Children’s Aid Society of Toronto v. L.A.C., 2011 ONCJ 849

WARNING The court directs that the following notice shall be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

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

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Toronto (North York) Registry C48945/09 DATE: 2011 XII 30 CITATION: Children’s Aid Society of Toronto v.

L.A.C. , 2011 ONCJ 849 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant — AND — L.A.C. and D.H.G., Respondents Before Justice Curtis Heard on 3 August 2011 Reasons for Judgment released on 30 December 2011 Michelle Cheung .. counsel for the applicant Children’s Aid Society of Toronto Isaac Birenbaum ................... counsel for the respondent mother L.A.C.

Tiffany Lau ........................ counsel for the respondent father D.H.G. JUSTICE C. CURTIS: Index 1 . Over-view 2 . Background 3 . Litigation History 4 . Positions of the Parties 5 . The Law on

Summary Judgment 6 . The Protection Findings a. Evidence regarding the Protection Findings i. The Parent’s Substance Abuse and Addiction ii. The Father’s Mental Health iii. The Parents’ Dysfunctional, High Conflict and Violent Relationship iv. The Children 7 . Disposition a. Disposition Legal Principles b. Options for Disposition c. The Mother’s Plan d. The Parents’ Access to the Children e. The Mother’s Lack of Judgment Regarding her Relationship with the Father f. Examination of the Disposition Options i. Why Not a Supervision Order? ii. Other Disposition Options 8 . The

Summary Judgment Request 9 . Orders Over-view 1. This is the decision in a motion for

summary judgment brought by the Children’s Aid Society of Toronto (“CAST”) in a protection application, asking for a finding that the children L.A.D. and B.B.L. are in need of protection, and a disposition that they be made crown wards, without access. If the court orders crown wardship, CAST concedes that the issue of access is a triable issue. 2. The issue for the court to determine is whether there is a triable issue with respect to the orders that CAST seeks. Background 3. The mother is Ms. L.A.C. (“the mother”), born […] 1983, now 28 years old.

4. The father is D.H.G. (“the father”), born […] 1965, 45 years old when the

summary judgment motion was heard. 5. The parents had a relationship from 2002 to 2010. The mother says that they lived together during that period, and the father says that they never lived together. They are the parents of the children in this case: L.A.D., born […] 2004, 6 years old when the motion was heard; and, B.B.L., born […] 2006, 5 years old. Litigation History 6. The protection application was started on 24 September 2009, in part as a result of a referral to CAST on 30 June 2009, from Justice Harvey P. Brownstone, who was hearing the parents’ dispute about custody and access.

The referral resulted from evidence in the custody dispute about drug use by the mother. The children were then 4½ and 3½ years old. Justice Brownstone ordered the children placed with the father subject to a temporary supervision order on 29 September 2009. On 15 December 2009, the children were apprehended as a result of an assault on the mother by the father. The father was arrested, charged and detained, and the children were placed in care. 7. On 18 March 2010, Justice Brownstone endorsed that CAST should move now to amend to crown wardship no access.

CAST amended the protection application on 17 November 2010 to seek crown wardship no access for the purposes of adoption. 8. On 26 January 2011, the court endorsed that the parents were not opposing the protection finding, and that CAST would be bringing a motion for

summary judgment. The motion for

summary judgment was originally scheduled for 11 April 2011, but was adjourned and the case was put on the trial assignment court for 13 April 2011, to be sent again to

summary judgment if trial date was not scheduled. The motion for

summary judgment was heard on 3 August 2011. 9. CAST involvement with this family is relatively recent, since July 2009. CAST began seeking hair strand drug tests from the parents in July 2009. 10 . Initially there were concerns reported in June 2009 that L.A.D. had been sexually abused six months earlier by a friend of the maternal grand-mother, and later a further disclosure that she had been sexually abused by her step-grand-father and another individual associated with the mother.

