Children’s Aid Society of Toronto v. M.B., 2011 ONCJ 730

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 (North York) Registry C52826/10 DATE: 2011·XI·29 CITATION: Children’s Aid Society of Toronto v. M.B. , 2011 ONCJ 730 ONTARIO COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT , R.S.O. 1990, C.

C11 AND IN THE MATTER OF J.B.R., CHILD IN NEED OF PROTECTION BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — M.B. (mother), Respondent, — AND — D.R. (father), Respondent PROCEEDINGS BEFORE THE HONOURABLE JUSTICE MARVIN A. ZUKER ON OCTOBER 19, 2011, AT TORONTO, ONTARIO REASONS DELIVERED ON NOVEMBER 29, 2011

SIMON FISCH ........................................................................................... for the applicant Society ANDREAS SOLOMOS ............................................................................ for the respondent mother LOUIS ALEXIOU ...................................................................................... for the respondent father Pursuant to a Notice of Motion dated October 5, 2011, the Applicant Children’s Aid Society of Toronto seeks an order that: 1. Pursuant to Rule 16 of the Family Law Rules for

Summary Judgment as follows: 2. An order that the child, J.B.R. (born […], 2010), be made a ward of the Crown and placed in the care of the Children’s Aid Society of Toronto. [ 1 ] JUSTICE M.A. ZUKER:— The B. family consists of Ms. M.B., mother; Mr. D.R., father; and J.B.R., born […], 2010, subject child of the within application. [ 2 ] Ms. M.B. seeks the return of J.B.R. to her care. [ 3 ] The Society’s belief is that J.B.R. is not able to return home. Mr. D.R. and Ms.

M.B. have not yet been able to address the significant protection concerns related to their own emotional issues and do not have a safe place for J.B.R. to live at this time. As well, the Society remains concerned that Mr. D.R. and Ms. M.B. are unable to consistently implement child-focused activities needed by J.B.R. [ 4 ] Ms. M.B. previously had three childbirths. The first child was born when mother was 12 years old and was adopted in Vancouver, British Columbia. The second was a stillbirth. The third child was adopted by paternal grandparents. [ 5 ] Ms.

M.B. had involvement with the Society with regard to her previous children. The issues related to parenting capacity, instability, mental health and substance abuse. [ 6 ] This matter came to the attention of the Society on June 8, 2010 when Ms. Aviva Sokolsky, Social Worker from Mount Sinai Hospital, called to report concerns regarding Ms. M.B.’s pregnancy. Ms, Sokolsky advised that she had concerns regarding Ms. M.B.’s ability to care for a baby. [ 7 ] Ms. Sokolsky advised that Ms. M.B. has repeatedly tested positive for marijuana throughout her pregnancy. Ms.

M.B. advised that she took marijuana for medicinal purposes due to her epilepsy. [ 8 ] The file was assigned to worker Avi Versanov, who, on July 2, 2010, attended the family homes. He reported that the apartment was small, cluttered and messy. At that time Ms. M.B. and Mr. D.R. were living with two other roommates. Ms. M.B. and Mr. D.R. slept on a mattress in the living room. [ 9 ] On July 28, 2010 Mr. Versanov spoke on the telephone with Dr. Bruni, Ms. M.B.’s neurologist. Dr. Bruni informed Mr. Versanov that he had treated Ms. M.B. since 2002 and that she was on epilepsy medication. Dr. Bruni advised that Ms.

M.B. occasionally missed her medication intake and she suffers from occasional seizures during her sleep period. Dr. Bruni discussed safety procedures with Ms. M.B., such as not changing the baby on the bed but rather on the floor and having another adult with her at all times. Dr. Bruni did not know that Ms. M.B. was using marijuana to treat her pain. [ 10 ] On August 3, 2010, Dr. Hawrylyshyn, from the High Risk Pregnancy clinic, contacted the Society and spoke with a duty worker, Sarah Morris. Dr. Hawrylyshyn reported that Ms. M.B. had had a drug screen and tested positive for marijuana. [ 11 ] Ms.

Amber Sanguigni, Society intake worker, attended the hospital and was informed that J.B.R. had been born on […], 2010. J.B.R. was two weeks early and weighed four pounds, three ounces. Ms. Sanguigni apprehended J.B.R., given the information provided by Mr. Versanov, advising of Ms. M.B.’s drug use throughout her pregnancy, inappropriate living conditions and limited parenting capacity. J.B.R. remained in the hospital. [ 12 ] On August 17, 2010, Ms. M.B. showed Mr. Versanov her C.A.L.M. card which allowed her access to marijuana for medical purposes. Both Ms. M.B. and Mr.

D.R. agreed that J.B.R. would need to remain in care and signed a Temporary Care Agreement placing J.B.R. in the Society’s care for four months (expiring December 20, 2010). [ 13 ] J.B.R. had an echocardiogram on August 13, 2010, which showed two small holes in his heart. A follow-up appointment on November 10, 2010, showed that one hole was closed and the other significantly smaller.

