Children’s Aid Society of Toronto v. E.E., 2011 ONCJ 113

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to 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 . . . the 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) (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 No. C42873/06 DATE: 2011·III·11 CITATION: Children’s Aid Society of Toronto v. E.E. , 2011 ONCJ 113 ONTARIO COURT OF JUSTICE I IN THE MATTER OF a status review application under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11 for the Crown wardship of Ma. E. (born on […] May 2009), a ward of the Children’s Aid Society of Toronto. BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — E.E., Respondent.

Before Justice Stanley B. Sherr Heard on 8 March 2011 Reasons for Judgment released on 11 March 2011 CIVIL PROCEDURE —

Summary judgment — Grounds — No genuine issue requiring trial — Local children’s aid society hadapprehended girl (now 22 months old) at birth because of mother’s history with previous child — Several months later, on consent, courtfound child to be in need of protection and made her ward of children’s aid society — Now, at status review, society made sought Crownwardship without access by way of motion for

summary judgment — To her credit, mother had overcome her drug addiction before thischild’s birth — Nevertheless, assessments indicated cognitive deficits that significantly limited mother’s capacity to learn and to processand retain new information — She had difficulties understanding and interpreting social cues properly and, in particular, her child’semotional cues — And first-hand observations of her interactions with child during supervised access visits showed that, even in highlystructured and supportive environment of access centre, mother’s attempt to parent child was struggle — Lately, her access visits wereinconsistent, sometimes missing them or appearing late, often coming unprepared for visits — Despite services provided and urged uponher by society, mother was slow in reacting — She did eventually complete parenting course but her inability to incorporate its lessonsinto her parenting practices produced disappointing results — She resisted involvement in counselling on domestic violence — Herresidential record was chaotic, drifting from one shelter to another or to home of relative — Except for aunt who did not appearparticularly enthusiastic, mother had no social support network to help her in child’s upbringing — Court was concerned that mother’saccess had never progressed to unsupervised setting, then full-day visits and finally overnight access, all of which would require muchmore time, but unfortunately, statutory ceiling on temporary care had already expired and court could find no reason for extending timejust to carry out pointless experiment — There was therefore no triable issue on whether dispositional option less disruptive than Crownwardship existed — As for ongoing access, mother had conceded that child was adoptable and therefore, under subsection 59(2.1) ofChild and Family Services Act, any access order would impair child’s chance for adoption and thus could not be made, meaning that,once again, there was no triable issue — Society’s motion granted.

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], clause 37(2)(b), clause 37(2)(l), subsection 37(3), subsection 57(2),subsection 57(3), subsection 57(4), subsection 59(2.1), subsection 59(4),

section 64, subsection 65(1),

section 70 and

section 141.1. Family Law Rules, O. Reg. 114/99 [as amended], rule 16. CASES CITED Catholic Children’s Aid Society of Hamilton-Wentworth v. G.-T. (Jill) (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.). Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [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. Catholic Children’s Aid Society of Metropolitan Toronto v. M. (P.), , 82 A.C.W.S. (3d) 714, [1998] O.J. No. 3766,1998 Cars​well​Ont 3659 (Ont. Prov. Div.).

Catholic Children’s Aid Society of Toronto v. M. (A.) and A. (A.), 2007 ONCJ 743, 89 R.F.L. (6th) 209, [2007] O.J. No. 4651, 2007 Cars​-well​Ont 10083 (Ont. C.J.). Children and Family Services for York Region v. W.(A.) and M.(M.) (2003), 121 A.C.W.S. (3d) 299, [2003] O.J. No. 996, 2003 Cars​-well​Ont 936 (Ont. Fam. Ct.). Children’s Aid Society of Hamilton v. N.(M.) and N.(H.S.), , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007Cars​well​Ont 2453 (Ont. Fam. Ct.). Children’s Aid Society of Niagara Region v. C.(S.) and M.(B.), , 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008Cars​well​Ont 5929 (Ont. Fam. Ct.).

