Family and Children’s Services of St. Thomas v. B.O., 2011 ONCJ 640

St. Thomas Registry No. 206/08 DATE: 18•IV•2011 CITATION: Family and Children’s Services of St. Thomas v. B.O. , 2011 ONCJ 640 ENDORSEMENT Applicant: Family & Children’s Services of St. Thomas & Elgin Respondents: B.O.; J.B.; D.B1.; and, D.B2. Hearing Dates: February 17, 2011; April 8, 2011 Decision Released: April 18, 2011 Counsel: Elizabeth Wilson for the Applicant Keli Mersereau for B.O. & J.B. David Pentz, O.C.L. Karen King, Duty Counsel for D1. and D.B2. ____________________________________________________________________________ The Applicant moves for

Summary Judgment respecting placement of S.L.L.M. who was born July […], 1996 and Z.C.B. who was born June […], 1998. The children were apprehended from B.O. and J.B. B.O. is their mother. S.M. is S.’s father. He has never participated in any of the proceedings and has disappeared. He has been dealt with in context of this application. J.B. is Z.’s father and J. also parented S. before the apprehension. Z.’s paternal grandparents, D.B2. and D.B1., are the proposed placement home in this motion. The relief sought is a finding that the parents continue to pose a risk defined in s. 37(2)(

b) of the Child and Family Services Act and that the children should be placed in the custody of their paternal grandparents pursuant to s. 57.1 of the Act. The parents ask that the

Summary Judgment motion be dismissed and move for temporary placement pending trial. I intend to treat their motion as one for

summary judgment. A motion for interim placement would be inappropriate at this stage of this particular status review application. In this decision, since the parents are the focus, I will refer to them, where applicable, simply as the parents in lieu of the longer statutory reference to “persons having charge of the child before intervention”. The position of the grandparents in their materials is not clear and gives rise to the heart of the submissions today. Rule 16(6) Family Law Rules dictates that the test for

summary judgment is met when the Applicant satisfies me there is no genuine issue for trial. It is the Applicant’s onus to meet this test on a balance of probabilities. In regard to identifying or ruling out a genuine issue for trial, I have applied the following cases cited by the Applicant: Children’s Aid Society of Simcoe v. D.R. , [2010] O.J., No. 1582 , S.C.J.; Children’s Aid Society of Toronto v. R.H. & M.H. , June 9, 2000, O.C.J.; Jewish Family and Child Service of Toronto v. R.A. & J.G. , June 6, 2000, O.C.J. In context of Rule 16, the question is if an s. 57.1 order is to be made, what are the issues for trial that need to be identified and ruled out before

summary judgment can issue? Background On August 29, 2007, the parent’s brought the children to the paternal grandparents and asked them to care for them while the parents dealt with some personal issues. On the strength of comments by the children about the circumstances in their home, the grandmother called the Applicant. Investigation suggested the parents were both addicted to opiates and had difficulty providing for their children. They were transient and the homes they occupied were frequently dirty and unkempt.

The children were either not disciplined and allowed to fend for themselves or inappropriately disciplined. The children were aware of their parent’s addictions. Service agreements were negotiated between the Applicant and parents during which the children remained with their grandparents. By the fall of 2008, the parents had not cooperated with the programs identified for them and the Applicant issued a protection application. The initial protection order was made on February 5, 2009. A status review order was made on October 15, 2009.

The children remained in the care of the grandparents under both subject to supervision. The risks identified in both orders were the parents’ un-remediated addiction to drugs, their transiency, their inability to maintain a clean home, their lack of cooperation with programs and, at times, their inconsistent attendance at access visits.

This second review application was commenced on April 27, 2010. The Applicant sought Crown wardship with access to the parents and grandparents. The parents asked that the children be returned to their care. The grandparents asked that the children remain in their custody until the parents are able to assume care and control. As a result of the wording in their answer, it was not clear whether the grandparents were prepared to retain the children permanently or were merely offering their home as a temporary placement.

They appeared to be wavering in their commitment due to the children’s behaviours that they were finding difficult to control and due to the children’s demands that they be allowed to live with their parents. The grandparents later clarified that they were indeed committed to care for the children permanently and their answer was amended to show an s. 57.1 custody claim. It is not disputed that the parents have not always been committed to visiting their children. When they missed visits, particularly over longer periods, the children would become upset and despondent.

