Children’s Aid Society of Toronto v. T.T., 2012 ONCJ 318

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

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT FILE NO.: C49691/09 Citation: Children’s Aid Society of Toronto v. T.T. , 2012 ONCJ 318 ONTARIO COURT OF JUSTICE NORTH TORONTO FAMILY COURT 47 Sheppard Ave. E. , 2 nd floor Toronto, ON M2N 5X5 B E T W E E N: ) ) Children’s Aid Society of Toronto ) ) ) Anthony Macri Counsel for the Applicant ) ) ) - and - ) ) )

T.T., mother - and - ) ) ) ) Arthur Brown Counsel for the Respondent mother O.R., father ) Glen Cook Counsel for the Respondent father REASONS FOR DECISION JUSTICE H.P. BROWNSTONE [1] The Children’s Aid Society of Toronto (the society) has brought a

summary judgment motion seeking an order making the childK.R., born […], a Crown ward. The motion was heard April 3, 2012. The respondents T.T. (the mother) and O.R. (the father) areasking that the motion be dismissed.

The mother’s plan is to resume care and custody of the child, and the father is seeking an orderunder s.57.1 of the Child and Family Services Act (the Act) granting custody to the paternal grandmother, who resides in England andhas expressed a desire to raise the child. [2] I have carefully reviewed and relied upon the following evidence: the affidavits of Claudia Spirito, sworn on February 14, 2012,T.T., sworn on March 23, 2012, K.W., sworn on March 27, 2012, and O.R., sworn on March 29, 2012.

In addition, I have thoroughlyread the 211-page transcript of the cross-examination of Claudia Spirito conducted by the mother’s counsel. The law [3] This motion is governed by Rule 16 of the Family Law Rules. [4] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine if there is agenuine issue for trial. The onus is on the society to show that there is no genuine issue for trial: Children’s Aid Society of Hamilton v.M.N., (ON SC), [2007] O.J. No.1526 (Ont.S.C.).

Summary judgment should proceed with caution, particularly inchild protection cases where crown wardship without access is being sought. It is not, however, limited to or granted only in the clearestof cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence doesnot raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associatedwith a trial and the resulting prolongation of the state of uncertainty about the child’s future: Jewish Family and Child Services ofToronto v. A.(R.), 2001 O.J. No. 47 (Ont.S.C.). [5] A party answering a motion for

summary judgment cannot just rest on bald denials; they must put their best foot forward,showing that there is a genuine issue for trial: Rule 16(4.1); Children’s Aid Society of Toronto v. K.T., (ON CJ),2000 O.J. No. 4736 (Ont.C.J.). [6] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a

summary judgmentmotion. This is reserved for the trier of fact: Children’s Aid Society of the District of Nipissing v. M.M., (ON SC),[2000] O.J. No. 2541 (Ont.S.C.); Children’s Aid Society of Hamilton v. M.N. (supra).

[7] The test for granting

summary judgment is met when the moving party establishes that there is no genuine issue of material factthat requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a factthat a party is required to prove constitutes disagreement about a material fact: Children’s Aid Society of Toronto v. T.(K.), (ON CJ), [2000] O.J. No. 4736 (Ont.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. H.(T.L.), 2005ONCJ 194 , [2005] O.J.

No. 2371 (Ont.C.J.). [8] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not beused as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue mustarise from something more than a heartfelt expression of a parent’s desire to resume care of the child.

There must be an arguable notiondiscernible from a parent’s evidence that they face some better prospects than what existed at the time of the society’s removal of thechild from their care and has developed some new ability as a parent: Children’s Aid Society of Toronto v. R.H., (ONCJ), [2000] O.J. No. 5853 (Ont.C.J.). Chronology of court proceedings [9] K. was born on […] and lived with her mother until she was apprehended on December 16, 2009.

