Catholic Children’s Aid Society of Toronto v. L.M., 2011 ONCJ 146

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 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 . . . the 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) (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 No. C49610/09 DATE: 2011·I·31 CITATION: Catholic Children’s Aid Society of Toronto v. L.M. , 2011 ONCJ 146 ONTARIO COURT OF JUSTICE IN THE MATTER OF a protection application under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, for the Crown wardship of C.R.1 (born on […] December 2009), a child apparently in need of protection; BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — L.M. and T.R., Respondents.

Before Justice Stanley B. Sherr Heard on 25 January 2011 Reasons for Judgment released on 31 January 2011 CIVIL PROCEDURE —

Summary judgment — Grounds — No genuine issue requiring trial — Mother, who had lost her previous 5children to Crown wardship, gave birth to 6th child (girl, now 14 months old) whom children’s aid society apprehended at birth — Forpast 15 years, society had concerns about her poor parenting, poor judgment and lack of any insight into her parenting deficiencies andlack of any motivation to address those shortcomings, despite society’s repeated urging — Twice, she was hospitalized after allegedlyoverdosing on medication — In detailed reasons for judgment 4 years ago, court had granted

summary judgment of Crown wardship for3 of her children, rejecting plan submitted by mother and paternal grandmother for joint care (which was upheld on appeal) — Withrespect to 6th child, society made motion for

summary judgment: 1. To find girl to be child in need of protection.

Mother’s parenting history was against her and to overcome it, she had to show that she had made significant changes in herlife before girl’s birth but came nowhere close to doing so — She did not sought out any therapeutic services (counsellor,psychologist, psychiatrist or therapist) and could still not understand why society was interfering with her life — She had noinsight into her parenting deficiencies and was therefore quite unlikely to address them in future, all of which increased girl’srisk of harm — She recently experienced 3rd medication overdose, again claiming it to be accidental and not suicidal, callinginto question her ability to care for herself, let alone for young child — Motion judge found no triable issue on girl’s need ofprotection and allowed society’s motion on this point.2.

To make girl Crown ward.

Again, in view of society’s past parenting evidence derived from findings made at previous proceedings 4 years ago bymotion judge and appeal judge, mother now had to show that she had made meaningful changes in her life since that time thatwould overcome risk concerns — Sadly, mother had not bothered to see any counsellor, psychologist, therapist or psychiatrist,principally because she had absolutely no understanding of society’s concerns and thus saw no reason to change her ways —Her erratic attendance record for access visits was consistent with evidence of her inability to organize or manage her life andto put child’s needs ahead of her own — She recycled her old plan for joint care with paternal grandmother, even though thisplan had been previously rejected by court and by appeal court that had found grandmother neglectful of deadlines andcommitments and quite unco-operative with society — As with mother, grandmother had no evidence of any meaningfulchange in her lifestyle that would reassure court about her ability to parent child adequately with or without mother —Grandmother offered no medical evidence on effect of her age (69 years) on her ability to raise child — Moreover, she seemedblind to mother’s deficiencies and, more alarmingly, both women were working for return of abusive and violent father intomother’s household and into child’s life — Even in best-case scenario, girl’s placement with mother or paternal grandmotherwould be unthinkable without preliminary test of whether they could adequately parent child — Mother’s access had neverprogressed to unsupervised setting, then full-day visits and finally overnight access, all of which would require much moretime, but unfortunately, statutory time limits had run out and court could find no reason for extending time just to carry outpointless experiment — Motion judge could find no genuine issue requiring trial on whether dispositional option lessdisruptive than Crown wardship existed — Society’s motion for Crown wardship order allowed.3.

To allow any access to girl.

Mother’s evidence was that access visits were enjoyable and that she and daughter were affectionate with each another — Butthis fell short of test in subsection 59(2.1) of Child and Family Services Act, that access had to be “beneficial” and“meaningful” — Mother’s erratic attendance record for access visits could hardly be regarded as beneficial or meaningful forgirl — Motion judge had evidence that girl was healthy, happy and developing normally; that she was adoptable; and that anyaccess order would impair such adoption — On issue of access, motion judge could find no genuine issue requiring trial —Society’s motion for “no access” order allowed.

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subclause 37(2)(b)(i), subclause 37(2)(b)(ii), subsection 37(3),subsection 50(1), subsection 57(2), subsection 57(3), subsection 57(4), subsection 59 (2.1) and

section 141.1. Children’s Law Reform Act, R.S.O. 1990, c. C-11 [as amended]. Family Law Rules, O. Reg. 114/99 [as amended], rule 16. CASES CITED Catholic Children’s Aid Society of Hamilton-Wentworth v. G.-T. (J.) (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996Cars​well​Ont 1428 (Ont. Div. Ct.). Catholic Children’s Aid Society of Metropolitan Toronto v. M. (Cidalia), [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R.(4th) 321, 2 R.F.L. (4th) 313, , [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376. Catholic Children’s Aid Society of Toronto v.

