Catholic Children's Aid Society of Toronto v. A-V. M. and J.M., 2016 ONCJ 625

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

Part III of the Child and Family Services Act and is subject to one or more of subsections 45 (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.: C71362/14 CITATION: Catholic Children's Aid Society of Toronto v. A-V. M. and J.M. , 2016 ONCJ 625 DATE: 2016-10-04 ONTARIO COURT OF JUSTICE IN THE MATTER OF A PROTECTION APPLICATION FOR THE CROWN WARDSHIP OF N.L.M. BORN ON […], 2016 UNDER

PART III OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990, C. 11. B E T W E E N: ) ) CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO ) ) ) MARSHALL MATIAS, for the APPLICANT

) APPLICANT ) ) - and - ) ) ) A-V. M. and J.M. ) ) ) BRADLEY BERNS, for the respondent, A- V. M. JEFFREY BLAYWAYS, for the respondent, J.M. ) RESPONDENTS ) ) ) ) HEARD: OCTOBER 18, 2016 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] The Catholic Children’s Aid Society of Toronto (the society) has brought a motion for

summary judgment seeking orders that the respondents’ child, N.L.M., born on […], 2016 (the child), be found in need of protection pursuant to clauses 37 (2) (b) (

i) and (ii) of the Child and Family Services Act (the Act) and be made a crown ward, with no access, for the purpose of adoption. [ 2 ] The respondent A-V. M. (the mother) is the child’s mother. She asked that the

summary judgment motion be dismissed as there are genuine issues requiring a trial. [ 3 ] The respondent J.M. (the father) is the child’s father. He did not file any material for this motion, but made submissions supporting the mother’s position. [ 4 ] The issues for this court to determine on the society’s

summary judgment motion are as follows:

a) Is there a genuine issue requiring a trial that the child is in need of protection?

b) If not, is there a genuine issue requiring a trial for a disposition for the child other than crown wardship?

c) If a crown wardship order is made, is there a genuine issue requiring a trial as to whether one or both parents should have access to the child? [ 5 ] The society relied on affidavits from its workers and a Statement of Agreed Facts dated April 15, 2016, filed in a child protection case concerning another child of the parents. The mother filed her own affidavit.

Part Two – Background facts not in dispute [6] The parents reside together in Toronto. They are not married. [7] The child is the parents’ second child together. [8] The parents’ first child, B.M., born on […], 2014, was apprehended at birth from their care by the society. [9] The society commenced a protection application regarding B.M. [10] On August 1, 2014, an order was made placing B.M. in the temporary care and custody of the society, with supervised access tothe parents.

B.M. remained in the society’s care and was never returned to the care of the parents. [11] The child was born on […], 2016 and was apprehended by the society at birth. At that time, B.M.’s case had been scheduled fortrial. [12] On […], 2016, the child was placed in the temporary care and custody of the society, with access to the parents to be supervisedat the society offices, starting with a minimum of twice each week.

The mother’s access was to be increased to three times each week ifthe mother attended the first four visits. [13] On April 15, 2016, the parents consented to an order that B.M. was a child in need of protection pursuant to clause 37 (2) (

b) ofthe Act and a disposition that B.M. be made a crown ward with no access, for the purpose of adoption. The paternal grandparents ofB.M. have put forward a plan to adopt B.M. that has been approved by the society. [14] The child has remained in the society’s care since her apprehension. The access order has remained unchanged. Part Three – Legal considerations for

summary judgment [15] The society brings this motion pursuant to rule 16 of the Family Law Rules (all references to rules in this decision are to theFamily Law Rules) – the

summary judgment rule. [16] 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 requiring a trial. See: Children’s Aid Society ofHamilton v. M.N. (ON SC), [2007] O.J. No. 1526 (SCJ). [17] Courts should be very cautious in granting

summary judgment in child protection cases since the stakes for the family are so highand the granting of

summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination ofwitnesses before a judge. See: C.R. v Children’s Aid Society, 2013 ONSC 1357 . [18] 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. See: Children’s Aid Society of Toronto v. K.T. (ON CJ), 2000 O.J. No.4736 (Ont. C.J.). [19] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient responseto a

summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materialssubmitted on the motion. See: Children’s Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842 CanLII. [20] 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 must

arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notiondiscernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of thechild from her care and has developed some new ability as a parent. See: Children’s Aid Society of Toronto v. R.H. (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.). [21] Justice A. Pazaratz stated at paragraph 43 of Children’s Aid Society of the Niagara Region v. S.C., (ON SC),[2008] O.J. No. 3969 (Sup.