[ 14 ] On August 27, 2010, J.B.R. was discharged and placed in foster care. J.B.R. had been deemed medically fragile by paediatrician Dr. Susan Cohen. [ 15 ] J.B.R. was seen at Scarborough General Neo Natal follow up clinic on December 15, 2010. J.B.R. required physiotherapy and occupational therapy as he presented as being a very still child. J.B.R. was not meeting his developmental milestones. Dr. Castagna suspects there may be some neurological explanation that will need to be explored. [ 16 ] J.B.R. requires a lot of patience. J.B.R. was seen by Dr. Cohen at the Society’s clinic for regular well-baby visits.

He is below the growth chart regarding head circumference and well below his age expectation for height and weight. [ 17 ] It was arranged that the parents would attend at the Society’s office for access twice per week, for two hours each visit. [ 18 ] Karen Elumir, a nurse at Sanctuary, attended at St. Michael’s Hospital on November 26, 2010 when Ms. M.B. was admitted for 48 hours for psychiatric observation. [ 19 ] On December 10, 2010, the Society received a telephone call from a roommate of Ms. M.B. and Mr. D.R. The roommate advised that Mr. D.R. and Ms. M.B. had assaulted her. She advised that Mr.

D.R. punched her in the side of the head, and Ms. M.B. tried to pull her down the stairs. She stated that she suffered a torn muscle in her arm. The roommate said that the police were involved and had arrested the parents. Both parents were charged with assault and Ms. M.B. was charged with mischief for punching a window. [ 20 ] Mr. D.R. is 28 years of age. Mother and father have been living together common-law since about 2003. [ 21 ] Ms.

M.B. states that her only use of any illegal drugs is and was the use of marijuana on a sporadic basis and allowed by her doctor to enable her to deal with her epileptic condition, now controlled by prescribed medication. [ 22 ] Mother’s states that her difficulties have been due to her immaturity for which she has paid a heavy price. [ 23 ] The parents signed a Statement of Agreed Facts on March 12, 2011. [ 24 ] As of January 26, 2011, Ms. M.B. informed the Family Service Worker that she was not going to be able to see the counsellor she was originally referred to at Sanctuary. As of February 25, 2011, Ms.

M.B. agreed to continue to meet with a counsellor at Rosalie Hall. [ 25 ] Ms. M.B. and Mr. D.R. expressed that their hygiene issues may be a result of their not being able to afford to do laundry. On January 24, 2011, the Family Service Worker provided Ms. M.B. and Mr. D.R. with ten dollars specifically to do laundry. It was noted on January 26, 2011, that despite having done the laundry, there was still a concern about hygiene, and animal hair was observed on Ms. M. B.’s sweater.

This was a serious ongoing concern for J.B.R., as it is believed that this affects his health and breathing. [ 26 ] A home visit was conducted on January 19, 2011, at the home where Ms. M.B. and Mr. D.R. resided with their sureties, Ms. L.L. and Mr. G.W.. During this visit, Ms. L; disclosed that her four children, the youngest being shared with Mr. W., have all been in the care of the Catholic Children’s Aid Society. Consent forms were provided to these individuals. They chose not to allow the Family Service Worker to access their CAS histories. The Society informed Ms. M.B. and Mr.

D.R. that this was not an appropriate home for J.B.R. to be returned to. [ 27 ] Mr. D.R.’s ODSP worker, Ms. Domingue, was contacted on January 26, 2011, in order to assess the amount of assistance the parents were receiving. [ 28 ] Mr. D.R. was expected to complete an Anger Management program as a result of criminal charges. He completed the program on February 26, 2011. [ 29 ] On March 28, 2011, the Honourable Justice S. Sherr made a final order that 1.

A finding pursuant to section 47(2) of the Child and Family Services Act , that the following facts are true: Full legal name and age of the child is as follows: J.B.R., (d.o.b. […], 2010), age 5 months old; Child’s religion: Not Catholic and Not Jewish; Child’s Indian or Native status: Not Indian and Not Native; Child came into care pursuant to a Temporary Care Agreement; Full Legal Name of Child’s Mother: B., M.; and Full Legal Name of Child’s Father: R., D.. 2. The child, J.B.R., is a child found to be in need of protection pursuant to section 37(2)(

l) of the Child and Family Services Act . 3. The child, J.B.R. (born […], 2010), shall be made a ward of the Children’s Aid Society of Toronto and placed in its care and custody for a period of FOUR (4) months. 4. Access at the discretion of the Children’s Aid Society of Toronto.

[ 30 ] Ms. M.B. has attended weekly counselling with Ms Nancy Daly at Rosalie Hall about February 2011. Ms. M.B. has been attending regularly (approximately once per week). The Society submits that Ms. M.B. has not addressed the concerns of the Society due in part to her own experience of an unsafe parenting model and her history of trauma. [ 31 ] Ms. M.B. and Mr. D.R. attended six sessions: on February 24, March 10, March 31, June 14, June 21 and July 12, 2011. [ 32 ] Ms. M.B. and Mr.

