Children’s Aid Society of Toronto v. J.F., 2019 ONCJ 248

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re 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) Prohibition re identifying person charged .— 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. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of Toronto v. J.F. , 2019 ONCJ 248 DATE: April 16, 2019 COURT FILE No.: C11883/17 BETWEEN: CHILDREN'S AID SOCIETY OF TORONTO Applicant, — AND — J.F. (mother) P.D. (father) Respondents Before Justice Roselyn Zisman

Heard on April 1, 2019 Reasons for Judgment released on April 16, 2019 Julia O’Byrne.................................................................... counsel for the applicant society Dumoluhle Siziba........................................... counsel for the respondent J.F. (mother) No appearance by or on behalf of P.D. (father)…………..previously noted in default Reasons for Decision Zisman, J.: 1. Introduction [ 1 ] This is a

summary judgment motion by the Children's Aid Society of Toronto (“the society”) regarding the child RD born on […], 2017 (“the child”). [ 2 ] The mother is JF. [ 3 ] The father is alleged to be PD. But PD denied he was the child’s father. He did not participate in the proceedings and was noted in default on January 10, 2019. [ 4 ] The society seeks an order pursuant to subrule 16 of the Family Law Rules (“ FLR ”) and pursuant to the society’s Status Review Application that the child be placed in the extended care of the society.

Although the plan is for the child to be adopted the society seeks an order silent as to access as such an order will provide the society with more flexibility. [ 5 ] The Respondent JF (“the mother”) is opposed to the order and seeks an order that the

summary judgment motion be dismissed and the case be set for trial. It is the mother’s position that there is a triable issue with respect to the child being returned to her care subject to a supervision order or in the alternative, that the child be placed in the care of a friend Ms JD with access to her or if an order is made for extended care that she be granted access. 2.

Background of events leading to apprehension [ 6 ] Prior to the birth of the child [1] , the society received a referral from a social worker at the hospital alerting the society that the mother was expecting to give birth and that there were previously identified concerns related to housing, finances and substance abuse. The mother admitted that she used marijuana and drank alcohol during her pregnancy. [ 7 ] The mother was in receipt of ODSP for depression and anxiety and had previously attended at a walk-in clinic and was referred to a psychiatrist. The mother blamed her depression on the death of her mother.

The mother had in 2011 harmed herself by cutting her wrists. [ 8 ] The society’s intake worker Vaninder Jandu attended at the hospital and encouraged the mother to remain in a 5 day and night program that enables high risk mothers to obtain additional supports. The mother agreed to remain and participate in this program. [ 9 ] Prior to the mother’s discharge from the hospital, the intake worker Ms Jandu attended at the mother’s home and was concerned about the lack of any planning for the child.

The mother lived in a bachelor apartment that was observed to be dirty, smelling of cigarettes with yellow stained walls and there was no play pen or crib for the child. [ 10 ] The mother was discharged from the hospital on November 9, 2017 with a safety plan that included assistance by her friends and members of her church and in particular her friend Ms DA [ 11 ] On November 9, 2017 the intake worker drove the mother to her building and met Ms DA and her daughter Ms FA.

The worker arranged that she would return on November 13, 2017 to assess how things were going. [ 12 ] However, on November 10 th the worker receiving a voice mail from Ms FA outlining her concerns with the mother’s care of the child. Ms FA reported that they had to move to her apartment due to bed bugs in the mother’s apartment. She also reported that the mother was not feeding the child properly, was not burping him and on one occasion the child was choking. The worker immediately attended to investigate. [ 13 ] The mother confirmed that she had to leave her apartment and move into Ms.

FA’s apartment due to bed bugs in her apartment. The mother agreed that she did not get up to feed the child at midnight because she was tired. [ 14 ] The mother denied the allegation by Ms FA that on one occasion the child was choking and the mother blamed Ms FA on causing the choking. During the conversation, the child began to cry, scream, became reddish, was choking and spitting up milk. The mother was unable to manage and handed the child to the worker. [ 15 ] The worker informed the mother that she was concerned about the child’s safety and would be apprehending the child. In

looking for clean clothes the worker discovered that all of the child’s clothes and blankets had fecal matter on them. The mother blamed the lack of clean clothes on Ms FA who she alleged changed the child frequently. [ 16 ] The mother continues to blame the apprehension on Ms FA who lied about her name [2] to the society and lied about her to the society. [ 17 ] The child was apprehended on November 10, 2017 as the safety plan had not worked and there were ongoing concerns about the child’s safety. 3.

History of court proceedings [ 18 ] On November 15, 2017 a temporary without prejudice order was made placing the child in the care and custody of the society, [ 19 ] On May 29, 2018, on consent and based on a Statement of Agreed Facts the child was found to be in need of protection pursuant to section 74 (2) (b) (

i) of the Child Youth and Family Services Act . (“CYFSA”).

The matter was adjourned for disposition. [ 20 ] On September 12, 2018, on consent and based on a Statement of Agreed Facts the child was placed in interim society care for 3 months. [ 21 ] On November 2, 2018, the society issued an Early Status Review Application seeking an order placing the child in the extended care of the society. [ 22 ] On January 10, 2019 the mother served an Answer and Plan of Care seeking to dismiss the society’s Status Review Application or to have the child placed in her care subject to supervision or in the further alternative, if an extended order is made she sought an order for unsupervised access including overnight access. [ 23 ] On January 10, 2019 society counsel advised that she wished to proceed by

summary judgment motion and a timetable was set for the serving and filing of materials. A hearing date of April 1, 2019 was set. 4. Evidence filed on

summary judgment motion [ 24 ] In support of the

summary judgment motion the society relies of the following: Notice of Motion dated February 14, 2019 Affidavit of Vaninder Jandu sworn February 12, 2019 (intake worker) Affidavit of Kasia Kaczmarek sworn February 14, 2019 (family service worker) Affidavit of JS sworn February 13, 2019 (foster mother) Affidavits of Melanie Nicholl sworn February 15, 2019 and March 27, 2019 (family support worker) Affidavit of Tammy Ashton sworn February 7, 2019 (adoption worker) Early Status Review Application dated November 2, 2018 Plan of Care of society dated November 21, 2018 Answer and Plan of Care of mother dated January 10, 2019 Statement of Agreed Facts signed May 29, 2018 Statement of Agreed Facts signed September 12, 2018 Document and Practitioners’ Reports Brief from William Osler Health system-Etobicoke General Hospital regarding the mother dated November 6, 2017, September 13, 2017 and November 8, 2017 [ 25 ] In response to the

summary judgment motion the mother relies on the following: Affidavit of the mother sworn March 21, 2019 with a letter from Marcie Pekar of The Jean Tweed Centre dated April 23, 2018 attached as an exhibit Affidavit of JD sworn March 21, 2019 (support person and alternative caregiver) Answer and Plan of Care dated January 10, 2019 [ 26 ] Both counsel filed Facta and Books of Authorities. [ 27 ] At the commencement of the

summary judgment motion I raised the issue of the admissibility of the letter by Marcie Pekar from The Jean Tweed Centre (“Jean Tweed”) that outlines the mother’s participation in parenting programs, provides Ms Pekar’s opinion and the opinion of unnamed staff about the mother’s interaction and attachment to the child.