S. in particular noted the missed visits and in his anger made life difficult in the grandparent’s home. Further, the children demanded to go home. They were placated by promises the parents would change and they would be reunited but each time the parent’s failed to follow through with their promises, the acting out behaviours got worse. The grandparents are struggling with their behaviours. The Applicant’s

summary judgment motion was issued on November 24, 2010 and supports the s. 57.1 custody order requested by the grandparents in their answer. In their response to the Applicant’s

Summary Judgment motion, the grandparents delivered glowing reports about the parents and their interactions with the children. They expressed they could not understand why the children could not go home with the parents and have their role limited to providing support where necessary. This appeared to be their bottom line in their materials – notwithstanding oral submissions that they were still committed for the long term.

It is tempting to go directly to the issues left unanswered in the grandparent’s pleadings but to do so would, in my mind, ignore issues that, by the legislation, need to be addressed when considering s. 57.1. Defining Issues for Trial The Child and Family Services Act authorizes State intervention into the private affairs of families in circumstances where children are placed at risk by the conduct of one or more parent.

Under the Act, barring a dismissal of the risk issue or a finding under s. 57(9) that risk has dissipated, the Applicant Society is bound by and a party to one of four disposition orders enabled under s. 57(1): supervision, Society wardship, consecutive Society wardship/supervision or Crown wardship. Further, the Society is bound by statute to initiate a review of dispositional orders other than crown wardship within set time frames. In 2006, the Act was amended and s. 57.1 was added.

For the purpose of defining issues for trial in this proceeding, the following provisions are relevant: 57.1(1) Subject to subsection (6), if the court finds that an order under this

section instead of an order under subsection 57(1) would be in the child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of that person or persons. 57.1(2) An order made under subsection (1) and any access order under s. 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under s. 28 of the Children’s Law Reform Act and the court, (

a) may make any order under subsection (1) that the court may make under s. 28 of that Act; and, (

b) may give any directions that it may give under s. 34 of that Act. 57.1(6) No order shall be made under this

section if, (

a) an order granting custody of the child has been made under the Divorce Act ( Canada ); or, (

b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court. 57.1(7) Subsection 57(3) applies for the purposes of this section. The amendment adds a fifth disposition to s. 57(1) - a domestic custody and access order. Once the order is made, the Society’s role is terminated obviating the need for a review.

The rationale for this amendment is irrelevant to these proceedings but it is necessary, in context of defining possible issues for trial, to discuss the relationship between sections 57(1) and 57.1 in regard to the appropriate considerations leading to the eventual custody and access order requested. Relationship between s. 57 and s. 57.1 In my mind, the directive in the

preamble to subsection 57.1(1) - “if the court finds that an order under this

section instead of an order under subsection 57(1) would be in the child’s best interests, the court may….” - evidences a legislative intent that the two sections be considered sequentially and an s. 57.1 disposition should not be considered until the court has ruled out all s. 57(1) dispositions raised in the pleadings in the interests of the child. In its assessment of the appropriate dispositional order to be made under s. 57(1), the court is mandated to make a number of core findings.

Since these core findings must be ruled upon before the court considers s. 57.1, each core finding under s. 57(1) is a potential issue for trial. The core findings are risk; jurisdiction to make the disposition sought; purposes and principles of the legislation; and, best interests of the child. If a court is considering a protection application, each of the core findings must be specifically discussed and ruled upon in the endorsement in context of the parent. In status review applications, the focus of some of the core findings may be weighed differently but

in situations where the child will not be returned to the care and control of the parent, each finding must, to an extent, be accounted for. On the evidence tendered in this motion, no issues for trial are identified under any of the s. 57(1) core findings. The following are my reasons. Section 57(1): Risk In regard to risk, the overarching issue is the parent’s drug addiction. Risks related to transiency or the state of the home or interactions with the children would likely dissipate if the addictions were appropriately addressed.

The parent’s addictions were ingrained when the children were left with the grandparents in August of 2007. A review of the two subsequent supervision orders – both of which were made on consent - show that treatment was mandated and the parents agreed to show that they were responding to the treatment in a positive, pro-active and consistent manner. The evidence is conclusive – beyond any doubt – that while both parents have enrolled in programs, their involvement, interest and bona fides in the programs has been inconsistent.

