Children’s Aid Society of Toronto v. R.H.E., 2011 ONCJ 650

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. Toronto Registry No. C49383/09 DATE: 17·V·2011 CITATION: Children’s Aid Society of Toronto v. R.H.E. , 2011 ONCJ 650 ONTARIO COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, c. C-11 AND IN THE MATTER OF T.E2.

AND T.E1., CHILDREN IN NEED OF PROTECTION BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — R.H.E. (Mother), Respondent Before Justice Marvin A. Zuker Heard on 28 April 2011 Reasons for Judgment Released on 17 May 2011 Mae-Tuin Seto ............................................................................................ for the applicant society Corinne E. Long ................................................................................................. for the respondent

[ 1 ] JUSTICE M.A. Zuker:— This is a

summary judgment motion dated March 30, 2011, wherein the Children’s Aid Society of Toronto seeks a finding that there is no genuine issue for trial, and an order that the children, T.E1. (born December […], 2007) and T.E2. (born December […], 2007), be made wards of the Crown and placed in the care and custody of the Children’s Aid Society of Toronto. [ 2 ] The Society relies, in part, on the amended Statement of Agreed Facts (Child Protection) filed March 26, 2010. In part,

a) On October 7, 2008, Dr. Dov Soberman (Emergency Department, Scarborough Hospital) informed the Society that there had been a violent confrontation the previous evening between Ms. R.H.E. and her then-boyfriend, Mr. J.E. Ms. R.H.E.’s daughters were reportedly present during the conflict and Ms. R.H.E. had been charged.

b) The police subsequently informed the Society that there was prior police involvement with Ms. R.H.E. and Mr. J.E., with three previous incidents of domestic violence on record with Toronto Police. Ms. R.H.E. was charged with Assault, Assault with a Weapon and Weapons Dangerous. Ms. R.H.E. advises the Society that all charges were subsequently withdrawn at the request of the Crown.

c) The referral allegations of risk of physical and emotional harm from adult conflict were verified by the Society and the file was transferred from intake to Family Service for ongoing services.

d) The children were not apprehended and the matter was not brought before this court. [ 3 ] Between October 2008 and November 2009, the Society were involved with Ms. R.H.E. on a voluntary basis, to monitor her family’s situation and provide ongoing service and support as necessary. Ms. Patel has been the Family Service Worker continuously since December of 2008 up to the present time. Her affidavit summarizes her involvement throughout. Ms. Patel’s affidavit coupled with the affidavits of the Children’s Service worker Ms. Ashton, as well as the Therapeutic Assess Coordinator, Ms.

Deacon, all filed, according to the Society, show a pattern of four significant areas of concerns that are still concerns for the Society and have been identified since late 2008 and continue into 2011. [ 4 ] During this period, the Family Service Worker noted that Ms. R.H.E. had a pattern of changing topics frequently and her presentation at times gave rise to a concern as to whether she might be under the influence of external stimulants such as drugs. The Family Service Worker did not ask Ms. R.H.E. to undergo any drug testing or treatment. Ms.

R.H.E. submits that, between October of 2008 and November of 2009, she worked voluntarily with the Children’s Aid Society and that there was no protection application brought and the children were never apprehended during that period of time. [ 5 ] The Society’s worker met with Ms. R.H.E. in her home, monitoring the children’s progress, from December 2008 until November 9, 2009.

She observed what she described as erratic, somewhat vibrant behaviour that was difficult to distinguish as to whether it was related to a mental issue or was perhaps just a personality trait. [ 6 ] On November 9, 2009, during an unannounced visit, the Family Service Worker had heightened concerns regarding Ms. R.H.E.’s presentation and stability. Her language and manner were erratic and unpredictable. Ms.

R.H.E. described drug (marijuana) use, provided details of allegedly being physically and sexually assaulted by a drug dealer and his friend, and repeatedly spoke of seeing and hearing God and the Devil. [ 7 ] Based on the concerns raised by Ms. R.H.E.’s behaviour, a decision was made by the Society to apprehend the children on November 9, 2009. They were placed in the Society’s care. [ 8 ] On November 9, 2009, Ms. R.H.E. was taken by police to Scarborough Hospital, “formed” under the Mental Health Act and admitted for psychiatric assessment. On November 11, 2009, a hospital worker informed the Society that Ms.

R.H.E. had been incoherent and unmanageable, and that both physical and chemical restraints had to be used on her. A hospital social worker expressed concerns to the Society about Ms. R.H.E.’s ability to care for her children. Ms. R.H.E. advised the Society that she has no memory of these events. [ 9 ] Ms. R.H.E. suffered a significant deterioration in her mental health in November 2009, during which she presented as unstable, delusional and volatile, was hospitalized involuntarily for psychiatric assessment, and thus was unable to provide safe and appropriate care for her children.

Although she was discharged from hospital, her mental health issues remained largely unresolved. She did not demonstrate stability or improvement to suggest that she is as yet in a position to resume care of the children. “Ms. R.H.E., the parent of the children, T.E1. and T.E2., is unable to care for the children and the children are brought before the court with the person’s consent and, where the children are twelve years of age or older, with the children’s consent, to be dealt with under

Part III of the Child and Family Services Act [clause 37(2)(l)]….” [ 10 ] The reports the Society received from medical professionals are referred to in Ms. Patel’s affidavit and detailed further in the information set out at some of the exhibits. Exhibit B is a

summary of the time of her discharge. Exhibit C is the subsequent assessment of Ms. R.H.E. and refers to some of her presentations in the hospital. The reports, together with information that Ms. Patel received, indicated that Ms. R.H.E. presented as extremely aggressive and erratic in the hospital, to the point that, from the outset, physical restraints were used. These were unsuccessful and the medical staff were required to use chemical restraints. Medication was prescribed in an attempt to stabilize Ms. R.H.E. and by the time of her discharge, she appeared stable enough to be discharged. [ 11 ] After Ms.

R.H.E. was discharged from the hospital, her next access visit was scheduled to occur on December 7, 2009. She had requested this visit to celebrate the children’s birthday, on December 6. Ms. R.H.E. did not show up for this visit and, approximately one hour after the visit start time, she called and informed the Family Service Worker that she had gone to Windsor and that she would reschedule the visit.

[ 12 ] On December 16, 2009, Ms. R.H.E. attended for her second access visit with the children. During the visit, the Family Service Worker heard her saying to her girls that God was “coming soon to take them up, very soon to take them up to heaven.” [ 13 ] She continued to present to the Society as mentally unwell. The Society had no information to indicate that she was receiving psychiatric treatment or taking prescribed medication. [ 14 ] Between mid and late December 2009, Ms. R.H.E. left several messages for the worker. She presented as being hostile.

She requested that visits occur after 6:00 p.m. on weekdays. The worker advised her that the visits would have to occur during Society business hours, from 9:00 a.m. to 5:00 p.m. [ 15 ] Ms. R.H.E. continued to struggle with mental health issues which impacted on her ability to provide safe and appropriate care for the children. Her treatment, diagnosis and prognosis for improvement and stabilization were unclear. No viable alternative placement options in the community were identified by the Society. The finding allowed the children to have a stable placement, while providing Ms.