W. (Virginia) and A.-C. (Alberto), , 20 R.F.L. (5th) 307, [2001] O.J.No. 2226, 2001 Cars​well​Ont 1895 (Ont. C.J.). Children’s Aid Society of Bruce County v. Bu. (Irene), Br. (John Melvin) and Saugeen First Nation Band, 2004 ONCJ 454, [2004] O.J.No. 6260, 2004 Cars​well​Ont 10004 (Ont. C.J.). Children’s Aid Society of Hamilton v. N.(M.) and N.(H.S.), , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007

Cars​well​Ont 2453 (Ont. Fam. Ct.). Children’s Aid Society of Niagara Region v. C.(S.) and M.(B.), , 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008Cars​well​Ont 5929 (Ont. Fam. Ct.). Children’s Aid Society of Niagara Region v. J.(M.), S.(K.) and S.(S.), , 4 R.F.L.(6th) 245, [2004] O.J. No. 2872, [2004]O.T.C. 634, 2004 Cars​well​Ont 2800 (Ont. Fam. Ct.). Children’s Aid Society of Niagara Region v. P.(D.) and B.(S.), , 36 R.F.L. (5th) 265, [2003] O.J. No. 619, 2003 Cars​-well​Ont 574 (Ont. Fam. Ct.). Children’s Aid Society of Peel Region v. M. (L.), R. (T.) and R.2 (C.), 2007 ONCJ 742, [2007] O.J.

No. 5770, 2007 Cars​well​Ont 9292(Ont. C.J.); affirmed at Children’s Aid Society of Peel Region v. M. (L.), R. (T.) and R.2 (C.), , 55 R.F.L. (6th) 152,[2008] O.J. No. 1896, 2008 Cars​well​Ont 2815 (Ont. S.C.). Children’s Aid Society of Toronto v. H. (Robin) and N. (Michael), , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853,2000 Cars​well​Ont 6170 (Ont. C.J.). Children’s Aid Society of Toronto v. L. (Lisa), Z. (Joseph) and B. (Evelyn), 2010 ONCJ 49, [2010] O.J. No. 5725, 2010 Cars​well​Ont10487 (Ont. C.J.). Children’s Aid Society of Toronto v.

L. (Tracy) and B. (Evonne), 2010 ONSC 1376, [2010] W.D.F.L. 1957, [2010] O.J. No. 942, 2010Cars​well​Ont 1343 (Ont. S.C.). Children’s Aid Society of Toronto v. P. (Dora) and L. (Raymond), , 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J.No. 4075, 2005 Cars​well​Ont 4579 (Ont. C.A.). Children’s Aid Society of Toronto v. T. (Kathleen) and W. (Charles), , 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736,2000 Cars​well​Ont 4827 (Ont. C.J.). Children’s Aid Society of Waterloo Region v. H. (Tara Lee) and C. (David Scott), 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J.No. 2371, 2005 Cars​well​Ont 8104 (Ont. C.J.).

Jewish Family and Child Service of Toronto v. A.(R.) and G.(J.) (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47,2001 Cars​well​Ont 73 (Ont. S.C.); affirming Jewish Family and Child Service of Toronto v. A.(R.) and G.(J.), , [2000]O.J. No. 6045, 2000 Cars​well​Ont 5169 (Ont. C.J.). Kawartha-Haliburton Children’s Aid Society v. C. (Dianne), , 32 R.F.L. (5th) 362, [2002] O.J. No. 3864, 2002 Cars​-well​Ont 3304 (Ont. Fam. Ct.). Rena F.

Knox ................................................................................. counsel for the applicant society Lance Carey Talbot ........................................................... counsel for the respondent mother, L.M. No appearance by or on behalf of respondent father, T.R., even though served with notice For previous proceedings, see: •

summary judgment of Crown wardship of 2 oldest and youngest child; no access for purpose of adoption of youngest:Children’s Aid Society of Peel Region v. L.M., T.R. and C.R.2, 2007 ONCJ 742, [2007] O.J. No. 5770, 2007 Cars​well​Ont9292 (Ont. C.J.), per Justice Patrick W. Dunn; and • affirmed on appeal: Children’s Aid Society of Peel Region v. L.M., T.R. and C.R.2., , 55 R.F.L. (6th)152, [2008] O.J. No. 1896, 2008 Cars​well​Ont 2815 (Ont. S.C.), per Justice Silja S. Seppi. JUSTICE S.B. SHERR:— 1: INTRODUCTION [1] The Catholic Children’s Aid Society of Toronto (the society) has brought a

summary judgment motion pursuant to rule16 of the Family Law Rules, O. Reg. 114/99, as amended (the rules), requesting the following orders: (

a) finding C.R.1 (the child), born on […] December 2009, to be in need of protection pursuant to subclauses 37(2)(b)(

i) and37(2)(b)(ii) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the Act); and (

b) making the child a Crown ward with no access. [2] The respondent, Mr. T.R., is the child’s father. He did not participate in this case and was noted in default on 25January 2011.

[3] The respondent, Ms. L.M., is the child’s mother. She asks that the

summary judgment motion be dismissed. She hasput forward a plan of care that would place the child in the joint care of her and the paternal grandmother, Ms. C.R.2. [4] I reviewed and relied upon: • the affidavits of, - Yogesh Patel, sworn on 30 September 2010, - Barbara Easwaran, sworn on 27 September 2010, - Deanna Riber, sworn on 12 October 2010 and 14 January 2011, - Ms. C.R.2, sworn on 19 January 2011, and - Ms. L.M., sworn on 19 January 2011, • the reasons for decision of Justice Patrick W. Dunn of the Ontario Court of Justice, dated 23 April 2007, and • the appeal reasons for decision of Justice Silja S. Seppi of the Ontario Superior Court of Justice, dated 13 May2008. 2: THE LAW ON

SUMMARY JUDGMENT [5] Rule 16 of the rules permits a party to make a motion for

summary judgment. The following subrules in Rule 16 arerelevant to this case: 16. When available.—

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

summary judgment for a final order without a trial onall or part of any claim made or any defence presented in the case. . . .