Children’s Aid Society of Toronto v. H. (R.) and N. (M.), , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 Cars​-well​Ont 6170 (Ont. C.J.). Children’s Aid Society of Toronto v. L. (T.) and B. (E.), 2010 ONSC 1376, [2010] W.D.F.L. 1957, [2010] O.J. No. 942, 2010 Cars​well​-Ont 1343 (Ont. S.C.). Children’s Aid Society of Toronto v. P. (D.) and L. (R.), , 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075,2005 Cars​well​Ont 4579 (Ont. C.A.). Children’s Aid Society of Toronto v. T. (K.) and W. (C.), , 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 Cars​-well​Ont 4827 (Ont. C.J.).

Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. K.(C.) and C.(C.) (2001), 102 A.C.W.S. (3d) 1107,[2001] O.J. No. 128, 2001 Cars​well​Ont 219 (Ont. Fam. Ct.). Children’s Aid Society of Waterloo Region v. H. (T.) and C. (D.), 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005

Cars​well​Ont 8104 (Ont. C.J.); affirmed at C. (D.) v. Children’s Aid Society of Waterloo Region, , 145 A.C.W.S. (3d)1070, [2006] O.J. No. 569, 2006 Cars​well​Ont 849 (Ont. S.C.). Jewish Family and Child Service of Toronto v. A.(R.) and G.(J.), (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.); affirming Jewish Family and Child Service of Toronto v. A.(R.) and G.(J.), , [2000]O.J. No. 6045, 2000 Cars​well​Ont 5169 (Ont. C.J.). Nicole J.

Horwitz ............................................................................ counsel for the applicant society Regina M.L. Senjule .......................................................... counsel for the respondent mother, E.E. JUSTICE S.B. SHERR:— 1: INTRODUCTION [1] The Children’s Aid Society of Toronto (the society) has brought a

summary judgment motion pursuant to rule 16 of theFamily Law Rules, O. Reg. 114/99, as amended (the rules) requesting an order that the child Ma.E. (Ma.), born on […] May 2009 bemade a Crown ward without access for the purpose of adoption. [2] The respondent is Ma.’s mother. She asks that the

summary judgment motion be dismissed. She has put forward a planthat would place Ma. in her care and custody, with assistance from her sister (the maternal aunt). [3] The father of the child is unknown. [4] This is a status review application. Ma. has been in the care of the society since she was apprehended from the motherat birth. On 2 March 2010, on consent, Justice Harvey P. Brownstone found Ma. to be in need of protection pursuant to clause 37(2)(

l) ofthe Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the Act), and made a finding that Ma. had no male parent. On thesame day, he made Ma. a society ward for a period of five months. [5] I reviewed and relied upon the affidavits of Lesley Defreitas-Kelly sworn on 9 February 2011 and 13 October 2010,Erin Kerr, sworn on 8 May 2009, Sherri Ann Alexander, sworn on 12 February, 2008, the mother, sworn on 23 February 2011, 14October 2010 and 23 August 2010 and the statement of agreed facts dated 2 March 2010. I also reviewed the psychological assessmentreports of Dr.

Mitra Gholamafin, dated 15 October 2007 and Dr. Joseph Regan, dated 23 September 2009, which were attached asexhibits to the affidavit of Ms. Defreitas-Kelly of 9 February 2011. 2: LEGAL CONSIDERATIONS 2.1:

Summary Judgment Law [6] Rule 16 of the rules permits a party to make a motion for

summary judgment. The following subrules in rule 16 arerelevant to this case: 16. When available.—

(1) After the respondent has served an answer or after the time for serving ananswer has expired, a party may make a motion for

summary judgment for a final order without a trial onall or part of any claim made or any defence presented in the case. . . .

(4) Evidence required.— The party making the motion shall serve an affidavit or other evidence thatsets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) Evidence of responding party.— In response to the affidavit or other evidence served by the partymaking the motion, the party responding to the motion may not rest on mere allegations or denials butshall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) Evidence not from personal knowledge.— If a party’s evidence is not from a person who haspersonal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) No issue for trial.— If there is no genuine issue requiring a trial of a claim or defence, the courtshall make a final order accordingly. [7] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine ifthere is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. See Children’s Aid Society ofHamilton v. M.N. and H.S.N., , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Cars​well​Ont 2453 (Ont. Fam.Ct.). [8]

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise atriable 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. See Jewish Family and Child Service of Torontov. R.A. and J.G., (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J.

