Court File and Parties

BARRIE COURT FILE NO.: FC-13-493-03 DATE: 20190613 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Simcoe Muskoka Child Youth and Family Services, Applicant -and- K.R. and M.M., Respondents

BEFORE: The Honourable Madam Justice R.S. Jain

COUNSEL: Tara Nazerali, for the Applicant Christopher Severn, for the Respondent, K.R. Linda Paterson-Kelly, for the Respondent, M.M.

HEARD: May 14, 2019

Endorsement

Introduction & Background

[1] This is a case that is especially difficult. The Respondent Mother is 29 years old and has a very long and what can only be described as a tragic history with the Simcoe Muskoka Child, Youth and Family Services (the Society). The Society has been involved with the Mother since she was a small child as she was brought into care when she herself was approximately four years old. Many tests and assessments were completed over the years while she was in the care of the Society. These tests and assessments have concluded that the Mother has very limited intellectual ability and suffers from significant behavioral and mental health issues. The Mother remained in care until she was 18. The Mother has experienced significant challenges and involvement with the mental health and criminal justice system. The Society apprehended the Mother’s first child at birth and subsequently placed her in the care of her father. The Society also apprehended the Mother’s second child, who was made a ward of the Crown and later adopted. The mother’s third child was also apprehended at birth and later placed in the permanent care of his biological father subject to a deemed custody order.

[2] The Respondent Father is 46 years old and also has some history with the Society. The Society is aware of the Father having at least two (and possibly three) other children. The Society was involved with respect to his youngest child relating to concerns of domestic violence, adult conflict and criminal involvement. The Society is not aware of the Father having any ongoing contact with his children. The Father suffers from health issues that include Multiple Sclerosis (MS) and seizures.

[3] L.M. was born in the spring of 2018 and is the Respondent parents’ first child together. They are expecting another child in the fall of 2019. L.M. was apprehended at birth and is residing in a foster home. L.M. has remained in the care of the Society since his apprehension. The Society originally brought a Protection Application on March 26, 2018, seeking an order finding the child in need of protection and an order for interim Society care for a period of six months. The Society amended its Protection Application, on or about November 12, 2018, to seek an order finding L.M. in need of protection and an order placing him in extended Society care with no access for the purpose of adoption.

[4] The Society’s protection concerns include: parenting capacity; criminal involvement; medical and mental health concerns; parents inability to work with community partners; and concerns about the parents behaviour and hygiene. On consent, a Parenting Capacity Assessment (“the assessment”) pursuant to s. 98 of the Child, Youth and Family Services Act (CYFSA), was ordered on June 11, 2019 by Graham J. Dr. Betty Kershner was chosen by the parties and retained to assess the following:

(a) the parents’ respective capacities to care for the child;

(b) any psychological disorders that impact the parents’ ability to care for the child;

(c) the nature of the attachment;

(d) the psychological functioning and special needs and/or vulnerabilities of the child;

(e) the current and potential abilities of the parents to meet the child’s needs and evaluation of the relationship between the parents and child;

(f) the need for and likelihood of success of clinical interventions for observed problems; and,

(g) to answer specific questions about bonding and attachment as outlined in Appendix “A” to the Order.

[5] The assessment commenced in October 2018 and was completed on January 23, 2019.

[6] The parents have been attending regular access with L.M. up to three times per week, supervised by the Society, including clinically managed access with Society family support workers (FSWs). These visits are two hours in duration on Tuesday, Wednesday and Thursday each week. Visits were only taking place at the Society office until Graham J.’s Order of February 8, 2019, which allowed for the Thursday visits to take place in the home of the parents with supervision. The Society has the discretion to terminate that visit, remove the child and require that future Thursday visits be at the Society office.

[7] The parents both admit that they have some challenges; however, they argue that the positives of each parent compensate for the negatives. Parents’ counsel describe the parents as bonded with L.M. and submit they are very loving towards him. They describe the parents as tenacious in their pursuit of the return of the child to their care. They further describe the parents as distrustful of the Society, yet cooperative at the same time.

[8] The Society has brought a motion pursuant to Rule 16 of the Family Law Rules (all references to rules in this decision are to the Family Law Rules – hereinafter referred to as the “Rules”) seeking the following:

(a) An order finding the child, L.M., in need of protection pursuant to s. 74(2)(b)(i) (ii) and s. 74(2)(h) of the CYFSA;

(b) An order finding that L.M. is not Inuk, Metis or of First Nations heritage;

(c) An order finding that L.M. was removed from the care of the Mother and Father, upon his birth;

(d) An order placing the child in Extended Society Care of the Simcoe Muskoka Child, Youth and Family Services;

(e) A final order that there be no access to the Mother or Father, for the purpose of adoption; and,

(f) An Order for sibling access, at the discretion of the Society, as between L.M and his siblings.