[ 28 ] Counsel for the society indicated that she was not objecting to the letter being admitted but would be submitting that the court put limited weight on the letter. [ 29 ] Counsel for the mother submitted that the letter should be admitted and that the court should put considerable weight on it. [ 30 ] I am not prepared to admit this letter. The court follows the line of cases that on a

summary judgment motion the evidence presented should be trial worthy. [3] [ 31 ] I find that there is no basis for a different standard to apply to the evidence presented by parents than the standard applied to the evidence of the society. The practice of counsel taking short cuts and not proffering admissible evidence on

summary judgment motions should be discouraged. The use of such letters simply attached to an affidavit deprives the opposing party of the ability to cross-examine the author of the letter. It is not appropriate for a court to simply admit such evidence and then place no weight on it as this abrogates the judge’s responsibility as a gate keeper. [ 32 ] In this case, there is no explanation as to why an affidavit could not be prepared by Ms Pekar.

Other than indicating that she is the “Coordinator, Mom and Kids Too” there is no information about her qualifications to provide opinions about issues such as attachment and the mother’s parenting abilities. The letter contains hearsay opinions from other unknown staff.

The letter also contains facts that are not only contrary to the evidence of the society workers but also contrary to the mother’s own evidence. [ 33 ] Even if I had admitted the letter, I would have not attached any weight to the opinions in the letter given that the letter is almost a year old and there is no information about the qualifications of the author of the letter to provide opinions about the mother’s parenting abilities.

Most importantly there is evidence from the society worker, which is not denied by the mother, that the mother terminated her involvement with Jean Tweed a few months after the date of this letter. [ 34 ] The inadmissibility of the letter is not unduly prejudicial to the mother as there is no dispute that the mother did attend for counselling and parenting programs at Jean Tweed and there is admissible evidence about the mother’s positive interactions with the child. 5.

Summary of society’s evidence and mother’s responses [ 35 ] It is the position of the society that there is no genuine issue requiring a trial and that the concerns that resulted in the child being apprehended continue to exist despite the many attempts by the society and other supports to assist the mother. [ 36 ] It is the mother’s position that the only reason the child was apprehended was due to Ms FA’s false allegations about her inability to care for the child and that the child should be returned to her and she will use the supports of the society and Jean Tweed.

It is submitted that there are genuine issues that require a trial but no specific facts have been pleaded. [ 37 ] The concerns of the society and the society’s evidence that support its position and the mother’s responses to those concerns and that evidence are outlined below. 5.1 Mother’s mental health [ 38 ] The society has had concerns about the mother’s mental health and its impact on her ability to parent the child since their involvement. [ 39 ] The mother acknowledges that she has a history of mental health issues and deposes in her affidavit that she “previously had mental health issues” that included anxiety and depression that were as a result of her mother passing away in 2003 and her brother in 2015.

The mother also deposes that although she was prescribed medication she did not take it as she preferred to self-treat. Prior to her pregnancy the mother last saw a psychiatrist in July 2011. The mother deposed that she is in receipt of ODSP as a result of depression. [ 40 ] After the mother gave birth and while she was in the hospital the mother was assessed by a psychiatrist [4] who concluded that the mother was pleasant, cognitively intact, not suffering from any mood disorder but from anxiety which was justified in the situation.

It does not appear from the report that the mother advised the psychiatrist regarding her past history of mental health issues or previous attempts to self-harm. [ 41 ] The mother reported to the family service worker, Kasia Kaczmarek on March 25, 2018 that she had been crying a lot and had been prescribed anti-depressants by a nurse at Jean Tweed. Over the next several months the mother continued to tell the family service worker that she thought she may have depression but that the anti-depressants were helping her.

But on other occasions the mother reported that she had not filled her prescription for the anti-depressants. The mother reported that she was stressed, overwhelmed, exhausted, and had been sleeping a lot. [ 42 ] The mother spoke to the family service worker repeatedly about seeing a psychiatrist either through Jean Tweed or obtaining a referral from her family doctor through the spring, summer and fall of 2018. [ 43 ] As of May 7, 2018 the mother told the family service worker that she had not called the Jean Tweed psychiatrist, Dr.

Buckley, about setting up an appointment. [ 44 ] In a meeting on October 11, 2018 the mother told the family service worker that she needed to go back to her family doctor as she had not yet heard from the psychiatrist. At a further meeting on November 19, 2018 the mother stated she called a psychiatrist but had not yet heard back. [ 45 ] At the present time the society is unaware of the name of the psychiatrist or even if the mother is seeing anyone. [ 46 ] As recently as January 16, 2019 the mother apologized to the society family support worker Melanie Nicholl about missing

access visits and told her that she has been depressed and feeling hopeless. [ 47 ] In the mother’s affidavit, she states that she attended Jean Tweed and met with a counsellor on a weekly basis to address her depression but does not provide any other details and no report was filed from her counsellor. The society was aware that the mother was previously attending for counselling at Jean Tweed but as of June 2018, the mother acknowledged that she was no longer in contact with Jean Tweed. [ 48 ] The mother deposes that she is currently on medication for possible post-partum depression.

She does not provide any other details as to who made this diagnosis or the nature of the medication. [ 49 ] The mother also deposes that she contacted Dr. Buckley a psychiatrist at Jean Tweed and will continue to use his services when the child is returned to her. She also deposes that she is currently connected with a new psychiatrist who is providing her with a prescription for depression. [ 50 ] The mother did not provide an explanation as to why she did not provide any of this information to the society. The mother does not provide any further information or details in her affidavit about when she saw Dr.

Buckley, why there is no report from Dr. Buckley or the name of the psychiatrist she is seeing and why there is no report from that psychiatrist. 5.2 Mother’s inability to meet her own needs [ 51 ] It is the society’s evidence that in the 17 months that the society has been working with the mother she has been unable to meet her own basic needs. 5.2 (

a) mother’s inability to attend to her medical needs [ 52 ] On February 5, 2018 the mother reported to the family service worker that she was in pain due to a tooth ache and needed to find a dentist as soon as possible. The mother was unable to attend 6 sessions at the parenting program she was attending with the child at Jean Tweed due to the pain from her tooth ache.

This led to her not successfully completing the program and needing to take the program again. [ 53 ] At a morning meeting on April 3, 2018, the mother reported that she was still in pain due to her tooth ache and that she had meant to go to the dentist but she felt overwhelmed, exhausted and it all felt “too much for her”. However, later that day the mother reported that she had attended at the dentist, had the tooth pulled and felt better. [ 54 ] In July 2018, the mother attended for a supervised visit with a large bruise on her right cheekbone and another on her right eyebrow near her temple.

