Children’s Aid Society of Waterloo Region v. K.M., 2011 ONCJ 733

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 . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

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

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

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

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Cambridge Registry No. 11/3006-00 DATE: 2011·IX·07 CITATION: Children’s Aid Society of Waterloo Region v. K.M. , 2011 ONCJ 733 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO, Applicant, — AND — K.M. and W.H., Respondents. Before Justice Paddy A. Hardman Heard on August 26, 2011 Decision on Motion for

Summary Judgment released on September 7, 2011 Ms. D. Brown ................................................................................. counsel for the applicant society Jean. D. LeDrew Metcalfe ................................................ counsel for the respondent mother, K.M. David W. Grant ................................................................. counsel for the respondent father, W.H.

[ 1 ] JUSTICE P.A. HARDMAN:— The matter before the court is a motion seeking

summary judgement on an amended protection application originally issued January 17, 2011 but last amended April 14, 2011 regarding one child, WDCH, born January […], 2011. The society seeks findings in need of protection as well as crown wardship without access. [ 2 ] The motion was first returnable August 3, 2011 having been served on both the parents through their respective counsel on July 26, 2011. At that time, the court extended time to file material allowing the society to file any update by August 10, 2011 and responding material by August 19, 2011.

The motion was then adjourned for argument to August 22, 2011 being the first day of the trial that was set June 1, 2011 to be heard for five days August 22, 2011 to August 26, 2011. [ 3 ] Neither parent had filed any affidavits to respond to the motion for

summary judgement on or before the date set for argument. Given the father’s counsel’s vacation and the seriousness of the matter, at the request of counsel for the parents this court extended the time to file a response to the motion to August 24, 2011 with the society filing reply by 10 am on August 26, 2011, the date to which the motion was adjourned for argument. [ 4 ] By that date, the father had filed a single affidavit in response to the motion for

summary judgement but the mother had filed no response. Counsel for the mother told the court that her instructions were to inform the court that she was not in a position to proceed with her plan to have the child placed with her at this time and was not making submissions on the motion.

Counsel remained in court during submissions in order to be able to report to her client. [ 5 ] The court reviewed the statutory findings with counsel and both consented to them being made. [ 6 ] While the father was prepared to acknowledge the findings in need of protection being made vis-à-vis the mother, he was not prepared to acknowledge any protection issues regarding his own care of the child. Background Mother [ 7 ] As the mother Ms. K.M.K.M. is not proposing a plan for the child, her background is only peripherally relevant.

However, given the father’s decision to partner with the mother, some information is necessary. [ 8 ] The mother had her first child NM born November, 1991. The child was placed with her father as a result of concerns about the mother’s unstable life style, transience, parenting capacity, ongoing neglect issues and leaving the child with various caregivers.

Ultimately the father of NM obtained a custody order and while initially the mother had access, substance abuse and domestic conflict with her partner SM, also a heavy drug user, were problematic. [ 9 ] While pregnant with GM born February 2008, the mother did not obtain prenatal care until a very late stage and did not discontinue her drug use. While that child was in foster care pursuant to a six month voluntary service agreement, the mother struggled to attend access and continued to associate with SM in spite of her probation term to have no contact.

The police were involved with approximately eighteen reported incidents of domestic violence between the mother and SM. As neither the mother nor SM demonstrated any interest in even visiting GM, GM was made a crown ward without access and was successfully adopted the following year. [ 10 ] In 2009, the mother attended her first prenatal appointment while seven months pregnant with TM. She admitted to using crack cocaine during her pregnancy and both she and the baby showed signs of withdrawal at the time of the birth in July 2009.

After the child was apprehended and placed in foster care, there were ongoing concerns about the mother being under the influence of drugs at access visits. [ 11 ] Although the mother had stated that she had been clean and intended to go to counselling, she started using again, missing access visits and hair screens. The father JN left the mother due to her ongoing drug use and ceased to have contact with the child. In June 2010 TM was made a crown ward without access for the purpose of being adopted. Father [ 12 ] The father, Mr. W.H.W.H., of the child before this court is the father of three other children.

He had a child ML born in November 1992 with ML but beginning in 1993 there were concerns about domestic violence. The file was closed when the parties separated. [ 13 ] MH born December 1999 and LAH born July 2004 were the result of the father’s marriage with JH. While there were a number of concerns involving verbal aggression by both parents towards the children and sexual allegations reported by the first child ML, none were verified.

