COURT FILE NO.: C240/12 -03

DATE: 2018/05/30

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT

BETWEEN:

Children’s Aid Society of London and Middlesex

Applicant

• and -

T.S. K.M.

Respondents

Ms. C. Dyck for the Society Respondent father not participating Mr. M. Dupre for the Respondent Mother

HEARD: April 12, 2018

Note: Although this motion was heard prior to changes in the CFSA, the decision was released subsequent to those changes being made and so reference is made to the new Child, Youth and Family Services Act, 2017, (CYFSA) throughout the decision.

McSORLEY J.

Introduction:

[1] The matter before the court involved an amended, amended protection application concerning one child, M-R. A.M.M. C-M, (referred to in this judgment as M-R), born in December 2016. In the application, the society sought a protection finding pursuant to s. 37(2) (b-i) (now s. 74 (2) (b-i)), and an order for Crown wardship (now s. 101(3) extended care).

[2] The matter had been previously scheduled for a Motion for Summary Judgment on March 23, 2018. On that date, the mother was arrested when she entered the court house. She met with Duty Counsel who attended in court on the motion, seeking an adjournment on behalf of the mother. Mitrow J. granted the adjournment, stating in his endorsement:

The mother has filed no material on the Society’s motion for summary judgment; Ms. Barrington met this morning with her client; Ms. Barrington indicates that the mother has a new legal aid certificate. The summary judgment motion was served February 28, 2018 personally on the mother. (Court is advised father is in default having filed no pleadings).

Mother seeks 30 day adjournment; mother not in court as she was arrested on a warrant this morning while at the courthouse and taken into custody. The date and/or prospects of her release are unknown.

This case is on the April/ 2018 trial sittings, starting April 3, 2018. I am not prepared to do anything today to jeopardize the trial date. The child was born December/ 2016, apprehended February 2017 and has been in care since then.

ORDER: 1) The society’s motion for summary judgment is adjourned to the trial judge.

2. At the commencement of the trial it will be up to the Society to decide whether to abandon the motion for summary judgment and to proceed with the trial instead.

3. If the society elects to proceed with the trial, the society should give consideration to filing some or all of its material on the summary judgment motion as part of its evidence-in-chief at trial.

[3] The matter was called for trial on April 12, 2018. When court convened, the mother’s lawyer was present but the mother was not. The mother’s lawyer indicated that he did not know where the mother was. The court granted a short adjournment until 11 a.m. to determine if she was on her way or was running late. At 10:59, the Registrar advised me that Mr. Dupre had reached his client and that she was on her way. I allowed a further half hour adjournment. At 11:30 the mother had not yet arrived. I advised court staff to take their morning break and that I would reconvene court at 11:55 a.m.

[4] When court reconvened, the mother was still not present. Mr. Dupre was directed to go to the second floor (where most family matters are dealt with) to see if his client was waiting there for him. It was also suggested that he check the main floor to determine if she was being held up at security. At 12:08 p.m. Mr. Dupre returned to court and indicated he had not located his client.

[5] At that time, the court decided to proceed with the matter. There are very few places in London that would take a person more than two hours to get from, even if they were walking. Mr. Dupre did not ask for a further adjournment to try to get hold of his client. It should be noted that after submissions were made by both counsel, the time stood at 12:59 p.m. and the mother had still not arrived at court.

[6] The society was ready to proceed and indicated that in accordance with Mitrow J.’s endorsement on March 23, 2018, they wished to argue the motion for summary judgment. Society counsel directed the court to the motion for summary judgment at tab 27, followed by affidavits filed at tabs 28 to 33 of the continuing record. Mr. Dupre indicated he had filed no material on the motion, but was prepared to make submissions on the law.

Background:

[7] K.M. and T.S. are the biological parents of M-R born in December 2016. K.M is also the mother of another child C. The society had extensive involvement with the mother in her role as parent to her oldest child, between February 2010 and August 2014, with protection concerns focusing on her extensive criminal activity, substance abuse and domestic violence. In March 2012 a protection application was commenced regarding C. He was placed with his maternal grandmother. C. was found to be in need of protection and remained with his grandmother under a supervision order, until the order was terminated in August 2014. The grandmother obtained a custody order for the child and he has remained in her care continuously since 2012. The society file was then closed.

[8] T.S has approximately five other children who range in age from approximately 6 to 25 years old. None of these children are in their father’s care. The society has had involvement with these families in the past, with specific concerns related to the father including domestic violence, substance abuse, and criminal activity.

[9] In October 2016, the society was contacted by a social worker at Elgin Middlesex Detention Centre (EMDC), who reported that the mother was currently incarcerated and was pregnant, expecting to give birth in mid-January. As a result of this information and the mother’s unwillingness to work with the society, birth alerts were sent out to area hospitals.

[10] According to the affidavit of Sue McKay, she was contacted by a nurse at Children’s Hospital, London Health Sciences Centre on December 2, 2016 who reported that the mother had given birth to a baby girl. Ms. McKay then attended the hospital to meet with the mother.

[11] The mother reported that she had learned of her pregnancy when she was approximately 4 months pregnant and that she had had some prenatal care. This statement was not confirmed by medical records. The mother had been referred to a specialist and was to have an ultra sound test completed before her appointment. However, the baby was born earlier than anticipated, such that the ultra sound test was not completed and the mother never saw the specialist.

[12] The mother reported to Ms. McKay that she was on the Methadone program and denied using any other drugs since April 2016. She then admitted ongoing marijuana use and confirmed she had no carries of Methadone.

[13] Dr. Devries reported that when the mother arrived at hospital, she appeared to be under the influence of a substance, as were the friends who accompanied her to hospital. When the mother was confronted with this information, she admitted having used Fentanyl prior to attending the hospital because of labor pains.