R.H.E. with further time and opportunity to seek out and/or follow through with treatment recommendations. [ 16 ] After Ms. R.H.E.’s discharge from the hospital, there were continuing concerns regarding her failure to follow through with recommendations. She had a family doctor, Dr. Pham, who recommended that she see both a psychiatrist, Dr. Jones. Dr. Pham referred her to CAMH for an assessment by Dr. Daniel Greben. Ms. R.H.E. did attend at Dr. Greben’s for an assessment and that report is at Exhibit C. Dr. Greben’s report confirmed the diagnosis of Bipolar disorder. “Ms.

R.H.E. had no openness to considering the diagnosis,” that being the diagnosis of Bipolar disorder, “nor any form of pharmacologic treatment for it. She so adamantly disagreed with the diagnosis and flatly declined any interest in such a treatment. She became visibly angry in hearing this opinion.” [ 17 ] Dr.

Greben goes on to say in the last page, “At the present juncture, she appears to have no insight into the idea that she could have a significant mood illness of this kind for which the core treatment is pharmacologic in nature.” [ 18 ] And he concludes by saying, “Supportive psychotherapeutic work would remain relevant to her so long as she remains clinically stable but should she deteriorate acutely it may be expected to prove beyond what can be handled with this form of supportive psychotherapeutic treatment.” [ 19 ] Between January 2009 and October 2009, Ms.

Patel, the child protection worker, maintained regular contact with Ms. R.H.E. and met with the children during home visits. See

Summary Judgment Brief, filed as Exhibit Number 1, Tab 4.

a) In February 2009, Ms. R.H.E. reported that Mr. J.E. was no longer coming to her home and that she was actually dating two other men.

b) On June 17, 2009, Ms. R.H.E. informed her that Mr. J.E. had showed up at her home in the middle of the night and that she had found him in her room when she awoke and that this had really scared her.

c) In July 2009, Ms. R.H.E. informed her that Mr. J.E. had attended her home again and that she had called “building security.”

d) On October 14, 2009, during a home visit, Ms. R.H.E. informed her that she had recently been assaulted and beaten up by two men who live in her building. [ 20 ] On November 9, 2009, Ms. Patel attended Ms. R.H.E.’s home on an unannounced visit, accompanied by Family Service Worker Tessa Feudale. The following occurred: a) “Ms. R.H.E. opened the door, appeared groggy, as though she had been sleeping, then closed the door on us and locked it. She then re-opened the door a few minutes later and invited us to come in.

I observed that the home was messier than it usually was during unannounced visits. b) “Early in this meeting, I asked Ms. R.H.E. about drug use, as I initially suspected she was high. Ms. R.H.E. stated that she no longer uses drugs, that she used to do so, that drugs are “like water” for her and have no impact on her whatsoever. When I asked her what drugs she was referring to, she said “weed” (marijuana). c) “Ms.

R.H.E. recounted a recent incident in which her drug dealer, Jungle, who resides in the building, had physically and sexually assaulted her with his friend, a man called “Simple.” She said that she had gone to Jungle’s apartment to get five dollars’ worth of weed, that he and Simple were taking too long, and that they then took her to the stairwell and started assaulting her. d) “Ms. R.H.E. added that both Jungle and Simple often came to her home when the children were present, and she would sometimes do their hair for them in order to get some money to buy diapers. e) “Ms.

R.H.E. told us not to be scared, but that she had seen God. She said she saw God in a dream at Mount Zion and that he speaks to her. She then said that, when she was at Agincourt Mall, she had seen the Devil and cussed him out. She proceeded to re-enact the scene for us, in the course of which she almost fell over backwards. f) “Ms. R.H.E. said that she had gone to church yesterday and fell hard in church because God was there. She said this was all written in the Bible and that God had told her she would see the Devil at Agincourt Mall.” [ 21 ] Ms. Feudale and Ms.

Patel attended at the children’s daycare, which is located in the family’s apartment building. “When we arrived, we found Ms. R.H.E. there.”

[ 22 ] The following occurred during this meeting with Ms. R.H.E. in the daycare:

a) Ms. R.H.E. stated that her daughters also see God. One of her daughters is good and God speaks through her, but the other gives her a hard time and the Devil speaks through her.

b) Ms. R.H.E. said God told her this and she was going to cuss out the Devil. As before, she went through the apparent motions of cussing out the Devil, again almost falling backwards.

c) Ms. R.H.E. said one of her daughters touched the palm of her right hand with her finger and she was trying to put a nail through her palm just like God.

d) Ms. R.H.E. stated that she did not want the children to be placed in the Society’s care, because her children were all that she has. She appeared to understand that the girls were being apprehended and I advised her that the Society would be commencing a court application for the children to be placed in the Society’s care. [ 23 ] The following strengths were noted regarding visits:

a) Ms. R.H.E. has attended regularly for access and has missed very few visits.

b) Ms. R.H.E. attends visits with homemade meals for T1.. and T2.. and it is apparent that she has spent time and energy in preparing the food.

c) Ms. R.H.E. is able to have fun with her children, as demonstrated by her playing with them and engaging with them in a playful manner.

d) Ms. R.H.E. has expressed to her children that she loves them and misses them and shows great affection towards them. She appears to have hopes for the girls.

e) Ms. R.H.E. has made attempts to guide the children in a positive manner. She encourages them to be gentle and kind with one another and has been observed trying to nurture the relationship between the girls. [ 24 ] During 2010, Ms. Patel continued to have concerns regarding the stability of Ms. R.H.E.’s mental health and home environment. [ 25 ] Ms. Patel, Ms. Ashton, Ms. Deacon and other workers involved in supervising visits, made note of numerous occasions during access visits or in their interactions directly with Ms.

R.H.E., where there were either strange presentations of behaviour or strange utterances. “On repeated occasions, I have received angry voicemail messages from Ms. R.H.E., swearing at me and blaming me for the problems in her life. Ms. R.H.E. has hung up on me in anger, and has made allegations of harm against T1.. and T2.. She has demonstrated inconsistent and bizarre behaviours over the months, told the children they will be home soon or made comments about things they will do when they come home….” [ 26 ] As set out, Ms. R.H.E. remained in hospital until December 3, 2009. She was diagnosed by psychiatrist Dr.

Regina Liu as having Bipolar Affective Disorder. [ 27 ] On March 26, 2010, on consent, the children were found to be in need of protection pursuant to subsection 37(2)(

l) of the Child and Family Services Act and made Society wards for a period of four months. [ 28 ] On March 26, 2010, the Honourable Mr. Justice Sherr further ruled that there is no male “parent” for the children, T.E1. and T.E2., within the meaning of subsection 37(1) of the Child and Family Services Act . [ 29 ] Ms. R.H.E. did not comply with Society and hospital recommendations to attend for treatment with a psychiatrist. She reported in mid-June 2010 that she had been seeing Dr. Art Beairsto for psychotherapy. Dr.

