Children’s Aid Society of Toronto v. M.L.-R., 2011 ONCJ 670

Toronto (North York) Registry C27305/05 Date: 2011·VI·29 CITATION: Children’s Aid Society of Toronto v. M.L.-R. , 2011 ONCJ 670 ONTATIO COURT OF JUSTICE AND IN THE MATTER OF an amended status review application under the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, respecting the child S.L. (born on […] February 2005) BETWEEN CHILDREN’S AID SOCIETY OF TORONTO, Applicant — AND — M.L.-R. and A.L., Respondents *************

SUMMARY JUDGMENT MOTION BEFORE JUSTICE MARVIN A. ZUKER HEARD ON 9 AND 16 JUNE 2011 AT TORONTO, ONTARIO INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION (45) 8 OF THE CHILD AND FAMILY SERVICES ACT . APPEARANCES : Ms. D. Szandtner ........................................................................... counsel for the applicant society Mr. B. Adetunji ....................................................................... counsel for respondent mother, M.L.

A.L. ......................................................................................................................... on his own behalf REASONS [ 1 ] JUSTICE M.A. ZUKER:— S.L., born February […], 2005, was found to be a child in need of protection in this matter under subclause 372 ( b )(

i) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, on December 22, 2008. There is a statement of agreed facts which reflects that finding and the facts on which it is based. See exhibit E to the affidavit of Jocelyn Hsu, child protection worker, found in exhibit 1, tab 2 of the CAS of Toronto

Summary Judgment Brief. It is the society’s position that an order for Crown wardship with no access for the purpose of adoption would be the plan in this child’s best interest as per notice of motion dated May 20, 2011. [ 2 ] S.L. was apprehended three times before she turned five years of age. The first apprehension was at her birth at the hospital. She was placed with her paternal grandmother, Ms. Y.M., on April 20, 2005. Ms. M.L. appeared to lack the parenting skills, personal and financial stability and commitment to her child required to care for her independently. See tab A of Ms.

Hsu’s affidavit, a statement of agreed facts. S.L. was apprehended at that time and eventually returned, first to maternal grandmother Ms. S.L.’s care and then to mother Ms. M.L.’s care. The Society terminated its involvement on August 23, 2006. See exhibit D to Ms. Hsu’s affidavit. [ 3 ] The second apprehension was when S.L. was found by police alone and crying in the hallway of her apartment building. Police were contacted by neighbours. The police could not locate her mother, Ms. M.L., or the maternal grandmother, Ms. S.L., and contacted the society. S.L. was apprehended October 31, 2008.

The society has remained involved with the family since that time by means of a supervision order with terms and conditions.

[ 4 ] Following that second apprehension, the child was placed in the care of maternal grandmother and mother again. There was a supervision order with terms and conditions in place when S.L. was returned and this is reflected in the statements of agreed facts filed. A final supervision order and finding was made on December 22, 2008. [ 5 ] The third and final apprehension was on October 9, 2009, following the society’s determination that there were breaches of the supervision order placing S.L. in the care and custody of her mother and grandmother.

It is not in dispute that, during this period of time, S.L. was chronically late for school and was not picked up reliably and on time. This was in breach of the supervision order. [ 6 ] Exhibit F of Ms. Hsu’s affidavit is a letter from the school principal at T. Public School to mother and maternal grandmother indicating that there was a serious problem with respect to S.L.’s lateness at school. She had been late on 13 of a possible 20 school days and up to half an hour late on those days. [ 7 ] During this period of supervision, the maternal grandmother, Ms.

S.L., took S.L. to the hospital due to her concern that S.L. had been sexually abused by K., the ten-year-old grandson of S.L.’s great aunt, who was a visitor at the home of paternal great- grandparents, the G.s. With respect to the allegations, this was information that came from S.L. on or about August 31, 2009. Ms. S.L. was sufficiently concerned that she took the child to the hospital. [ 8 ] While Ms. S.L. did take S.L. to the hospital, the Society submits that she failed to contact the Society with respect to her concerns. She did not contact the Society, she took the child to the hospital.