The disclosures were investigated, but the disclosures were not brought to the CAST’s attention immediately when the concerns came to the parent’s attention, and the protection concerns regarding sexual abuse were not verified. 11 . On 25 February 2011, the children were placed with their adult half-sister Ms. P.C. (the father’s adult daughter) and her partner Mr. C.P. She came forward with a plan to care for the children in June 2010. Ms. P.C. and Mr. C.P. successfully completed all foster care provider trainings and have been approved by CAST as kin-in-care providers for the children.

They have relocated to a new address which has not been disclosed to the parents. Positions of the Parties 12 . CAST is asking that the children be found in need of protection under ss. 37(2)(b) (a risk of physical harm resulting from failure to care for the child or a pattern of neglect in caring for the child) and (g) (a risk of emotional harm from resulting from a failure to care for the child or a pattern of neglect) of the Child and Family Services Act , R.S.O. 1990, c. C. 11, as amended (“ C.F.S.A. ”).

The parents are not opposing a finding that the children are in need of protection under these sections. 13 . CAST is asking for a disposition of crown wardship no access, for the purposes of adoption. 14 . The CAST plan is for the children to remain with Ms. P.C. and Mr. C.P. permanently, and for them to adopt both children after they

are made crown wards. 15. The mother wants a trial regarding the disposition of crown wardship and argues that her plan presents a genuine issue for trial. 16. The father agrees with the placement with his daughter and her partner, but he opposes crown wardship, no access, and asks for adifferent legal format. He did not specify what legal format he preferred to crown wardship, offered no options to the court, and did notargue for a specific format. The Law on

Summary Judgment 17. A party may make a motion for

summary judgment under rule 16 of the Family Law Rules, O. Reg. 114/99, as amended (“theRules”). These are the sub-rules in rule 16 that are relevant to this case: When Available 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion forsummary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuineissue requiring trial. Evidence of Responding Party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may notrest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issuefor trial. Evidence Not From Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusionsunfavourable to the party. No Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. 18. The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required tomake a final order and grant

summary judgment: F.I. v. K.F., , 95 A.C.W.S. (3d) 108, [2000] O.J. No. 479, 2000Cars​well​Ont 455 (Ont. Fam. Ct.). 19. On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine if there is agenuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. Children’s Aid Society of Hamilton v.M.N., , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Cars​well​Ont 2453 (Ont. Fam. Ct.). 20. The court’s role on a

summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuineissue exists as to material requiring a trial. Because

summary judgment is now explicitly contemplated by rule 16, this may “broaden theuse of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of due process,statutory requirements and the best interest, protection and well-being of the children will determine ultimately the appropriateness ofsummary judgment.” Children’s Aid Society of Waterloo Region v. Taryn S. and Eric P., , 100 A.C.W.S. (3d) 820,14 O.F.L.R. 90, [1999] O.J. No. 5561, 1999 Cars​well​Ont 4859 (Ont. C.J.). 21.

When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support theresponding party’s position, but rather whether the evidence is sufficient to require a trial: Children’s Aid Society of Dufferin County v.James R., , 118 A.C.W.S. (3d) 78, [2002] O.J. No. 4319, 2002 Cars​well​Ont 3821 (Ont. C.J.). 22.

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. Thecourt must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence 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 thetrial and the resulting prolongation of the state of uncertainty about the child’s future. Jewish Family and Child Services of Toronto v.R.A. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47, 2001 Cars​well​Ont 73 (Ont. S.C.). 23.

Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in anaffidavit or other evidence, specific facts showing there is a genuine issue for trial: Native Child and Family Services of Toronto andD.C., 2010 ONSC 1038, [2010] W.D.F.L. 2639, [2010] O.J. No. 620, 2010 Cars​well​Ont 829 (Ont. S.C.), para. 6. A party answering amotion for

summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuineissue for trial. Children’s Aid Society of Toronto v. Kathleen T., , 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000Cars​well​Ont 4827 (Ont. C.J.). 24. The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a

summary judgmentmotion. This is reserved for the trier of fact. Children’s Aid Society of Nipissing v. Marielle M., , 98 A.C.W.S. (3d)134, [2000] O.J. No. 2541, 2000 Cars​well​Ont 2372 (Ont. S.C.); Children’s Aid Society of Hamilton v. M.N., supra. 25. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party isrequired to prove constitutes disagreement about a material fact. Children’s Aid Society of the Regional Municipality of Waterloo v. TaraLee H., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005 Cars​well​Ont 8104 (Ont.