Beairsto is not a psychiatrist but a general practitioner. [ 30 ] Between late summer 2010 and the fall of 2010, Ms. R.H.E. attended an anger management program and parenting programs. She also participated in the Society’s Therapeutic Access Program. [ 31 ] On September 1, 2010, the Society commenced an Amended Status Review Application, recommending an order of Crown wardship for the children. The Society is not seeking nor supporting an order of access between the children and Ms. R.H.E. It is of the position that the children are adoptable. [ 32 ] The Society submits that on January 2, 2011, Ms.

R.H.E. experienced further deterioration in her mental health, during which she presented as distraught and spaced out, threw household items and furniture over her balcony, and was again taken by police and involuntarily hospitalized for several weeks. Dr. Liu reconfirmed a diagnosis of Bipolar Disorder and indicated a possible diagnosis of Personality Disorder. [ 33 ] The Society submits that, over the course of its involvement with Ms. R.H.E., she made some unusual identifications as to the biological father of the children, notwithstanding there was a finding that there is no male parent. [ 34 ] Ms.

R.H.E. has identified a male as Pew J Jerome Jeremiah at one point and, more recently, indicated that the biological father was Jay-Z. She also indicated that she had a boyfriend, Drake, the Canadian singer. [ 35 ] T1.. and T2.. have been in the Society’s continuous care since November 9, 2009.

[ 36 ] “On September 8, 2010, during a Plan of Care meeting, Ms. R.H.E. reported in part the following: i. “She wished there were a Children’s Aid in Africa because her step-mother used to abuse her and beat her, and she had scars all over her body, including a knife injury on her upper left arm. ii. “She was tied to the bed in her underwear and beaten. She also got expelled from high school because the girls were jealous of her, as she was hanging out with the cute guys after only having been there for a few weeks. iii. “When the other girls started calling her names, she beat up three girls and also a teacher.

She would beat anybody up and she did not care who they were. When she is angry, she can do anything. iv. “She was really angry at me for ruining her life and taking the girls. She reached out to me and told me about Jungle and Simple but, instead of helping her, I took her children away.” See

Summary Judgment Brief, Tab 4. [ 37 ] On October 12, 2010, Ms. R.H.E. commenced attendance at the Society’s Therapeutic Access Program (hereinafter referred to as “TAP”). The Society submits that TAP visits did not go well. Concerns were noted regarding Ms. R.H.E.’s parenting ability, her angry and volatile presentation, and unwillingness and/or inability to follow through with directions. The concerns are detailed in the TAP

summary report prepared by TAP Coordinator Shannon Deacon and included as an exhibit to Ms. Deacon’s affidavit sworn March 29, 2011. [ 38 ] “Between the time of Ms. R.H.E.’s discharge from hospital in December 2009 and throughout the course of 2010, I [Kalpa Patel] had had concerns regarding Ms. R.H.E.’s compliance with treatment recommendations: a) “I urged Ms. R.H.E. to continue with treatment for her mental health. She maintained that she did not feel comfortable continuing to see the hospital doctors.

I recommended that she see her family doctor and ask for a referral to see a new psychiatrist. b) “During a Branch Planning Conference on August 19, 2010, Ms. R.H.E. revealed that, while hospitalized, she had not taken any of her prescribed medication but was instead “cheeking” her medication. She described that, instead of swallowing the pills, she would keep them in her cheek, later dispose of them in an empty Tim Horton’s coffee cup and, by the end of her hospitalization, the coffee cup was filled to the top.

She said that any changes in her observed by the hospital staff were because she figured out what she wanted to say and do. [ 39 ] “On January 6, 2010, Ms. R.H.E. attended an appointment with her family doctor, Dr. Pham. I was subsequently advised by Dr. Pham that he had referred Ms. R.H.E. to see a psychiatrist, Dr. Victoria Jones, as well as to attend for an assessment at the Centre for Addiction and Mental Health (hereinafter referred to as “CAMH”). [ 40 ] “On May 6, 2010, Ms. R.H.E. attended for a psychiatric assessment by Dr. Daniel Greben at CAMH. Dr. Greben reported that Ms.

R.H.E. had suffered an acute psychotic episode, that the most likely underlying diagnosis was Bipolar Disorder, and that the core treatment would be pharmacologic in nature. He noted however that Ms. R.H.E. ‘adamantly disagreed with this diagnosis, and flatly declined any interest in such a treatment’ and that she ‘became visibly angry in hearing this opinion.’ Attached hereto as Exhibit “C” is a true copy of Dr. Greben’s assessment report. [ 41 ] “On June 23, 2010, I learned that Ms. R.H.E. had started working with Dr. Art Beairsto in April 2010. Dr.

Beairsto is self-described as a General Practitioner and Psychotherapist. He reports that Ms. R.H.E. was referred to him by a mutual friend. [ 42 ] “On July 21, 2010, Ms. R.H.E. did not attend for her scheduled appointment with Dr. Jones. Attached hereto as Exhibit “D” is a true copy of a fax from Dr. Jones to Dr. Pham confirming this failure to show. [ 43 ] “Ms. R.H.E. subsequently told me [Kalpa Patel] that she could not afford to pay for Dr. Jones’s services. However, when I called Dr. Jones on October 20, 2010, Dr.

Jones advised me that there is no fee for services, which are fully covered by OHIP, and that the patient would have been aware of this. She added that her secretary usually calls to confirm all appointments a few times, and that the appointments are scheduled directly with the patient. [ 44 ] “Between June and December 2010, I repeatedly advised Ms. R.H.E. that, while I supported her continued counselling with Dr.

Beairsto, I did not believe he was in the best position to provide her with the treatment she requires, and that her mental health needs would likely be better served by meeting with a psychiatrist, in addition to Dr. Beairsto. Ms. R.H.E. did not take steps to follow through with this recommendation for many months. [ 45 ] “On March 22, 2011, she advised me that she had an appointment with a psychiatrist named Dr. Su on April 27, 2011. [ 46 ] “On October 5, 2010, Ms. R.H.E. attended at Motherisk for hair-strand drug testing.

While I have recently received the outcome of the majority of the tests (see exhibit) , which were all Below Limit of Detection, the results for cannabinoids showed regular use throughout a testing period of six months. [ 47 ] “My supervisor, Pam Pasquill, subsequently spoke with Mr. Joey Gareri, Manager of Clinical Pharmacology and Toxicology at the Motherisk Laboratory, Hospital for Sick Children, on January 11, 2011, to inquire about the impact of taking either Lithium or Seroquel (the medication which the Society understood Ms. R.H.E. was then taking) and using marijuana. Mr.

Gareri advised as follows: a) “The use of any psychiatric medication and cannabis is not in and of itself automatically a direct risk. b) “The use of cannabis has been identified as a risk factor for psychosis in a person in a manic phase, that is, a person in a manic phase could progress into experiencing a psychotic episode. However, there is no evidence that this would happen to everyone in every case. Each patient is unique.

c) “If a person is stabilized and managing her psychotic disorder, then the cannabis use should be treated in the same manner as would be the case with any other client. d) “If, however, a person’s mental health disorder is not well managed and she is using cannabis, this could be a concern….” [ 48 ] On January 17, 2011, Ms. Patel attended at a scheduled court appearance in these proceedings. Ms. R.H.E. was not in attendance. Ms. R.H.E. had been admitted under a Form 3 ( Mental Health Act ) into the psychiatric ward of Markham-Stouffville Hospital. [ 49 ] On January 17, 2011, Ms.