The mother said “some girl” beat her up and did not offer any other explanation. Later in the visit, the mother told the family support worker that she had not been sleeping lately and had not been able to think clearly or remember things. The mother reported that her head had not “felt right” since the assault. The worker asked if she may have a concussion from being punched in the face and encouraged her to seek medical attention and request an x-ray for her jaw and shoulder.

The mother did not respond to this allegation and offered no evidence that she attended for an x-ray or sought medical attention for her injuries. [ 55 ] During a home visit on November 30, 2018 the mother complained to the family service worker about her back being sore and pointed to a requisition for an x-ray that she still needed to get done. When asked where she could have the x-ray done the mother advised it was just across from her building.

As of December 4, 2018 the mother again complained about her back and acknowledged she had not yet had the x-ray. [ 56 ] On that same visit on December 4 th , the mother told the family support worker that she had a foot infection and that her feet hurt and smelt really bad. She refused to let the worker look at the foot. [ 57 ] In the mother’s affidavit she does not dispute any of these facts and offers no explanation about her ongoing procrastination to meet her own medical needs. 5.2 (

b) mother’s inability to manage her finances [ 58 ] The mother has struggled to manage her finances for much of the time that the society has been involved. [ 59 ] On June 6, 2018 the mother told the family service worker Ms Kaczmarek she was out of money for the month but for the next month she would make a list and buy food to bring to the access visit.

The family service worker had previously told the mother that the society wanted to try access at the Saturday access program but that she would need to bring food for the child if she participated. [ 60 ] However, the next month on July 12, 2018, the mother had not followed through and told the family service worker that she was planning to go to the food bank.

On August 20 th the mother again told the family service worker that she had run out of money. [ 61 ] In preparation for home visits, the society family support worker Ms Nicholl had asked the mother to buy several small items, a bib, sippy cup, plate, bowl, utensils and snacks that the child liked. The mother has assured the worker that she was able to purchase these items.

However, on November 9, 2018 the mother told the worker that she had been unable to purchase the items as she had no money until the end of the month. [ 62 ] On that same day, the mother told Ms Nicholl that she pays $100 per month for rent and cannot afford cable, internet or data for her phone.

When asked where her money goes, the mother stated that she smoked a lot and owes people money because they give her smokes on credit. [ 63 ] When asked by the family service worker Ms Kaszmarek why the mother had run out of money at the beginning of the month in November, the mother claimed it was because she owed bills but they were now paid off.

[ 64 ] During a home visit, the mother advised Ms Nicholl that ODSP was holding her December cheque because she did not get around to completing a medical review package which was due in March 2018. The mother stated that she had written a letter for an extension. The mother also told the worker that her phone was cut off the day before. The mother also reported that she needed to complete a rent review form that was due on December 13, 2018. [ 65 ] For the last weeks in November and first week of December the mother had no money to buy food and her cupboards were empty.

On December 7, 2018 the foster mother sent over four bags of groceries for the mother. [ 66 ] In the mother’s affidavit she does not dispute any of these facts. [ 67 ] The mother attributes her poor attendance at access visits due to her lack of funds. However, the family service worker deposes that the society provides the mother with tokens to get to and from the visits.

The mother did not deny this fact. [ 68 ] The only evidence the mother provides on this issue is an acknowledgement that on December 24, 2018 she lost the tokens Ms Nicholl had given her to get to the visits and had no bus fare to come to the scheduled Christmas visit. This is despite the fact that on the visit on December 21 st , the mother left early to cash her cheque and told the worker that she would see the child on the following Monday with Christmas presents. [ 69 ] In the mother’s affidavit she deposes that if the child is returned to her care, she will received extra funds from ODSP.

She also deposes that she “resolved” her financial situation by discussing the matter with her support Ms JD who has been helping her with her budget. In Ms JD’s affidavit she does not discuss or confirm any help she has given to the mother regarding her budget. [ 70 ] The mother did not provide a proposed budget. 5.2 (

c) mother’s inability to ensure that her home is kept clean and safe [ 71 ] The inability of the mother to ensure that her home was clean, safe and child proofed has been an ongoing issue. [ 72 ] The initial plan for the mother and child to reside in the mother’s apartment after her discharge from the hospital was changed as the mother reported that there were bed bugs in her apartment. [ 73 ] After the apprehension, the family service worker noted that the mother had started to make some progress to address the society’s concerns.

She attended at the mother’s home on January 10, 2018 and found that the apartment was clean and uncluttered but the mother reported that she wanted to transfer to another apartment and needed to get treatment for bed bugs. [ 74 ] In April 2018, the mother asked for help with the bed bug issue that she had still not been dealt with. The society supplied the mother with the items she requested plastic bags, laundry detergent and some money for laundry.

The mother told the family service worker that people had come to try to treat the apartment but could not because her cat was there and she would arrange for them to come again. [ 75 ] By May the mother had still not taken the necessary steps to arrange for a fumigation.

The family service worker told the mother she needed to have her landlord spray the apartment twice and then the society would arrange and pay for a company called Fresh Start to further help with the bed bug issue. [ 76 ] In June the mother confirmed that Fresh Start had come that month but she had not allowed them into her apartment. [ 77 ] It was not until August that the mother confirmed that Fresh Start had come and would be coming one more time.

They had helped her get rid of her bed and did her laundry and she had to throw out her bedding. [ 78 ] When the family service worker attended at the mother’s apartment on August 17, 2018 she observed there was a problem with one of the electrical outlets and the mother agreed that is was not safe for the child and she would have it fixed. Some of her kitchen cupboards also needed to be fixed and the mother was told to contact her landlord.

The family service worker pointed out that the mother’s priority needed to be to get her place ready for home visits. [ 79 ] On another visit in August, the family service worker observed that the mother’s apartment was clean and the mother reported that the spraying, Fresh Start and the cleaning had really helped with the bed bug problem.

The mother reported that she had found a cover for the electrical outlet and was going to cover it that day. [ 80 ] At a home visit on October 11, 2018, the family service worker observed that the electrical outlet that she had told the mother needed to be covered up in August was still not covered. [ 81 ] In November the mother reported that the landlord had been spraying the apartment weekly and she no longer had bed bugs. [ 82 ] When the family service worker attended at the home for the 5 home access visits from November 20 th to December 7, 2018, she observed that the outlets and power bar was still not covered and there were no latches on the lower kitchen cupboards under the sink that created a safety hazard for the child. [ 83 ] During the visit on November 30 th , the mother pointed out a cockroach and she told the family support worker that she needed to have the apartment sprayed next week and clean her cupboards. [ 84 ] During the visit in the following week, the family service worker observed a large cockroach scurry across the floor, when asked if she had her apartment sprayed, the mother said that she “totally forgot” and had also not yet cleaned her cupboards. [ 85 ] In the mother’s affidavit she does not dispute any of the society’s evidence regarding the difficulties around keeping her

apartment clean, safe and child proofed. 5.3 mother’s lack of supports [ 86 ] The society attempted to build a safety plan for the mother so that the child could be placed in her care and encouraged the mother to advise the society about any possible supports. [ 87 ] Initially the mother appeared to have the support of the Rexdale Alliance Church that provided some items for the child and helped clean the mother’s apartment. [ 88 ] However, shortly after the child was apprehended the mother advised the intake worker that she no longer trusted the person helping her from the church and wanted nothing else to do with him.