D.R. were involved in the Society’s Therapeutic Access Program, which was deemed to be covering content similar to the Baby Tyme Program. [ 33 ] Ms. M.B. and Mr. D.R. were consistent in attending J.B.R.’s medical appointments as requested. [ 34 ] Concerns regarding the parents’ inability to transfer and implement directions that are provided have continued. There are specific areas of concern that have been addressed repeatedly with Ms. M.B. and Mr.

D.R. and continue to be addressed, for example, requesting that they check the temperature of J.B.R.’s food and ensure the safety of J.B.R.’s physical surroundings. [ 35 ] Ms. M.B. and Mr. D.R. attended the Society’s Therapeutic Access Program (TAP) from March 2011 to May 31, 2011. At the conclusion of the TAP program, the decision was made no longer to provide teaching through this program. The Society submits that the parents were not able to successfully address many of the external risk factors that existed, such as housing, stability and patterns of placing themselves in or around risk.

Additionally, only minimal gains were observed, despite the significant amount of support and intervention. [ 36 ] Ms. M.B. and Mr. D.R. have demonstrated they truly love J.B.R., enjoy spending time with him, and want to have him returned to their care. But Ms. M.B. and/or Mr. D.R. have not addressed, according to the Society, their concerns including understanding and acknowledging J.B.R.’s developmental and medical needs, and reading and responding to J.B.R.’s cues. [ 37 ] Since Ms.

M.B. has stopped using marijuana for the medical purposes of treating her seizure disorder, the Society has not had significant concern about alcohol or drug use. [ 38 ] Despite the great amount of support and teaching that has been provided through various methods (.i.e. Enhanced Access through the Family Resource Centre, Therapeutic Access Program, Rosalie Hall individual parenting teaching with Baby Tyme), the Society submits that Ms. M.B. and Mr. D.R. have been unable successfully to demonstrate that they would be able to ensure J.B.R.’s complex needs are managed. [ 39 ] During access visits, Ms. M.B. and Mr.

D.R. have become increasingly comfortable with playing with J.B.R. They often pick age- appropriate toys and interact well with J.B.R. with those toys. [ 40 ] Both Ms. M.B. and Mr. D.R. presented as motivated to have J.B.R. return to their care. They attended much of the access offered to them and were on time. Mr. D.R. was insightful about J.B.R.’s routine and the items he would need and often asked for help when needed or informed workers of his thoughts. Mr. D.R. was able to soothe the baby more consistently.

Both parents showed affection and love for J.B.R. and were engaged with him during the time spent together. [ 41 ] It was observed that the parents presented with dynamics in their relationship that would compromise their and their son’s physical and emotional safety. Ms. M.B. was expressive with her anger and frustration and took this anger out on Mr. D.R. [ 42 ] According to the Society, Ms. M.B. and Mr. D.R. struggled to find and maintain safety in their lifestyle. They remained in a home which the Society had deemed unsafe, because of the people with whom they resided.

They had trouble managing their budget and needed support to access resources. While Ms. M.B. did secure and attend counselling at Rosalie Hall, she did not follow through on recommendations to see a psychiatrist. Mr. D.R. did not make efforts to access counselling at all.

The parents were unable to demonstrate that they could keep themselves safe and healthy, which might also put J.B.R. at risk of harm from their choices. [ 43 ] Because of the conflict between them and their inability to read and respond to his cues and the risky lifestyle choices they have made, the Society submits that J.B.R. would remain at risk of physical and emotional harm in their care, particularly considering his unique and vulnerable developmental and medical needs. [ 44 ] The Society further identifies that Ms.

M.B. has not completed a consultation with a psychiatrist, and worked on past trauma and anger issues through counselling. [ 45 ] Exhibit A referred to in the affidavit of Deirdre White dated July 18, 2011, is that Therapeutic Access Program

Summary. Date of Referral : March 2, 2011 CYW Involved : Kim McLean CYW Report Prepared by : N/A Total Amount of Parenting & Teaching Time : 8 weeks X 2 visits per week X 4 hours per visit = 64 hours of parenting and teaching time offered (does not account for missed or cancelled visits) Date Terminated : May 31, 2011. “It was observed that the parents presented with dynamics in their relationship that would compromise their and their son’s physical and emotional safety. Ms. M.B. was often expressive with her anger and frustration, and frequently appeared to take this anger out on Mr. D.R.

The parents were encouraged by staff to speak supportively to one another, and to be aware of their feelings and tone of voice. Ms. M.B. often defended herself or grew angry when she was called out on her behaviour, even indicating to staff that the couple had more

frequent and reciprocal arguments in their own home.” “Ms. M.B. and Mr. D.R. continued to struggle to find and maintain safety in their lifestyle. They remained in a home which the Societyhad deemed unsafe, due to the persons with whom they resided and the amount of smoke in the home. While they were able to learn tocome to visits careful not to smell like smoke, they often appeared or smelt dirty. They had trouble managing their budget and neededsupport to access resources. While Ms. M.B. did secure and attend counselling at Rosalie Hall, she was unable to follow through onrecommendations to see a psychiatrist.