[14] The mother indicated to Ms. McKay that she wanted to cooperate with the society and do what was necessary to maintain M-R in her care. She proposed that she and the child would live with her friend K.O. K.O. was present and indicated a willingness to have the mother and child reside in her home and to provide as much assistance as was necessary to support the mother’s parenting of the child.

[15] K.O.’s home was assessed as appropriate. The worker reviewed the expectations of the society and both women agreed that K.O. would provide the bulk of M-R’s care; would supervise all of the mother’s contact with the child and would immediately notify the society if the mother left the home with the child; failed to return from an outing for an unexpectedly long period of time; and/or if K.O. suspected any drug use by the mother. The mother and child were discharged from hospital on December 6, 2016 and began residing in K.O.’s home.

[16] K.O. provided for the infant’s primary care and supervised the mother’s interactions with the child. The worker encouraged the mother to access services with Addictions Services Thames Valley (ADSTV). The worker deposed that it was difficult to assess the mother’s drug use during pregnancy as the mother’s reports about her drug use were inconsistent.

[17] In December 2016, the worker spoke with the mother’s probation officer who noted the mother had been having difficulty in complying with the reporting requirement of her probation and that the mother’s addictions continued to present a huge barrier for her. The mother denied all drug use except marijuana and methadone. By January 2017, K.O. was reporting concerns about the mother’s drug use; the influence of T.S. and her increasing periods of absence from the home. On January 16, 2017, the mother admitted to using some unidentified pills. Drug test results showed one time use of Fentanyl and Morphine in addition to methadone.

[18] As a result of the growing concerns, the society determined that working with the mother voluntarily was not sufficient to ensure the child’s safety. A protection application was commenced, seeking six months supervision of the child in the mother’s care. On January 26, 2017, an interim order was made placing the child in the care of her mother, subject to terms of supervision, including a term that all the mother’s contact with the child was to be supervised by an adult approved in advance by the society. At the time of the order, both K.O. and K.O.’s sister, A. were approved to supervise the mother’s contact with the child.

[19] By early February, K.O. started to express reservations about continuing to provide a home and supervision to the mother and her child. K.O. reported she found drug paraphernalia on the floor next to the mother’s jacket that had been easily accessible to K.O.’s children. When asked if she had addressed this concern with the mother, K.O. reported that she had done so, but that the mother had not responded. When the mother was reminded again that the plan for the child to stay in her care was contingent on her refraining from drug use and work to address her addictions, she stated that she had been using daily prior to the child’s birth but was now using “less” which she thought was “better”. At that time, K.O. advised she was no longer willing to have the mother remain in her home. K.O. advised the mother that she needed to remove her belongings by the end of the day on February 3, 2017.

[20] The mother moved out of K.O.’s home and M-R remained with K.O. On February 3, 2017, the mother spoke with the worker about taking the child to a doctor’s appointment, which she reported she had done a day earlier. When asked about this inconsistency, the mother advised that she had lied about taking the child to the doctor the day before. During the conversation the worker noted the mother’s speech was very slow and slurred and that she had difficulty following the conversation, repeatedly asking for clarification and becoming increasingly agitated. She continued to deny any wrong doing and stated that she would be attending K.O.’s home.

[21] As a result of the growing concerns, the society obtained a Warrant and apprehended the child on February 3, 2017. On February 6, 2017, the meconium test results were received, showing positive results for methadone and Fentanyl. The society served and filed an amended protection application dated February 6, 2017, seeking society wardship for six months.

[22] However, in the intervening months from May to November, 2017, the mother continued to be uncooperative and unwilling to provide information to the society; provided no evidence that she was involved with addictions services programs; and refused to work at all with the society, although she has continued to attend her supervised access with M-R. The father had one visit with the child and maintained no contact with the society. As a result of being provided with no information from the parents that they were addressing or had addressed the protection concerns, and given the age of the child and her time in care, the society amended its application again in November 2017, seeking an order for Crown wardship (now extended care).

Position of the Parties:

[23] The society’s position was that they had met the onus showing there was no genuine issue for trial and that the order sought was both necessary to protect the child, was in her best interests; and was the least intrusive order that can be made at this time.

[24] The father filed no Answer nor any material on the motion for summary judgment. He has had virtually no contact with the child and proposed no plan of care for her.

[25] The mother filed an Answer dated March 8, 2017, seeking placement of the child with her. She filed no material on the motion for summary judgment, although her counsel did make some submissions on her behalf.

The Issues:

[26] The issues before the court are:

a) Is there a genuine issue for trial on the following questions:

i) Is the child in need of protection;

ii) If so, what order pursuant to s. 101 should be made in her best interests; and

iii) If extended care is ordered, should there be any access to the child?

The Law:

[27] Rule 16 of the Family Law Rules provides that after a respondent has served an Answer or after the time for serving an Answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made in the case. R. 16(4) provides that the party making the motion shall serve an affidavit or other evidence that sets out specific facts showing there is no genuine issue requiring a trial.

[28] R. 16(4.1) also provides that in response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[29] In 2010, Rule 20 of the Rules of Civil Procedure was amended to give the court the power to weigh the evidence, evaluate the credibility of the parties and draw any reasonable inferences from the evidence filed on motions for summary judgment. Between 2010 and 2015, jurisprudence suggested that Rule 16 of the Family Law Rules did not confer the same jurisdiction to exercise any “expanded” powers and that on a motion for summary judgment brought under Rule 16, the court had jurisdiction to carry out only “stage one” of the analysis contemplated in Hyrniak v. Mauldin, 2014 SCC 7, 2014 CarswellOnt 640, 2014 CarswellOnt 641, [2014] 1 S.C.R. 87, 21 B.L.R. (5th) 248, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 366 D.L.R. (4th) 641, 95 E.T.R. (3d) 1, 37 R.P.R. (5th) 1, 453 N.R. 51, 314 O.A.C. 1, [2014] A.C.S. No. 7, [2014] S.C.J. No. 7 (S.C.C.). See Children’s Aid Society of London and Middlesex v. R.L.T., [2014] O.J. No. 5053, 2014 ONSC 5974.