Patel spoke with Hazel Bailey, a woman whom Ms. R.H.E. refers to as “Mom” and whom she describes as being a support. Ms. Bailey resides in the same building as Ms. R.H.E. She informed that Ms. R.H.E. had been hospitalized on January 2, 2011, and she provided the following details: a) “On January 2, 2011, Ms. R.H.E. attended at her home. She observed Ms. R.H.E. as being distraught, spaced out and clutching a teddy bear. b) “Ms. R.H.E. cried for 3 or 4 hours straight, rocking back and forth. They walked together for a short time, after which Ms. R.H.E. told her that ‘the spirit’ said she should go upstairs. Ms.

R.H.E. then left. c) “Later that day, a tenant representative informed her that the police had been called, as Ms. R.H.E. had thrown several items over her 9 th -floor balcony, including a computer, a book rack, CDs and DVDs. d) “She went to see Ms. R.H.E., who still seemed spaced out and denied that the items were hers. She saw the items for herself and verified that they were in fact Ms. R.H.E.’s belongings. She described Ms. R.H.E. to have been spaced out. e) “The following day, she learned that Ms. R.H.E. had been taken away by the police. She called the police and learned that Ms.

R.H.E. was taken to Scarborough Grace Hospital. However, due to insufficient beds, she was transferred to Markham-Stouffville hospital. f) “While at Markham-Stouffville hospital, Ms. R.H.E. allegedly physically assaulted the attending psychiatrist and had to be placed in a lock-down unit. She was subsequently transferred back to Scarborough Grace Hospital. g) “When the children were apprehended in November 2009, a neighbour had informed her that Ms. R.H.E. was leaving the girls home alone, as well as alone in the bathtub. h) “Ms. R.H.E. had recently painted a red heart and cross on her door.

Also, every door inside her unit was painted red. She was very worried about Ms. R.H.E….” [ 50 ] In her responding affidavit, Ms. R.H.E. denies these reports and indicates there was a male in her apartment who did this. The Society submits that it was her neighbour who reported that Ms. R.H.E. was crying for three to four hours in her apartment and then decided to leave abruptly. The neighbour reported and the worker also saw with her own eyes that the household door of Ms.

R.H.E. had been painted red with a red heart, and that interior doors of the apartment were also painted red. [ 51 ] On January 20, 2011, a nurse at Markham-Stouffville Hospital informed Ms. Patel that Ms. R.H.E. had been treated in their psychiatric unit for symptoms presenting as psychotic, including delusions about God. She advised that Ms. R.H.E. initially was cheeking her medication, but later seemed to be taking it. [ 52 ] Ms. R.H.E. submits that she had a negative experience at the hospital as she details and describes that in her affidavit.

When she was given the option at the conclusion of her stay to continue to work with Dr. Lu, she states she did not feel that there was a relationship of trust there. She states she did not feel that she could have a doctor-patient relationship with those whom she felt dealt with her negatively throughout her stay. Her discharge

summary is attached to Ms. Patel’s affidavit at Exhibit B, a Diagnosis of Bipolar Affective Disorder. It states she was admitted to the hospital with a manic episode with psychotic features. She was prescribed medication upon her discharge and was recommended follow-up treatment. [ 53 ] According to Ms. R.H.E., Dr. Lu indicates in his letter that information provided by Ms. R.H.E. to him resulted in Dr. Lu’s concluding that, as a youth, Ms. R.H.E. had not been the victim of abuse and had been apprehended and been in the care of the Children’s Aid Society. That was not true, according to her.

The doctor’s conclusion is that Ms. R.H.E. provided facts that were not true and now we have evidence from the Society itself that says that is precisely what happened, that is precisely true. She was reluctant to return to Dr. Lu, a doctor who concluded certain facts that are true were not true. [ 54 ] On February 3, 2011, Ms. Patel spoke with Dr. Liu, the psychiatrist from Scarborough Grace Hospital, who informed her as follows: a) “Ms. R.H.E. had been discharged from Scarborough Grace Hospital earlier that week. b) “York Regional police had attended and arrested Ms.

R.H.E., due to the outstanding charges relating to the assault incident in January 2011, at Markham-Stouffville Hospital. c) “Ms. R.H.E. had been switched to injectable medication and would require this every two weeks, and that she had been referred to outpatient services. d) “The previous diagnosis of Bipolar Disorder continued and she was also questioning a diagnosis of Personality Disorder, as Ms. R.H.E. presents with underlying anger at times, and a childlike personality at other times.

e) “Ms. R.H.E. was demonstrating sexually provocative behaviour. For example, she was walking around with her robe open and not wearing any underwear, she was spreading her legs, and she asking male patients to rub her back. These behaviours did, however, decline over time….” [ 55 ] Ms. R.H.E. is alleged to have assaulted a treating doctor, Dr. Lee, while in hospital. Her present bail conditions are appended to her responding affidavit and include stringent terms prohibiting her from contacting or being close to their doctor, requiring her to maintain a curfew of 7 p.m. to 6 a.m., and requiring her to report to police once a week. [ 56 ] Tab 5 of the

Summary Judgment Brief is an affidavit of Tammy Ashton, a child protection worker employed by the Society. She was assigned to monitor the progress of the children, T.E1. and T.E2., and become involved in supervising access visits between the children and their mother. [ 57 ] The Society submits that Ms. R.H.E. was erratic and odd in her presentation during visits, whether in the course of discussion with workers or with her children. [ 58 ] Ms. Patel and Ms. Ashton repeatedly observed struggles Ms.

R.H.E. had in implementing time-outs or discipline techniques with her children. [ 59 ] Between February 8, 2010 and December 24, 2010, Ms. Ashton worked with the R.H.E. family. [ 60 ] Ms. R.H.E. was able to demonstrate affection toward her daughters, giving them hugs and kisses throughout visits. [ 61 ] On a number of occasions, Ms. R.H.E. told her daughters that she loved them, was proud of them and missed them greatly. [ 62 ] Ms. R.H.E. attempted to reinforce manners in her children whenever possible. [ 63 ] In response to her daughters occasionally becoming upset at the end of a visit, Ms.

R.H.E. at times was able to follow direction in order to make the transition back to the foster home easier. [ 64 ] Ms. Ashton expressed concerns that the lack of consistency and ongoing uncertainty demonstrated by Ms. R.H.E. contributed to the children’s negative behaviour and their reactions to their mother as well as their interactions with other adults. [ 65 ] The children have resided in the same foster home placement since their admission November 9, 2009. [ 66 ] Although Ms. R.H.E. clearly loves her children, Ms.

Ashton expressed concerns regarding her ongoing mental health struggles, her difficulty in understanding the children’s abilities and needs according to their developmental levels, and her own ability to respond to their cues in a manner that did not cause them confusion and uncertainty. [ 67 ] The children have developed a bond with their foster family.

Although the foster parents are not in a position to adopt them, the attachment that they have developed can, according to the Society, transfer successfully to an adoptive parent/couple. [ 68 ] It is the Society’s submission that it is in the children’s best interest to be placed in an adoptive home as soon as possible, so that they might begin to form an attachment to an adoptive family while still young. [ 69 ] The children are healthy and generally well-adjusted. They have had a good attachment experience.

