Catholic Children’s Aid Society of Toronto v. M.C., 2011 ONCJ 801

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 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 . . . 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. C47297/09 Date: 2011·VIII·05 CITATION: Catholic Children’s Aid Society of Toronto v. M.C. , 2011 ONCJ 801 THE ONTARIO COURT OF JUSTICE IN THE MATTER OF an application under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, for the Crown wardship of J.C.A.C. and A., children in need of protection BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant — AND — M.C., P.G. and J.D., Respondents Before Justice Marvin A. Zuker Heard on 7 July 2011 Reasons for Judgment released on 5 August 2011

Rachel L.G. Buhler ........................................................................ counsel for the applicant society William A. Sullivan .............................................................. counsel for the respondent mother, M. P. (respondent father of older child) ..................................................................... on his own behalf J.D. (respondent father of younger child) ....................................... on his own behalf (incarcerated) [ 1 ] JUSTICE M.A. ZUKER:— This motion is brought pursuant to rule 16 of the Family Law Rules , O. Reg. 114/99, as amended.

The onus is on the society to establish that there is no genuine issue for trial. [ 2 ] An amended status review application, the society is seeking the order of Crown wardship with no access regarding the children, J.C.A.C., born […], 2006 and A., born […], 2009. The father of J.C.A.C. is Mr. P. and he was noted in default in these proceedings by Justice Sherr on December 16, 2010. The father of A. is Mr. J.D. and he is currently incarcerated in Vancouver relating to charges of domestic violence against the mother.

He has filed an answer and plan of care, found at Tab 4 of Volume 1 of the society’s motion brief. [ 3 ] The society submits that it meets the onus applied in this motion in light of significant past parenting concerns about the impact of domestic abuse on the children and the fact that mother’s current supports and services are not sufficient and are too late, given the children’s best interest and the length of time that they have been in care. [ 4 ] Mother’s evidence indicates that she will need more time to address the significant issues she’s dealing with. [ 5 ] Cumulatively, J.C.A.C. has been in the society’s care for about 26 months and A. has been in the society’s care for about 24 months.

Both have been in care considerably past the permissible statutory timelines. [ 6 ] Ms. M.C. has another child, N.S.C., born […], 2011, who has been in the temporary care and custody of the society since […], 2011. He is before the court in a separate application. [ 7 ] The statutory findings with respect to these children before the court were made on August 17, 2009 by Justice Sherr following the filing of a statement of agreed facts. The children were placed in the care and custody of the society for a period of five months on that date.

Both children were placed back in their mother’s temporary care on January 28, 2010. There was a final order of supervision on April 8, 2010 pursuant to a statement of agreed facts filed on that date. Both children have been back in the society’s care since June 2, 2010 when Justice Spence made a temporary hearing custody order. [ 8 ] Mr. Sullivan submits that the Court must first ask itself whether, on the evidence presented, there is evidence on a prima facie case that the society has met the test that there is no genuine issue of fact that exists that would need to be considered by a trial. [ 9 ] Mr.

Sullivan submits, “Does the issue of risks still exist? We are not arguing that it doesn’t. What is the best way to resolve the level of risk? Is it at that same level today to be able to resolve the issue of best interest?” [ 10 ] Mr. Sullivan submits that the court must review the materials Ms.

M.C. has presented, in terms of what work she has done, as well as the reasons for the difficulties that she had when the children were with her in late spring 2010. [ 11 ] Mother’s position is that she has made the significant steps that put into doubt the conclusion that the society wishes to draw from its perspective, despite the history. [ 12 ] Mother submits that she tried her best over the time when she was pregnant with her third child, in the early part of 2011. She had less energy. She submits that Dr. Perlman refers in her report to her lower level of energy.

During the months of March and April 2011, the court must consider the fact that she was involved in these proceedings while expecting a child, and was also involved in prosecuting Mr. J.D. [ 13 ] More recently, it is argued that Ms. M.C. has had positive access visits and was commended on this. [ 14 ] We do not have a comprehensive parenting capacity assessment, counsel submits. Dr. Perlman, it is argued, states that this is not a foregone conclusion. This is but a first step. It is supported by Ms. M.C.’s prosecution of Mr. J.D. and by her work with the police.

These, arguably, are triable issues as far as the mother is concerned. [ 15 ] Some of the evidence presented by the society, mother argues, does not support their position in its entirety. [ 16 ] It is the society’s motion that the children, J.C.A.C., born […], 2006, and A., born […], 2009, be made Crown wards with no access for the purpose of adoption. [ 17 ] It is the respondent mother’s position that the children be returned to her care. Ms. M.C.’s answers and plan of care dated January 17, 2011 asked: 1. That the protection application be terminated and the children returned to the biological mother, Ms.

M.C., subject to supervision of the CCAS. 2. In the alternative, to grant more access time to the biological mother…to allow the child-parent relationship to develop…

I currently in Toronto making every effort to restart life. I am working on getting a place for myself and the children. I have plan to enrol in High School when the new term begins in February. I am also determined, focused and more than ready to do what it takes to get may children back and raise them to be good people. I have made mistakes I the past but I believe that they would be better with their mother. If I get thet chance to start over with them I will never disappoint them or myself again. [ 18 ] As already indicated, the father of J.C.A.C. is Mr. P. He resides separately from Ms.

M.C. in Toronto. [ 19 ] The father of A. and N.S.C., born […], 2011, is Mr. J.D.. He is currently incarcerated in Vancouver, British Columbia. [ 20 ] On March 6, 2009, J.C.A.C. was apprehended and placed in the society’s care and custody. [ 21 ] The society submits that in the April 8, 2009 statement of agreed facts, Ms. M.C. was involved in the victim/witness program. Paragraph 15 of the August 17, 2009 statement of agreed facts states that mother was taken to Nellie’s Women’s Shelter on April 23, 2009. However, within a week, she was picked up by Mr. J.D. and taken to his father’s home.

She gave birth to A. on […]. [ 22 ] On […], 2009, A. was apprehended and placed in the society’s care and custody. [ 23 ] On August 17, 2009, on consent , with a statement of agreed facts filed, Justice Sherr made the statutory findings pursuant to section 47(2) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”), finding that both J.C.A.C. and A. are children in need of protection pursuant to section 37(2) (b)(

i) of the Act, and an order placing the children in the care and custody of the society for a period of six months with access to the parents and grandparents supervised, at the discretion of the society. [ 24 ] The society first became involved with this family when J.C.A.C. was apprehended from his mother’s care on March 6, 2009 because of concerns about his mother’s parenting which was being affected by the trauma she experienced in her violent relationship with J.C.A.C.’s father. [ 25 ] On January 27, 2010, J.C.A.C. and his brother A. were returned to their mother’s care after she had demonstrated stability in her life, including separating from her partner, attending counselling and securing her own apartment. [ 26 ] The C. boys’ second admission to society care occurred on June 2, 2010.

J.C.A.C. was 4½ years old and A. was 11 months old at that time.

The apprehension of the children occurred because mother was experiencing difficulty coping with her parenting and she had physically disciplined J.C.A.C. [ 27 ] Another concern was that she was socially isolating herself, had stopped attending counselling for domestic violence, she was not taking the children out of the home, and she was spending a lot of time with a new partner whom the society knew nothing about. [ 28 ] On January 28, 2010, the society brought a Status Review Application seeking that the children be placed in the care and custody of their mother, pursuant to the supervision of the society for a period of six months.

On that day, Justice Stanley Sherr made a temporary without prejudice order placing the children in the care and custody of their mother subject to society supervision. [ 29 ] The society submits that when the children were in Ms. M.C.’s care, she was not able to care for them adequately. The society’s evidence at paragraphs 31 through 50 of Ms.

Hysi’s affidavit, not disputed, is that when the children were placed in her care in January 2010, she was overwhelmed and could not manage them. [ 30 ] On April 8, 2010, Justice Sherr made a final order placing the children in the care and custody of their mother pursuant to the supervision of the society on terms and conditions set out in the statement of agreed facts filed on that day. [ 31 ] The society submits that the supervision order began to break down in April, 2010. Ms. Hysi describes how Ms.