Ct.): “no genuine issue for trial exists where there is no realistic possibility of an outcome other than that assought by the applicant.” [22] As of May 2, 2015, the rules have been amended to broaden the powers of the court on a

summary judgment motion. Rule 16 hasnow been amended to include the same

summary judgment powers set out in subrules 20.04 (2.1) and (2.2) of the Rules of CivilProcedure. These expanded powers, now set out in subrule 16 (6.1), are: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. [23] The relevant provisions of rule 16 now read as follows (with amendments bolded): RULE 16:

SUMMARY JUDGMENT WHEN AVAILABLE 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion forsummary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg.114/99, r. 16 (1). AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for

summary judgment under subrule (1) may be made in any case (including a child protection case) that does not includea divorce claim. O. Reg. 114/99, r. 16 (2). EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuineissue requiring a trial. EVIDENCE OF RESPONDING PARTY

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

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusionsunfavourable to the party. NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by theparties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for suchpowers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence bepresented by one or more parties, with or without time limits on its presentation. [24] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out the process to be followed in applying theexpanded

summary judgment rule in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure.

[25] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence beforethe judge, without using the judge’s new fact-finding powers. [26] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine ifthe need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility,drawing inferences, and possibly receiving oral evidence on the motion.

The use of these powers is discretionary, provided that they donot run 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 andwill serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66). [27] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oralevidence on the motion itself (paragraph 51). This is the mini-trial procedure set out in subrule 16 (6.2).

This power should be employedwhen it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is morelikely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on themotion for

summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of theprocedure (paragraph 63). [28] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motionjudge in weighing the evidence, assessing credibility, or drawing inferences and to provide a “will say” statement or other description ofthe proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64). [29] There will be no genuine issue requiring a trial if the

summary judgment process provides the court with the evidence required tofairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66). [30] The court in Hryniak also set out the following:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and justadjudication of claims (paragraph 5).

b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes(paragraph 24).

c) The

summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, fasteralternative to a full trial (paragraph34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for

summary judgment from asking whether thecase presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) Where a

summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the disputein a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute(paragraph 50).

g) On a

summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident thatthe court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, includingordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equallyvalid, if less extensive, manner of fact finding (paragraph 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It mayrequire the motion judge to assess the relative efficiencies of proceeding by way of

summary judgment, as opposed to trial. This wouldinvolve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidencethat will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available attrial (paragraph 58). [31] The principles in Hryniak have been applied to

summary judgment motions in many child protection cases since the amendmentsto rule 16 became effective on May 2, 2015. See: Children’s Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per JusticeTimothy Minnema; Children’s Aid Society of Toronto v. L.S., 2015 ONCJ 527 , per Justice Penny Jones; Catholic Children’sAid Society of Toronto v. A.G., [2016] O.J. No. 4474 (OCJ), per Justice Roselyn Zisman and this court’s decision in Jewish Family andChild Service of Greater Toronto v. E.W. and R.C., 2016 O.J. No. 9 (OCJ). [32] A

summary judgment motion can also be an opportunity to make findings of fact not in dispute, narrow the issues to be heard attrial and give directions to assist in organizing the trial pursuant to subrule 16 (9) of the rules. See my comments in: Children’s AidSociety of Toronto v. S.A., [2013] O.J. No. 3183 (OCJ). [33] Subrule 16 (9) reads as follows: ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may also,

(

a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which casethe order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice); (

b) give directions; and (

c) impose conditions (for example, require a party to pay money into court as security, or limit a party's pretrial disclosure). Part Four – Finding in need of protection 4.1 Legal considerations [34] The society seeks a finding that the child is in need of protection pursuant to clauses 37 (2) (b) (

i) and (ii) of the Act. Thissubsection reads as follows: 37 (2) (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by orresulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child. [35] The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm. [36] The risk of harm under clause 37 (2) (

b) of the Act must be real and likely, not speculative. The harm must be demonstrated by aserious form of one of the listed conditions or behaviours. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children’s Aid Society of Ottawa-Carlton v. T. and T., (ON SC), [2000] O.J. No. 2273, (Ont. Fam. Ct.). [37] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admitevidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to allparties.