No. 47, 2001 Cars​well​Ont 73 (Ont. S.C.); affirmingJewish Family and Child Service of Toronto v. R.A. and J.G., , [2000] O.J. No. 6045, 2000 Cars​well​Ont 5169 (Ont.

C.J.). [9] A party answering a motion for

summary judgment cannot just rest on bald denials; they must put his or her best footforward, showing that there is a genuine issue for trial. See Children’s Aid Society of Toronto v. K.T. and C.W., , 101A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 Cars​well​Ont 4827 (Ont. C.J.). [10] The test for granting

summary judgment is met when the moving party establishes that there is no genuine issue ofmaterial fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreementabout a fact that a party is required to prove constitutes disagreement about a material fact. See Children’s Aid Society of Toronto v. K.T.and C.W., supra; Children’s Aid Society of Waterloo Region v. T.H. and D.C., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No.2371, 2005 Cars​well​Ont 8104 (Ont. C.J.); affirmed at D.C. v.

Children’s Aid Society of Waterloo Region, , 145A.C.W.S. (3d) 1070, [2006] O.J. No. 569, 2006 Cars​well​Ont 849 (Ont. S.C.). [11] As Justice Alex Pazaratz stated at paragraph [43] of Children’s Aid Society of Niagara Region v. S.C. and B.M., , 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 Cars​well​Ont 5929 (Ont. Fam.

Ct.): “no genuine issue for trial existswhere there is no realistic possibility of an outcome other than that as sought by the applicant.” 2.2: Legal Considerations in a Status Review Hearing [12] The court must determine whether there is a triable issue within the legal considerations that apply on a status reviewapplication. The status review application is brought pursuant to

section 64 of the Act. Subsection 65(1) of the Act sets out the court’soptions on a status review application as follows: 65. Court may vary, etc.—

(1) Where an application for review of a child’s status is made undersection 64, the court may, in the child’s best interests, (

a) vary or terminate the original order made under subsection 57(1), including a term or conditionor a provision for access that is part of the order; (

b) order that the original order terminate on a specified future date; (

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1. [13] The statutory pathway was outlined by Justice Craig Perkins in Children’s Aid Society of Toronto v. T.L. and E.B., 2010ONSC 1376, [2010] W.D.F.L. 1957, [2010] O.J. No. 942, 2010 Cars​well​Ont 1343 (Ont. S.C.) at paragraph [25], as follows: 1. Determine whether the disposition that is in the child’s best interests is return to a party, with orwithout supervision. If so, order the return and determine what, if any, terms of supervision arein the child’s best interests and include them in the order.

If not, determine whether thedisposition that is in the child’s best interests is society wardship or Crown wardship. (Section57.) 2. If a society wardship order would be in the child’s best interests, but the maximum time forsociety wardship under section 70(1) has expired, determine whether an extension under section70(4) is available and is in the child’s best interests. If so, extend the time and make a societywardship order. If not, make an order for Crown wardship. 3.

If a Crown wardship order is to be made and a party has sought an access order, determinewhether the relationship between the child and the person who would have access is bothmeaningful and beneficial to the child (section 59(2.1)(a)). If not both meaningful andbeneficial, dismiss the claim for access. If so, go to the next step. 4. Determine whether the access would impair the child’s future opportunities for adoption(section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step. 5. Determine whether an access order is in the child’s best interests. If not, dismiss the claim foraccess.

If so, make an access order containing the terms and conditions that are in the child’sbest interests (section 58.) [14] Subsection 57(2) of the Act requires that I ask the parties what efforts the society or another agency or person made toassist the child before intervention under

Part III of the Act. [15] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of thepersons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate toprotect the child. [16] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding toplace a child in care. [17] In determining the appropriate disposition, I must decide what is in the child’s best interests.