M.C. was not attending programs, not following through with the recommended program from the Child Development Institute to address J.C.A.C.’ exposure to domestic violence. [ 32 ] J.C.A.C. reported seeing a friend of mother’s named J.. This friend, the society submits, was likely Mr. J.D., whom Ms. M.C. was taking the children to see in jail at this time. See tab 7 of the society’s materials. [ 33 ] Ms. O., the former foster mother, found Ms. M.C. was depressed and was not leaving the home with the children. Ms. O. called Ms. Hysi to report her concerns. Ms. O. did not hear from Ms.

M.C. between May 28, 2010 and December 2, 2010. [ 34 ] On June 2, 2010, the society brought an early status review seeking an order that the children be placed in the care and custody of the society for a period of three months. On consent , Justice Sherr made an order placing the children in the temporary care and custody of the society with access at the discretion of the society.

That order has not been varied. [ 35 ] On September 16, 2010, the society amended its status review application to seek an order of Crown wardship with no access for the purposes of adoption for both children. [ 36 ] On December 16, 2010, Justice Sherr made an order noting Mr. P., the father of the child J.C.A.C., in default. [ 37 ] On May 27, 2011, the society brought a motion to place the child N.S.C. (born […], 2011) in the temporary care and custody of the society. On that date, Justice Spence made the order, with access to occur four times a week for a period of three hours at the shelter where Ms.

M.C. resided, to be supervised by the society or shelter staff. [ 38 ] The society submits that Ms. M.C. has been the victim of repeated and significant domestic violence by Mr. J.D., the father of A. and baby N.S.C.

[ 39 ] The society submits that Ms. M.C. has demonstrated poor judgment in reuniting with Mr. J.D. on several occasions. This has put her and her children at risk and at further risk by taking the children to visit Mr. J.D. in jail. [ 40 ] The society submits that as a result of the ongoing domestic abuse she has suffered, Ms. M.C. has disappeared from the children’s lives for significant periods of time. [ 41 ] The society submits that, historically, Ms. M.C. has not co-operated with police regarding Mr.

J.D. [ 42 ] The society submits that most of the relevant historical facts are not in contention and they are contained in the statement of agreed facts filed in Volume 1 of the society’s motion brief at tabs 6 and 7, respectively. [ 43 ] The society submits that Ms. M.C., at paragraph 1 of her affidavit, returned repeatedly to an abusive relationship with Mr. J.D.. Ms. M.C. returned to Mr. J.D. on several occasions since 2008 and on at least two occasions reunited with him after he had been incarcerated related to charges of abuse against her. [ 44 ] Ms.

M.C. suffered serious domestic violence on September 10, 2008, which left her with a possible broken nose and two black eyes. At that time, she was four months’ pregnant with Mr. J.D.’s child. On February 4, 2009, Ms. M.C.’s parents filed a Missing Person report for her and her child, J.C.A.C., as Ms. M.C. went underground, into hiding, when she was expected to testify during Mr. J.D.’s trial in February 2009. [ 45 ] Ms. M.C. did not attend for Mr. J.D.’s trial and, without a material witness, Mr. J.D. was released with no conditions. [ 46 ] Mr. J.D. was arrested and incarcerated again on May 22, 2009. [ 47 ] Ms.

M.C. did not attend Mr. J.D.’s preliminary trial in August 2010. Mr. J.D. was released on the same day under a peace bond, whereby he was not to have any contact with Ms. M.C. for a year. [ 48 ] The society submits that J.C.A.C. and A. have been exposed to severe domestic violence. [ 49 ] In the first incident of domestic violence reported to the society in September 2008, J.C.A.C. witnessed Ms. M.C. being severely physically abused by Mr. J.D.. Ms. M.C. acknowledged that prior to the incident of September 2009, there had been ongoing physical and emotional abuse by Mr.

J.D. and J.C.A.C. was exposed to this violence. [ 50 ] On March 6, 2009, at Ms. M.C.’s home, she presented with black and swollen eyes and marks on her neck from attempts of choking. J.C.A.C. said, “Man hit mommy and mommy crying.” Two days prior, Ms. M.C. had been accompanied to the hospital by police for treatment of her injuries. On March 6, 2009, J.C.A.C. was apprehended and placed in society care. [ 51 ] Shortly after January 28, 2010, Ms. M.C. resumed contact with Mr.

J.D., visiting him in jail with the children. [ 52 ] On May 28, 2010, during a home visit, J.C.A.C. stated that he had visited “mom’s friend J.” and that “J. sometimes is not nice.” “J.D. was not nice to mommy. He hit mommy and police came.” [ 53 ] The society submits that throughout her pregnancy with A., Ms. M.C. exposed A. to severe physical violence by Mr. J.D., which included punching in the stomach, kicking her vagina which led to bleeding requiring hospital treatment, and choking her to the point where Ms. M.C. could not breathe. [ 54 ] A. was born in Mr. J.D.’s father’s home. Mr.

J.D. was not present. [ 55 ] The affidavit of Detective DeCoste at tab 8 recounts that the officer saw Ms. M.C. on several occasions from September 8, 2008 to May 12, 2009. Ms. M.C. reunited with Mr. J.D. following meetings with the officer. The society maintains that the nature of the abuse that Ms. M.C. suffered has always been extreme and violent. The most recent incident in Vancouver was perhaps the most furious act of violence. They submit that the abuse she has suffered has always been at the high end of the spectrum. [ 56 ] The affidavit of shelter worker Sophia Osora filed in Ms.

M.C.’s materials refers to a conversation with Ms. M.C., about what happened in Vancouver. At paragraph 7, Ms. Osoro states that Ms. M.C. does not want to be in contact with Mr. J.D. or his family because, after the incident in British Columbia, she realised he really did not care about her and was only interested in protecting himself. [ 57 ] The society submits, however, that Ms. M.C. has returned to Mr. J.D. in the past, despite almost equally severe acts of violence against her and the risk remains that she may well do so again. [ 58 ] The society submits that it has connected Ms.

M.C. with the following services: (

a) Subsidized housing under the domestic violence priority criteria; (

b) Support Link Victim Services; (

c) Individual counselling at Catholic Family Services (approximately April 2009 to May 2010); (

d) A program at the Child Development Institute for mothers who are victims of domestic violence; and (

e) Subsidized day care for the children. [ 59 ] At paragraph 10 of her affidavit, Ms. M.C. indicates that, in the past when she was involved with services, she was merely going through the steps and they did not have the intended impact on her. She further states, at that time she did not realise Mr. J.D. was a man who was not going to change his violent and manipulative ways. [ 60 ] The society’s evidence regarding Ms. M.C.’s historical involvement with services can be found at paragraphs 25 to 30 of Ms. Hysi’s affidavit.

[ 61 ] In her affidavit, Ms. Hysi attaches two letters. The first at Exhibit A is a letter from Virginia Koehler outlining Ms. M.C.’s participation in counselling at Catholic Family Services. Ms. Koehler notes that Ms. M.C. met with one counsellor from April to May 2009 and then with another from May 2009 to February 2010 for 28 sessions. [ 62 ] In a letter dated May 16, 2011, Virginia Koehler, Supervisor of Violence Against Women Program at Catholic Family Services, faxed a letter outlining Ms. M.C.’s involvement with Catholic Family Services. Ms. Koehler noted that Ms.

M.C. was addressing the effects of the abuse of Mr. J.D. on her in counselling sessions with Ms. Elezi, social work counsellor with Catholic Family Services. When Ms. Elezi went on leave, Ms. M.C. met with Ms. Moses, a social worker, from May 2009 to February 2010 for 28 sessions. [ 63 ] Ms. M.C. was involved in the ten-week program, Mothers in Mind, at the Child Development Institute beginning October 7, 2009. On May 20, 2011, the society received a copy of the discharge

summary, dated December 16, 2009, and signed by Group Facilitator Amanda Dyson upon completion of the program. In the discharge

summary, it was noted that the program is for “mothers who have experienced woman abuse” and “is designed for mothers who are concerned that these experiences may be affecting their own experiences of parenting and their relationships with their children.” Ms. M.C. was said to be “an active participant in the program” and that she “was interesting in learning strategies to help J.C.A.C. when he is angry or upset.” The

summary said further: “When J.C.A.C. turns four, it is recommended that Ms. M.C. and J.C.A.C. attend the Here To Help program,” a program for women who have experienced domestic violence and their children. [ 64 ] The society submits that, in spite of her commitment to working with the above services and others, in the three years of society involvement with her, Ms. M.C. has demonstrated a pattern. She has been the victim of significant domestic violence, has worked with supports to address this and has succeeded to a certain point, but then resumed putting herself and her children at risk by reuniting with Mr.