See: Children’s Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children’s AidSociety of Brant v. James Albert T. and Melissa Marie S., 2005 ONCJ 302, (Ont. C.J.), at paragraphs: 13-26. The parents had disclosureof the relevant evidence in this case. 4.2 Analysis [38] The court did not require the expanded

summary judgment powers to determine that there is no genuine issue requiring a trialthat the child is in need of protection pursuant to clauses 37 (2) (b) (

i) and (ii) of the Act. [39] In Catholic Children’s Aid Society of Toronto v. L.M. 2011 ONCJ 146 , [2011] O.J. No. 1361 (OCJ), on a

summaryjudgment motion, this court admitted and relied on findings of facts that had recently been made by a judge hearing a

summary judgmentmotion concerning three different children of the mother. This evidence was admitted pursuant to subsection 50 (1) of the Act. This courtobserved that the more recent the findings of fact, the more probative that evidence becomes. [40] Subsection 50 (1) of the Act reads as follows: Evidence Past conduct toward children 50.

(1) Despite anything in the Evidence Act, in any proceeding under this Part, (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for orhave access to a child who is the subject of the proceeding; and (

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding orthe reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [41] On April 15, 2016, B.M. was made a crown ward with no access for the purpose of adoption. The parties filed a Statement ofAgreed Facts supporting the finding that B.M. continued to be in need of protection at that hearing.

The decision regarding B.M. wasbased on this Statement of Agreed Facts. [42] In this case, the Statement of Agreed Facts concerning B.M. is very probative as it overlaps the apprehension of the child. IfB.M. was in need of protection on April 15, 2016, certainly the child, a vulnerable infant, was also in need of protection at that time. [43] The Statement of Agreed Facts set out the following protection concerns:

a) The parents both struggled with their mental health. The parents advised the society that they both had ADHD and had been

diagnosed with depression by their family doctors. The father advised the society that he felt suicidal in December of 2013. On September 13, 2014 the mother was admitted to hospital following an attempt to harm herself. On September 18, 2014, she was telling a society worker that she was an “empath reader”, explaining that it was a “witch thing”. She said she knew when the baby was crying when with the foster mother. She claimed to be able to control fire and water. The mother said that she was not sleeping after a breakup with the father. The society asked the mother to obtain a psychiatric report. She didn’t do this. She received medication for depression from her family doctor.

b) The parents had cognitive impairments and required Adult Support Workers. The mother had developmental delays and Fetal Alcohol Syndrome. In 2014 she was being serviced at Surrey Place. The father was diagnosed with learning disabilities and anxiety. His treating doctor reported that he has anxiety, gets easily overwhelmed, will panic and has poor coping skills. The cognitive issues adversely impacted the parents’ judgment and choices.

c) The parents struggled in coping with day-to-day living. They had difficulty maintaining a clean and safe home for a child and had difficulties budgeting.

d) The parents had a very poor access attendance record. From January 12, 2014 until January 14, 2016, the mother missed about 25% of her visits and the father missed about 60% of his visits.

e) The parents had significant conflict in their relationship. At times, the father would yell and rage. In July of 2014, the father lost his temper and smashed a glass window. The father would also verbally lash out at times against service providers.

f) The parents had few supports.

g) The parents did not follow up with referrals for supports to address the risk concerns. The father was not open to counseling and did not follow through with appointments for a parenting program.

h) The mother had failed to obtain sufficient antibiotics prior to the child’s birth. As a result the child was born with strep and placed in the hospital’s Neo-Natal Intensive Care Unit at birth.

i) A society worker, who specialized in working with parents with Fetal Alcohol Syndrome (the special needs worker) worked with the parents and the child for the first two months after birth. The parents were observed by this worker to have the following parenting limitations:

i) They had difficulty diapering the child in a timely manner. ii) They had difficulty reading the child’s cues in regards to sleep, eating and discomfort. iii) The mother had difficulties keeping the child safe. iv) When the father attended visits, the mother would focus on the father more than the child.

v) They were inconsistent in attending visits – in particular the father. [ 44 ] There was further evidence that was either uncontested or baldly denied by the parents, supporting a finding that the child is in need of protection including:

a) The mother acknowledged in her affidavit that her mental health deteriorated when she was pregnant as she was under considerable stress and could not take her medication for a long time. She wrote that, “this resulted in my falling back into depression”.

