CITATION: Family and Children’s Services of Frontenac, Lennox and Addington v. J.W. and K.S., 2017 ONSC 7546

KINGSTON COURT FILE NO.: 452/16

DATE: 2017-12-15

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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Family and Children’s Services of Frontenac, Lennox and Addington

Applicant

• and -

J.W. (mother) and K.S. (father)

Respondents

COUNSEL:

Ms. Deborah H. Souder, for the Applicant Society

J.W. (in default) Eve Thériault, for the Respondent K.S.

HEARD: December 13, 2017

ENDORSEMENT ON MOTION FOR SUMMARY JUDGMENT

INTRODUCTION AND ISSUES FOR DETERMINATION

[1] The Society has brought a Motion for Summary Judgment pursuant to Rule 16 under the Family Law Rules, O. Reg. 114/99, seeking the following Orders:

1. An Order granting the Society’s Motion for Summary Judgment on the basis that there is no genuine issue for trial in this matter;

2. An Order finding that the child J.E.S. born […], 2016 continues to be a child in need of protection pursuant to subsections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act;

3. An Order pursuant to section 57(1)(3) of the Child and Family Services Act making the child J.E.S. a ward of the Crown without access and placing her in the care of the Society.

[2] The Respondent mother, Ms. W., did not appear on this Motion and was noted in default on May 11, 2017.

[3] The Respondent father, Mr. S. served and filed an Answer and Plan of Care within this Status Review Application and was provided an extension of time to do so.

[4] A six day trial is set to commence in this matter the week of January 22, 2018.

[5] The father, Mr. S., had counsel with him today at the hearing of this Motion. He has not filed any responding materials disputing the Society’s evidence in support of this Motion for Summary Judgment. He requested an adjournment this morning at the commencement of the Summary Judgment Motion and for oral reasons given on the record and endorsed in the Continuing Record, his request for an adjournment was dismissed and the Motion for Summary Judgment proceeded.

[6] His counsel, Ms. Thériault, made submissions on his behalf and requested that the Summary Judgment Motion be dismissed and this matter proceed to trial. Mr. S.’s position is that there is a triable issue and that issue is the question of the ultimate disposition for this child and whether the presence of a possible kin plan with family outside of the Province is something that ought to be addressed at trial. Despite this position, Mr. S.’s Answer requests that the child J.E.S. be returned to his care under supervision terms.

[7] Statutory findings required pursuant to s. 47(2) were made by this Court on September 16, 2016, as to identity, religion and Native status. The Society investigated the child’s Native status and determined that the child J.E.S. is not entitled to be registered for Native status.

[8] J.E.S. is now 15 months of age. And as of the date of this Motion, she has been in the care of the Society for a total of 456 days. This period of time exceeds the period of one year under the timelines set out in the Child and Family Services Act by 91 days. This leaves only 89 days available under any extension that might have been granted under the provisions set out in the legislation.

[9] The Society’s involvement with this family began in early 2015 when they received a referral from Ms. W.’s mother advising of her pregnancy and expressing concerns relating to mental health and drug use. There is previous involvement of the mother Ms. W. with the Society in relation to her two older children who reside in the care of their father.

[10] The Respondent Mr. S. has two adult stepchildren and one adult biological child, none of whom are significantly involved with the child in issue and who live out of the area.

[11] The most significant concern relating to the protection of this child relates to both parents’ use of illegal drugs. There are also concerns with regard to housing and general inability to provide consistent and appropriate parenting for this child.

[12] There is evidence from the Society that one or both of the parents may be living in either a tent or a hotel up to the time of the hearing of the Summary Judgment Motion. There is evidence from the Society of ongoing drug use by both of the parents as recently as October of 2017. The parents were evicted from housing in late 2016 as a result of drug paraphernalia found in their room.

[13] When J.E.S. was born, she tested positive for a number of illegal drugs including benzodiazepine, methadone, opiates and THC. The Respondent mother at the time of the child’s birth had Hepatitis C and as a result, the child was vaccinated against Hepatitis at birth.