The details explaining herapprehension are set out in an Agreed Statement of Facts entered into by the parties and filed with the court on February 22, 2011. [10] K. remained in foster care from December 16, 2009 until February 22, 2011, during which time the mother made what appearedto the society to be sufficient progress to resume care of her child. On February 22, 2011, on consent, K. was found to be in need ofprotection pursuant to s.37(2)(b)(

i) and (ii) of the Act, and was placed with her mother for 6 months under society supervision with thefollowing conditions:

a) Ms. T. will ensure that K.’s physical, social, emotional and educational needs are being met, and that she is providing a homeenvironment with routine and structure.

b) Ms. T. shall reside with K. at the Massey Centre and abide by the rules of the Centre and meet with her counselor asexpected.

c) Ms. T. will take the necessary steps to enroll K. in full time daycare, such as applying for subsidy and securing a daycarespot. Once K. is enrolled, Ms. T. is to ensure that K. attends daycare regularly.

d) If daycare is not in place, Ms. T. shall attend mom and child programs with K..

e) Ms. T. is not to use any illegal substances and is not to smoke marijuana when she is caring for K.. Ms. T. shall ensure K. isnot exposed to any illegal substances.

f) Ms. T. is to

schedule and attend weekly counselling appointments with her counselor from Breakaway, and/or attend anyother recommended services.

g) Ms. T. shall follow through with recommendations from the Society, regarding referrals to collaterals and supportive services,such as working with the Family Support Program.

h) Ms. T. is to refrain from engaging in heated arguments with other women at the Massey Centre or in the community,especially when K. is present.

i) Ms. T. is to ensure her apartment is kept in an acceptable manner (safe, clean, floor swept regularly) and have all thenecessary safety measures in place for a toddler.

j) If Ms. T. is wanting to spend an overnight away from the Massey Centre, she must inform the Society Worker 48 hours inadvance and have Society approval to spend an overnight away from the Massey Centre.

k) Ms. T. shall ensure that any individual that she proposes as an alternative caregiver for K. is approved of by the Society inadvance. Ms. T. shall not leave K. in another individual’s care without this approval.

l) Ms. T. shall allow Society workers to attend at her residence for scheduled and unscheduled visits. [11] There is overwhelming evidence that during the following 6 weeks the mother seriously and repeatedly violated conditions (a),(b), (d), (f), (g), (

h) and (i), resulting in K. being once again apprehended on April 7, 2011. She has remained in foster care since thattime. K. has been in foster care for a total of 26 months – more than twice the length of time permitted by s.70(1) the Act. Hearsay evidence presented by the society [12] The society filed an affidavit from the mother’s worker, Claudia Spirito, which sets out numerous incidents related to her byAndrea MacDonald, the mother’s primary worker at Massey Centre, as well as by other professionals who dealt with the mother. Themother’s counsel argued that the court should not be relying upon such hearsay evidence at a

summary judgment motion, because thesociety ought to have obtained affidavits directly from the professionals whom Ms. Spirito was quoting. [13] I am mindful of the pitfalls of hearsay evidence, and especially of the absence of opportunity for the mother’s counsel to cross-examine the persons who gave such damaging information about the mother to Ms. Spirito. I am also aware of the court’s right to drawunfavourable conclusions against the society by reason of its failure to obtain direct evidence from the professionals being quoted by Ms.Spirito: Rule 16(5).

However, it is clear that Rule 14(19) allows the society to present its evidence in the way it did. [14] When the hearsay evidence is coming from a society worker who received information from a professional in the course ofcarrying out his/her professional duties as a service provider to a parent, I can see no reason to draw any negative inferences or reach any

unfavourable conclusions without some basis for finding that the person was biased, unfair or negligent in his/her dealings with the parent. No concerns of this nature were raised in this case. [ 15 ] It was also open to the mother, pursuant to her obligation under Rule 16(4.1), to obtain direct evidence from Ms. MacDonald or the other professionals quoted by Ms. Spirito, if she was of the opinion that they had been wrongly quoted. She did not do so. Accordingly, I found the evidence of Ms.

Spirito, which relied considerably on observations and information provided by the Massey Centre staff and other professionals, to be reliable and trustworthy. Material facts leading up to the child’s second apprehension [ 16 ] The society’s evidence sets out a litany of incidents relating to the mother’s unstable and explosive personality, poor relationship choices, inability to follow through with counselling and other supportive services, unwillingness or inability to comply with rules (including court orders), and lack of sustained commitment to her child.