They have been secretive about what is being accomplished and how they are implementing what they learn into their everyday affairs. Up to the hearing of this motion, both parents have consistently tested positive for cocaine use (as well as inconsistent use of other drugs) notwithstanding that the parents are both enrolled in treatment programs (including methadone) and both trumpet these programs as evidence of their improvement. The connection between their addictions and deficient and risky parenting is clear.

As long as they are addicted and untreated, the children will be drawn into the lifestyle and culture of the illicit drug trade. As long as they are addicted, both parents will continue to ignore the children’s need for care, guidance, discipline and attention. Given their ages, both children will likely be left to their own devices while their parents struggle to find the money for and the source of their next high. In reality, the parent’s main focus in their submissions is the hope expressed by the children that they will return home.

The heartfelt hope of the children to return to their parents care is of no assistance in defining a genuine issue for trial: Children’s Aid Society of Toronto v. R.H. & M.H., supra at page 4. What the children hope for will not change the fact that they are at continued risk of harm as defined in both subsections 37(b)(

i) and (ii) if returned to the care of their parents. In regard to risk, the Applicant has conclusively shown that no issue for trial exists and it is entitled to the continued finding asked for as against the parents. Section 57(1): Jurisdiction Jurisdiction to make a disposition order under s. 57(1) will exist provided the statutory preconditions in s. 56 and subsections 57(2), (3), (4), (5) and (9) are clearly addressed. These are findings that must be made and endorsed before the court is permitted to make an order. As to s. 56, no Plan of Care was filed with this motion.

One was filed after submissions on the motion when the parties returned a month later to address access issues. More will be said of this oversight below. The s. 57(2) inquiry respecting assistance prior to intervention is answered by the 2007-2008 Service Agreements. The parents have not challenged with cogent evidence the existence of the agreements, their fairness and focus, their obligations under them and their failure to comply with them. To the extent that this finding is relevant to a status review application, there is nothing flowing from s. 57(2) to be resolved in a trial.

The s. 57(3) and s. 57(4) findings are likewise clearly outlined in the evidence. The children have always been placed with family. The parents have never suggested or promoted an alternative placement to the grandparents if the children are not returned to their care. There is no evidence the children, due to personal needs or disabilities, need to be placed in a specialized or community setting. The parents do not identify in their materials a less disruptive alternative to this placement continuing.

The children have no native ancestry and subsection 57(5) does not apply; and, there is no doubt that as the identified risks relate to the parents, ongoing court involvement pursuant to s. 57(9) is demanded in the interests of protecting the children. There are no jurisdictional issues for trial. Section 57(1): Purposes and Principles of the Legislation Section 1(1) of the Act underpins every finding and s. 1(2) defines the remedial focus and the spirit in which remedial interventions should be delivered.

Consideration under this core finding generally does not require a separate endorsement since the principles underpin every factual assessment the court makes in reaching its decision. In many cases, depending on the risks alleged, remedial demands tend to be quite elastic and it is often difficult to assess when the Society’s duty has been fulfilled in context of returning the child to the care of the parent. The answer boils down to what the State, once it intervenes in the affairs of a family, owes to the family and what the responsible parent owes the child to support closure.

The Society owes the duty to provide remedial services that will bring the risks to a manageable level acceptable by community standards. When finding is confirmed, the parent owes a corresponding duty to accept and implement the services. Functionally, the community standard is objective and depends on the facts of each individual case. Objectively, the community does not demand perfection in the resolution of the risks or that a family must be “remade” so that no risk can ever arise again or a total resolution of the risk before the Society is released of its obligations.

In my mind, the community demands the risk is honestly acknowledged by the responsible parent as evidenced by their cooperation with interventions, the interventions are focused on the core risk issue(s), repetition of the risk is sufficiently controlled through ongoing interventions upon a return of the child to the parents and the family is appropriately equipped to address residual issues the parents

might face upon return of the children. Section 57(1): Best Interests As between the parents and the Applicant, the evidence is clear that a trial will resolve nothing under this heading. They have not identified a single incident of change in their circumstances that grounded the risks identified in the two prior orders. If the children were returned to their care, there would shortly thereafter be a breakdown in meeting their physical needs, another apprehension is likely and would disrupt or further damage any sense of relationship and family security the children might have.