(4) Evidence required.— The party making the motion shall serve an affidavit or other evidence thatsets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) Evidence of responding party.— In response to the affidavit or other evidence served by the partymaking the motion, the party responding to the motion may not rest on mere allegations or denials butshall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) Evidence not from personal knowledge.— If a party’s evidence is not from a person who haspersonal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) No issue for trial.— If there is no genuine issue requiring a trial of a claim or defence, the courtshall make a final order accordingly. [6] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determinewhether there is a genuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. See Children’s AidSociety of Hamilton v. M.N. and H.S.N., , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Cars​well​Ont 2453(Ont. Fam. Ct.). [7]

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. See Jewish Family and Child Service of Torontov. R.A. and J.G. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J.

No. 47, 2001 Cars​well​Ont 73 (Ont. S.C.); affirmingJewish Family and Child Service of Toronto v. R.A. and J.G., , [2000] O.J. No. 6045, 2000 Cars​well​Ont 5169 (Ont.C.J.). [8] 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. See Children’s Aid Society of Toronto v. Kathleen T. and Charles W., , 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 Cars​well​Ont 4827 (Ont. C.J.). [9] The test for granting

summary judgment is met when the moving party establishes that there is no genuine issue ofmaterial fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreementabout a fact that a party is required to prove constitutes disagreement about a material fact. See Children’s Aid Society of Toronto v.Kathleen T. and Charles W., supra; and Children’s Aid Society of Waterloo Region v. Tara Lee H. and David Scott C., 2005 ONCJ 194,139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005 Cars​well​Ont 8104 (Ont.

C.J.). [10] As Justice Alex Pazaratz stated at paragraph [43] of Children’s Aid Society of Niagara Region v. S.C. and B.M., , 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 Cars​well​Ont 5929 (Ont. Fam. Ct.): “no genuine issue for trial existswhere there is no realistic possibility of an outcome other than that as sought by the applicant.” 3: FINDING IN NEED OF PROTECTION [11] The evidence is overwhelming that the child is in need of protection pursuant to subclauses 37(2)(b)(

i) and 37(2)(b)(ii) ofthe Act. There is no triable issue on this point. [12] The mother is 40 years old. This is her sixth child. The previous five children have been made Crown wards — two withaccess, three without access. [13] On

summary judgment motions, three of the five children were made Crown wards by Justice Patrick W. Dunn on 23April 2007; the youngest child (D.R.), born on […] September 2004, without access. See Children’s Aid Society of Peel Region v. L.M.,

T.R. and C.R.2, 2007 ONCJ 742, [2007] O.J. No. 5770, 2007 Cars​well​Ont 9292 (Ont. C.J.). This decision was upheld on appeal byJustice Silja S. Seppi on 13 May 2008.[1] See Children’s Aid Society of Peel Region v. L. M., T.R. and C.R.2., , 55R.F.L. (6th) 152, [2008] O.J. No. 1896, 2008 Cars​well​Ont 2815 (Ont. S.C.). [14] It is appropriate for this court to rely on the findings in these decisions as evidence of past parenting under subsection50(1) of the Act.

The society properly restricted its reliance on past parenting evidence to the findings set out in these two decisions; itdid not present the court with additional past parenting evidence, which could overwhelm the mother’s ability to address it, particularlyon a

summary judgment motion. See: Catholic Children’s Aid Society of Toronto v. Virginia W. and Alberto A.-C., ,20 R.F.L. (5th) 307, [2001] O.J. No. 2226, 2001 Cars​well​Ont 1895 (Ont. C.J.); Kawartha-Haliburton Children’s Aid Society v. DianneC., , 32 R.F.L. (5th) 362, [2002] O.J. No. 3864, 2002 Cars​well​Ont 3304 (Ont. Fam. Ct.); and Children’s Aid Societyof Bruce County v. Irene Bu., John Melvin Br. and Saugeen First Nation Band, 2004 ONCJ 454, [2004] O.J. No. 6260, 2004 Cars​well​-Ont 10004 (Ont.

