) ) CAS of the Niagara Region Applicant – v. –, 2010 ONSC 6715

CITATION : CAS (Niagara) v. A.V., G.M. and R.M., 2010 ONSC 6715 ST. CATHARINES COURT FILE NO.: 17/05 DATE: 2010-12-08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) CAS of the Niagara Region Applicant – and – A.V. , G.M. and R.M. Respondents ) ) ) ) ) ) ) )) ) David N. Sider – counsel for the Applicant In Person ) ) ) HEARD: November 25, 2010 The honourable mr. justice a. pazaratz 1 . On November 25, 2010 I heard this

summary judgment motion for Crown wardship with no access in relation to DM, an 11 month old female child born January […], 2010. THE PARTIES 2 . The motion was brought by the Children’s Aid Society of Niagara Region (“the Society”). 3 . There are three Respondents: The mother AV age 22. The father GM age 44. The Paternal grandmother RM. CHRONOLOGY 4 . On January 14, 2010 – one day after birth -- DM was apprehended from the mother’s care in Niagara Falls, Ontario, and placed in foster care. 5 . On January 15, 2010 the Society commenced a protection application against AV and GM, requesting a finding that the child is in need of protection under section 37(2)(

b) and (

g) of the Child and Family Services Act (“CFSA”). The Society requested that DM be made a Crown ward without access, for purposes of adoption. 6 . On January 18, 2010, at the first appearance of the protection application, Justice Thibideau ordered that on a without prejudice basis the child was to remain in the temporary care of the Society, subject to access by the parents.

7 . On February 26, 2010 the self-represented parents jointly filed an Answer and Plan of Care requesting that DM be returned to their care, or alternatively that she be placed in the care of the paternal grandmother RM. 8 . On March 5, 2010 a temporary care and custody motion was argued before Justice E.S. Martin. In a written judgment released April 23, 2010 Justice Martin ordered that DM was to remain in the Society’s temporary care and custody, subject to access by the parents.

The proceedings were also transferred from the Ontario Court of Justice in Welland to the Superior Court of Justice (Family Court) in St. Catharines. PREVIOUS CHILD 9 . The mother and father were previously involved in child protection litigation involving another child GMM born January […], 2008. Pursuant to the order of Justice Taliano dated December 23, 2008, that first child was made a Crown ward without access. 10 . In his 33 paragraph judgment (attached as an exhibit to a Society affidavit) Justice Taliano found that: a.

AV suffers from numerous psychiatric diagnoses including fetal alcohol syndrome, deficit disorder, oppositional defiance disorder, possible bipolar disorder and possible early onset schizophrenia. b. AV has a history of violent outbursts, sexual assaults, behavioural issues and physical attacks on community members and residential placement staff, leading to numerous criminal charges for assault. c. AV has limited mental capacity. d. AV does not have the capacity to parent a child. e. GM has failed to demonstrate that he recognizes or understands the risks the mother poses to the child. f.

GM failed to establish that he had a viable plan to care for the child. g. The parents have a volatile and unstable relationship with one another, with a history of domestic violence and conflict. h. The child was vulnerable. 11 . Justice Taliano summarized the court’s concerns as of late 2008: 26 I agree with counsel for the Society's submission that the father has shown an inability to fully comprehend the child protection issues presented by the mother's mental health and lengthy history of emotional disturbance.

In the beginning he indicated a willingness to work with the Society, but more recently, he has not been co operative and has minimized the gravity of the mother's condition. His plan of care that he will care for the child and not permit the child to be in the presence of the mother without supervision is not realistic because it fails completely to accommodate the concerns aroused by the mother's medical history. It is simply not feasible to expect that the father could protect the child from the dangers presented by the mother while living in the same household with her, no matter how diligent he was.

That conclusion assumes he understands the risk the mother poses to an infant, although the evidence indicates that he does not really understand nor does he accept the risk the mother poses. 27 In any event, given the mother's unfortunate history, it is obvious that the child could suffer physical or emotional harm in any home in which the mother is an occupant. Although the father proposes to take full responsibility for the child's care, he has not demonstrated the capability required to provide full time care for this child.