[9] The parents oppose the motion for summary judgment, the finding in need of protection and the disposition sought by the Society. The parents deny that their child is or was ever at a risk of harm in their care. They request the Society’s motion for summary judgment be dismissed and that this matter proceed to trial. They state that there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure. The mother has filed a motion that also seeks an interim order that expands the parent’s access to the child to include longer supervised home visits, unsupervised home visits and overnight visits. Basically, the parents request that their access to L.M. continue to expand until eventually L.M. is returned to their care.

[10] On consent, the statutory findings with respect to L.M. were made at the outset of the hearing.

[11] I have read and relied on the following documents:

(a) Affidavit of the Father, dated February 6, 2019 (Vol. 4, Tab 14);

(b) Society Motion, dated March 13, 2019 (Vol. 4, Tab 15);

(c) Affidavit of FSW, V. St. Pierre, dated March 7, 2019 (Vol. 4, Tab 16);

(d) Affidavit of Child Protection Worker (CPW), J. Rogers, dated March 18, 2019 (Vol. 4 - Part 2, Tab 17);

(e) Affidavit of FSW, T. Gallimore, dated March 26, 2019 (Vol. 4 - Part 3, Tab 18);

(f) Motion of the Mother, dated March 28, 2019 (Vol. 4 - Part 3, Tab 19);

(g) Affidavit of the Mother, dated March 28, 2019 (Vol. 4 - Part 3, Tab 20);

(h) Affidavit of CPW, J. Rogers, dated March 29, 2019 (Vol. 4 - Part 3, Tab 21);

(i) Affidavit of CPW, J. Rogers, dated April 17, 2019 (Vol. 4 - Part 3, Tab 22);

(j) Affidavit of the Father, dated April 16, 2019 (attached to his Factum);

(k) Affidavit of the Mother, dated May 6, 2019 (Vol. 4 - Part 3, Tab 23);

(l) Affidavit of CPW, J. Rogers, dated May 13, 2019 (handed up on consent of the parties); and,

(m) Parenting Capacity Assessment (“the assessment”) of Dr. Kershner, dated January 23, 2019 (Vol. 4, Tab 11 and V4 - Part 2, Tab 17, Ex. E).

[12] For the reasons set out below, I have determined that there shall be an order for Summary Judgment finding L.M. in need of protection and granting the Applicant Society extended care of the child with no access to the parents for the purpose of adoption. That order is subject to sibling access at the discretion of the Society.

Analysis

Summary Judgment

[13] The Society brings this motion pursuant to r.16 of the Rules – the Summary Judgment rule.

[14] The burden of proof is on the party moving for summary judgment (the Society). Pursuant to r. 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[15] Pursuant to r. 16(4.1), the responding party 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. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. (See: Children’s Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.).

[16] A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial. The parents need more than genuine and heartfelt expressions of their desire to resume care of the child. There must be something discernable from the parent’s evidence to show they face some better prospects than what existed at the time of the Society’s removal of the child from their care. (See: Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.); Catholic Children’s Aid Society of Hamilton v. W. (B.), 2015 ONSC 7621, para. 90).

[17] Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. (See: Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, para. 2 of para. 80).

[18] As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (See: Kawartha, at para. 76).

[19] Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (See: Kawartha, at para.1 of paras. 80 and 64).

[20] The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (See: Kawartha, at para. 3 of para. 80).

[21] The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that it is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is [a] foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”. (See: Kawartha, at para. 72).

[22] Rule 16(6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[23] Rule 16(6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[24] Pursuant to r. 16(6.2) the court may, for the purpose of exercising any of the powers set out in r. 16(6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[25] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. Hyrniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in r. 16(6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.

[26] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (See: Hryniak, at para. 49). As the Supreme Court stated, at para. 50 of Hryniak, “…the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (See: Kawartha, at para. 63).

[27] After reviewing all the materials and hearing some argument, I was not confident that in this situation I could reach a fair and just determination of the merits of a summary judgment motion without some oral evidence and cross-examination of the assessor. Given the importance of the s. 98 assessment and the special status accorded to it under the CYFSA, I made use of my discretion and the additional powers of rr. 16(6.1) and 16(6.2) to require limited oral evidence and cross-examination of the assessor Dr. Betty Kershner, (who had completed the assessment pursuant to s. 98 of the CYFSA). Another example of where this was done was in The Children’s Aid Society of the Districts of Sudbury and Manitoulin v. V.T., 2017 ONCJ 846, [2017] O.J. No. 6500.