However, intervention as a result of the behaviour of the child ML resulted in her coming into care in 2005 and being made a crown ward currently on Extended Care and Maintenance. The Father’s Plan [ 14 ] The father’s answer filed February 14, 2011 notes that while he did not take issue with the facts in the application, he wanted to have the child placed in both his care and that of the mother once she had dealt with her addiction issues. He stated that if she were unsuccessful, then he wanted the child placed in his care. He indicated that he was unable at that time to provide a particularized

plan of care but would have his own townhouse or apartment and access community support groups and take parenting courses. Under “Important Facts” supporting his claim, he notes that he is a “very responsible individual who can provide a viable plan for the future of [WDCH]”. [ 15 ] He filed an amended Answer May 16, 2011 confirming that he wanted the child placed with him alone. However, the plan still was very general and not particularized. Issues Relationships: domestic violence and neglect [ 16 ] The father, Mr. W.H.W.H., has had a number of problematic relationships.

As a result of domestic violence and neglect, the police and the society were involved a number of times during his relationship with ML: • November 11, 1993: a witness told the police that Mr. W.H.W.H. grabbed ML by the throat and threw her to the ground-ML said that he had hit her 50-60 times and feared for her safety • November 16, 1993: the police were called regarding violence between Mr. W.H.W.H. and ML. She was noted to be upset and crying, saying that he hit her and would not leave her alone - when he was charged with the offences, Mr.

W.H.W.H. admitted that he had an anger problem [ 17 ] The domestic violence is confirmed by the fact that he was convicted of assault and placed on probation with court- ordered anger management. Further, society records disclose not only domestic violence but also neglect concerns during this relationship.

There were issues at different times about the “disgusting” state of the home, the availability of clean clothes and bedding, and the shortage of food. [ 18 ] On March 1, 1994, a worker noted in an assessment of the family’s circumstances that ML would continue to parent just on the border of what is acceptable even with help, support and monitoring. It stated that ML and Mr. W.H.W.H. “knew how to play the system to get the authorities off their backs”. The worker was surprised at how ML could sit around when there was no clean laundry or bedding and the walls were “full of peanut butter” while supposedly Mr.

W.H.W.H. was out doing his community service. [ 19 ] The society in Owen Sound found that there was substantial risk to the children and were involved in 1994 and into 1995 with ML and Mr. W.H.W.H.. Despite the society’s efforts, the worker noted that the parents did not accomplish most of the goals set for them. Although both the worker involved and his probation officer insisted that Mr. W.H.W.H. attend group to deal with the domestic violence, Mr. W.H.W.H. did not; he reoffended in June 1994 and was charged with uttering threats and assault with a weapon. When Mr.

W.H.W.H. was released on bail, ML expressed concern for her safety. [ 20 ] It is difficult to understand how the father before this court was not in a position to improve the circumstances of these children living in an atmosphere of neglect and violence. [ 21 ] In a new relationship with JH, once again there were concerns about domestic violence. On November 14, 2007, the police were called regarding Mr. W.H.W.H. being upset about JH leaving him. In that incident, the father threatened to leave and kill himself. JH told the police that she felt trapped. She said that she was not scared of him. Mr.

W.H.W.H. was crying on the phone with the police. [ 22 ] The father Mr. W.H.W.H. and JH attended couples counselling at KW Counselling for a few sessions in November 2007: • On November 16, 2007, JH said that she had noticed that the children had been negatively impacted by the conflict between the two of them and said that Mr. W.H.W.H. had threatened suicide in front of the children. She also complained that the father does not assist around the home and blames others instead of taking responsibility. • On November 26, 2007, Mr.

W.H.W.H. acknowledged that he neglected JH due to work and had had numerous job changes. He said that he had been let go from his job the week before. • On November 27, 2007, JH described how Mr. W.H.’s personality would change quickly from friendly to adversarial and controlling. She also said that he had a knife collection in the top drawer of his dresser. JH noted that Mr. W.H.W.H. behaved in a verbally and emotionally abusive way towards the children. She told the counsellor that she feared Mr. W.H.W.H. on a verbal and emotional level.

