Children’s Aid Society of Toronto v. B.S., 2012 ONCJ 177

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

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

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

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

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

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

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

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. COURT FILE No.: Toronto C48509/09 DATE: 2012·03·30 Citation: Children’s Aid Society of Toronto v. B.S. , 2012 ONCJ 177 ONTARIO COURT OF JUSTICE BETWEEN: Children’s Aid Society of Toronto, Applicant, — AND — B.S. and J.P., Respondents. Before Justice Marvin Zuker Heard on March 12, 2012 Reasons for Decision on

Summary Judgment Motion released on March 30, 2012 Nancy Thompson ........................................................................................ for the applicant society Edward A. Rice ....................................................................................... for the respondent mother B. Keyshawn Hyacinth .................................................................. for the respondent father of C.S.

Herbert Stover .............................................................................. for the paternal grandmother, S.P. ZUKER J.: [ 1 ] This is a motion for

summary judgment wherein the Society is seeking an order pursuant to

Section 57.1 of the Child and Family Services Act that the child, C.S., born […], 2009, be made a ward of the Crown and placed in the care and custody of the Children’s Aid Society of Toronto. This is an amended early status review application dated October 8, 2010. Mr. J.P. has not filed a reply. Ms. B.S. has filed a reply in the form of a

summary judgment motion brief. [ 2 ] The Society submits that there is no genuine issue requiring a trial with respect to the dispositional order it is seeking. [ 3 ] Rule 16 (6) of the Family Law Rules is mandated to make a final order on

summary judgment where there is no genuine issue requiring a trial. With respect to the Child and Family Services Act , Section 57 (1) states that where a court finds that the children or a child is in need of protection and is satisfied that intervention through court order is necessary to protect the children, the court shall make one of the orders set out therein or an order under 57.1 in the child’s best interests. Section 57 (3) requires the court to consider alternatives that are the least disruptive if the child must be removed from the parents’ care.

Section 37 (3) deals with the child's best interests, as this is a status review application. [ 4 ] If the court finds there is no genuine issue for trial, and makes the order sought, the respondent mother bears the burden pursuant to Section 59 (2.1) to satisfy the court that an access order should be provided. [ 5 ] C.S. was apprehended at birth and came into care. She was born on […], 2009. She has been in the Society’s care since that time. On April 15, 2010, she was found to be in need of protection pursuant to Section 37(2)(b) (1).

The order was made on consent. [ 6 ] C.S. has never been in her mother’s care. Ms. B.S. has five children. She is expecting a sixth. None of the children are in her care. The Society has worked with the mother since 1998. [ 7 ] On […], 1998, the Society received a referral from Branson Hospital with respect to the care that Ms. B.S. was providing her newborn baby, K.S.2. The concerns noted by the Society included Ms.

B.S.’s lack of co-operation with the Public Health Nurse, mother’s apparently low intellect and her inability to parent effectively without appropriate resources in place. [ 8 ] K.S.2 remained in the Society’s care until February 28, 2000, at which time she was placed in the care of her paternal grandmother pursuant to an order of supervision. On September 12, 2000, the supervision order was terminated, as F.P., paternal grandmother, and K.P.2, paternal aunt, were awarded custody of K.S.2. [ 9 ] On June 29, 1999, the Society was advised that services at Surrey Place Centre for Ms.

B.S. would be terminated because Ms. B.S. was not able to engage or benefit from the sessions. Ms. B.S. and Mr. J.P. completed a parenting assessment at Thistletown Regional Centre (“Thistletown”). The recommendation from Thistletown was that the parents could not provide a safe long- term placement for K.S.2. [ 10 ] The Society re-opened its file on December 31, 2003. Ms. B.S. had given birth to her second child, A.S.2. [ 11 ] On April 6, 2009, a report was received from A.S.2’s daycare. A.S.2 had disclosed that Ms. B.S.’s boyfriend, Mr.

J.P., had hit him on the head, leaving a red and blue mark on his forehead. [ 12 ] On May 6, 2009, there was a domestic incident at Ms. B.S.’s home between Ms. B.S. and Mr. J.P.. [ 13 ] Mr. J.P. was charged with assault and was incarcerated at Maplehurst Correctional Institute. He remained in custody until on or after July 14, 2009.