Mr. D.R. did not make efforts to access counselling at all, despite being encouraged to do so. Assuch, the parents were unable to demonstrate that they could keep themselves safe and healthy, which would also put J.B.R. at risk ofharm from their choices. “Summary of Assessment “While Ms. M.B. and Mr. D.R. are dedicated to their son, and motivated to have him return home, they have been unable to demonstratethe gains they needed to parent him safely.

Because of the conflict between them, their inability to read and respond to his cues, and therisky lifestyle choices they have made, J.B.R. would remain at risk of physical and emotional harm in their care, particularly consideringhis unique and vulnerable developmental and medical needs. The parents have received a great deal of support and intervention sinceJ.B.R. was born, yet they have been unable to show improvement.

As such, other permanent plans should be made for J.B.R.’s care assoon as possible, such as placement with kin or adoptive family. “Report Prepared by: Shannon Deacon, M.S.W., R.S.W., Therapeutic Access Program Coordinator; Date: June 30, 2011.” [46] At a medical appointment on July 4, 2011, with Geneticist Dr. Mendoza at the Hospital for Sick Children, Ms. M.B.was informed she was found to have the same extra chromosome 2 as was found in J.B.R. Dr. Mendoza informed her that J.B.

R. willlikely have to manage developmental and learning difficulties as this is what is typically known to occur with children with extrachromosomal material. However, what challenges, if any, are not exactly known with extra material on this particular chromosome. [47] The court’s jurisdiction to grant

summary judgment in child protection cases is only to be exercised in the clearest ofcases and with extreme caution. It is in the best interests of children to have issues resolved quickly. In family law cases of Crownwardship, the court must review all the evidence to determine if there is a basis for the final order sought. A proper consideration of afull evidentiary record is necessary to determine the evidence on the motion. The court must then determine whether there are specificfacts to support triable issue. [48] The responding party, faced with a prima facie case for

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

summary judgment. A party answering a motion forsummary judgment cannot rest on bald denials. They must put their best foot forward. [49] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh evidence on a

summaryjudgment motion. [50] Rule 16 of the Family Law Rules permits a party to make a motion for

summary judgment. The following sub-rules inRule 16 are relevant to this case: When Available 16.

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

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuineissue requiring trial. Evidence of Responding Party

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

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

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [51] Rule 16(6) is mandatory: If the court concludes that there is no genuine issue requiring a trial of a claim, the courtshall make a final order accordingly. [52] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine ifthere is 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 ofHamilton v. M.N. (ON SC), [2007] O.J. No. 1526 (SCJ) per Gordon J.

[53] 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. [54] Subsections 70(1) and (4) of the Child and Family Services Act mandate that a child under the age of six years shall notbe in the care of a society for longer than 12 months, subject to a six-month extension if it is in the child’s best interest to do so. [55] The dominant consideration of the best interests test is the welfare of the child. See Re McGrath (infants), [1893] 1 Ch.143, 62 L.J. Ch. 208, 67 L.T. 636, [Ch.], cited with approval in Catholic Children’s Aid Society of Metropolitan Toronto v.

Cidalia M., (SCC), [1994] 2 S.C.R. 165. [56] The welfare of the child is “not to be measured by money only, nor by physical comfort only. The word welfare mustbe taken in its widest sense.” See Re McGrath (infants). [57] 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. [58] The best interests of a child continuously evolve. See Catholic Children’s Aid Society of Metropolitan Toronto v.Cidalia M.

This means that different solutions may be required over different periods of time. [59] 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. [60] 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 (Ont. Gen. Div.). [61] The relevant factors must be considered and balanced in order to determine the child’s best interests. See L.C. and G.C.v. Catholic Children’s Aid Society of Metropolitan Toronto, supra; and Catholic Children’s Aid Society of Metropolitan Toronto v.Cidalia M., supra. [62]

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court 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. [63] The court’s role on a

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

summary judgment is now explicitly contemplated by Rule 16, this may“broaden the use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations ofdue process, statutory requirements and the best interest, protection and well-being of the children will determine ultimately theappropriateness 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. [64] A party answering a motion for

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

summary judgment is met when the moving party satisfiesthe court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question ofcredibility gives rise to a genuine issue for trial. The fact must be material. Children’s Aid Society of Toronto v. T. (K.) (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.). [65] The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. See CatholicChildren’s Aid 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. [66] 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). [67] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legalprocess not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuinenessof an issue 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. [68] 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 [69] The paramount purpose behind this legislation is to promote the best interests, protection and well-being of children. So long as they are consistent with the best interests, protection and well-being of children, additional purposes include respectingthe autonomy and integrity of the family unit and where possible should be provided on the basis of mutual consent in the leastdisruptive course of action available and appropriate to the circumstances.

Children’s services are to be provided in a manner thatrespects the child’s need for continuity of care and for stable relationships in a family and a process that achieves permanent plans forchildren in accordance with their best interests. [70] Where a child is found to be in need of protection and intervention through court order is required to protect the child inthe future, the court, after having satisfied itself as to the efforts made by the society or another agency to assist the child beforeintervention, has available to it a series of orders ranging from supervision to crown wardship, intruding only as far as required, to protectthe child.