And even assuming that he is a capable parent, it is inconceivable that there would not be times when he would be compelled by circumstance to rely on the mother to provide assistance. The mother would inevitably become involved and her involvement would be a danger to the child. The father has not grasped the danger the mother poses to the child, and that increases the danger.

A court faced with such a flawed and unrealistic plan would have no other option but to order Crown wardship. 28 It is true that the father recognizes that he would need assistance to raise the child and alleges that he has the support of his mother and extended family. However, no tangible evidence of that support has been presented. Neither the father's mother nor members of his extended family have come forward to indicate to what extent they could or would assist with the care of this child. The father's mother has not seen the child except at the hospital when he was born.

She did not present herself or her extended family for investigation by the Society although she was asked to do so. If she was supportive of her son's plan of care and if she was to be an integral part of that plan, it was necessary for her to present herself and her evidence in response to this motion and she has not done so.

12 . In the case at bar, the Society submits that very little has changed since the findings of Justice Taliano. In the materials filed on this

summary judgment motion, the parties did not specifically dispute Justice Taliano’s 2008 findings and observations; nor did they substantially dispute the Society’s chronology of events both before and after DM’s apprehension this year. EVENTS LEADING TO APPREHENSION 13 . In October 2009 the Society learned AV was expecting a child in January 2010. Prior to the birth of the child Society workers met with the parents to determine if previous child protection concerns had been addressed. The parents assured the Society worker that domestic violence was no longer an issue between them.

However, they refused to sign releases of information to allow the Society to verify this information. 14 . The Society subsequently learned that: a. AV had been charged with assaulting GM in May 2009, and then for assaulting police officers who attended to investigate. b. There were several police reports from the spring and summer of 2009 which suggested continued volatility in the relationship between AV and GM. c. AV was on probation until June 2010. She had not made any attempts to address the psychiatric assessment required as part of her probation order. d. AV denied this information. 15 .

While investigating possible family supports for the parents and their baby, the Society worker spoke with the paternal grandmother RM and a maternal aunt MS. Neither appeared to recognize or understand any child protection concerns or volatility in the relationship between AV and GM. EVENTS SUBSEQUENT TO APPREHENSION 16 . In February 2010 GM was cautioned by police in relation to vague threats he made toward a Society employee. 17 . On March 4, 2010 AV advised the Society that she had ended her relationship with GM and moved into her grandparents’ home. By the next day, the parents said they were reconciling.

Meanwhile, the great-grandmother advised the Society that during the Christmas holidays in 2009 GM had allegedly contacted the great-grandmother by telephone in a rage and threatened to kick in her doors and shoot her. 18 . On April 8, 2010 during a supervised access visit, GM is alleged to have threatened a Society worker, stating the he planned to “hunt her down” and that she “is going to have a bad accident.” 19 . On April 13, 2010, also during a supervised access visit, GM is alleged to have repeated the threat toward the same worker: that she was going to have a “bad accident.” 20 .

After a police investigation of these incidents, GM was charged in May 2010 with two counts of uttering a threat pursuant to

section 264.1(2) of the Criminal Code . He was arrested and released on bail terms requiring him to reside with his mother RM (his surety). Those charges remain outstanding. 21 . On April 22, 2010, during a supervised visit the parents began to argue with each other. AV told her worker she intended to separate from GM. Later that same day, she reported that she was returning to the relationship because GM had apologized. OTHER PROPOSED CAREGIVERS

22 . The original Answer filed by the parents proposed that GM and his mother RM would raise DM. At the time RM had advised the Society that she would be willing to assist GM by caring for DM, but she had not presented a comprehensive, permanent plan for the child. After the Society commenced this

summary judgment motion against AV and GM, RM then came forward with her own formal plan. 23 . In the previous child protection litigation concerning GMM, GM and AV had presented RM as a family member who could assist them in caring for their first child. RM was rejected by Taliano J. as a possible placement. 24 . In relation to GMM, the Society had concerns that RM did not understand the limitations of AV and had no comprehension of the chaotic, violent nature of the relationship between AV and GM. The Society still has those concerns about RM. ISSUES ON