J.D., the perpetrator of the domestic violence. [ 65 ] On June 2, 2010, Justice Robert Spence made a temporary without prejudice order placing the children in the care and custody of society on consent. [ 66 ] The society submits that between June 2, 2010 and January 6, 2011, Ms. M.C. had NO contact with the children. [ 67 ] The society submits that between June 2, 2010 and September 3, 2010, Ms. M.C. had NO contact with the society. [ 68 ] Pursuant to paragraph 55 of Ms. Hysi’s affidavit, sworn June 1, 2011, set out in the society’s trial brief: On September 3, 2010, I received a phone call from Ms.

M.C., who stated the following: (

a) She wanted to arrange some visits with the children; (

b) She had to get away for a while to take care of certain things; (

c) She did not attend Mr. J.D.’s trial as a witness because ‘there was no point. He was not the one who did it. (

d) She did not know if Mr. J.D. had been released because she had not contacted Victim Witness Services. During Ms. M.C.’s absence, I learned the following regarding Ms. M.C.: (

a) On October 6, 2010, I spoke with Ms. Arlinda Elezi, counsellor through Catholic Family Services. Ms. Elezi stated that she saw Ms. M.C. for counselling last in May 2010. After that, they scheduled other appointments but Ms. M.C. did not show up. Ms. Elezi did not hear from Ms. M.C. again until several weeks ago when Ms. M.C. called to ask for parenting groups. Ms. Elezi referred Ms. M.C. to Black Creek Community Health Centre as Catholic Family Services did not offer parenting courses. (

b) On October 24, 2010, Detective Lisa Ferris, badge number 4977, contacted Emergency After Hours worker Anne Gray to report the following: (

i) Earlier that day, Ms. M.C. and Mr. J.D. were at Mr. J.D.’s grandmother’s residence and Mr. J.D. assaulted his grandmother. The grandmother hid in the bedroom and called 911. When police arrived, both Ms. M.C. and Mr. J.D. were gone. (ii) Police wanted to locate Ms. M.C. to make sure she was not injured. (iii) Police wanted to arrest Mr. J.D. for assault against his grandmother and possibly Ms. M.C. (Attached hereto and marked as Exhibit “E” is a true copy of Ms. Gray’s case note dated October 24, 2010.) On December 6, 2010, I received a telephone call from Ms. M.C. stating the following: (

a) She is calling from Vancouver; (

b) She has been there for about a month, since the incident with Mr. J.D.’s grandmother in Toronto; (

c) She and Mr. J.D. took the bus to Vancouver where they stayed with some of his friends for a while; (

d) She has a stabbing wound on her chest and is in a lot of pain; (

e) She is staying at a safe house where she is being connected with counsellors and doctors; (

f) The safe house [staff] were helping her contact police; (

g) She does not know where Mr. J.D. is; (

h) She wants eventually to return to Toronto. On December 14, 2010, I spoke with Detective Anil Singh from Vancouver Police Department, who stated the following: (

a) Mr. J.D. was arrested on December 9, 2010. (

b) Mr. J.D. was charged with five counts of assault on Ms. M.C., three counts causing bodily harm (twice burned her with cigarettes and once stabbed her to puncture her lungs which required hospitalization).

(

c) Mr. J.D. also has a count of aggravated assault and one count of forced confinement. (

d) During the last stabbing assault, Mr. J.D. coached Ms. M.C. to make up a name and a story for her assault [assailant]. He then visited Ms. M.C. at the hospital often. (

e) Ms. M.C. finally got a chance and spoke with the hospital social worker who arranged for her to be released to a safe house. (

f) Ms. M.C. was 16 weeks pregnant and wanted to return to Toronto. (

g) Toronto police are looking for a similar safe house in Toronto. (

h) The last stabbing incident was a “close to dying” experience and if Ms. M.C. had not been taken to the hospital, she could have bled to death. On January 4, 2011, I met with Ms. M.C., who stated the following: (

a) She returned to Toronto on December 23, 2010; (

b) She had stayed at a shelter arranged by Toronto police; however, it was close to Mr. J.D.’s family and she asked to be removed; (

c) She has been staying at another shelter since December 25, 2010; (

d) Her plan was to secure housing and resume counselling; (

e) She had been connected with the “Rapid Response Program” through Victim Services; (

f) She had been in touch with an obstetrician who will follow the remainder of her pregnancy; (

g) She wanted the children returned to her care with supports. On January 4, 2011, Ms. M.C. stated the following regarding abuse from Mr. J.D.: (

a) When attending court for the child protection matter in January 2010, she had provided Mr. J.D.’s family members who were present that day with her phone number. She resumed contact with Mr. J.D. shortly after that time; (

b) Mr. J.D. called her from jail and told her that he forgave her for putting him in jail but still needed her help to get out of jail. Mr. J.D. did not threaten her but she felt that she needed to help him because she loved him; (

c) She started visiting him in jail weekly. Most times she would leave the children with Mr. J.D.’s grandmother; however, she took the children (who were in her care at the time) twice to visit Mr. J.D. in jail. (

d) She felt that Mr. J.D. needed a chance to meet A.; (

e) She felt that it was acceptable for J.C.A.C. to accompany her to the jail because he had forgotten about Mr. J.D. and his past abuse on her; (

f) Mr. J.D. had been coaching her to disappear so she would not show up for his upcoming trial in August 2010; (

g) Mr. J.D. coached her into putting the children back into society care. She did not come to visit the children because Mr. J.D. told her that there was always a possibility that she could be apprehended by police; (

h) Mr. J.D. got out of jail in August 2010 and they resumed residing together at her place that she rented; (

i) Shortly after his release from jail, Mr. J.D. resumed his abuse of her. The abuse consisted of daily hitting, punching, kicking, choking, poking her eyes with his finger, spitting on her and burning with cigarettes on her neck; (

j) Mr. J.D. resumed drinking alcohol (beer, vodka, rum) and doing drugs (ecstasy and crack cocaine); (

k) On October 27, 2010, they visited Mr. J.D.’s grandmother. Before arriving at grandmother’s place, Mr. J.D. stopped by the liquor store and started drinking. While at his grandmother’s, Mr. J.D. started arguing with grandmother; (

l) The grandmother got scared and pulled out a knife on him. Mr. J.D. grabbed the knife from the grandmother and pushed her down the stairs where he further assaulted grandmother. She [Ms. M.C.] tried to intervene but Mr. J.D. assaulted her as well; (

m) The following day, October 28, 2010, Mr. J.D. saw in the news that the police were looking for him. He then decided to go to Vancouver in order to be far away from Toronto. While in Vancouver, they stayed in shelters; (

n) On or about December 1, 2010, Mr. J.D. stabbed her with a knife on her back because she had forgotten to turn off the lights. Mr. J.D. walked her outside and dropped her off at a bus stop where he told her to make up a story about the stabbing; (

o) Mr. J.D. kept visiting her at the hospital. While at the hospital, she talked to the hospital social worker and told her she did not feel safe with Mr. J.D. visiting her; (

p) She was then discharged to a safe house where she stayed until she came to Toronto; (

q) She has had no contact with Mr. J.D. or his family since then. [ 69 ] The society submits that on January 6, 2011, Ms. M.C. had her first visit with her children since they came into care on May 28, 2010. Initially, visits were for one hour. On May 6, 2011, the visits were increased to an hour and a half. [ 70 ] J.C.A.C. has had regular access visits with his maternal step-grandmother, Mrs. C.C. The visits have been fully supervised at the society’s office, once every two weeks, for one hour. A. has attended only few access visits at Mrs. C.C.’s request as she felt a lack of attachment with A.