[14] Despite the fact that the child was born with drugs in her system as a result of the Respondent’s mother’s use during pregnancy, both parents objected to the vaccination of the child for Hepatitis for a period of time which delayed the vaccine to be provided to the child within the recommended 1^st month after birth and in my view, further put the child’s health at risk. The child J.E.S. remained in the NICU at the local hospital for a month following her birth in order to address her neo-natal abstinence syndrome. She required morphine to deal with her withdrawal symptoms.

[15] Throughout the course of the Society’s involvement with these parents, urine screens for the parents continue to be positive for illegal drugs.

[16] Hospital staff expressed concern relating to the parents’ conduct while the child was in the NICU. Mr. S. refused to follow directions of staff and was asked on more than one occasion to leave the hospital. There was concern by the hospital staff that the parents attended under the influence of drugs and as a result, Mr. S.’s access at the hospital, in particular, was limited and supervised due to his behaviour.

[17] When the child was discharged to her foster parents she remained on morphine which was administered by them. The child J.E.S. has remained in the same foster home since October 21, 2016 and has formed attachments within that family unit and is thriving.

[18] On January 26, 2017, on the consent of both parents and within the original Protection Application, the child J.E.S. was found to be a child in need of protection pursuant to subsections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act. She was made a ward of the Society for a period of 4 months. This Status Review Application was commenced and returnable initially on May 11, 2017. This is the Application that is before the Court today on Summary Judgment Motion wherein the Society is seeking that the child J.E.S. be made a ward of the Crown without access.

[19] Despite the fact that the Respondent mother has not filed an Answer in the Status Review Application or attended or filed responding materials to this Motion for Summary Judgment, she has continued to exercise some access visits. Mr. S. also continues to exercise some access to the child. Some of these visits are positive and some are not.

[20] Recent access has been unpredictable and unstable. Sometimes the parents do not attend, they attend late, they leave early and are often inappropriate. There was tension and conflict between them when they attended visits together. It is unclear whether the parents are together in a relationship or not. There is evidence that conflict continues in their interaction and that they continue to have housing and substance abuse issues.

Law on Summary Judgment Motion

[21] To succeed on a summary judgment motion, the applicant must prove on a balance of probabilities that there is no genuine issue requiring a trial. "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed": Children's Aid Society of Oxford (County) v. J. (J.), 2003 2388 (Ont. S.C.) at para. 8. Other courts have held that there is no genuine issue for trial when the “outcome is a foregone conclusion” or when there is “no realistic possibility of an outcome other than that as sought by the applicant”: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.,) 1996 7271 (Ont. S.C.) at para. 80; Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC), 61 R.F.L. (6th) 328 (Ont. S.C.) at para. 43. Rule 16 is mandatory; if the court concludes that there is no genuine issue requiring a trial of a claim or defence, the court must make a final order accordingly.

[22] The burden is on the applicant to set out evidence of specific facts showing that there is no genuine issue requiring a trial. However, once the applicant makes a prima facie case, an evidentiary onus shifts to the respondent. The respondent must then point to evidence of specific facts showing that there is a genuine issue for trial: Children’s Aid Society of Northumberland v. K.S., 2012 ONSC 6847, 32 R.F.L. (7th) 87 (Div. Ct.) at para. 28. The respondent must put his/her best foot forward, and cannot rest on mere allegations or denials: Rule 16(4.1) of the Family Law Rules; Children’s Aid Society of Hamilton v. K.F., 2014 ONSC 576 at para. 37.

[23] The court must consider the full evidentiary record, and is entitled to assume that the record contains all the evidence that the parties would present at trial: Toronto-Dominion Bank v. Hylton, 2012 ONCA 614 at para. 5. The evidence tendered must be evidence that would be admissible at trial: Children’s Aid Society of Hamilton v. M.N., 2007 13503 (Ont. S.C.) at para. 30.

[24] Courts must be cautious in granting summary judgment in child protection cases, since the stakes for the family are high, and granting summary judgment deprives the parent of the procedural safeguards of a trial: C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357.

[25] Despite the need to exercise caution in child protection cases, the court must bear in mind that it is not in a child’s best interests for a parent to use the legal process to “buy time” to develop an ability to parent. Children need permanency planning in a timeframe sensitive to their individual needs. In child protection proceedings, the genuineness of an issue must arise from something more than a parent’s heartfelt expression of his/her desire to resume care of the child: Children’s Aid Society of Toronto v. R.H., 2000 3158 (Ont. C.J.) at para. 18.