The hospital staff contacted the Society when Ms. S.L. came in. And when the worker asked to speak directly to Ms. S.L., who was in the presence of the hospital staff member contacting the society, she refused to come to the phone. [ 9 ] The society submits that the maternal grandmother, Ms. S.L., and mother, Ms. M.L., were unco-operative with the society’s efforts to investigate the sexual abuse allegations. This is submitted to be the most profound breach of the supervision order.

The worker eventually had to go to the school in order to make contact with S.L. because the mother and maternal grandmother were simply not willing to bring the child to her. [ 10 ] One of the serious concerns was that the child would again be put in the presence of K., the alleged offender. Ms. Hsu’s evidence is that she communicated to both mother and grandmother that S.L. should not be entrusted to the care of Mr. and Mrs. G. and not returned to the presence of K.S.L. was again entrusted to the care of Mr. and Mrs. G. and the evidence, the society submits, is that Mr. and Mrs.

G. did not believe the allegations to be true. [ 11 ] Following the apprehension, S.L. came into care. S.L. has been in care since the third apprehension on October 9, 2009, now almost 21 months. The therapeutic access program was offered to mother, Ms. M.L., on March 2, 2010. Ms. M.L. failed to complete the intake process and rejected the opportunity to participate in the access program. She explained to the worker that she did not have time to participate in the program due to her other time commitments. See exhibit H to Ms.

Hsu’s affidavit, a true copy of the memorandum from Shannon Deacon, the co-ordinator of the Therapeutic Access Program. [ 12 ] From October 2010 to date, the Society reduced mother’s access visits to two one-hour visits per month due to her lack of attendance at the prior visits scheduled. It is not in dispute that the access visits were curtailed to two hours a month for the past eight months. Ms. M.L. was represented for that whole time and has never asked the Court or come to Court to extend her access or increase her access to her daughter. It has been two hours a month.

Her attendance has improved somewhat. [ 13 ] Mr. A.L. has not filed materials in response to this motion. Mr. A.L. has failed to attend many of the access visits offered to him with S.L. Mr. A.L. is interested in access to S.L.-R. He is content not to be her primary care-giver. Mr. A.L. told the court on June 16, 2011, that he does not oppose the Society’s plan to have the C.s adopt S.L. if she becomes free for adoption. Mr. A.L. clearly loves S.L. and believes this is best for his daughter.

He further advised the court that, had he attended all of his scheduled access visits, he would have lost his job. [ 14 ] An assessment was done by the psychologist, Dr. Daniel Fitzgerald, on May 7, 2010. Dr. Fitzgerald noted that S.L. will act out her anger when her parents do not follow-through with their commitments to her and that this may precipitate episodes of dissociation during which she will behave in an irrational and illogical manner. [ 15 ] Dr.

Fitzgerald noted that S.L. has displayed inappropriate behaviour towards boys in her school, suggesting poor understanding of boundaries and a precocity that would be a risk to her if it persists. He recommended counselling around these experiences. Dr. Fitzgerald noted that S.L. appeared to be very anxious about how things will unfold for her in the future. It was very important to move decisively to formulate a plan to achieve long-term stability for her. Dr. Fitzgerald’s report is attached at exhibit I to Ms.

Hsu’s affidavit. [ 16 ] The Society asked the family whether or not there were any kin who were available to provide care for S.L. The C.s were a couple identified by maternal grandmother Ms. S.L. as possible care-givers for S.L. The C.s followed up with the necessary steps to qualify as foster parents in order to provide an immediate foster placement and home for S.L. S.L. was placed in the care of the C.s on July 2, 2010. The C.s have indicated to the Society that they are interested in adopting S.L. if she is made free for adoption. [ 17 ] The Society submits that mother Ms. M.L. and maternal grandmother Ms.

S.L. have been entrusted with the care of S.L. twice now, following apprehensions. They have proven unable to communicate effectively to avoid unwillingly abandoning their three- year-old alone in their apartment. They have proven themselves unable to get S.L. to school on time or to pick her up at the end of the day. They have been unable to arrange for her safe care on weekends or to protect her from sexual harm. They have not followed up responsibly and appropriately when S.L. made allegations of sexual abuse. When S.L. was in care, Ms.

