anger and outbursts, enable her to begin to see the perspective of others (not just her own viewpoint) and lead to a better ability to maintain healthy relationships with family and friends. Healing those rifts might strengthen her support networks and enable others to see her in a different light and perhaps reduce her isolation and gain appropriate assistance from others. Without counselling she runs the risk of falling into further unhealthy relationships that would place herself and her children at risk. Currently, [the mother] does not wish counseling or see the need for it. The assessor noted she did not even check with her family doctor about her medications as recommended by the assessor during the evaluation.

[69] I accept and rely on Dr. Ashbourne’s findings, conclusions and recommendations.

Dr. Klein’s Recommendations for M.A.C.

[70] Dr. Klein participated in a case conference on February 13, 2017 about M.A.C. with the Society worker and the foster mother focused on the following concerns:

a) Emotional/behavioural problems;

b) “Dark dreams”, talking about blood, talking about self-harm, self-harm (punching self) often before [sic];

c) [M.A.C.] has disclosed multiple episodes of exposure to violence and sexually inappropriate acts: reports history of verbal abuse by parents; reports fantasies of living with mother as a child.

[71] Dr. Klein stated M.A.C.’s frequent “agitation/dark thoughts” are likely symptoms of Post Traumatic Stress Disorder (“PTSD”) and features of “A type” insecure and “pathological pleaser” social emotional delay.

[72] Dr. Klein stated he considered the child to be at very high risk of poor psychosocial outcomes because of trauma effects on development and PTSD.

[73] Dr. Klein recommended the child receive self-regulation training with a mental health therapist as well as that her visits with her mother be closely supervised in order to cue, model and shape healthy parent-child interactions.

[74] On August 23, 2017, Dr. Klein conducted a development pediatrics assessment of M.A.C.

[75] Dr. Klein set out in his report his impression, diagnosis and recommendations:

IMPRESSION (FORMULATION)

Very low frustration tolerance (i.e. self-regulation), intermittent impairing difficulty with over inhibition, and disinhibition needing support and redirection. She has episodes of extreme dysregulation when she feels she has done something wrong. This is consistent with emotional dysregulation and Post Traumatic Stress Disorder symptoms in the context of history of chronic early adversity. Social skills deficiency appears to be improving over time. I would consider her at risk of poor psychosocial and mental health outcomes; “hyperactivity” levels appear to fluctuate and executive functioning skills by assessment are consistent with typical abilities; this is not consistent with Attention Deficit Hyperactivity Disorder.

Reading and math abilities are delayed. This is especially concerning given the amount of remediation work that has been done and the emotional development delays associated with environmental adversity (i.e. issues associated with child welfare involvement.

DIAGNOSIS:

Neurodevelopmental Disorder Associated with Specified Exposure (Complex Trauma)

Post Traumatic Stress Disorder

Reading Delay

Math Delay

RECOMMENDATIONS/PLAN:

The most critical component for management at this time is to continue in a stable, sensitive home. These special developmental needs require parenting skill beyond that required for typically developing children, for example calmness, sensitivity and problem-solving required to manage emotional and behavioural difficulties. [M.A.C.] requires modelling of healthy self-regulation and social interactions in the home environment as an ongoing therapeutic strategy.

For children with this developmental profile and history of exposures, I expect that a long term, high level of skilled caregiving (i.e. parenting) is required as the core therapeutic measure. I recommend placement with caregiver(s) who have a good understanding of children with special developmental needs (i.e. social-emotional functioning and vulnerabilities), physical capabilities necessary to provide supervision given child’s activity level and level of personal organization to use proactive parenting strategies and day-to-day logistics of providing needs when parent-child interactions are expected to be challenging). Active modeling and supporting social interactions with both adults and other children is required to mitigate social developmental risk.

I strongly caution against placement with any caregiver who has difficulties affecting their own behaviour or self-regulation (e.g. on-going difficulties associated with personal history of trauma, substance abuse, cognitive disability or mental illness), because of the centrality of a therapeutic parent-child interaction in the rehabilitation of a child with social-emotional developmental delay/disability, especially in the absence of ongoing, intensive in home support by a therapist or worker skilled in parent-child interactions.

Emotional-behavioural symptoms (or even normal behaviour) in children can be very stressful by nature for caregivers at a time in which the child with social emotional delay requires calmness, consistency and recognition of cues to develop optimally in the long-term. For parents with social-emotional functioning difficulties, parenting situation can trigger behaviours in the parent (e.g. becoming hostile or disengaged when a child is upset or non-compliant due to post traumatic stress disorder type symptoms), which can undermine a child’s developmental rehabilitation.

[M.A.C.] requires ongoing reading and math support to maintain gains. I consider her at high risk of school difficulties.

[76] I accept and rely on Dr. Klein’s assessment, diagnosis and recommendations.

The Law and Discussion

[77] The statement of law at Part III of the Society’s factum is correct and I rely upon it. I have reviewed the case law provided by the Society.

[78] The CAS requests an order for summary judgment for a final order without a trial, making the children Crown wards without access for the purpose of adoption.