She wondered if he was depressed. • On November 30, 2007, the counselling was terminated due to the issues of control. [ 23 ] After a relationship of with a lot of verbal fighting and an incident of alleged “cheating”, JH separated from Mr. W.H.W.H. in January 2008. She noted that he had been drinking heavily at the end of their relationship. In March 2008, JH told the worker that Mr. W.H.W.H. seemed unstable and that she felt that he was drinking again. [ 24 ] There were issues with access: in 2009 JH was concerned that Mr.

W.H.W.H. was allowing his oldest daughter to be at his home while he was having access to the other children despite his undertaking that she would not be present. JH was also concerned about whether Mr. W.H.W.H. could afford to have food for the children. [ 25 ] In January 2009, police were called as a result of the father’s harassing behaviour toward SLC, someone he had been dating for a month. After the breakup in December 2008, she received harassing texts and calls from him but no threats. [ 26 ] In the relationship between the parents in this matter, there also were concerns.

On April 2, 2011, months after the

apprehension, the police were called by the mother as a result of an argument between the father and the mother over the mother’s drug use. The police assisted the father in removing his belongings. Instability [ 27 ] A review of the documents discloses that the father has not maintained a job or a residence on his own for any significant period of time. He has been in the position of going on and off social assistance given this instability.

From the information provided to Ontario Works (OW), it is clear that the father was unable to stabilize his circumstances: • April 29, 2008: he was living with friends and paying their gas bill but was being evicted May 1 as his friends were having family problems/he had no credit and no family or friends who could assist • July 16, 2008: he acknowledged having $12,000 in debt/his employment insurance (EI) expired in June/no income/living with a friend • September 25, 2009: he said that he was laid off in February 2009/September 29, 2009-applied for assistance/had exhausted his EI and was being evicted • November 3, 2009: he completed an Individual Service Plan (ISP)/was employable/was before the housing tribunal regarding his eviction involving his dog which he no longer had/ November 30, 2009: he said that he was being evicted December 1, 2009 • September 22, 2010: he told OW that he had been laid off and that his September rent of $400 was outstanding • September 23, 2010: OW discovered that the father had not been laid off but had quit in August 2010/September 29, 2010 completed an ISP/told to contact Mosaic counselling for credit counselling/he said struggling with debt and “other burdens as well” • January 6, 2011 and January 16, 2011: failed to show for scheduled ISP appointments to obtain benefits • May 17, 2011: it was noted that the father had not completed the activities agreed to at the last update and that “follow through appears to be a barrier for the client” [ 28 ] An examination of the father’s resume filed with the OW worker confirms that the father appears to have been unable to maintain any regular employment despite having an impressive number of skills and considerable education and training. [ 29 ] Further, even when attempting to obtain social assistance when he has left or lost a job and his EI has expired, the father has been unable to follow through with his appointments and required activities in order to stabilize that support. [ 30 ] The father’s failure to maintain his employment or financial support has resulted in telephones being cut off and evictions and homelessness on a number of occasions.

In June 2008 JH complained that the father was not paying child support leaving her and the children in financial difficulties. In 2009, she was doing the driving for his access and was concerned about whether the father would be able to feed the children while in his care. [ 31 ] During his relationship with ML, the society described them in 1995 as a “rather transient family”. Counselling [ 32 ] Despite clear direction from his court order and his probation officer in his criminal matters, the father failed to attend any counselling for his anger management and domestic violence.

The society also required the father to attend the counselling but he did not. As recently as April of this year police were called as a result of the father becoming upset with the mother. [ 33 ] Further it is clear that his OW worker had directed him on numerous occasions throughout their involvement to attend credit counselling and parenting counselling to no avail including on September 29, 2010, February 1, 2011, and May 17, 2011. [ 34 ] Further, the father has not filed any material to explain what was done about his mental health and his threatened suicide in 2007.

Certainly there is no information about any medical or counselling intervention to deal with the issue. [ 35 ] The records show that routinely the father would be directed to go to counselling but despite his agreement to set up appointments and attend, he never did. In April and June of this year, KW Counselling attempted to follow up with setting up appointments for the father without success.

After a number of unsuccessful attempts, the contact number for the father ended up no longer in service. [ 36 ] Despite knowing since February 2011 that the society’s plan contained an expectation that he would attend and complete counselling in order to have the child placed in his care, the father has not done so. Ability to be Supervised [ 37 ] As has been noted, the father has not followed through with appointments or counselling despite court orders and expectations. Further, he has a history of not maintaining contact with the society despite the expectation to do so.