C.J.). 26. A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process notbe used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issuemust arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguablenotion discernible from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removalof the child from her care and has developed some new ability as a parent.

Children’s Aid Society of Toronto v. Robin H., , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 Cars​well​Ont 6170 (Ont. C.J.). 27. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.Children’s Aid Society of the Niagara Region v. S.C., , 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 Cars​well​Ont5929 (Ont. Fam. Ct.), para 43. The Protection Findings 28. CAST is seeking protection findings pursuant to ss. 37(2)(b)(

i) and (ii), and s. 37(2)(

g) of the CFSA”: Child in need of protection

(2) A child is in need of protection where, (

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 orresulting 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; . . . . . (

g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iiii), (iv) or (

v) resultingfrom 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; Evidence regarding the Protection Findings 29. There is substantial evidence to support the protection findings sought by CAST, and the protection findings regarding bothchildren under s. 37(2)(

b) and (

g) are made, unopposed by the parents.

30 . CAST’s position is that both parent’s parenting has been negatively affected by the following: o Both parents have substance abuse and addiction issues; o The father has mental health issues; and, o The relationship between the parents is dysfunctional, high conflict and violent. 31 .

In addition, CAST’s position is that since June 2009 the parents have not been forthcoming with information related to the protection concerns, nor have the parents worked to address these serious concerns, and that none of the protection concerns have been adequately addressed since the children were apprehended on 15 December 2009. The Parent’s Substance Abuse and Addiction 32 . There was ample evidence that both parents have substance abuse and addiction problems, and that those problems have not been addressed. 33 . The parents admitted to on-going drug use (cocaine and oxycotin).

CAST asked the parents for drug testing from the very start of their involvement, in July 2009. The parents refused drug testing, as they said they had been completely honest about their substance use and therefore there was no reason for testing. The society worker asked the parents to do hair strand testing in spring 2010, and after that, CAST continued to ask the parents to take drug testing. 34 .

The mother abuses prescription drugs and admitted to an addiction to prescription drugs: • The mother admitted that her addiction to oxycotin began after the birth of one of the children when the father gave it to her to ease the pain of the surgery; • In August 2009 the mother admitted that she continued to struggle with using oxycotin and that she had not found the methadone program to be as effective as she needed it to be; • In April 2010 the mother admitted that she understood that she needed to abstain from drugs in order to get her children back; • In May 2010 the mother said that she did not think she had an addiction; • The mother did not follow through with referrals from the society worker during 2010.

She did, however, complete a methadone program in about November 2010; • In January 2011 the society worker asked the mother to go for hair tests; • The mother was involved in a methadone program for 4½ months (in July 2011); • The mother did not provide consents for the society worker to discuss her condition or her treatment with her treatment providers or her contact people at the Centre for Addiction and Mental Health;

• As of May 2011 the mother was not doing any counselling to address addiction as she did not believe she has a problem; • The mother has not gone for hair tests for 7 months; and, • The mother did not even say at the motion that she is well now. 35 .

There was also ample evidence that the father was involved in using drugs and in providing them to the mother (including Oxycotin): ▪ The father admits that he and the mother started doing oxycotin in 2007; ▪ The father completed a methadone program in about December 2009; ▪ The father tested positive for cocaine in July 2010; ▪ CAST asked the father to do hair strand tests and he has not done any after June 2010; ▪ The father came for access when he may have been under the influence of drugs; and, ▪ The father has not given the CAST any indication of what efforts he has made, if any, to address his outstanding addiction issues.

The Father’s Mental Health 36 . The father has been diagnosed as paranoid schizophrenic. He has received income from the Ontario Disability Support Program (“O.D.S.P.”) since 2004 as a result of the diagnosis of paranoid schizophrenia. Notwithstanding this, the father denies having paranoid schizophrenia. 37 .