Given these factors and their young age, they present as good candidates for a successful adoption and secure family life. At the Branch Conference of August 19, 2010, Sunita Bensal, a worker from the Society’s Adoption Department, supported the decision for the recommendation of an order of Crown wardship for the purpose of adoption. [ 70 ] It is submitted that T1.. and T2.. would benefit from being adopted into a family who could nurture and love them, and ensure that their developmental, emotional and physical needs continue to be fully and consistently met.

The benefits of being part of an adoptive family outweigh the instability of a temporary placement such as a long-term foster care arrangement. [ 71 ] As noted, Shannon Deacon is a child protection worker employed by the Children’s Aid Society of Toronto and the Coordinator of the Society’s Therapeutic Access Program (“TAP”). [ 72 ] Her affidavit sworn March 29, 2011, Tab 6 of Exhibit One, states in part that, on July 21, 2010, she received a referral to the TAP from Kalpa Patel, the Family Service Worker assigned to work with the mother, Ms.

R.H.E., and her children, T1.. and T2.. (twin girls born December […], 2007). [ 73 ] Ms. R.H.E. was offered 16 hours of teaching and assessment time. According to Ms. Deacon, she ultimately attended at TAP for only three visits. Due to concerns regarding her behaviour and displays of anger during the program, including in front of the children, the program was terminated on November 9, 2010. [ 74 ] On November 20, 2010, Ms. Deacon completed a TAP

Summary, detailing the assessment process and outcome. Attached to her affidavit and marked as Exhibit “B” is a true copy of said TAP

Summary dated November 30, 2010. [ 75 ] Ms. R.H.E.’s affidavit, filed April 28, 2011, the same day as this Motion, is in reply to the Affidavit of Kalpa Patel sworn March 30, 2011, the Affidavit of Tammy Ashton sworn March 29, 2011, and the Affidavit of Shannon Deacon sworn March 29, 2011 (see Exhibit 2). [ 76 ] Ms. R.H.E. is 26 years old. She was born in Sudan and lived there with her stepmother and younger sisters until 1998. She states that she was abused at the hands of her stepmother. In 1998, they moved to Egypt. On March 31, 1999, they came to Canada and lived in Winnipeg.

[ 77 ] She was apprehended by the Winnipeg Children’s Aid Society as a child because of the abuse she suffered. At age 16, she was granted independent living status and moved out on her own. She is single. [ 78 ] Ms. R.H.E. states that she does not have a criminal record. She is a practising Christian. She attends services at the Victory Sanctuary Praise church in Scarborough. The children were christened at this church. She attends services there. [ 79 ] Ms. R.H.E. states that: • “I was the victim of a domestically violent and high conflict relationship with Mr. J.E. I have known Mr. J.E. since 2004.

I had a sexual relationship with Mr. J.E. starting in the summer of 2008 but we did not live together. In October 2008, Mr. J.E. was arrested and charged with violent crimes against me. Mr. J.E. went to jail and, eventually, he entered a guilty plea to the charges. After this incident, I ended my relationship with Mr.

J.E. and I have not seen him since he went to jail. • “Although I was charged with assault, assault with a weapon and weapons dangerous, the charges were withdrawn against me. “I worked with the Society on a voluntary basis until the children were apprehended….” [ 80 ] On June 8, 2010, pursuant to a Status Review Application, the Society sought a further six-month Society wardship order. [ 81 ] On September 1, 2010, further to an amended Status Review Application, the Society sought Crown wardship. [ 82 ] Ms. R.H.E. agrees she was admitted to Scarborough Grace Hospital.

She was supposed to be there for three days, but remained until December 3, 2009, when she was discharged. [ 83 ] “… about what had happened to my children and the apprehension, the hospital staff just wanted to give me medication to make me sleep. When I refused to take the medication or questioned the side effects of the medication, I was forcibly given the medication against my will. I do not remember every day of the early part of my stay at the hospital because of the drugs I was given …. [ 84 ] “Instead, I looked for another psychiatrist or doctor who could help me.

I sought out treatment at CAMH and obtained a referral from my family doctor, Dr. Pham. I saw a doctor at CAMH once, but no follow-up appointment was made and no information was forwarded to Dr. Pham. I also spoke to Dr. Jones, the referral from Dr. Pham, but she was going to charge me for each session and I could not afford it. I did not attend any appointment with Dr. Jones because of the cost….” [ 85 ] She was referred to Dr. Art Beairsto, a psychotherapist, by a mutual friend. Dr. Beairsto saw her promptly. [ 86 ] Ms. R.H.E. states that she has met with Dr.

Beairsto regularly since her first session on April 14, 2010. She has developed a relationship of trust with him. [ 87 ] On January 2, 2011, she was admitted to the Markham-Stouffville Hospital on an involuntary basis under the Mental Health Act. She was taken to the hospital by police following allegations that she threw her possessions off her balcony. She denies she threw anything off her balcony. She submits that a male friend was with her in her apartment that day and he threw a stereo and a table lamp off the balcony. She tried to stop him but he would not listen. He was yelling and angry.

To her knowledge, no other property was thrown off the balcony. [ 88 ] Ms. R.H.E. submits that a male former friend was in the apartment with her, that he became angry, that he threw a stereo and a table lamp off the balcony, and that she attempted to stop him from doing that. There was yelling and further anger from this male and she left the apartment to go to a friend who has been referred to.

She spent a couple of hours at the friend’s house and when she returns, this gentlemen is gone from her apartment and the apartment door is not locked. [ 89 ] She is no longer friends with the male in question and he will not be permitted again to attend at her apartment. [ 90 ] After approximately two weeks at Markham-Stouffville, she was moved to Scarborough Grace Hospital. She was discharged from Scarborough Grace Hospital in late January or early February 2011. [ 91 ] Her current prescribed medication appears to be an injectable medication required twice, once every two weeks.

Her prognosis remains uncertain. [ 92 ] Dr. Beairsto assists her with her treatment and medication was prescribed by Dr. Lee, which is given by injection every two weeks. She takes Seroquel, 300 mg in tablet form, daily. [ 93 ] She has an appointment with Dr. Su, a psychiatrist, on May 18, 2011, rescheduled from April 27, 2011. [ 94 ] In early August 2010, she enrolled herself in an anger management program at Scarborough Hospital, which started September 20, 2010.

She completed the program on November 29, 2010 (see Exhibit “A,” a copy of her Certificate of Completion, dated November 29, 2010). [ 95 ] In June or July 2010, the Society suggested that she participate in parenting courses. [ 96 ] “I have attended three programs with the YWCA.

I completed the ‘Kids Have Stress Too!,’ ‘1, 2, 3, 4 Parents!’ and ‘Systematic Training for Effective Parenting (STEP)’ parenting programs, on August 14, September 4 and October 23, 2010 respectively (see Exhibit “B,” a copy of my three Certificates of Completion, dated August 14, September 4 and October 23, 2010)….” Mother’s affidavit is filed as Exhibit Number 2. [ 97 ] Ms. R.H.E. submits that she has used marijuana, but is currently not using drugs of any kind.