[30] In 2015 Rule 16 was amended to include provisions that mirror those in Rule 20. The effect of the amendments was that the court was given jurisdiction to apply the expanded evidentiary powers on motions for summary judgment brought under Rule 16 and to apply both the stage one and stage two analyses to the determination of the motion.

[31] According to Hyrniak, supra, there is no genuine issue for trial when a judge is able to reach a fair and just determination on the merits in a motion for summary judgment. If the process allows the judge to 1) make necessary findings of fact; 2) apply the law to the facts; and 3) is more proportionate, more expeditious and less expensive means to achieve a just result, the motion for summary judgment should be granted.

[32] Sherr J. set out a concise analysis of the law on motions for summary judgments in the case of Catholic Children’s Aid Society of Toronto v. L.M. and T.P.R., [2011] O.J. No. 1361, 2011 ONCJ 146, at pages 4 and 5 of the judgment. On motions for summary judgment, the court is required to take a hard look at the merits of the case to determine whether there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial.

[33] Summary judgment motions should proceed with caution, but are not limited to only the clearest of cases. The court must ensure that the best interests of the child are adequately addressed. If the evidence does not raise a triable issue as to where the best interests lie, then those best interests call for a resolution without the delay associated with the trial and the ‘litigation drift’ created by such proceedings. See Jewish Family and Child Service of Toronto v. R.A. and J.G. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No 47, 2001 CarswellOnt 73 (Ont. S.C.). Further, the court is not required to speculate as to the possible evidence or elaboration of evidence that might be available at trial. The court must rely upon and evaluate the sufficiency of the evidence as disclosed in the affidavits filed. See Children’s Aid Society of Toronto v. H. (C), 2004 ONCJ 224 (O.C.J.).

[34] One of the most important reasons to grant a motion for summary judgment is that children deserve answers regarding their future. They should not have decisions about permanency planning delayed for months, or years, while their parents present well intended and hopeful plans about their future care, but are unable to complete the necessary steps to turn their plans into reality. See Children’s Aid Society (Simcoe County) v. T.D., 2012 ONSC 6737, [2012] O.J. No. 5780.

[35] In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the CFSA. Child development does not wait and a child should not be held in limbo waiting for change in a parent that is unlikely to happen. The parent’s right to correct parenting inadequacies must be balanced with a child’s right to appropriate development within a realistic time frame, if damage to the child is to be minimized. See CAS of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853. The court must give paramount consideration to the statutory requirements and the best interests, protection and well-being of the children, which would include, among other factors, as certain a future as possible. See Children’s Aid Society of Algoma v. P. (L.), [2002] O.J. No. 2895 (S.C.J.).

[36] A party answering a motion for summary judgment cannot rest on bald denials; but must put his/her best foot forward and provide evidence of specific facts to show that there is a genuine issue for trial. See Children’s Aid Society of Toronto v. K.T. and C.W., 2000 CanLII 20578, 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.) Assertions of quite improbable things, when completely unsupported by any corroborative, documentary or other evidence, are not sufficient to create genuine issues, see Evans v. Evans (2000), 2000 CarswellOnt 1317 (Ont. S.C.J.), affirmed (2000), 2000 CarswellOnt 3161 (Ont. C.A.). Further, the submission from respondents that the society’s evidence must be tested through cross-examination is akin to the “bald allegation” or “mere denial” referred to in Rule 16(4.1) of the Family Law Rules. See Children’s Aid Society of Hamilton v. M.A., [2007] O.J. No. 2454 (Ont. S.C.J.).

[37] Finally, the genuineness of the issue for trial must arise from something more than a heartfelt expression of desire to be given the opportunity to parent. See Children’s Aid Society of Toronto v. H. (R.), 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.).

[38] Pursuant to rule 16(6) the test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact requiring a trial. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought by the applicant. See Children’s Aid society of Niagara Region v. S.C. and B.M., 2008 CanLII 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5029 (Ont. Fam. Ct.). Not every disputed fact or question of credibility gives rise to a genuine issue for trial – the fact must be material. See Children’s Aid Society of Toronto v. T. (K.), 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736. There also must be some connection between the determination of the disputed fact and the outcome of the trial. If the determination of the issue will have no bearing on the outcome of the trial, it is not a “genuine issue for trial”.

[39] No genuine issue for trial has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”, see Children’s Aid Society of Oxford (County) v. J. (J.), 1996 CanLII 7271 (ON SC), [2003] O.J. No 2208, 139 D.L.R. (4th) 534 (Ont. S.C.J.), and where the “outcome is a foregone conclusion”, see Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (Ont. Gen. Div.), [1996] O.J. No. 3018. No genuine issue for trial exists where there is no possibility of an outcome other than that sought by the applicant. See Children’s Aid Society of Niagara Region v. C. (S.), 2008 CanLII 52309 (ON SC), 2008 CarswellOnt 5929, [2008] W.D.F.L. 5026 (Ont. S.C.J.).

[40] If the court finds that there are no genuine issues for trial regarding a finding of protection, the court must then turn to the issue of disposition. If the court finds that a court order is necessary to protect the child in the future, the court shall make an order under s. 101 of the CFSA in the best interests of the child. Pursuant to s. 101, the court may make one of the following orders:

Supervision order

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

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody 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 a total of 12 months.