The following information about the father’s mental health, in a report from a psychiatrist, was contained in his Application for O.D.S.P. benefits, dated 26 April 2004: ▪ The diagnosis is paranoid schizophrenia; ▪ “Patient has experienced auditory hallucinations and paranoid fears for over 10 years, but did not receive any professional help until two years ago after the death of his father and following some legal problems. History of marijuana and cocaine use.

He remains actively psychotic, with severe paranoid delusions, difficulty coping, poor concentration, poor social skills and has a high risk of getting into altercations because of perceived social slights or fear of being threatened by others. Has family history (deceased father) of schizophrenia”. ▪ He was hospitalized as long ago as 1992 in Florida for psychotic breakdown; ▪ At that time (2004) he was on three different medications for three conditions: o Olanzapine for psychosis; o paloxifene for depression; and,

o Clorazepam for anxiety/panic attacks; ▪ “Patient has persistent anxiety about being followed and people being out to hurt him”; ▪ He is chronically anxious, and performs some irrational compulsive behaviours; and, ▪ “He is currently acutely psychotic and very limited in his functioning”. 38 . The father was asked to produce a letter from a doctor about his current mental health condition, but he did not do that. 39 .

The father was referred to Family Services Association, Elizabeth Fry Society, and the Centre for Addictions and Mental Health for the Metro Addictions Assessment Referral Service Program, but he has not followed through with any referrals. 40 . The father has an extended history with the police regarding drug contacts, assaults, weapons and property crimes and offenses. The Parents’ Dysfunctional, High Conflict and Violent Relationship 41 .

There was evidence that the parent’s relationship with each other is dysfunctional, high conflict, and violent: o There is a history of domestic violence (which the father denies); o The father has been violent, verbally abusive and controlling with the mother (which the father denies); o There is a history of high conflict and physical violence between the parents that has required police presence and has involved criminal charges being laid; o There are multiple police occurrence reports in 2005, 2006, 2009, 2010; o The father says he has never assaulted anyone, has no history of violence, and that he has no criminal record, yet he has a long history with police for drug contacts, assaults, weapons and property criminal offenses; o The mother admits the following: ▪ The mother has been a victim of domestic violence by the father; ▪ this was a toxic relationship; ▪ There is a dysfunctional and high conflict relationship between the parents; ▪ from very early on in their relationship, the father was violent towards her and this, along with controlling and abusive behaviour, has continued;

▪ the father was physically and verbally abusive to her, and the police had not charged him; ▪ the father is controlling and verbally abusive; and, ▪ the father does not allow her to go anywhere without him or at least without his knowledge. The Children 42 . The parents were unable to provide the children with routine and structure when the children were in their care. As well, the home was messy, cluttered and dirty. 43 . L.A.D. was 5 years old when apprehended. She had missed a great deal of school and was behind in her reading skills when she came into care.

She had missed the entire third term of Kindergarten, for reasons of chronic head lice, and illness. 44 . B.B.L. was nearly 4 years old when apprehended.

There were many more problems for her at that time: • She was functioning well below her chronological age; • She was not used to having routines and expectations; • She had difficulty with both fine and gross motor skills; • She did not have stranger awareness; • She used limited vocabulary and did not pronounce words correctly; • She had difficulty processing information and could not follow more than one direction at a time; • She required a high level of supervision as a result of safety concerns; • She did not get along with other children at day-care; • She had many difficulties at school; • She required adults to meet most of her self-care needs, for example: o She was not toilet trained at 4 yrs old; o She could not feed or dress herself; and, o She did not eat with a fork.

Disposition Disposition Legal Principles 45 . Once a finding is made that the children are children in need of protection, the court must determine what order for their care is in their best interests. 46 . Section 57(1) of the CFSA sets out the types of orders available to the court after a child is found to be in need of protection: 57.