Continuity of care would be meaningless and the certainty of risk of future harm grossly tips the merits of plans in favour of the Applicant. The court acknowledges the wishes of the children to be reunited with their parents. However, the court cannot allow a child to wish him or herself into a harmful/risk-filled circumstance. On these facts, the risks grossly outstrip any weight that can be given to the children’s wishes.

Conclusion: s. 57(1) The Applicant has satisfied me that there is no genuine issue for trial on the disposition proposed by the parents that would see the children returned to their care – with or without supervision. No other s. 57(1) disposition is on the table for consideration. To this extent,

summary judgment should issue rejecting placement with the parents. The parents do not dispute, as an alternative position, that it is in the best interests of their children that they remain in the care of their grandparents if they cannot be returned home. Whether they should remain with their grandparents under a supervision order or a custody order or not at all is the issue that will be discussed below.

Section 57.1 There are core findings that must also be determined pursuant to s. 57.1 before the court should endorse a custody order. These core findings are jurisdiction, purposes and principles of the Act and ultimate best interests. Core findings under s. 57.1 are not as linear as those under s. 57(1) and will overlap in the assessments under the various headings. I have addressed each individually since my task in this motion is to identify and rule out issues on

summary judgment. If this were a trial decision, many of the assessments below would be combined.

Section 57.1: Jurisdiction There are six jurisdictional findings that must be made before the court can endorse an s. 57.1 custody order: ongoing risk; an order under this

section instead of an order under subsection 57(1) would be in the child’s best interests; conflicting orders; plan of care; least disruptive finding; and, consent. (

a) Risk This finding does not require a further risk assessment from that conducted under s. 57(1). Suffice it to say that without a positive finding of risk under s. 57(1), the court would have no jurisdiction to embark on an s. 57.1 analysis since, without risk, there is no jurisdiction to make a dispositional order. (

b) Threshold Best Interests Every dispositional order must be made in the best interests of a child. That is mandated in s. 57(1) and s. 57(1) enables an s. 57.1 custody order. The issue is which placement is the focus of the balancing required at this point in the subsection 57.1(1) analysis: the parents or the proposed family? The balancing is between an order under this

section instead of an order under subsection 57(1) and by its reference to s. 57(1), I am of the view the legislation demands that the parents remain the focus at this stage. However, since the parents have been denied a placement order in this Application under the s. 57(1) assessment, the only issue remaining from their perspective is whether their custodial rights should be extinguished (as will be the result if the s. 57.1 order is made) in the interests of a more permanent plan for the children.

Whether it is in the interests of the children to extinguish their parent’s custodial rights in favour of permanency planning will depend whether the remedial demands of the legislation have been met by the Applicant and whether the parents show any reasonable chance of success in meeting their obligation to change.

The Applicant must show that its remedial obligations under the Child and Family Services Act to the parents have been fulfilled since, in my mind, it cannot be in the interest of a child to have his or her custodial relationship with his or her parents disrupted by child welfare legislation where the State has not fulfilled its statutory obligations. The parents can adduce evidence supporting how the remedial obligations have not been met or how, with additional time, the remedial steps will likely succeed.

If a reasonable chance to succeed is shown, it cannot be in the interest of the children to have their custodial relationship with their parents permanently disrupted. This threshold assessment can be analogized to s. 57(6) of the pre-March 31, 2000 statute wherein the court was required, before endorsing a crown wardship order, to be “satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time”. This point in the s. 57.1 assessment is the parent’s last opportunity to put their best foot forward.

If the court finds threshold best interests promotes further consideration of the order, the parent’s rights and interests will receive little weight afterward.

Further, at this very early stage of the s. 57.1 assessment, it would be dangerous to apply a broader best interests standard in which competing plans for the child are compared. That there is a better place for a child than a home burdened by unremediated risk(

s) would be an unfair and stacked determination. An s. 57.1 order allows the Society to withdraw and it must not be permitted to do so if it has not met its statutory obligations or the parents might reasonably succeed with additional assistance. This should be the limit of the best interest inquiry at this stage. The viability of the s. 57.1 plan will be assessed later wherein circumstances involving the Society, placement home and children will be balanced and considered.