I have considered thecriteria set out in subsection 37 (3) of the Act in making this determination. [18] A Crown wardship order is the most profound order that a court can make. To take someone’s children from them is apower that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after acareful examination of possible alternative remedies. See Catholic Children’s Aid Society of Hamilton-Wentworth v. Jill G.-T. (1996), 90O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 Cars​well​Ont 1428 (Ont. Div.

Ct.). [19] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of

the apprehension still exist today. This must be examined from the child’s perspective. See Catholic Children’s Aid Society ofMetropolitan Toronto v. C.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. [20] A child’s need for permanency planning within a time frame sensitive to that child’s needs demands that the legal processnot be used as a strategy to “buy” a parent time to develop an ability to parent.

In child protection proceedings, the genuineness of anissue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be anarguable notion discernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’sremoval of the child from their care and has developed some new ability as a parent. See Children’s Aid Society of Toronto v. R.H. andM.N., , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 Cars​well​Ont 6170 (Ont. C.J.) per Justice Heather L.Katarynych. 3: MATERIAL FACTS [21] This was an unusual

summary judgment motion as the material facts were not in dispute. What was in dispute was howthe court should deal with these facts. [22] The mother submits that she has not been given a reasonable opportunity to parent the child and, if she was given thisopportunity, she could demonstrate that it is in Ma.’s best interests to be placed in her care. [23] The material facts in the paragraphs that follow were either not opposed or just baldly denied by the mother. [24] The mother first became involved with the society with respect to her first child Mi.E. (Mi.), born on […] November2006.

Mi. tested positive for drugs at birth. The mother admitted active drug use at the time. The mother lacked a support system andwas not co-operative with the society around planning for the child’s birth. Mi. was apprehended and placed in society care. [25] The society worker at the time (Sherri Ann Alexander) provided evidence that the mother struggled in caring for Mi. onaccess visits. She would disrupt his sleep, have difficulties feeding him and turn to staff to intervene when Mi. was upset.

The motherwould often laugh inappropriately at visits, have episodes where she would stare blankly at staff and become disorientated. The motherwas disorganized and would miss access visits. She was generally late for her visits. Ms. Alexander deposed that the mother was unableto make parenting gains despite considerable support from the society. [26] A parenting capacity assessment was conducted by Dr. Mitra Gholamafin, a registered psychologist. It is dated 15October 2007. Dr.

Gholamafin found serious deficits relating to the mother’s cognitive functioning, which, combined with her use ofillegal substances and periods of transiency, directly impacted on her ability to care for Mi. Dr. Gholamafin wrote that: (

a) The mother manifests difficulties understanding and interpreting social cues properly. (

b) The mother has considerable deficits in the areas of perceptual and visual synthesis/integration,analytical/verbal reasoning and short-term memory. This results in a limited capacity to learnand retain new information. (

c) The mother experiences considerable anxiety. To offset her subjective feelings of helplessnessand loss of control, the mother tends to engage in avoidant behaviour. (

d) The mother has problems modulating her affective experiences. When she is overwhelmed byanxiety and/or anger, she is likely to act in an impulsive manner. (

e) The mother has considerable difficulty tuning into other’s emotional experiences. This makes itdifficult for her to contain or soothe a child’s distress. She has great difficulties interpreting andtuning into her child’s emotional cues. (

f) When the mother is psychologically overwhelmed by stressors in her life, she becomes self-absorbed. (

g) The psychological stressors make it difficult for the mother to care for herself, let alone a child. [27] The mother’s housing was unstable during this time. [28] The mother stopped her drug use after Mi. was born. She continues to be drug-free. [29] Mi. was found to be a child in need of protection on 30 March 2007 pursuant to clause 37(2)(

b) of the Act. He was amade a Crown ward without access on 14 March 2008 on a motion for

summary judgment brought by the society. [30] In March of 2009, the mother was living at Robertson House, a shelter. The society was contacted by the shelter whenthe mother became pregnant with Ma. The society worker met with the mother. She deposed that the mother would often pause andstare off into the room instead of answering questions and that the mother would laugh inappropriately during the interview. The mothertold the worker that she was disabled and that her disability was that she was “very tired”. [31] The mother did not engage in programming at the shelter.