The maternal grandfather, Mr. C.C., has attended these access visits only sporadically. [ 71 ] Since returning to Toronto on December 23, 2010, Ms. M.C. has resided at a women’s shelter. She started receiving counselling through an outreach counsellor on January 12, 2011. She started receiving counselling through a private counsellor as arranged by Victim Services Toronto in or about February 2011. [ 72 ] Jillian Steinberg from Victim Witness Service has reported that Ms. M.C. is very hopeful and has goals for her life. Ms.

M.C. loves her children. Ms. M.C. has been a victim and is a survivor. Ms. M.C. is presently safe due to Mr. J.D. being in jail. Ms. M.C. is trying to move forward and not return to Mr. J.D.. Ms. M.C. has demonstrated progress. [ 73 ] Pursuant to paragraph 78 of Ms. Hysi’s affidavit, on January 19, 2011, “…I attended a meeting with Ms. M.C. and the shelter staff, Debra Thompson, Gwen Chawdhury and Sophie Osoro. During this meeting, Ms. M.C. reported that she had been cutting her wrists on and off since she was fifteen years old.

During this meeting, shelter staff Sophie Osoro advised that, since coming to the shelter, Ms. M.C. has been very compliant, receiving counselling, eating healthily, attending doctors’ appointments, smiling more and is approaching staff more..”. [ 74 ] Yana Hoffman is a private counsellor who has provided four or five counselling sessions to Ms. M.C. up to February 23, 2011. [ 75 ] Ronit Kasimov, Shelter Outreach Counsellor, as of March 1, 2011, has had six counselling sessions with Ms. M.C. [ 76 ] Ms. M.C. reported to her [Ms. Kasimov] that she was not planning to reconcile with Mr.

J.D. this time because he almost killed her. [ 77 ] Mr. J.D. has been scheduled for a preliminary hearing in August 2011 in Vancouver. Ms. M.C. provided a sworn video statement for the purpose of the preliminary trial. Ms. M.C. will be required to attend personally for the actual trial, a date for which has not yet been set. [ 78 ] I have reviewed the affidavit of Moyra Raindeen, sworn June 2, 2011, in her capacity as a parent support worker who has been involved with Ms. M.C. and her sons, J.C.A.C. and A., since January 28, 2011 to the present. [ 79 ] She has supervised 14 visits with Ms.

M.C. to date. [ 80 ] As indicated, from January 2001 until May 6, 2011, the visits were one hour in duration as her children had been estranged from their mother for a long period of time. There were concerns that the society was not able to predict how the children would react to visits. [ 81 ] The visits were extended to one hour and a half on May 6, 2011. Mother indicated that some of the challenges she had with the visits may have been due to their short duration. [ 82 ] Ms.

M.C. has been a resident of the Women’s Shelter from December 25, 2010 until the present, according to Sophie Osoro, Women’s Services Worker, in a letter dated April 19, 2011, to mother’s counsel. [ 83 ] Yana Hoffman, C.C.D.C., letter of May 2, 2011: To Whom It May Concern Regarding Ms. M.C., DOB […] I am the counsellor for Ms. M.C. funded by Victim Services B.C. I have been seeing her for several months now and have been addressing different aspects of her behaviour which lead to CAS to consider making her two boys, ages 5 and 2, permanent wards of the court.

I am experienced in working [with] the abused women and women who are victims of domestic violence (I ran a woman’s group for several years, affiliated with Salvation Army, for victims of domestic violence) and I have been impressed by Ms. M.C.’s honest and forthright acknowledgement and understanding of the inappropriate and dangerous situation she put herself and the children in. In addressing issues in her family of origin and her own longing for a functional family, she has begun the hard work of accepting that it is not possible to have the family she wants if she is with this man.

Her realization of this is giving her the courage to address and heal her personal issues which have previously led her to go back to him. With her honest appraisal of the situation and her direct experience that he is an unsuitable husband and father and that being in contact with him is dangerous for both her and her children, she is gaining the insight and strength to move on and apply herself to what needs to be done to provide for herself and her kids.

To the best of my ability, I feel confident that with continued social and community support and counselling she will soon be in a position to adequately parent and take care of her children including the one due in May. [ 84 ] Ronit Kasimov, M.S. Counselling Psychology, Transitional Support Worker & WACAV Program Co-ordinator, letter of April 4, 2011, to mother’s counsel: Dear Mr. Sullivan, As per your request, I am writing this letter regarding the work that has been completed with Ms. M.C. to date. Ms. M.C. was first referred to the Transitional Support Program in January 2011.

We have been meeting on a weekly basis and have had eleven counselling sessions to date. The current plan is to continue working together for another two or three months. This plan can be revised if needed. . . . Ms. M.C. is working hard towards building a violence-free life for herself and to move forward in a positive way. She hopes that her children will be a part of that life. Please do not hesitate to contact me should you have any questions. [ 85 ] Ms. M.C. states in

part in her affidavit dated June 15, 2011:

2. I do not deny nor diminish the concerns of the Catholic Children’s Aid Society of Toronto and this court about my past behaviour, specifically, being involved in and returning repeatedly to an abusive relationship with the Respondent Mr. J.D. 3. I do not also deny that this has impacted on the well-being of my children, J.C.A.C., born […], 2006, and A., born […], 2009. … Police Co-operation 4. It is true that in the past I have not followed through with the prosecution of Mr. J.D. here in Toronto. In 2009-2010, although I did give statements to the police regarding the violence of Mr.

J.D., I have not followed through with the prosecution. I ask the court to consider how significant a step I have taken in the recent sworn testimony that I have given to the Toronto Police to assist the Crown in British Columbia to begin the prosecution of Mr. J.D. 5. I ask the court to review Exhibit “A” to this Affidavit [which] is an exchange of emails between myself and Detective Dan Murphy. It indicates that I have been cooperating with the police and that I have provided a sworn statement that is going to be used by the Crown in British Columbia in the preliminary inquiry against Mr. J.D. 6.

This is a significant step by me as I had never sworn testimony against Mr. J.D. as I have just recently done with the Toronto Police to assist in the prosecution of Mr. J.D. . . . 8. In 2009/10 although I was supposed to be away from Mr. J.D., he continued to hold emotional control over me. 9. It is true, as stated in the society Affidavit dated May 26, 2011, that in 2009 and 2010 I was to visiting Mr. J.D. while he was incarcerated here in Toronto and this was one of his methods to continue his control [of] me. . . . 13. Mr. J.D. does not have control over me.

He remains incarcerated in British Columbia facing several criminal charges, [with] which I have assisted in their prosecution of him. 14. I have provided to the police a videotaped testimony against Mr. J.D. . . . 16. Since returning to Ontario, I have been working with a number of support services which had had, I believe, a good influence on my understanding of the situation I was in with Mr. J.D.. He has not been able to draw me back into his abusive influence and therefore my work with the services that I have undertaken have been beneficial to me and my children.

My supports have sworn Affidavits in support of my request to have N.S.C. placed in my care under the supervision of the Catholic Children’s Aid Society. 17. I asked the court to read attached as Exhibit “B” to this my Affidavit the Affidavit of Ms. Yana Hoffman dated June 6, 2011. Ms. Hoffman is a counsellor that has been funded from the victim services in British Columbia to assist me here in Ontario. 18. I asked this court to read the attached Affidavit of Ms. Ronit Kasimov, dated June 3, 2011, marked as Exhibit “C.” Ms.

Kasimov is a transitional support worker who has been meeting with me to provide domestic violence counselling and education on domestic abuse. 19. When I first returned from British Columbia in late December 2010, I was confused and scared. … 20. I have just given birth to my third son, N.S.C. This was on […], 2011. My plan for N.S.C. and my two older children, J.C.A.C. and A., are the same. I will continue to receive support from North York Woman’s Shelter and reside there. … . . . 26. Finally, I wish to present to the court a psychological assessment of me prepared by Dr.