In 1995, he and his family left the jurisdiction without advising the society and had to be tracked through his probation officer. [ 38 ] Since the apprehension, despite the expectations set out in the plan, the father has failed to maintain contact with the worker. In fact, the worker was not given a way to maintain communication with him except through the mother who supposedly was no longer in a relationship with him.

Parenting [ 39 ] Concerns about the father’s emotionally abusive behaviour toward his other children while he resided with them have already been noted. There is little positive evidence of the father’s ability to responsibly parent. [ 40 ] In 2004, JH said that he called her constantly at work seeking direction about how to handle the children. [ 41 ] While the father does appear to have continued a relationship with his older children on a regular basis, there are concerns about his ability to look after them while in his care.

JH has contacted the society about his failure to ensure that they are regularly fed, something confirmed by the comments of one of his children and his failure to bring snacks or even a beverage for them to the over two hour access.

While he has made the excuse that there are snacks at the access centre, he has known since April that no lunches are provided and that he is expected to address the issue of food and drinks for the children and he has not. [ 42 ] There have also been concerns about his inability to regulate his older children’s behaviour during his supervised access with the child before this court when they have been in attendance. For this reason, the society would only allow them to be present for one access visit each month. Despite knowing the

schedule of his supervised access and his access to his other children well in advance, he appeared to be unable to organize appropriate child care and had to cancel some visits with WDCH.

This too reflects his inability to plan in a manner to address the best interests of his children. [ 43 ] Further, his financial and residential instability has interfered in his ability to maintain the alternate weekend contact that he once had and his access had to be reduced to daytime only. [ 44 ] Despite the father being aware of at least some of the mother’s drug use, he was not able to intervene to prevent her ongoing use of drugs while pregnant with his child; indeed, Willam’s meconium tested positive for Cocaine and Benzoylecgonine.

Also, despite the father’s involvement, it appears that the mother did not attend for any prenatal appointments until November 2010, two months before the birth of WDCH. [ 45 ] When they were doing a screen at an appointment with public health for a pre-birth clinic on November 23, 2010, a referral made by the doctor, the father not only did not tell the nurse that the mother had been using drugs, he appears to have actively interfered with the mother doing so.

Certainly it is very important for the child’s well-being that those involved be aware of the drug use so they can be prepared to deal with any complications at birth. The father’s decision to try to hide the information was not in the child’s best interests. [ 46 ] There have also been issues regarding his interaction with WDCH. in access. While his attendance at the visits has been good for the most part and there is evidence that he has been able to respond to some of the child’s cues, there have been concerns about his limited interaction with the child.

On his own at access, he does not appear to engage the child in any activities other than to hold him on his lap, sometimes facing away from him. Drug/Alcohol Use [ 47 ] The father has acknowledged in his affidavit that he “occasionally” drank “fairly heavily” “in the early nineties” but denies consuming heavily in the “last number of years”. While he appears somewhat vague about when he no longer abused alcohol, in March 2008 JH told a society worker that Mr.

W.H.W.H. had been drinking heavily at the end of their relationship and she was concerned that he might be drinking again as he seemed unstable. [ 48 ] Since 2008, there is no evidence that the father is consuming alcohol in such a way to interfere with his ability to exercise access. However, he has not outlined any treatment that he may have attended to deal with the issue so the problem may not have been addressed. [ 49 ] There is now a concern about drugs. Historically there is no suggestion of any drug use.

Indeed his previous partners have denied that he used any. [ 50 ] The only evidence is the fact that he has had a relationship with the mother before this court, a long-time drug addict, and had a positive screen from a sample taken February 14, 2011. [ 51 ] That screen noted Cocaine in a concentration of 1.85 ng/mg with the Benzoylecgonine level at 0.56 ng/mg.

The society has submitted that this screen indicates that the father had Cocaine in his system in the medium range at the time of testing and confirms active ingestion, not passive exposure, due to the presence of Benzoylecgonine. [ 52 ] While the father does not challenge what the report confirms, he simply denies that he has used any drugs. He points out that the police were called in April of this year due to his being upset with the mother’s drug use. [ 53 ] When told about the result of the screen on March 18, 2011, the father denied that it was correct as he had not used any drugs.