C.J.). [15] Justice Dunn thoroughly set out the history of this case in paragraphs [9]-[47] of his decision and I rely on his findings offact. [16] This history includes the following findings of fact: (

a) Various children’s aid societies have been involved with the mother since 1996 (paragraph [10]). (

b) The initial concerns about the mother related to transience, poor parenting, poor judgment, her mental health(untreated depression) and a lack of understanding about the need for society involvement (paragraphs [10] and[15]). (

c) In 1999 and 2000, the Durham Children’s Aid Society (Durham) was receiving complaints that the mother was notproperly supervising her children (paragraphs [16] and [17]). (

d) In 2000, the mother overdosed on prescription medication that she was taking for migraines. The mother claimedthat this was accidental and not a suicide attempt (paragraph [18]). (

e) In 2001, the mother again overdosed on her prescription medication while caring for her three children. She washospitalized and clinicians found her to have depressed mood and adjustment disorder issues (paragraph [19]). (

f) In 2001, the mother hid her pregnancy from the society, was financially unstable and maintained that there wasnothing wrong with her (paragraph [19]). (

g) In 2002, Durham’s concerns with the mother related to inappropriate physical discipline of one child and thechild’s fear of her, the mother leaving the children unattended while attending bingo and her inability to meet thespecial needs of one of the children. The case was transferred in 2002 to the Children’s Aid Society of Peel Region(Peel) (paragraph [22]). (

h) In 2003, Peel was considering placing three children with the mother, but changed its mind because of her non-compliance with terms of supervision, the disintegration of her relationship with her own mother, her interferencewith the foster mothers of the two oldest children and her financial and housing instability (paragraph [28]). (

i) In 2004, Peel again considered placing the children with the mother, but it did not because of the mother’s actions. She was driving one of her children without a license and refused to assure the society that she would not do this inthe future. (

j) D. R. was apprehended at birth by the society. Additional concerns were that the mother did not obtain pre-natalcare for D. R., despite claiming that she had done so and that the mother as she had before with various societiesgave an unreliable history and frequently contradicted herself (paragraph [32]). (

k) Peel began a kinship assessment in 2004 of the paternal grandmother. She did not co-operate with this assessment,failed to sign forms, complete questionnaires, attend at meetings or return the society worker’s telephone calls(paragraph [34]). (

l) Up until the spring of 2005, the mother’s tardiness in arriving for access was a recurring problem. This improvedin the spring of 2005 (paragraph [38]). (

m) On 8 June 2005, the court, after successful home visits, approved a temporary placement of D. R. with the paternalgrandmother upon completion of a homestudy by Peel. She was required by the court to complete a satisfactoryhomestudy. There were two important requirements for the paternal grandmother to meet in the homestudy; toobtain a sole custody order under the Children’s Law Reform Act, R.S.O. 1990, c. C-11, as amended, and to ensurethat the mother was not left alone with the child.

To ensure her full-time availability to care for the child, thepaternal grandmother represented that she had arranged to be on maternity leave and that she would provide a letterconfirming this from her employer (paragraphs [38]-[39]). (

n) The placement of D. R. with the paternal grandmother was scheduled for 28 June 2005 and this date was known bythe paternal grandmother well in advance. The paternal grandmother became confused about the date andindicated that she would not be able to take maternity leave for another two weeks. Peel agreed to delay theplacement for two weeks, but asked for proof of maternity leave first. This was not produced and Peel successfullymoved to have D. R. placed in its care (paragraph [40]). Justice Dunn found this to be indicative of poororganization and an inability of the paternal grandmother to address the needs of the child. (

o) The parties (including the paternal grandmother) agreed in 2006 to a parenting capacity assessment of both themother and the paternal grandmother. This was conducted by a psychiatrist, Dr. Jean-Victor Paul Wittenberg. Hehad conducted a similar assessment of the mother in 2003 (paragraph [43]). (

p) While the parenting assessment was ongoing, Peel started another kinship assessment of the paternal grandmother. Peel strongly recommended to the paternal grandmother that she live separately from the mother (paragraph [44]). (

q) The paternal grandmother only partially complied with the requirements of the kinship assessment. The maternityleave letter was not produced, she did not provide all of the character references requested and police checks forpotential caregivers did not materialize (paragraph [46]).

(

r) It was held by Justice Dunn that it was unlikely that further attempts to place a child with either the mother or the paternal grandmother would have been successful. The mother and the paternal grandmother were each given several opportunities to have access expanded and for child placements but, because of their actions, or lack thereof, this did not occur (paragraph [70](D)). (

s) The mother and the paternal grandmother were so poorly organized over dates and events that it was hard to visualize either being able to produce a child for a routine doctor’s appointment. The mother’s propensity to supply inaccurate information was held by Justice Dunn to be seriously dangerous to a child’s safety (paragraph [70](F)). (

t) The mother and the paternal grandmother had a pattern of a lack of co-operation with professionals in the community. The paternal grandmother did not follow the advice of her own doctor regarding her health and failed to co-operate with the kinship assessment. [ 17 ] Justice Dunn made the following findings of fact arising from Dr. Wittenberg’s two parenting capacity assessments: (

a) The mother could not protect her children (paragraph [70]). (

b) The mother had not changed from the time of the first assessment to the second assessment (paragraph [70]). (

c) The mother was unlikely to change in the future (paragraph [70]). (

d) The mother was “a person satisfied with herself as she was and saw little need for major changes in her behaviour” (paragraph [70]). (

e) The mother could not place a child’s needs ahead of her own (paragraph [70]). (

f) The paternal grandmother had little control over the mother’s behaviour (paragraph [87]). (

g) The paternal grandmother was not in compliance with her medication or seeing her doctor regularly (paragraph [89]). [ 18 ] In the appeal decision, Justice Seppi made the following findings of fact arising from Dr.Wittenberg’s second assessment (see paragraph [25]), upon which this court relies: (

a) To put the children in the mother’s care would seriously endanger their futures. (