(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders, in the child’s best interests:

Supervision order 1. That the child be placed with or returned to a parent or another person, subject to the supervision of the society, for a specified period of at least three and not more than twelve months. Society wardship 2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months . Crown wardship 3. That the child be made a ward of the Crown, until the wardship is terminated under

section 65 or expires under subsection 71 (1), and be placed in the care of the society. Consecutive orders of society wardship and supervision 4. That the child be made a ward of the society under paragraph 2 or a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. 47 . The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out recently by Perkins, J. in Children’s Aid Society of Toronto v.

Tracy L. and Evonne B. , 2010 ONSC 1376 , [2010] W.D.F.L. 1957 , [2010] O.J. No. 942 , 2010 Cars​well​Ont 1343 (Ont. S.C.), para. 25, as follows: 1. Determine whether the disposition that is in the child’s best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is society wardship or Crown wardship. (Section 57) 2.

If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child’s best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship. 48 . Section 57(1) is limited by

section 70 of the CFSA , which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the CFSA . Although the children are now placed with family members, both children were in care for 14 months before their move to live with family, a period which exceeds that allowed by statue for the younger child. 49 .

A further order for society wardship is not available for these children (nor is it sought), unless the court makes an order extending the time period allowable under s. 70 CFSA . That order was not sought in this case, nor is it appropriate for these children, as it would not be in their best interests for their status to continue to be unresolved. The only options now available for the children are to return to the mother’s care (or someone else’s care) under a supervision order, or a crown wardship order. 50 .

Section 57(2) CFSA requires the court to inquire into what efforts the society has made to assist the child before intervention. Here the society worker made repeated efforts to refer the parents to programs to assist them (e.g., addiction counselling, addiction assessment programs, parenting programs, therapeutic access, counselling for the mother about the relationship). The parents did not did not follow through with the referrals and did not engage with the programs. 51 .

Section 57(3) of the CFSA requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For reasons articulated below, returning the children to the mother, even with a supervision order, would not be adequate to protect the children in this case and would not be safe. 52 . Section 57(4) of the CFSA requires the court to look at community placements, including family members, before deciding to place a child in care.

Family members have come forward to care for these children. One of the issues for the court to consider is whether or not there is a triable issue with respect to the legal arrangement that would exist for that placement, if it is a suitable long- term placement.

53 . In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child’s best interests are set out in s. 37(3) of the CFSA : Best interests of child 37.

(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 take into consideration those of the following circumstances of the case that he or she considers relevant:

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

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

c) The child's cultural background.

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

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

f) 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.

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

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

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

j) The effects on the child of delay in the disposition of the case.

k) 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.

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

m) Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) . 54 . A crown wardship order is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. Catholic Children’s Aid Society of Hamilton-Wentworth v. Jill G. (1996), 90 O.A.C. 5 , 23 R.F.L. (4th) 79 , [1996] O.J. No. 1394 , 1996 Cars​well​Ont 1428 (Ont. Div. Ct.).

55. In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at thetime of the apprehension still exist today. This must be examined from the child’s perspective. Catholic Children’s Aid Society ofMetropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, , [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376. 56. The significance of the child-centered approach is that good intentions are not enough.

The test is not whether the parentshave seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in hisor her best interests. There is not to be experimentation with a child’s life with the result that in giving the parents another chance, thechild would have one less chance: Children’s Aid Society of Winnipeg v. Redwood (1980), (MB CA), 19 R.F.L. (2d)232, [1980] M.J. No. 245, 1980 Cars​well​Man 44 (Man. C.A.).

There has to be some demonstrated basis for a determination that theparents are able to parent the child without endangering his or her safety. Children’s Aid Society of Brockville, Leeds and Grenville v. C.,(2001), 104 A.C.W.S. (3d) 892, [2001] O.J. No. 1579, [2001] O.T.C. 287, 2001 Cars​well​Ont 1504 (Ont. Fam. Ct.). 57. An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the childwho becomes a crown ward, and it changes forever the life of the parent. No-one in the family is untouched by this order, and no-onewill ever be the same.