[ 98 ] On August 25, 2010, the Society requested that she undergo a hair-strand drug test. She agreed to do so and the test was completed in October. The results of the test are not yet available. [ 99 ] On October 8, 2010 and December 7, 2010, she did a urine drug test arranged by Dr. Beairsto (see Exhibit “C,” a copy of the Dynacare Toxicology Report, dated October 9, 2010, and see Exhibit “D,” a copy of the Dynacare Toxicology Report, dated December 9, 2010). Ms. R.H.E. submits that she tested negative for marijuana and all other illegal drugs.

She had prescribed drugs in her system. [ 100 ] The Society alleges that she made certain comments regarding marijuana being “like water.” She believes that the Society worker took this comment out of context. She says she meant that she did not use marijuana on a daily basis “like water.” [ 101 ] The impact on the children, which the Court is urged to look at, as a result of mother’s parenting issues, anger management and mental health struggles indicate no genuine issue as to behaviour or mental issues. The evidence of the Society, as stated in Ms. Patel’s affidavit and Ms.

Deacon’s affidavit, relates to the impact on the children. As recently as November 2010, the mother frightened the children when she had a burst of anger at a visit. The mother’s raising her voice in anger during visits risks emotional harm, if nothing else. There’s also evidence of rough behaviour by the mother towards the children at times. Therefore, the Society submits, there is no genuine issue for trial. [ 102 ] Ms. R.H.E. has had weekly two-hour access visits with her children at the Society’s office since the beginning of December 2009. She believes she has only missed five visits.

For one, she was in Windsor and could not make it back to Toronto in time, another she had the wrong access time and arrived too late for the visit, the third (a TAP visit) her ride had car trouble and she could not make it for the visit and, for the fourth and fifth, she was at the Markham-Stouffville Hospital. [ 103 ] She was enrolled in the Therapeutic Access Program (TAP), which started in October. According to Ms. R.H.E., access did not go as well in this environment. She felt persecuted during the TAP visits.

She felt she was being singled out as a “bad” parent and her children were being labelled as “bad” kids more than other parents and children, and more than during the previous access visits. She felt that comments made during TAP visits were more harsh and accusatory than they needed to be and had been in the past. There were only three TAP visits. [ 104 ] Following the TAP visits, she returned to her regular supervised access and the visits have gone well. [ 105 ] She feels that she is often ignored by the Society.

Her concerns are heard and recorded, but then are brushed off or disbelieved and attributed to a defect in her mental health. She had been speaking to workers about her children’s sexualized behaviour since May 2010 (see Exhibit “E,” a copy of the Case Note dated May 5, 2010). On September 15, she asked T1.. to repeat to the worker what she had said about being hit in the foster home (see Exhibit “F,” a copy of the Case Note dated September 15, 2010). On September 22, T2.. said that the grandmother hurt her and pointed to the top of her head. Ms. R.H.E. spoke to Ms.

Patel about both the hitting and the sexualized behaviour issues (see Exhibit “G,” a copy of the Case Note dated September 22, 2010). [ 106 ] Ms. R.H.E. currently rents a two-bedroom apartment. If the children were returned to her, she intends to enrol them in daycare in her building. [ 107 ] She is not attending school at this time. After she was discharged from the hospital in December 2010, she started her schooling as she had intended. Because she was required to attend court and other appointments and programs, her school terminated her enrolment.

She then lost her OSAP funding. [ 108 ] She is currently receiving social assistance. [ 109 ] She has been charged with one count of assault for allegedly assaulting Dr. Lee during her stay at the Markham-Stouffville Hospital. She is bound by a Recognisance of Bail (see Exhibit “I,” a copy of her Recognisance of Bail dated February 4, 2011 and Variation form dated February 18, 2011). [ 110 ] The Society further submits there is no genuine issue for trial in that Ms. R.H.E. has been unable and/ or unwilling to translate that love and that commitment into a real or acceptable level of care for the children.

There is simply no reasonable prospect that Ms. R.H.E.’s mental health challenges, shortcomings and parenting deficits will be remedied in the foreseeable future or ever. The children have been in care for eighteen months, exceeding the time for children under the age of six to be in care. The Society submits that permanency planning for these children is overdue. An order of Crown wardship is well supported by the evidence. [ 111 ] The Society submits that Section 59(2.1) of the Child and Family Services Act presumes no access where orders of Crown wardship are made. The onus is on Ms.

R.H.E. to prove otherwise. [ 112 ] Other than for three visits between October and November of 2010, Ms. R.H.E.’s visits over the last number of months has been confined to once weekly, two hours supervised in the Society’s office. The Society’s submission is, at this point in time, the only real parent-child relationship left between Ms. R.H.E. and her children is a biological one. The limited access over the last year and a half establishes nothing more than a tenuous relationship. This is not a genuine issue for trial. There is no indication that access would be meaningful and beneficial to the children.

It may be meaningful and beneficial to Ms. R.H.E. but that is not the test. [ 113 ] Even if there is some meaningful or beneficial aspect of access, Ms. R.H.E. cannot rebut the test set out in the second part of Section 59 (2.1) that the access would not impair the children’s opportunities for adoption. [ 114 ] Ms.

R.H.E., the Society submits, expresses her love and affection for her children, wishes to resume care of the children but has not presented either behaviour or any plan that would be either viable, in the children’s best interest, or even safe for the children at this point. [ 115 ] According to the Society, it remains to be seen what, if any, impact Ms. R.H.E.’s twice weekly, or once every two weeks

injectable medication will have on her mental health struggles. These children do not have the time to wait out a period of months to see what happens with Ms. R.H.E. and her mental health challenges. [ 116 ] The Society’s position is that the children were in need of protection at the time of their apprehension in November 2009.

They were found in need of protection via the Statement of Agreed Facts filed in March 2010, given the ongoing identified concerns of the Society concerning mental health, anger management, parenting deficits and the accumulative effect of all these factors as seen over the last 15 or 16 months. The Society submits that the children continue to be in need of protection and that they will be at risk of physical and emotional harm if returned to their mother’s care.

The issues identified at the commencement of the Society’s involvement when the children were apprehended in November 2009 are not only not improved, but arguably worse because now we have the benefit of a review of these concerns as sustained. [ 117 ] Regarding anger issues, Ms. R.H.E. admits that she has been, at times, very angry with the Society and in particular with Ms. Patel. Her stay at the hospital, the way she was treated by the doctors there, the physical and chemical restraints, et cetera, had nothing to do with Ms. Patel. [ 118 ] Ms.

R.H.E. is trying to implement what she has learned from her courses during her access visits. Several case notes are attached to her affidavit at Exhibit H. Case notes covering a range of dates prepared by different workers are attached as examples of her employing the techniques that one would learn at parenting classes. She denies any use of physical discipline against her children and is strictly against hitting of any kind. [ 119 ] Ms. R.H.E. submits that we have hearsay evidence from Ms. Patel as to information she received regarding the

interpretation of the hair-strand test. What we do not have is any other explanations about what those results could mean, particularly when judged against the urine screens that were attached to Ms. R.H.E.’s affidavit at Exhibit C and D. Both urine screens are negative for marijuana and all other illegal drug use. [ 120 ] Ms. R.H.E., her counsel submits, shows appropriate levels of care and concern for her children’s well-being when they are not in her care.