On the evidence presented in this motion, it is conclusively shown that the Applicant has fulfilled its remedial obligations to the parents and by their conduct, the parents cannot show a reasonable chance of success in the future. A decision to alter one’s lifestyle is very personal and will not be accomplished simply because it is mandated by agreements or court orders. This is especially so where substance abuse is the issue.

The best that can be accomplished by a Society is to offer focused and reasonable choices for assistance, a cooperative and supportive environment in which the Applicant and parents can work together and ongoing positive encouragement as successes are achieved or failures experienced. The will to succeed is solely within the control of the parents. The programs identified for the parents in 2007 and throughout the proceedings were the best this region has to offer and they provide a broad range of supportive services. They were focused to the risk issue.

They were not so overwhelming that only an elite few can expect to achieve success. If the parents wanted to change, the programs were equipped to make it happen. Unfortunately, the parents did not choose to change. After four years of encouragement and direction, it would be wishful thinking to find that with a bit more time they might succeed. By their failure to respond to the programs and their secretiveness with the Applicant as it attempted to confirm their progress, both parents have, by their choices, elected to maintain the lifestyle that based the first two orders.

There is no realistic prospect of success in the reasonably foreseeable future and it would run contrary to the child focused purposes of the Act to delay permanency planning any further. I find the remedial purposes of the Act focused on the parents have been spent and it is in the interests of the children to consider an s. 57.1 custodial placement. (

c) Conflicting Orders This jurisdictional issue is raised in s. 57.1(6). In its motion, the Applicant must show there is no existing Divorce Act order respecting custody of the subject children under subsection (

a) and under subsection (b), that there is no Superior court order that would conflict if this court made the order sought. In regard to subsection (b), the Applicant must provide evidence that an action for custody in the Superior Court (whether under Federal or Provincial legislation) is not ongoing or ongoing but stayed pending the CFSA outcome. If either scenario exists, a disposition under s. 57.1 is, in my mind, not available. I did not locate any mention of conflicting orders in its materials and a failure to adduce evidence respecting s. 57.1(6) creates an issue for trial. (

d) Plan of Care

Section 56 of the Act mandates that a written plan of care must be filed and that the court must consider it before it makes an order pursuant to s. 57(1). When s. 57.1 was added to the Act, s. 56 was also amended to require that a plan of care be filed and considered before a court makes an order under s. 57.1. The purposes of the plan of care are stated in subsections 56(

a) to (f). On its face, those purposes appear to focus considerations in anticipation of a review of an s. 57(1) dispositional order. As written, s. 56 also presumes ongoing involvement by a Society. However, the

section was not amended to reflect that if an s. 57.1 order is made, the Society will withdraw and no review can be anticipated. In the result, the legislative intent in demanding a plan be considered before the s. 57.1 order is made is not at all clear. As a jurisdictional demand, the failure to file a plan of care must lead to the conclusion that an issue for trial is outstanding. How that issue is eventually addressed would generally be defined in the legislative provision but without direction, the court is required to read in legislative intent.

In my mind, a plan of care filed in consequence of an s. 57.1 application must, at a minimum, do three things. It must provide notice to the proposed placement home of any issues impacting the children as a result of circumstances flowing from the risk(

s) they were exposed to, the fact of their apprehension and their involvement with the child welfare system. The plan must identify services available within the community to address those issues, accessibility of the services and potential cost. As will be discussed below, these are circumstances the placement family must be aware of before it can properly consent to the order. Since the order will remove the children from the care of their parents, the plan should comply with subsections 56(d), (

e) and (f). The purpose is not to explain issues that might arise on a status review application but to provide some information in the event of a variation motion. It is not yet clear, on a Rule 15 variation, what documents from the CFSA proceeding can or will be released for use in a domestic action to explain history. In this regard, the plan of care should be detailed enough to alert the domestic court to the issues leading to the s. 57.1 order and issues relevant to the applicable parties that will survive its making.