It is an order that is not to be made lightly, or without careful thought and consideration regarding all the optionsavailable for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and importantdecision any court can make. Analysis re Disposition 58. These are the options available regarding disposition for these children. The children may be: i. returned to the mother’s care; ii. placed with other family or community members; or, iii. the court may make an order for crown wardship. The Mother’s Plan 59.

The mother’s plan is for the children to be returned to her care. She lives with her mother in Keswick, Ontario. The maternalgrandmother is 56 years old, is at home full-time, and lives with a long-time partner (who is 52 years old). She has four children,including the mother (28 years to 32 years old), and 10 grand-children/step-grand-children. Her partner has three grown children, and 12grand-children. 60. The mother’s sister (31 years old) and her three year old child also live with the maternal grand-mother. 61.

The mother says that she has received treatment for her addiction from three doctors and from a fourth person (area of practiceunidentified). There was no evidence presented from any of the four treatment providers. 62. When the motion was heard, the mother was still not free of drugs. She was part way through her second attempt in amethadone program to stop her addiction to Oxycontin, 63. The mother says that she is finished her relationship with the father, that she does not live with the father and that she has nocontact with him. The Parent’s Access to the Children 64.

The mother attends the weekly access on a regular basis. The father has been inconsistent with visits, and has had no visitssince 23 February 2011 (6 months at the time of the motion).

The Mother’s Lack of Judgment Regarding her Relationship with the Father 65 . The mother’s long standing relationship with the father and her inability or her refusal to see the father as a threat of harm to herself or the children is at the core of her lack of judgment regarding her parenting. The mother continued in a relationship with the father even after the children had been apprehended partly as a result of this relationship. 66 .

The society worker recommended counselling for the parents to address the conflictual manner in which they speak to one another, and as well recommended individual counselling for the mother regarding her experience of domestic violence. 67 . The parents have not engaged in any therapeutic interventions to address the dysfunction in their relationship, in a manner that would suggest it would be safe for them to remain as a couple, or even to have long-term liberal contact. 68 .

The mother has been consistent in pursuing her relationship with the father, even in the face of clear information from CAST that there were serious concerns about his involvement in her life and in the lives of the children. The mother has repeatedly shown lack of judgment regarding her relationship with the father. How can the court have any confidence in the mother’s ability to protect the children when she has exercised such fundamentally poor judgment? 69 .

The degree of risk posed by the father continues to be significant, given the severity of his diagnosis, the chronic nature of his mental health and his on-going lack of treatment, and his long history of violence and controlling behaviour towards the mother. Examination of the Disposition Options 70 . The evidence which supported the protection findings is also relevant and influential regarding disposition.

The parent’s parenting has been negatively affected by their substance abuse and addiction issues, by the father’s on-going mental health issues, and by the dysfunctional, high conflict and violent relationship between them. Since the first involvement with CAST in June 2009, the parents have had ample time and opportunity to work on these issues, but have not provided CAST or the court with information related to the protection concerns, and have not addressed these serious protection concerns, Why Not a Supervision Order? 71 . One option is to return the children to the mother, subject to a supervision order.

That is not a suitable option as t he children would not be safe with the mother under a supervision order. 72 . The mother has lied to the CAST about her relationship with the father, and about other things, has not followed through with recommendations from CAST that she needs to get counselling to assist her in dealing with the violent relationship she has with the father, and is still not drug-free at the time of the

summary judgment motion. 73 . Any plan for the return of the children to the mother would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order.

There is no foundation for a working relationship or a supervision order under the circumstances in this case. Any supervision order involving the children and the mother would be an ineffective instrument for the protection and safety of the children. The mother is not a suitable candidate for a supervision order, which requires a sense of co-operation and a willingness to work with CAST. 74 . The children are entitled to certainty, finality and to grow up in a safe and stable family, where they are valued and protected from harm. They will not have this if they are returned to the mother.

Other Disposition Options 75 . The challenge for the court in this case is choosing the proper disposition option for the children that does not involve a return to the mother’s care.