The shelter staff reported to the society that they had to forcethe mother to attend a doctor’s appointment as she was reluctant to attend. She did not have a viable plan to care for Ma. and had notbought supplies for her. [32] Ma. was apprehended at birth. [33] On 11 May 2009, Ma. was placed in the temporary care and custody of the society, with supervised access to the mother. The mother exercised access at the society office twice each week for four hours each visit. The visits were fully supervised. Thesociety observed that the mother attended on time for the visits and was affectionate with Ma.

She brought clothing and diapers to visits

and engaged in singing and speaking to Ma. while making eye contact. [ 34 ] However, several parenting concerns were noted by society staff. They observed that the mother often laughed inappropriately during the visits and frequently tried to wake or feed Ma. when she was sleeping. She seemed to be unaware of Ma.’s routines. [ 35 ] In June of 2009, the society made a referral to the Therapeutic Access Program (TAP) to further assess the mother’s parenting abilities and to assist her in developing and maintaining positive parenting skills. [1] The plan was to start these visits on 10 July 2009.

However, the process was suspended when the mother did not comply with conditions that TAP had outlined for her to begin the program. Visits returned to the society office. [ 36 ] The mother lived in the Robertson House shelter after Ma. was born and was subsequently transferred to the Covenant House shelter. She moved to the Mary’s Place shelter in July of 2009 and then back to Covenant House in August of 2009. In December of 2009, the mother secured housing where she remained until May of 2010.

She has been living in shelters since that time. [ 37 ] The mother participated in a psychological assessment of her cognitive and learning abilities on 23 September 2009. This was conducted by Dr. Joseph Regan, a registered psychologist. [ 38 ] Dr. Regan wrote that the mother scored a Verbal IQ of 69, high in the impaired range of intelligence and a performance IQ of 74, in the borderline range, for a combined Full Scale IQ of 71, low in the borderline range of intelligence.

Individuals with a similar level of cognitive functioning, he wrote, are slow learners, with significant limitations in both how long they take to learn information or skills, and what level of learning they are capable of. [ 39 ] The mother started, but did not complete a parenting program in January of 2010. [ 40 ] On 5 January 2010, the society referred the mother once again to TAP.

The visits at TAP began on 27 January 2010. [ 41 ] On 2 March 2010, the five-month society wardship order was made by Justice Brownstone. [ 42 ] In March of 2010, the mother advised the society that her boyfriend (the boyfriend) had been physically abusive to her since Ma. was born. The society emphasized the need for the mother to obtain domestic violence counselling to ensure both her future safety as well as Ma.’s, if placed in her care.

The mother advised the society that the relationship with the boyfriend was over. [ 43 ] The society met with the mother on 12 March 2010 to review its concerns and expectations. These concerns included the mother’s attending the visits late and exhausted, having difficulty meeting the child’s needs and requiring frequent breaks. The society gave the mother referrals for parenting programs and domestic violence counselling. [ 44 ] On 7 April 2010, the mother attended the access visit with the boyfriend. She advised the society worker that they were living together.

The society asked to meet with the boyfriend and told the mother that this relationship could pose difficulties with her plan to care for Ma. [ 45 ] On 11 May 2010, the society was contacted by a social worker at St. Michael’s Hospital. The mother had been assaulted by the boyfriend and had been treated for bruises. [ 46 ] The mother subsequently reconciled with the boyfriend. She separated from him again at the end of May of 2010.