He was subsequently convicted and sentenced to house arrest and eighteen months of probation. [ 14 ] On July 31, 2009, the court made a temporary without prejudice order placing the children, A.S.2 and A.S.1, in the care and custody of their mother, B.S., subject to the supervision of the Society with terms and conditions, one of which prohibited Ms. B.S. from allowing Mr. J.P. to attend her home or have contact with her children. [ 15 ] On August 4, 2009, Mr. J.P. was in the home as was A.S.2.

A.S.2 was apprehended from the home and A.S.1 was subsequently apprehended from her daycare. [ 16 ] A.S.2 and A.S.1 went to the kin home of Mr. and Mrs. K.S.1 on an extended access visit on March 15, 2010. [ 17 ] On April 15, 2010, the Honourable Justice Brownstone found that A.S.2 and A.S.1 were children in need of protection pursuant to section 37 (2)(

b) of the Child and Family Services Act and ordered they both be placed in the care and custody of K.S.1 and J.S., subject to terms and conditions of Society supervision. [ 18 ] A.S.2 was subsequently brought back into Society care and placed in his former foster home, where his sister C.S. was also residing. Therapeutic Access Program [ 19 ] Between November 2009 and May 2010, Ms. B.S. participated in the Society’s Therapeutic Access Program (“TAP”). In November 2009, after C.S.’s birth, Ms. B.S. and the children commenced the TAP. Access visits were initially twice per week for four hours per visit. Visits were reduced to two hours. Ms. B.S. was also provided with time, alone with C.S..

[ 20 ] Ms. B.S.’s involvement with the TAP ended in May 2010. At the completion of the TAP program, the staff assessed that Ms. B.S. appeared to be unable to meet the children’s needs on a consistent basis. I find that this is not a triable issue. [ 21 ] As a child, Ms. B.S. had been diagnosed with a mild intellectual disability. The Society submits in part that this disability has affected and continues to affect her ability to learn and to implement effective parenting techniques with her children. Mr. J.P. [ 22 ] Ms. B.S. continues to maintain a relationship with Mr.

J.P., who, as indicated, was convicted of assaulting her and who physically assaulted A.S.2 in 2009. [ 23 ] The Society submits that Ms. B.S. continues to demonstrate she is either unwilling and/or unable to make decisions that would protect her children from Mr. J.P.. She became pregnant with Mr. J.P.’s child, Z.S.. [ 24 ] Mr. J.P. has not addressed his anger and violence despite clear recommendations from the Society to do so since 2009. Mr. J.P. has been aggressive and threatening towards workers on numerous occasions since 2009. This is what the Society submits. [ 25 ] Mr.

J.P.’s access visits with C.S. and Z.S. were suspended on June 20, 2011, pending his completion of an anger- management and/or parenting program. [ 26 ] On February 7, 2011, Mr. J.P. advised that his cousin, K.P.1, was interested in presenting a plan to care for C.S.. [ 27 ] On April 18, 2011, Justice Brownstone ordered access visits between Ms. S.P. and C.S. twice per week at the Society’s office. [ 28 ] To summarize, Ms.

B.S. is the mother of five children and soon the mother of six. [ 29 ] K.S.2, born […], 1998, lives with her paternal grandparents in Angus, Ontario. [ 30 ] A.S.2, born […], 2003, was made a Crown ward. He was adopted by his foster parents, T.H. and H.H.. A.S.2 is in the process of being returned to the Children’s Aid Society. [ 31 ] A.S.1 was born on […], 2006. She is in the custody of mother’s brother K.S.1 and his wife J.S., who live in Keswick, Ontario. [ 32 ] C.S. was born on […], 2009. C.S. has lived with T.H. and H.H. since her birth. They had wished to adopt her. [ 33 ] Z.S. was born on […], 2010.

She went to live with mother’s brother and sister-in-law, K.S.1 and J.S.. Z.S. has come back into care. [ 34 ] Ms. B.S. deposes that: “For the majority of 2010, I was not partnered with Mr. J.P. and I was working on my own and attempting to get my children back. Unfortunately, hearts and hormones got in the way [court’s emphasis] and Ms. Ugwu stopped assisting me when Mr. J.P. came back on the scene. “After Z.S. was born on […], 2010, Mr. J.P. re-emerged on the scene. He again professed his love and affection for me.