Nitza Perlman attached to this my Affidavit as Exhibit “H.” 27. This is the first professional assessment of me to help me focus on the services that I need to put in place to help address the past individual trauma that I have experienced as well as better assist me in parenting my children. (

a) I would ask the court to review the report of Dr. Perlman. I am happy that the doctor was able to assess me and I will be focusing on the recommendations of Dr. Perlman. She does indicate that I have made progress in answering the questions asked of [by] her on page 14 and 15 of her assessment. Dr. Perlman does indicate that it is her impression that I have made progress in developing a (conscious) cognitive framework that rejects domestic violence… (

b) Dr. Perlman goes on to indicate acquiring a new and more adaptive cognitive frame of mind is a helpful first step in my fight against my past history and domestic violence. [ 86 ] Ms. M.C. submits that she is proud of her progress and will continue on this path. [ 87 ] The society submits and commends Ms. M.C. for taking the steps to obtain the necessary in-depth assessment provided by Dr. Perlman. Dr. Perlman, the society submits, recognises the limitations of the conclusions she is able to draw, in that, she does not comment directly on Ms. M.C.’s ability to parent. But according to Dr.

Perlman, and the trauma syntax index that she used, it indicates that Ms. M.C. suffers from significant effective trauma. At page 13 of the report, it states that she has flashbacks and intrusive memories and is troubled by certain memories. [ 88 ] Dr. Perlman notes that Ms. M.C. disclosed sexual abuse by her father which began when she was just six years old. Ms. M.C. has the potential for recovering and there was no evidence of a psychotic process. Based on the M.M.P.A. test, Ms.

M.C.’s performance indicated that she is sad, lacking energy, has a low self-esteem, feels inadequate and despondent, and that a person with her

profile may be hostile, suspicious and tends to have emotional reactions. Dr. Perlman concludes that Ms. M.C. is severely traumatized by her childhood abuse and her brutal abuse inflicted by Mr. J.D. and the loss of her children. She notes that mother’s defences and coping abilities are fragile. [ 89 ] Dr. Perlman emphasises that Ms. M.C. has stated that she wants to parent but notes that she did not assess her ability to do so. While Ms.

M.C. has made progress and developing a cognitive framework that rejects domestic violence, the process of internalizing these new expectations that come with this, such as ensuring safety, and her children, and assuming responsibility for the trauma the children have endured, is often slower. Dr. Perlman writes, on page 14 of the report, “It is my opinion that she has not yet fully assumed responsibility for the suffering inflicted on the children.

Again, it is a slow process.” [ 90 ] Furthermore, “My recommendations are more to do with the system’s ability to ensure a safe, structured and supportive environment for Ms. M.C. on a long-term basis. Supported by such a system, she appears to be able to benefit from it. Her ability to be autonomous of such a supportive system and cope on her own, advocating for herself and her children, has not yet been tested. It is my opinion that she needs more time in a protected environment.” 29. I am also working towards getting my GED so that I can attend college in the Fall. 30.

At the Shelter, I have also begun a six-week self-defence course to better protect myself… [ 91 ] The society submits that Ms. M.C.’s cooperation with police in light of the indicated history does not guarantee future cooperation. Ms. M.C. notes in her affidavit that she has provided video-taped sworn testimony for the purposes of Mr. J.D.’s preliminary inquiry. She states this is a big step. [ 92 ] The society submits that while the purpose of the statement that Ms. M.C. has given may be different than those before, it is a video statement and does not require Ms. M.C. to attend at court and testify against Mr.

J.D. [ 93 ] The society submits that history indicates that when Ms. M.C. is required to attend at court, she does not. [ 94 ] Paragraph 8 of the August 17, 2009 statement of agreed facts states that Ms. M.C. “went underground” in February 12, 2009 when she was expected to testify at the trial. The same document also notes that Mr. J.D. was arrested on May 22, 2009 and Ms. M.C. maintained that she was cooperating with Police at this time. The affidavit of Detective DeCoste outlines the fact that she could not locate Ms.

M.C., once again, when she was looking for her to testify in the August 23, 2010 preliminary inquiry in relation to those charges. It was in advance of that preliminary inquiry that Ms. M.C. became unable to care for their children, they came back into the society’s care at the end of May and Ms. M.C. went underground again, not to resurface in Toronto until January 2011. [ 95 ] Dr. Perlman clearly states she did not do a parent capacity assessment but the society submits that, without an assessment of mother, mother cannot meet the emotional needs of the children because of access interaction. This, Ms.

M.C. submits, is a triable issue. [ 96 ] Ms. M.C. submits that Dr. Perlman’s report presents the genuine issue for trial. [ 97 ] Pursuant to an affidavit sworn by Detective Constable on May 31, 2011 in part: 2. I first met Ms. M.C. on September 9, 2008 when I was a Domestic Violence Investigator in the Family Violence Unit for 54 Division. I was assigned an occurrence for Domestic Assault identifying Mr. J.D. as the Assaulter and Ms. M.C. as the Victim. . . . 4. During the interview, Ms. M.C. gave a detailed statement as to what had occurred between her and Mr. J.D.. Ms.

M.C. advised me that she had been assaulted by Mr. J.D. on numerous occasions while her son J.C.A.C. was in the same apartment. When I spoke with Ms. M.C., she had black eyes that had begun to heal and the whites of her eyes had blood in them. She also had a broken nose and chipped teeth. Attached hereto and marked as Exhibit “A” is a true copy of the Synopsis for Guilty Plea that I drafted on September 10, 2008 following this incident… [ 98 ] Ms. M.C. indicates in her affidavit that Mr.

J.D. was incarcerated here in Toronto and that the work that she was doing with outside agencies, which the society submits is the same work that she is doing today, did not take hold in terms of her ability to come to realise the cycle of violence that she was in. [ 99 ] That is the central issue she believes is genuine and something that is a difference between society’s view and mother’s view. FIRST TRIAL 5. To my knowledge and belief, Mr.

J.D. was found not long after the warrant for his arrest was issued and he was arrested on the warrant for Domestic Assault along with additional charges for having been found at the time of his arrest with a kitchen butcher knife wrapped in a bandana and shoved down the back of his pants. Due to the fact that he remained in custody, his trial was set for February 12, 2009. 6. In advance of the trial date, I sent a request to the Police Services’ Court Services Department for a subpoena for Ms. M.C. to be served.

A couple of weeks before the trial, I received the subpoena back from the Court Services Department along with a notice that Ms. M.C. was unable to be found. …

7. Around this time I became aware that Ms. M.C. was pregnant with Mr. J.D.’s child. … I was unable to find Ms. M.C..ToM. my knowledge and belief, on the date of the trial, Mr. J.D. pled guilty to weapons offences and the remaining domestic related matters were stayed for 12 months. He was released from jail. 8. On March 3, 2009, while on a course at our police college, I received a phone call from a colleague, advising me that Ms. M.C.’s stepmother, Mrs. C.C., had called to tell me that Ms. M.C. had shown up at her father and stepmother’s home with her son J.C.A.C. and that Ms. M.C. had again been beaten. 9.

On that day, Ms. M.C. was taken to Toronto East General Hospital by my colleague, where she was looked at by the Obstetrics team and then followed up with being looked at by Emergency Room doctors. 10. I met Ms. M.C. at the hospital in the early evening and I observed that Ms. M.C. again had purple swollen eyes. She was unable to open her left eye as it was swollen shut. Both eyes were blood red instead of white around the irises, as they were full of blood, and Ms. M.C. was complaining of a headache to the front left side of her head. Ms.

M.C. had scratches to the right side of her neck and she told the doctor that she had also been punched in the chest. After using specialized equipment, the doctor advised that Ms. M.C. had sustained a scratch to her left eye.” SECOND VIDEO STATEMENT 11. On March 5, 2009, Ms. M.C. was taken to 54 Division where she was interviewed on video once again by myself. This time, Ms. M.C. advised me that she had been assaulted by a jealous girlfriend of a boy she knows. THIRD VIDEO STATEMENT (INTERVIEW OF 15 APRIL 2009) 14. During the April 15 th interview, I reviewed with Ms.