Genuine Issue for Trial?

[26] The Court must determine if there is a genuine issue for trial with respect to the following:

a) Does the child J.E.S. continue to be a child in need of protection pursuant to subsections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act?

b) Should J.E.S. be made a ward of the Crown without access, placing her in the care of the Society or;

c) Can she be returned to the care of the Respondent father under terms of supervision?

[27] In the case before me, there is no responding evidence from the Respondent father of any kind. There was a consent order finding the child J.E.S. was in need of protection as noted above on January 26, 2017. That protection finding is presumed accurate and in any event, was made on the consent of the parents.

[28] Mr. S.’s Answer and Plan of Care in this Status Review Application acknowledges that the child J.E.S. continues to be a child in need of protection pursuant to subsections 37(2)(b)(i) and 37(2)(g) and Mr. S. has acknowledged in that Answer that a Court Order is required for J.E.S.’s continuing protection. On the evidence, I find that J.E.S. continues to be a child in need of protection.

[29] It is the question of whether there is a genuine issue in relation to the appropriate disposition for J.E.S. that is before me today and whether a Crown wardship order is the least intrusive order that promotes her best interest, protection and well-being.

[30] Based on the evidence before me and the facts of J.E.S.’s life, I find that there is no genuine issue for trial and that a Crown wardship order without access is in her best interest and is the least intrusive option available for her.

[31] It is not in this child’s best interest to be returned to the care of her father even with supervision terms. The factors that I have reviewed and the reasons for that decision are below.

Law on Appropriate Disposition

[32] Once the finding that the child is in need of protection has been made, which in this case has been made on consent, the court must determine what available disposition is in the child’s best interests. Section 37(3) of the CFSA sets out some of the factors that the court can consider in determining what disposition is in the best interests of the child. This list is non-exhaustive, and the court can consider any other circumstance it deems relevant. The factors laid out in s. 37(3) are:

• The child’s physical, mental, and emotional needs, and the appropriate care or treatment to meet those needs;
• The child’s physical, mental and emotional level of development;
• The child’s cultural background;
• The religious faith, if any, in which the child is being raised;
• The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;
• The child’s relationships and emotional ties to a parent, sibling, relative, other member of a child’s extended family or member of the child’s community;
• The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;
• 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;
• The child’s views and wishes, if they can be reasonably ascertained;
• The effects on the child of delay in the disposition of the case;
• 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;
• The degree of risk, if any, that justified the finding that the child is in need of protection; and
• Any other relevant circumstance.

Crown Wardship

[33] A Crown wardship order is the most intrusive order that the court can make in child protection proceedings. The court should only grant Crown wardship with the highest degree of caution, and only on the basis of compelling evidence, after a careful examination of alternative remedies: Catholic Children’s Aid Society of Hamilton v. M.A., 2012 ONSC 267 at para. 21.

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

• That the relationship between the person and the child is beneficial and meaningful to the child; and
• That the ordered access will not impair the child’s future opportunities for adoption

[35] With respect to the first criterion, the person seeking access must demonstrate that the relationship is meaningful and beneficial from the child's perspective — not that it would be beneficial to a parent or family member. The quality of the relationship must be the focus. It will not be sufficient for there to be some positive aspects of the relationship; the relationship must be significantly advantageous. The court must consider the quality of the existing relationship between the person seeking access and the child, and not the potential for a future relationship. Thus, the court should not consider whether a parent might cure his or her parental shortcomings so as to eventually create a relationship that is beneficial and meaningful to the child: Children's Aid Society of Hamilton v. C.G. and S.B, 2013 ONSC 4972 at paras. 331-347.

[36] The second criterion requires that the person seeking access demonstrate that access will not diminish, reduce, jeopardize, or interfere with the child’s future opportunities for adoption. If the court makes an access order, the person with access will have access to the child until the child is placed for adoption. At that time, the access order is automatically terminated, and the person with access has the right to apply for an openness order. The operative question for the court in determining whether to order access to a Crown ward, then, is whether the possibility of an openness order after adoption will impair the child’s opportunities for adoption: Catholic Children’s Aid Society of Hamilton v. M.A., 2012 ONSC 267 at para. 25.