He convinced me that he had dealt with his criminal problems and his anger control problems and asked if I would partner with him in raising our children. “…I have not seen Mr. J.P. since Thanksgiving 2011 nor am I inclined to give him another chance to parent the children with myself. I am now planning to parent alone. “I have lived in my current apartment since 2004 and have successfully parented both A.S.2 and A.S.1 there. The reason I am currently looking to move is so that I can obtain an accommodation in which Mr.

J.P., should he ever be inclined to do so, would not be able to locate me. “C.S. benefits significantly from her relationship with me and there is a significant difference between parenting her one on one and parenting her with other children while knowing your every move is being watched. “It is also true that Mr. J.P. has assaulted me and other women in the past. However, I have within the recent history attempted to put that behind us since we have two children. It had been my plan to work through our issues and parent together.

This was in part because, as part of his incarceration and after his release, he had taken an anger control program. I [have] been under the impression that his anger was under control. Currently, I am not sure that he can control his anger and it is not my intent to continue with a plan to parent any children with Mr. J.P.. “It also turns out that my attempt to reconcile and to plan with Mr. J.P. was a failure.

His anger control courses do not appear to have worked and we are again separated and it is not my intent to give him a third chance but rather try to develop my life in a way that will allow me to come back into my children’s life in a positive and meaningful way in the future.” [ 35 ] On March 1, 2011, Ms. B.S. deposed that: “Mr. J.P. and I are planning to put forward a plan to parent our two biological children together. Accordingly, we are arranging to have a residence that would be suitable for us both to live in and for them both to be with us.

I expect that to happen soon and I would like to be free to bring my own motion to have both Z.S. and C.S. placed with us when that occurs.”

Special Needs [ 36 ] The Society submits that Ms. B.S.’s plan is to parent alone. [ 37 ] C.S. has been diagnosed as having a Global Developmental Delay by the Society’s physician, Dr. Susan Cohen. There are concerns that C.S. may suffer from Fetal Alcohol Spectrum Disorder (“FASD”). She “may” have been exposed to alcohol prenatally. C.S. has facial features consistent with FASD. [ 38 ] A formal assessment and diagnosis of FASD cannot be made until C.S. is six years old. [ 39 ] Dr. Cohen has diagnosed a global developmental delay as C.S. was behind in her speech and language and gross motor skills.

Information pertaining to C.S.’s diagnosis is provided in Ms. Kalpa Patel’s affidavit. [ 40 ] C.S. has received current foster placement services, including speech and language services, physiotherapy and occupational therapy. [ 41 ] On October 18, 2011, the Society’s kinship department indicated it would not approve Ms. S.P. as a kinship caregiver for C.S.. [ 42 ] On October 31, 2011, Justice Brownstone made an order reinstating overnight access visits between paternal grandmother Ms.

S.P. and C.S.. [ 43 ] Following C.S.’s access visit ending November 21, 2011, the Society determined that it would be unsafe for C.S. to continue having overnight visits with Ms. S.P.. [ 44 ] Mr. Rice submits, on behalf of the mother, that the court is not limited to Crown ward or care and custody to mother. The court, he submits, could make an order of short-term Society wardship followed by transition to mother. Section 70 (4) of the CFSA provides for an extension of the appropriate order. [ 45 ] Is there a triable issue in terms of Ms. B.S.'s intellectual ability?

Is she functioning intellectually because she’s a client of the community living association and she has an adult who helps her? Has anyone assessed exactly how great that deficit is? Mr. Rice submits there are triable issues. [ 46 ] According to Mr. Rice, Ms. B.S. has not minimized the TAP assessment. Her life at the time was quite volatile because Mr. J.P. was reintroducing himself to her, she had just given birth to C.S., and there were three children involved in that assessment, not just one, so she has therefore asked for a follow-up assessment. [ 47 ] Attached to Ms.

B.S.’s affidavit is a letter from the community living worker who is now her new worker who states that they would provide assistance and that they would partner with the Society to see what assistance would be available. He submits that the Society has failed to partner with Ms. B.S. or even her previous worker when her previous worker was available and was actively trying to find alternate housing and other things for her. [ 48 ] Mr. Rice submits there is the necessity of placing considerable emphasis on permanent planning and the integrity of the family. Ms. B.S. had all of these children.