b) The parents have not been cooperative with the society until very recently.

c) The parents, until recently, refused to sign consents to permit the society to contact their service providers. Even then, they only signed consents to permit the society to speak to their family doctors – no one else.

d) The parents would not permit the society to attend at their home to determine if it was appropriate for the child. The society’s family service worker (the family service worker) would set up many appointments and the mother would cancel them. This worker deposed that she has made six requests to see the home, without success.

e) The parents have not made themselves available to meet with the family society worker about services available in the community.

f) The parents were not open to society referrals to attend services to address the risk concerns. They would not advise the society about services they were attending.

g) The mother has attended 31 out of 50 scheduled visits with the child. The father has only attended 3 out of 50 scheduled visits.

h) The mother has offered multiple excuses for the missed visits such as distance, her and the father suffering anxiety and depression, the father having migraines, the father helping friends move and the father’s mother being ill.

i) The parents continue to struggle in budgeting. The society needs to assist the mother with TTC tickets as she is running out of money each month. [ 45 ] The court finds that there is no genuine issue requiring a trial that the child is in need of protection pursuant to clause 37 (2) (

b) of the Act.

Part Five – Disposition 5.1 Positions [ 46 ] The society’s position is that there is not a genuine issue requiring a trial with respect to the disposition of this case. It submitted that the child should be made a crown ward with no access, for the purpose of adoption. [ 47 ] The parents submit that there are genuine issues requiring a trial. Their plan is to have the child returned to their care pursuant to a supervision order. 5.2 The society’s submissions [ 48 ] The society submitted that there is not a genuine issue requiring a trial on the issue of disposition because:

a) There continue to be significant protection concerns.

b) The parents have taken inadequate steps to address the protection concerns. In particular, the parents have not adequately addressed their mental health issues and parenting deficiencies.

c) The father has rarely attended access visits. The society submits that the mother’s access attendance has also been poor.

d) The parents have not demonstrated that they are capable of exercising unsupervised access, let alone having the child returned to their care.

e) The parents have limited supports.

f) The parents continue to have financial struggles and would not go to a suggested course about budgeting.

g) The parents show limited insight into the protection concerns.

h) The parents demonstrate poor judgment.

i) The parents have not been cooperative or open with the society. They have not met with the society’s family service worker to discuss services.

j) The parents have been resistant to signing consents for the society to communicate with their service providers.

k) The parents have not permitted the society to observe their home.

l) The parents are unlikely to comply with a supervision order.

m) The parents do not have a realistic plan of care.

n) There is no reasonable prospect of the parents improving to the point that the child would be returned to their care. It is not in the child’s best interests to delay permanency planning. 5.3 Analysis [ 49 ] The society has raised several compelling arguments in support of the ultimate disposition they seek. However, the legal test is not whether the parents will have an uphill struggle achieving success at trial, but whether or not there is a genuine issue requiring a trial.

For the reasons that will follow, the evidence satisfied me that the court cannot determine the issue of disposition, based only on the affidavit evidence presented. 5.3.1 Mental health [ 50 ] The mental health of the parents has been an ongoing concern. [ 51 ] The mother deposed that the mental health of her and the father has stabilized since the child’s birth. She stated that they are both seeing their family doctors on a regular basis and faithfully taking their medication. The mother takes Cipralex for depression. The father takes Cipralex and Adderal for depression and anxiety.

The mother says that the medication is working well for both of them. [ 52 ] It would have been helpful to have medical reports from the treating doctors for the parents. [ 53 ] However, even in the absence of medical reports, this issue warrants further examination. The society led no evidence of mental health struggles for either parent since the child’s birth, when the mother acknowledged that she was depressed. In the case of the father, the court recognizes that the society has had little contact with him. But the society has had contact with the mother, frequently observing her at access visits.

There is no mention in the society affidavits of any behaviour of the mother that would raise mental health concerns. This supports her contention that her mental health has stabilized. It is also understandable that the mother was depressed early in 2016 as there were serious discussions going on at the time about B.M. being made a crown ward. [ 54 ] It was acknowledged at this hearing that the parents have now signed consents for the society to speak to their family doctors.

No evidence was led by the society as to whether they have followed up with these doctors. 5.3.2 Stability [ 55 ] The instability of the parents has been a protection concern. They have had an unstable relationship in the past and have had difficulty maintaining a clean and safe environment. [ 56 ] The mother led evidence that there has been improvement with this protection concern. The parents continue to live together at the same residence. It has ample space, she says, for the child.