[41] When making a disposition order, the available orders are limited by section 122 of the CYFSA. Section 122 sets out the following:

Time Limit

122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph (2) of subsection 101(1) that results in a child being in the care and custody of a society for a period exceeding,

(a) 12 months, if the child is younger than 6 on the day the court makes an order, or

(b) 24 months, if the child is 6 or older on the day the court makes an order.

Calculation of time limit

(2) The time period during which a child has been in a society’s care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1),

(1) An agreement made under subsection 75(1) (temporary care agreement).

(2) A temporary order made under clause 94(2) (d) (custody during adjournment).

Six-month extension

(5) Subject to paragraphs 2 and 4 of subsection 101(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.

[42] If the court makes an order placing a child in the extended care of the society, the final issue that must be addressed is one of access. Section 105 (4), (5) and (6) deal with the question of access to a child who is ordered into extended care. The sections read as follows:

Existing access order terminated if order made for extended society care

(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101(1) or clause 116(1) (c), any order for access made under this Part with respect to the child is terminated.

When court may order access to child in extended society care

(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1) (c) unless the court is satisfied that the order or variation would be in the child’s best interests.

Additional considerations for best interests test

(6) The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interest under subsection (5),

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

(b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.

[43] This section is slightly different from section 59 (2.1) of the CFSA, in subsection (6) (b). Where in the CFSA, the court had to be satisfied that an order for access would not impair a child’s future opportunities for adoption, the new act simply requires the court to consider whether the ordered access will impair the child’s future opportunities for adoption, if the court considers it relevant. The analysis continues to be the same and the case law under the CFSA remains useful.

Analysis:

[44] Issue 1: Is there a genuine issue for trial regarding the question of whether the child is in need of protection?

[45] On the first issue, the society sought a finding of protection pursuant to s. 37(2) (b-i) of the act, now replaced by s. 74(2) (b-i). This section provides:

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

(i) failure to adequately care for, provide for, supervise or protect the child.

[46] In determining the question of risk of harm, the court may look at the evidence regarding need of protection during the time prior to apprehension, at the time of apprehension and subsequent to the apprehension. See Children’s Aid of Hamilton v. M.C., 2003 CanLII 64105 (ON SC), [2003] O.J. No. 1271.

[47] Prior to the birth of the child, the society had had historical involvement with both parents. The mother has an older child, who was removed from her care due to concerns regarding her extensive criminal activity, substance abuse and domestic violence. That child lives with his grandmother. The father has five older children, none of whom are in his care. The concerns related to father included criminal activity, substance abuse and domestic violence. Prior to the birth of the child the mother was not prepared to work voluntarily with the society.

[48] Prior to the birth of the child the mother admitted that she was on the methadone program and that she continued to regularly use marijuana. At that time, the mother had no “carries” of methadone, which generally means her random drug tests at the methadone program showed positive results for drugs other than methadone. Even though the mother was aware of her pregnancy from the fourth month of pregnancy, she continued to use marijuana along with her methadone and just prior to attending hospital to give birth, used Fentanyl. It was also later learned that she had used morphine in mid-November 2016, just weeks before the birth of the child. All of these drugs would have passed through to the child while in utero. The mother was either oblivious to the potential harm that drug use during pregnancy could have on the child, or she was aware and did not care enough to stop her drug use after she learned she was pregnant, for the remaining five months of pregnancy.

[49] There is no doubt that the mother’s parenting history regarding her older child and her drug use during pregnancy raised a risk of harm to the child both prior to her birth and immediately thereafter. However, the society was still prepared to approve a plan that allowed the mother to parent her child under conditions.

[50] Following the birth of the child, the society approved a plan that the mother could keep the child in her care, under specific conditions, including that her contact with the child be supervised by the person she had chosen to live with (K.O.) and that she abstain from the use of drugs. The evidence of the worker was that she encouraged the mother to access services through Addictions Services Thames Valley (ADSTV). The mother reported that she completed an intake appointment on December 15, 2016. On December 21, 2016, the mother reported that her first session with ADSTV was scheduled on January 10, 2017. She did not attend that appointment, but indicated that she had another appointment on January 31, 2017. The mother also denied any drug use except marijuana and methadone. However, the toxicology screens provided by her showed Fentanyl use again in January 2017. As a result of the continued concerns regarding drug use, the protection application was commenced. The child was to remain in her mother’s care supervised by an adult person approved by the society and subject to terms of supervision.

[51] On February 1, 2017 the mother would not confirm that she had attended the appointment at ADSTV on January 31, 2017. She did report that ADSTV’s Heartspace did not have groups available until April 2017 and that she planned to access services elsewhere. In early February, 2017, the worker brought a ‘chaperone’ agreement to the home for A. (K.O’s sister) to sign as the society had approved A. to supervise the mother’s contact with the child. When presented with the agreement, K.O. indicated it would no longer be necessary, because she was not sure that she could continue to allow the mother to remain in her home because she believed that the mother was using drugs. According to K.O. she had found drug paraphernalia next to the mother’s coat that had fallen out of her coat pocket, onto the floor, and that the paraphernalia was easily accessible to K.O.’s young children. When confronted by K.O. the mother did not respond.

[52] The worker then spoke with the mother who neither confirmed nor denied that she was using drugs. The mother also did not provide the toxicology reports she had agreed to give to the worker. The worker advised the mother that the plan for K.O. to supervise the mother’s contact with M-R was contingent on the mother refraining from drug use and addressing her addictions and that her failure to do so would affect the success of the plan. At that point the mother became defensive. The worker recommended residential treatment, but the mother was non-committal, simply, shrugging her shoulders. K.O. then stated that she was not willing to have the mother remain in her home due to her drug use. The mother made a plan to stay with a friend that night, while M-R remained with K.O.