SUMMARY JUDGMENT MOTION 25 . Mr. Sider summarized the issues to be determined as follows: a. Is DM born Jan […], 2010 a child in need of protection pursuant to sections 37(2)(

b) and (

g) of the Act? b. Has the Society established a prima facie case that it is in DM’s best interest to be made a Crown ward without access? c. Have either the parents or the paternal grandmother presented any evidence of specific facts showing there is a genuine issue for trial on either of the issues? SOCIETY’S ORIGINAL MOTION MATERIALS 26 . On June 15, 2010 the Society brought a motion for

summary judgment, relying on the following materials: a. Affidavit of Renee Johnson (child protection worker) sworn June 14, 2010. b. Affidavit of Bonnie Henderson (child protection worker) sworn June 14, 2010. c. Affidavit of Bonnie Henderson sworn August 9, 2010. 27 . These materials include detailed information in relation to the following: a. The situations of AV and GM – as summarized in Justice Taliano’s December 23, 2008 judgment – have not improved. b. AV continues to experience serious psychiatric and behavioural problems which she has not dealt with.

Her limited mental capacity precludes her from having the capacity to parent a child. c. GM still doesn’t recognize or understand the risks AV poses to the child. d. Neither AV nor GM have established that they have a viable plan to care for DM. e. The relationship between AV and GM has continued to be volatile and unstable, with more domestic violence leading to a criminal charge. f. GM has been aggressive and threatening in relation to Society workers, leading to criminal charges which are outstanding. g.

Neither AV nor GM have provided any information to suggest that their lifestyles, personal situations, and parenting skills have improved since December 23, 2008 when Justice Taliano found that neither had the capacity or comprehension to safety parent an infant child. RESPONDENTS’ MATERIALS 28 . In response to the

summary judgment motion, three brief documents dated August 20, 2010 were filed by the self-represented Respondents on the motion: a. Notice of Motion of RM

b. Affidavit of RM c. Joint affidavit of AV and GM 29 . RM’s motion requested that she be added as a party, so that she could advance her own plan to care for DM and participate in the determination of this case. The Society consented, and on August 27, 2010 RM was added as a party. 30 . Beyond that, the three August 20, 2010 motion documents were somewhat irregular in that they cross referenced one another, and much of the narrative – ie, the parents’ response to the

summary judgment motion – was set out within RM’s Notice of Motion. 31 . Ultimately all parties agreed that despite any irregularities in format, the Notice of Motion and two affidavits could be regarded as cumulatively setting out all of the evidence AV, GM and RM intended to rely on. 32 . As well, RM’s Answer and Plan of Care dated August 20, 2010 was referred to by AV and GM in their affidavit. RESPONDING MATERIALS 33 . As stated, even liberally interpreting the various August 20, 2010 materials filed by AV, GM and RM, the responding evidence is as follows: a.

AV & GM want RM to be a party to the proceedings. b. AV & GM consent to RM’s proposal set out in her Affidavit and in her Plan of Care. c. AV & GM request that the court place DM into RM’s care. d. AV, GM and RM ask that access to DM by the parents would be “arranged to the reasonable satisfaction of the Society by means of a supervision order.” [The nature of the access or the terms of a supervision order are not addressed.] e. AV, GM and RM are opposed to

summary judgment because of the “weight and complexity of the case.” [They did not elaborate as to the issues or their proposed evidence.] f. AV and GM previously advised the court that they had retained counsel. However, they were subsequently informed that counsel would not be able to represent them. [No particulars were set out as to what efforts any of the parties made to secure counsel. At the

summary judgment motion, after some discussion about a possible request for an adjournment, all parties consented to proceeding, and all parties acknowledged that they were representing themselves and relying on the written materials filed.] g. AV and GM stated: “the parents realize that it is incumbent upon them to put their ‘best foot forward’.” They wanted to advise the court that “we have simply been unable to obtain ‘proper and effective’ legal representation.” [Having said that, as stated, they consented to proceeding and relying upon their written materials.] h.

In asking that the case be allowed to proceed to trial, AV and GM described their request as follows: “Not as a heartfelt request to be parents, rather now there is a third party able to take and care for the child.” i. AV, GM and RM asked “that this court allow our child to know and grow with her family.” j. RM stated she is willing to accept the responsibility of caring for DM on a permanent and full-time basis. k. RM said she has the support of family and friends. l.