Only if a lesser disposition would be inadequate to protect the child does the court go to the next level of intrusion. (Seesection 57.) [71] Hearsay evidence is to be avoided. The rules of evidence are relaxed in applications for temporary care and custody ass. 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. [72] 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. [73] 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. [74] Where a Crown wardship order is made, subsection 59(2.1) of the Child and Family Services Act provides that noaccess order shall be made unless the court is satisfied that: i. the relationship between the person and the child was beneficial and meaningful to the child; and ii. the ordered access will not impair the child’s future opportunities for adoption. [75] A Crown wardship decision depends for its integrity on a judicial finding that there is no other available andappropriate alternative to promote the child’s best interests, protection and well-being.

Crown wardship is a disposition of last resort. Ifa child can be placed within the family without compromising the primary statutory purposes, they are so entitled. [76] Severance of a child’s ties with their family of origin is a power to be exercised only with the highest degree of caution. Crown wardship requires compelling evidence within the civil standard of proof that there is no other available and appropriatealternative for the child.

The society has made out a strong case for the conclusion that there is no other available or appropriatealternative for this child. [77] In determining the best interests of the child, the court must assess the degree to which the risk concerns which existedat the 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. [78] Consideration has been given as to whether the Society has given the parents an opportunity to parent. I find that theyhave. [79] J.B.R. is a young child with complex medical needs.

He was born with a very low birth weight, with two small holes inhis heart; breathing difficulties and genetic and neurological disorders. He continues to present with medical issues, though while in carehe has made some physical advances. [80] J.B.R. has been in the Society’s care since birth. Both Ms. M.B. and Mr. D.R. have shown a constant commitment toattempt to work with the Society to address their significant parenting deficits. [81] J.B.R. is Ms. M.B.’s fourth child. The first, born when Ms. M.B. was 12 was made a Crown ward for the purpose ofadoption. The second was a still birth.

The third was adopted by his paternal grandparents. Throughout Ms. M.B.’s earlier child welfareinvolvements the issues have remained the same. [82] The Society’s position remains that J.B.R. is not able to return home. It submits that Mr. D.R. and Ms. M.B. have notbeen able to make further gains in addressing the significant protection concerns related to their own emotional issues and their ability toprovide a safe and stable home for themselves, or J.B.R. Additionally, the Society remains concerned that Mr. D.R. and Ms.

M.B. areunable consistently to demonstrate a safe and nurturing environment for J.B.R. [83] The Society has been working with the parents to put into place counselling services to help them address theiremotional issues. The Society submits that both parents have failed to follow through with the counselling services provided. [84] The Society has requested the parents attend counselling to address their parenting and trauma histories, their anger, andtheir communication with one another. No information has been provided that Ms. M.B. and Mr. D.R. are working on these concerns.

Mr. D.R. has not initiated counselling in any capacity. [ 85 ] Ms. M.B. was attending regularly to counselling sessions with Ms. Nancy Daly at Rosalie Hall until July 18, 2011. [ 86 ] Mr. D.R. has not engaged in any counselling. [ 87 ] Exhibit A to the affidavit of Deidre White is a copy of the Society’s access plan. [ 88 ] R./B. Access Plan 08-31-11 I understand that the most important purpose of my access visits and/or communication is to help maintain or develop my child’s relationship with me. I have received a copy of the Access Information for Parents pamphlet.

My goals for access visits and/or communication with my child/ren include: o [Mr. D.R.] and [Ms. M.B.] do not have any goals at this time. My worker’s goals for my access visits and/or communication with my child/ren include: o [Ms. M.B.] and [Mr. D.R.] will take turns in implementing instrumental tasks: feeding, preparing meals, diaper change. o Parents will continue to learn about [J.B.R.’s] developmental milestones. They will also focus on encouraging [J.B.R.’s] language skills. o [Mr. D.R.] and [Ms. M.B.] will transfer the knowledge they have gained at [J.B.R.’s] medical and OT appointments into their visits.

My child’s goals for access visits with me include: o N/A. The plan for access visits and/or communication with my child/ren is: o Access visits are Tuesdays, 10:00 a.m.-12:00 p.m.; Thursdays, 10:00 a.m.-12:00 p.m. o [Mr. D.R.] and [Ms. M.B.] will continue to bring clean items for the visit. They are not required to bring items to each visit; however, whatever is brought to the visit should be clean. o [Ms. M.B.] and [Mr. D.R.] are to arrive 15 minutes early for the visit to prepare for their visit. o [Ms. M.B.] and [Mr.

D.R.] will take turns providing instrumental care for J.B.R.; they will work together to co-parent J.B.R. o [Ms. M.B.] and [Mr. D.R.] will continue to be mindful of [J.B.R.’s] needs and they will recognise that [J.B.R.’s] needs come before their own emotional needs, i.e., [Mr. D.R.] will continue to participate in the visit despite being upset. o [Ms. M.B.] and [Mr. D.R.] will receive a copy of [J.B.R.’s]

schedule and an explanation from FRC staff. It is an expectation that the parents will try to adhere to this schedule. o Parents will be mindful of hygiene, including pet hair, and will remove outer clothing in an effort to minimize allergens. [ 89 ] Ms. M.B. and Mr. D.R. have tried, within their limitations, to learn the information and strategies shared with them from the various programs and resources that have been implemented. [ 90 ] Mr. D.R. has stated that he volunteers at Sanctuary in downtown Toronto, where he helps in the kitchen with food preparation. [ 91 ] Ms. M.B. and Mr.