The mother offered no other explanation. [ 89 ] The family service worker made a referral to a society kinship researcher who was unable to find anyone on the maternal or paternal side of the family able and willing to plan for the child. [ 90 ] In the mother’s affidavit she deposes that she has been in touch with her step-father and he will support her by contacting her regularly and checking up on her and the child. [ 91 ] However, the mother reported to the family service worker over the last year that her step-father was avoiding her, that she no longer wants him as a support as he is negative and blames her for things.

The mother also told the worker that she did want to attend her church in Mimico as she worried that she might bump into her step-father as he lives in Mimico. [ 92 ] As recently as November 20, 2018 the mother was unable to name anyone she could call to help her care for the child if she was too ill or too depressed to care for him. [ 93 ] However, in her affidavit the mother proposes that Ms JD will be a support for her or a possible kin plan if the child was not returned to her care. [ 94 ] During a home visit with the family service worker on October 11, 2018 the mother mentioned that she would ask Ms JD who lived in the building next door about helping her and about presenting a possible kin plan. [ 95 ] The family service worker deposes that she did not hear about this plan again until January 10, 2019 at a court attendance.

At that time Ms JD advised the worker that she would prefer to help the mother with the child but if there was no other option she would take the child. The family service worker referred Ms JD to the society’s kinship department. [ 96 ] Despite putting this kin plan forward in January 2019, Ms JD did not meet the child until an access visit on March 26, 2019. During that access visit, the family support worker in her reply affidavit, deposes that she observed tension between Ms JD and the mother and noted that Ms JD spent a lot of the visit telling the mother what not to do.

Ms JD’s tone was noted to be impatient and sarcastic at times when speaking to the mother. [ 97 ] The mother told the worker that she regretted identifying Ms JD as a potential support. She said that Ms JD acts like the child is her son and tries to intimidate her. The mother told the worker she would not be bringing Ms JD to her next visit. [ 98 ] In Ms JD’s affidavit she does not outline her understanding of the child protection concerns that resulted in the child being placed in the care of the society and continuing to be in its care.

Instead, she deposes that she is supportive of the child being placed in the care of the mother but if that plan fails then her plan should be considered. [ 99 ] Ms JD deposes that she is 68 years old and retired and receives income from the Canada Pension Plan and her deceased partner’s benefits. She deposes that she does not have a criminal record.

She deposes that she is aware that the society’s kin department is awaiting information from her child protection file from the Catholic Children’s Aid society but offers no details about her own child welfare history. [ 100 ] Although the society is doubtful that the plan will be approved, it will continue to be assessed by the kinship department. 6. Efforts to support the mother [ 101 ] At the first Plan of Care meeting held on December 5, 2017 shortly after the apprehension, the intake worker advised the mother that she needed to focus on getting the child returned to her care.

She suggested that the mother attend a parenting program, Mothers in Mind. The mother agreed to attend. [ 102 ] When the mother met with the family service worker in January 2018, she had followed up with the referral and was also attending at Jean Tweed for counselling and in March started the Mom and Kids Too (MK2) program at Jean Tweed. The society facilitated bringing the child to the program to spend full day access there. [ 103 ] However, shortly thereafter the mother began to miss visits at Jean Tweed.

The mother explained that she missed a visit because she was ill, another visit was missed because she needed to go to her housing office and deal with her apartment issues and then further visits were missed because she was in pain because of her tooth and felt overwhelmed and exhausted. After taking a week off, the mother again began to attend for the MK2 program. [ 104 ] The mother registered for another MK2 program at Jean Tweed and attended until the beginning of June 2018.

[ 105 ] At a meeting attended by the mother, the family service worker and staff from Jean Tweed, it was agreed that the mother had missed some visits and the staff felt it was no longer necessary for her to attend the program. It was agreed that the mother would continue for counselling at Jean Tweed but that visits would no longer occur there. [ 106 ] There is no dispute that Jean Tweed was a support for the mother and that she participated in their programs. [ 107 ] The family service worker and the family support worker were assigned to assist the mother.

The family support worker provided the mother with hands on assistance and support during her access visits. [ 108 ] The society facilitated transporting the child to Jean Tweed so the mother could participate with the child in their parenting program. [ 109 ] After the mother’s involvement ended at Jean Tweed in June 2018, the society attempted to facilitate access through Ujima House but the mother did not feel comfortable there and did not participate in the intake process. [ 110 ] The society arranged for and paid for a bed bug fumigation company, Fresh Start, to attend at the mother’s home on two occasions to deal with the bed bug infestation in her home. [ 111 ] The society also offered to provide bus fare for the mother to attend her old church in Mimico that she declined. [ 112 ] The society gave the mother bus fare to attend the access visits and other appointments. [ 113 ] Both the family service worker and the family support worker offered their assistance to the mother when she was dealing with her ODSP being held back.

The mother declined their offers. [ 114 ] The society bought various items for the child to enable the mother to have visits with the child in her home. The family support worker took the mother shopping to buy a variety of items for the visits that the mother had previously agreed to purchase herself. [ 115 ] In her affidavit, the mother does not dispute the assistance the society offered to her. [ 116 ] The mother deposes that she greatly benefited from the MK2 sessions but missed sessions because of health conditions and volunteered to re-take the program.

The mother deposes that if the child is returned to her care, she will re-enrol in “the after-care” program and that this will be a reliable support for her. 7. Mother’s access visits [ 117 ] The family support worker Ms Nicholl deposes that she has supervised the mother’s access since July 10, 2018.

She attempted to help the mother by providing safe, nurturing and positive access visits by giving feedback, role playing and role modelling, giving direct instruction, proving tools and charts, giving prompts, reinforcing positive behaviour, encouraging the mother to include support people in her visits and having formal and informal discussions after access visits. 7.1 the mother’s strengths [ 118 ] The mother attended visits consistently at the society offices up until about October 2018.

She arrived early and occasionally used this time to set up the room before the child arrived. [ 119 ] The mother was always gentle and loving and showed the child lots of affection.

She played games with him that he enjoyed. [ 120 ] She was obviously proud of him and took lots of pictures and videos of him. [ 121 ] The mother learnt to attend to the child’s instrumental needs such as feeding, changing him and providing a quiet space and opportunity for him to sleep if needed. [ 122 ] The mother often expressed appreciation for the foster mother and wrote in the communication book after each visit and in any face to face interaction she was respectful of the foster mother. [ 123 ] When on occasion the mother responded in anger to a suggestion made by the family support worker, she always apologized the next time and tried to work cooperatively with her. 7.2 mother’s attendance at access in society’s office [ 124 ] It is the evidence of the society that initially the mother’s access was consistent but over time became sporadic. [ 125 ] From November 30, 2017 to March 5, 2018 the mother had fully supervised visits at the society’s offices for 2 hours twice a week.