There is no evidence that they have reconciled since that time. [ 47 ] The mother briefly stayed at the maternal aunt’s apartment and then moved into the Redwood shelter. [ 48 ] The visits at TAP continued until May of 2010. The TAP report sets out that, despite the interventions made available to her, the mother was unable to develop an ability to parent Ma. safely and to demonstrate safe and healthy choices. [ 49 ] The TAP report set out that the mother: (

a) Struggled with changing and grooming Ma. (

b) Struggled with being able to soothe Ma. when she was upset. For example, the mother would sit in the corner of the room and just stare at Ma. when the child was upset. (

c) Was often unable to feed Ma. [2] (

d) Had difficulty adapting to Ma.’s changing developmental needs. For example, she had difficulty playing with Ma. and helping her explore her environment. The mother would often try to keep Ma. in one place, despite encouragement from the TAP staff to let her move about the room. (

e) Would hover over Ma., creating anxiety for the child and inhibiting her exploration. (

f) Was unable to incorporate redirection from the TAP staff in the way she interacted with Ma. (

g) Was very disorganized. For example, she would forget items that she was supposed to bring to visits to care for Ma., or was unable to plan ahead for the visit because of budgeting concerns. (

h) Missed some visits, was late for others and often appeared tired and stressed. [ 50 ] The TAP report set out that the mother had a great deal of affection for Ma., enjoyed her time with her and appeared eager to care for her. [ 51 ] TAP determined that it could not make any further progress with the mother, as she was unable to consistently incorporate its instruction into her parenting. The access visits returned to the society office. They have taken place twice per week for two hours each visit since that time.

[ 52 ] The society frequently reminded the mother about its expectation that she attend parenting and domestic violence programs. The mother finally started a parenting program in October of 2010. [ 53 ] The mother brought a motion to increase her access on 22 October 2010. This motion was dismissed. [ 54 ] The mother’s attendance record at visits has significantly declined since October of 2010. She has cancelled visits and is often very late. The society has frequently reminded the mother of the importance of attending visits consistently, with no effect. [ 55 ] The society has noted the following parenting concerns about the mother since October of 2010 at access visits: (

a) The mother will take long breaks to smoke and ask staff to watch Ma. (

b) The mother will often just sit on the couch and read while Ma. plays. (

c) The mother has to be reminded to watch Ma. (

d) The mother has had to be redirected on how to feed Ma. On one occasion, Ma. was choking because the mother was force-feeding her oranges. [ 56 ] The mother received counselling at the Redwood Shelter after 17 May 2010 as outlined by her counsellor in her letter to the court dated 20 July 2010. [ 57 ] On 9 November 2009, the mother advised the society that she was not attending domestic violence counselling. [ 58 ] The mother completed a parenting course with the Child Development Institute on 13 December 2010.

She attended all nine sessions of the Beyond the Basics Parenting Group. [ 59 ] The mother moved from the Redwood Shelter to a shelter run by the Salvation Army on 12 January 2011. She continues to reside there.

The mother acknowledges that children cannot live there. [ 60 ] On 4 February 2011, the mother told the society worker that she was receiving some counselling at the shelter but could not remember what it was called or the name of the counsellor. [ 61 ] The maternal aunt has advised the society that she is not in a position to take on a primary role in caring for Ma. and that she can only provide support by way of living with the mother, if the mother finds an apartment for them. The maternal aunt has only come to two access visits. [ 62 ] Ma. is healthy, happy and developing normally.

It was conceded by the mother in submissions that the child is adoptable. 4: THE PLANS OF CARE [ 63 ] The society’s plan is to make Ma. a Crown ward for the purpose of adoption. It intends to approach Mi.’s adoptive family to explore if they are interested in adopting Ma. [ 64 ] The mother’s plan is to have Ma. returned to her care. She deposed that she is in the process of obtaining a two-bedroom apartment that she will share with the maternal aunt. The maternal aunt is not proposed as a primary caregiver but will be available to provide her with parenting relief and assistance.