D.R. are observed praising J.B.R. when he does something well, for example, when J.B.R. pulls himself up to a standing position. They can be seen taking pride in their son’s achievements. [ 92 ] Mr. D.R. has been observed consistently to interact verbally with J.B.R. during various times of the visit, although this occurs at times when J.B.R. requires less stimulation, for example, when J.B.R. needs to sleep. [ 93 ] The Society has not been made aware of any concerns with respect to Ms. M.B. or Mr.

D.R. using drugs or alcohol. [ 94 ] The Society has not been made aware of any concerns with respect to any criminal involvement by either parent. Inability to understand J.B.R.’s medical condition [ 95 ] J.B.R. continues to require regular follow-up and ongoing involvement with many medical professionals and resources to aid in his growth and development. Housing [ 96 ] Mr. D.R. and Ms. M.B. continue to reside at XXX YYYYY Court with Mr. Vincent Forbes and other adults. Ms. M.B. and Mr. D.R. have yet to secure their own housing that could be properly assessed.

This present arrangement is unacceptable for J.B.R. [ 97 ] On or about July 20, 2011, Mr. Forbes attended at the Society and advised that Ms. M.B. and Mr. D.R. have been

residing with him for approximately three months. His apartment is a two-bedroom apartment and there were six adults living there atthe time, plus a number of animals. J.B.R. [98] J.B.R. has been followed by several medical professionals in the community since his birth. He attends appointmentswith a Respirologist, Geneticist, Cardiologist, ENT, and Developmental Paediatricians. He has follow-up appointments with many of theaforementioned professionals in the next six months to a year. J.B.R. is being followed by Grandview Children’s Centre in DurhamRegion and works with an OT and PT through this agency.

He has made significant gains in his development. [99] He has continued to develop and has met many of the milestones that we have been waiting for him to meet. Hepresents as approximately three months behind in his development. He has recently begun standing with support; however, he is recentlycrawling and sitting up. J.B.R. remains unsteady on his feet and requires constant supervision when in a standing position. J.B.R.remains unsteady on his feet and requires constant supervision when in a standing position. J.B.R. does not have any words at this time.

He cries, coos and squeals to indicate his needs or pleasure. [100] J.B.R. is followed by Dr. Avril Castagna and her OT. [101] J.B.R. currently weighs 21.2 pounds which is at the 25 percentile, his length is at the 97 percentile, and his headcircumference was 42 cm and is currently not on the curve. The Society’s paediatrician, Dr.

Susan Cohen, indicated that his head is stillquite small in comparison to his body. [102] 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 . [103] In a child welfare context, the goals and objectives of the Child and Family Services Act are to be read in their entirety.

Similarly, in determining the admissibility of evidence in child protection proceedings, this court and other courts are asked to apply a“contextual approach” including the governing principles and the values and principles in our Charter of Rights and Freedoms. [104] There is, of course, the potential for conflicting duties: imposing a duty of care in respect of the relationship between thefamily of a child in care and the child’s court-ordered service providers having regard to the service providers’ transcendent statutoryduty to promote the best interest, protection and well-being of the children in their care. [105] When a child is placed in the temporary care of the Children’s Aid Society, or if Crown wardship is ordered, the Childand Family Services Act creates an inherently adversarial relationship between parents and the state.

The fact that the interests of theparent(

s) and the child may occasionally align does not diminish the concern that, in many if not most cases, conflict is inevitable. [106] Nothing detracts from the Act’s overall and determinative emphasis on the protection and promotion of the child’s bestinterests, not those of the family. To recognize a duty to parents in this context could also result in conflicting duties in the provision oftreatment to children who have been removed from their parents’ custody.

It is very difficult to see how different professionals,including doctors and social workers, could all effectively work together if some of them owed a duty other than to the child/patient. [107] The Act itself provides a remedy for families seeking to challenge the way their child is treated. There is a clearlegislative intent to protect those working in the child protection field from liability for the good faith exercise of their statutory duty.

Since the statutory mandate is to treat the child’s interest as paramount, there is, where the duties to the child have been performed inaccordance with the statute, no liability to the family. [108] While the Act itself recognizes that the family is the most private of institutions, it also recognizes that the entitlement tobe free from state intrusion does not make the family immune from the state’s overriding duty to ensure that children are protected fromundue harm, including harm from the family. [109]

Section 1 states, in part: “1.

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

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children are: “1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy andintegrity 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 to help a child should beconsidered. “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. …” [110] The primacy of the best interests of the child over parental rights in the child protection context is axiomatic. As DaleyJ.F.C. observed in Children’s Aid Society of Halifax v. S.F. (1992), 110 N.S.R. 92d) 159 (Fam. Ct.): [Child welfare statutes] promot[e] the integrity of the family, but only in circumstances which will protect the child.