Her first opening with the Society was in 1998 when the child of her youth, K.S.2, was born. There was a long hiatus between then and the Society’s next involvement. When the Society came in 2009, Ms. B.S. had two children, one who was six-and-a-half years of age, one three years of age, so arguably, Ms. B.S. was parenting successfully. Why was she able to parent successfully for that period of time and not able to parent now? [ 49 ] The other triable issue, Mr. Rice submits, is the involvement of the father. [ 50 ] Ms. B.S. says she was involved with Mr.

J.P. at the time of the first apprehension of A.S.1 and A.S.2. She came before the court in July 2009, where there was an order returning those two children to her under terms of supervision. The term that has become paramount is the one that said Mr. J.P. is not to be there. Her evidence is that two days later, the Society workers arrived unexpectedly. They happened to arrive within five or ten minutes of when Mr. J.P. had come to get his personal belongings and so the children came back into care. [ 51 ] They have been in care since then. After they came into care, Ms. B.S. was pregnant with C.S..

She said that Mr. J.P. had put forward a plan that he wanted to parent with her. This was November, 2009. She said, “Since formulating my plan to look after the children myself, Mr. J.P. wants to parent the children with me.” She said, “I would embrace that plan only after it has been fully sanctioned by the Society and also only after Mr. J.P. has completed the following: (

a) he has obtained a lawyer and put his plan of care in writing before the court, which he’s done; (

b) he has taken anger control programs, which he did, and (c), completed couple’s counselling that the CAS finds appropriate and...”. [ 52 ] This quote is found in the answer and plan of care. It is not evidence. [ 53 ] Mr. Rice submits that what is sworn by Ms. B.S. is that, despite that, she didn't reconnect with Mr. J.P. until she met him at the hospital at the birth of Z.S., which would be […], 2010. Ms. B.S. submits that she didn't see him between November 2009 to February after the children came into care. She saw him “for a bit” because they contacted the Society, but then not till Z.S. was born in 2010.

She has not been with him since November 2011. That is her evidence. During that one year that she had tried to plan with him, the Society was aware. They weren’t keeping that a secret from them because they were having some access together. [ 54 ] It is a triable issue, according to Mr. Rice, to see whether or not that could happen. [ 55 ] This is a woman, Mr. Rice submits, who was working co-operatively with the Society. Fetal alcohol syndrome is a

complete impossibility because she neither takes drugs, drinks nor does any of those things. Her only problem is the so-calledintellectual disability. Her two problems with the Society have been intellectual disability and her relationship with Mr. J.P.. C.S. wasplaced with Mr. and Mrs. H.H., who had already expressed their willingness to adopt A.S.2, the older child, and who had provided Ms.B.S. with an openness agreement. Everybody knew that if C.S. went to the H.s, she would get to have some access to C.S.. Thealternative plan for C.S. might have been a custody order to K.P.1, a paternal aunt.

She would have had access in that event. So, thatissue of access, up until December, was a given but now the court, Mr. Rice further submits, is being asked to make a wardship, or aCrown wardship order that would rule out access. [56] Mr. Stover, on behalf of S.P., supports mother. Ms. S.P. would like to have access. [57] Mr. Hyacinth, on behalf of Mr. J.P., supports mother’s position. Mr. J.P., in the event that the court decides to dismissthe

summary judgment motion, supports Mr. Rice's motion that the child be placed into the temporary care and custody of his mother. [58] Ms. Thompson submits that neither Mr. Stover’s client nor Mr. Hyacinth’s client have materials or evidence before thecourt. [59] Ms. Thompson submits that Ms. B.S.'s plan is to parent alone. That is wholly insufficient, given the multitude ofconcerns put before the court. The TAP assessment, ending in 2010, is not even two years old. It was a lengthy TAP assessment. Afurther assessment is not necessary. [60] The Society argues that Ms.