M.L. failed to follow through with therapeutic access because she did not have time, even though this would have enabled her to see her daughter far more and work towards her return home. And since S.L. has been in care, mother’s attendance at access has been very poor. She has been content with two hours per month for the last eight months.

[ 18 ] Paragraph 16 of Ms. M.L.’s affidavit, filed as exhibit 2 herein, states in part: “After my experience with the applicant and Jocelyn [Hsu] on their misinformation, I indicated I did not trust them to act in the best interest of my daughter and I did not want to co- operate with them anymore.” [ 19 ] The Society further submits that, although there was some co-operation from mother and from maternal grandmother after the first apprehension and some follow-up after the second apprehension which led to the return of S.L. to their care, now there is a complete lack of co-operation. [ 20 ] Ms.

M.L. submits there has been a lot of misinformation, for example, when S.L. was initially apprehended in 2005, and that the misinformation continues even now.

The mother submits that at the time when the first apprehension took place, she was told she was exhibiting certain characteristics that suggested that she had mental problems and because of the allegation that she had mental problems, she agreed to the supervision order access that time because she wanted to work with the Society. [ 21 ] The Society submits they are not putting mother’s mental health as an issue and there’s no evidence with respect to that. [ 22 ] Mother submits that the third apprehension was on the basis of an alleged breach, a breach that she did not make.

It was alleged that S.L. was exposed to the alleged offender. Mother claims she did not so expose her and that the child was not even with her at the time of the alleged abuse. [ 23 ] The Society indicated that mother did not attend some therapeutic access programs in which she was supposed to participate. Mother’s evidence is that she has been following through. Exhibit 5 filed herein is a Certificate of Training relating to Childcare Providers. It certifies that Ms.

S.L. successfully completed a 76-hour training course including child CPR and an additional 15 hours of practicum. [ 24 ] Mother submits that she did not want to work with the Society in the context of the misinformation it has disseminated. [ 25 ] Because of her experience with the Society and because of the misinformation she was getting from the worker, she told the Society that she did not trust them to act in the best interest of her child or for her to co-operate with them.

She felt that her co- operation had always been manipulated. “I felt that my co-operation was being abused and manipulated to paint me in a bad light.” [ 26 ] Mother has indicated a willingness to be bound by any terms of a supervision order. The previous supervision order that was made, mother and maternal grandmother complied with it. There was a breach but not by them.

Mother is saying that this is another example of misinformation, because the Society took it that she was the one who breached the order without checking into it. [ 27 ] Counsel for mother submits that every time mother gives information, the information is presented in a different light. It was stated that she did not show up for the appointment that she was supposed to have. She submits the appointments were cancelled. [ 28 ] There are allegations that the child was late to school on some occasions. The mother acknowledged that.

She indicated in her affidavit that she was looking for employment, took the child with her and was late in coming back because of transportation issues. [ 29 ] The affidavit of the mother, exhibit 2 herein, setting out the facts in relation to the alleged misinformation as per paragraphs 7 and 8, indicates that she attended all the meetings she was asked to attend. It is only when the meetings were cancelled that she was not there. She indicates that she also received the letter relating to S.L.’s poor school attendance.

She states that she went to the school to address the particular issue and she explained what led to the child being delayed, that she was looking for employment, she went downtown with the child and she was late coming back. [ 30 ] There were several statements of agreed facts. See exhibit A dated July 5, 2005, exhibit B dated August 26, 2005, exhibit C dated March 16, 2006, exhibit D dated August 21, 2006, exhibit E dated December 22, 2008, and exhibit G dated August 23, 2010, attached to the affidavit of Ms. Hsu, sworn May 24, 2011. She agreed to all of them. [ 31 ] Ms.