Enquiring about eating habits, enquiring about the safety of the CAS drivers, she makes efforts to speak to the Society about her children’s behaviours she observes during access. There was some sexualized behaviour out of one of the twins and an allegation of being hit in the foster home. This was raised by Ms. R.H.E. in several notes attached as Exhibits E and G. The Society responded to many of her concerns, comments or issues, “Oh yeah, we’re gonna look into it.” But her concerns are attributed to delusions, to her mental health. This has been an ongoing complaint of Ms.

R.H.E. about the Society that has not helped her to improve her relationship with the Society. [ 121 ] The mental health issues colour everything, from Dr. Lu’s original letter, where she says Ms. R.H.E. tells her about her own involvement as a youth with the Society that is not true, only it is true. This feeds in with the submission that her behaviours during access were either odd or unusual, all the way to the scheme of concerns, to concerns. [ 122 ] Access continues, even after her second discharge from the hospital, and it continues unchanged. Ms.

Long submits that the Society has never sought to suspend access on a best interest test or otherwise or terminate access. That is significant because, again, if there was no other conclusion to be drawn than that access is not in the children’s best interest, wouldn’t the Society have been required to do something about access before now? [ 123 ] Ms. R.H.E. has received some treatment for mental health issues. Has it gone far enough? [ 124 ] That conclusion, combined with Ms. R.H.E.’s own evidence that she’s seen Dr.

Beairsto throughout, that she is on medication and is compliant with medication, there is no evidence to contradict that. She is clearly not in the same position as she was when she spoke to CAMH because she is on medication and seems to be compliant with it. She is seeing Dr. Beairsto and talking about her mental health. The denial that was originally the key concern by the CAMH doctor does not exist anymore. Combined with her appointment to see Dr. Su, a psychiatrist, shows her commitment and makes a genuine issue for trial.

The submission that she is not only not better than she was at the time of apprehension but she is worse is wrong. At the time of the apprehension, and shortly thereafter, when she was at CAMH, she was in denial. That is gone. [ 125 ] That that makes it another reason why there is a genuine issue for trial, in particular, with respect to the Crown wardship portion of the disposition. THE LAW [ 126 ] The court’s jurisdiction to grant

summary judgment in child protection cases is only to be exercised in the clearest of cases and with extreme caution. It is in the best interests of children to have issues resolved quickly. In family law cases of Crown wardship, the court must review all the evidence to determine if there is a basis for the final order sought. A proper consideration of a full evidentiary record is necessary to determine the evidence on the motion. The court must then determine whether there are specific facts to support triable issue. [ 127 ] The responding party, faced with a prima facie case for

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

summary judgment. A party answering a motion for

summary judgment cannot rest on bald denials. They must put their best foot forward. [ 128 ] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh evidence on a

summary judgment motion. [ 129 ] Rule 16 of the Family Law Rules permits a party to make a motion for

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

• When Available o 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion forsummary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. • Evidence Required o

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

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

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

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [130] Rule 16(6) is mandatory: If the court concludes that there is no genuine issue requiring a trial of a claim, the court shallmake a final order accordingly. [131] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine if thereis a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. Children’s Aid Society of Hamiltonv. M.N. (ON SC), [2007] O.J. No. 1526 (SCJ) per Gordon J. [132] In interpreting Rule 16, the court must have regard to the strict timelines that govern child protection proceedings. Subsection 1(1) of the Child and Family Services Act states that the paramount purpose of the Act is to promote the best interests,protection and well-being of children.

Rule 2 of the Family Law Rules provides that the primary objective of the rules is to deal withcases justly. [133] Subsections 70(1) and (4) of the Child and Family Services Act mandate that a child under the age of six years shall not bein the care of a society for longer than 12 months, subject to a six-month extension if it is in the child’s best interest to do so. [134] The dominant consideration of the best interests test is the welfare of the children. See Re McGrath (infants), [1893] 1 Ch.143, 62 L.J.

Ch. 208, 67 L.T. 636, [Ch.], cited with approval in Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M., (SCC), [1994] 2 S.C.R. 165. [135] The welfare of the child is “not to be measured by money only, nor by physical comfort only. The word welfare must betaken in its widest sense.” See Re McGrath (infants). [136] The best interests test has a “wide focus.” This means that the “entirety of the situation” must be examined in order todetermine a child’s best interests. See Catholic Children’s Aid Society of Metropolitan Toronto v. Cidalia M. [137] The best interests of a child continuously evolve.

See Catholic Children’s Aid Society of Metropolitan Toronto v. CidaliaM. This means that different solutions may be required over different periods of time. [138] The best interests of a child take priority over the desires and interests of the parent. See Young v. Young, (SCC), [1993] 4 S.C.R. 3. The factors that must be taken into account when determining the best interests of a child are listed insubsection 37(3) of the Act. [139] This list is not exhaustive, as one of the factors to be considered under subsection 37(3) of the Act is “any other relevantcircumstance.” See also L.C. and G.C. v.

Catholic Children’s Aid Society of Metropolitan Toronto (1993), 41 A.C.W.S. (3d) 1166,[1993] W.D.F.L. 1292, [1993] O.J. No. 1823, 1993 CarswellOnt 1581 9Ont. Gen. Div.). [140] The relevant factors must be considered and balanced in order to determine the child’s best interests. See L.C. and G.C. v.Catholic Children’s Aid Society of Metropolitan Toronto, supra; and Catholic Children’s Aid Society of Metropolitan Toronto v. CidaliaM., supra. [141]

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. Thecourt must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise atriable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with thetrial and the resulting prolongation of the state of uncertainty about the child’s future. Jewish Child and Family Services of Toronto v. A.(R.) 2001 O.J. No. 47 (SCJ) per Lane J. [142] The court’s role on a

summary judgment motion is narrowly limited to assessing the threshold issue of whether a genuineissue exists as to material requiring a trial. Because

summary judgment is now explicitly contemplated by Rule 16, this may “broadenthe use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of dueprocess, statutory requirements and the best interest, protection and well-being of the children will determine ultimately the

appropriateness of

summary judgment.” Children’s Aid Society of the Regional Municipality of Waterloo v. T.S. (ON CJ), [1999] O.J. No. 5561 (Ont. C.J.) per Hardman J. [143] A party answering a motion for

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

summary judgment is met when the moving party satisfies the courtthat there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibilitygives rise to a genuine issue for trial. The fact must be material. Children’s Aid Society of Toronto v. T. (K.) (ONCJ), [2000] O.J. No. 4736 (Ont. C.J.). [144] The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. See Catholic Children’sAid Society of Toronto v. C.H. 2004 ONCJ 224 , [2004] O.J. No. 4084; Children’s Aid Society of Hamilton v.

C.R. (ON SC), [2006] O.J. No. 3442. [145] In interpreting Rule 16, rule 2 of the Family Law Rules must be considered. As well, reference to subsection 1(1) of theCFSA – which provides that the paramount purpose of the Act is to promote the best interest, protection and well-being of children – isnecessary to the

interpretations of the Act. See Children’s Aid Society of Hamilton v. M.W. (ON SC), [2003] O.J. No.220). [146] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal processnot be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of anissue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child.