B.S. has not met the test, as set out at Section 59 (2.1), for access. The test for access is veryclear. When a Crown wardship order is made that any access order is terminated, a court shall not make or vary any access order madeunder

Section 58 with respect to a Crown ward unless the court is satisfied that the relationship between the person and the child isbeneficial and meaningful and the ordered access will not impair the child’s future opportunities for adoption. THE LAW [61] The court’s jurisdiction to grant

summary judgment in child protection cases is only to be exercised in the clearest ofcases and with extreme caution. It is in the best interests of children to have issues resolved quickly. In family law cases of Crownwardship, the court must review all the evidence to determine if there is a basis for the final order sought. A proper consideration of afull evidentiary record is necessary to determine the evidence on the motion. The court must then determine whether there are specificfacts to support a triable issue. [62] The responding party(s), faced with a prima facie case for

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

summary judgment. A party answering a motion forsummary judgment cannot rest on bald denials. They must put their best foot forward. [63] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh evidence on a

summaryjudgment motion. [64] Rule 16 of the Family Law Rules permits a party to make a motion for

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

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion forsummary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. • Evidence Required o

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is nogenuine issue requiring trial. • Evidence of Responding Party o

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

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

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [65] Rule 16(6) is mandatory: If the court concludes that there is no genuine issue requiring a trial of a claim, the court shallmake a final order accordingly. [66] On a motion for

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

[67] In interpreting Rule 16, the court must have regard to the strict timelines that govern child protection proceedings. Subsection 1(1) of the Child and Family Services Act states that the paramount purpose of the Act is to promote the best interests,protection and well-being of children.

Rule 2 of the Family Law Rules provides that the primary objective of the rules is to deal withcases justly. [68] Subsections 70(1) and (4) of the Child and Family Services Act mandate that a child under the age of six years shall notbe in the care of a society for longer than 12 months, subject to a six-month extension if it is in the child’s best interest to do so. I findthat it is not in C.S.’s best interests to wait any longer. [69] The dominant consideration of the best interests test is the welfare of the children. See Re McGrath (infants), [1893] 1Ch. 143, 62 L.J.

Ch. 208, 67 L.T. 636, [Ch.], cited with approval in Catholic Children’s Aid Society of Metropolitan Toronto v. CidaliaM., (SCC), [1994] 2 S.C.R. 165. [70] The welfare of the child is “not to be measured by money only, nor by physical comfort only. The word welfare must betaken in its widest sense.” See Re McGrath (infants), supra. [71] The best interests test has a “wide focus.” This means that the “entirety of the situation” must be examined in order todetermine a child’s best interests. See Catholic Children’s Aid Society of Metropolitan Toronto v.

Cidalia M. [72] The best interests of a child continuously evolve. See Catholic Children’s Aid Society of Metropolitan Toronto v. CidaliaM. This means that different solutions may be required over different periods of time. [73] The best interests of a child take priority over the desires and interests of the parent. See Young v. Young, (SCC), [1993] 4 S.C.R. 3.

The factors that must be taken into account when determining the best interests of a child are listed insubsection 37(3) of the Act. [74] This list is not exhaustive, as one of the factors to be considered under subsection 37(3) of the Act is “any other relevantcircumstance.” See also L.C. and G.C. v. Catholic Children’s Aid Society of Metropolitan Toronto (1993), 41 A.C.W.S. (3d) 1166,[1993] W.D.F.L. 1292, [1993] O.J. No. 1823, 1993 CarswellOnt 1581 (Ont. Gen. Div.). [75] The relevant factors must be considered and balanced in order to determine the child’s best interests. See L.C. and G.C.v.

Catholic Children’s Aid Society of Metropolitan Toronto, supra; and Catholic Children’s Aid Society of Metropolitan Toronto v.Cidalia M., supra. [76]

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise atriable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with thetrial and the resulting prolongation of the state of uncertainty about the child’s future. Jewish Child and Family Services of Toronto v. A.(R.) 2001 O.J. No. 47 (SCJ) per Lane J. [77] The court’s role on a

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

summary judgment is now explicitly contemplated by Rule 16, this may “broadenthe use of the procedure as it will no longer be characterized as an extraordinary remedy. Nevertheless, the considerations of dueprocess, statutory requirements and the best interest, protection and well-being of the children will determine ultimately theappropriateness of

summary judgment.” Children’s Aid Society of the Regional Municipality of Waterloo v. T.S. (ON CJ), [1999] O.J. No. 5561 (Ont. C.J.) per Hardman J. [78] A party answering a motion for

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

summary judgment is met when the moving party satisfiesthe court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question ofcredibility gives rise to a genuine issue for trial. The fact must be material. Children’s Aid Society of Toronto v. T. (K.) (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.). [79] The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits. See CatholicChildren’s Aid Society of Toronto v. C.H. 2004 ONCJ 224 , [2004] O.J. No. 4084; Children’s Aid Society of Hamilton v.