b) Although the paternal grandmother was more affectionate and nurturing than the mother, she had trouble following through on important issues relating to the care of the children, had health problems of concern to placing a two-year-old in her care and was unable to change the mother’s behaviour around the child. (

c) The paternal grandmother indicated to Dr. Wittenberg that she was considering living separately from the mother, but took no steps to do so. (

d) No evidence was produced to refute Dr. Wittenberg’s findings. [ 19 ] The following material facts since the date of the appeal decision until the child’s birth are not in dispute or were only baldly denied by the mother: (

a) The mother and the paternal grandmother continued to reside and plan together. (

b) The mother had another medication overdose in 2009. The mother, as she did with her prior overdoses, claimed that this was accidental. (

c) The mother told the society worker that she did not see any other evidence, other than the two assessments of Dr. Wittenberg, as to why her children were made Crown wards. (

d) The only steps that the mother took to address the protection issues set out by Justice Dunn and Justice Seppi were that, in 2009, she attended a pre-natal program run by the City of Toronto and a parenting program at Toronto General Hospital. The document that she filed in support states that the pre-natal program ran from 10 to 31 August, with the notation, “finished early”. [ 20 ] The mother argues that the past parenting evidence is historic and has little relevance to either the issues of finding or disposition. This court strongly disagrees.

There are two reasons why the past parenting evidence has considerable probative value: first, the sheer extent of the history, which reflects severe and chronic protection issues with multiple children and second, the fact that the decisions that made these findings are relatively recent. [ 21 ] In light of this parenting history, in order to have any chance to successfully contest the issue of finding, it was incumbent on the mother to demonstrate that she accessed supportive services and made significant changes in her life prior to the child’s birth. [2] She did not come close to demonstrating this.

She did not obtain any therapeutic services (such as seeing a counsellor, psychologist, psychiatrist or therapist). She still does not understand why the society has parenting concerns about her. This lack of insight into her parenting deficiencies means that she is highly unlikely to address them in the future. This increases the child’s risk of harm. Her medication overdose in 2009 mirrored the prior overdoses set out above, as did her explanation about the incident.

These overdoses call into question her ability to care for herself, let alone a young child. [ 22 ] The society’s motion to find the child in need of protection is granted. There is no triable issue on this point. 4: DISPOSITION 4.1: Material Facts [ 23 ] The following are the material facts relevant to the period since the child was born that are not in dispute or were only baldly denied by the mother: [3] (

a) The child was apprehended from the hospital on […] December 2009 and placed in the temporary care and custody of the society on 10 December 2009.

(

b) The child has remained in foster care since the apprehension, is developing normally and is healthy. (

c) The court ordered that the mother’s access be in the society’s discretion. This started two visits per week for two hours. InMarch of 2010, on consent, the access was increased to three times each week at the society offices. (

d) No further motion has been made to increase access. The mother’s access continues to take place at the society’s officeand is loosely supervised. (

e) The society requested proof from the mother that she had obtained some form of therapeutic assistance. The mother neverprovided this. (

f) Aside from taking one parenting course in 2010, the mother has not obtained any services. (

g) The paternal grandmother has not obtained services. (

h) The mother has been inconsistent in exercising access. She frequently cancels visits. Since 26 October 2010, the societyhas scheduled 33 visits. The mother did not attend at 15 visits, and was late for 10 of them. (

i) The paternal grandmother attends many of the visits.[4] No concerns were provided about her parenting ability duringthese visits. The society expressed several concerns about the mother’s parenting at visits but, since the mother providedconflicting evidence on this issue, I have not relied on this evidence. 4.2: Legal Considerations [24] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out byJustice Craig Perkins in Children’s Aid Society of Toronto v. Tracy L. and Evonne B., 2010 ONSC 1376, [2010] W.D.F.L. 1957, [2010]O.J.

No. 942, 2010 Cars​well​Ont 1343 (Ont. S.C.), as follows: 1. Determine whether the disposition that is in the child’s best interests is return to a party, with orwithout supervision. If so, order the return and determine what, if any, terms of supervision arein the child’s best interests and include them in the order. If not, determine whether thedisposition that is in the child’s best interests is society wardship or Crown wardship. (Section57.) 2.

If a society wardship order would be in the child’s best interests, but the maximum time forsociety wardship under section 70(1) has expired, determine whether an extension under section70(4) is available and is in the child’s best interests. If so, extend the time and make a societywardship order. If not, make an order for Crown wardship. 3. If a Crown wardship order is to be made and a party has sought an access order, determinewhether the relationship between the child and the person who would have access is bothmeaningful and beneficial to the child (section 59(2.1)(a)).

If not both meaningful andbeneficial, dismiss the claim for access. If so, go to the next step. 4. Determine whether the access would impair the child’s future opportunities for adoption(section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step. 5. Determine whether an access order is in the child’s best interests. If not, dismiss the claim foraccess.

If so, make an access order containing the terms and conditions that are in the child’sbest interests (section 58.) [25] Subsection 57(2) of the Act requires that I ask the parties what efforts the society or another agency or person made toassist the child before intervention under

Part III of the Act. The society assigned a family service worker to work with the mother priorto the child’s birth and arranged drug hair-strand testing. The mother received pre-natal care, went to a pre-natal program and attended ata parenting program. Once the child was born, the society arranged for drug testing on the baby, which came back negative. The childwas placed in a foster home and was provided medical care. A children’s service worker was assigned from the society to assist thechild and the foster family.