The mother deposed that she and the father have obtained the assistance of a worker from VHA Healthcare to help organize and clean their apartment. She deposed that they have obtained a crib, stroller and clothes for the child.

She said that she and the father are committed to continuing to work with the VHA Healthcare worker and will permit the society to come to their home. [ 57 ] The society should attend at the parents’ home to inspect the condition of the apartment and connect with the VHA Healthcare worker to assess the parents’ ability to work with this agency. [ 58 ] No evidence was led about any domestic discord between the parents since 2014. The mother’s evidence that their relationship has improved since the child was born was not contested.

5.3.3 Access Consistency [ 59 ] The inconsistency of the parents in visiting the child has been a major protection concern. It raises the legitimate question, “how can the parents be expected to look after a vulnerable child when they cannot even consistently attend access visits”? [ 60 ] The evidence suggests that the mother has made significant improvements in this area. She deposed that most of her access absences were in the first two months after the child’s birth, when she was still depressed from the loss of B.M.

The mother deposed that she has been much more consistent in attending access in recent months. The society did not lead specific evidence to dispute this. The mother’s more consistent attendance at access supports her statement that her mental health has stabilized. It also demonstrates an increased level of commitment to the child, responsibility and personal organization. [ 61 ] The concerns about the father’s access consistency remain and are damaging to the mother’s plan.

However, this is not enough, at this stage, for the court to determine that the mother’s plan has no realistic chance for success. 5.3.4 Parenting ability [ 62 ] The parents’ parenting deficiencies have been a protection concern. The evidence is uncontested that these deficiencies continued for the first two months of the child’s life. [ 63 ] The society led conflicting evidence about the mother’s parenting abilities over the past five months. [ 64 ] The family service worker observed one visit by the mother on May 5, 2016. She had nothing positive to report about the visit.

She expressed the following concerns about the mother’s access:

a) The mother did not handle the child in a safe manner.

b) The mother spent most of the time on the phone and paid little attention to the child.

c) The mother did not accept her redirection. [ 65 ] The society’s special needs worker also expressed parenting concerns at this time as set out in subparagraph 43 (

i) above. [ 66 ] However, many other society workers had positive observations of the mother’s access with the child. [ 67 ] Barbara Easwaran observed seven of the mother’s visits. She observed that the mother was appropriate in feeding and changing the child. The mother was attentive to the child’s needs and able to read her cues. This was a significant improvement, as the mother previously had difficulty reading the child’s cues. It informs the court that the mother has the ability to learn and apply parenting teaching. [ 68 ] Ms.

Easwaran also observed that the mother would spend time reading to the child and comforted the child appropriately when she was upset. The mother was affectionate with the child, giving her hugs and kisses. These are all positive parenting qualities. [ 69 ] Ms. Easwaran asked the mother not to spend so much time on the phone and observed that this improved greatly. This is evidence of the mother being able to accept redirection.

[ 70 ] Suganja Krishnamoorthy supervised three of the mother’s visits. She also noted that the issue of the mother spending too much time on the phone at visits has been resolved. Ms. Krishnamoorthy observed positive visits and interaction with the child. She noted that the mother was able to soothe the child when she was fussy. [ 71 ] Karen Murphy supervised eleven of the mother’s visits. She commented on the affection the parents showed the child and the mother’s positive ability to care for the child at the visits. She had no major concerns. [ 72 ] Stephanie Reid supervised five visits.

She expressed some concerns about the mother’s parenting, but overall her observations of the visits were very positive. She observed that the mother is affectionate and nurturing to the child, able to identify the child’s cues, structures her visits appropriately and has a bond with the child. [ 73 ] The evidence indicates considerable improvement in the mother’s parenting skills and a capacity to learn and apply parenting instruction. [ 74 ] The society argued that there is a big difference between a two-hour supervised visit and an extended unsupervised visit. The court agrees.

Based on the access observations, the court believes that the society should be gradually expanding access in a safe manner for the child. If it doesn’t do this, the mother shouldn’t just let the issue sit. Otherwise, at trial, this argument made by the society might be determinative.