M.L. indicates that she signed them because she thought she does have a problem and, until that problem is resolved, she couldn’t do anything. This court must reject this submission. [ 32 ] There are few other allegations in relation to the orders that, Mother’s counsel submits, are not significant enough for the order that is being sought here. The order that is being sought here is not the least restrictive option. [ 33 ] None of the orders is significant enough to justify the order that is being sought.

If the mother did expose S.L. to risk, breach the supervision order by doing what she was not supposed to do (i.e., expose S.L. to risk), that would be one thing. [ 34 ] Mother submits that she did not even know about the circumstances that led to the breach until after it had happened. [ 35 ] Mother’s counsel submits that, even though mother has had four counsels in the past, it does not necessarily mean that at all material time she has been represented by counsel. [ 36 ] The court has further reviewed the affidavit of the maternal grandmother, filed as exhibit 3 herein. It has reviewed Ms.

S.L.’s Answer and Plan of Care. [ 37 ] In reply, the Society responded by specifically referring to Ms. M.L.’s own affidavit, more specifically, paragraphs 9, 10 and 11, which arguably corroborate the breaches of the supervision order. The Law [ 38 ] Rule 16 of the Family Law Rules permits a party to make a motion for

summary judgment. The following sub-rules in Rule 16 are relevant to this case:

• When Available 16.

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

summary judgment for a final order without a trial on all or part of any claim made or any defencepresented in the case. • Evidence Required •

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is nogenuine issue requiring trial. • Evidence of Responding Party •

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

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

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [39] 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. [40] 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. [41] Subsections 70(1) and (4) of the Child and Family Services Act mandate that a child under the age of six years shall notbe in 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. [42] The dominant consideration of the best interests test is the welfare of the children. See Re McGrath (infants), [1893] 1Ch. 143, 62 L.J. Ch. 208, 67 L.T. 636, 2 R. 137, 9 T.L.R. 65, 41 W.R. 97 (C.A.), cited with approval in Catholic Children’s Aid Societyof 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, 2 R.F.L. (4th) 313, , [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376. [43] 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). [44] 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. [45] The best interests of a child continuously evolve. See Catholic Children’s Aid Society of Metropolitan Toronto v. CidaliaM. This means that different solutions may be required over different periods of time. [46] 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.

The factors that must be taken intoaccount when determining the best interests of a child are listed in subsection 37(3) of the Act. [47] 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.). [48] 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.Cidalia M., supra. [49] 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 isunnecessary.” [50] 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, [1987] O.J. No. 2172 (Ont. H.C.), perJustice W. David Griffiths, at page 792 [O.R.]. [51] 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​Ont

9 (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]. [52] The court will assess the evidence on both sides, recognizing, however, that the responding party may choose not totender any. The responding party must put his or her “best foot forward” or risk losing. The actual evidence in a case may call for areasonable explanation on the part of the respondent, amounting to an “evidentiary burden,” in the absence of which an adverse inferencecan be drawn. [53] 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. [54] 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. R.A. (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, affirming Jewish Family and ChildService of Toronto v. R.A., , [2000] O.J. No. 6045, 2000 Cars​well​Ont 5169 (Ont. C.J.). [55] 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. [56] 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 credibilitygives rise to a genuine issue for trial. The fact must be material. See Children’s Aid Society of Toronto v. Kathleen T. and Charles W.,, 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 Cars​well​Ont 4827 (Ont. C.J.). [57] 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.). [58] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a

summaryjudgment motion. This is reserved for the trier of fact. See Children’s Aid Society of Nipissing v. Marielle M., , 98A.C.W.S. (3d) 134, [2000] O.J. No. 2541, 2000 Cars​well​Ont 2372 (Ont. S.C.), per Justice George T. Valin; and Children’s Aid Societyof Hamilton v. M.N., supra. [59] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence tosupport the position, but whether the evidence is sufficient to support a trial. See Children’s Aid Society of Dufferin County v. James R.,, 118 A.C.W.S. (3d) 78, [2002] O.J.