The mother proposes to place Ma. in day care. 5: SERVICES AND FAMILY PLANS [ 65 ] The society has provided significant services to the mother and to Ma., including: (

a) Provision of a family service worker and child service worker. (

b) Co-ordinating the mother’s participation in the Therapeutic Access Program. (

c) Referrals to parenting programs. (

d) Referrals to counselling and domestic violence programs. (

e) Referral to Surrey Place. (

f) Arranging drug testing. (

g) Arranging for two psychological assessments. (

h) Providing medical treatment for the child. [ 66 ] The society has also explored, without success, alternate family plans including interviews with the maternal aunt and the maternal grandmother. No other plan has been put forward. 6: ANALYSIS [ 67 ] I considered the following factors in support of the mother’s request to dismiss the society’s motion: (

a) She deserves considerable credit for addressing her substance abuse issue. It appears that she has been drug-free since the time that Mi. was made a Crown ward. Substance abuse is no longer a protection concern. (

b) She clearly loves Ma. and wants to parent her to the best of her ability. (

c) She is not been in an abusive relationship since June of 2010. (

d) She has obtained some counselling and completed a parenting course.

(

e) Placing Ma. with the mother would maintain her biological ties with the mother and her extended family. Shewould be ensured of being raised in her own culture. (

f) Ma. does not have special needs that would require a higher level of parenting skill. [68] Notwithstanding these factors in support of the mother, the society has met the onus of establishing that there is no triableissue that Ma. should be made a Crown ward for the following reasons: (

a) The evidence establishes that the mother does not have the parenting capacity to adequately meet Ma.’s physical, mental oremotional needs. (

b) The evidence establishes that the mother has not been able to maintain personal stability and is not able at this time toprovide Ma. with the stability, continuity and security that she requires. (

c) With the exception of the mother’s prior substance abuse issue, the risk concerns that existed when Mi. was made a Crownward have not abated. (

d) The risk concerns that existed when Ma. was found to be a child in need of protection have not abated and have not beenadequately addressed. (

e) The mother struggles to parent Ma. in a highly structured and supportive environment. The mother was not able toprogress beyond the Therapeutic Access Program. It would be irresponsible to return Ma. to the mother without a highlysupportive structure in place. This does not exist. (

f) The mother remains highly disorganized. She frequently misses visits or is considerably late. She is often unprepared forthe visits. It is a significant risk concern that this issue has deteriorated since October of 2010. This demonstrates a lack ofunderstanding of child development and the importance of a parent’s being a consistent and predictable presence for achild. How can the mother provide Ma. with stability and security when she is not organized enough to be able to come topre-arranged visits, particularly when the eyes of the court are upon her? (

g) The psychological assessments set out that the mother’s cognitive deficits are significant impediments to her learning,processing and retaining information. These findings have been corroborated by the evidence. The parenting concernswith Ma. mirror many of the parenting concerns that existed with Mi. It has been and likely will continue to be verydifficult for her to adapt to Ma.’s changing developmental needs. (

h) The mother’s life has continued to remain unstable. She has frequently moved in the shelter system. She was involved in aserious domestic violence incident in 2010 and subsequently reconciled with the perpetrator. She is not presently engagedin any domestic violence counselling to reduce the risk of this happening again. (

i) The mother has made only modest efforts to address the risk concerns that existed when the child was born. The societymade numerous referrals for the mother and she delayed or did not follow through with most of them. She took a parentingcourse, but the evidence does not indicate any parenting improvement. She did attend for some counselling at theRedwood Shelter in 2010, but she currently is not seeing a counsellor. (

j) The mother has few supports. She filed no evidence from persons supporting her plan. The maternal aunt has had minimalcontact with the society despite the society worker’s encouraging the mother to have the maternal aunt contact her. Theevidence indicates that the mother would require intensive support to be able to have any chance of successfully parentingthe child. (

k) The mother’s plan is not realistic. Any plan that has her as the primary caregiver is unacceptable due to the risk concernsset out. The mother’s plan is vague. How often will the maternal aunt be at the home? What will be the extent of herinvolvement? How committed can the court expect the maternal aunt to be when she has only attended two access visits? Who will be responsible for the child’s medical treatment? The mother says that she will have support from cousins. Whoare they? What support will they actually provide to her?