M.C. what took place in the fall of 2009 and why she couldn’t be found in order to be subpoenaed for Mr. J.D.’s first trial date. Ms. M.C. explained the following: (

a) She had received a call from Mr. J.D. in November 2008 while he was in custody. (

b) Ms. M.C. advised that she loved Mr. J.D. and that she wanted a father for her 3-year-old son and her unborn child. (

c) He told her that he knew that she was pregnant with his child and he wanted to be a family. (

d) He apologized to her and promised her that he would seek treatment for his alcohol abuse and for his anger. . . . (

h) Mr. J.D. then told Ms. M.C. that the charges would be dropped if she didn’t show up for the trial. Mr. J.D. told Ms. M.C. to stay at his grandmother’s and to “lay low” until after the trial date. . . . (

j) As noted above, on February 24, 1009, after Ms. M.C. failed to show up for the second time for trial, Mr. J.D. was let out of custody and went directly to his grandmother’s home where Ms. M.C. had been staying with her son J.C.A.C. 15. During the April 15 th interview, Ms. M.C. went on to describe the following events that occurred following Mr. J.D.’s release from prison on February 24, 2009: (

a) Ms. M.C. went on to say that on March 1, 2009, Mr. J.D. began accusing her of cheating on him and he blamed her for having to spend six months in jail (

b) At that time, Mr. J.D. hit her in the face causing her to have two black and bloodshot eyes and swollen lips. (

c) On March 2, 2009, Mr. J.D. began to drink and he again accused her of cheating on him and blamed her for him being in jail. (

d) Ms. M.C. advised that her son, J.C.A.C., was sleeping on the couch at this time and that Mr. J.D. grabbed her from behind and placed her in a choke hold. (

e) Ms. M.C. advised that she became so frightened for her life that she ended up scratching her own neck trying to pry Mr. J.D.’s arm from her neck. She couldn’t breathe and thought she might die, somehow freed herself of Mr. J.D.’s grasp and she ran downstairs to part of the house where his grandmother stayed. 16. During the April 15 th interview, Ms. M.C. went on to describe the assault of April 7, 2009 which led to her attending at Humber River Hospital. FOURTH STATEMENT 22. On May 12, 2009, I took a fourth and final videotaped statement from Ms. M.C. regarding the last few days that she was with Mr.

J.D. just before the baby was born. She advised that while she was staying at a shelter, she had run into Mr. J.D. on Broadview Ave. and he had made her stay with him until the birth of the new baby at the home of his stepfather. Attached hereto and marked as Exhibit “C” is a true copy of the Synopsis Report I prepared on May 13, 2009. [ 100 ] The society submits that, literally, every time Ms. M.C. was assaulted by Mr. J.D., she went to her father and stepmother’s home. Ms. M.C., the society submits, has never contacted the police following any of the many assaults of which she has been the victim.

After the initial assault by Mr. J.D., Ms. M.C. went to her parents’ home. Her stepmother, Mrs. C.C., called police. Police attended and took a report from Ms. M.C. at that time. [ 101 ] In or around March 2011, the society found out that Ms. M.C. had once again allowed Mr. J.D. back into her life and that they ended up in British Columbia and that the Royal Canadian Mounted Police charged Mr. J.D. with domestic related to once again assaulting Ms. M.C.

[102] The society submits that there is a risk the children will suffer harm if they are returned to the care of their mother. Even ifMr. J.D. remains incarcerated, currently decreasing the risk of exposure to violence, the children are still at risk that mother would not beable to meet their emotional needs should they return to her care. There are concerns that not enough time has passed to ensure theywould indeed not be exposed to domestic abuse again should Mr. J.D. alternatively be released from jail in Vancouver and brought toToronto. [103] The society submits that no one can make Ms.

M.C. stay away from Mr. J.D.. Mr. J.D. has shown that he is very capableof manipulation and Ms. M.C. has fallen for this manipulation repeatedly. The main concern has been that Ms. M.C. continued to allowher children to witness the violent crimes perpetrated by Mr. J.D. 1: DISPOSITION 1.1: The Law [104] Rule 16 of the Family Law Rules, O. Reg. 114/99, as amended, permits a party to make a motion for

summary judgment. The following subrules in Rule 16 are relevant 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. [105] Rule 16(6) is mandatory: if the court concludes that there is no genuine issue requiring a trial of a claim, the court shallmake a final order accordingly. [106] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine if thereis 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., 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Cars​well​Ont 2453 (Ont. Fam. Ct.), perJustice Donald J.

Gordon. [107] Subsections 70(1) and (4) of the Child and Family Services Act mandate that a child under the age of six years shall not bein the care of a society for longer than 12 months, subject to a six-month extension if it is in the child’s best interest to do so. [108] The dominant consideration of the best interests test is the welfare of the child. See Re McGrath (infants), [1893] 1 Ch.143, 62 L.J. Ch. 208, 67 L.T. 636, 2 R. 137, 9 T.L.R. 65, 41 W.R. 97 (C.A.), at page 148 [Ch.], cited with approval in CatholicChildren’s Aid Society of Metropolitan 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, 2R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376, at page 201 [S.C.R.]. [109] The welfare of the child is “not to be measured by money only, nor by physical comfort only. The word welfare must betaken in its widest sense.” See Re McGrath (infants), supra. [110] The best interests test has a “wide focus.” This means that the “entirety of the situation” must be examined in order todetermine a child’s best interests. See Catholic Children’s Aid Society of Metropolitan Toronto v.

Cidalia M., supra. [111] The best interests of a child are continuously evolving. See Catholic Children’s Aid Society of Metropolitan Toronto v.Cidalia M., supra. This means that different solutions may be required over time. [112] The best interests of a child take priority over the desires and interests of the parent. See Young v. Young, [1993] 4 S.C.R.3, 160 N.R. 1, 34 B.C.A.C. 161, 84 B.C.L.R. (2d) 1, 56 W.A.C. 161, [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41, 49R.F.L. (3d) 117, [1993] R.D.F. 703, [1993] S.C.J. No. 112, 1993 Cars​well​BC 264, at page 60 [S.C.R.].

The factors thatmust be taken into account when determining the best interests of a child are listed in subsection 37(3) of the Act. [113] This list is not exhaustive, as one of the factors to be considered under subsection 37(3) of the Act is “any other relevantcircumstance”. See also L.C. and G.C. v. Catholic Children’s Aid Society of Metropolitan Toronto (1993), 41 A.C.W.S. (3d) 1166,[1993] W.D.F.L. 1292, [1993] O.J. No. 1823, 1993 Cars​well​Ont 1581 (Ont. Gen. Div.). [114] The relevant factors must be considered and balanced in order to determine the child’s best interests.

See L.C. and G.C. v.Catholic Children’s Aid Society of Metropolitan Toronto, supra; and Catholic Children’s Aid Society of Metropolitan Toronto v. CidaliaM., supra. [115] As Associate Chief Justice John W. Morden observed in Irving Ungerman Ltd. v. Galanis (1991), (ONCA), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478, 1991 Cars​well​Ont 370 (Ont. C.A.),at page 550 [O.R.], “requiring the parties to go to trial would be a failure of procedural justice because the holding of a trial is

unnecessary.” [116] The onus as indicated in a

summary judgment motion is always on the moving party. See Kaighin Capital Inc. v.Canadian National Sportsmen’s Shows (1987), (ON SC), 58 O.R. (2d) 790, 17 C.P.C. (2d) 59, [1987] O.J. No. 2172,1987 Cars​well​Ont 405 (Ont. H.C.), per Justice W. David Griffiths, at page 792 [O.R.]. [117] While Appeal Justice Morden noted that “[t]here is no onus on the responding party” in Hi-Tech Group Inc. v. SearsCanada Inc., (2001), 52 O.R. (3d) 97, 11 B.L.R. (3d) 197, 4 C.P.C. (5th) 35, [2001] O.J. No. 33, 2001 Cars​well​Ont9 (Ont. C.A.), he also approved the additional explanatory caveat included in Lang v.