The third thing a plan will facilitate is an explanation of any restrictive provisions recommended in the access plan proposed for the s. 57.1 order and services available in the community, if necessary, to accommodate the plan. The Society should also indicate if it might re-intervene if the access plan is not followed. This will give the placement home a better indication what it is getting into and allow it to assess its ability to meet the plan. Submissions were not made on the plan filed late in the submissions process. I intend to leave any issues arising within the late plan to trial. (

e) Least Disruptive Finding

As with the application of s. 56, the intent of the legislature is unclear how s. 57(3) “applies for the purposes of this section” (s.s. 57.1(7)). Subsection 57(3) speaks of removing the child from the care of the parents but by this point in the assessment, the interests of the parents have been spent and are irrelevant. From a jurisdictional perspective, the issue is whether the evidence tendered allows the court to articulate in an endorsement how it is “satisfied” that there is no lesser intrusive alternative to the s. 57.1 placement proposed.

I do not believe the application of subsection 57(3) demands much else at this point and I am of the view the court is able to articulate its satisfaction in this fact situation and no triable issue is shown. (

f) Consent The consent of the placement parents is mandated in subsection 57.1(1). I do not read the

section to require a written consent although that would be preferable. Whether the consent is written or not, the evidence must support an unequivocal agreement to assume sole custody of the children and all the baggage such an order will carry. The weight of the baggage flows from the basic care giving demands made of any parent together with what may have arisen from the fact that the child was exposed to risks, removed from his/her parents and enmeshed in child welfare proceedings.

The evidence of their consent must clearly show a willingness to assume sole responsibility for all aspects of rearing and decision making in the interests of the children. It must clearly acknowledge any outstanding issues the children have arising from the risks they were exposed to.

Most critically, the evidence must acknowledge that they are taking sole custody in the face of and fully understanding the historic conduct on the part of the parents that placed the children at risk and, to the extent a relationship between the children and their parents is anticipated, that they adopt the obligation to shield the children from further exposure to that risk. Anything less would tend to ignore the fact that the order is the product of child welfare legislation brokered by the State which is farming out its obligation to deal with potentially difficult parents or children.

In their affidavit, after describing parenting strengths they observed during visits, the grandparents deposed as follows: “I just can’t express how much the two boys want to be with their parents. I feel to take that hope away from them would be very damaging. Just the thought of being a family again and having great faith has kept them with a positive attitude and given them great strength”. “D. and I will always be here to help J. and B. any way we can. We feel in our hearts that it would be in Zach and S.’s best interests to be with J. and B..

If this is not possible, then we will take full custody of them, but feel J. and B. should have unsupervised visits and be able to take them for an overnight visit occasionally”. These statements evidence that the grandparents believe that parenting strengths exist that are not supported in the evidence or that, on the evidence, cannot be maintained. Their affidavit does not mention an acceptance that the parents continue to use drugs and the impression given is that continued drug use is a secondary consideration in their view to the strengths identified.

A plain and simple reading of their affidavit shows it to be entirely equivocal in context of the risks presented by the parent’s ongoing addiction. On the evidence, the grandparent’s equivocal statements respecting what is required of them under this order raise issues for trial under this jurisdictional heading and in context of the interests of the children.

S. 57.1: Purposes and Principles of the Legislation Until the court endorses a custody order, I am of the view the focus of the core findings under s. 57.1 must continue to reflect the paramount purpose of the Child and Family Services Act , not a traditional custody/access assessment under the Children’s Law Reform Act . The fact that an order is deemed to be made under s. 28 of the Children’s Law Reform Act does not alter this finding. As worded, the deeming in s. 57.1 (2) relates to the point the order is actually endorsed, not the circumstances that may or may not support the endorsement.

Subsection 57.1(2) enables the court – on an s. 57.1 application – to incorporate powers of a domestic court described in subsection 28(1) (

c) of the Children’s Law Reform Act when it endorses an s. 57.1(1) custody order. Some of the powers described in subsection 28(1)(

c) appear to relate to risks continuing to accrue to a child once placed in the custodial home. However, none of the subsection 28(1)(

c) powers have a remedial focus – all appear focused on the prevention of mischief that might occur at the hands of parents who have rejected remedial efforts. In this regard, subsection 57.1(2) does not, by its wording, allow a Society to avoid its remedial obligations to the children in an s. 57.1 application by deferring to the preventative powers in the domestic legislation. The question is what the Society owes the children? The main obligation is, in my mind, ongoing protection. The secondary obligation is a reasonable assurance of an acceptable level of stability.