The society arranged for the mother to obtain a parenting program and facilitated visits. [26] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of thepersons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate toprotect the child. [27] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding toplace a child in care.

The only family or community plan that has been presented is the joint plan of the mother and the paternalgrandmother. [28] In determining the appropriate disposition, I must decide what is in the children’s best interests. I have considered thecriteria set out in subsection 37(3) of the Act in making this determination. [29] A Crown wardship order is the most profound order that a court can make.

To take someone’s children from them is apower that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after acareful examination of possible alternative remedies. See Catholic Children’s Aid Society of Hamilton-Wentworth v. J.G.-T. (1996), 90O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 Cars​well​Ont 1428 (Ont. Div. Ct.). [30] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time ofthe apprehension still exist today.

This must be examined from the child’s perspective. See Catholic Children’s Aid Society ofMetropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, , [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376. [31] A child’s need for permanency planning within a time frame 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 discernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s

removal of the child from their care and has developed some new ability as a parent. See Children’s Aid Society of Toronto v. Robin H.and Michael N., , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 Cars​well​Ont 6170 (Ont. C.J.), per JusticeHeather L. Kata​rynych. 4.3: Analysis [32] The mother’s plan is essentially the same as the plan presented before Justice Dunn: she and the paternal grandmotherwould jointly parent the child with extended family support. [33] I considered the following factors in support of the mother’s request to dismiss the society’s motion: (

a) The society filed no evidence disputing the mother’s assertion that she is responsibly exercising access to her twoolder children, who were made Crown wards with access.[5] (

b) The mother has maintained a stable residence with the paternal grandmother for several years. (

c) The paternal grandmother has regularly exercised positive access with the child. (

d) The paternal grandmother is now retired and would have more time to care for the child. (

e) The mother and the paternal grandmother both love the child and want to care for her. (

f) Placing the child with the mother and paternal grandmother would maintain her biological ties with her family andensure that she is raised in her own culture. (

g) The child does not have special needs.[6] (

h) There is no current evidence of drug abuse by the mother.[7] [34] I also agreed with the mother that some of the findings sought by the society were not supported by the evidence. Forexample: (

a) The society argued that, on the basis of the past parenting evidence, the paternal grandmother could not be expected to co-operate with the society. This may be the case, but despite considerable contact with her, the society provided no evidencethat the paternal grandmother has failed to co-operate with it since the child was apprehended. I cannot make this findingon a

summary judgment motion. (

b) The society relied on the previous court finding that the paternal grandmother would have little ability to control themother’s behaviour. However, it provided no evidence to support that this remained a concern despite the fact that it hashad the opportunity to observe the mother and the paternal grandmother together on numerous access visits. No evidencewas led about conflicts between the mother and the paternal grandmother or any dysfunction in their relationship. I am notprepared to make these findings, as requested by the society, on a

summary judgment motion. (

c) The society relied on previous observations by Peel workers that the paternal grandmother often presented as lethargic onaccess visits. Yet, despite observing numerous visits, there was no evidence led by the society that the paternalgrandmother has been lethargic on access visits with this child.

Current evidence on this issue is more probative thanobservations from 2007. [35] The issue for this court is whether, despite my comments in the previous two paragraphs, the society has met its onus ofestablishing that there is no triable issue with respect to the issue of disposition. [36] This court finds that the society has met the onus of establishing that there is no triable issue that the disposition shouldbe Crown wardship for the following reasons: (

a) The past parenting history details significant risk concerns about the ability of the mother to parent a young child. The riskconcerns include: (

i) The mother’s being unable to provide consistent and stable parenting for her children. (ii) The mother’s being unable to properly supervise children. (iii) The mother’s putting her needs ahead of her children, compromising their emotional and mental development. (iv) The mother’s having difficulty coping with parenting children and taking overdoses of medication, at least oncewhile parenting her children. (

v) The mother’s lacking any insight into her parenting deficiencies and not showing any ability or inclination tomeaningfully address them. (vi) As stated by Justice Seppi, the past parenting evidence indicates that placing a child in the mother’s care wouldseriously endanger his or her future. (

b) The past parenting evidence is critical in assessing the mother’s current plan for the reasons set out in paragraphs [20] and[21] above. Given the past parenting evidence, the mother needed to show the court that she has made meaningful changesin her life since Justice Dunn’s decision that would mitigate the risk concerns. See Children’s Aid Society of NiagaraRegion v. D.P. and S.B., , 36 R.F.L. (5th) 265, [2003] O.J. No. 619, 2003 Cars​well​Ont 574 (Ont. Fam.Ct.). In this case, the past parenting evidence is the baseline for the court to measure change.[8] (

c) Despite having ample opportunity to do so, the mother has failed to make a meaningful effort to address the risk concerns. At the very least, she should have sought therapeutic assistance. There is no evidence that the mother has seen anycounsellor, psychologist, therapist or psychiatrist since Justice Dunn’s order. It is clear from the evidence that the societywas repeatedly asking the mother for proof that she had accessed such services; she was or should have been aware of theimportance of obtaining these services. (

d) The mother’s erratic access attendance record is compelling evidence that she has not significantly changed. It informs thecourt that: (

i) She remains personally disorganized and is not able to manage her life. (ii) She is unable to put the child’s needs ahead of her own.