The mother should move for more access before the case management judge if an agreement cannot be reached. 5.3.5 Ability to access supports [ 75 ] The inability of the parents to use supports to address the risk issues has been a protection concern. [ 76 ] There is evidence of some improvement by the parents in this area, although it needs to be further investigated by the society. [ 77 ] The mother deposed that she and the father completed a parenting program through Aisling Discoveries. The society’s worker deposed that she did not believe her. This amounted to a bald denial.

For the purpose of this motion only, the court accepts the mother’s evidence. This should be further explored by the society. [ 78 ] The parents have also been working with the VHA Healthcare worker to clean up their apartment. [ 79 ] The father is working with an Adult Protection Worker, who attended at court on the motion. The society should follow up with this worker. [ 80 ] The mother deposed that the parents intend to register for parenting programs with the VHA Parenting Relief Program and Surrey Place Centre.

No detail was provided about these programs. [ 81 ] The parents raised the issue that the society has not fulfilled its statutory obligation to assist them. They believe that the family service worker “wrote them off” after B.M. was made a crown ward. In fact, there is little evidence of efforts made by the society to support the parents after April 15, 2016. For example, no attempt was made to have them participate in its Therapeutic Access Program despite the progress the mother has shown at her access visits with the child.

That said, the parents bear much of the responsibility for no services having been provided to them. They have a reciprocal obligation to work with the society to obtain the necessary services to address the risk concerns and have not met that obligation. 5.3.6 Cooperation with the society [ 82 ] The parents’ lack of cooperation with the society remains a significant flaw in their plan. Until recently, the parents refused to sign consents to allow the society to speak to their service providers or to allow the society into their home.

[83] Cooperation, openness and honesty is essential if the court is to ever return the child to one or both of the parents. Any return ofthe child would be subject to a supervision order and the court must have confidence that the parents would comply with such an order. [84] The mother has deposed that she will sign necessary consents and freely invite the society to come to her home. At this point, thisis only a statement of intention. However, there is some basis to believe that the mother’s level of cooperation will improve.

It appearsthat she has had cordial relationships with the society’s access supervisors other than the family service worker, suggesting a capacity towork cooperatively with the society. She has been able to accept direction from these workers. 5.3.7 Permanency planning [85] The improvements of the parents might still not have been enough to form a genuine issue requiring a trial if this case had beencloser to the one-year statutory time limit for children under 6 years old set out in clause 70 (1) (

a) of the Act, which reads as follows. Time limit 70.

(1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a childbeing a society ward for a period exceeding, (a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or (b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship. [86] In this case, the

summary judgment motion was brought well before the expiry of the time limit in clause 70 (1) (

a) of the Act.The parents have been given little time to demonstrate improvements since B.M. was made a crown ward on April 15, 2016. [87] If the parents had not made any improvements (even in this brief period), the motion would likely have been granted because ofthe historical concerns about them. However, the parents, and in particular the mother, have made gains and may continue to make gains– enough that the court cannot determine on the material filed that there is not a genuine issue requiring a trial.

The court has consideredthe case law that parents should be given a reasonable opportunity to parent their children. See: Children and Family Services for YorkRegion v. A.W. and M.M. [2003] O.J. No. 996 (Sup. Ct.); Catholic Children’s Aid Society of Toronto v. P.A.M. (ONCJ), [1998] O.J. No. 3766 (OCJ); Children’s Aid Society of the United Counties of Stormount, Dundas and Glengarry v. C.K. [2001]O.J. No. 128 (Sup. Ct.); Catholic Children's Aid Society of Toronto v. A.M., 2007 ONCJ 743 , [2007] O.J. No. 4651 (OCJ). 5.3.8

Summary [88] Applying the first stage of the Hryniak test, the court cannot make a finding, without weighing evidence, assessing credibility ordrawing inferences from the evidence, that there are no genuine issues requiring a trial of the disposition issue. [89] The court also finds that it cannot justly determine the disposition issue by weighing the evidence, assessing credibility ordrawing inferences, from just the affidavit evidence filed (the second stage of the Hryniak test).