[28] An order for extended care with no access for the purpose of adoption severs the parent child relationship. This disposition has been described as the “capital punishment” of family law. Pursuant to rr. 16(6.1) and 16(6.2) and pursuant to key principles regarding the use of summary judgment as articulated in Hryniak and as explained in Kawartha, the court needs to use “exceptional caution” for summary judgment in the child protection context.

[29] I have considered that I should exercise exceptional caution before proceeding on a summary basis in this child protection case. I recognize and have considered that in child protection proceedings like the one before me, there are Charter implications at stake for vulnerable litigants like the Respondents. I gave special consideration to the reality of the implications of this summary judgment motion for the participants, both the parents and the child.

[30] I find that it is in the interest of justice for the court to determine this case summarily, based on the evidence before me, and with the use of the courts expanded powers to weigh evidence, assess credibility and draw reasonable inferences. In order to do this, I allowed limited oral evidence and cross-examination of the assessor Dr. Kershner. Counsel for the parents had pointed out what they argued were contradictions in the assessment (regarding certain observations, conclusions and incomplete tests). The oral evidence and cross-examination of Dr. Kershner assisted the court in carefully assessing this evidence and in fulfilling the objectives of the CYFSA.

[31] Counsel for the Society, Ms. Nazerali, stressed the fact that the timelines have passed. L.M. has been in care since birth and is now 14 months old. Given the length of time he has been in Society care, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA. I found that the evidentiary record was sufficiently comprehensive on all other aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a full trial. Cross-examination of any other witnesses would add little, if any, value to the court’s analysis. I found that the summary judgment process allowed the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result.

[32] I find that the Society has met their onus and established, on a balance of probabilities, a prima facie case for summary judgment with respect to each aspect of the relief sought. I further find that the responding parties have not established that there is a genuine issue requiring a trial on any issue.

[33] I find that if this matter proceeded to trial there is no realistic possibility of an outcome other than that sought by the Society.

The Society has demonstrated a prima facie case in support of an Order finding the child L.M. in need of protection pursuant to s. 74(2)(b)(i)(ii) and s. 74(2)(h) of the CYFSA

[34] The onus is on the Society to prove on a balance of probabilities that L.M. is in need of protection. The risks do not need to be intentional. The Society seeks a finding in need of protection pursuant to s. 74(2)(b)(i)(ii) and s. 74(2)(h) of the CYFSA. According to those provisions, a child is in need of protection where:

74(2)(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, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

74(2)(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii) (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

[35] Subclause 74(2)(f) says:

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

Positions of the Parents

[36] Although the parents admit they have some challenges, they do not and have never acknowledged nor accepted that their child is at risk of harm in their care.

[37] Counsel for the parents both argued that the positives of the Mother and Father compensate for each of their negatives. They submit that they should not be judged unfairly by a middle class yardstick, one that imposes unrealistic and unfair middle-class standards of childcare upon a poor parent of extremely limited potential, provided that the standard is not contrary to the child’s best interests. (See Catholic Children’s Aid Society of Hamilton v. J.I., [2006] O.J. No. 2299 (Ont. Sup. Ct.) They submit that the distrust the parents feel towards the Society is explained (if not justified) by the allegations of abuse and harm that the Mother alleges she experienced as a child in the care of the Society. Counsel suggest that the parents work as a team, and together they can provide “good enough” parenting for the child.

[38] The Mother and Father also claim they have a co-operative and functional relationship with the Society and have improved their parenting skills. They point to the positive moments during their supervised access when L.M. has laughed or smiled and fallen asleep in the Father’s arms. They characterize this as a “loving bond” and “attachment.” Counsel further submitted that attendance at all the supervised visits between the parents and child had been “near perfect.” Mr. Severn and Ms. Paterson-Kelly submitted this was “amazing” considering the challenges and stresses the parents were under and the fact that their time with L.M. was so limited. Mr. Severn pointed to the recent expansion of the Thursday visit being supervised in the parent’s residence per the Order of Graham J. on February 8, 2019. Counsel stressed the fact that there had been no incidences where the Society had terminated those visits (even though they had discretion to do so if a significant concern for worker health or safety of the health of safety of the child arose during those visits). Counsel argued passionately that both these parties truly and deeply love their child and although they have challenges, they have overcome them and shown they are willing and able to continue to work with the Society to gradually return L.M. to their care.

The Society’s Position

[39] L.M. has been in care his entire life (which is over a year). The protection concerns about the parents are well laid out in pleadings and include the following: volatility, lack of capacity to respond to needs, medical and mental health needs, and inability to address the concerns and work with professionals, lack of hygiene. The Society takes the position that the parents have not improved, despite their assistance. In November, 2018, the Society amended their Application to extended care with no access. The Society has made multiple attempts to help and encourage and engage with the parents. [3] Although the Mother and Father have accessed some services, there is no measurable improvement shown. This is unfortunately the consistent theme for the Mother and her other three children. The evidence shows the persistence of her challenges over time.