RM said AV and GM have advised her they “will honour any court orders or access restrictions placed on them without fail…”, and that they would be willing to help financially and logistically. m. RM expressed the belief that it is in the best interest of any child to be with family, and she sought kinship placement as an alternative to Crown wardship. n. RM said she is aware of the concerns of the society and the actions they have taken. o.

RM said she and GM are “willing to construct a plan for access and support that the society will feel comfortable with.” She said they were willing to work with the Society “until they do feel comfortable.” [No specific plan was identified.] p. RM said she was willing to present a plan that does not involve GM living with her. [Again, no plan was presented.] q. Responding to affidavit materials filed before she was added as a party, RM said she didn’t think she had previously been

investigated for a kinship placement; and she didn’t think it was appropriate to discuss GM’s legal and relationship issues. r. RM asked “that the court not be hasty” and that she be considered for a kinship placement. 34 . In RM’s Answer and Plan of Care (endorsed in AV and GM’s combined affidavit), RM additionally stated: a. She and DM would live in the apartment where she has resided for 15 years. b. She is retired and available to care for the child on a permanent basis. c. She receives a small retirement pension and lives in subsidized housing, making it affordable for her to care for DM. d.

RM has a daughter who is willing and able to provide support including transportation, financial help, and babysitting. She has many friends and family that would qualify to do this. e. DM would be with RM at all times, with access to AV and GM “only as arranged to the reasonable satisfaction of the Society.” f. AV and GM have provided RM with all necessary equipment, furniture, toys, clothes, food and are able to provide some financial support as well. CAS MATERIALS AFTER RM ADDED AS PARTY 35 . After RM was added as a party, the Society prepared a kin assessment of the paternal grandmother. 36 .

The Society filed a supplemental affidavit of protection worker Melisa Vilardebo sworn September 29, 2010, outlining why RM was rejected for kinship placement by the Society, and setting out the reasons why the Society was still seeking

summary judgment in relation to all three parties. Ms. Vilardebo’s affidavit set out the following: a. On September 1, 2010 she commenced a kin assessment in relation to RM’s proposal that DM be placed in her sole care. b. GM had previously proposed that DM would be co-parented by GM and RM. c. On September 1, 2010 RM attended the Society’s office for her first scheduled visit with the child. The visit was scheduled for 90 minutes but RM attempted to shorten the visit by asking to leave after an hour. At the Society’s request, RM remained for the last half- hour. d.

At a scheduled visit on September 10, 2010 RM indicated she was following GM and AV’s directions as to what to do and how to interact with the child because she didn’t “want to go against what the parents want.” The worker observed RM to have much difficulty settling DM who cried for nearly the entire visit. The supervising worker had no difficulty feeding or settling the child. RM commented that she “cannot settle (DM) and she doesn’t know why.” DM cried when RM held her; she did not cry when the worker held her. e.

On September 13, 2010 RM advised she was cancelling her Tuesday visits because they were scheduled to occur during the hour prior to the parents’ visits on Tuesdays. RM said she didn’t want the child distressed prior to the parents’ Tuesday visits. f. During a September 15, 2010 home visit, RM “appeared to be well intended” but she was not able to demonstrate any understanding of the Society’s protection concerns with respect to the parents; their unstable relationship; their respective mental health issues; and their limited parenting skills. g.

When the Society worker expressed concern about the volatility in the relationship between GM and AV and the many police attendances at their home, RM minimized the concern stating “it’s not like (GM) is a murderer.” h. RM was not prepared to acknowledge that her son GM and AV had a volatile relationship with a history of acts of violence towards each other. She does not view her son as having a volatile personality. i. RM was unable to explain why it would not be safe for GM and AV to be parenting this child.

She appeared to be accepting and relying on their instruction and approaches in relation to parenting. j. RM acknowledged that she is older, with some health issues. She candidly admitted she does not have any back up plans for DM should something happen to her. She doesn’t know who would care for DM should she not be able to. k. She admitted physically caring for DM would add extra strain on her which would affect her health. She said she has to “do what she has to do.” l.