[53] On February 3, 2017, K.O. contacted the worker to advise that she would no longer allow the mother to remain in her home and had told her to remove her belongings. The mother was upset that she could no longer reside with K.O. and threatened to attend the home and take M-R. The worker then spoke with the mother by telephone at which time the mother indicated that she needed to get M-R and take her to her doctor’s appointment. A day earlier, both the mother and A. had told the worker they had taken M-R to her appointment on February 2, 2017. The mother admitted that both she and A. had lied about taking the child to the doctor.

[54] On this occasion, the worker noticed that the mother was speaking very slowly and that her speech was slurred. She had difficulty following the conversation, repeatedly asking for clarification and becoming increasingly agitated. She continued to state that she had done nothing wrong and that she would be attending K.O.’s home. As a result of the concerns and incidents that occurred at the beginning of February, 2017, the society apprehended the child.

[55] Initially, the mother was provided with access to the child three times per week. The father was granted access to the child as well, but he attended only one visit. On May 18, 2017, the mother’s access was increased to 7 hours per week, with two of those visits occurring in conjunction with the Best Beginnings parenting program. The order indicated that upon successful completion of the program in June 2017, the mother’s access would change to unsupervised at the society offices. The order of May 18, 2017 set out several other conditions that had to be met before the mother’s access was changed to unsupervised.

[56] One of the terms was that the mother was to arrive for each access visit 10 minutes prior to the start of the visits. She was not successful in complying with this term, consistently arriving late or immediately prior to the start of the visit. Another condition was that the mother was to follow through with services at ADSTV and participate in the Heartspace program. Her attendance at ADSTV remained sporadic and on June 1, 2017 a worker from ADSTV confirmed that she had last seen the mother on May 1, 2017 and that she had still not completed the intake process. As a result of her failure to complete this step, she was not able to start the Heartspace program.

[57] The order also required the mother to provide her weekly urinalysis reports from the Methadone clinic, within two weeks of the tests being completed. The mother’s lawyer provided two letters dated April 27, 2017 and May 6, 2017 enclosing test results done on February 23, March 2, March 15, March 30, April 6, April 13, April 20, April 27, and May 4, 2017. These results showed only methadone use and marijuana use on three separate occasions. Following the provision of these test results, the mother provided no drug test results after May 4, 2017.

[58] In June 2017, a worker made numerous attempts to arrange a meeting with the mother, but she was unwilling to meet the worker, continued to be uncooperative regarding the concerns, and refused to provide any information as to her circumstances. On June 21st, the worker learned that the mother was incarcerated. As a result, the mother’s access was put on hold until the mother met with the worker to have it reinstated.

[59] The mother met with the worker on June 29, 2017. She refused to sign consents for information and refused to meet further with the worker or allow the worker to attend her home. The worker next met with the mother following her access visit with M-R, on July 19, 2017. At that time the worker asked the mother to provide toxicology test results that had not been provided to the society. That request was ignored. The next meeting took place following an access visit. The worker met with the mother in the lobby and asked if she would meet with her. The mother indicated that she would only meet for a few minutes and refused to sit down. The worker asked if they could arrange a home visit to discuss the mother’s progress in addressing the concerns. The mother became upset and raised her voice. When asked again for the missing and current toxicology reports, the mother became further upset. The worker tried to explain that the mother’s access could not be changed to unsupervised until she met the conditions of the order of May 18, 2017. Upon hearing this, the mother stated she needed to leave and abruptly left the building.

[60] The worker’s supervisor, Ashley Jackson filed two affidavits on the motion for summary judgment. Her direct involvement with the mother occurred when the worker was not available. In September 2017, the mother requested a meeting with Ms. Jackson. During the meeting, the mother indicated that she felt she had done everything necessary but that her access had not changed. Ms. Jackson advised the mother that she had not provided any drug test results since May. The mother replied that she had some tests at home and would provide those test results, while also indicating that the methadone clinic did not believe that society workers were trained to interpret the tests and that clients should not experience negative consequences when the drug tests were positive.

[61] It is notable that the test results provided by the mother prior to May 2017 showed either a negative or positive result for each drug tested. There is no interpretation required by the worker. Further, the clinic’s opinion of providing the test results to the society (if accurately reported by the mother) was irrelevant because the court had ordered the mother to provide her weekly test results, within two weeks of each test being completed.

[62] In November 2017, the mother met with Ms. Jackson to discuss having her access reinstated after a period of incarceration following new charges. During that meeting, the mother admitted to using crystal methamphetamine two weeks prior to the meeting with Ms. Jackson. She also admitted that she was facing numerous charges and might be sentenced to a period of incarceration as a result. Ms. Jackson again asked for the drug test results, but the mother was not willing to provide them.

[63] In March 2018, the mother arrived late for an access visit with M-R. By the time the mother arrived, the child had already been returned to the foster home. Upon being told that M-R was not present, the mother left the building and went to her car. Approximately 90 minutes later a security guard went out to the parking lot to check on the mother who appeared to be sleeping. The guard had to knock five times on the car window before the mother woke up.

[64] Approximately an hour later, Ms. Jackson went out to the car to check on the mother, who had fallen asleep again. Ms. Jackson saw wine in the trunk of the mother’s car and tin foil on the front passenger seat. Ms. Jackson also saw tin foil on the center console with some unknown residue on it. Ms. Jackson did not wake the mother because she was concerned that she was under the influence of drugs and should not drive. Ms. Jackson called the police and advised them of the situation.

[65] The mother eventually left the parking lot after three and a half hours. The police attended the society after the mother left. Ms. Jackson was advised that there was an outstanding warrant for the mother’s arrest and that on her last arrest, she reported being homeless and living in her car. The mother was subsequently arrested at the court house on March 23, 2018, when she attended court on the first scheduled date of the motion for summary judgment.