In an attempt to explain the positive results to the worker, the father said that he had walked into the room one time when the mother was doing crack; the mother thought that the positive reading was caused by them having sexual intercourse. There has been no evidence by way of affidavit or otherwise before the court that either of these explanations is viable; instead the father simply takes the position that the results of the screen are wrong. [ 54 ] After denying that he had used any drugs, the father told the worker that he wanted to be retested right away through another screen company of his choice.

He was informed by the society that they would not be testing him right away as it would continue to show positive results but advised him that he could go to another facility and pay for another test. [ 55 ] It is worrisome that the father did not seek the independent test that he wanted. Further he does not even address his

failure to do so in his affidavit. It is the obligation of a party responding to a motion seeking

summary judgement to put his or her best foot forward. In this case, the father has only made a bare denial without any effort to contradict the February evidence, something in his power to do. [ 56 ] Had he not had the funding, it may have been open to him, armed with a clean urine screen from his doctor and supporting affidavits regarding his drug-free lifestyle, to have the society ordered to pay for a second screen.

Instead the father has provided the court with nothing to counter the evidence of the screen. [ 57 ] Adding to the concern about his potential drug use is the fact that he has had a relationship with the mother, a long time drug user. While he attempts in his affidavit to downplay his knowledge about the extent of her use and history, it is clear that he knew she used crack cocaine.

Also he would have known at least something about her difficulties with her first children as the court proceedings were still ongoing during her conception of and pregnancy with WDCH. [ 58 ] It is of note that the father continued his relationship with the mother long after the apprehension and his receipt of the society’s material outlining the mother’s serious and long-term addiction problems. Even after he supposedly had moved out after the April 2011 police occurrence report, the parents told the society that they still had a relationship and wanted joint access.

Further, the mother has called the worker on his behalf regarding access cancellation. [ 59 ] Therefore the concern about the risk from the father’s potential drug use and associations flowing from that use, remains real and unaddressed. Lack of Support [ 60 ] The father filed no evidence from anyone, family or friends, indicating that they were prepared to support the father’s plan to have a child in his care. Indeed, he does not mention anyone in his affidavit that he expects to help him with the child.

References to people in his answer are not specific about what if any role they may have in the child’s life. [ 61 ] Historically he has noted that he lacks family support. In 1994, while he was struggling with his relationship with ML, he told the worker that neither of their families was supportive of them. In April, 2008, the father told Ontario Works that he had no family or friends who could assist him when he was being evicted. [ 62 ] The father’s plan is that he temporarily reside with the child in a basement room/apartment at the residence of friends DB and AF whom he has known for thirty years.

Despite knowing them for that time, he has suggested that he was unaware that DB has a criminal record. However, he has not stated that he even asked them the question; he thought it enough to tell the court that he “believed” that they did not. [ 63 ] Further, he has not stated that these friends are committed to assisting him in any other way. [ 64 ] He has admitted that he needs to smoke and acknowledges that he leaves the two hour access visit one to two times to smoke.

He notes that he will not be allowed to smoke in his friends’ house but has not explained how that will work if a child is placed in his care. [ 65 ] There are some concerns about the father’s proposed temporary residence: • 1995: Sudbury-Manitoulin Children’s Aid Society open file on DB and partner • 1997: DB’s assault of partner • 1999: society received information from a hospital concerned about DB’s behaviour/report of child AB unsupervised and running out into the street • 2003: disclosure of inappropriate discipline of child MB by family friend • 2005: niece with DB and AF-DB threatened to put the two children through the wall when discovered the two were touching each other-DB acknowledged angry and that he yells when angry and smacks the kids now and then [ 66 ] Further it appears from the material filed by the society that DB and AF have had a lot of stress in their lives in the last year or so given the passing of one child and the serious illness of another. [ 67 ] It appears that the father has stayed with these friends on other occasions but not for long periods of time.

While it is kind of them to offer, it does not appear that they are proposed to assist the father and the child other than by providing a temporary roof over their heads. [ 68 ] The father states that he is working full-time and plans to eventually obtain an apartment and organize daycare. The particulars of any of these have not been provided. There does not appear to be anyone proposed to assist him in any particular way. Application of the Law [ 69 ] The issue before the court is whether there is a genuine issue for trial.