[37] In this case I have no evidence at all from the father on the question of access. The presumption against access has not been rebutted.

Society’s efforts to find an alternative to Crown wardship

[38] The Respondent also submits through assertions of counsel today that the Society has not yet conducted a full and proper investigation into the possibility of placement of the child J.E.S. with kin out of the Province and that this is a triable issue. I find his position to be untenable.

[39] In determining what disposition to make after a child has been found in need of protection, the Court is required to ask the parties what efforts the Society has made to assist the child before intervening through legal action.

[40] Similarly before making a Crown wardship order, I must first consider whether it is possible to place a child with a relative, neighbour, other member of the child’s community. I am satisfied that the evidence before me from the Society has made satisfactory efforts to locate family members and alternative placements for J.E.S.

[41] Consideration has been given to placing the child with members of her family outside of the Province. I find that there is no suitable other placement for J.E.S. There is also evidence before me that such a plan would provide a greater disruption to the child than the preferred plan of the Society which is to have the child adopted by her current foster family.

[42] I refer to the Children’s Aid Society of Algoma v. R.M. (2001), 2001 25594 (ON CJ), 18 R.F.L. (5th) 36, (Ont. Prov. Ct.) the court stated at para. 64:

… the society investigation should be full and comprehensive and, I suggest, impartial. The society has been likened to an arm of the state and, as such, has a duty to present all the relevant evidence, including that which may not support its claim in the proceeding.

[43] The court in Algoma also outlined six non-exhaustive obligations a Society has in every case, at para. 35:

• The society has an obligation to conduct a thorough investigation before acting
• The society has an obligation to consider alternative measures for protection of children before proceeding to court
• The society has an obligation to treat all clients fairly and equally and with as much dignity as possible
• The society has an obligation to continue its investigation up until the time of a final court determination in a vigorous, professional manner
• The society has an obligation to reassess its position as more information becomes available
• The society has an obligation to ensure that its workers are skilled in the performance of their roles

[44] In Children’s Aid Society of the Regional Municipality of Waterloo v. Z.B., 1996 4742 (Ont. C.J.), the court described some of these duties in this way:

As part of its duty to act with fairness and reasonableness in carrying out its statutory responsibilities a society must exercise good faith, due diligence and reason in its investigations. A society is not free to assume that "if there is smoke, there must be fire".

An ordinary person perceives a society as having acting fairly in the following circumstances:

(a) before launching a court proceeding, the society has undertaken a thorough investigation on allegations or evidence of a child's need for protection;

(b) as part of its thoroughness, the society has recognized and acted on its duty to look beyond an allegation for corroboration or independent evidence of it;

(d) the society has demonstrated its openness to any version of the events that is offered, including the version offered by the person against whom the allegation is made;

(f) the society has reassessed its position as more information becomes available, even if a court hearing is in session at the time; in short, it has continued its investigation up to the time of a final court determination of the alleged need for protection, and done so in a vigorous professional manner.

[45] I am satisfied that the Society has met its obligations, that they have considered all reasonable options for this child as they are required to do and that the order requested in the Summary Judgment Motion is in fact the least intrusive and best order for this child.

Best Interests Test

[46] Pursuant to s. 65 of the CFSA, the test in a matter such as this, which is the Status Review Application, is the best interest test as set out and based on the factors found in s. 37 of the CFSA. I have reviewed the evidence under each of the factors contained at s. 37 of the CFSA.

[47] I recognize that s. 37(3) is a non-exhaustive list of factors. I have looked in particular at the first two factors set out in s. 37 which address:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs and;
2. The child’s physical, mental and emotional level of development.

[48] The affidavit evidence of the Society confirms that the child J.E.S. is a healthy girl who is meeting her developmental milestones and she does not have special needs. She is very young and it is crucial for her to have consistent and stable parenting by parents who are able to meet her needs on an ongoing basis.

