Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCJ 965

WARNING The court hearing this matter directs that the following notice 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 45(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. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCJ 965 DATE: November 14, 2017 COURT FILE No.: 720/14 BETWEEN: Children’s Aid Society of the Region of Waterloo Applicant, — AND — C.T., A.L. and M.T. Respondents Before Justice B.C. Oldham

Heard on September 6, 2017 Reasons for Judgment released on November 14, 2017 Ms. Brown......................................................................... counsel for the applicant society Ms. Towlson ..................................................................... counsel for the respondent M.T. Respondent C.T. ................................................................................................... not present Respondent A.L. ..................................................................................................... not present OLDHAM J.: [ 1 ] There were two motions before me on September 6, 2017. The first was a

summary judgment motion brought by the Children’s Aid Society of the Region of Waterloo (the “Society”) pursuant to Rule 16 of the Family Law Rules. This motion which is located at Vol 3, Tab 9 of the Continuing Record was commenced on August 15, 2017. In it, the Society seeks the termination of the final Order of Justice Borghesan dated March 2, 2015. In the alternative, the Society seeks an Order making the child a ward of the crown, without access to the parties. [ 2 ] The second motion was commenced by the maternal grandmother, M.T. who is a party to these proceedings.

Her motion is located at Vol 4, Tab 3 of the Continuing Record and seeks an expansion of M.T.’s access to the child on an interim basis. This motion was commenced on August 30, 2017. [ 3 ] There is one child involved in these proceedings; namely, L.T. who was born on […], 2012. The parents, C.T. and A.L. support the Society in that they have both signed consents to adoption which would allow the foster mother to adopt L.T. Openness agreements have been signed in respect of access for both parents post-adoption.

Neither parent filed any responding materials to either the Society’s motion or the interim access motion by the maternal grandmother, M.T. Neither parent attended on September 6, 2017 for the hearing of these motions. [ 4 ] I proceeded by hearing submissions in respect of the Society’s motion first followed by submissions by M.T. on her motion for increased interim access. M.T.’s counsel advised that her motion was commenced at this time to ‘level the playing field’.

It is M.T.’s position that her plan of care has not been properly and fully considered by the Society and that in order to be fully considered at a trial, she must have more access with L.T. [ 5 ] If the Society’s motion is granted either by a termination of the order, or by an order for crown ward on a

summary judgement basis, M.T.’s interim motion to increase access pending the trial is moot. Factual Background [ 6 ] As indicated above, the child in these proceedings, L.T., was born on […], 2012. Her biological mother is C.T., born on […], 1990. Her biological father is A.L. born on […], 1986. C.T. does not have any other children.

A.L. has one other child who was made a ward of the crown as a result of issues relative to drug use, transience and concerns identified in a Parenting Capacity Assessment. [ 7 ] The Society first became involved with L.T. when it received a call from Cambridge Memorial Hospital on September 11, 2012.

The Hospital raised concerns about the baby as C.T. was on a methadone program and had admitted to a history of drug use with opiates. [ 8 ] The maternal grandmother, M.T. and her partner, R.C., the maternal grandfather were put forward from the beginning as supports for C.T. and have been involved in L.T.’s life since her birth. In fact, when C.T. left the hospital she and L.T. went to live with M.T. and R.C. as part of a safety plan. [ 9 ] Apart from the issues of drug use and additions, one of the Society’s main concerns as this matter unfolded was the lack of stability for L.T.

M.T. claims that any lack of stability was as a result of the parents’ choices and transience and cannot be attributed to her, with the exception of one move in July 2014. That said, as a factual matter, it is undisputed that L.T. moved a number of times in her first two years. The timing and general reasons for the moves were acknowledged in the statement of agreed facts signed by C.T. and A.L. and can be summarized as follows: • Upon discharge from the hospital, C.T. agreed to reside with her parents so that they could provide support.

C.T. and L.T. resided with in the maternal grandparent’s home from September 2012 until December 2012. A.L. did not reside in the home, but continued to be involved with C.T. • In December 2012, C.T. and A.L. put forward a plan to have L.T. reside with them in an apartment. Transition commenced with day time access and C.T. and L.T moved into their own apartment for a couple of weeks. In or about January 2013 the Society was advised that A.L. had moved in with the maternal grandparents. C.T. was looking to move to Monica Ainslie Place.

There was an incident in February 2013 between C.T., A.L., M.T. and R.C. in the maternal grandparents’ home. M.T. denies that the extent of the argument, but does not dispute that C.T. left with L.T. to stay with A.L.’s sister, J.L. for a few days. • From February 4, 2013 until April 2, 2013, C.T. and L.T. returned and continued to reside at the maternal grandparent’s home.

• From April 2, 2013 until November 1, 2013, C.T. and L.T. resided at Monica House. They continued to have regular access and dinners at the maternal grandparent’s home with M.T. and R.C. • C.T. left Monica House with L.T. on November 1, 2013 and resided with A.L. until December 23, 2013.

Although the Society does not have clear records of where C.T. was residing for this entire time, C.T. had to move with L.T. at least once as A.L.’s residence was not stable. • From December 23, 2013 until March 21, 2014 C.T. and L.T. returned and resided with the maternal grandparents. • From March 21, 2014 until March 27, 2014 C.T. and L.T. moved and lived with J.L., the paternal aunt. • On March 27, 2014 L.T. was placed in the care of the Society pursuant to a Temporary Care Agreement.

L.T. remained in care until May 27, 2014 after the parties met with the Society and signed an agreement to have L.T. returned to C.T’s care provided that she continued to reside with her parents. • From May 27, 2014 until July 1, 2014 C.T. and L.T. continued to reside with the maternal grandparents on Cedar Street in Cambridge, being the home that they had lived in for 14 years. Around this time, M.T. and R.C. had decided to move for financial reasons.

R.C. had been offered a job as a building superintendent and they decided to move to Main Street in Cambridge. • From July 1, 2014 until July 30, 2014 C.T. and L.T. resided with the maternal grandparents in the Super 8 Motel. Unfortunately, the new unit on Main Street needed renovations and the family had to find temporary accommodations while waiting for the new apartment. • From August 1, 2014 until August 26, 2014 C.T. and L.T. resided with the maternal grandparents at their new apartment on Main Street in Cambridge. • From August 26, 2014 until October 3, 2014 C.T. and L.T. moved in with A.L.