On January 26, 2018 an additional 3 hours visit was added each week during the Mothers in Mind program. [5] [ 126 ] In March 2018 the mother began to exercise access at Jean Tweed 3 times a week for a full day. The program facilitator advised the society that the mother’s attachment was great and there were no concerns about her parenting. But by late March the mother began to miss visits due to illness, a housing appointment and depressive moods. The mother began the program again a few weeks later.

[ 127 ] When the mother’s Involvement at Jean Tweed ended in June, the visits returned to the society’s offices. In July and August 2018, the mother had access once a week for 2 hours. [ 128 ] In September 2018, the visits were increased to twice a week for 2 hours. The mother attended these visits and only cancelled one visit due to illness and there was some miscommunication about another visit. [ 129 ] However, in October 2018, the mother only attended 5 of 9 scheduled visits. She did call in advance to cancel 3 of the visits so the child was not brought unnecessarily to the office.

But on 1 of the visits, she simply did not show up and the child spent 2 hours in the society office with the worker as the worker could not get in touch with the foster mother. [ 130 ] In November the mother attended 3 of the 4 scheduled visits. It had been arranged that home visits would also begin that month. [ 131 ] In December, the mother attended only 1 of the 6 visits at the society office.

The mother called to cancel 1 visit but the rest were either a no show or the worker called the mother who informed her she was not coming. [ 132 ] In January 2019, the mother attended a visit on January 4 th and then did not show up for the following 3 visits and the child was brought unnecessarily to the office. [ 133 ] The family support worker tried to get in touch with the mother several times by phone and text. The mother finally called her back on January 16 th and was tearful and apologetic. The mother stated that she has been depressed and feeling hopeless at getting the child back.

She stated that she was feeling guilty about not attending visits. A visit was arranged for January 18 th , but the next day the mother called to cancel the visit. [ 134 ] The family support worker then advised the mother that she would have to attend the society office an hour before a visit and then the child would be brought. The mother agreed to this arrangement. [ 135 ] In February 2019 the mother attended the first 2 visits on February 1 st and 5 th . The next visits on February 8 th and 12 th were cancelled due to the weather conditions.

The mother was due to attend a visit on February 15 th which was her birthday but she then cancelled that visit. [ 136 ] The family service worker spoke to the mother on February 25 th and advised her that they needed to meet to discuss her missed access visits. The mother agreed to meet that day after she had her access visit.

The mother did not attend the access visit or meet with the worker. [ 137 ] Between February 15 th and March 26 th , 2019 the mother showed up for only 1 of the 7 scheduled access visits and each time the child was already in the car and had to be turned around. [ 138 ] On March 5 th the mother left a voice mail message for the family support worker stating that she was “exhausted and stressed” and was going to the hospital to get herself checked out. She said that she felt badly and did not know what was going with her.

She did not attend the scheduled visit that day. [ 139 ] The mother’s only response to the evidence of the many missed visits is that she missed “several” access visits because of her limited funds and on a few occasions she was unable to call the society to cancel visits as her phone was disconnected. 7.3 mother’s home visits [ 140 ] In October 2018 the family support worker began to discuss commencing visits with the child in the mother’s home.

But due to the mother missing visits, the home visits did not start until November. [ 141 ] The mother was told that she needed to prepare for the home visits and purchase some small items and that the society would provide the lager items such as a playpen, booster seat, small stroller and foam mats. [ 142 ] Despite telling the worker that she would purchase the items, on the next visit the mother said she did not have the money so the worker went with her to buy the items. [ 143 ] The family support worker then took the mother back to her apartment and offered to unpack and set up the items she had bought.

The mother assured the worker she knew how to set up the playpen and she would remove the packaging and wash the dishes and utensils prior to the visit. [ 144 ] The worker observed that the electrical outlet and power bar were not covered and the lower cupboards were not secured. She told the mother this needed to be done before the visit. As the apartment smelt strongly of smoke and there was a full overflowing ashtray, the mother was spoken to again about the importance of smoking outside at all times.

The worker had purchased some air fresheners for the mother to distribute in the apartment. [ 145 ] The family support worker supervised 5 visits in the mother’s home from November 20 th December 7, 2018. [ 146 ] On the first visit, the family support worker noted that the apartment did not smell as strongly of smoke and the mother stated she had been smoking on the balcony.

[ 147 ] But the mother had not unpacked or set up all of the items that the worker had previously brought. The worker spent the first hour of the visit doing this. The mother had not covered the electrical outlet or the power bar or secured the cupboards. The mother had not gone to the food bank or the library to inquire about programs for children as she had previously discussed she would do. [ 148 ] On the next visit, the mother had still not covered the outlets or secured the cupboards.

She had not gone to the food bank even though she was out of money and was eating week old pizza that had been donated by the church. She had not followed through with inquiring about the children’s programs at the library. [ 149 ] Although the apartment did not smell too heavily of smoke, the ashtray had not been emptied. When the worker asked the mother what she had done all week, she replied “nothing”.

She told the worker that she had not followed through with meeting the housing worker, the psychiatrist or her lawyer. [ 150 ] While the child played and explored, the mother pulled him back from what could have been dangerous situation. However, when the cat started to lick the child’s bottle that was on the mat, the mother did not stop him or move the bottle.

Although the mother talked to the child and laughed at his responses, the mother did not follow the worker’s suggestions to play with him, sing to him or teach him things. [ 151 ] For the next three visits, the mother had still not covered the outlets, secured the cupboards or followed up with inquiries about children’s programs at the library. The mother pointed out a cockroach in the apartment and said she had to get the apartment sprayed.

Although the mother played peek-a-boo a game he loved, she did not follow the worker’s suggestions to read to the child. [ 152 ] On the home visit on December 4 th , the mother told the worker she had not slept and was very stressed as she knew the judge would not return the child to her as she had not done enough. [ 153 ] On the last home visit on December 7 th , the mother said she had slept and felt better. She was very appreciative of the groceries that the foster mother had sent.

The mother became frustrated with child who kept grabbing for her glasses and did not try to entertain or distract him. [ 154 ] When the worker saw a large cockroach, the mother stepped on it said she had forgotten to ask the landlord to spray the apartment. [ 155 ] The family support worker wrote out the

schedule of visits for the mother that would remain twice a week for 2 hours but at the society office. 7.4 society’s concerns about the mother’s access [ 156 ] Generally, although there were times when the mother interacted appropriately with the child, there were many instances when she was either too tired or distracted by other issues to interact with the child for the entire two hours. [ 157 ] The family support worker tried to encourage the mother to do something active in the visits with the child as he was left sitting in his high chair for the first hour of the visit.