The main obligation arises since, save exceptional circumstances, the children will have ongoing contact with their parents under an access order: see s. 59(1.1). The assumption, since we are debating an s. 57.1 order, is that the parents continue to pose a risk to the children, the children cannot be replaced with them and the children must be protected from the ongoing risk to the extent that it will arise in contact during access. The secondary obligation requires little explanation considering the demands in s. 1(2) of the Act.

If the evidence shows the Society’s choice of placement home promotes the same obligations to the children and assuming all other factors fall into place, the intent of the legislation will have been met. S. 57.1: Best Interests In context of an s. 57.1 disposition, no discussion is required in regard to the application of best interests considerations save to say that the text of subsection 37(3) will be considered not in context of parents/children/Society but in context of placement family/children/Society.

In the ultimate analysis of best interests, a number of the considerations in s. 37(3) of the Act can be quickly ruled upon having regard to issues for trial already addressed. The degree of risk that based the original and continued findings in need of protection and the risk of returning the children into the care of their parents need not be reconsidered in light of the findings in the s. 57(1) and threshold best interests discussions. Neither the grandparents nor the Applicant raised any issues concerning the children’s cultural or religious needs.

Those criteria (s. 37(3)11, 12, 3 & 4) do not raise an issue for trial. Generally, it is accepted that delay (s. 37(3)10) in disposing a case is harmful to the children. They need to know where they will live and who will be responsible for them. If that much is unclear, they may not thrive and develop normally. In this case, the children are older and have definitive ties to their parents – whether healthy or not. They do not appear to agree with the disposition proposed. From their perspective, delay appears to be a neutral factor.

However, it should be noted that the evidence is inconclusive that they will absolutely reject a placement with their grandparents – just that they will be unhappy with it. In this regard, the court gives some weight to the fact that they have not overtly rejected the placement – to their emotional detriment - since August of 2007.

Having said this, however, the evidence is not clear and needs to be addressed at a trial on its own and in context of the nature of the children’s relationship with their grandparents, whether the relationship can grow into a sense of security of belonging in their new family unit and whether – having regard to their unhealthy tie to their parents – continuity of care can be maintained with the grandparents as described in s. 37(3) 5 & 7.

There is no evidence that either child has any specialized physical, emotional or mental need or that their physical, emotional or mental level of development requires specialized attention as described in s. 37(3) 1 & 2. The only need identified in the evidence is their ability to accept that their parents have not taken the needed steps to secure their return. Both act out in the face of this reality and over the last couple of years, the grandparents have had some difficulty coping with their related negative behaviours. This is and is not a direct result of the risks they were exposed to by their parents.

To the extent that it is directly related, there is no known remedy for the underlying cause to be implemented by the Applicant. The Applicant cannot control the parent’s decision not to cooperate. In the Applicant’s materials (Tab 10, #’s 42-46) the Applicant discusses interventions for the children designed to address their emotions leading to the acting-out behaviours. It is clear the interventions have not yet worked and the Applicant has agreed to offer voluntary services in the form of continued counselling in this area after an s. 57.1 order is made.

The grandparents did not mention this offer in their affidavit and it is not clear whether they would access or accept the service. It is also not clear whether the children would enrol again. This evidence is important considering the grandparent’s wavering in their long-term commitment due to the negative behaviours of the children. On the whole, the grandparent’s materials do not support their own plan. This raises the issue whether the Society’s original plan – crown wardship with access – is the best plan in the interests of the children or whether a further supervisory placement should be ordered.

Access None of the parties argues the parents are not entitled to access or that the court should restrict it using s. 59(1.1) of the Act. The submissions focused on the specifics of the access regime. The Applicant’s proposal for access to the parents in its motion asked for ongoing supervision by the grandparents or, if they are unable or unwilling, at a supervision center. The grandparents were given sole discretion respecting the definition of the regime. The parents were restrained from consuming alcohol prior to and during any visit.

The parents were obliged to undertake, at their own expense, monthly drug testing and to deliver results forthwith to the grandparents who, depending on the result or failure to deliver, were given the discretion to refuse access. Lastly, the motion outlined conditions precedent for future consideration whether to allow unsupervised visits. In its plan of care filed late, the Applicant deleted the provision defining conditions precedent for unsupervised access and added a prohibition against drug use before or during a visit. It also deleted the provision for drug testing.