[66] The mother provided no information on which the society could determine if she was complying with the order. As of February 2018, the mother had provided no further toxicology reports after May 2017; she did not complete the intake assessment at ADSTV that was to be done on January 10, 2017, until August 2017; she attended only 3 of 13 individual counselling sessions at ADSTV; and her file there was closed on October 12, 2017 due to inactivity. Additionally, the mother refused to sign consents for the worker making confirmation that the mother was accessing services, impossible.

[67] On February 12, 2018, the mother was arrested and charged with three counts of possession of drugs, breach, and two counts of theft and was incarcerated, for the third time since the application was commenced. When she failed to attend her access visits, the visits were put on hold again, until the mother contacted the worker to discuss reinstating the visits. As of February 26, 2018, the mother had not contacted the society to resume access.

[68] The mother filed no information to show that she had been and was continuing to address the concerns that have been outstanding since prior to M-R’s birth. This is not a situation where a parent has provided details to show that some change has occurred or that the issues of concern have been ameliorated by her actions. This is not a case where a parent is relying on bald denials of the concerns raised. In this case, the mother has provided nothing at all for the court to weigh against the information provided by the society.

[69] The society evidence has established a prima facie case regarding the issue of finding of protection and there has been nothing filed in response to rebut that evidence. Mother’s counsel submitted that the finding of protection “might be a foregone conclusion”.

[70] On the basis of the information above, it is clear there is no triable issue as to whether the child is in need of protection. The major issues that precipitated the involvement of the society were drug use and criminal activity. The mother was arrested in mid February 2018, and then again on March 23, 2018. Her charges related to possession of drugs and theft. She has been incarcerated four times since the application was commenced. It is likely her drug use leads to her criminal behavior, which then results in an unstable lifestyle. The mother has presented no evidence to refute this information and as such she has raised no genuine issue for trial on the question of protection. There will, therefore, be an order that M-R is in need of protection pursuant to s. 74 (2) (b-i) of the Act.

[71] Issue #2: Having found the child to be in need of protection, what disposition order pursuant to s. 101 should be made in her best interests?

[72] The possible orders available to the court after a finding is made are set out in paragraph 40 above. They include a supervision order, an interim care order, an extended care order or a combination of an interim care order and supervision order. In choosing one of the noted orders, the court must have regard to the best interests of the child set out in s. 74 (3) of the Act. The choice of orders is also limited by s. 122, which sets out the time a child can be in the interim care of the society. In this case M-R, who is younger than 6 years old, has been in the care of the society since February 3, 2017, a period of 14 months as of the date the motion was heard and 17 months at the time of this judgment. It is possible for the court to extend M-R’s time in care to a maximum of 18 months if it is in her best interests to do so. Such extensions are generally granted when a parent has done virtually all he/she needs to do to address the protection concerns and is waiting for one final piece to fall into place such as housing or completion of a program.

[73] In this case, the court has been provided with no evidence that the mother has dealt with any of the issues of concern or that she is on the verge of completing all required conditions, such that within one month the child could be safely returned to her care under a supervision order. The mother has been subject to terms of two orders dated February 2017 and May 2017. The second order provided that the mother’s access would be unsupervised if she provided her toxicology reports done each week, within two weeks of the tests being completed; attended and successfully completed the Best Beginnings program; participated in addictions counselling at ADSTV; participated in the Heartspace program; signed all consents; and arrived 10 minutes early for each access visit. That order (May, 2017) was a clear road map setting out the expectations of the society and the court. The order also provided a strong incentive to the mother to complete the terms by way of a promise that the mother’s access would be unsupervised if she completed the conditions.

[74] The May order has been in place for one year and the mother has completed none of the conditions successfully. If the mother was unable to complete any of the conditions in a year, there is no possibility that she can do so in a little more than one month, which is the only time left under the discretionary provisions of s. 122, to extend a child’s time in interim care. Further the mother provided no evidence that she has gotten back on track and that she is working at completing all of the terms of the May 2017 order. There were no submissions made by the mother’s counsel that a one or two month extension would benefit the child in any way or would be in her best interests. He did suggest that a six month extension, (which is not available under the Act) would not harm the child. The test is not whether a child will suffer further harm, but whether an extension is in her best interests. In making the determination not to exercise its discretion under s. 122, the court finds that the mother’s request for further time to work on the issues of concern is nothing more than a “heartfelt expression of her desire to be given the opportunity to parent”, but that there is no realistic possibility that she will be successful, given her actions to date and given the time that is left.

[75] Therefore, there are only two orders available to the court regarding disposition at this time. The court may make a supervision order placing the child with a parent or other person, or make an order placing the child in the extended society care until the order is terminated under s. 116 or expires under s. 123. With only these two options available to the court, the court must then decide if there is a genuine issue for trial regarding the mother’s ability to parent the child under a supervision order. If the evidence does not raise a triable issue regarding the disposition order, the court must place the child in the extended care of the society.

[76] Mother’s counsel argued that having a drug problem was “not a solid reason to take away a kid”. He argued that the mother had a long standing drug problem and that it was never a secret. He indicated that even with this knowledge, the society commenced the protection application seeking a supervision order, suggesting that the society did not have a significant concern about the mother’s drug use. However, the request for a supervision order was made at a time when the mother’s plan included living with a friend who had been approved by the society and whose role it was to supervise all of the mother’s contact with the child. The initial application did not include the placement of the child in the mother’s sole care under terms of a supervision order.