(iii) She lacks understanding of child development and the importance of a parent’s being a consistent and predictable presence for a child. How can she provide the child with continuity and stability if she cannot maintain this on access visits? How can she address the child’s physical, mental and emotional developmental needs when she is disregarding them in this structured setting, especially when she knows that the eyes of the court are upon her? (iv) The predictions set out in Dr. Wittenberg’s reports about her inability to change and his observations about her inability to put a child’s needs ahead of her own are accurate. (

e) The mother continues to demonstrate absolutely no understanding of the protection concerns. The closing submission of counsel for the mother was that “she still doesn’t understand why they are still involved.” This lack of insight has been a constant for many years. It is not surprising that there has been no change in the mother’s life when she does not accept that there is a need to change. There is no evidence that would give the court any confidence that her attitude will change in the future. This means, as predicted by Dr.

Wittenberg and accepted by both Justice Dunn and Justice Seppi, that there is little or any potential for improvement in her parenting. It means that any child placed in the mother’s care would likely be doomed to the same neglect experienced by her previous children. (

f) The only plan put before the court by the mother is for her to have equal parenting responsibility with the paternal grandmother. Any plan that includes the mother’s parenting the child is fundamentally flawed and unacceptable. Such a plan poses too significant a risk to the child and would not adequately address the child’s mental, emotional or developmental needs. (

g) The plan before this court is essentially the same plan rejected by Justice Dunn. It is vague and unrealistic. It does not adequately set out how parenting responsibilities would be divided or address the protection concerns. (

h) The paternal grandmother has also not been able to establish any meaningful change since Justice Dunn’s order that would give the court confidence that she could adequately parent the child with the mother. In particular: (

i) She has not accessed any support services that would assist her in understanding the society’s protection concerns and provide her with the necessary tools to protect the child. (ii) She continues to lack any appreciation of the protection concerns about the mother. This lack of insight reflects a lack of understanding of a child’s need for continuity and stability and the impact that a parent’s lack of availability can have on a child’s development. This raises the level of risk to the child.

If the paternal grandmother feels that the mother is a wonderful parent, she is less likely to be able to protect the child from risks posed by the mother. Particulars of the paternal grandmother’s lack of insight into the protection issues are: (

A) She describes the mother in her affidavit as having “tremendous parenting skills”. (

B) She states in her affidavit that the mother has learned from her mistakes, but does not set out any of these mistakes, or what has been learned. (

C) In her affidavit, she minimizes the mother’s 2009 overdose as an accident, not appreciating what impact this could have on a child in her care and not stating what course of treatment has been taken to prevent another such incident. (

D) She expresses in her affidavit a lack of understanding of why the appeal was dismissed, claiming that it was rejected without either her or the mother’s being notified. (

E) She still expresses confusion over why her prior kinship plan was rejected, when the decisions of Justice Dunn and Justice Seppi made it abundantly clear that it was due to her lack of co-operation. (

F) She provides no evidence in her affidavit how she would protect the child if placed in her care. (iii) She has provided no evidence about her medical status, although she knows that this is a risk concern, not only of the society, but as expressed by both Justice Dunn and Justice Seppi. (iv) She continues to live with the mother and plan with her, even though the prior court decisions cited her failure to separate from the mother as a factor in their decisions. (

i) Another flaw in the mother’s plan is that it appears to involve, to some extent, the child’s father. The mother’s answer and plan of care sets out that she has the emotional and financial support from the father. The paternal grandmother’s affidavit sets out that her son and the mother have been together for at least 20 years, that their relationship appears to be strong despite facing serious challenges and that there is a strong bond between them (paragraph 8). This is of significant concern to the court. The mother reported to Dr.

Wittenberg in 2003 that she was the victim of severe emotional and physical abuse from the father. [9] This evidence was before Justice Dunn and the paternal grandmother was aware of it. [10] The paternal grandmother did not address this serious issue in her material. The mother, in her affidavit, denied that any abuse had ever occurred. [11] This raises serious issues with the plan, which have gone unaddressed by the mother and the paternal grandmother and are more cogent because of the father’s choice to have no involvement with the society. Has the father been abusive?

Do the mother and paternal grandmother recognize this? If he has been abusive, has there been any change in his behaviour? Has he accessed services to address this issue? What is the extent of his risk to the child? To what extent will he be involved in parenting the child? What will be done to protect the child? Was the mother lying to Dr. Wittenberg in 2003 about the abuse? And if so, why, and how does this information impact upon her plan? [12] (

j) Although this plan was not put before me on the motion, I also considered whether there was a triable issue with respect to placing the child alone with the paternal grandmother and decided that there was not. [13] The concerns expressed about the vagueness of the paternal grandmother’s plan, her lack of insight into the protection concerns and the impact that this may have on the development of a child and her failure to take any steps to address the concerns raised by Justice Dunn and Justice Seppi dictate against a court’s placing the child in her care.