When the childcannot be protected as outlined in the [Act] within the family, no matter how well meaning the family is, then, if its welfare requires it,

the child is to be protected outside the family. [para. 5] [111] Pursuing and protecting the best interests of the child must take precedence over the wishes of a parent, e.g. King v. Low, (SCC), [1985] 1 S.C.R. 87; Young v. Young, (SCC), [1993] 4 S.C.R. 3; New Brunswick (Minister ofHealth and Community Services) v. L.(M.), (SCC), [1998] 2 S.C.R. 534. See also Catholic Children’s Aid Society ofMetropolitan Toronto v.

M.(C.), (SCC), [1994] 2 S.C.R. 165, that in child welfare legislation the “integrity of the familyunit” should be interpreted not as strengthening parental rights, but as “fostering the best interests of children” (p. 191).

L’Heureux-DubéJ. cautioned at p. 191 that “the value of maintaining a family unit intact [must be] evaluated in contemplation of what is best for thechild, rather than for the parent.” [112] The statutory references to parents and family in the Act are not stand-alone principles, but fall instead under theoverarching umbrella of the best interests of the child. [113] Child protection work is difficult, painful and complex. Catering to a child’s best interests in this context means cateringto a vulnerable group at its most vulnerable.

Those who do it, do so knowing that protecting the child’s interests often means doing so atthe expense of the rest of the family. Yet their statutory mandate is to treat the child’s interests as paramount. They must be free toexecute this mandate to the fullest extent possible. The result they seek is to restore the child, not the family.

Where the duties to thechild have been performed in accordance with the statute, there is no ancillary duty to accommodate the family’s wish for a differentresult, a different result perhaps than even the child protection worker had hoped for. [114] It is the child to whom the Society owes a fiduciary duty. [115] The English cases provide a helpful explanation of the competing issues at play. In In Re B (Children) FC, [2008] UKHL35, Baroness Hale explained: 20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authoritywhich does so.

In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child fromher family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity andindividuality. In a free and democratic society we value diversity and individuality.

Hence the family is given special protection in allthe modern human rights instruments including the European Convention on Human Rights (art. 8), the International Covenant on Civiland Political Rights (art. 23) and throughout the United Nations’ Convention on the Rights of the Child. As Justice McReynoldsfamously said in Pierce v. Society of Sisters 268 US 510 (1925), at 535, ‘The child is not the mere creature of the State.’ 21.

This is why the Review of Child Care Law (Department of Health and Social Security, 1985) and the white paper, The Law onChild Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could betaken from her family whenever it would be better for her than not doing so. As the Review put it, ‘Only where their children are put atunacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s]interests must clearly predominate’ (para. 2.13). …. 46.

The more common version of this dilemma, however, is not where a child’s care is shared between two households, but where it isshared between two parents. If the child suffers harm, and the judge cannot decide which parent was responsible, the thresholdcriteria are met. But how is the court to approach the next stage in the proceedings, the stage of deciding what order, if any, willbe in the best interest of the child?

In In re O (Minors)(Care: Preliminary Hearing); In re B (A Minor) [2003] UKHL 18, [2004] 1 AC523, the Court of Appeal in one case had held that the judge had to proceed on the basis that the child had not been harmed by themother and that she did not present a risk of harm to that or another child; in the other, a differently constituted Court of Appeal had heldthat as the mother had not been exonerated, the judge could not disregard the risk that she might present. [Emphasis added.] [116] Catholic Children’s Aid Society of Metropolitan Toronto v.

C.M., (SCC), [1994] 2 S.C.R. 165 consideredOntario legislation in the context of a review hearing. The legislation specifies the procedure to be followed, the evidentiaryrequirements, and the objectives to be taken into account. In her conclusion, L’Heureux-Dubé J. stated (at ¶48): 48.

The law that courts must apply in the present case is the Ontario CFSA which, properly interpreted, mandates a careful balancing ofits paramount objective of the best interests of the child with the value of maintaining the family unit and minimizing state intervention.… [117] The Act and the Supreme Court of Canada implicate constitutionally guaranteed rights of children and parents, involvingprinciples of fundamental justice (New Brunswick (Minister of Health and Community Services) v.

G.(J. [J.G.], (SCC),[1999] 3 S.C.R. 46, at ¶87 and ¶94, majority decision of Lamar C.J., and ¶112-119, companion decision of L’Heureux-Dubé J.). [118] The best interests of the child means the interests that appear to be best for the child under the circumstances, havingregard to all relevant considerations. The scope of relevant considerations is broad (L’Heureux-Dubé J. in Catholic Children’s AidSociety of Metropolitan Toronto v. C.M., supra at ¶33). [119] Quoting the Supreme Court of Canada in New Brunswick Minister of Health v.

G., (SCC), [1999] 3S.C.R. 46, the Court stated that, … the state can remove a child from parental custody only in accordance with the principles of fundamental justice which are to be foundin the basic tenets of our legal system. [120] The Chief Justice went on to say… Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural. The state may only

relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for makingthis determination. … For the hearing to be fair, the parent must have an opportunity to present his or her case effectively. …If [they are] denied theopportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s bestinterests.