[77] The mother’s counsel also disputed the submissions by the society that concerns around the mother had deteriorated. He argued that things for the mother were pretty much the same as they had ever been. However, he failed to acknowledge the mother’s incarceration on four separate occasions since the application had been started; her possible homelessness as evidenced by her sleeping in her car; and most importantly her complete failure to follow through with the conditions set out in two orders that would have resulted in a change to her access and might have resulted in the child being returned to her.

[78] When the child was first born, the mother indicated that she would do whatever was necessary to keep her child. She was willing to meet with her worker, sign consents and provide drug test results. However, that all changed in the spring of 2017. She became less and less willing to meet with her worker, making it necessary for the worker to locate her after her access visits; she refused to provide any drug test results; she failed to follow through with programming; refused to allow the worker to visit her home (assuming she had one); and refused to provide consents to allow the worker to verify anything the mother was doing to address the protection concerns. From the time of the baby’s birth until the May 2017 order, the mother’s willingness to work with the society and address the concerns changed dramatically for the worse.

[79] The mother’s counsel argued that when the society amended its application for the second time to Crown wardship, they decided they were not going to try to help her. The application was amended the second time in November 2017, almost a year after the child’s birth. By that time, the mother had stopped working with the society in any way. When she was available, she attended access, but beyond that, she was doing nothing to address the concerns and was doing nothing to follow the orders. This was not a situation where the society decided they were not going to try to help the mother anymore; rather it was the mother’s decision to stop working with the society or address the issues of concern.

[80] In this case, the court finds there is no genuine issue raised by the mother that requires a trial for determination of what disposition order is in the child’s best interests. Firstly, the mother presented no evidence of her plan for parenting. She has been subject to terms of two orders for more than a year and has shown herself to be either unwilling or incapable of complying with those terms. She refuses to meet with the worker. Most meetings have occurred as a result of the worker attending outside of the access room at the end of mother’s access, in order to talk to her. On those occasions, the mother has been willing to speak with the worker for only a very short time. Other meetings have occurred when the mother’s access has been suspended due to her absence from access and she has been required to meet with the worker or supervisor to have her access reinstated. She has refused to provide consents. She has not provided regular drug test results. Since she moved from K.O.’s home, the workers have never been allowed to meet her at her home. The society, in fact, has no notion of where the mother resides or whether she resides alone or with some other person. As recently as March 2018, the society received information from London Police Services that the mother had reported she was homeless and living in her car. It is difficult to imagine that the mother will suddenly become compliant under a supervision order when she has completely failed to follow the terms of temporary orders to date. If she was unable or unwilling to do what was necessary to have her access to her daughter increased in the short term, it is extremely unlikely that she will do what is necessary to ensure a safe, stable home for the child, if the child was returned to her care. Further, if past behavior is an indicator of future behavior, the mother will not be successful in complying with a supervision order, based on her compliance to date.

[81] In addition to the above, the court has considered the factors set out in s. 74 (3) of the Act. Many of the factors are similar to those previously set out in s. 37(3) of the CFSA. The factors and analysis of how each factor applies to this case are set out below.

Best Interests of the child:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall:

(a) Consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

In this case M-R is 17 months old; has no counsel; and the court is unaware of her views and preferences. Given her age, even if she could articulate her views and preferences, those views and preferences would be given little to no weight.

(c) in the case of a First Nations, Inuk or Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to the community, in addition to the considerations under clauses (a) and (c); and,

According to the application and the mother’s answer, M-R is not First Nations, Inuk, or Metis child.

(d) consider any other circumstance of the case that the person considers relevant, including,

(i) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) The child’s physical, mental and emotional level of development;

There was little information regarding the child’s physical, mental and emotion needs; her level of development or any care or treatment needed to meet her needs. By all accounts, she is a healthy happy baby, who is meeting her milestones. It is important to note, however, that the child was in the mother’s care only for the first two months of her life and during that time, the mother’s care of the child was supervised by other adults.

(iii) The child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression;

(iv) The child’s cultural and linguistic heritage;

There was no evidence presented regarding either of these factors.

(v) The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;

Mother’s counsel argued that this factor would not support the notion of the child being taken away from her mother. If counsel’s interpretation of this section was correct, no child would ever be removed from a parent’s care, despite the inability of a parent to meet the child’s needs or the danger to which a child might be exposed. The fact is the safety and well-being of the child comes first. In the best of worlds, the mother would not have an ongoing drug problem and would not be committing crimes that result in her being incarcerated. As a result of these continuing activities, the mother is completely unable to create a secure environment for the child in which she can develop a positive relationship and secure place as a member of the family. The only family the child knows at present is her foster family.

(vi) 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;

Mother’s counsel argued that this factor suggests the child should be with her mother or with family members if possible. His interpretation is incorrect. This factor requires the court to examine the strength of the child’s relationships with parents, siblings, relatives and other members of the child’s community.

There was no evidence that the child has any relationship or emotional ties to any member of her family, except her mother, through access. The father has seen the child once when she was very young and there was no evidence that the child’s older sibling has any relationship with the child. No family members came forward seeking access to her; or put in a plan for her and the child has no relationship with any of her extended family.

According to the access supervisor, the mother and child exchanged affection during access. However, there were occasions when the mother missed access because she arrived late and the child had already been sent back to the foster home, and times when the mother’s access was put on hold due to her incarceration. The court accepts that M-R likely enjoys the time she spends with her mother during access, but that M-R’s emotional ties to her mother are not strongly entrenched given her young age and the missed visits.

(vii) The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;

Mother’s counsel conceded that this factor would support an order for extended care. The child has been with the same foster family since February, 2017. At the time of apprehension, M-R was two months old. She is now 17 months old. Her continuity of care has been provided by her foster parents. Having regard to M-R’s age at the time she was placed in the care of the foster parents and the time she has spent with them, it is very likely that she identifies the foster parents as her psychological parents. She would have no memory at all of living with her mother.