[40] Section 91.3(b) of the CYFSA allows the court to take into account the past psychological reports that were completed on the Mother when she was in care. Diagnosis included: conduct disorder, child-onset type; mild mental retardation with impairments in self-care and home living skills, Reactive Attachment Disorder-Inhibited Type, ADHD – Combined Type, and Disruptive Behaviour Disorder. She has been described as having ambivalent attachment; psychological fragility; cognitive ability below the first percentile; and prone to becoming overwhelmed, leading her to aggressive and volatile behaviour. These past reports are dated, (ranging from when she was only between 9 and 15 years old). [4] The court assigned little weight to them. However, what they do show is that the Mother has faced significant challenges and had significant problems for a long time. What they also show is there has been little to no improvement in the areas that are important to parenting capacity.

[41] Despite both parents alleging that they make up for each other’s deficiencies, this does not seem to be the case. The materials clearly outline many instances when the parents have been in conflict and there has been volatility between them and the workers. [5] There are more often moments of conflict between the parents and examples of their non-cooperation with and/or abuse of the workers. The numerous examples of the persistence of child protection risks are all clearly described in the various workers’ affidavits, summary reports, the contact logs, and in the observations of Dr. Kershner. These include the parents’ patterns of frustration and lashing out with aggression; becoming agitated, yelling and using loud swear words in the presence of L.M.; exposing him to conflict when the parents refuse help from the workers; inappropriate interactions and ignoring and/or being unaware of L.M.’s cues; teasing and upsetting the baby and using harsh tones; house smelling of urine and the pets urinating in the house in the presence of the child; discipline and/or expectations for the baby that are age inappropriate. [6]

[42] Many examples of the above risks were provided by the Society, however there were a few that really stood out for me. The father and mother both resisted and, at times, refused to appropriately follow through with recommendations or provide supporting documentation regarding their medical and hygiene issues, specifically for bed bugs, infected injuries and contagious skin abrasions and infections. [7] Aside from a one sentence letter confirming the father has Epilepsy and MS, the Father did not provide any evidence regarding his prognosis, management or treatment for MS and his seizures. [8] Aside from her own statements about her maturing and improvement, the Mother did not provide any evidence regarding her mental health and any treatment or services for same. I found I could make an adverse inference against the parents with respect to their lack of medical and mental health evidence in response to the Society’s concerns.

[43] The Mother’s own affidavit contained statements that confirmed the Society’s concerns about the parents’ struggles to help L.M. in an age appropriate manner during the two-hour visits. She described how they “help each other” and “take over from each other, when one of us is tired or having problems with [the child].” She said they “provide respite care for each other, throughout the visits, giving each other rest breaks.” [9] In her affidavit, she also minimized or showed lack of insight into the Society’s concerns about their lack of parenting skills or harsh tones and behaviours with the child. Examples include when the Mother says that young children “need to have boundaries set for them at a young age” and that the child “demonstrates understanding of our actions and he will modify his behaviours to meet our requests.” [10] She further indicated that L.M. can “let us know if he needs a diaper change. [11] On March 14, 2019 during a supervised visit in their home the mother did nothing to prevent the child from crawling across the bed and falling headfirst and then tried to minimize the situation by saying, “he’s fine, no bumps.” The Society workers’ affidavits also confirm the Mother’s lack of focus on the child and her need to leave access frequently for cigarette breaks. [12]

[44] The Father also does not react positively to suggestions or advice given by workers, nor does he behave appropriately with the child during access. The Father does not have the insight to recognize or take responsibility for his own negative behaviour and how it effects L.M. He uses inappropriate words and tones of voice when speaking to the child and becomes frustrated when he cries or fusses, kicks his feet during a diaper change or does not burp. Supervisors have witnessed the Father teasing the child with his bottle, speaking in a stern tone to the child, and the Father having emotional outbursts, on at least one occasion to the point of requiring police attendance. [13] Recently during a visit on May 8, 2019, both of the parents’ behaviour was very concerning. They were both upset and frustrated. When asked by the worker to move to another area to reduce the child’s exposure to the conflict, the Father loudly cursed at the worker and said that the child, “needs to get used to it as he will be exposed to this conflict at home.” [14]

[45] All of these struggles, the conflict and need for breaks are in the context of the parents having a two hour supervised visit. This is supposed to be a protected space and one would assume the parents would be on their best behaviour. The evidence of the challenges and conflict do not make it difficult for the court to find that L.M. would face significant risk of harm if he was in the parents care for a longer duration (whether supervised or not).