A.L. had just taken over his parent’s lease and this appeared to be a long term plan. C.T. and A.L. separated shortly after and C.T. and L.T. returned to the maternal grandparent’s home. • From October 3, 2014 to October 24, 2014 C.T. and L.T. did not have stable housing. C.T. attended a detoxification centre from October 3, 2014 until October 10, 2014 leaving L.T. with the maternal grandparents. She then left the program, took L.T. and went to live with A.L. The Society attended at C.T. and A.L.’s home and tried to work with them on a safety plan.

During this period of time there were a number of allegations by C.T. and A.L. and by M.T. and R.C. C.T. indicated that she was going to take L.T. to Monica House, but she did not. The maternal grandparents contacted the Society on October 23, 2014 to advise that they had not heard from C.T. or L.T. since October 18, 2014. A warrant was issued and L.T. was apprehended and placed in the care of the Society on October 28, 2014. [ 10 ] L.T. has been in the care of the Society since October 28, 2014; over three years at this point.

History of the Proceedings [ 11 ] The maternal grandparents indicated early on that they wished to put forward a plan of care for L.T. By October 31, 2014 they had completed police records checks and were working with the Society in respect of a plan of care. [ 12 ] At this time, however, neither C.T., nor A.L. supported a placement with the maternal grandparents and instead proposed a plan of care with J.L., the paternal aunt. [ 13 ] Ms Towlson on M.T.’s behalf, is very critical of the Society’s decision to move forward with the plan to place with J.L. at this time.

She claims that the Society failed to consider the maternal grandparent’s plan. It does not appear that the maternal grandparents were given much of an explanation; however, it is clear from the records that over the course of the two years (ie., from L.T.’s birth to October 2014), there had been little improvement in creating stability for L.T., regardless of who was a fault. [ 14 ] Ms Towlson notes that until this time, the Society had not validated any of the allegations made by C.T. and A.L. regarding arguments in the home or use of crystal meth, by the maternal grandparents.

M.T. denies drug use and has provided a letter from her family physician confirming that ‘M.T. has been his patient since June 16, 2009 and that he has never suspected illicit drug or alcohol abuse’. M.T. has also provide clean drug screens.

M.T.’s evidence is that she believes that she has always met the Society’s expectations in terms of being a capable, responsible person who worked co-operatively and honestly with the Society. [ 15 ] As at October 2014, the Society did not identify any specific fault in the care, supervision or reporting by the maternal grandparents, but noted that a kin assessment would need to be completed as a result of the commencement of litigation and the allegations made by C.T. and A.L. [ 16 ] M.T. acknowledges that C.T. was difficult to manage when she was using drugs and that she would sleep in and would not help around the house which created friction in the home.

M.T. claims that C.T. and A.L. would complain about M.T. and R.C. when it suited them, but would recant their allegations when they wanted the Society to return L.T. to the grandparent’s home. M.T. acknowledges that she “did not approve of A.L. because of his drug use and the way he spoke to and treated C.T.” She notes that he was abusive and criticized her. When he behaved in this manner, he was asked to leave the home.

M.T. acknowledges that they attended court on the first return after L.T.’s apprehension and notes that “it is true that C.T. and A.L. were extremely upset at me and were yelling in the court house.” Without placing blame, it is undisputed that there was conflict in the relationships from time to time and that the conflict had become more pronounced by October 2014. [ 17 ] While I can appreciate M.T.’s frustration that J.L.’s plan was approved, I cannot fault the Society for looking at another family plan of care at this time; particularly given that both parents were supporting it. J.L. is the paternal aunt.

C.T. and L.T. had lived with her on at least two occasions and she has a child of her own.

[ 18 ] J.L.’s plan of care was approved on February 10, 2015 and plans were made to place L.T. in J.L.’s care on February 24, 2015. C.T. had moved back with her parents and had not told them that she was supporting J.L.’s plan instead of their plan. Understandably, that created some tension. [ 19 ] L.T. was placed with J.L. on March 2, 2015 and a final order was made by Justice Borghesan on that date. The Order was based on a signed statement of agreed facts (the “SAF”) resulting in a finding that L.T. was in need of protection pursuant to s. 37(2)(b) (

i) and (ii) and 37(2) (

g) of the Child Family Services Act (the “ CFSA”). [ 20 ] The Society commenced this Status Review Application on July 27, 2015 (the “SR Application”) seeking a further eight month placement with J.L. L.T. had continued to have access with the maternal grandparents in their home and by March 19, 2015 that access had increased to overnights. C.T. would often exercise her access with L.T. when L.T. was at the maternal grandparent’s home. [ 21 ] This placement was not without conflict.

The Society continued to receive calls from the maternal grandparents about their concerns over the care that L.T. was receiving and the Society received calls from J.L. about concerns about issues and comments being made about her by the maternal grandparents. By July 2015 J.L. had decided that she had enough and that she did not want to continue to fight. She advised the Society that she could not keep L.T. in her home after September 2015.

M.T. claims that the Society did not advise her of this decision by J.L. until “much much later”. [ 22 ] On August 9, 2015 there was a significant incident during an overnight access visit at the maternal grandparent’s home. M.T. has acknowledged that she drank tequila while in the role of supervising C.T.’s access with L.T., but claims that R.C. had not been drinking and notes that he was available to supervise and care for L.T. [ 23 ] M.T. denies that she was drunk, but acknowledges that she got into an altercation with C.T. and with R.C. which resulted in her having to attend at the hospital.

She denies the officer’s observations of her following the incident. Both R.C. and C.T. advise that they had to restrain M.T. and she acknowledges that she got a bump on her head as a result of the incident. R.C. states that M.T. does not drink often and both he and C.T. suggest that M.T. may have just been going through menopause.

Either way, M.T. acknowledged that it was a poor decision given her responsibilities to supervise L.T. [ 24 ] M.T. spent two weeks in Barrie with her sister and his partner following this incident. [ 25 ] The first return of the SR Application was September 1, 2015. [ 26 ] The Society amended its SR Application on October 7, 2015 to request that L.T. become a crown ward, without access for the purposes of adoption. [ 27 ] M.T. and R.C. had been married for 26 years at this point; however, their lives and relationship was in a state of flux. As indicated above, they had moved from the family home in July 2014.

They spent approximately 5 weeks in a Super 8 hotel before moving into their new apartment. The new apartment did not work out and they were asked to leave at the end of September 2015. There is some discrepancy as to whether they were evicted or asked to leave because a family member needed the unit. M.T. acknowledges that there was some rent outstanding, but notes that the amount was in dispute. R.C. and M.T. left that apartment and went to stay in a hotel.