Rule 16 of the Family Law Rules formally authorizes a court to decide a matter without a full viva voce trial, something courts had previously been doing on a very limited basis. The decision must be made in the context of the best interests of a child, the primary purpose of the Children and Family Services Act (CFSA).

[ 70 ] On a motion for

summary judgement, the party seeking the order must establish a prima facie case for the order or orders that are being sought, establishing that there is no genuine issue of material fact for trial. A responding party is then expected to put his or her “best foot forward” in order to show the existence of material issues to be tried and may not rely on mere allegations or denials. [ 71 ] Further it is open to the court to make inferences of fact based on undisputed facts as long as the inferences are strongly supported by the facts.

FINDING IN NEED OF PROTECTION [ 72 ] While the father was content to agree that there were protection issues regarding the mother, he was not prepared to acknowledge that there would be risk in terms of his own parenting. There are a number of areas that are of concern: • The child has suffered physical harm: the father knew that his partner was a drug addict yet had a child together-during the pregnancy the mother continued to expose the child to drugs and the father attempted to cover that up-the father did not ensure any prenatal intervention to protect WDCH.

WDCH was exposed to Cocaine and Benzoylecgonine in utero • The child is likely to suffer physical harm-the father has not had any counselling about his issues regarding anger management • The child is likely to suffer emotional harm- the information of the father’s treatment of his older children is concerning and given the father’s failure to attend any counselling, there is a risk of that emotional abuse continuing [ 73 ] Therefore the court is prepared to make the findings sought by the society as there is clearly no genuine issue regarding the findings for trial.

DISPOSITION [ 74 ] The court having found that the child is in need of protection, the father asks that the child be placed with him pursuant to an order of supervision. [ 75 ] Certainly the CFSA expects that once findings are made a child will be placed with a parent if the risk does not need to be addressed by terms of supervision or placed with a parent subject to terms of supervision where terms of supervision can address the risk. [ 76 ] When one examines the father’s history, it is somewhat perplexing to see how transient and unstable his life has been.

Despite appearing to be able obtain employment, he has not been able to maintain it for any period of time with most positions being less than a year. His educational, training and work credentials are impressive but have not led to him ever maintaining stable employment for any significant period of time. Further it is not always that he is laid off or fired; there is evidence that he has quit work as well despite not having a new position, forcing him to seek social assistance. [ 77 ] The father’s economic instability has had a great impact on various other aspects of his life and that of his children.

He has often been without a home. Once outside a relationship, he has not been able to maintain a place to live. While he did obtain a two bedroom apartment, he ultimately lost it.

This impacted his ability to continue to exercise his alternate weekend access with his older children as he had no where for them to stay. [ 78 ] There is some evidence that he may have had a pet contrary to the rules of the building and that that irresponsible decision may have contributed to his loss of residence on one occasion. [ 79 ] There are references in the material to times when the father was unable to meet the family’s bills. [ 80 ] While the father states in his affidavit that he “has generally held remunerative employment and supported (his) dependants”, the reality is that his employment record is patchy and so has been his support of his children. [ 81 ] More recently there have been concerns that the father has not been able to feed the children properly while in his care. [ 82 ] The father’s emotional, parenting and anger management issues remain unaddressed.

He has been completely resistant to attending counselling regardless of direction or court order. [ 83 ] Further the father has not been discerning about the nature of his relationships. He has not been able to be a positive influence in the households. His first relationship was fraught with issues of transience, neglect, domestic violence and extensive arguments. There were concerns about strife and conflict in his second relationship.

Then his third relationship is with a person who is involved in court with protection issues regarding her own child and is a long-term drug addict. [ 84 ] In this last relationship, despite becoming aware of the mother’s use of drugs, there is no evidence that he attempted to have her obtain prenatal care to protect the well-being of his unborn child. Indeed he attempted to cover up her drug use. [ 85 ] The father has suggested that he was not aware how “profound” the mother’s addiction problem was until he read the material filed by the society after the apprehension.

He states that he was “initially unaware of her past” and she never advised him that she was a cocaine user. However, it is quite clear from the evidence that he knew at some point that she used cocaine as he walked in on her using. He certainly knew that she was using cocaine while she was pregnant. He stayed in a relationship with her while knowing that she was using. In his original answer he proposed a joint plan with the mother and did not file an amended one until May16, 2011. Whether he knew exactly how much she was using or how long she was using is not all that significant given the evidence.