There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interest toremain in his or her care. [121] The importance of procedural fairness is underlined in Children’s Aid Society of Halton Region v. C.J.R., [2005] O.J. No.5786, 2005 ONCJ 514. The Court found (during the original protection application) that the aunt and uncle who had cared for the childin the past should have been given formal notice of the status review application seeking Crown wardship.

Similarly, in A.M. v.Chatham-Kent Integrated Children’s Service Children’s Aid Society, [2006] O.J.

No. 2984 (O.C.J.), where the Society neglected its dutyto locate the father and give him notice of the wardship proceedings, the Court found that there was a lack of compliance with thefundamental principles of procedural and substantive fairness. [122] Although the Courts as well as the Legislature hold the best interests of the child to be paramount, the determination ofwhere those best interests lie cannot be an arbitrary one, foreclosing a parent, not shown to be disqualified, from an opportunity to showthat he will and can serve his child’s best interests. [123] Similarly the Court in A.M. v.

Chatham-Kent Integrated Children’s Service Children’s Aid Society, supra, in consideringwhether to overturn the order for Crown wardship, stated: I am cognizant that the results of this order may have a devastating impact on the child and his adoptive parents. Even if Mr. A.M. issuccessful on his motion, there is no guarantee that he will be successful on his application to parent the child. Ultimately that decisionhas to be made in F.A.A.M.’s best interests. But it is absolutely imperative that the rights of parents are not trampled on in the name ofexpediency when it comes to child protection.

It is up to the court to determine if a parent is capable of parenting a child and if aparent’s proposal is in the child’s best interests. [124] Although the best interests of the child are paramount, the fundamental right of a parent to be heard cannot be sacrificed. [125] On a motion for

summary judgment in child protection cases, the court must review all the evidence to determine if thereis a basis for the final order sought; a proper consideration of “a full evidentiary record” is necessary for a “good hard look” at theevidence on the motion; the court must then determine whether there are specific facts to support a triable issue; and then the court maydismiss the motion, rule that there are only certain issues that require a full hearing, or determination that there are no triable issues regarding the entire application. See B. (F.) v.

G. (S.) (2001), (ON SC), 199 D.L.R. (4th) 554 (S.C.J.). [126] 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. [127]

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 (Sup.Ct.). [128] 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. [129]

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

T.L. and E.B., 2010 ONSC 1376 . [130] 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. [131] 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 child is entitled to the permanence and security that Crown wardship and anadoptive placement offers. This disposition reflects his special needs, the importance for his development of a positive relationship witha parent and a secure place as a member of a family, the importance of continuity and the degree of risk presented to justify the continuedfinding that he is in need of protection.

While a child’s best interests presumptively lie with the parents, the presumption is clearlyrebuttable. [132] The parents have attempted to set out facts that show there is a genuine issue, specifically with respect to theirrelationship with J.B.R. I have reviewed the various plans of care to assess the threshold issue whether there is a genuine issue as to amaterial 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 the evidence 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 evidenceand, if I conclude that a weighing of evidence is necessary to determine the issue, the

summary judgment motion must be dismissed anda trial of an issue be ordered. [133] The disposition order that I make must be the least disruptive order available consistent with the best interests of thechild. “Best interests” is defined in subsection 37(3) of the Act and that subsection contains a non-exhaustive list of factors that the courtshall consider in determining best interests, if relevant. [134] When a child or children are out of the care of their parent or parents and return does not appear to be an option, the courtis mandated to investigate permanency plans for them.

An adoption order, by definition, is the most intrusive order available under thestatute. Since the 2006 amendments to the Act, other less intrusive permanency orders are available to the court for a child who has beenfound in need of protection. [135] The motion for

summary judgment is granted. The parents have failed to establish a genuine issue for trial.

In reachingthis conclusion, I found no material fact in dispute affecting the best interests of the child that would require a trial for resolution for thefollowing reasons. [136] J.B.R. has not been in of the care of his parents since one day after birth, for more than fifteen months. [137] The parents’ relationship to each other, the lack of housing, J.B.R.’s ongoing medical needs support the Society’sMotion. [138] J.B.R. needs a permanent home. [139] Although I find that the access between J.B.R. and his parents is generally positive and that J.B.R. loves his parents andthey love him, by granting the

summary judgment motion, I leave the issue of access to the child’s future adoptive parents to decide, asthey will be the persons charged with raising J.B.R. to adulthood. As is the case with any parent, they should have the ability to restrictcontact with any person who undermines their duty and responsibility to protect their child and the stability of the child’s home. [140] I am granting the

summary judgment motion brought by the Society and the following order shall issue: [141] J.B.R. (born […], 2010) shall be made a Crown ward. [142] For the reasons given, any less intrusive order into the lives of the birth family would be more disruptive to J.B.R. andnot be in his best interests. [143] Counsel to be notified. Released: 29 November 2011 Signed: “Justice Marvin A. Zuker”