M.T. says that she stayed at the hotel for approximately two weeks before she went to live at Haven House, a shelter for women. [ 28 ] R.C. and M.T. separated on October 24, 2015. [ 29 ] M.T. acknowledges that this was a period of “high stress for both R.C. and [herself] what with L.T. and the CAS proceedings, having to move, not finding a place to move to, etc..” She also acknowledges that ‘she and R.C. were arguing a lot at that time and that it was unhealthy’. [ 30 ] M.T. was at Haven House for five and one half months before she secured her current residence in March 2016. [ 31 ] L.T. was placed in a foster to adopt home on November 4, 2015 and has continued to live there for the past two years. [ 32 ] During her stay at Haven House, M.T. states that she was able to access counselling and indicates that the experience gave her confidence.

While she denies that L.T. was ever subject to conflict in her home, the counselling records confirm that M.T. reported that R.C. was verbally abusive and that he took to name calling in the home. There is a police occurrence report from November 14, 2013 confirming that the police responded to a disturbance call as a result of yelling, banging and stomping in their unit.

M.T. and R.C. were separated for the evening and no charges were laid. [ 33 ] M.T. has produced a number of certificates that confirm that from October 2015 until June 10, 2017 she took a number of parenting and counselling courses to assist her in caring for L.T. and to assist in managing anger and conflict. [ 34 ] M.T. retained counsel and brought a motion returnable to January 12, 2016 seeking to be added as a party.

The motion was not opposed and the Order was granted by Justice Hardman on January 12, 2016. [ 35 ] M.T. claims that ‘since the August 9, 2015 incident that the Society has not given her the time of day’. In response to a request by Ms Towlson on January 15, 2016, the Society provided a letter dated January 19, 2016, setting out their concerns with M.T.’s plan of care. Specifically, the Society confirmed that L.T. needed a stable home environment free from domestic violence and substance abuse. They reviewed the history to date and suggested that M.T. was partially responsible for the chaos in L.T.’s life.

The Society advised that it was seeking more details in terms of how M.T. would protect L.T. from C.T. and R.C. if they were abusive towards her. The Society wanted to know how M.T. was going to create a stable home environment for L.T. given her current housing status. The Society also reiterated its concerns about M.T. decision to consume alcohol on August 9, 2015 when she was supervising C.T.’s access visit. [ 36 ] A formal Kin Assessment (the “Assessment”) was completed and was attached to the affidavit of Stacey Foerster, the Service

Manager from the Kinship Service Deportment who was assigned to M.T. assessment. While the ‘due date’ on the report is noted as May 2016, the report was not completed until December 14, 2016. M.T. states that she did not receive a copy of the Assessment until May 19, 2017. Placement with M.T. was not recommended. [ 37 ] M.T. notes that the parties attended an Alternative Dispute Resolution session in the fall of 2016 and another session in February 2017. M.T. is critical of the mediation process and claims that there was no consideration of her plan. She acknowledges leaving the meeting in tears.

She claims that her relationship with the foster mother and with C.T. deteriorated after the first mediation. [ 38 ] A.L. was not in attendance during the second mediation session in February 2017 and had not been exercising access at that point. C.T. signed an Openness Agreement with the foster to adopt mother on March 24, 2017. M.T. submits that she is concerned about whether C.T. was misled and/or did not understand the reality of the Openness Agreement which only provides for four access visits per year. C.T. was represented by experienced counsel, Mr.

Schafer, until October 13, 2016 when a Notice of Change of Representation was filed. M.T. acknowledges that although no longer counsel of record, it was her understanding that C.T. met at Mr. Schafer’s office with the foster to adopt mother to sign the Openness Agreement in March 2017. There is no evidence to support the suggestion that C.T. was not given proper advice, or that she signed the agreement under duress or misunderstanding. In fact, C.T. went on to sign a Consent to Adoption Form 34F on June 16, 2017. The Affidavit of Execution and Independent Legal Advice has been completed by Mr. Schafer.

As of the date of the hearing on September 6, 2017 C.T. had not waived or revoked that Consent. [ 39 ] A.L. was represented by Mr. Wintar until May 3, 2017 when he brought a motion to be removed as Solicitor of Record.

A.L. met with the foster to adopt mother and signed his own Openness Agreement on June 7, 2017. [ 40 ] The Society amended its SR Application a second time on August 1, 2017 to seek a termination of Justice Borghesan’s March 2, 2015 Order, or in the alternative, an order that L.T. be made a ward of the crown, with no access to the parties. [ 41 ] A.L. signed the Consent to Adopt Form 34F on September 5, 2017, the day before this hearing. The Affidavit of Execution and Independent Legal Advice was sworn by Henry Shields. As of the date of the hearing, the 21 day waiver period had not expired.

The matter was back before me for decision on November 6, 2017. It was adjourned to November 14, 2017. On November 6, 2017, the Society confirmed that A.L. had not withdrawn his Consent to Adopt. M.T. understood that he had been attending a residential treatment program and had no evidence to suggest that he had withdrawn his consent.

The Position of the Parties The Society [ 42 ] It is the Society’s position that given that both parents have now signed Consents to Adoption that there are no protection concerns and the current Society Ward Order should be terminated to allow the adoption process to proceed pursuant to

Part VII of the CFSA. [ 43 ] In the alternative it is the Society’s position that on a status review, provided that there is an ongoing need for protection, the Court must look only at the best interests of the child; which must include a consideration of the time that a child has been in care. L.T.’s parents continue to struggle with addictions and have not been able to maintain stability in housing or employment. L.T. continues to be in need of protection. [ 44 ] L.T. is five years of age and has been in care for over three years; far exceeding the statutory limit of twelve months set out in section 70(1)(

a) of the CFSA . The only option, therefore, is to return to L.T. to the parent[s] or make an order for crown ward. Placement with M.T. could only be considered under a

section 57.1 custody order or a further supervision order. It is the Society’s position that an order making L.T. a ward of the crown is in L.T.’s best interest so that she can be adopted by her current foster mother. [ 45 ] The Society relies on the affidavit of Debra Joslin, the Children’s Service Worker for L.T. Ms Joslin confirms that she has been working with L.T. since her placement with the foster to adopt mother on November 4, 2015. She confirms that L.T. has done very well in the home; she has met all of her milestones; she is healthy and is receiving proper medical and dental care.