C.R. (ON SC), [2006] O.J. No. 3442. [80] In interpreting Rule 16, rule 2 of the Family Law Rules must be considered. As well, reference to subsection 1(1) of theCFSA – which provides that the paramount purpose of the Act is to promote the best interest, protection and well-being of children – isnecessary to the

interpretations of the Act. See Children’s Aid Society of Hamilton v. M.W. (ON SC), [2003] O.J. No.220). [81] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal processnot be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of anissue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child.

There must be anarguable notion discernable from the evidence that the child faces some better prospects than existed at the time of the Society’s removalof the child from their care and that they have developed some new ability as a parent. See Children’s Aid Society of Toronto v. R.H. (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J. [82] As Justice Pazaratz stated at para. 43 of Children’s Aid Society of the Niagara Region v. S.C., (ONSC), [2008] O.J. No. 3969 (Sup.

Ct.): “No genuine issue for trial exists where there is no realistic possibility of an outcome other thanthat as sought by the applicant.” [83] Good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether

they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to beexperimentation with a child’s life with the result that, in giving the parents another chance, the child would have one less chance. SeeChildren’s Aid Society of Winnipeg (City) v. R. (1980), (MB CA), 19 R.F.L. (2d) 232 (Man. C.A.). There has to besome demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. SeeChildren’s Aid Society of Brockville, Leeds and Grenville v. C. [2001] 2001CarswellOnt 1504. [84] The motion for

summary judgment is granted. Ms. B.S. and Mr. J.P. have failed to show a genuine issue for trial. [85] Although I find that the access exercised is generally positive, by granting the

summary judgment motion, the issue ofC.S.’s future can more readily be decided. [86] If there are emotional bonds between C.S. and her mother, they should be preserved, so long as that is not contrary to theother interests of the children such as security or psychological health (New Brunswick (Minister of Health and Community Services) v.B.D. reflex, (1994), (NB KB), 145 N.B.R. (2d) 14 (Q.B.)). A child and a parent who are not attached to each othermay not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health and CommunityServices) v.

S.G. reflex, (1997), (NB KB), 193 N.B.R. (2d) 274 (Q.B.)). [87] Most litigation is retrospective. For example, in a criminal case the court must decide at the adjudication stage whathappened in the past. “Best interest” proceedings are paradigmatic examples of prospective litigation. Although as assessment about thefuture is based on a consideration of what has happened in the past, in child related proceedings, courts are asking the question, ‘Whatwill be in the child’s best interest?’ This is inherently a predictive and uncertain exercise.

The circumstances of a child and a parent(s)will inevitably change and a judicial “best interest” decision is also subject to variation to reflect changes in circumstances. [88] There are several Supreme Court of Canada decisions dealing with parental rights, particularly in the area of childprotection legislation. In Richard B. and Beena B. v. Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1S.C.R. 315, 176 N.R. 161, 87 O.A.C. 1, 122 D.L.R. (4th) 1, 26 C.R.R. (2d) 202, 9 R.F.L. (4th) 157, [1994] S.C.J.

No. 24, 1995 Cars​well​-Ont 105, the Supreme Court of Canada accepted that the parent-and-child relationship is worthy of constitutional protection as animportant aspect of liberty and security of the person. That decision emphasized the importance of procedural rights of parents inproceedings where their relationship with their child is threatened and indicated that, in the final weighing of evidence, the concept ofparental rights cannot be invoked to harm their child. [89] In Catholic Children’s Aid Society of Metropolitan Toronto v.

Cidalia M., (SCC), [1994] 2 S.C.R. 165,165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376, Justice ClaireL’Heureux-Dubé stated at page 201 [S.C.R.]: The wide focus of the best interest test encompasses an examination of the entirety of the situation andthus includes concerns arising from the emotional harm, psychological bonding and the child’s desires. The best interests of a child, according to Young v.

Young, (SCC), [1993] 4 S.C.R. 3, 160 N.R. 1, 34 B.C.A.C. 161, 84B.C.L.R. (2d) 1, 56 W.A.C. 161, [1993] 8 W.W.R. 513, 108 D.L.R. (4th) 193, 18 C.R.R. (2d) 41, 49 R.F.L. (3d) 117, [1993] R.D.F. 703,[1993] S.C.J. No. 112, 1993 Cars​well​BC 264, must be the best interests of the child assessed from a child-centered perspective. [90] The relationship between Ms. B.S. and Mr. J.P. has been one of volatility and conflict. Ms. B.S. is a victim of physical abuse atthe hands of Mr. J.P.. There is no triable issue in this regard. [91] The gravity, indeed, the tragedy of domestic violence can hardly be overstated.