How much support can the court expect them to provide to themother when she has been living in the shelter system for the past few years instead of with family members? Where havethey been until now? (

l) Even in the best-case scenario, the court could not place Ma. with the mother without first testing whether she couldadequately parent the child, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. Thisprocess would need to take place for at least 6 months for the court to effectively evaluate whether a return of the child wasviable. There is a huge difference between managing a child in a structured setting for a short period of time (with whichthe mother is struggling) and caring for a child on an extended basis. (

m) The statutory time limits in

section 70 of the Act are an important consideration in making this decision. They have alreadybeen passed. There are no exceptional circumstances that exist in this case that would justify extending the time limits. The time to experiment with different parenting arrangements is over. [69] The mother argued that she has not been given a reasonable opportunity to parent Ma. She argues that she would be ableto adequately parent Ma. if only the visits took place outside of the artificial confines of supervised access.

The case law has establishedthat the court should consider whether the society has given the parent a reasonable opportunity to parent. Where the society frustratescontact with the parent and offers no services, this consideration must come into the equation. See Children and Family Services forYork Region v. A.W. and M.M. (2003), 121 A.C.W.S. (3d) 299, [2003] O.J. No. 996, 2003 Cars​well​Ont 936 (Ont. Fam. Ct.); CatholicChildren’s Aid Society of Metropolitan Toronto v. P.M., , 82 A.C.W.S. (3d) 714, [1998] O.J. No. 3766, 1998 Cars​-well​Ont 3659 (Ont. Prov.

Div.); Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. C.K. and C.C.(2001), 102 A.C.W.S. (3d) 1107, [2001] O.J. No. 128, 2001 Cars​well​Ont 219 (Ont. Fam. Ct.); Catholic Children’s Aid Society ofToronto v. A.M. and A.A., 2007 ONCJ 743, 89 R.F.L. (6th) 209, [2007] O.J. No. 4651, 2007 Cars​well​Ont 10083 (Ont. C.J.). However,the evidence is clear that this is not the case here. Multiple services were provided or suggested to the mother. The mother was referredto TAP (twice) to assist her with parenting skills and for an assessment whether access could move forward.

Unfortunately, the motherwas unsuccessful in making gains in her parenting skills. The evidence did not justify moving the visits beyond the safety and structureof the society office. The risk to Ma. would have been far too high. [70] The mother argued that the court should place little weight on the first assessment report of Dr. Gholamafin since theresults would have been skewed by her substance abuse issues. The mother provided no evidence to support that contention.

The courttreated this report as one small piece of evidence that was only probative (given the age of the report) to the extent that it fit with theentirety of the evidence.

[71] There is no triable issue that the least disruptive alternative, consistent with Ma.’s best interests, is to make her a Crownward. 7: ACCESS [72] The onus to rebut the presumption against access to a Crown ward is on the mother. See Children’s Aid Society ofToronto v. D.P. and R.L., , 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075, 2005 Cars​well​Ont 4579 (Ont.C.A.). The mother has the onus of establishing both portions of the test in subsection 59(2.1) of the Act. This is a very difficult test forher to meet. [73]

Section 141.1 of the Act provides that, before a society can place a child for adoption, any outstanding order of access tothe child must first be terminated. An adoption placement cannot be made if there is an outstanding order of access. [74] It is unnecessary for the court to engage in an analysis whether access is beneficial and meaningful for Ma. The evidenceestablishes that Ma. is adoptable. The mother concedes this. An access order would impair Ma.’s opportunity for adoption and cannotbe made. There is no triable issue. 8: CONCLUSION [75] An order will go on the following terms: (

a) The society’s motion for

summary judgment is granted. (

b) Ma. E. will be made a Crown ward without access, for the purpose of adoption. [76] This order does not preclude the society, in its capacity as custodial parent of Crown wards, from permitting the mother tovisit Ma. prior to an adoption. The society will have full control over any contact that the mother has with her. See subsection 59(4) ofthe Act and Children’s Aid Society of Toronto v. D.P. and R.L., supra. [77] I understand that this decision will be very difficult for the mother and I extend her my deepest sympathies.

The evidencewas clear that she loves Ma. very much and did her very best to try to parent her. The mother just faced too many challenges, beyond hercontrol, to be able to do this. [78] I thank counsel for their professional presentation of this motion.