The foster mother has facilitated access with C.T., and arranged visits with the paternal aunt, J.L. and her children. The foster mother had a baby in March 2017 and L.T. is bonding well and identifying herself as “S.’s big sister”. Ms Joslin states that she has observed a close and positive emotional connection between L.T. and the foster mother. [ 46 ] The Society also relies on the fact that a kin assessment was completed for M.T. in December 2016.

M.T.’s plan was not recommended and placement with her would not be in L.T.’s best interests. [ 47 ] M.T.’s access to L.T. has been supervised by the Society at the Family Centre for the past two years for two hours every week. The Society does not raise any concerns about the access visits. Rather, it is the Society’s position that permanency is paramount and that an adoption provides for a more secure placement than a custody order or placement with M.T. subject to terms of supervision. [ 48 ] It is the Society’s position that there is no issue requiring a trial.

Both parents agree that adoption by the foster mother is in L.T.’s best interest. A placement with M.T., although kin, would require another move and continued Society involvement. L.T. has not resided with M.T. and therefore a custody order is not in L.T.’s best interest. [ 49 ] The Society submits that family are to be given no greater priority in a status review application and that to move L.T. and risk destabilization, is not in her best interests even if the placement is with kin. [ 50 ] With respect to M.T.’s request to increase access on an interim basis, it is the Society’s position that even if the

summary judgment motion is not granted, that the matter should proceed to trial expeditiously and that the court should not change access at this time. M.T.‘s Position

[ 51 ] Counsel for M.T. submits that the Court should not consider the termination of the current order as that position represents and ‘end run’ and is unfair to M.T. She is a party to these proceedings and to allow the parents to sign a consent to adopt which circumvents any consideration of her plan of care is procedurally unfair. [ 52 ] Moreover, she questions the parents’ ability to make good decisions in respect of L.T.’s care and points to the fact that the placement with J.L. (which they both supported) did not result in a permanent plan for L.T. [ 53 ] M.T. states that her plan is a viable and strong plan and that it cannot be dismissed on a

summary judgment basis. M.T. is 54 years of age. She has worked at Sobey’s for 18 years. She recently separated from R.C. after 26 years of marriage. She has a good relationship with her other son and his wife who lives in Mississauga and her sister and her husband who live in Barrie. She has put forward both families as supports. [ 54 ] M.T. denies that she is unable to provide a stable home for L.T. and notes that the recent moves were the exception to an otherwise very stable family home in which she had lived for 14 years.

M.T. has been actively involved with L.T. from birth and has maintained her care as her priority. M.T. refers to the Society’s notes and support of her prior to October 2014 as evidence that she was able to provide a secure, safe home for L.T. which was supported and approved by the Society. [ 55 ] She claims that she has demonstrated an ability to work with the Society and to report concerns as they arose. It is M.T.’s position that since the incident on August 9, 2015 the Society has ‘not given her the time of day’.

M.T suggests that this is unfair as it was an isolated incident and R.C. was not drinking and able to provide care and supervision for L.T. [ 56 ] Counsel for M.T. reminds the court that this is a

summary judgement motion and that the only issue is whether there is a triable issue. It is her position that M.T.’s commitment and plan create a triable issue and cannot be dismissed summarily. [ 57 ] Ms Towlson is very critical of the time that it took the Society to complete its kin assessment of M.T. and claims that the Society cannot rely on its own delay as the reason that L.T. cannot be in M.T.’s care. [ 58 ] With respect to access, M.T. has been asking for expanded access for over two years now.

She acknowledges that she brought the motion at this time because she needed to ‘level the playing field’ so that her plan could be fully flushed out. She does not feel that it is fair for the Society to take the position that placement in M.T.’s care is not in L.T.’s best interest because L.T. has only visited with M.T. for two hours per week. The access has been controlled and limited by the Society, not because M.T. is incapable or presents a risk if access is expanded. M.T. submits there no reason why her visits need to be supervised directly or at the Family Centre.

She refers to the Society’s case notes which confirm that she has attended regularly and consistently every week for over two years. The visits are positive and appropriate. The Law [ 59 ] The Society’s motion at Vol 3, Tab 9 seeks an order for

summary judgment on the following: a. the termination of the Order of Justice Borghesan dated March 2, 2015 (which is a final supervision order placing the child with J.L); or b. in the alternative, an order making L.T. a crown ward, without access to the parties. [ 60 ] The rules in respect of

Summary Judgment motions is set out in Rule 16 of the Family Law Rules which provides as follows: RULE 16:

SUMMARY JUDGMENT 16.

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

summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1) .

(2) Available In Any Case Except Divorce – A motion for

summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2) .

(4) Evidence Required - The party making the motion shall serve an affidavit or other evidence that sets 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 party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall 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 has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) No Genuine Issue For Trial - If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) Powers - In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(6.2) Oral Evidence (Mini-Trial) -The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order thatoral evidence be presented by one or more parties, with or without time limits on its presentation.

(9) Order Giving Directions – If the court does not make a final order, or makes an order for a trial of an issue, the court may, inaddition to exercising a power listed in subrule 1(7.2): (

a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in whichcase the order governs how the trial proceeds, unless the trial judge orders otherwise); (

b) give directions; and (

c) impose conditions (for example, require a party to pay money into court as security or limit a party’s pretrial disclosure). [61] The essential issue on a

summary judgment motion is whether the evidence filed is sufficient to give the court confidence that itcan find the necessary facts and apply the relevant principles so as to be able to resolve the dispute without a trial.

Summary judgment isno longer considered an extraordinary remedy that is limited to the “clearest of cases”. The court in Hryniak v. Mauldin 2014 SCC 7(SCC) makes it clear that

summary judgment rules must be interpreted broadly favouring proportionality and fair access to affordabletimely and just adjudication of claims. Where the outcome is a forgone conclusion an order for

summary judgment must be made[Caroll v. Westlake 2016 ONSC 45 (SCJ).]. [62] In a

summary judgement motion, the onus is on the moving party to prove on a balance of probabilities that there is no genuineissue requiring a trial. (See: F.I. v K.F. (ON SC), [2000] O.J. No 479 (Ont. S.C.).) [63] In responding to a motion for

summary judgement, the responding party must put his best foot forward. The court will assumethat the evidence put forward by the respondent is the best that he can offer and is all of the evidence that will be available at trial. (SeeCarroll v. Westlake 2016 ONSC 453 (SCJ) and Durham Children’s Aid Society v. J.T [2015] O.J. No 6821 (SCJ)). [64] In child protection matters, I am to consider not only the nature of the evidence, the intrusiveness of the order, the mandatorytime frames, but also the statutory criteria involved and in particular, how material are the facts in dispute to the issue before the court(see: CAS Algoma v. E.W. (ON CJ), 2001 O.J. No 2746 (OCJ)). [65] A

summary judgement motion is a tool that can contain and control a child’s drift in litigation. A child’s need for permanencyplanning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to ‘buy’ a parent timeto develop an ability to parent ( See: Children’s Aid Society of Toronto v. R.