No. 4319, 2002 Cars​well​Ont 3821 (Ont. C.J.). [60] 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. Cynthia H. and Hassan S., 2004 ONCJ 224, 134 A.C.W.S. (3d) 261, [2004] O.J. No. 4084, 2004 Cars​well​Ont 4076(Ont. C.J.), and Children’s Aid Society of Hamilton v. Chelsea R. and Blaine W., , [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 supportingevidence is not sufficient to create a genuine 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​Ont 2352 (Ont. C.A.). [61] In interpreting Rule 16, Rule 2 of the Family Law Rules should also be considered. As well, subsection 1(1) of theCFSA, which provides that the paramount purpose of the Act is to promote the best interest, protection and well-being of children, isnecessary to the

interpretation of the Act. See Children’s Aid Society of Hamilton v. Marilyn W. and Peter S., , 63 O.R.(3d) 512, [2003] O.J. No. 220, [2003] O.T.C. 51, 2003 Cars​well​Ont 200 (Ont. Fam. Ct.). [62] 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. Robin H.and Michael N., , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 Cars​well​Ont 6170 (Ont. C.J.), per JusticeHeather L. Katarynych. [63] As Justice Alex Pazaratz stated at paragraph [43] of Children’s Aid Society of Niagara Region v. S.C., , 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 Cars​well​Ont 5929 (Ont. Fam.

Ct.): “No genuine issue for trial exists where thereis no realistic 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.).

[64] This motion is framed under Rule 16 of the Family Law Rules. As indicated, on a motion for

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

Ct.). [65] Subrule 16(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. Obligations on a

Summary Judgment Motion: [66] The following are the obligations of the parties on a

summary judgment motion. See Children’s Aid Society of Hamiltonv. M.N., supra. 28 Of importance on this motion are the principles and standards of evidence required from the moving party. The following is asummary 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) only admissible evidence may be tendered: see Cole v. Hamilton (City) (2002), (ON SC), 58 O.R. (3d) 584 (Ont. S.C.J.), aff’d. (ON CA), 65O.R. (3d) 156 (Ont. C.A.); and, • (

c) the motions judge is entitled to assume the record contains all evidence the parties will present if there is a trial: see Kreutner v. Waterloo Oxford Co-operative Inc. (2000), (ON CA), 50 O.R. (3d) 140 (Ont. C.A.) 29 Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications for temporary care and custody as s. 51 of theAct permits evidence the court considers "credible and trustworthy in circumstances." While Rule 16(5) appears to be permissive as tohearsay evidence, there is the penalty attached of an adverse inference. 30 Evidence on a motion for

summary judgment must be restricted to "admissible" evidence given the nature of the proceeding,namely, it is comparable to trial, and the relief claimed. The admissibility of hearsay evidence must be supported by evidence ofnecessity and reliability, failing which 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, properly investigate all relevant circumstances andprovide adequate services to families that have as its objective the reuniting of family members where appropriate. (See, for example,Children’s Aid Society of London and 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.).) Section57(2), (3) and (4) also engage a discussion of less disruptive alternatives.

These matters are not fully canvassed in the evidence asrequired. [67] I do not see how a trial, with viva voce testimony and cross-examination, could lead to any other conclusion. [68] A Crown wardship order is the most profound order that a court can make. To take a parent’s child from him or her is apower that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after acareful examination of the 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.). [69] I have read and relied on all the exhibits filed. [70] I relied on the facts that were not denied or where only bald denials were made. [71] I find that S.L. continues to be a child in need of protection. [72] 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. Tracy L. and Evonne B., 2010 ONSC 1376, [2010] W.D.F.L. 1957,[2010] O.J. No. 942, 2010 Cars​well​Ont 1343 (Ont. S.C.), as follows: 1.

Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, orderthe return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not,determine whether the disposition that is in the child’s best interests is society wardship or Crown wardship. (Section 57.) 2.

If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70(1)has expired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the timeand make a society wardship 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, determine whether the relationship between thechild and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)).