[79] The court must focus on the children, their needs, and their right to have their situation resolved. They are now in limbo and are entitled to permanency.

[80] I find the Society has met the legal requirements for the order requested and there is no realistic possibility of an outcome other than an order that the children be made Crown wards. I make this finding relying on the facts, the length of time the children have been out of their mother’s care and the law. I find that there is no genuine issue for trial and that it is in the best interests of the children to have their situation finalized.

[81] I have considered the best interests of the children and specifically the factors enumerated at s.37(3) of the CFSA. In applying the best interests test, I have tried to maintain a child-centered focus bearing in mind the paramount purpose of the CFSA as set out in s.1. I have considered the statutory path outlined in the CFSA.

[82] As noted above the mother has not filed any affidavit material in response to the Society’s MSJ. She has not provided any evidence which could form the basis of a genuine issue for trial.

[83] Rule 16 of the Family Law Rules (“FLR”) governs summary judgment motions in child protection cases.

[84] The test for summary judgment is whether there is a genuine issue requiring a trial. No genuine issue for trial results where there is no realistic possibility of an outcome other than the relief sought by the moving party.

[85] The Respondents, must set out, in affidavit or other evidence, “specific facts showing that there is a real issue for trial”, Rule 16(4.1). Therefore, once the moving party establishes that there is no genuine issue of material fact on the evidence presented, the onus shifts to the responding party to establish his or her claim as having “a real chance of success”: North America v. Gordon Capital Corp. (1999), 178 D.K.R. (4th) 1 (S.C.C.).

[86] Mere denials or bald allegations are not enough, nor are claims that the evidence of the moving party would not withstand cross-examination at trial sufficient: Children’s Aid Society of Toronto v. M.A. 2002 CanLII 53975 (ON CJ), [2002] O.J. 2371 (O.C.J.).

[87] The court must not speculate as to the evidence the mother may call at trial.

[88] On a motion for summary judgment, the Respondents must put his/her best evidentiary foot forward and set out in his/her affidavit the facts to establish a genuine issue for trial. A respondent to a summary judgment motion will succeed in demonstrating that a genuine issue for trial exists by adducing evidence that tends to show a different state of facts from those relied on by the CAS, or by showing that there is no evidence on a material fact: R.A. v. Jewish Family and Child Services [2001] O.J. No. 47 (S.C.J.). And see Children’s Aid Society of Toronto v. C.H. 2004 ONCJ 224, [2004] O.J. No. 4084; Children’s Aid Society of Hamilton v. C.R. and B.W. (January 9, 2006) Hamilton C731/03; and Catholic Children’s Aid Society of Hamilton v. P.B. and K.O. Sr. (December 8, 2008) Hamilton C3-07.

[89] In the consideration of whether there is any genuine issue for trial as to the best interests of the children, the time limits imposed by the CFSA are critically important. If the parents require a lot more time to deal with their issues and put themselves in a position to parent the children, with the result that the court cannot order the immediate return of the child, the outcome of the trial is a foregone conclusion, and there is no genuine issue for trial. See J.C.J. –R. v. Children’s Aid Society of Oxford County 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208; Children’s Aid Society of Hamilton v. C.R. and B.W. supra; and Children’s Aid Society of the Regional Municipality of Waterloo v. R.S. 2000 CanLII 22902 (ON CJ), [2000] O.J. No. 4880.

[90] Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The parent’s chance to correct parenting inadequacies must be balanced with the child’s rights. The children cannot wait indefinitely for the parents to change. The children cannot be allowed to drift in an uncertain situation without appropriate attention being given to permanency planning especially where the prospect of change in the parents is unlikely given the history. See Children’s Aid Society of Toronto v. Robin H. and Michael N., supra, 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.); Children’s Aid Society of Toronto v. S.A.C. 2005 ONCJ 274, [2005] O.J. No. 2154; and Catholic Children’s Aid Society of Hamilton v. P.B. and K.O. Sr., supra.

[91] The court has a duty to take a “good hard look” at the evidence to determine whether there are specific facts to determine a triable issue. The court may dismiss the motion, rule that only certain issues require a full hearing or determine the entire application: B.(F.) v. G.(S.), 2001 CanLII 28231 (ON SC), [2001] O.J. No. 1586 (Sup.Ct.J.).

[92] I appreciate the amendment to Rule 16 which allows me to make credibility findings and draw reasonable inferences; however, in the circumstances of this case, I find it unnecessary to do so.

[93] There is no factual issue requiring a trial.

[94] There is no evidence upon which the court could find there is any likelihood the mother will be in a position to assume full time care of the children in the next short while. I am persuaded by Dr. Ashbourne’s opinion that sustained change is unlikely because the mother does not accept that she needs to make changes and does not accept any responsibility for the situation in which her children have been placed.

[95] I am also persuaded by the fact that the Society has worked with the mother for a significant period of time with no sustained change despite the extensive services, supports and programming offered to her. For whatever reason, the mother simply was not able to take advantage of the opportunity to make changes in her life for her own well-being as well as that of her children.