H. and M.N (ON CJ), [2000] O.J. no.5853 (C.J.) at para 15). [66] Rule 16(6.1) includes expanded powers which allow the court to assess whether there is a genuine issue requiring a trial whichmay be used if the court is satisfied that the exercise of this discretion in this case will not run contrary to the interests of justice. Asnoted by Justice Sherr in A.E.A. v. F.A.H. 2015 ONCJ 339 at para. 9 where he quotes from the Supreme Court of Canada decision inHryniak v.

Mauldin 2014 SCC 7: “[24] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if theneed for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawinginferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not runcontrary to the interests of justice.

Their use will not be against the interests of justice if they will lead to a fair and just result and willserve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.” [67] On a status review application, there are two factors that must be determined by the court. Firstly, does the child continue to bein need of protection and secondly, what is in the child’s best interest. (See: Catholic Children’s Aid Society of Metropolitan Toronto v.M.(C.) (SCC), [1994] 2 SCR 165 (hereinafter “M.(C.)”) [68] Both

section 1 of the CFSA, being the paramount purpose and s. 37(3) of the CFSA, being the best interests test, must be takeninto consideration “in balancing the rights of the parents and, to that end, the need to restrict state intervention, with the rights of thechildren to protection and well-being. [69]

Section 1 of the CFSA provides as follows: Paramount purpose 1.

(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children. Other purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well beingof children, are: 1. To recognize that while parents may need help in caring for their children, that help should give support to theautonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. 2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case tohelp a child should be considered. 3. To recognize that children's services should be provided in a manner that,

i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate. 4.

To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences. 5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. [ 70 ] Section 37(3) of the CFSA reads as follows:

(3) Best interests of child – Where a person is directed to this Part to make an order or determination in the best interests of the child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical mental and emotional needs and the appropriate care or treatment to meet those needs. 2. The child’s physical mental and emotion level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance of the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationship and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent; 9. The child’s view and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant consideration. [ 71 ] The statutory authority to terminate an order on status review is addressed in subsection 65(1) of the CFSA which reads as follow: 65. Court may vary, etc . –

(1) Where an application for review of a child’s status is made under

section 64, the court may, in the children’s bet interests, (

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

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

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1 Analysis: Termination of the Previous Order [ 72 ] Pursuant to section 65(1) (

a) of the CFSA one of the outcomes of a status review application may be the termination of the original order made under section 57(1).

[73] The Society’s position is that the court should terminate because the parents have consented to a permanency plan; namelyadoption, which removes the need for Society involvement. There is no need for protection and the inquiry may end there. [74] In my view, this argument must fail for two reasons. Firstly, a termination in these circumstances is akin to allowing theSociety to withdraw its application, without determination by the Court. This issue was considered by Justice Spence in R.G. v. CatholicChildren’s Aid Society of Toronto [2014] O.J.

No. 3773 in the context of a request to withdraw a status review application to terminate acrown ward order. In that case, the court confirmed that once a status review application has commenced (whether voluntarily ormandatorily under the CFSA), the court has a duty to proceed with the ‘hearing’. A hearing in a child protection matter may take theform of a motion seeking leave to withdraw, a motion for

summary judgment, or a trial (see: Children’s Aid Society of Ottawa v. A.V.[2016] O.J. No 2528). [75] On status review, the issue is not only whether there is a continuing need for protection, but also whether the order beingrequested is in the child’s best interest. The Society’s position suggests that the inquiry should end upon the determination that the needfor protection no long exists as a result of the consent to adoption. [76] The importance of a more fulsome analysis was addressed by Justice L’Heureux-Dubé in M.(C.), at para 37: “37.

The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned withwhether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The secondis a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to theneed of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered thefirst order for protection or from circumstances which have arisen since that time.

As the Court of Appeal said: We agree that a Children's Aid Society, as the representative of the state, must continue to justify its intervention by showing that a courtorder is necessary to protect the child in the future. Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examinationof the events that triggered the intervention of the state in the first place.

As the Court of Appeal further noted: We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of thenatural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the childfrom emotional harm, which would result in the future, if the emotional tie to the care givers, whom the child regards as herpsychological parents, is severed.

Such a factor is a well recognized consideration in determining the best interests of the child which,in our opinion, are not limited by the statute on a status review hearing. This flexible approach is in line with the objectives of the Act, as it seeks to balance the best interests of children with the need to preventindeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail.

In thisregard, I agree with the conclusions reached by Professor Phyllis Coleman in "A Proposal for Terminating Parental Rights: `Spare theParent, Spoil the Child'" (1993), 7 Am. J. Fam. L. 123, at p. 133: Focus on parental fitness is inappropriate in many termination cases. Rather, when the child is young, emphasis should be on needs andinterests of the child. . . . [P]arental rights should be terminated if . . . it is determined it would be in the best interests of the child toterminate.

Thus, the best interests of a child under the Act are to be decided through the balancing of all the considerations set out in s.37(3), including consideration for the family, the importance of the continuity of care, the child's physical, emotional and psychologicalneeds as well as the other criteria set out in s. 65(3). In determining what is in the child's best interest, the Act provides extensiveguidance. Notwithstanding the specific provisions of the Act, however, traditional discussions with respect to best interests remainhighly relevant.

Especially apposite to the case at hand is the English Court of Appeal's appreciation of the breadth of best interests in Inre McGrath, [1893] 1 Ch. 143, at p. 148. The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured bymoney only, nor by physical comfort only. The word welfare must be taken in its widest sense.