There must be anarguable notion discernable from the evidence that Destiny faces some better prospects than what existed at the time of the Society’sremoval of the child from their care and that they have developed some new ability as a parent. See Children’s Aid Society of Toronto v.R.H. (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J. [147] As Justice Pazaratz stated at para. 43 of Children’s Aid Society of the Niagara Region v. S.C., (ONSC), [2008] O.J. No. 3969 (Sup.

Ct.): “No genuine issue for trial exists where there is no realistic possibility of an outcome other thanthat as sought by the applicant.” Child and Family Services Act [148] The paramount purpose behind this legislation is to promote the best interests, protection and well-being of children.

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

Children’s services are to be provided in a manner that respects thechild’s need for continuity of care and for stable relationships in a family and a process that achieves permanent plans for children inaccordance with their best interests. [149] Where a child is found to be in need of protection and intervention through court order is required to protect the child in thefuture, the court, after having satisfied itself as to the efforts made by the society or another agency to assist the child before intervention,has available to it a series of orders ranging from supervision to crown wardship, intruding only as far as required, to protect the child.

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

section 57.) [150] Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications for temporary care and custody as s.51 of the Act permits evidence the court considers “credible and trustworthy in the circumstances.” While Rule 16(5) appears to bepermissive as to hearsay evidence, there is the penalty attached of an adverse inference. [151] Evidence on a motion for

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

summary judgment. [152] The Society has an obligation, pursuant to s. 15 of the Act, to protect children, properly investigate all relevantcircumstances and provide adequate services to families that have as its objective the reuniting of family members where appropriate. See, for example, Children’s Aid Society of London and Middlesex v. S.(E.V.F.) (2004), (ON SC), 1 R.F.L. (6th) 84(Ont. S.C.J.) Section 57(2), (3) and (4) also engage a discussion of less disruptive alternatives.

These matters are not fully canvassed inthe evidence as required. [153] Where a Crown wardship order is made, subsection 59(2.1) of the Child and Family Services Act provides that no accessorder shall be made unless the court is satisfied that: i. the relationship between the person and the child was beneficial and meaningful to the child; and ii. the ordered access will not impair the child’s future opportunities for adoption. [154] A Crown wardship decision depends for its integrity on a judicial finding that there is no other available and appropriatealternative to promote the child’s best interests, protection and well-being.

Crown wardship is a disposition of last resort. If a child canbe placed within the family without compromising the primary statutory purposes, they are so entitled. [155] Severance of a child’s ties with their family of origin is a power to be exercised only with the highest degree of caution. Crown wardship requires compelling evidence within the civil standard of proof that there is no other available and appropriatealternative for the child. The society has made out a strong case for the conclusion that there is no other available or appropriate

alternative for this child. [156] In determining the best interests of the child, the court must assess the degree to which the risk concerns which existed atthe time of the apprehension still exist today. They must be examined from the child’s perspective. See supra, CAS Toronto v. C.M. (SCC), [1994] 2 S.C.R. 165. [157] Consideration has been given as to whether the Society has given the mother an opportunity to parent.

I find that theyhave. [158] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-classstandards of childcare upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child’s bestinterests. Catholic Children’s Aid Society of Hamilton v. J.I. (ON SC), [2006] O.J. No. 2299 (Ont. Sup. Ct.). Thisprinciple also applies to a young mother, who was herself subject to severe neglect and abuse. Children’s Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515 . [159] This is not a case for Crown wardship with access.

Neither of the considerations delimited in subsection 59(2.1) of theCFSA are made out. [160]

Section 63.1 sets out that adoption is a better way to provide the child with a positive, secure and enduring relationshipwithin a family. To counter the test, the onus is on the parent to lead evidence that adoption is not a realistic opportunity. See CASOttawa v. C.W. [2008] CanLII 13181 9Sup.Ct.). [161] A beneficial relationship is one which is advantageous. A meaningful relationship is one which is significant. It is notenough that there are some positive aspects to it: it must be significantly advantageous to the child. It speaks of an existing relationship,not the possibility of a future relationship.

Even if the relationship is beneficial and meaningful there still must be some qualitativeweighing of the benefits of access versus no access. [162]

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

T.L. and E.B., 2010 ONSC 1376 . [163] Good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whetherthey have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to beexperimentation with a child’s life with the result that in giving the parents another chance, the child would have one less chance. SeeChildren’s Aid Society of Winnipeg (City) v. R. (1980), (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.).

There has to besome demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. SeeChildren’s Aid Society of Brockville, Leeds and Grenville v. C. [2001] 2001CarswellOnt 1504. [164] The purport of the rules is to deal with cases justly. The focus has to be on the consequential effects of decisions on thechild involved. Dealing with cases justly includes timely resolution by way of

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

While a child’s best interests presumptively lie with the parent, the presumption isclearly rebuttable. [165] The mother, in her material, has attempted to set out facts that show there is a genuine issue, specifically with respect to herrelationship with the children and the fact that, if Crown wardship without access were granted by the court, her access to the childrenwould stop. I have reviewed the various plans of care to assess the threshold issue whether there is a genuine issue as to a material fact requiring a trial. See Aguonie v.

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

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

summary judgment motion must be dismissed and a trial of an issuebe ordered. [166] The disposition order that I make must be the least disruptive order available consistent with the best interests of thechildren. “Best interests” is defined in subsection 37(3) of the Act and that subsection contains a non-exhaustive list of factors that thecourt shall consider in determining best interests, if relevant. [167] When children are out of the care of their parent or parents and return does not appear to be an option, the court ismandated to investigate permanency plans for the children.

An adoption order, by definition, is the most intrusive order available underthe statute. Since the 2006 amendments to the Act, other less intrusive permanency orders are available to the court for children whohave been found in need of protection. [168] The motion for

summary judgment is granted. Ms. R.H.E. failed to show in her material a genuine issue for trial. Inreaching this conclusion, I found no material fact in dispute affecting the best interests of these children that would require a trial forresolution for the following reasons.

a) The children have been out of the care of their mother for a period in excess of eighteen months.

b) The mother is no closer today to successfully addressing her lifestyle and parenting challenges than she was at the time the children were first apprehended from her.

c) The children need a permanent home. [ 169 ] Although I find that the access between the children and their mother is generally positive and that the children love their mother and she loves them, by granting the

summary judgment motion, I leave the issue of access to the children’s future adoptive parents to decide, as they will be the persons charged with raising these children to adulthood. As is the case with any parent, they should have the ability to restrict contact with any person who undermines their duty and responsibility to protect their child and the stability of the child’s home. [ 170 ] I am granting the

summary judgment motion brought by the Society and the following order shall issue: • T.E1. (born December […], 2007) and T.E2. (born December […], 2007) shall be made Crown wards without access for the purposes of adoption. • For the reasons given, any less intrusive order into the lives of the birth family would be more disruptive to these children and not be in their best interests. Released: May 17, 2011 Signed: “Justice Marvin A. Zuker”