For example: • The mother failed to consistently attend any of the Massey Centre programs, especially the Early Years Centre, even though this was one of the key reasons she was living there; • The mother consistently complained about having to follow the Massey Centre rules and on several occasions was at risk of being evicted; • The mother found herself in arguments with other residents, sometimes in front of the child.

Her outbursts in dealing with professionals and her conflictual relationships with virtually every person in her life are highly indicative of a longstanding unresolved anger management problem as well as emotional instability.

She was repeatedly advised by her worker to engage in anger management counselling, and her worker even offered to have a case aide attend the counselling with her for support, but the mother consistently denied having any problems and refused to make a serious commitment to engage in counselling or therapy; • The mother devoted an inordinate amount of her time and energy being preoccupied with her highly stressful and conflictual “on again off again” relationship with her boyfriend Dylan at a time when she ought to have been focusing exclusively on parenting her child and availing herself of the supportive resources at the Massey Centre; • The mother was observed by virtually every professional who dealt with her to be consistently overstressed, overwhelmed and frustrated with the task of parenting K. on a full-time basis.

She left K. with another resident on almost a daily basis. The mother’s stress was so severe that after having K. in her care only 3 weeks, she agreed to have K. placed with her former foster parents for a “respite” weekend. Two weeks later the mother was again asking for a “respite” weekend as she “really needed a break” (the society declined this request); • The mother was repeatedly observed to be unable to effectively manage K.’s behaviour and to provide her with consistent, even- tempered caregiving.

Material facts since child’s most recent apprehension [ 17 ] During the year since K. has most recently been in foster care (she was apprehended April 7, 2012), the mother’s volatile and confrontational personality and poor parenting capacity and commitment to the child have not improved. This conclusion is based on the following: • She has failed to engage in sustained, meaningful counselling or therapy to address her emotional instability and anger management issues.

She has not followed through with any individual counselling that was recommended for her, including Breakaway, Turning Point, the Griffin Centre, Delisle Youth Services, Family Services Toronto and Homestead. She was also referred to a youth support worker to assist her with acquiring housing, but to date she has failed to meet with that worker; • Her impulsivity and poor judgment has created much instability in her life.

For example, in August 2011 she located her biological mother (whom she hadn’t seen since she was 2 years old) and very quickly decided to live with her and plan for resuming care for K. in her home. Within weeks the mother’s relationship with her mother deteriorated to the point that the police became involved and she was required to move out. It is noteworthy that the maternal grandmother to this date has never met the society worker or the child. • The mother has had unstable housing. She moved out of Massey Centre in September 2011 and moved in with her biological mother.

In October 2011 she moved out of her mother’s home and in with her cousin Pauline. On December 11, 2011 the mother was required to move out of Pauline’s home due to conflict; Pauline subsequently accused her of stealing a number of items from the home. The mother now lives with a friend M.L.. • She continued focusing on her dysfunctional relationship with Dylan, causing her to cancel access visits and distracting her from focusing on her child.

In July and August 2011 the mother missed 10 out of 14 scheduled access visits and called on only 3 occasions to cancel (on 7 occasions she was simply a “no show”, which means K. was brought to the access visits for nothing, only to be disappointed at her mother’s failure to attend). Since the end of August 2011 the mother has been more consistent in attending her twice-weekly supervised access visits but there have been many visits when she has been up to 20 minutes late and K. has been kept waiting.

It is highly significant to the court that the mother could not attend regularly for access when she knew that her parenting, including the quality and consistency of her access, was under close examination in determining if the child should be returned to her. How can the court have any confidence in her ability to be available to the child based on this evidence? • In July 2011 she was charged with causing a disturbance, and then failed to appear in court. In August 2011 she was convicted of importing an illegal drug (offence date December 2009) and placed on 1 year probation.