Kligerman, 82 A.C.W.S. (3d)811, [1998] O.J. No. 3708, 1998 Cars​well​Ont 3631 (Ont. C.A.), at paragraph [9]. [118] The court will assess the evidence on both sides, recognizing, however, that the responding party may choose not to tenderany. The responding party must put his or her “best foot forward” or risk losing. The actual evidence in a case may call for a reasonableexplanation on the part of the respondent, amounting to an “evidentiary burden,” in the absence of which an adverse inference can bedrawn. [119] 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 “broadenthe use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of dueprocess, statutory requirements and the best interest, protection and well-being of the children will determine ultimately theappropriateness of

summary judgment.” See 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.) per Justice Paddy A. Hardman. [120] A motion for

summary judgment should proceed with caution. The court must ensure the best interests of the child areadequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those bestinterests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state ofuncertainty about the child’s future. See Jewish Child and Family Services of Toronto v. A.(R.) (2001), 102 A.C.W.S. (3d) 554, 20L.W.C.D. 251, [2001] O.J. No. 47, 2001 Cars​well​Ont 73 (Ont. S.C.), per Justice G. Dennis Lane. [121] 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.” See Children’s Aid Society of Waterloo Region v. Taryn S. and Eric P., supra. [122] A party answering a motion for

summary judgment cannot just rest on bald denials; they must put their best foot forward,showing that there is a genuine issue for trial. The test for granting

summary judgment is met when the moving party satisfies the courtthat there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives [123] The responding party, faced with a prima facie case for

summary judgment, must provide evidence of specific factsshowing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specificfact showing that there is a genuine issue for trial, must be insufficient to defeat a claim for

summary judgment. See Children's AidSociety of Metropolitan Toronto v. M.A., 114 A.C.W.S. (3d) 676, [2002] O.J. No. 2371, 2002 Cars​well​Ont 1923(Ont. C.J.). [124] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a

summary Children’s Aid Society of Hamilton v. M.N., supra. [125] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support [126] In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence orelaboration. The court must rely on — and evaluate — the sufficiency of the evidence as disclosed by the affidavits. See Children’s AidSociety of Toronto v. C.H., 2004 ONCJ 224, 134 A.C.W.S. (3d) 261, [2004] O.J. No. 4084, 2004 Cars​well​Ont 4076 (Ont. C.J.), andChildren’s Aid Society of Hamilton v. C.

R., [2006] O.J. No. 3442, 2006 Cars​well​Ont 9244 (Ont. Fam. Ct.). Self-serving evidence that merely asserts a defence or a claim without providing some detail or support evidence is not sufficient to create agenuine issue for trial. See Goldman v. Devine, 2007 ONCA 301, 156 A.C.W.S. (3d) 1042, [2007] O.J. No. 1491, 2007 Cars​well​Ont2352 (Ont. CA). [127] In interpreting rule 16, rule 2 of the Family Law Rules should also be considered. As well, subsection 1(1) of the Act,which provides that the paramount purpose of the Act is to promote the best interest, protection and well-being of children, is necessaryto the

interpretation of the Act. See Children’s Aid Society of Hamilton v. M.W., 63 O.R. (3d) 512, [2003] O.J. No.220, [2003] O.T.C. 51, 2003 Cars​well​Ont 200 (Ont. Fam. Ct.). [128] A child’s need for permanency planning within a timeframe 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 discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’sremoval of the child from her care and has developed some new ability as a parent. See Children’s Aid Society of Toronto v. R.H., 2000

3158, 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. norealistic possibility of an outcome other than that as sought by the applicant.” See Native Child and Family Services of Toronto v. D.C.,2010 ONSC 1038, [2010] W.D.F.L. 2639, [2010] O.J. No. 620, 2010 Cars​well​Ont 829 (Ont. S.C.). [130] This motion is framed under Rule 16 of the Family Law Rules. As indicated, on a motion for

summary judgment, the courtshould not be assessing credibility, weighing the evidence or finding the facts. Instead, the court’s role is narrowly limited to assessingthe threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence anddrawing factual inferences are all functions for the trier of fact. See B. v. H.D, 5 R.F.L. (5th) 282, [2000] O.J. No.969, 2000 Cars​well​Ont 1129 (Ont. Fam.

Ct.). [131] Subrule16(4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out inan affidavit or other evidence specific facts showing there is a genuine issue for trial. 1.2: Obligations on a

Summary Judgment Motion [132] The following are the obligations of the parties on a

summary judgment motion. See Children’s Aid Society of Hamilton v.M.N., supra. [28] Of importance on this motion are the principles and standards of evidence required from themoving party. The following is a

summary of some of those obligations as it relates to this case: (

a) a full and complete evidentiary record is required: see B.(F.) v. G.(S.), supra, at para. 28; (b) (3d) 156 (Ont. C.A.); and, (

c) the motions judge is entitled to assume the record contains all evidence the parties will present [29] Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications fortemporary care and custody as s. 51 of the Act permits evidence the court considers “credible andtrustworthy in circumstances.” While Rule 16(5) appears to be permissive as to hearsay evidence, thereis the penalty attached of an adverse inference. [30] Evidence on a motion for

summary judgment must be restricted to “admissible” evidencegiven the nature of the proceeding, namely, it is comparable to trial, and the relief claimed. Theadmissibility of hearsay evidence must be supported by evidence of necessity and reliability, failingwhich it must be excluded. Simply put, if evidence is not admissible at trial, it is not admissible on amotion for

summary judgment. . . . [38] The society has an obligation, pursuant to s. 15 of the Act, to protect children, properlyinvestigate all relevant circumstances and provide adequate services to families that have as its objectivethe reuniting of family members where appropriate. (See, for example, Children's Aid Society of Londonand Middlesex v. S.(E.V.F.) (2004), (ON SC), 1 R.F.L. (6th) 68 (Ont. S.C.J.) andChildren's Aid Society of Niagara Region v. D.(W.) (2004), (ON SC), 1 R.F.L. (6th)84 (Ont.

S.C.J.).) Section 57(2), (3) and (4) also engage a discussion of less disruptive alternatives.These matters are not fully canvassed in the evidence as required. [133] I do not see how a trial, with viva voce testimony and cross-examination, could lead to any other conclusion. [134] I have read and relied on all the exhibits filed. [135] I relied on the facts that were not denied or where only bald denials were made. [136] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was recently setout by Justice Craig Perkins in Children’s Aid Society of Toronto v.

T.L. and E.B., 2010 ONSC 1376, [2010] W.D.F.L. 1957, [2010] O.J.No. 942, 2010 Cars​well​Ont 1343 (Ont. S.C.), 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 for access. If so, make an access order containing the terms and conditions that are in the child’s best interests. (Section 58.) 1.3: Social Science Literature [ 137 ] Justice Marvin A. Zuker, in Children’s Aid Society of Toronto v. S.C. , 2005 ONCJ 274 , 143 A.C.W.S. (3d) 869, [2005] W.D.F.L. 3688, [2005] O.J. No. 2154, 2005 Cars​well​Ont 2424 (Ont. C.J.), provided an excellent review of the insidious impact of domestic violence on women and children, which includes references to various social science materials.

Some excerpts are as follows (my emphasis added): [86] The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Expert testimony on the psychological effects of battering have been admitted in American courts in recent years. . . . [87] The cycle of violence conforms to the Walker “cycle theory of violence” named for clinical psychologist Dr. Lenore E. Walker, the pioneer researcher in the field of the battered wife syndrome. Dr. Walker first described the cycle in the book The Battered Woman , (New York: Harper Colophon Books, 1979).

In her 1984 book, The Battered Woman Syndrome , 2nd ed. (New York: Springer Publishing Co., 2000), Dr. Walker reported the results of a study involving 400 battered women. Her research was designed to test empirically the theories expounded in her earlier book. The tension reduction theory states that there are three distinct phases associated in a recurring battering cycle: (1) tension building, (2) the acute battering incident, and (3) loving contrition.