If not bothmeaningful and beneficial, 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 theclaim 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 ordercontaining the terms and conditions that are in the child’s best interests. (Section 58.) [73] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the careof the persons who had charge of the child immediately before intervention unless it determines that these alternatives would beinadequate to protect the child. [74] Subsection 57(4) of the Act requires the court to look at community placements, including family members, beforedeciding to place a child in care. [75] In determining the disposition, the court must decide what is in the best interests of S.L. [76] Subsection 57 (1) of the Act is limited by

section 70 of the Act, which provides that the court shall not make an order forsociety wardship that results in a child being a society ward for a period exceeding 12 months, if the child is less than six years old onthe day the order is made, or a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless thetime is extended as provided in subsection 70 (4).

This subsection of the Act gives the court discretion to extend the time periods aboveby six months, if it is in the children’s best interests to do so. [77] There must be a careful examination of possible alternative remedies. See Catholic Children’s Aid Society of Hamilton-Wentworth v. Jill G.-T., supra. [78] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time ofthe apprehension still exist today. This must be examined from the child’s perspective. See Catholic Children’s Aid Society ofMetropolitan Toronto v.

Cidalia M., supra. [79] Where orders are made on the basis of an agreed statement of facts, the Society may tender additional evidence. Thisaccords with the reality that prior consents may have limited facts due to the parties’ desire to move the case forward withoutcontention. See Durham Children's Aid Society v. R.B., , 142 A.C.W.S. (3d) 271, [2005] W.D.F.L. 4448, [2005] O.J.No. 3794, [2005] O.T.C. 769, 2005 Cars​well​Ont 4258 (Ont. Fam. Ct.).

In this case, as noted above, mother has had legal representationat all material times. [80] Once a Crown wardship order is made, there is no obligation on the Society to prove a child adoptable or to identify aprospective family. See Children’s Aid Society of Niagara Region v. J.C., , 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36R.F.L. (6th) 40, [2007] O.J. No. 1058, 2007 Cars​well​Ont 1680 (Ont. Div. Ct.). In this case, the C.s are willing to adopt S.L. The societysupports this. The father supports this. [81] The parents have to show more than just that a child has a good time during visits.

See Children’s Aid Society of PeelRegion v. Marsha S., 2006 ONCJ 523, 169 A.C.W.S. (3d) 1035, [2006] O.J. No. 5344, 2006 Cars​well​Ont 8581 (Ont. C.J.). More isrequired than just a display of love between parent and child. The Divisional Court has held that a person seeking access must prove thathis or her relationship with the child “brings a significant positive advantage to the child.” See Children’s Aid Society of Niagara Regionv. J.C., supra. [82] The paramount purpose behind this legislation is to promote the best interests, protection and well-being of children.

Solong as they are consistent with the best interests, protection and well-being of children, additional purposes include respecting theautonomy and integrity of the family unit and where possible should be provided on the basis of mutual consent in the least disruptivecourse of action available and appropriate to the circumstances.

Children’s services are to be provided in a manner that respects thechild’s need for continuity of care and for stable relationships in a family and a process that achieves permanent plans for children inaccordance with their best interests. [83] Where a child is found to be in need of protection and intervention through court order is required to protect the child inthe future, the court, after having satisfied itself as to the efforts made by the society or another agency to assist the child beforeintervention, has available to it a series of orders ranging from supervision to Crown wardship, intruding only as far as required, toprotect the child.

Only if a lesser disposition would be inadequate to protect the child does the court go to the next level of intrusion.(See

section 57.) [84] Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications for temporary care and custody as s.51 of the Act permits evidence the court considers “credible and trustworthy in the circumstances.” While Rule 16(5) appears to bepermissive as to hearsay evidence, there is the penalty attached of an adverse inference. [85] Evidence on a motion for

summary judgment must be restricted to “admissible” evidence given the nature of theproceeding, namely, it is comparable to trial, and the relief claimed. The admissibility of hearsay evidence must be supported byevidence of necessity and reliability, failing which it must be excluded. Simply put, if evidence is not admissible at trial, it is notadmissible on a motion for

summary judgment. [86] The Society has an obligation, pursuant to s. 15 of the Act, to protect children, properly investigate all relevantcircumstances and provide adequate services to families that have as its objective the reuniting of family members where appropriate. See, for example, Children’s Aid Society of London and Middlesex v. Elizabeth Veira Furtado S., (ON SC), 2004ONSC 10770, 1 R.F.L. (6th) 68, [2004] O.J. No. 1216, 2004 Cars​well​Ont 1194 (Ont. Fam. Ct.) Section 57(2), (3) and (4) also engage adiscussion of less disruptive alternatives.