On December 23, 2011 the mother was charged with disorderly conduct and failing to comply with a recognizance, and spent 5 days in custody. • Despite that the mother has been asserting throughout this case that she is seeking a return of K. to her care, she has not brought a

motion to have K. placed with her in the 12 months since she has been in foster care. Nor has she ever brought a motion for increased access. Her access over the past year has been twice weekly, supervised, for 2 hours per visit. Analysis [ 18 ] The society’s evidence took the form of a lengthy, detailed affidavit from the mother’s worker, Claudia Spirito. I also had the benefit of carefully reviewing the 211-page transcript of Mr. Brown’s diligent cross-examination of Ms. Spirito. In his submissions Mr. Brown argued that the transcript discloses repeated exaggerations and unsubstantiated allegations by Ms.

Spirito. I disagree. I find that Ms. Spirito easily withstood the vigorous cross-examination, and was able to substantiate all of the allegations in her affidavit. The cross-examination in no way discredited, diminished or undermined Ms. Spirito’s evidence. To the contrary, the cross-examination allowed Ms.

Spirito to elaborate on many of the incidents described in her affidavit, and served to fortify the society’s evidence. [ 19 ] Although the onus of establishing that there is no genuine issue for trial solidly remains on the society, the mother is required by Rule 16(4.1) to put her best foot forward and present specific facts tending to show that there is a triable issue. It is not enough to simply deny the society’s allegations.

Unfortunately, the mother’s affidavit amounted to nothing more than bald denials, self-serving and inadequate explanations for unacceptable conduct, and expressions of intent that have no air of reality given the pattern of behaviour and incidents which are to a great extent uncontested in terms of material facts. It is acknowledged that the mother’s versions of numerous incidents differ somewhat from the versions given by the society, but not in any material respect.

For example, she acknowledges having had conflicts with other residents at Massey House; the exact reasons for those conflicts are immaterial in terms of her behaviour, impulse control and maturity, which negatively impacted her child. [ 20 ] As stated in the preceding paragraph, the mother’s plan has no air of reality. For example, she states in her affidavit that she plans to engage K. in the “Supporting Young Families” program.

This is simply incredulous and nothing more than sheer fantasy, given the fact that the mother did not meaningfully participate in any programs at the Massey Centre while she had the convenience of actually living in that structured and supportive setting. She states that she is now engaged in counselling at the Native Centre, but has provided no supporting documentation from her counselor. She states that she plans to “resume school and attempt to obtain work”, but to date has done neither.

She states that she has the support of her mother despite having been ejected from her mother’s home, and despite the absence of any supporting affidavit from her mother, and despite the fact that her mother has never even met the child. [ 21 ] The mother argued that the society was too hasty in apprehending the child on April 7, 2011, because daycare was about to begin the next week and the mother was about to commence school. The mother argued that the society should have allowed these two new developments to begin, in order to see if her parenting skills improved. I disagree.

Even if the child had been in day care all day, and even if the mother had been in school all day (and she has yet to commence school), the mother’s explosive, unstable personality would still have been a serious obstacle to her being able to be a caregiver for her daughter for any part of the day or night. [ 22 ] The mother has provided an affidavit of support from her former foster parent, K.W., who promises to provide “advice, suggestions, and occasional parental relief or help when either one is sick or if T.T. [the mother] needs help or advice with respect to resources”.

However, it is clear that so far the mother has not meaningfully benefitted from whatever support K.W. has been providing. In any event, the mother requires much more support than that being offered by K.W.. The only realistic prospect for the mother at this stage would be for her to live with a responsible, mature adult with demonstrated child rearing skills who can assume long term primary responsibility for raising K.. The mother is absolutely incapable of doing so on her own. [ 23 ] The mother is living with her friend M.L., and asserts that she and K. can live in M.L.’s home indefinitely.

Given the mother’s obligation under Rule 16(4.1) and the crucial role that M.L. would be expected to carry out in raising K., and the mother’s history of highly unstable and conflictual relationships with those she has lived with, it is nothing short of astounding that no affidavit from M.L. was provided, to confirm that she is indeed ready, willing and able to provide K. with a stable home. In the absence of such evidence, there is no basis upon which a court could conclude that the mother’s plan of care has any air of reality.