She modelled different positions and how to support him. The mother did not implement any of the strategies shown during the visit. [ 158 ] The family support worker made suggestions and role modelled activities and play positions and then withdrew from the room to observe the mother. The mother did not engage with the child or follow her suggestions. In particular, the mother took exception to the worker’s suggestion that she read to the child. [ 159 ] During visits at the society office, the family support worker cautioned the mother about placing the child on the kitchen island counter.

On one occasion the mother let go of the child he almost fell backward. During another visit the mother did the same thing 3 times and one time completely let go of the child.

When the worker told the mother that she needed to document this as a safety issue and that she is not following her direction, the mother reacted angrily by stating, “Oh great, just for that I don’t get my son back.” [ 160 ] The description of the visits in the affidavit of the family support worker do not indicate any appreciable difference in the quality of the visits whether or not they were at the society office or at the mother’s home.

Nor is there any appreciable improvement in the visits over the time the children has been in care. [ 161 ] In the mother’s affidavit she deposes that when access occurs, all of her supports have indicated that access is going well and there is an attachment between her and the child and she is able to care for the child. [ 162 ] The mother does not address the detailed concerns raised in the family support worker’s affidavit. 8. Society’s Plan of Care [ 163 ] It is the society’s plan that the child be adopted.

It is not the plan that the present foster mother adopt the child. [ 164 ] In the affidavits of both the foster mother and the adoption worker, the child is described as easy going, happy, loveable and an affectionate little boy. He is an active and curious child. He is in good health and appears to be meeting all of his developmental milestones. [ 165 ] It is the view of the adoption worker that he would likely be easily adopted given his uncomplicated profile and his young age. 9. Mother’s Plan of Care [ 166 ] The mother’s primary plan is that the child be placed in her care.

She deposes that as a result of advocacy from the society, her

apartment is now bed bug free and the damage to her bathroom has been repaired. [ 167 ] The mother deposes that despite the issues with the building, it is a child friendly place with many other families. The society initially considered the home appropriate when the child was born so it should still now be considered appropriate. [ 168 ] The mother deposes that the person who previously assaulted her is now in jail so there are no safety concerns. [ 169 ] The mother’s plan is for the child to attend daycare.

She will return to Jean Tweed to complete some of the necessary programming and also attend their aftercare program. The mother does not provide any details regarding these programs or what assistance she needs in parenting the child. The mother’s Answer also states that there are several children’s programs offered through her local library but provides no details. [ 170 ] The mother states that she has the support of her friend Ms JD, her step-father and from The Jean Tweed Centre. [ 171 ] The mother deposes will support the child on her ODSP income that will be increased if the child is in her care. 10.

The Law and Governing Principles [ 172 ] The society brings this

summary judgment motion pursuant to Rule 16 of the Family Law Rules, O.Reg. 114/99 (“ FLR ”). [ 173 ] The burden of proof is on the party moving for

summary judgment. Pursuant to subrule 16 (4), the party moving for

summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. [ 174 ] Pursuant to subrule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue requiring a trial. The responding party must put their best foot forward on the motion.

The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. [6] [ 175 ] Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [ 176 ] Subrule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial: 1.

Weighing the evidence 2. Evaluating the credibility of a deponent and 3. Drawing any reasonable inference from the evidence. [ 177 ] Pursuant to subrule 16 (6.2), the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [ 178 ] Subrule 16 is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim or defence, then the court must make a final order. [ 179 ] In the leading case of Hryniak v.

Mauldin [7] (" Hryniak "), the Supreme Court of Canada explains the process to be followed on

summary judgment motions as follows:

a) The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers ( subrule 16

(6.1) FLR ).

b) If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the expanded powers set out in subrule 16 (6.1) . These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion.

c) The court has the discretion to use of these powers provided that their use is not contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

d) If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51 ). This is the mini-trial procedure set out in subrule 16 (6.2) of the FLR . This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action (paragraph 63 ).

e) Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).

f) There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process: 1) allows the judge to make the necessary findings of fact; 2) allows the judge to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result (paragraph 49 ). [ 180 ] It is well established in the case law that the Hryniak decision applies to child protection cases. [8]

[ 181 ] In the recent decision of the Divisional Court in Kawartha-Haliburton Children's Aid Society v. M.W. , [9] the Court set out the following in applying Hryniak to child protection cases:

a) Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre- Hryniak case law where courts examined whether a party has any reasonable chance of success no longer applies (paragraph 45).

b) The key question is whether it is in the interest of justice for the court to resolve the case summarily? To do so, the court is required to consider whether the process allows it to make the necessary findings of fact, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure (paragraph 46).

c) The

summary judgment process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial (paragraph 43).

d) The burden of proof is on the party who moves for

summary judgment. Under Rule 16 (4) the moving party must "set out specific facts showing that there is no genuine issue requiring a trial." The party must satisfy the judge that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak (paragraph 48 ).

e) Rule 16 (4.1) then dictates how a party who wishes to resist

summary judgment is to respond, as follows: In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial (par. 49).

f) The rules continue to apply that the responding party is required "put its best foot forward" or "lead trumps or risk losing". [10] The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. (paragraph 50). [ 182 ] In the recent case of L.M. v. The Children's Aid Society of the Region of Peel, Office of the Children’s Lawyer [11] Justice Trimble made very helpful comments with respect to the effect of the FLR amendments to Rule 16, Hryniak and Kawartha. A

summary of those comments is as follows:

a) FLR 16 (6) provides that “if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly. This is a significant change from the pre-amendment rule that provided that

summary judgment motion should only be granted if there is “no genuine issue for trial.” Under the old rules, trials were the default position and

summary judgment motion the exception. The amendments accept that every case does not require a trial. Access to justice requires that where justice can be done fairly between the parties in a cheaper, faster alternative to a full trial it should be done that way;

b) FLR 16 (6.1) permits the court to consider the evidence of the parties and, if necessary, the court may weigh evidence, evaluate credibility of a deponent, and draw any reasonable inference from the evidence unless it is in the interests of justice for such powers to be exercised only at trial. The court is empowered to fashion a tailor made, pared down procedure, short of a trial, to resolve issues that cannot be resolved on the written record, if justice can be done between the parties, fairly, with such a procedure;

c) In child protection proceedings, the court must also consider the strict timelines in governing the child protection proceedings and the paramount purpose of the statute namely, to protect the best interests and the well-being of children;

d) FLR 2 provides that the cases must be dealt with justly and fairly, in a fair, cost and time efficient process appropriate to the importance and complexity of the issues while at the same time considering the demand of the subject proceeding and other litigation on scarce court resources;

e) There will be no issue requiring a trial when the judge is able to reach a fair and just determination of the merits on a

summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious means to achieve such a result;

f) The burden of proof rests on the party who moves for

summary judgment. the moving party must provide specific facts showing that there is no genuine issue requiring a trial and that it is in the interests of justice that the case be decided summarily asking the questions set out in Hryniak ;

g) FLR (4.1) then provides that the parent wishing to resist

summary judgment must, by evidence, provide specific facts showing that there is a genuine issue requiring a trial. The parent may not simply rely on allegations or pure denials of facts;

h) Kawartha left in place the principle that courts should be very cautious in granting

summary judgment in child protection cases since the stakes are so high and the granting of

summary judgment deprives the parent of his or her full day in court and the procedural safeguards of cross-examination of witnesses before a judge;

i) However, the case law that pre-dates Hryniak and the amendments to the FLR may no longer be applicable. Specifically, the case law that held that the applicable test for

summary judgment motion in the child protection context must be higher than that in non- protection cases and the case law that held that a no access order requires a greater level of care and scrutiny and an even more overwhelming society case is no longer applicable. However, it is still a fundamental proposition that

summary judgment in child protection cases should still be granted sparingly because of the intrusive nature of the order and the severity of the consequences; and

j) Kawartha also left in place the existing law concerning

summary judgment motion that the responding party was required to “put its best foot forward” or “lead trumps or risk losing” and that the judge is entitled to assume that the parties have put before her or him all of the evidence that they would have adduced at trial.