This would not give the court sufficientconfidence in its conclusions. [90] The society has not met its onus to show that there are no genuine issues requiring a trial, based on the affidavit evidence filed onthis motion. [91] The court finds that it requires oral evidence and cross-examination of particular witnesses to justly determine the issue ofdisposition. In particular, the following issues need to be explored:

a) What is the present state of the parents’ mental health?

b) Is the mental health of the parents being appropriately treated?

c) Do the parents have adequate personal and professional supports to reduce the risks of mental health relapses?

d) Have the parents made sufficient gains in their mental health to safely parent the child?

e) Do the parents have the necessary parenting skill to adequately meet the child’s mental, developmental and emotional needs and to ensure her safety?

f) Can the parents maintain a clean and safe living environment for the child?

g) What is the current state of the parents’ relationship? Is it supportive or otherwise?

h) Does the father have the necessary commitment to the child to be a positive support for the mother, or will he detract from her plan?

i) Do the parents have adequate supports to sufficiently address the risk concerns? If so, will the parents consistently use these supports?

j) Do the parents have sufficient judgment and insight to adequately address the protection concerns?

k) Will the parents be open, honest and cooperative with the society?

l) Will the parents comply with a supervision order?

m) If crown wardship is ordered, is the child’s relationship with one or both parents beneficial and meaningful?

n) If crown wardship is ordered, would an access order impair the child’s future opportunity to be adopted? Part Six – What process should be used to determine disposition? [ 92 ] The court has three options to deal with these outstanding questions. [ 93 ] Pursuant to subrule 16 (6.2) the court can order a mini-trial on such terms as it directs. [ 94 ] There may be some circumstances where this will be the best option to determine a

summary judgment motion. For instance, where there is a narrow factual issue in dispute and the court needs to assess credibility. Another instance might be where the court is leaning towards a finding that there is no genuine issue requiring a trial, but wants to hear from a party or particular witness before making this determination. In such circumstances, a short hearing can usually be arranged quickly and can assist the court in determining whether there is actually a genuine issue requiring a trial. [ 95 ] However, there are limitations to this option.

If the court holds a mini-trial pursuant to subrule 16 (6.2), it cannot make a final determination of the disposition issue unless it finds that there is not a genuine issue requiring a trial. If this determination is not made, this means that there is going to have to be a second hearing scheduled to hear further evidence.

This would create considerable delay for children and place additional stress on an already burdened system that struggles to provide timely trials for children. [ 96 ] In this case, it is possible that with focused oral evidence and cross-examination of the family service worker and the mother that the court would find that there is no genuine issue requiring a trial on the issue of disposition. However, if this finding is not made (which is also a real possibility) the child’s future would be delayed while a second hearing has to be scheduled. This is not an attractive option.

[ 97 ] A second option is to send the case for a conventional trial. This is not the best option in this case as many material facts are not in dispute or were only baldly denied on this motion and this court is well-situated to make these findings of facts, define the outstanding issues and give directions to assist in the organization of the trial. [ 98 ] The third and preferred option is to apply subrule 16 (9) of the rules and send the case to trial for a structured hearing of the remaining issues in dispute.

The advantage of this process will be that the court can determine the disposition issue on a balance of probabilities, as opposed to the more restrictive “no genuine issue requiring a trial” test. It avoids the possibility of two hearings on the same issue. This option will reduce delay and ensure an earlier resolution for the child. This is the course that the court will follow. [ 99 ] The court canvassed these options with the parties. It was agreed that if

summary judgment was not granted, the third option – a structured trial – made the most sense. [ 100 ] Mother’s counsel suggested that he would only need to cross-examine the family service worker. The affidavits of the other workers filed on this motion would be admitted without cross-examination.

The parents would testify and would produce evidence from their two family doctors, the VHA Healthcare worker and the Aisling Discoveries worker, subject to cross-examination by the society. [ 101 ] With some refinements, that will be set out below, the court agrees that this would be a just process and give the trial judge a full appreciation of the evidence to justly determine the issues. [ 102 ] Subject to the discretion of the trial judge, I will make findings of fact, define the issues for trial and give directions concerning the organization of the trial pursuant to subrule 16 (9) of the Family Law Rules .

Part Seven – Findings and directions for trial [ 103 ] All findings of fact and directions are subject to the direction of the trial judge. [ 104 ] Findings of fact are made as set out in paragraphs 6-14; 43-44; and 82 above. [ 105 ] The issues for trial will be what disposition order is in the child’s best interests and if a crown wardship order is made, whether either parent should be granted access to the child. [ 106 ] The questions to be addressed at trial to determine these issues should be the ones set out in paragraph 91 above.