This wide approach was accepted in Re Moores and Feldstein (1973), (ON CA), 12 R.F.L. 273, in which the OntarioCourt of Appeal concluded, at p. 287, that the benefit of a child's bond to her mother was encompassed within the best interest test: I conclude, therefore, that it is the duty of the court to view all the circumstances relevant to what is in the interest of a child, including aconsideration as to whether the evidence disclosed that the child would benefit from the tie of a child to its mother.

The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arisingfrom emotional harm, psychological bonding and the child's desires, which the Act contemplates as well.” [77] The second reason that the request to terminate the order must fail is because it is procedurally unfair. M.T. is a party to theseproceedings. She is not consenting to the termination of the order, but is seeking to have L.T. placed with her. To terminate based onthe consent to adoption signed by the parents only, is to ignore her position.

While addressing a different issue, the Supreme Court ofCanada has affirmed the importance of procedural fairness in child protection matters (See: New Brunswick (Minister of Health andCommunity Services) v. G.(J.) [J.G.] (SCC), [1999] 3 S.C.R. 46.). Request for an Order for Crown Ward [78] As an alternative to the termination of the Order, the Society seeks an order making L.T. a ward of the crown. [79] There was not much dispute about whether there is a continued need for protection. The parents have not addressed the

protection concerns that led to L.T.’s placement with the society. They both continue to struggle with addictions and lack of stability in respect of housing and employment. M.T.’s access to L.T. has been supervised for the past two years and has been for two hours per week.

A move to M.T.’s care would, at a minimum require supervision by the Society to ensure that L.T.’s emotional well being is properly addressed. [ 80 ] Given that neither parent has put forward a plan, the focus then turns to the competing plan of crown wardship and a permanency plan of placement with the foster mother, and the kinship plan of M.T. [ 81 ] The onus is on the Society to prove that it is in L.T.’s best interest that she become a ward of the crown, without access for the purposes of adoption. [ 82 ] It is M.T.’s position that there is a triable issue and that L.T.’s best interests cannot be determined on a

summary motion basis. The onus is on the Society to prove on a balance of probabilities that there is no issue requiring a trial. [ 83 ] As set out above, Rule 16 provides that the court may use its expanded powers to evaluate and weigh evidence and credibility and make a decision on a

summary basis, if the use of those powers “…will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.” (See: Hryniak ) a. Current Foster to Adopt Plan [ 84 ] L.T. has been living in her current foster placement since November 2015; the past two of her five years. The evidence provided by Debra Joslin, the Child Services Worker for the Society, is that L.T. has bonded with the foster mother as her primary caregiver. She refers to her as “mommy” and relies on her for her day to day needs.

M.T. also notes that L.T. refers to her foster mother as ‘mommy’ and C.T. as her ‘tummy mommy’. [ 85 ] Ms Joslin has served as CSW with the Society since April 9, 1990 and has been involved with L.T. since November 4, 2015. Her affidavit was sworn on August 3, 2017. She states that over the 20 months that she was involved, she “observed L.T. to have developed a close and positive emotional connection to the foster parent”.

She reports that L.T. attended counselling with a specialist in attachment based child and family therapy to ensure that L.T.’s emotional needs have been and continue to be supported in the foster home. This counselling has ended as the therapist did not feel that L.T. required ongoing counselling. [ 86 ] Medically, there are some concerns about mild eczema, but otherwise L.T. is healthy and meeting all of her milestones. [ 87 ] There is no evidence to dispute Ms Joslin’s evidence that L.T. is doing well in her placement and that the foster mother is prepared to adopt L.T.

It is clear that both parents support this placement as being in the best interests of their daughter. b. M.T.’s Plan of Care [ 88 ] As indicated above, M.T. separated from R.C. in October 2015. Although the maternal grandparents initially presented a plan of placement with them as a couple, M.T. is the only one who has put forward a plan at this point and she is seeking placement with her alone and not with R.C. M.T.’s plan was assessed by the Society. The Assessment of M.T. was attached to the Affidavit of Stacey Foerster.

Placement with M.T. was not recommended as a result of a number of concerns which included the following: 1. There had been a number of disruptions in M.T.’s life in the year prior to the assessment which included the breakdown of her 26 year marriage and the disruption in housing.

The Society acknowledges that while “some of these disruptions have brought M.T. to a new place in life, when the Society looks to L.T.’s experience of multiple placement disruptions and caregiver changes, the Society has concerns about not enough time passing for M.T. to demonstrate that she can be a long term permanent plan for LT. at this time”. 2. The incident of August 9, 2015 in which M.T. drank tequila while supervising the mother’s access visit with L.T. 3.

Discrepancies between information logged into the Society’s records and information reported which lead to concerns about the Society’s ability to have confidence in the information being provided by M.T.; and 4. The placement disruptions for L.T. over the past four years of her life and the need for permanency at this stage. [ 89 ] The fact that M.T.’s plan was not approved under provincial kinship guidelines does not prevent a court from considering it (See : Children’s Aid Society of Toronto v. A..A . [2014] O.J. No. 3988 (Ont.

C.J.) ). [ 90 ] M.T.’s response to the Society’s concerns is to deny that she was responsible for the chaos in L.T.’s life and that to the extent that she was responsible, the disruptions were a minor variation to an otherwise stable life. She refers to the fact that the Society approved and supported her as a caregiver for L.T. until October 2014. She noted that R.C. was sober on August 9, 2015 and while her decision on that day was not in L.T.’s best interest, it is not reflective of a longstanding issue of abusing alcohol.

It is her position that nothing she has done should affect her ability to put forward a plan for L.T. and that the Society unfairly dismissed her early on in these proceedings. [ 91 ] None of the material facts are disputed, nor, in my view, would a trial involving cross-examinations flush out these issues any more than what is before me. As indicated above, concerns raised in the Assessment coupled with the importance of stabilizing disruptions in L.T.’s life in 2015, justified the Society looking for another placement of L.T. at that time.

M.T. was living in a shelter and needed some time to stabilize her own life and her own affidavit does not dispute the fact that she her relationship with R.C. was not healthy and that she did not have housing until March 2016. [ 92 ] It seems from the evidence provided by M.T. that she has addressed many of the concerns raised by the Society in the Assessment. She has been living separate from R.C. in her own residence since March 2016. She has taken a number of courses to address issues of anger management, parenting and domestic violence. She has continued to work with the Society and has maintained

regular consistent access with L.T. [93] M.T. is very critical of the Society’s actions and the delay in completing the Assessment. She claims that L.T. should havebeen placed with her in October 2014 based on the terms of the temporary care agreement and that its failure to ‘give her the time of day’after the August 9, 2015 incident was unfair. In submissions, Ms Towlson questions how different this case may have looked if L.T.had been placed with M.T. instead of in the foster home.