[183] This is a Status Review Application in the context of a

summary judgment motion. The test to be applied was summarized byJustice Pazaratz in the case of Children's Aid Society of Niagara Region v. B.P. and B.W[12] as follows:

a) In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made;

b) The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order forhis or her protection;

c) The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need forcontinued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or fromcircumstances which have arisen since then. (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.) (SCC),[1994] 2 S.C.R. 165 (S.C.C.);

d) Secondly, the court must consider the best interests of the child; and

e) The analysis must be conducted from the child's perspective. [184] Sections 101 and 102 of the CYFSA set out the orders available where the Court finds that a child is in need of protection andis satisfied that intervention through a Court Order is necessary to protect the child in the future. [185] Sections 101 (2), 101 (3) and 101 (4) of the CYFSA requires that the court consider whether there are less disruptivealternatives, such as community or extended family placements and to make inquiries regarding what efforts the society has made toassist the child before intervention. [186]

Section 114 of the CYFSA prescribes that where an Application for review of a child's status is made under

section 113, theCourt may, in the child's best interests: (

a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is partof the order; (

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

c) make a further order or orders under

section 101; or (

d) make an order under

section 102. [187] The "best interests of the child" is the governing principle when considering placement. The factors to be considered indetermining the best interests of a child are contained in section 74(3) of the Act, which provides as follows: 74(3) Best interests of child Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (

a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot beascertained; (

b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inukand Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to theconsiderations under clauses (

a) and (c); and(

c) consider any other circumstance of the case that the person considers relevant, including, (

i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child's physical, mental and emotional level of development, (iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexualorientation, gender identity and gender expression, (iv) the child's cultural and linguistic heritage, (

v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member ofthe child's community, (vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted,compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (

x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care ofa parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection. [ 188 ] The Court's decision with respect to what will happen to a child must take into consideration the paramount purpose of the CYFSA , as articulated in section 1(1), which is to promote the best interests, protection and well-being of children, and which takes precedence over all other considerations.

The Court must also consider the additional purposes of the CYFSA, as set out in section 1(2), provided they are consistent with the best interests, protection and well-being of the child. [ 189 ] In determining which disposition is in the child's best interests, the Court must be cognizant of the parameters imposed with respect to the total amount of time a child can be placed in the care of the Society.

Section 122 of the CYFSA provides that the Court shall not make an Order that results in a child being in the interim care of a Society for a period exceeding twelve months if the child is younger than six on the day the Court makes the Order or twenty-four months if the child six or older on the day the Court makes the Order. These timelines may be extended by up to six months if the Court determines that it is in the child's best interests to do so. 11. Analysis [ 190 ] I am satisfied based on the evidence and the submissions that I am able to make the necessary findings of fact and apply the facts to the law within the

summary judgment framework and without the necessity of using any of the expanded powers to weigh the evidence, assess credibility or hear oral evidence. [ 191 ] I am further satisfied that based on the evidentiary record I can make a fair and just determination of the issues on the merits without the necessity of a trial. [ 192 ] I further find that this approach is a proportionate, more expeditious and less expensive means to achieve a fair result. [ 193 ] As set out in the decision in Kawartha, supra, once the court has determined that there is no genuine issue requiring a trial, the case will be determined summarily on it merits.

The usual burden of proof will apply to the issues in dispute. 11.1 Continued need for protection and court order [ 194 ] I find that the society has established on a balance of probabilities that the child continues to be in need of protection and that a further court order is required for his protection. [ 195 ] The society commenced a Protection Application based on concerns reported by the hospital about the mother’s history of anxiety and depression and concerns about her housing, finances and substance abuse.

The society was alerted as the hospital staff felt that the mother would need a great deal of support and help. The society attempted to assist the mother in safety planning upon her release from the hospital with her new born child. [ 196 ] However, when the safety plan was no longer workable, the child was apprehended after only spending one day in his mother’s care after she left the hospital.

As of November 10 th , 2017 the child has remained in the care of the society. [ 197 ] In the Statement of Agreed Facts dated May 29, 2018 supporting the finding of need of protection based on risk of physical harm, the mother acknowledged her ongoing struggles and the risk those struggles posed to the child. But she worked co-operatively with the society, accepted the assistance of the society and attended programs at Jean Tweed.

The mother made progress with respect to her ability to care for the child, showed some improvement in her emotional regulation and the mother stated that she was following up upon attaining professional assistance for her mental health issues.

However, there were ongoing issues with inability of the mother to keep her apartment free of bed bugs, her inability to manage her finances and her inability to manage her own health issues and other aspects of her life. [ 198 ] As of the Spring of 2018, the society made its expectations clear to the mother namely, that she make arrangements with her landlord to treat her apartment for bed bugs, that she make herself available for Fresh Start private bed bug and cleaning service that the society would pay for, that she make and follow through with an appointment with a psychiatrist and that she make a police report regarding her neighbour harassing her and so she could be transferred to another building. [ 199 ] The mother signed a Statement of Agreed Facts dated September 12, 2018 acknowledging these expectations. [ 200 ] The mother further acknowledged that there had been setbacks as of June 2017 regarding her emotional health.

The mother had disengaged from both the society and Jean Tweed and therefore there had been a delay in the mother working on the tasks to meet the expectations of the society. By July 2018, the mother appeared to be getting back on track and commenced working on the expectations of the society. The society committed to begin to assess home visits. [ 201 ] The society then commenced the Early Status Review that is before the court returnable November 5, 2018 as the mother had again failed to meet the expectations of the society.

The mother had missed a significant number of access visits from September to November, there were concerns about the safety of her apartment complex due to two separate assaults she had suffered and ongoing concerns about her ability to provide a safe environment for the child during the access visits.

The mother had not followed through with obtaining psychiatric assistance for her ongoing struggle with depression. [ 202 ] Since the filing of the Early Status Review Application the mother has continued to miss access visits and has continued to fail to meet the minimum expectations of the society. [ 203 ] Although there are no longer any concerns about any substance abuse by the mother, the mother has struggled to address her mental health issues, her housing and financial issues.