The mother’s failure to provide solid evidence supporting a realistic plan of care for K. that eliminates or at least minimizes the obvious and significant risks posed to K. by the mother’s unaddressed emotional instability, makes Crown wardship the only possible disposition for K.. The father [ 24 ] It is indisputable that the father is practically a stranger to the child. He attended one access visit with K. while she was placed with her mother during the winter of 2011.

Subsequent to being returned to foster care, K. has seen her father infrequently except for 2 weeks in September 2011 when his mother was visiting from England. He also attended 3 visits during the months of November and December 2011. The society has had considerable difficulty getting the father to make a commitment to visit with his daughter regularly. [ 25 ] The father filed a brief affidavit in this motion. He frankly acknowledges at paragraph 9 of his affidavit that he is not able to take custody of K..

He wants his mother, who resides in England, to have custody of K., and she has made some efforts in furtherance of this plan. The father’s counsel urged me to dismiss the society’s

summary judgment motion because there was a triable issue as to whether the court might make a custody order in favour of the paternal grandmother pursuant to s.57.1 of the Act. While it is possible that this proposed placement may be in the child’s best interests, the society’s uncontradicted evidence (obtained from International Social Services in England) is that the only way for K. to reside in England is through an inter-country adoption, which would necessitate K. being made a Crown ward.

It is inconceivable that the court would make a s.57.1 custody order in such circumstances, if what is required to make the placement actually occur is an order of Crown wardship. Furthermore, if the father was seriously advocating for a s.57.1 custody order in this proceeding, his obligation under Rule 16(4.1) was to, at the very least, provide an affidavit from his mother setting out her plan for the child. There is absolutely no evidence before the court which could justify a s.57.1 custody order.

Disposition [ 26 ] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was recently set out by Perkins J. in C.A.S. of Toronto v. T.L. and E.B. , 2010 ONSC 1376 as follows:

1. Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, orderthe return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not,determine whether the disposition that is in the child’s best interests is society wardship or crown wardship. (Section 57.) 2.

If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70(1)has expired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the timeand make a society wardship 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, determine whether the relationship between thechild and the person who would have access is both meaningful and beneficial to the child (section 59 (2.1) (a)).

If not both meaningfuland beneficial, 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 theclaim 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 for access.

If so, make an access ordercontaining the terms and conditions that are in the child’s best interests (section 58.) [27] Subsection 57(3) of the Act requires the court to examine and consider less disruptive alternatives than removing a child from thecare of the persons who had charge of the child immediately before intervention unless the court determines that these alternatives wouldbe inadequate to protect the child. [28] Subsection 57(4) of the Act requires the court to consider community placements, including family members, before deciding toplace a child in care.

As indicated above, the society is currently considering the paternal grandmother’s plan to raise the child inEngland, and according to the legal advice the society has received, this must be done by way of an inter-country adoption. TheIntercountry Adoption Centre has agreed to conduct an assessment of the grandmother’s plan at a cost of 6,000 euros, which the societyhas agreed to pay. [29] In determining the appropriate disposition, I must decide what is in the child’s best interests.

I have considered the criteria set outin subsection 37 (3) of the Act in making this determination. [30] Subsection 57 (1) of the Act is limited by

section 70 of the Act, which provides that the court shall not make an order for societywardship that results in a child being a society ward for a period exceeding 12 months if the child is less than six years old, unless thetime is extended as provided in subsection 70 (4). This subsection of the Act gives the court discretion to extend the time periods by sixmonths if it is in the child’s best interests to do so.

When the statutory time limit has significantly passed, as it has here, it would be anexceptional case where the time lines are not a significant and appropriate consideration: Children’s Aid Society of Toronto v. D.S., (Ont.S.C.). As of this date, K. has been in care for 26 months. We are well beyond the time lines. There are noexceptional circumstances that exist here to justify their extension. The options are to either make K. a crown ward or return her to hermother’s care pursuant to a supervision order. [31] A crown wardship order is the most profound order that a court can make.

To take someone’s children from them is a power thata judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. Catholic Children’s Aid Society of Hamilton- Wentworth v. G. (J) (1997), 23 R.F.L. 4th 79(SCJ- Family Branch). [32] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of theapprehension still exist today. This must be examined from the child’s perspective: Catholic Children’s Aid Society of MetropolitanToronto v.