The Assessment, Oral Evidence and Cross-Examination of Dr. Kershner

[46] This matter originally came before me on April 25, 2019. In their materials, the parents requested an opportunity to cross-examine the assessor. They pointed out what they considered to be “gaps” in the assessment and its conclusions because certain tests were not completed. They argued that there were genuine issues for trial because the conclusions in the assessment were made based on incomplete tests and contradictory observations. They submit that the court cannot rely on or give weight to the conclusions in the assessment. I ordered that the assessor give oral evidence and to clarify some aspects of her assessment. Counsel for the parents were permitted to cross examine Dr. Kershner for up to one hour each.

[47] At the beginning of the hearing, I reminded the parties that the purpose of the limited oral evidence and cross-examination of the Dr. Kershner was not to have a full trial on the merits. The purpose was so that sufficient information could be introduced so that the court was able to decide if there was a genuine issue requiring a trial. By doing this, the court was giving special consideration to the reality and magnitude of the implications of this summary judgment motion for the participants, both the parents and the child.

[48] Counsel for both the Society and the parents confirmed they were not questioning the admissibility of the assessment nor the qualifications of Dr. Kershner to conduct the assessment. I accepted the qualifications of Dr. Kershner on the subjects of clinical psychology and her qualifications to conduct the assessment. I further accepted the admissibility of her expert opinion evidence on those subjects.

[49] The parties agreed to the terms of the assessment and agreed to the assessor being Dr. Kershner. [15] The assessment was completed in the late fall of 2018 and the report was received January 23, 2019. [16] During her evidence, Dr. Kershner confirmed that certain parts of some of the tests were not completed by the parents. She advised this was due to the parents’ choices and behaviours despite extensive accommodations being made for them. These accommodations included: allowing the parents to take breaks; rescheduling the meetings or shortening the meetings as requested by the parents; and, Dr. Kershner continuing to attempt to complete the work in the face of some very aggressive reactions from the parents. There were multiple reasons for the Mother and Father’s inability to complete the tests, these included: lack of attendance and/or leaving early and/or returning late; the Mother trying to control the conversation and testing; the Mother refusing the interview; the Mother and/or Father being triggered and having aggressive reactions to the testing. Dr. Kershner said it is not unusual for parents with developmental delays to refuse to finish testing; however, it is highly unusual for a parent to refuse an interview. Dr. Kershner said that the lack of completion/participation actually provides extremely important clinical information, i.e. the Mother’s aggressive behaviour and refusal to co-operate demonstrated that she was still suffering from the same conduct disorders and other mental health problems that had been diagnosed earlier in her life. It showed poor prognosis for her ability to work with professionals and improve her parenting.

[50] In terms of the Father, Dr. Kershner said he was easier to work with but he always seemed to need to leave early and was very inconsistent as to why. The parents made poor choices together and apart, and were unable to put the needs of their child and completing the assessment ahead of their own. They took long breaks, (sometimes for a cigarette, and sometimes for no particular reason) that left no time to even complete the testing they were willing to do. Dr. Kershner said that although the Father was more able to have a conversation and was more willing and able to answer some questions, he was also very easily triggered and became aggressive. He would sometimes look at the material and call it “bullshit” and “storm out.” Special accommodations were made for the Father (similar to that made for the Mother). Dr. Kershner explained that more completed tests may have assisted with more diagnosis, but the assessment is sound and as complete as possible. She advised that any incomplete parts of the assessment did not affect the soundness of the conclusions in the assessment.

[51] I accepted the evidence of Dr. Kershner. I found she gave credible explanation for the parts of the testing that were incomplete. I find that she did provide reasonable accommodations for the parents. I found that I was further able to rely on Dr. Kershner’s observations and conclusions that the parents’ aggressive behaviour and refusal to co-operate, participate and complete the testing showed poor prognosis and supported the conclusion about their ability to work with professionals and improve their parenting. I found that the parents’ inability to complete certain parts of the testing did not affect the soundness of the conclusions in the assessment. There were multiple other examples of where the parents had shown their inability to work with each other and with professionals to improve their parenting. They have been in conflict with almost everyone who has tried to work with them including, J. Rogers, V. St. Pierre, Maria Mavalso, Diane Warren, Sherri Killiam, the Family Finding worker and, finally, Dr. Kershner.