These matters are not fully canvassed in the evidence as required. [87] Where a Crown wardship order is made, subsection 59(2.1) of the Child and Family Services Act provides that no access

order shall be made unless the court is satisfied that: i. the relationship between the person and the child was beneficial and meaningful to the child; and ii. the ordered access will not impair the child’s future opportunities for adoption. [88] A Crown wardship decision depends for its integrity on a judicial finding that there is no other available and appropriatealternative to promote the child’s best interests, protection and well-being. Crown wardship is a disposition of last resort.

If a child canbe placed within the family without compromising the primary statutory purposes, they are so entitled. [89] Severance of a child’s ties with their family of origin is a power to be exercised only with the highest degree of caution. Crown wardship requires compelling evidence within the civil standard of proof that there is no other available and appropriatealternative for the child.

The society has made out a strong case for the conclusion that there is no other available or appropriatealternative for this child. [90] In determining the best interests of the child, the court must assess the degree to which the risk concerns which existed atthe time of the apprehension still exist today. They must be examined from the child’s perspective. See Catholic Children’s Aid Societyof Metropolitan Toronto v. Cidalia M., supra. [91] Consideration has been given as to whether the Society has given the mother an opportunity to parent.

I find that theyhave. [92] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-classstandards of childcare upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child’s bestinterests. See Catholic Children’s Aid Society of Hamilton v. J.I., , 150 A.C.W.S. (3d) 406, [2006] O.J. No. 2299,2006 Cars​well​Ont 3510 (Ont. Fam. Ct.). This principle also applies to a young mother, who was herself subject to severe neglect andabuse. See Children’s Aid Society of Toronto v.

Rebecca B.-H. and Sheldon W., 2006 ONCJ 515, 171 A.C.W.S. (3d) 871, [2006] O.J.No. 5281, 2006 Cars​well​Ont 8484 (Ont. C.J.). [93] This is not a case for Crown wardship with access. Neither of the considerations delimited in subsection 59(2.1) of theCFSA are made out. [94] A beneficial relationship is one which is advantageous. A meaningful relationship is one which is significant. It is notenough that there are some positive aspects to it: it must be significantly advantageous to the child. It speaks of an existing relationship,not the possibility of a future relationship.

Even if the relationship is beneficial and meaningful there still must be some qualitativeweighing of the benefits of access versus no access. [95]

Section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to aparent’s care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents may be able tosatisfy a court that future adoption opportunities for a child do not likely exist, either because the child’s wishes to return to their care areso overwhelming that the child would not consent to a placement or because the child’s special needs are so extreme that an adoption isnot a realistic possibility. This is not the case here.

See Children’s Aid Society of Toronto v. Tracy L. and Evonne B., supra. [96] Good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whetherthey have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to beexperimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance. SeeChildren’s Aid Society of Winnipeg v. Redwood (1980), (MB CA), 19 R.F.L. (2d) 232, [1980] M.J. No. 245, 1980Cars​well​Man 44 (Man. C.A.).

There has to be some demonstrated basis for a determination that the parents are able to parent the childwithout endangering his or her safety. See Children’s Aid Society of Brockville, Leeds and Grenville v. C., (2001), 104 A.C.W.S. (3d)892, [2001] O.J. No. 1579, [2001] O.T.C. 287, 2001 Cars​well​Ont 1504 (Ont. Fam. Ct.). [97] The purpose of the Rules is to deal with cases justly. The focus has to be on the consequential effects of decisions on thechild involved. Dealing with cases justly includes timely resolution by way of

summary judgment when the circumstances merit. Thisis such a case. In the absence of a viable alternative, the children are entitled to the permanence and security that Crown wardship andan adoptive placement offers. This disposition reflects her special needs, the importance for her development of a positive relationshipwith a parent and a secure place as a member of a family, the importance of continuity and the degree of risk presented to justify thecontinued finding that they are in need of protection.