The court is also mindful that the paternal grandmother is now 69 years old and it would be a challenge for any person this age to raise an infant. Further, the paternal grandmother has failed to provide independent evidence to the court about her current medical status, even though she was aware that both Justice Dunn and Justice Seppi cited this as a risk concern in their judgments. (

k) Even in the best-case scenario, it would be unthinkable to place the child with the mother or paternal grandmother or both, without first testing whether they could adequately parent the child, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for at least 6 months for the court to effectively evaluate if a return of the child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child on an extended basis.

At this point, the mother has not even brought a motion to increase her access. And, based on the evidence before this court, if she did bring a motion to increase her access, it would not be granted.

(

l) The statutory time limits in

section 70 of the Act are an important consideration in making this decision. They have alreadybeen passed. The time to experiment with different parenting arrangements is over. Justice Seppi noted how the mother’stwo eldest children had been in care for over five years before being made Crown wards. It is essential to the child’s futurethat this mistake not be repeated. [37] The mother argued that no services were provided to her or the paternal grandmother before or after the child’sapprehension to assist them with parenting the child.

The services provided by the society to assist the mother and child are set out inparagraph [25] above.[14] Although it would have been helpful for the society to identify further specific services for the mother and thepaternal grandmother, this is not fatal to the

summary judgment motion. The mother and paternal grandmother had already clearlyexpressed that they did not consider that there were any issues with their parenting and did not see the need for society involvement. Thesociety had made it clear to the mother that it expected to see her obtain therapeutic assistance and continually asked her for proof ofobtaining such service. The mother and the paternal grandmother had reciprocal obligations to seek services to address the protectionconcerns clearly identified by both Justice Dunn and Justice Seppi.

They failed to take any action and cannot now say that the societydid nothing for them. [38] The mother argued that the society should have conducted another kinship assessment of the paternal grandmother. Given the history of this case and the fact that neither the mother nor the paternal grandmother had taken any meaningful steps to addressthe issues raised by Justice Dunn and Justice Seppi, the society was justified in moving this case quickly forward for a

summarydetermination.[15] [39] The mother also argued that the reports of Dr. Wittenberg are dated and that a new parenting assessment should havebeen conducted. This court disagrees. First, the findings of Justice Dunn and Justice Seppi are not dated and Dr. Wittenberg’sassessment findings are only pieces of the evidence upon which they relied. Second, the mother has never brought a motion for anupdated assessment. Last, the mother’s actions in the past two years have only served to verify the previous findings.

A furtherassessment is unwarranted. [40] There is no triable issue that the least disruptive alternative consistent with the child’s best interests is to make her aCrown ward. 5: ACCESS ]5.1: Legal Considerations [41] The onus to rebut the presumption against access to a Crown ward is on the mother. See Children’s Aid Society ofToronto v. Dora P. and Raymond L., , 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075, 2005 Cars​well​Ont4579 (Ont. C.A.). The mother has the onus of establishing both portions of the test in subsection 59 (2.1) of the Act. This is a verydifficult test for her to meet. [42]

Section 141.1 of the Act provides that, before a society can place a child for adoption, any outstanding order of access tothe child must first be terminated. An adoption placement cannot be made if there is an outstanding order of access. [43] The meaning of the phrase “beneficial and meaningful” was examined by Justice Joseph W. Quinn in Children’s AidSociety of Niagara Region v. M.J., K.S. and S.S., , 4 R.F.L.(6th) 245, [2004] O.J. No. 2872, [2004] O.T.C. 634, 2004Cars​well​Ont 2800 (Ont. Fam. Ct.), where he said: [45] What is a “beneficial and meaningful” relationship in clause 59(2)(a)?

Using standarddictionary sources, a “beneficial” relationship is one that is “advantageous”. A “meaningful”relationship is one that is significant. Consequently, even if there are some positive aspects to therelationship between parent and child, that is not enough — it must be significantly advantageous to thechild. [46] I read clause 59(2)(

a) as speaking of an existing relationship between the person seekingaccess and the child, and not a future relationship. This is important, for it precludes the court fromconsidering whether a parent might cure his or her parental shortcomings so as to create, in time, arelationship that is beneficial and meaningful to the child.

This accords with common sense, for thechild is not expected to wait and suffer while his or her mother of father learns how to be a responsibleparent. [47] Even if the relationship is beneficial and meaningful, I think that, as a final precaution, therestill must be some qualitative weighing of the benefits to the child of access versus no access, before anorder is made. 5.2 Analysis [44] There is no triable issue with respect to the issue of access.

The mother has not met the onus of showing that her access tothe child is beneficial and meaningful or that it would not impair the child’s opportunities for adoption. [45] The mother led evidence that indicates that visits with the child are enjoyable and that she and the child are affectionatewith one another. This falls short of being beneficial and meaningful. The mother cannot even maintain the limited access that has beengiven to her. This is not beneficial or meaningful for the child. [46] The evidence is that the child is healthy, happy and developing normally.

The child is adoptable and any access orderwould impair this.

6: THE ORDER [ 47 ] An order will go on the following terms: (

a) The society’s motion for

summary judgment is granted. (

b) The child is found to be a child in need of protection pursuant to subclauses 37(2) ( b )(

i) and 37(2)( b )(ii) of the Act . (

c) The child will be made a Crown ward without access, for the purpose of adoption. [ 48 ] I thank counsel for their able presentation of this motion.