[52] Dr. Kersher’s assessment made the following findings: the Mother and Father are both functioning cognitively in the range of Developmental Delay, with the Mother at a weaker level that the Father. Both share similar limitations in their ability to understand what is going on, to process information from their surrounding reality, or learn from it. Each has significant difficulty grasping and retaining new concepts. Judgment is seriously challenged for both. This is greatly compounded by personality issues, especially for the Mother. The Mother is especially volatile and aggressive. The Father also has anger issues and has an extremely short fuse with professionals which limits his ability to work collaboratively with them. Both parents, especially the Mother, demonstrate thought and personality disorders, including paranoid tendencies. [17]

[53] In addition, when discussing whether L.M. and his parents were bonded and attached because of the positive events during access, I accepted Dr. Kershner’s evidence and conclusions that, although there were some positive interactions during the access this did not equate to “bonding” and “attachment” in the clinical sense. Bonding and attachment are clinical terms. Dr. Kershner’s evidence was that some comfort and familiarity are not the same as clinical attachment. She explained that bonding is a psychological term dealing with the reunions and separations of the parents and child. By including descriptions of some the positive interactions she was not contradicting her conclusion that, “there is not an attachment relationship” between L.M. and either parent. [18] Dr. Kershner did not find evidence of bonding or attachment between the parents and the child.

[54] Dr. Kershner explained that although there were lots of positives during the access visits, she would expect it to be so because the visits were taking place in a protected space that has already been made safe. It is a limited time period and there are many parents who can behave appropriately in a limited time period in a protected space, but not longer. It is positive, but it is also very questionable to be able to generalize how long they can continue. The parent also knows they are being watched and judged and so they are expected to be on their best behaviour. It shows they can do it for a short period of time. It doesn’t show a lot unless there is anything negative happening. Unfortunately, there were also negative instances during the access. She described incidents when the Father was extremely rude to her and yelled and gestured towards his pubic area. During the second observation visit, the Father became irate and it took a while for him to calm down. Later that same visit, the Father started to become agitated in his voice and body movements and swore. The child started to cry, feeling the agitation. [19]

[55] In the assessment, Dr. Kersher made some significant conclusions that include the following:

(a) Both the Mother and Father are able to interact with and care appropriately for L.M. briefly, sometimes. They lapse significantly and often; each of them putting their own needs ahead of the child’s;

(b) The parents do not have the cognitive or emotional abilities to grasp the subtleties of parenting;

(c) Neither parent is able to work cooperatively with professional support on a consistent basis;

(d) Each parent is extremely weak in their ability to grasp new concepts, absorb, retain and apply them. Weaknesses of the sort demonstrated by both the Mother and Father tend to be lifelong and not available to change;

(e) Neither parent demonstrates the ability to learn the necessary skills now or in the near future;

(f) Both parents have extreme anger management problems;

(g) There is not an attachment relationship between L.M. and either parent; and,

(h) There would not be any negative consequences to L.M. from severing his relationships with the Mother and Father. [20]

[56] Dr. Kershner confirmed the parents inability to recognize age and stage of development needs for the child. Dr. Kershner also strongly, clearly and succinctly disagreed with the parents and their counsel that each of the parents’ strengths compensated for the others’ challenges. I accepted her evidence that the parents cannot provide the “good enough” parenting standard and that “neither parent has the cognitive or emotional ability to grasp the subtleties of parenting,” nor do they, “demonstrate the ability to learn the necessary skills now or in the future.” [21]

[57] As stated above, the onus is on the Society to prove on a balance of probabilities that L.M. is in need of protection. The risks do not have to be intentional. Based upon all of the above, I find that there is no genuine issue for trial on finding the child L.M. in need of protection pursuant to s. 74 (2) (b) (i) (ii) and s. 74 (2) (h).

The Society has demonstrated a prima facie case in support of an Order that the child, L.M., be placed in the extended care of the Society, with no access to any parent, for the purpose of adoption

[58] The onus is on the Society to prove on a balance of probabilities that an order for extended care with no access for purpose of adoption is in the best interests of the child, L.M. Section 1(1) of the CYFSA provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. Section 101(1) of the CYFSA provides that:

Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the chid in the future, the court shall make one of the following orders or an order under section 101, in the child’s best interests:

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.

[59] Section 74(3) of the CYFSA sets out the criteria the court must use to make an order or determination in the best interests of a child. As the child is an infant, L.M.’s views and preferences cannot be ascertained. L.M. is not of First Nations, Inuk or Metis. The relevant sections of Section 73(3)(c) provide that the court consider any relevant circumstances including the following:

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,

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,

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,

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,

vii. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

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

ix. The effects on the child of delay in the disposition of the case,

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, and

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

[60] Section 105(5) and (6) of the CYFSA sets out the following:

(5) WHEN A COURT MAY ORDER ACCESS TO CHILD IN EXTENDED SOCIETY CARE - 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.

(6) ADDITIONAL CONSIDERATIONS FOR BEST INTERETS TEST – The court shall consider, as part of its determination of whether an order or variation would be in the child’s best interests 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.