While a child’s best interests presumptively lie with the parent, the presumption isclearly rebuttable. [98] The mother, in her material, has attempted to set out facts that show there is a genuine issue, specifically with respect toher relationship with S.L. and the fact that, if Crown wardship without access were granted by the court, her access to the child wouldstop. I have reviewed the various plans of care to assess the threshold issue, whether there is a genuine issue as to a material factrequiring a trial. See Aguonie v.

Galion Solid Waste Material Inc., , 38 O.R. (3d) 161, 107 O.A.C. 115, 156 D.L.R.(4th) 222, 17 C.P.C. (4th) 219, [1998] O.J. No. 459, 1998 Cars​well​Ont 417 (Ont. C.A.). In this regard, I have carefully reviewed theevidence and have given it “a good hard look.” See Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, 247N.R. 97, 126 O.A.C. 1, 178 D.L.R. (4th) 1, 49 B.L.R. (2d) 68, 15 C.C.L.I. (3d) 1, 39 C.P.C. (4th) 100, [2000] I.L.R. I-3741, , [1999] S.C.J. No. 60, 1999 Cars​well​Ont 3171.

I am aware that my role at this time is not to weigh the evidence and, if I concludethat a weighing of evidence is necessary to determine the issue, the

summary judgment motion must be dismissed and a trial of an issuebe ordered. [99] The disposition order that I make must be the least disruptive order available consistent with the best interests of thechild. “Best interests” is defined in subsection 37(3) of the Act and that subsection contains a non-exhaustive list of factors that the courtshall consider in determining best interests, if relevant.

[100] When a child is out of the care of his or her parent or parents and return does not appear to be an option, the court ismandated to investigate permanency plans for the child. An adoption order, by definition, is the most intrusive order available under thestatute. Since the 2006 amendments to the Act, other less intrusive permanency orders are available to the court for children who havebeen found in need of protection. [101] The motion for

summary judgment is granted. Ms. M.L. failed to show in her material a genuine issue for trial. Inreaching this conclusion, I found no material fact in dispute affecting the best interests of this child that would require a trial forresolution for the following reasons. [102] S.L. has been out of the care of her mother for a period in excess of eighteen months. S.L.’s father supports the Society.

The child needs a permanent home after all this time and the repeated apprehensions. [103] I leave to S.L.’s future adoptive parents to decide the issue of access, as they will be the persons charged with raising S.L.to adulthood. As is the case with any parents, they should have the ability to restrict contact with any person who undermines their dutyand responsibility to protect their child and the stability of the child’s home. [104] It has long been recognized that the Society, as an agent of the state, is not an ordinary litigant and the adversarial conceptof winning and losing does not apply.

See Re Pamela J.M. (An Infant): Catholic Children’s Aid Society of Metropolitan Toronto v.Mary M., , 36 O.R. (2d) 451, [1982] O.J. No. 2563, 1982 Cars​well​Ont 1357 (Ont. Prov. Ct., Fam. Div.). The Societymust act with “fairness and reasonableness,” exercise good faith, due diligence and reason. I find that the Society has acted appropriatelyand did not proceed on “misinformation” as alleged by the mother. The Society must understand it is the court that determines thechild’s future, relying on the Society to present all relevant evidence.

The court does not “rubber stamp” decisions previously made bysupervisors or management at the Society. See Children’s Aid Society of Hamilton v. E.O., , [2009] O.J. No. 5534,2009 Cars​well​Ont 8125 (Ont. Fam. Ct.). [105] As indicated, I am granting the

summary judgment motion brought by the Society and the following order shall issue: [106] S.L. (born February […], 2005) shall be made a Crown ward. [107] For the reasons given, any order less intrusive would be more disruptive to this child and not in her best interests. Released: 29 June 2011 Signed: “Justice Marvin A. Zuker”