Even if that is true, my focus and the focus of a trial judge must be on L.T. andwhat is in her best interest. [94] It is important to remember that once justification for state intervention has been established, the child’s well being – not theparents, the family’s or the child care agency’s – must be determinative (See: Syl Apps Secure Treatment Centre v. Bernard De L. 2007SCC 38 , [2007] 3 S.C.R. 83).

While I have no doubt that M.T. loves her granddaughter and would like to care for her, I mustfocus on what is in L.T.’s best interests. [95] With all due respect to M.T., while she may have a strong plan, I do not think that there is a triable issue.

In saying that, Irecognize that the court must be very cautious in child protection matters and that an order for crown ward is the most serious orderwhich should not be made lightly. [96] At the status review stage, the psychological bonding of a child to her foster parents merits equal consideration with a familyplan on a subsection 37(3) assessment. (See: M.(C.) as cited above). In that case, the child could not be returned notwithstanding thefact that the mother had done all that had been required of her.

The psychological bonding to the foster parent required that in the bestinterests of the child, an order for crown ward be made. The same may be said in this case. [97] The length of time and the need for permanency is an important consideration in child protection cases and in the determinationof what is in the child’s best interests. [98] It is undisputed that L.T. is doing well in her current placement and that she has bonded with the foster mother and her‘sibling’. [99] By contrast, we do not have any evidence of a bond with M.T. beyond her role as a grandmother.

M.T.’s own evidence is thatfrom October 2012 until April 2013, C.T. was the primary caregiver for L.T. and that M.T. was just a support for her whenever sheneeded. C.T. and L.T. then moved from M.T.’s home to Monica House until November 2013. There was then a period from November2013 until March 27, 2014 when C.T. and L.T. resided with M.T. M.T.’s evidence is that she provided most of the care for L.T. duringthis period of time.

However, from March 27, 2014 until May 27, 20914, L.T. was placed in care for two months and only returned toM.T.’s home for a short period of time from August 1, 2014 until October 2014 when she was placed in the care of the Society. [100] Since August 2015, M.T. has only exercised supervised access with L.T. for two hours per week. While she has been regularand consistent and the access visits appear to be positive, there is no evidence of a bond beyond that of a grandmother and grandchild.

In fact, C.T. and R.C. were present for many of the access visits and M.T.’s role continued to be one of supporting C.T. [101] M.T. continues to reside in a one bedroom apartment and acknowledges that she would need to move in order to accommodateL.T on a long term basis. It is her evidence that she would be eligible for a two bedroom apartment if L.T. was placed in her care andthat she would not have to wait too long.

The Society does not dispute the timing, but is concerned about the lack of certainty and thenecessity of another move if L.T. were she to be removed from the foster to adopt home and placed with M.T. [102] M.T. also acknowledge that she cannot confirm L.T’s school at this time as placement would depend upon the schools in hercatchment area which would change when housing is approved. Ms Joslin confirms that L.T. began attending JK at a Catholic School inSeptember 2016 and was to return to Senior Kindergarten at the same school in September 2017.

A move to M.T’s home would requirea change in schools. [103] While the placement with M.T. is less intrusive and placement with M.T. with some safeguards could be tried on anexperimental basis to determine if the plan would succeed, due to the age and time in care, there is no time for experiments. [104] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not beused as a strategy to “buy” a parent time to develop an ability to parent. (See: Children’s Aid Society of Toronto v. R.H. (ON CJ), [2000] O.J. No. 5853 (Ont.

C.J.). [105] The court does not have to consider all 13 of the criteria outlined in s. 37(3) of the best interests test, only those that may berelevant to a particular set of circumstances. (See: Children’s Aid Society of Algoma v. K.A.H. (ON CJ), [2003]O.J. No. 3238 (Ont. C.J.)]. The following section 37(3) factors weigh in favor of a permanency plan in the current foster home. 1. L.T.’s physical mental and emotional needs are being met at the foster home. She has been in the same stable placement for twoyears now. The foster mother has recently had a baby.

L.T. was present for the birth and is bonding with her new ‘sibling’. Thisevidence in not in dispute. M.T. raised some concerns about L.T.’s care while she was placed with J.L., but has not raised any concernsabout L.T.’s care since she has been with the current foster mother with the exception of one instance where she claims that the fostermother threw hats at her and hit her in the face during an access visit with L.T. 2. L.T. is meeting all of her developmental milestones and there are no concerns in terms of the foster parent’s ability to assist and carefor L.T. in this regard. 3.

L.T. does have ties with her mother. She continued to exercise access at the Family Centre on a weekly basis until June 2017 whenshe started having access with L.T. through the foster mother. L.T. refers to her as her ‘tummy mummy’. Notwithstanding these ties,neither parent has been able to create a stable secure home for L.T. The need for permanency and security for L.T. weigh in favor of anorder for crown ward, notwithstanding L.T.’s ties to her mother.

4. The continuity of care and risk of disruption resulting from a move is important. L.T.’s first three years were marred by disruptionand changes in caregivers. The past two years have been the longest period of stability and any risk of destabilization would not be inher best interests. There is no confirmation that a move to M.T.’s would create a stable long term placement and it is clear that a movewould mean more changes in housing and schooling. 5. L.T. is reported as being happy in her placement and any risk of emotion harm to the disruption of that bond is a significantconsideration. [106] Justice A.

Pazaratz stated at paragraph 43 of Children’s Aid Society of the Niagara Region v. S.C., (ON SC),[2008] O.J. No. 3969 (Sup. Ct.): “no genuine issue for trial exists where there is no realistic possibility of an outcome other than that assought by the applicant.” [107] In my view, as well intentioned as M.T. is in terms of her love for L.T. and the desire to ensure that L.T. continues to beconnected to her family, permanency in the current placement is in L.T.’s best interest and there is no issue requiring a trial in respect ofdisposition in this case.