The Applicant believed it was delegating too much authority In submissions on the issue of access, three identifiable issues were raised among the many discussed. First is whether ongoing supervision should be left for trial. Second, should the grandparents have any form of discretion respecting the need for supervision? Third, should the grandparents be given similar discretions respecting access to those often exercised by a Society since they are the Society’s designate by virtue of the s. 57.1 order? I will address the last issue first.

If the court endorses an s. 57.1 order, it will have determined that the purposes and principles of the Child and Family Services Act are spent. In that regard, the placement home does not in any fashion step into the shoes of a Society nor should it be considered a designate of the Society. The grandparents in this case would, after the order, have no greater or lesser standing than any other custodial parent under a domestic order. To find such status would tend to bind the domestic court to child welfare principles in the event of a variation motion.

As to the issue of discretion generally, I am of the view the limit of discretion to be granted to a custodial parent respecting access is defined in subsection 28(1)(

c) of the Children’s Law Reform Act . Some of the powers described therein are preventative in nature and others promote the meeting of the child’s immediate needs during visits. For example, the prohibition against consumption of an intoxicating substance and the ability of a person to check for it and, if necessary deny a particular visit may be an appropriate discretion but an undefined discretion when to allow access may not be. Whether the grandparents should have unfettered discretion in defining the access regime is an issue for trial.

To the extent that the parties wish to promote other discretions, that will be determined by the wording of the discretion proposed and how it fits into subsection 28(1)(c). Whether the grandparent’s ability to decide that supervision is no longer required may be arguable under subsection

28(1)(c)(

i) and this issue will be left for trial. As to the need for supervision of the parent’s access ordered pursuant to s. 59(1.1), there is no issue for trial. While the court recognizes the recent efforts by the parents to increase their involvement in their children’s lives, this circumstance cannot be viewed in isolation of the risk supporting the s. 57.1 order. To endorse an unsupervised regime would border on the absurd. It would say that as parents, you cannot protect full time but you can part time.

We know your lifestyle will expose the children to harm but we are nevertheless prepared to let that occur part time. It would also support the parent’s skewered view that they are able to control the harm their drug use would promote to times the children are with them but not otherwise. To allow unsupervised visits in these circumstances is tantamount to gambling with the children’s safety. As their addictions and lifestyle choices presently stand, the parents have said nothing in this motion that might support unsupervised access. There is nothing more that might be said to another judge at trial.

There is nothing to argue over. Conclusion For the reasons above, the court is prepared to grant partial

summary judgment in regard to the following issues: 1. A continued finding in need of protection pursuant to s. 37(2)(b)(i) & (ii) applying to both parents. 2. It is not in the interests of the children that they be returned to the care and custody of their parents – with or without supervision. 3. It is in the interests of the children to consider an s. 57.1 custody order. 4. It is in the interests of the children to have ongoing access with their parents. 5. Access between the children and the parents must be supervised. For the reasons above, I find the following are triable issues: 1.

That no conflicting orders defined in subsection 57.1(6) prevent the making of the order requested. 2. The content of a Plan of Care meets the notice requirements read into subsection s. 56 for the purposes of an s. 57.1 order. 3. The consent of the grandparents. 4. Whether it is in the best interests of the children, as defined in subsections 37(3)5, 6, 7 and 8, to make the order requested. 5. Whether it is in the interests of the children to order a disposition other than in the care of the grandparents or to continue supervision in their care. 6.

The scope of discretion to be given the grandparents to define any aspect of the access regime. Directions for Trial The Applicant is granted leave to prove no conflicting orders exist by way of Affidavit filed within 30 days of the release of this decision. The Respondents may reply, if they deem it appropriate, within 15 days of service of the Applicant’s affidavit. The Applicant may, if it so wishes and within 30 days of the release of this decision, serve and file an amended written plan of care. Issues for trial arising from the content of the plan shall be addressed at the Trial Management Conference.

The balance of the issues for trial shall be addressed in the normal course. In consequence of the issues for trial ruled out, the parent’s motion is dismissed. The Application is adjourned to July 21, 2011 for a settlement conference.

______________________________________ Justice Michael P. O’Dea