During the first phase, there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name-calling, other mean intentional behaviours, and/or physical abuse. The batterer expresses dissatisfaction and hostility but not in an extreme or maximally explosive form. The woman attempts to placate the batterer, doing what she thinks might please him, calm him down or, at least, what will not further aggravate him. She tries not to respond to his hostile actions and uses general anger reduction techniques.

Often she succeeds for a little while which reinforces her unrealistic belief that she can control this man . . . [88] The tension continues to escalate and eventually she is unable to continue controlling his angry response pattern. “Exhausted from the constant stress, she usually withdraws from the batterer, fearing she will inadvertently set off an explosion. He begins to move more oppressively toward her as he observes her withdrawal. . . . Tension between the two becomes unbearable” (Walker, 1979, page 59). The second phase, the acute battering incident, becomes inevitable without intervention.

Sometimes, she precipitates the inevitable explosion so as to control where and when it occurs, allowing her to take better precautions to minimize her injuries and pain. [89] Phase two is characterized by the uncontrollable discharge of the tensions that have built up during phase one” (Walker, 1979, page 59). The batterer typically unleashes a barrage of verbal and physical aggression that can leave the woman severely shaken and injured. In fact, when injuries do occur, it usually happens during this second phase. It is also the time that police become involved, if they are called at all.

The acute battering phase is concluded when the batterer stops, usually bringing with its cessation a sharp physiological reduction in tension. This in itself is naturally reinforcing. Violence often succeeds because it does work. [90] In Dr. Walker’s “phase three” which follows, the batterer may apologize profusely, try to assist his victim, show kindness and remorse and shower her with gifts and/or promises. The batterer himself may believe at this point that he will never allow himself to be violent again.

The woman wants to believe the batterer and, early in the relationship at least, may renew her hope in his ability to change. This third phase provides, for the woman, the positive reinforcement for remaining in the relationship. In fact, results showed that phase three could also be characterized by an absence of tension or violence and no observable loving-contrition behaviour, and still be reinforcing for the woman. [91] Dr. Walker defined a battered woman as a woman who has gone through the battering cycle at least twice.

As she explained in her introduction to The Battered Woman , at page xv, “Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.” . . . [93] The partner who becomes battered, if you will, stays in the relationship probably because of a number of reasons. [94] Often in these types of relationships, the person who beats or assaults, who batters, often tries to make up and begs for forgiveness.

And this individual, who basically has a very disturbed or damaged self-esteem, all of a sudden feels that he or she – we’ll use women in this case because it’s so much more common – the spouse feels that she again can do the spouse a favour and it can make her feel needed and boost her self-esteem for a while and make her feel worthwhile and the spouse says he’ll forgive her and what not. [95] Another manifestation of this victimization is a reluctance to disclose to others the fact or extent of the beatings. I find that as a fact in the case of Ms.

Sheila Ann Co., for example, the lack of hospital records does not reflect the occasions Ms. Sheila Ann Co. attended at hospitals to be treated for various injuries, but here there was great reluctance on her part to seek medical treatment, let alone even leave her home which she often did not.

[96] But the manner in which she would not tell people about her being beaten was related to thefact that the whole process would repeat itself. The abuser or batterer would want forgiveness and tellher that he would love her and that it would never happen again and she would feel grateful. She wouldfeel a little loved. It would help her self-esteem again and she would feel a little safer for a while too.

Itwould allow her to have a sense, a window of security for a period because she felt so trapped in thisrelationship. [97] A related theory used to explain the failure of women to leave battering relationships wasdescribed by psychologist and lawyer Charles Patrick Ewing in his book Battered Women Who Kill:Psychological Self-Defense as Legal Justification, (Lexington, Mass.: D.C. Heath and Co., 1987).

Ewing described a phenomenon labelled “traumatic bonding” that has been observed between hostagesand captors, battered children and their parents, concentration camp prisoners and guards, and batterersand their spouses. According to the research cited by Ewing, there are two features common to thesocial structure in each of these apparently diverse relationships.

At pages 19-20, he stated: The first of these common features is an imbalance of power “wherein the maltreated personperceives himself or herself to be subjugated or dominated by the other.” The less powerfulperson in the relationship – whether battered woman, hostage, abused child, cult follower, orprisoner – becomes extremely dependent upon, and may even come to identify with, the morepowerful person.

In many cases, the result of such dependency and identification is that theless powerful, subjugated persons become “more negative in their self-appraisal, moreincapable of fending for themselves, and thus more in need of the high power person.” As this“cycle of dependency and lowered self-esteem” is repeated over time, the less powerful persondevelops a “strong affective bond” to the more powerful person in the abusive relationship. . . . [99] Spousal violence is rarely the only factor operative in protection proceedings, but rather isoften combined with a family environment involving other types of child abuse or neglect.

When thereis a high degree of spousal abuse, the abusive partner is often abusive towards the children and theparenting capacity of an abused person often suffers. [100] In some cases where the father is abusive to his spouse and children, the child protectionagency may become involved and the agency or courts may allow children to remain in the mother’scare only on condition that the father has no contact, or that his contact is fully supervised. See, for (Ont. Fam. Ct.).

In some abusive relationships, in the pattern of Lenore Walker’s “cycle of violence,”the abused woman may allow the man to move back in during his next contrition phase, againendangering children and provoking the agency to apply to remove the children from mother’s care. See: • Children’s Aid Society of Peel Region v. Pamela T. and James D. (1995), 52 A.C.W.S. (3d)814, [1995] W.D.F.L. 348, [1995] O.J. No. 103, 1995 Cars​well​Ont 2162 (Ont. Prov. Div.); • Children’s Aid Society of Haldimand-Norfolk v. David C. and Denise C. (1996), 12 O.T.C. 222,[1996] O.J. No. 3471, 1996 Cars​well​Ont 3893 (Ont. Gen.

Div.); and • Children’s Aid Society of Ottawa-Carleton v. Eve R. (2002), 112 A.C.W.S. (3d) 297, [2002]O.J. No. 751, 2002 Cars​well​Ont 774 (Ont. Fam. Ct.). In abusive relationships, the agency should expect evidence, as it did not in this case, that the motherunderstands the cycle of abuse and has broken the pattern, for example, by seeking counselling,leaving the relationship and moving into a shelter. The mother’s continuing failure to leave anabusive relationship may well be a reason for making the child a permanent ward. See, for example: • New Brunswick (Minister of Health and Community Services) v.

B.L. (2000), 95 A.C.W.S. (3d)314, [2000] N.B.J. No. 67, 2000 Cars​well​NB 63 (N.B.Q.B.); • Nova Scotia (Minister of Community Services) v. S.Z. 1999 NSCA 155 (1999), 181N.S.R. (2d) 99, 1999 NSCA 155, 560 A.P.R. 99, 5 R.F.L. (5th) 435, [1999] N.S.J. No. 426,1999 Cars​well​NS 396 (N.S.C.A.); • Children’s Aid Society of Ottawa-Carleton v. Eve R., supra; and • Children’s Aid Society of Ottawa v. R.N. (2002), 114 A.C.W.S. (3d) 74, [2002] O.J. No. 1562,2002 Cars​well​Ont 1528 (Ont. Fam.

Ct.), per Justice Catherine Aitken. [101] In some situations the concerns of the agency are not limited to abuse of the mother by thefather, but rather it is a violent relationship involving mutual abuse, often combined with neglect orabuse of children. See, for example: • Children’s Aid Society of Ottawa-Carleton v. Rachel L. and Randy L. (1996), 61 A.C.W.S. (3d)527, [1996] O.J. No. 746, 1996 Cars​well​Ont 741 (Ont. Prov.

Div.); . . . [108] In the abstract to their article, “When is Domestic Violence a Hidden Face of Addiction?”(1997), 29 Journal of Psychoactive Drugs 337-344, American addiction professionals Richard Irons,M.D. and Jennifer P. Schneider, M.D., Ph.D., summarized: Domestic violence and addictive disorders have a number of common characteristics, includingloss of control, continuation of behaviour despite adverse consequences, preoccupation orobsession, development of tolerance, and family involvement. In the body of their work, the authors continued: . . . . . .

Domestic violence and addictive disease will be seen to h

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