[49] The Respondent father has not demonstrated an ability to consistently attend for access visits and to focus on the child. He has difficulty attending the entire visit for many of the visits. When the parents have attended visits together, there is conflict and tension between them and a pattern of bickering.

[50] It is undisputed by the Respondent father that he and the Respondent mother have had great difficulty obtaining and maintaining appropriate housing on a consistent and steady basis.

[51] One or both of the parents have missed many visits since the Final Order of January 26, 2017. There has been little in the way of steady or predictable attendance by either parent over the course of the past year and I find that this is disruptive to the child and creates significant concern for either parent providing an appropriate level of parenting for J.E.S. on a full-time basis.

[52] Evidence of the parents and in particular the Respondent father having current housing available for himself and the child is completely absent. He has not provided a current plan for his child on this Summary Judgment Motion. There is no information from him as to where he is living. There is no evidence from him as to his current drug use.

[53] I am not satisfied that the Respondent father can parent J.E.S. In fact, I find that the situation of the parents has not improved in any way since the Society began involvement with them and in fact, in many ways, seems to have deteriorated.

[54] There is recent affidavit evidence that the parents were evicted from their residence in August of 2016. Their personal belongings may have been either stolen or ruined and as late as September 13, 2017, the parents had advised that they had no residence and were currently living in a tent in an undisclosed wooded area in Kingston. On November 7, 2017, the affidavit evidence confirms that the parents advised that they had been staying in a hotel for the last few days.

[55] The evidence before me of the Society is persuasive and overwhelming. There is no evidence that either of the parents, and in particular, the Respondent father can provide appropriate care for the child J.E.S. and meet her physical, mental and emotional needs. She is in need of continued stability and care as a very young child and neither parent, in my view, is able to do so.

3. Child’s cultural background

[56] I have considered the third factor relating to the child’s cultural background. The Society has provided evidence that there are two possible placements for the child. One would be with her current foster family, with whom she has resided from approximately seven weeks of age, the other would be potential placement with the paternal family in Saskatchewan. Both of these placements would provide the child with the same culture and traditions as those of her birth family and therefore those background traditions would be respected and maintained in either placement.

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

[57] There is no evidence of any particular religious faith and I have therefore not considered this as a significant factor.

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

[58] The Respondent father’s request to the Court is that the child be returned to him under terms of supervision. There is no evidence in any way of the details of such a plan and a complete lack of acknowledgment of the impact that the current problems faced by the Respondent would have on this child.

[59] It is not enough for him to attend today and say “I’d like J.E.S. returned to me” when he has no evidence of any plan and when the evidence of the Society is so significant and convincing that drug use of the Respondent father continues, housing issues remain a challenge and there has been no improvement in either parent’s ability to appropriately care for this child and address her needs. One or both of the parents at various times appeared disengaged and inattentive during the visits. There is significant concern raised as to agitated and restless behaviour on the part of Mr. S. When Ms. W. has attended the visits, she has presented with rapid speech, sweating profusely and inattentive.

[60] The Society notes quite clearly that there are positive aspects to the visits that Mr. S. and Ms. W. have had with J.E.S. They have showed affection toward her. When they are able to focus, they are able to attend to her physical needs such as feeding and diaper changes and are able to engage with her in play. They do, when focused, bring snacks and address her in a child friendly and loving manner.

[61] There is no doubt that the parents love J.E.S. The evidence before me, however, does not convince me that return to the father would provide her with a secure place as a member of a family. The father has no plan before this Court to care for J.E.S., address her developmental needs and provide a secure home for her.

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

[62] This child J.E.S. as noted above has remained within the same foster family since October of 2016. In addition, she has a relationship with her maternal grandmother and the foster parents have indicated that they are prepared to continue facilitating contact not only with the maternal grandmother but also with the parents in the future.

[63] The foster parents have maintained a relationship with the maternal grandmother and other members of the extended family including the parents and that they hope that these relationships will form the basis for ongoing contact should they be in a position to adopt the child J.E.S. in the future.

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

[64] Were the child J.E.S. to be returned to the care of the father or be placed with kin outside of the Province, her continuity of care would be disrupted. The Society asserts that if J.E.S. is made a Crown ward and adopted by her current foster family, this would be the very best option to continue to provide to her the life and resources that have allowed her to flourish. I find that this position is the most reasonable and on the evidence before me, is the only option available that serves her best interests.