(viii) 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 to the merits of the child remaining with or returning to a parent;

The court was provided with only one plan; that of the society. The mother provided no information about her plan; failing to provide even the basic information as to where she lived, whether she lived with anyone else, how she would support the child, etc. Not only did the mother fail to provide this basic information to the court on the motion, she refused to provide it to the society during the time she was subject to a court order. During the time M-R was in care, the mother could have chosen to work with the society; allowed them into her home; discussed her plans for the child and addressed the issues of concern. The society would have been able to assess her plan as it developed and provided her with assistance to ensure her success. Instead, the mother completely ended her involvement with the society, such that they had no information on which to base a more favourable outcome for the mother.

(ix) The effects on the child of delay in the disposition of the case;

Mother’s counsel indicated that delay was not a factor in this case and that another six months in care would not harm the child. Firstly, the act does not allow for a child to stay in interim care for more than 18 months. Secondly, the harm that befalls a child in these circumstances is that she becomes more and more securely attached to her temporary caregivers and is incapable, at her age, to understand if she is removed from them months later. This is the very reason why the act provides that permanency planning be done for young children within 12 months. Children are not to be “warehoused” or left in limbo while their parent does little or nothing to address the issues of concern. The court must consider the best interests of the child, and leaving the child in limbo is not in her best interests.

(x) 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;

There is no risk of harm to the child if she is left in the care of her foster parents, who have indicated a desire to adopt her. There is a risk of harm in returning M-R to her mother, especially given that the court has no evidence that the mother has addressed the concerns or that she will ever be able to do so.

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

Mother’s counsel argued that the risk of harm in this case was on the low end. The court is unsure how he came to this conclusion. The mother has a long-standing drug problem. She has been on the methadone program, but at no time since the child’s birth was she allowed “carries”. This means that her drugs screens were not consistently clean. The mother refused to provide her drug screens to the society, although ordered to by the court, again suggesting that she did not want the society to see the results of her drug tests. Finally, during the period that M-R has been in care, the mother was incarcerated four times. At the time the motion was argued, she faced 18 further charges, for which she could be incarcerated again. These are not the conditions of a parent who presents a ‘low” risk to her child. Until the mother successfully deals with these issues, the risk to a child in her care remains significant.

[82] Issue # 3: If extended care is ordered, should there be any access to the child?

[83] It is important to note, that when an order for extended care is made, any existing access order is terminated. It is after this event that the court considers whether the making of a new access order would be in the child’s best interests and subject to the considerations in subsection (6). The considerations in subsection (6) remain conjunctive and if the court considers (6) (b) relevant, both considerations must be satisfied.

[84] The first requirement that the person seeking access to a child in extended care must satisfy, is that the access would be “beneficial and meaningful” to the child, from the child’s perspective. (See Catholic Children’s Aid Society of Hamilton v T.B., supra, para. 78 and Children’s Aid Society of London and Middlesex v. K.B.P., para. 5.)

[85] In the case of Children’s Aid Society of the Niagara Region v. J.C., 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058, para. 29, the Divisional Court described the meaning of the words ‘beneficial and meaningful’ as follows:

“ “Beneficial” has been held to mean “advantageous”. “Meaningful” has been held to mean “significant”. The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child.”

[86] In that case, the only positive factors that the trial judge identified in regard to the mother’s relationship with the children at the time of trial was that she loved the children, the children loved her and through her access she conveyed to the children that she loved them and wanted to be a part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was “beneficial” within the meaning of s. 59 (2) (a) of the Act.

[87] The court found in that case that more was required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent and the fact that some visits were pleasant, especially when various negative factors impacting on the children’s emotional health, were identified.

[88] When determining if access is beneficial and meaningful, the focus is on how the child views the access. The existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in s105 (6). The relationship must be significantly advantageous to the child.

[89] In the case at bar, the mother attended access when she was available. She was usually late, refusing to comply with the society’s request that she arrive before the child. At times she arrived at the exact start time of the visit and at other times, she arrived late. On the latter occasions, the child would often have arrived and been sent home because the society had no information that the mother was attending.

[90] Additionally, the mother missed periods of access due to her incarceration. When she was absent from access for some period of time, it was necessary for her to meet with a worker before access could be reinstated. Despite the effect of her incarceration on her access, she was unable to cease her criminal activity. Further, despite an order that promised unsupervised access if she met certain conditions, she was unable or unwilling to comply with the terms of that order.

[91] The court accepts that when the mother had access to the child, it was pleasant and that she showed affection and love to the child. However, that alone does not make the access beneficial and meaningful to the child, and the fact that the mother was prepared to put her access at risk through her own choices suggests that the access was not that meaningful to the mother either.

[92] Having found that the mother has not proved that access was beneficial and meaningful to the child, the court does not believe it is necessary or relevant to consider subsection 105(6) (b).

[93] Having regard to the evidence presented by the society; the lack of evidence presented by the mother; consideration of the statutory requirements, case law and Rule 16; and having regard to the best interests of the child; the court finds that the motion for summary judgment shall be granted and the following order shall made:

1. The statutory findings are confirmed as set out at paragraph 2 of the motion for summary judgment as to the child’s full name and birthdate; and the balance of the statutory findings are confirmed as set out in the chart on page 3 of the amended, amended protection application as to gender, parents’ names, religion and native status.

2. The child is in need of protection pursuant to s. 74(2) (b-i) of the CYFSA.

3. The child shall be placed in extended society care until the order is terminated under section 116 or expires under section 123 of the CYFSA.

4. There will be no order for access.

“Justice Margaret A. McSorley”

Justice Margaret A. McSorley

Released: May 30, 2018