C.M., (SCC), [1994] 2 S.C.R. 165 (S.C.C.). [33] There is no triable issue in this case. The least disruptive alternative, consistent with the best interests of the child, is to make K.a crown ward. It would be unthinkable to place her in her mother’s care at this time. The potential risk of neglect and harm to the child isfar too high. These risk concerns outweigh any of the other considerations in subsection 37(3) of the Act. The mother’s plan to resumecare of K. has no air of reality when examined in the context of her parenting history and behaviour.

The only realistic plan of care is thesociety’s plan to give the child permanence and stability by making her a crown ward. Access [34] Once a disposition of crown wardship is made, the Act provides for a presumption against access. The test for access to crownwards is set out in subsection 59 (2.1) of the Act, which reads as follows:

(2.1) A court shall not make or vary an access order made under

section 58 with respect to a Crown ward unless the court is satisfiedthat, (

a) the relationship between the person and the child is beneficial and meaningful to the child; and (

b) the ordered access will not impair the child's future opportunities for adoption. [35] The onus to rebut the presumption against access to a crown ward is on the parents: Children’s Aid Society of Toronto v. D.P. (ON CA), [2005] O.J. No. 4075 (Ont. C.A.). The parents have the onus of establishing both portions of the test insubsection 59 (2.1) of the Act. This is a very difficult test for the parents to meet. [36]

Section 141.1 of the Act provides that before a society can place a child for adoption, any outstanding order of access to the childmust first be terminated. An adoption placement cannot be made if there is an outstanding order of access. [37] The society is mandated by

section 63.1 of the Act to make all reasonable efforts to assist the children to develop a positive,secure and enduring relationship within a family though either adoption or a custody order. [38] The meaning of the phrase “beneficial and meaningful” was examined by J. in Children’s Aid Society of the Niagara Region v.M.J., (ON SC), [2004] O.J. No. 2872 (Ont.S.C.) where he said:

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

(46) I read clause 59(2)(

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

(47) Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitativeweighing of the benefits to the child of access versus no access, before an order is made. [39] There is no triable issue with respect to the issue of access. While the mother has a positive relationship with K. and clearly lovesand cares about her, her access is very limited (2 supervised visits of 2 hours each per week). K. recognizes her mother and enjoys hercompany. However, the mother does not have a large enough

part in K.’s life to render her availability or absence relevant to K.’swelfare. She has not met the onus of showing that her access to the child is beneficial and meaningful or that it would not impair K.’sopportunities for adoption. This applies even moreso with respect to the father, having regard to his tenuous connection to the child asset out in paragraph [24] above. [40] K. is young, healthy and happy. There is no evidence to indicate that she is not adoptable. Conclusion [41] The court understands that this will be a very difficult decision for the parents, especially the mother.

The court hopes that themother learns some valuable lessons from this case, especially as she is young and likely to have more relationships and possibly morechildren. She needs to take responsibility for her behavior and start making responsible decisions and choices in her life if she everhopes to successfully parent a child. The mother has some positive parenting skills, and was given a golden opportunity to demonstrateand further develop them on a sustained basis when K. was returned to her in February 2011.

She had a myriad of structured andsupportive services literally at her doorstep while she lived at the Massey Centre, and chose to self-destruct literally before the eyes ofeveryone including the child. The evidence leads inescapably to the conclusion that throughout most of this proceeding, the mother’sfocus was much more on her relationship with her boyfriend Dylan than on her parental obligations towards K.. She has not taken anymeaningful steps in the 12 months since K. was re-apprehended, to demonstrate the maturity and child-focussed prioritization that K.needs and deserves.

The mother desperately needs intensive therapy to address her emotional issues, so she can develop some insightinto her actions and not repeat her mistakes. [42] An order will go on the following terms:

a) The society’s motion for

summary judgment is granted.

b) K. shall be a crown ward with no access for the purpose of adoption. [43] Finally, I wish to thank counsel for an excellent presentation of this motion.

____________________________ The Honourable Mr. Justice H.P. Brownstone Released: April 11, 2012