Despite the assistance of the society and The Jean Tweed Centre, the mother has acknowledged ongoing issues with depression that have affected her ability to attend access visits and resulted in ongoing procrastination to deal with her own medical issues and to ensure her home is safe and bug free.

[ 204 ] Unfortunately the same concerns that resulted the child being removed from her care have continued. Over the 17 months that the child has been in care, the mother has been unable to address the issues that resulted in the child being removed from her care and that continue to require that her access be supervised for the safety of the child.

The mother has not acknowledged the protection concerns that required the child to be brought into care or shown any insight into how her pattern of behaviour has affected the safety and well-being of the child., [ 205 ] There is therefore overwhelming evidence that the protection concerns have continued and that a further order is required. 11.2 Disposition [ 206 ] I find that the society has proven on a balance of probabilities that the only viable plan in the best interests of this child is that he be placed in the extended care of the society. [ 207 ] As of the date of the

summary judgment motion the child who was born on […], 2017 has been in the care of the society since he was 6 days old for a total of 17 months. He has exceeded the statutory timelines. An extension of the timelines is only appropriate if it is in a child’s best interests.

In this case, there is no evidence that an extension would be in his best interests as there is no evidence that anything would change. [ 208 ] At this stage, the only options available are either to place the child in the care of the mother with supervision, as requested by her, or a placement with Ms JD or an order for extended care as requested by the society. [ 209 ] The mother’s plan must be seen in the context of the history of this case.

She essentially outlines what she will do that is, provide a clean and safe home, meet the child’s needs, maintain emotional stability, manage her finances appropriately, manage her own medical needs and maintain supports for herself and the child. But these are the very things she has shown she has been unable to do since the birth of the child.

For the last 17 months, the mother has been unable to follow through in a timely manner with the basic expectations of the society such as dealing with her dental and medical needs, ensuring that she receives ODSP, managing her finances, ensuring she has a clean apartment, safe-proofing her apartment and inquiring about appropriate children’s programs at the local library. There is no reason to think she will now be able to follow through. [ 210 ] The society has attempted to assist the mother for 17 months and there have been no sustained improvements in her ability to meet her own needs or those of the child.

Her inability to meet her own medical needs and emotional needs have interfered with her ability to sustain regular and consistent access visits and interfered with her ability to provide a safe and clean home for the child and interfered with her ability to meet even the basic needs of the child. She has been unable to obtain or sustain support from community members or from community organizations. [ 211 ] The mother’s plan of care has no sense of reality.

It is lacking of any details as to how she would now manage her finances or her mental health or her own life any better than she has managed in the past. [ 212 ] The mother has not shown any insight into the reasons the child was removed from her care and no insight into the effect of her lack of consistent access had had on the child. [ 213 ] The mother’s alternate plan to place the child in the care of Ms JD is a last minute ill-conceived plan that on the first access visit is already showing signs that it is not viable. [ 214 ] As required in the legal principles governing

summary judgment motion, once the society has established there is no genuine issue requiring a trial, the responding party must set out specific facts showing that there is a genuine issue requiring a trial. [ 215 ] In this case, the mother has not identified what exactly she believes the genuine issues requiring a trial are. The mother has either admitted or not disputed most of the facts supporting the society’s case. The mother has not provided any description of the evidence she would call at an oral hearing. Simply setting forth a plan does not entitle a parent to a trial.

The plan must be plausible after reviewing the evidentiary record as a whole. [13] Sadly, in this case, the mother’s plan, whether a return to her or the plan for Ms JD to care for the child, is not realistic. [ 216 ] It is submitted by the society that it has a statutory obligation to assess the plan of Ms JD and that assessment will continue even if the court makes an order placing the child in the extended care of the society. 11.3 Access [ 217 ] The society is seeking an order for extended care silent as to access. It is submitted that such an order will provide the society with flexibility as to access.

However, the society plan is for the child to be adopted. [ 218 ] The affidavit of the adoption worker sets out that an order for access, especially to a birthparent, in her experience will likely reduce the number of potential adoptive parents and delay the process of finding a suitable adoptive home. [ 219 ] Society counsel did not provide the court with any case law supporting the relief sought namely, that the court has jurisdiction to make an order for extended society care silent as to access. [ 220 ] This issue was dealt with by Justice S.R. Goodman in the case of Children's Aid Society of Toronto v.

D.P. [14] in an appeal of an order by the trial judge who ordered Crown wardship silence as to access. In that case, the society anticipated it would place the two children for adoption, one of whom “may” be adoptable and the other child was adoptable. The trial judge was of the view that the society should not cut off the children’s access to their parents until an adoptive family had been found. On appeal it was found that the trial judge erred in law in granting an order silent as to access and case was remitted to the trial judge for a determination on the issue of access.

[ 221 ] At paragraph 30 and 31 of the decision Justice Goodman explains as follows:

Part III of the Act provides a legislative pathway through which the court must proceed in determining child protection matters. In my view, there is no gap in the Act that permits an order that is "silent" as to access as a means of circumventing the condition in clause 59(2)(b) [ now s. 105 (5-7) as amended. [15] If a parent seeks access, then he or she must rebut the presumption against access. If he or she cannot do so, then the parent shall not have a right of access, according to the statute. If he or she can do so, then if access is in the best interests of the child, the court should order access.

If it is not in the child's best interests, then the court should not deny a right of access. An order that is silent as to access does not, effectively, dispose of the access issue where the court has, in reality, decided whether or not it will make an order granting a parent a right of access. At best, such an order (or non-order, I should more accurately say) leaves the decision whether the parents would have any access at all and, if so, the terms of such access, to the discretion of the society. Had the trial judge in the case before me intended to make such an order, then she ought to have expressed it.

And had she done so, I would have then found that an order providing that "access be in the discretion of the society" was an improper delegation of the count's authority. [ 222 ] Accordingly, the court must determine the issue of whether or not the mother should have access to the child who is extended society care. [ 223 ] The test for access to a child in extended society care has changed under the CYFSA. The test is set out in section 105 (5). That

section continues to provide that a court shall not make an order for access to a child in extended society care unless the court is satisfied that the order is in the child’s best interests. Therefore, in considering the issue of access to a child in extended care the best interests of the child is the test.

The court may not order access to such a child unless it is satisfied that the order would be in the child’s best interests. [ 224 ] But in addition to the court considering the best interests factors in section 74 (3) of the CYFSA, section 105 (6) provides that as part of the determination of whether or not an order is in the child’s best interests the court shall consider whether or not the relationship between the parent and the child in beneficial and meaningful to the child and if relevant whether the ordered access will impair the child’s future opportunities for adoption. [ 225 ] In Children's Aid Society of Niagara Region v.

B.P. and B.W . [16] Justice Pazaratz sums up the differences between the two access tests. I adopt his

interpretation as follows: While the revised legislation gives the court more flexibility and discretion in determining the issue of access to

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