[61] I find that an order for extended society care with no access for the purpose of adoption is the only option that is in the best interests of L.M. This order is necessary to protect the child. The parents have made no significant progress in acknowledging or addressing the ongoing protection concerns. The child cannot be returned to the parents’ care on an interim supervision order. The degree of the risk of harm for the child in the parents’ care that justified the finding of the need for protection, (as described above) is too high.

[62] The parents in this case have provided no evidence to the court acknowledging the Society’s concerns or the risk of harm for L.M. in their care. Both of the parents do not even understand nor accept the Society concerns about their residence and strong smell of urine from the number of pets they keep. [22] Throughout their affidavits they either minimized or provided excuses for their behaviour and/or blamed others. They call their conflicts in front of the child “banter.” [23] When the workers and service providers try to assist the parents, teach a skill or protect the child, the parents describe their assistance as, “nattering,” “authoritarian and bullying” and “rude.” [24] It is very concerning that the Father and Mother do not recognize nor have insight into their own behaviour and its effect on the child. It is equally concerning that the parents use their perception of the workers or professionals as being “rude” to justify or excuse their own rude or abusive behaviour. What all of this unfortunately shows is that the progress and/or improvement that is needed, is not possible.

[63] There must be an arguable notion discernable from the parents’ evidence that they face some better prospects than what existed at the time of the Society’s removal of the child from his or her care and has developed some new ability as a parent. (See: Children’s Aid Society of Toronto v. R.H.) The parents in this matter have not provided any evidence that anything is going to change or improve (they do not even acknowledge that they need to change or improve anything).

[64] I am satisfied that the Society has made all the required efforts to assist the parents and child. [25] There are no other less restrictive alternatives that are adequate to protect L.M. The child is beyond the timelines and requires permanency. A further six months of access will not substantially change either of the parent’s circumstances or capacity to parent this child, and it further will only increase the child’s exposure to risk of harm.

[65] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. The parents’ request to increase access gradually at this stage of the process is not in the best interests of the child. The Society’s plan and proposal to place the child for adoption has significant merit, whereas the merits of the child remaining with or returning to the parents has none.

[66] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. The parents have described their genuine feelings of love and affection for L.M. It is further acknowledged by the Society that the parents care about L.M. However, (except for their own feelings) the parents have not provided any evidence to contradict the findings in the assessment or the evidence of the Society.

[67] There is a significant impact for L.M. when the parents act out. He is affected by his parents when they display negative behaviour patterns. The child cries and at times is scared of his surroundings when his Father lashes out verbally or is frustrated, yet the Father continues to use a punitive tone when speaking to the child. This is despite several reminders from the workers. Both parents do not show they understand the importance of keeping the child protected and free from conflict. The Father displays lack of patience with L.M.’s development and implies that the infant child knows right from wrong. [26]

[68] In her assessment, Dr. Kershner concluded that L.M. “demonstrates behaviour” with the mother “that is associated with rejection of attachment” and that while the child is more attentive to the Father, it is not to the degree of attachment. L.M. is actually “discomforted” by the Father’s “expressions of anger and agitation.” I accepted Dr. Kershner’s opinion that “there is not an attachment relationship between [the child] and either parent.” [27]

[69] As Dr. Kershner explained, attachment is of huge importance. The negative effects on children with an early insecure attachment can have negative effects on children, including education, emotional, physical wellbeing, intelligence, academic achievement and social relationships. This persists through the life span. For this child, the best chance he has in forming early secure attachment is by a disposition and order for extended care with no access, for the purpose of adoption.

[70] I find there is no reasonable prospect for these parents to reach the standard of “good enough” parenting. Although the parents have been able to enjoy some positive moments with the child during access and they demonstrate love and affection for him, this does not compensate for the overwhelming negative moments and lack of attachment. As Sherr J. stated in Catholic Children’s Aid Society of Toronto v. S. (S.), 2011 ONCJ 803 (Ont. C. J.), “Even if there are some positive aspects to the relationship between the parent and child, that is not enough – it must be significantly advantageous to the child.”

[71] The court must ensure that the best interests of the child are adequately addressed on the available evidence. If the evidence of does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child’s future. (See: Catholic Children’s Aid Society of Toronto v. M. (L.), 2011 ONCJ 146). Although the order sought by the Society in this motion can be considered the most intrusive, the court finds that the nature of the evidence, the mandatory time frames and statutory criteria involved all support the disposition of extended care with no access for the purpose of adoption.