[65] The foster parents and one or both of the parents have attended many of the child’s medical appointments. There is evidence that communication between them is positive and that they are able to discuss between them issues related to the child’s care.

[66] The Respondent mother has indicated as late as October of 2017 that she wishes the child to remain in foster care and not be moved to Saskatchewan. She has confirmed with the workers that the biological family members have developed a relationship with the foster family and that she hopes for post-adoption contact. This is in my view a realistic and child-focussed expression of the mother.

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.

[67] There is no plan from the Respondent father before the Court. He has simply requested that the child be returned to him under terms of supervision. During the course of the initial Protection Application and in the Respondent father’s Answer, he indicated that he was prepared to engage in services to address protection concerns in order to facilitate the child J.E.S.’s return to his care.

[68] While the Respondent father has expressed high hopes of improving his situation, that simply hasn’t happened on the evidence. While Mr. S. registered for a number of programs including Thinking Things Through and with Addictions and Mental Health Services, he did not attend any sessions. While both parents continued with the Methadone Program through ACT, neither of them signed up for the Cognitive Behavioural Therapy that was recommended. While Mr. S. started the PARS program, he did not complete it. While both parents signed up for the Bounce Back Parenting program through Better Beginnings, they did not attend the first four sessions so could not continue.

[69] Both parents have failed to engage in necessary services. Both parents have failed to improve their situation. I find both parents continue to use illegal drugs and both parents continue to have an ongoing problem maintaining stable and steady and safe housing for the child.

[70] Both parents have admitted that there were times that they were addressing their drug problems. Other than the Supervised Access group on Fridays, Mr. S. has not followed through in order to improve his situation and to provide a plan for J.E.S. that is consistent with her best interest.

[71] The evidence notes that as late as of October 17, 2017, the Respondent Mr. S. has not engaged with the ACT Methadone Clinic since October of 2017 and that in October, he had drug screens that tested position for illicit substances.

[72] Neither one is in any position to parent this child. The Society’s evidence has convinced me that there is no triable issue relating to what should happen for J.E.S. The evidence of the Society is more than sufficient to allow me to make a decision in the best interest of J.E.S. and that is a fair and just result.

10. The effects on the child of delay

[73] J.E.S. is very young. Early permanency planning for her is important and crucial for her long-term development and well-being. The timelines of one year under the Legislation have passed. There is no prospect that the father could improve his situation within the 89 days that remain under the available extensions of time. The length of time that the child has been in care is concerning and there are limited options available to the Court. The Court can only return the child to the care of her father with/without supervision terms or make her a ward of the Crown. Further delay is not in any way in the best interests of this child and a decision must be made.

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 the parent.

[74] I find that J.E.S. would be at significant risk if returned to the care of her father or in fact, either of her parents. The most significant concern that the Society has had with this family has been the use of illegal drugs by the parents and I find that this concern remains unabated and uninterrupted. Neither parent is stable nor has the current ability to provide for J.E.S.’s consistent and safe care.

[75] As to the reliability of the clean drug screens, the evidence of the Society asserts quite convincingly that clean drug screens are obtained more often on days when the parents, one or both of them, knows that the screening is happening and they are scheduled. Almost without exclusion, random drug screens are dirty screens and the parents are found to be positive for use of various substances including THC, amphetamines and opiates.

[76] It is simply not credible that all of the dirty screens are unreliable and the fault of the tester and all of the clean screens are to be accepted. Adding to the lack of credibility on this issue is the evidence that the Respondent father has refused to provide consent to allow the Society to obtain drug screens on many occasions from ACT and on a number of occasions, has provided consent and thereafter withdrawn it. There were long periods of time from March of 2017 until September 2017 when consent was withheld and periods thereafter when the Respondent father discontinued his involvement with the ACT testing.

[77] It is equally concerning that one or both of the parents have at various of times from February of 2017 through to the end of May, 2017 refused to provide samples when randomly requested to do so through the SMAART program.