[ 86 ] What is also of concern is that despite having access to his older children, he chose to have a relationship with a drug addict. [ 87 ] Perhaps the most telling evidence before the court is the lack of any changes made by the father after he was aware of the extent of the society’s concerns in January 2011. He remained living with the mother until police intervention in April and told the society that they were still in a relationship after that. He has not contacted the society to address the issues in the plan.

While he promises in his amended answer to use support services as directed by the society, the society has not been successful in having the father follow through before. Since January, the father has not arranged any counselling. He has not obtained appropriate, long-term accommodation. He has not even ensured that the society had his contact information. [ 88 ] He does not appear to have much community support. No affidavits were filed by any friends or family.

In his initial answer he identified two people and unnamed friends in the Kinsman Club who had information to support his plan but there are no specifics about what they have to provide if anything in help.

In his amended answer filed May 6, 2011, he has suggested a niece but provides no specifics about how she is able to help: where she lives, her availability or her background. [ 89 ] Once again he appears to be staying with friends temporarily and it is not clear what they would be in a position to do to assist. [ 90 ] Further there is the unanswered positive drug screen. [ 91 ] A review of the evidence does not support the claim made in the father’s answer that he is a “very responsible individual”.

He has done nothing to improve his circumstances so that WDCH could come out of foster care and be placed with him. He has not even made a call to get on a wait list for any parenting program or counselling. [ 92 ] Further it is clear that he historically has not followed through with what he has agreed to do or been directed to do. [ 93 ] This is not a situation where there have been steps taken giving the court some confidence that changes are happening and will continue to happen.

In that situation a short society wardship order might be appropriate to consider. [ 94 ] Certainly there is a short period of time under subsection 70(1)(

a) during which a society wardship could be made for this child as he was apprehended in January 2011. Also a court may order up to a six month extension of that time limit where it is found to be in the child’s best interests. [ 95 ] In this matter, however, it would not be in the child’s best interests to extend time simply because the father has failed to show so far that he is prepared to actually do anything. He has had eight months and even since his amended plan in May he has done nothing, not even maintaining contact with the society.

There are unaddressed concerns of residence, child supervision, emotional health, anger management, parenting issues and substance abuse. He has shown himself to be uncooperative with expectations of supervision. [ 96 ] Given all of the evidence, it is clear that there is no genuine issue for trial regarding an order of disposition. The father has taken no steps to even start on a plan to address the best interests of the child and allow the court to consider placing the child in his care.

It would not be in the child’s best interest at this point to extend time for the father to try to establish that there might be a genuine issue for trial sometime in the future. It is his responsibility at a motion for

summary judgement to put his best foot forward. He has made no effort to address the issues: he has fallen far short of the mark. [ 97 ] Therefore in the review of the options available to the court under

section 57 of the CFSA, the court finds that it is in the best interests of the child to be made a crown ward for the purpose of permanency planning. There have been no submissions seeking to challenge the adoptability of the child. [ 98 ] Once a crown wardship order is made pursuant to subsection 57(1)3, all access is terminated pursuant to subsection 59(2). [ 99 ] Counsel for the father acknowledged that should a crown wardship be ordered, there would be no basis for an access order under subsection 59(2.1) given the child’s age and the test under that

section that the order must not interfere in permanency planning. [ 100 ] Therefore court orders as follows: [ 101 ] Order for

summary judgment pursuant to rule 16, as follows: FINDINGS • The name of the child is WDCH; • The date of birth of the child is January […], 2011; • The location of the place from which the child was removed is The Regional Municipality of Waterloo; • The religious faith in which the child is being raised is not designated;

• The child is not Indian or a native person • The children are in need of protection within eth meaning of s. 37 (2)(a)(i), (b)(

i) and (

g) within the meaning of the Child and Family Services Act. ORDER • The child, WDCH, born January […], 2011, be made a ward of the Crown, until the wardship is terminated under

section 65 or expires under section 71(1) of the Child and Family Services Act, and be placed in the care and custody of The Children’s Aid Society of the Regional Municipality of Waterloo. • There shall be no access by Ms. K.M. in and Mr. W.H. to the child WDCH. Released: 7 September 2011 Signed: “Justice Paddy A. Hardman”