The parties should also address at trial how well they have met the court’s expectations of them that will be set out below. [ 107 ] The affidavits filed on this

summary judgment motion shall constitute direct evidence of the deponents at trial. [ 108 ] The society may serve and file updated affidavits from the family service worker and one access supervisor. If the society wishes to call further evidence at trial it will need to obtain prior permission from Justice Roselyn Zisman, the case management judge. [ 109 ] The parents will be entitled to cross-examine the family service worker and any other worker who files an updated affidavit. The deponents of the other affidavits filed on this

summary judgment motion will not be cross-examined. [ 110 ] The parents will have the option of serving and filing updated affidavits for trial. The mother may also give further oral direct evidence. It is expected that the father will give oral direct evidence at trial. The society will be entitled to cross-examine the parents. [ 111 ] The parents may also call the following witnesses at trial:

a) Their family doctors.

b) The father’s Adult Support Worker.

c) A representative from Aisling Discoveries.

d) Their VHA Healthcare support worker.

e) Any other witness approved by the case management judge. [ 112 ] The society will be entitled to cross-examine any witnesses called by the parents. [ 113 ] All parties will be entitled to re-examine their witnesses. [ 114 ] The expectation is that it will take about 3 days for the evidence to be heard. Part Eight – Expectations of the parties [ 115 ] The court has certain expectations of the parties. These are not orders. [ 116 ] The parents are running out of time to prove that they can safely parent the child.

They must do everything possible now to prove that they can do this. [ 117 ] The court’s expectations of the parents are being set out to give them clarity about what they need to do to have the best chance to succeed. They are also being set out to allow for a proper evaluation of their plan [ 118 ] These are the expectations the court has of the parents:

a) They will attend all access visits.

b) They should fully participate in the society’s Therapeutic Access Program, if this service is offered to them by the society.

c) They will maintain a clean and safe home and continue to work with the VHA Healthcare worker to do this.

d) They will sign consents to allow the society to communicate freely with their VHA Healthcare worker, their doctors, the father’s Adult Support Worker and Aisling Discoveries.

e) They will follow all medical recommendations of their doctors.

f) They will permit the society to make announced and unannounced visits to their home.

g) They will attend all plan of care meetings for the child.

h) They should meet with the society to discuss what services will best assist their plan.

i) They should seek increased access from the case management judge if the society is unwilling to change temporary access. [ 119 ] The society also has responsibilities towards the parents and the child. The court has the following expectations of the society:

a) It will seriously explore increased access for the mother. One option is for the mother to have access through the society’s Therapeutic Access Program. Another option would be extended access at the society’s Saturday access program.

b) It will contact the parents’ family doctors to see whether their present treatment is properly addressing their mental health issues and to obtain information about how the parents are functioning.

c) It will contact the VHA Healthcare worker, Aisling Discoveries and the father’s Adult Support Worker to assess the parents’ progress and level of cooperation with these professionals.

d) It will go to the parents’ home, more than once, to assess its suitability for the child.

e) If it believes that the parents are non-compliant with any of the expectations set out above, it will notify their lawyers about this in writing within 7 days. This will give their lawyers the opportunity to fix small problems before they become larger ones and will also facilitate improved communication. Part Seven – Conclusion [ 120 ] An order will go on the following terms:

a) The society’s motion for

summary judgment is granted in part.

b) Statutory findings for the child pursuant to subsection 47 (2) of the Act are made as set out in paragraph 2 of the society’s notice of motion dated September 8, 2016.

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

i) and (ii) of the Act. There is no genuine issue requiring a trial on this issue.

d) The

summary judgment motion regarding disposition is dismissed.

e) Pursuant to subrule 16 (9) of the Family Law Rules , there shall be a trial about what disposition for the child is in her best interests, and if a crown wardship order is made, whether any access should be ordered. Subject to the discretion of the trial judge, the questions to be addressed at trial in determining these issues will be as set out in paragraph 91 of these reasons for decision, as well as an examination as to how the parties have met the expectations set out in paragraphs 118 and 119 of these reasons for decision.

f) The case will be sent to the case management judge for a settlement conference on December 8, 2016 at 11:00 a.m. Settlement conference briefs should be served and filed pursuant to the rules, together with the Child Protection Trial Management Endorsement Form.

g) The case will be sent to Assignment Court for January 12, 2017 at 2 p.m.

[ 121 ] The court wishes to thank counsel for their professional presentation of this motion. Released: October 24, 2016 ________________________ Justice Stanley Sherr