Expert testimony on the psychological effectsof battering have been admitted in American courts in recent years. In State of New Jersey v.

Kelly (1984), 97 N.J. 178, 478 A. 2d 364 atpage 378 [A.], the New Jersey Supreme Court commented on the value of expert testimony in these terms: It is aimed at an area where the purported common knowledge of the jury may be very much mistaken,an area where jurors’ logic, drawn from their own experience, may lead to a wholly incorrectconclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusionsas being common myths rather than common knowledge.

The court concludes at page 379 [A.] that the battering relationship is “subject to a large group of myths and stereotypes.” As such, it is“beyond the ken of the average juror and thus is suitable for explanation through expert testimony.” [92] Spousal violence is rarely the only factor operative in protection proceedings, but rather is often combined with a familyenvironment involving other types of child abuse or neglect.

When there is a high degree of spousal abuse, the abusive partner is oftenabusive towards the child(ren) and the parenting capacity of an abused person often suffers. [93] The past is often useful as a prediction of the future. In Children’s Aid Society of Hamilton-Wentworth v. Barbara M. (ON SC), (1998), 120 A.C.W.S. (3d) 244, , [1998] O.J. No. 6499, 1998 Cars​well​Ont 6005 (Ont. Fam.Ct.), Justice Thomas A.

Beckett addressed the subject of history as follows at paragraph [9]: I think it is important that I go over that history because this case is based on history. [94] In Children’s Aid Society of Simcoe County v Cecile S. and Scot S. (2001), 104 A.C.W.S. (3d) 699, [2001] O.J. No. 1380,2001 Cars​well​Ont 1302 (Ont. Fam. Ct.), the same issue is addressed by Justice Lydia M.

Olah: [9] The real relevance of “past parenting” evidence is the extent to which it provides a reliablebackdrop against which to measure the extent to which the parents’ abilities and circumstances havechanged. [95] And in Children’s Aid Society of Peel Region v. Dianna K. and Stephen K. (1991), (ON CJ), 25

[95] And in Children’s Aid Society of Peel Region v. Dianna K. and Stephen K. (1991), (ON CJ), 25A.C.W.S. (3d) 301, [1991] W.D.F.L. 264, 4 O.F.L.R. 121, [1991] O.J. No. 159, 1991 Cars​well​Ont 1468 (Ont. Prov. Div.), ProvincialJudge A. Peter Nasmith (as he then was) observed: In the uncertain and unscientific world of making predictions about harm to children, there is probablyno more compelling evidence of risk than harm that has befallen other children in the same parents’care. [96] Justice L’Heureux-Dubé in Catholic Children’s Aid Society of Metropolitan Toronto v.

Cidalia M., supra, at page 191[S.C.R.], reminded us that, in order to fulfill the objective of the best interests of the child, the Act “carefully seeks to balance the rightsof parents and, to that end, the need to restrict state intervention with the rights of children to protection and well-being.” Further on inthe same paragraph, she remarked: Thus the value of maintaining a family unit intact is evaluated in contemplation of what is best for thechild, rather than for the parent. [97] If C.S. is to be parented by her mother, the risk to this child would be overwhelming.

These parents require extendedtherapy to address their long-standing issues. It is not in C.S.’s best interests to wait to see whether her mother, in particular, acquires theskills necessary to parent her. I find specifically in this regard there is no triable issue. [98] The risk to the child remains substantial. It is in C.S.’s best interests to be made a Crown ward to enable her to move onwith her life.

The child’s opportunities for a permanent and stable placement cannot await the time that would be required for the motherto establish that she had acquired the stability and necessary parenting skills and that the risk to the child was satisfactorily addressed. ORDER [99] An order to go pursuant to

section 57.1 of the Child and Family Services Act that the child, C.S., born […], 2009, bemade a ward of the Crown and placed in the care and custody of the Children’s Aid Society of Toronto. Released: March 30, 2012 Signed: “Justice Marvin Zuker”