[78] There is concerning evidence that both of the parents have attended to group access visits smelling strongly of marihuana. And there is also convincing evidence that the maternal grandmother herself continued to report concerns into early 2017 relating to drug use of both of the parents.

[79] As noted, the affidavit evidence of the Society also notes that the maternal grandmother has received information from the parents directly that they are aware when the ACT screens were being done and how much time was necessary in order for them to “pass” and test “clean” during drug screening.

[80] The affidavit evidence of the Society is unchallenged by the father in that he has not prepared affidavit evidence in response to the Summary Judgment Motion.

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

[81] It is my finding that the risk to the child J.E.S. continues and that the initial finding on consent that she was in need of protection continues to date. The risk related to parental drug use, lack of housing and abilities to parent on a consistent, steady basis remain.

DECISION ON DISPOSITION

[82] Best interest consideration under the Child and Family Services Act must focus on the Act’s primary purpose of promoting the child’s best interest, protection and well-being. As this is a Status Review Application and as s. 65(1) of the CFSA governs, this is the test that must be addressed.

[83] In considering all of the factors noted above in s. 37(3), I am satisfied that the Society has fulfilled the onus of showing there is no genuine issue for trial and that the most appropriate order for the child and what is consistent with her best interest is a Crown wardship order without access.

[84] And while I understand this will be very upsetting for the Respondent father and the Respondent mother as well, the need for continuing protection of J.E.S. is not simply a focus on changes or improvements that either the parents may or may not have made but is rather a comprehensive analysis of the child’s best interest and wherein J.E.S.’s best interest may take precedence over parental interests. Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 83 (SCC), [1994] 2 S.C.R. 165.

ACCESS

[85] As to the issue of access following this Crown wardship order, under the CFSA, the Court may make an access order when making a protection order but shall not make a protection order for access to a Crown ward unless the Court is satisfied that the relationship between the child and the parent is meaningful and beneficial to the child and will not impact on the child’s opportunity for adoption. I refer to s. 59 of the CFSA in this regard.

[86] The Children’s Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347 notes clearly that after a Crown wardship order the purpose of access is to preserve or form a relationship that has shown a positive benefit to the child. The onus is on the parent to establish the basis for an ongoing access order.

[87] In this case, the Respondent father has failed to meet that onus. He has not filed any evidence or affidavit materials despite being given ample opportunity to do so. I am not prepared to order access in these circumstances. The relationship between the child and her father, may be beneficial and meaningful to the father. There is no evidence, however, that shows that for the child J.E.S. the access is meaningful and beneficial. And in fact, given the evidence of instability and inconsistency and difficulties leading to conflict and tension during the access visits, I find that the visits themselves are disruptive and lacking in stability for the child.

[88] Based on the evidence that I have before me and considering all of the factors noted above under the CFSA, I find that there is no supervision order that could adequately manage the risks for the child J.E.S. and that to return her to her father’s care would not be in her best interest and would place her at significant risk. I find that while the Respondent parents clearly love their daughter, they have no realistic plan or ability at this time to parent her and it is time for her to have her life stabilized in a consistent way that addresses her needs and allows her to grow and flourish.

[89] In any event, the father did not plead that there ought be a Crown wardship order with access. His pleadings simply indicated that he wanted the child returned to him under terms of supervision.

[90] For the reasons noted above:

1. This shall be a final order granting the Society’s Motion for Summary Judgment as there is no genuine issue for trial.

2. The child J.E.S. born […], 2016 continues to be a child in need of protection pursuant to subsections 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act.

3. Pursuant to section 57(1)(3) of the Child and Family Services Act the child J.E.S. born […], 2016 shall be made a ward of the Crown without access and placed in the care of the Society, for purposes of adoption.

Justice D. Swartz

Released: December 15, 2017

CITATION: Family and Children’s Services of Frontenac, Lennox and Addington v. J.W. and K.S., 2017 ONSC 7546

KINGSTON COURT FILE NO.: 452/16

DATE: 2017-12-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Family and Children’s Services of Frontenac, Lennox and Addington

Applicant

– and –

J.W. (in default) and K.S.

Respondents

ENDORSEMENT ON MOTION FOR SUMMARY JUDGMENT

Swartz J.

Released: December 15, 2017