[72] The child’s need for continuity of care and a secure placement as a member of a stable family is extremely important, and the child “cannot be expected to wait and suffer while a mother or father learns how to be a responsible parent.” (See: Catholic Children’s Aid Society of Hamilton v. W.(B.)) I find that if the access continues it not only exposes L.M. to risk of harm, it lacks meaning, does not benefit him and is not in his best interests. The incidents of affection from the parents towards the child fall very short of being beneficial or meaningful for the child in this context. The child is adoptable and since any access with the parents is not in L.M.’s best interests, it could only serve to impair chances of adoption.

[73] I find the Society has demonstrated a prima facie case that L.M. be found in need of protection and in support of an order that he be placed in the Extended Care of the Society, with no access to any parent for the purpose of adoption. As a result, for all the reasons as set out above and, pursuant to r. 16 of the Family Law Rules, I make the following order:

(a) An Order dismissing K.R.’s motion;

(b) An Order finding the child, L.M., born in 2018, in need of protection pursuant to s. 74(2)(b)(i)(ii) and s. 74(2)(h) of the Child Youth and Family Services Act (CYFSA);

(c) An Order finding the child is not Inuk, Metis or of First Nations heritage;

(d) An Order finding that the child was removed from the care of the Mother and Father, upon his birth;

(e) An Order placing the child in Extended Society Care of the Simcoe Muskoka Child, Youth and Family Services;

(f) A final Order that there be no access to the Mother or Father, for the purpose of adoption; and,

(g) An Order for sibling access at the discretion of the Society as between the child and the child’s siblings, including:

(i) L.J., born in 2012;

(ii) B.S., born in 2015;

(iii) E.F., born in 2016;

(iv) C.M., born in 2006;

(v) T.M., born in 2002; and

(vi) A.D., born in 1999.

Jain J. Released: June 13, 2019

[1] Child, Youth and Family Services Act, S.O. 2017, c 14, Sch 1. [2] Family Law Rules, O. Reg. 114/99. [3] Affidavit of J. Rogers, dated March 18, 2019, at Tab 17, para 84. [4] Parenting Capacity Assessment, dated January 23, 2019 pages 5-6. [5] Affidavit of J. Rogers, dated March 18, 2019, at Tab 17. [6] Affidavit of J. Rogers, dated March 18, 2019, at Tab 17, Exhibit F at pages 265-267, 270 and Exhibit G at pages 279, 281, 285-288; the Affidavit of V. St. Pierre, dated March 7, 2019, at Tab 16; the Affidavit of T. Gallimore, dated March 26, 2019, at Tab 18, Exhibit J; the Affidavit of J. Rogers, dated May 13, 2019, Exhibit A; and, Affidavit of the Mother, dated March 28, 2019, at Tab 20. [7] Affidavit of J. Rogers, dated March 10, 2019, at para. 82, Exhibit K - Letter from Dr. Kolesky, dated September 11, 2018, that confirmed both parents had lesions on their forearms in different stages of healing that were contagious/infective through direct contact and it should be covered up and hands washed to avoid any transmission. Despite this, the parents did not follow directions of workers to protect the child and others from exposure. [8] Affidavit of J. Rogers, dated March 10, 2019, Exhibit H, Letter from Dr. Maher, dated November 6, 2018. [9] Affidavit of the Mother, dated March 28, 2019, at para. 92. [10] Affidavit of the Mother, dated March 28, 2019, at para. 93, 97, 103, 129. [11] Affidavit of the Mother, dated March 28, 2019, at para. 129. [12] Affidavit of Jennifer Rogers, dated May 13, 2019, para. 9. [13] Affidavit of T. Gallimore, dated March 26, 2019, at paras. 9 to 32. [14] Affidavit of J. Rogers, dated May 13, 2019, at para. 16. [15] Consent Order of Graham J., dated June 11, 2018. [16] Parenting Capacity Assessment, dated January 23, 2019. [17] Page 30 of the Parenting Capacity Assessment dated January 23, 2019. [18] Page 34 of the Parenting Capacity Assessment dated January 23, 2019. [19] Page 28 of the Parenting Capacity Assessment, dated January 23, 2019. [20] Pages 31 to 35 of the Parenting Capacity Assessment, dated January 23, 2019. [21] Page 31 of the Parenting Capacity Assessment, dated January 23, 2019. [22] Affidavit of the Mother, dated May 6, 2019, wherein she confirms they have two rats, one dog (that has accidents in the home) and three cats as well as a rabbit (which they are temporarily caring for as a favor to a friend) all of which reside in their one bedroom apartment. [23] Affidavit of the Father, dated April 16, 2019. [24] Affidavit of the Father, dated April 16, 2019. [25] Affidavit of J. Rogers, dated March 18, 2019 at para 84. [26] Affidavit of Tamara Gallimore, dated March 26, 2019, Exhibit M. [27] Page 34 of the Parenting Capacity Assessment, dated January 23, 2019.