76 . The central issue regarding disposition in this case is the tension between the desire for certainty and finality for the children (which would lean towards crown wardship, no access and adoption), and the desire to see the children placed with a known suitable care-giver, placed with a sibling, and placed where the court has the ability to control the placement (all of which would happen if the children were placed with their sister under either a supervision order or a s. 57.1 CFSA order). As well, the court is required to consider such a plan, from a family or community member, under s. 57(4) CFSA . 77 .

Should the children become crown wards without access for the purposes of adoption, the court is not involved in the adoption placement of the children. They could be placed with Ms. P.C. and Mr. C.P. However, CAST has the legal right to decide where crown wards without access are placed for adoption. The court is not involved in this decision. The parents are not involved in this decision. CAST has the legal authority to choose another family for the adoption placement. CAST has the discretion to choose the family they want to choose in the children’s best interests.

And although CAST indicated at the motion that Ms. P.C. and Mr. C.P. are currently their first choice for the adoption placement, CAST in no way undertook to the court to place the children for adoption with Ms. P.C. and Mr. C.P., nor does CAST have the right or authority to do so. 78 . Should the court choose crown wardship without access, the court gives up any ability to control or even influence the adoption placement of the children. 79 . It is clear that if the children were placed with Ms. P.C. and Mr.

C.P. under a supervision order or a s. 57.1 CFSA order, there is a risk that there would be no certainty or finality for some time, and possibly no certainty or finality at all. The status review process which results from a supervision order means that the mother has an open door to return to court to seek the return of the children, much as she would have if there were an order for custody of the children to Ms. P.C. and Mr. C.P. under s. 57.1 CFSA, through a motion to change under the CLRA .

That option is not available to the mother if the children become crown wards without access for the purposes of adoption. Crown wardship has the added advantage of certainty and finality, which the other options do not offer. 80 . It is not in the best interests of L.A.D. and B.B.L. to delay their permanent placement any longer. 81 .

It is not in the children’s best interests for the court to choose a disposition that will continue the litigation, leave the door open to the mother claiming a future return of the children, or risk that there might have to be another trial to determine the proper future disposition. The proper disposition for these children now is clear. The mother is not capable of caring for these children and they should not be returned to her care. 82 . It is possible for the court to choose a placement with Ms. P.C. and Mr. C.P. subject to a supervision order or a s. 57.1 CFSA order.

Neither of these options was requested by any of the parties, nor argued at the motion. However, neither of those options offers certainty and finality. Both options offer the near certainty of future litigation and the risk of instability and uncertainty for the children for some period of time. 83 . It is not in the children’s best interest, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship. The

Summary Judgment Request 84 . The mother’s evidence on the motion was sparse, included little detail, and contained only general denials. She offered no details of the current status of any treatment or other program she may be in (other than the unfinished methadone program). She offered no explanation as to why she did not follow through with CAST recommended programs. There is no evidence that she has received any counselling or therapy. 85 . There are many important issues that the mother does not address in her evidence.

The court has, however, all the necessary material facts to determine the disposition issue. If the mother’s evidence on the motion is her “best foot forward”, (see Children’s Aid Society of Toronto v. Kathleen T. , supra ), it discloses no genuine issue for trial. There is no realistic possibility of an outcome other than that sought by the CAST ( see Children’s Aid Society of the Niagara Region v. S.C. , supra ). There is no need to have a trial judge decide this issue. The motion for

summary judgment is granted. Orders

86 . These are the statutory findings regarding these children: • L.A.D. is a female child who was born on […] 2004. She is not Catholic and not Jewish. She is not Indian and not Native. She was apprehended on 15 December 2009, in the City of Toronto; and, • B.B.L. is a female child who was born on […] 2006. She is not Catholic and not Jewish. She is not Indian and not Native. She was apprehended on 15 December 2009, in the City of Toronto; 87 . Unopposed, the children are found to be in need of protection under ss. 37(2) (

b) and (

g) CFSA . 88 . L.A.D. and B.B.L. shall be crown wards. 89 . At the request of the CAST the issue of access to the children is a triable issue, and is referred to trial for the next assignment court. Released: 30 December 2011 ________________________________ Justice Carole Curtis