Access [108] Access is dealt with in sections 58 and 59 of the CFSA. When there is an order for crown ward, section 59 (2.1) creates apresumption against access. The party seeking access must establish that access would be beneficial and meaningful and that it wouldnot impair the child’s future opportunities for adoption. [109] The meaning of the phrase “beneficial and meaningful” was examined by Justice Quinn in Children’s Aid Society of the NiagaraRegion v. M.J. (ON SC), [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:

(45) What is a “beneficial and meaningful” relationship in clause 59(2) (a)? Using standard dictionary sources, a “beneficial”relationship is one that is “advantageous”. A “meaningful” relationship is one that is significant. Consequently, even if there are somepositive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

(46) I read clause 59(2)(

a) as speaking of an existing relationship between the person seeking access and the child, and not a futurerelationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomingsso as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is notexpected to wait and suffer while his or her mother or father learns how to be a responsible parent.

(47) Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitativeweighing of the benefits to the child of access versus no access, before an order is made. [110] The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examinethe quality of the relationship from the child’s perspective. See: Catholic Children's Aid Society of Hamilton v.

L.S., 2011 ONSC 5850. “Beneficial” requires the trier of fact to decide whether, overall, the relationship between the child and the parent is a benefit for thechild. This is not a comparative analysis: the question is whether, taking everything into account, access between the child and his fatherwould be good for the child. The analysis is made on an objective standard – the court is asked to decide whether an access relationshipwould be good for the child – nothing more than that. Children’s Aid Society of Toronto v.

J.L., 2017 ONSC 2380. “Meaningful” requires the trier of fact to assess the subjective importance of access for the child. This is separate from the question ofwhether the access would be “beneficial”, a question that requires an objective assessment of the advantages of access for the child. Ofcourse there is some overlap between “beneficial” and “meaningful” – one of the “benefits” of access is continuation of a close familybond between parent and child – something that, by definition, would be meaningful to the child would also be a benefit.

Some of thecase law seems to combine the two questions – “beneficial” and “meaningful” – into one analysis – “beneficial and meaningful”. In myrespectful opinion these two analyses ought not to be conflated. Children’s Aid Society of Toronto v. J.L., 2017 ONSC 2380. [111] In considering the beneficial and meaningful portion of the test, Justice Ellen Murray in Catholic Children’s Aid Society v.M.M., [2012] O.J. No. 3240 (OCJ) found that maintaining a connection and knowing your roots is significant in this consideration.

Sheindicated that if a child can continue the connection while also having the security of an adoption placement, it should be considered. [112] In Frontenac Children’s Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also considerthe potential detriment to the child of not making an access order. [113] More is required than just a display of love or affection between parent and child.

This is particularly so where there is evidenceof a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being.Even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantlyadvantageous to the child. An access order cannot be merely a consolation prize for disappointed adults. (See: The Children’s AidSociety of Hamilton v. C.H., 2014 ONSC 3731.) [114] The onus is on the party seeking access.

In this case, neither parent has put forward any response in respect to the motion forsummary judgment and has advised the Society that they support the request for an order that L.T. become a ward of the crown, withoutaccess for the purposes of adoption. Both have signed Openness Agreements with the foster mother. [115] M.T. is the only party seeking access in this case. [116] As indicated above, the notes from the supervised access visits demonstrate that access with M.T. has been regular andconsistent.

There is no evidence to suggest that the visits are not positive and appropriate and in fact, the notes and the society’sevidence suggest the opposite. M.T. has attended every week, with the exception of one visit over the past two years. Until June 2017,

C.T. and R.C. attended with her on most occasions. The observations indicate that L.T. was happy to see M.T. and greeted her withhugs. M.T. often brought a home cooked meal and she and the other adults, being C.T. and R.C., were observed to appropriately followL.T.’s lead in conversations and activities being responsive to her needs. There is reference to cuddles, laughter and good conversation.

It seems that L.T.’s relationship with M.T. is beneficial and meaningful to her as a grandmother. [117] While M.T has noted that her relationship with the foster mother deteriorated after the mediation, there is no evidence to suggestthat she is critical of the foster mother or her relationship with L.T. This is different from when L.T. was placed with J.L.

During thisperiod, the Society received complaints that M.T. was undermining the relationship and placement in J.L.’s home. [118] That said, access has been supervised and I cannot on the evidence before me determine what access should be granted to M.T.such that it be in L.T.’s best interests and not impair adoptability. [119] With respect to whether access would impair the possibility of adoption, this case is unique in some ways. M.T.’s evidence wasthat the mediation in the fall of 2016 and in February 2017 focused on what access would look like post adoption.

The foster motherwas involved in the February 2017 meeting. Openness agreements have been signed with both parents. The evidence is that the fostermother has continued to provide access to the mother and has recently reached out to the paternal aunt and arranged access visits betweenL.T. and J.L. and her children. This conduct suggests that an order for access with M.T would not impair the likelihood of L.T. beingadopted. [120] While the onus is on M.T., the Society will often provide some information if there are concerns that the adoption would beimpaired if access were to be granted.

There is no such evidence presented by the Society in this case. [121] That being said, as indicated above, there is insufficient evidence to determine the frequency and duration of access that wouldbe in L.T.’s best interests. Such access needs to be specifically addressed in respect of the second prong being whether the access wouldimpair adoption and should be considered in the context of a focused hearing on the issue of access. M.T.’s Interim Motion for Access [122] The test for varying a temporary access order is set out in s. 58 (1) of the Act.

There must be a comparison of the currentsituation to the situation at the time of the original order. The change does not necessarily have to be material but there needs to be achange in circumstances based on the best interests of the child. Children’s Aid Society of Algoma v. C.P., 2013 ONCJ 740 . [123] In light of my decision on the

summary judgment motion, and in particular, the determination on the issue of disposition, access,if granted will ordinarily, be reduced once a child is made a crown ward. Justice Philip A. Clay explained the reason for this in paragraph90 of The Children's Aid Society of the Region of Peel v. A.R., 2013 ONCJ 347 as follows: [90] The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will begranted will be significantly less than the current access.

The granting of a Crown Ward order means the end of any effort to return thechild to the mother on reintegration and to assess the nature and quality of the parenting ability and the relationship between parent andchild. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for thechild. [124] Consequently, I am not prepared to expand the access pending the mini-hearing on the issue of access.

That said, I questionwhether access needs to occur at the Family Center particularly in light of the fact that C.T. has made alternate arrangements for accessand is no longer exercising access with M.T. Conclusion [125] The Society’s

summary judgment motion is granted in part. L.T. will be made a ward of the crown. [126] If the parties are unable to agree on the issue of access to M.T., there will be a focused hearing to determine the issue of access. [127] M.T.’s interim motion to expand access is dismissed . Released: November 14, 2017 Signed: Justice B.C. Oldham