[96] In determining the children’s best interests, the court must assess the degree to which the risk concerns that existed at the time the Society commenced its application still exist today. They must be examined from the child’s perspective. Children’s Aid Society of Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165.

[97] I am satisfied the protection concerns have remained constant, as I noted above.

[98] In Children’s Aid Society of Toronto v. Robin H. and Michael N., 2000 CanLII 3158, 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.), Justice Heather L. Katarynych dealt with a motion for summary judgment of a status review application seeking Crown wardship of the two year old child, without access for the purpose of adoption. Justice Katarynych stated at paragraph [14]:

[14] The adjudication of whether there is a genuine issue for trial must be undertaken with extreme caution. Under these rules, if the motion evidence does not disclose a genuine issue requiring a trial, the court must make a final order in the application. The motions judge has no discretion to do otherwise, even if the motions judge feels that a party should have his or her day in court.

[99] At paragraph [15], Justice Katarynych stated:

[15] The remedy is a tool with which to 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; see Children’s Aid Society of London and Middlesex v. L.A. and H.C. (no.2) (1999), 93 A.C.W.S. (3d) 855, [1999] O.J. No. 4830, 1999 Carswell Ont 4128 (Ont. Fam. Ct.), per Justice Grant A. Campbell.

[100] At paragraph [17], Justice Katarynych stated:

[17] The court’s function is very narrow in this motion. The task is not to resolve an issue of fact but to determine whether a genuine issue of fact exists. The issue must be germane to the judicial decision required in the case. A “genuine” issue of fact requires that the fact be material to the decision that must be taken in the main litigation. If the result of the proceeding does not turn on the existence or non-existence of the fact that is advanced as a genuine issue, then it cannot relate to a “genuine issue for trial”. See Irving Ungerman Ltd. v. Galanis (1991), 1991 CanLII 7275 (ON CA), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478, 1991 CarswellOnt 370 (Ont. C.A.), at pages 550-552 [O.R.].

[101] And at paragraph 18, Katarynych J., refers to the decision of Justice Henry Vogelsang in Children’s Aid Society of London and Middlesex v. L.A. and H.C. (No. 1) 1999 CanLII 20470 (ON SC), [1999] O.J. No. 5839, 1999 CarswellOnt 4679 (Ont. Fam. Ct.):

[18] In child protection proceedings, the genuiness 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 discernible from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent.

[102] In R.A. v. Jewish Family and Child Service, supra, at paragraph 22, Justice Lane refers to the decision in Bruvels v. Guindon 2000 CanLII 28163 (ON SC), [2000] O.J. No. 875, (S.C.J.),

[22] In Bruvels v. Guindon, a motion by the respondent to dismiss claims for child support for the applicant’s children from a former relationship, the applicant asserted that the respondent stood in loco parentis to the children. Both parties filed affidavits, but the motions judge held that the applicant’s did not set out an evidentiary basis showing the existence of a genuine issue for trial. She had failed to address many of the pertinent points and her allegation alone could not fill the gap. The test of putting the “best foot forward” was adopted.

[103] At paragraph 23, Justice Lane goes on to state:

[23] The inherent logic of the rule imposes on the parents the task of responding to the evidence of the society if they are to avoid an adverse decision. This could be done by delivering affidavit evidence themselves or of others on their behalf, showing a different state of facts from those relied on by the Society. It could be done by showing the Society’s evidence does not address a material fact at all, so there is a gap in the proof. But if the defence is a different state of facts, mere denial cannot be enough to raise a triable issue of fact.

[104] I am satisfied the CAS has worked with the mother and attempted to assist her in addressing the child protection concerns. I rely on the unchallenged evidence of the CAS workers filed in support of the MSJ.

[105] I find the mother has not engaged or cooperated in a meaningful way with the CAS. She has been unwilling or unable to take advantage of the services offered to her to address the concerns and put forward a realistic plan to care for her children. She has not demonstrated she is in a position to resume care of the children in the next short while.

[106] I am satisfied the outcome of the trial is overwhelmingly a foregone conclusion.

[107] I find that the least disruptive alternative for children consistent with their best interests is an order they be made Crown wards.

[108] When children are made a Crown wards, the onus shifts to the party seeking access to show that any access would be beneficial and meaningful to the children and that such an access order would not impair the children’s future opportunities for adoption. CFSA, supra, s.59(2) and (2.1).

[109] I find any order for access to these children will impair their opportunity for adoption. The mother has not offered any evidence. She has not established her access to the children is meaningful and beneficial to them nor has she established on-going access will not impair their opportunity for adoption.

Final Order:

[110] My final order is:

The children: M.A.C. born - 2010 and A.S.C., born - 2016 are made Crown wards, without access for the purpose of adoption and are placed in the care of the Children’s Aid Society.

Justice Cheryl Lafrenière

Date: November 29, 2017

COURT FILE NO.: FC 1674/05

DATE: 2017-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicant

• and -

M.C. Respondent Mother T.P. Respondent Father

M.P. Paternal Aunt

R.B. Paternal Uncle

REASONS FOR JUDGMENT

Lafrenière, J.

Released: November 29, 2017