During a September 17, 2010 visit RM was able to feed DM solid foods with no difficulty, but she had great difficulty feeding the child her bottle, and the child would become distressed when being held by RM. Ultimately RM asked the Society worker to feed DM her bottle because RM said she was not able to settle her and feed her. DM took the bottle with ease from the Society worker, and was not distressed.

m. RM named her daughter DC as a person who could support her in raising the infant child. DC is in her 30’s, with children of her own, and resides in Port Colborne. However, when contacted by the Society, DC said she was aware RM had been asked by her brother GM to care for DM, but DC clearly stated she was not supportive of RM commencing the parenting of this infant. DC expressed concern that while RM was a good grandmother, caring for an infant full-time would add a great deal of stress to RM’s life and negatively affect her health. n.

DC expressed concern that GM was a “huge influence” on RM, and that this would affect the proposed placement of DM in a negative way. DC said RM was under the influence of GM and unable to act independently of him. DC felt RM was asking to parent DM simply because GM had asked her to present such a plan. DC said she did not think RM was strong enough to stand up to GM and oppose his wishes and directions regarding DM. o. Ultimately, DC said if DM was ordered into RM’s care, DC would give her mother her support, but she clearly stated that the type of support she could give RM was not enough.

DC was not supportive of RM’s plan, and did not believe it was in the best interests of either RM or DM. p. On September 23, 2010 the child arrived for a supervised visit in a happy mood. However, the child cried hysterically during RM’s 90 minute visit. RM was unable to calm DM or feed her. The Society worker was able to feed the child with ease, and DM would immediately stop crying when the worker entered the room and engaged her. q. RM’s home in St. Catharines is a one bedroom apartment in which the bedroom was full of storage items and not being used for bedroom purposes.

RM said she sleeps in the living room. She said she planned to clean out the bedroom for DM. She had not taken any concrete steps to do so. r. RM is presently a criminal bail court surety for GM and he is required to reside with her. The Society worker who attended at RM’s apartment saw no sign of any separate sleeping accommodations for GM. RM did not mention cancelling her surety obligation in relation to GM to allow DM to be placed in her home. s. RM had no concrete plans as to how she would raise the infant child in the future. t.

The Society worker concluded that RM was not advancing an independent plan, but she was merely presenting a plan at GM’s request. u. The worker expressed concern that RM was unable to present a substantive plan to care for DM in a way that will protect the child from the risks relating to the parents volatility (individually and jointly). v. The worker said the Society would not support placement of DM with RM. While RM was described as well intentioned, her primary motivation appears to be a strong loyalty to GM and his wishes, which in turn would place DM at risk. w.

RM is elderly with health issues and no back up plans if something happens to her. She has established a pattern of not being able to calm and sooth DM during short visits, and requires much support from Society staff in managing the child during visits. x. RM declined the opportunity to have additional visits, because she felt it was appropriate to defer to the parents. 37 . RM, AV, and GM did not file any materials responding to Ms. Vilardebo’s affidavit. RULE 16 38 . Rule 16 of the Family Law Rules allows a party to bring a motion for

summary judgment after the respondent has served an Answer or after the time for serving an Answer has expired. Rule 16 reads as follows: 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 for

summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. 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 include a divorce claim. …..

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 genuine issue 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 not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. 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 conclusions unfavourable to the party. NO 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. ... ONLY ISSUE QUESTION OF LAW

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly. 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 case the 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). COSTS OF UNSUCCESSFUL MOTION

(10) If the party who made the motion has no success on the motion, the court shall decide the amount of the other party’s costs of the motion on a full recovery basis and order the party who made the motion to pay them immediately, unless the motion was justified, although unsuccessful. COSTS — BAD FAITH

(11) If a party has acted in bad faith, the court shall decide the costs of the motion on a full recovery basis and shall order the party to pay them immediately. MOTION FOR

SUMMARY DECISION ON LEGAL ISSUE

(12) The court may, on motion, (

a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs; (

b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or (

c) dismiss or suspend a case because,

(

i) the court has no jurisdiction over it, (ii) a party has no legal capacity to carry on the case, (iii) there is another case going on between the same parties about the same matter, or (iv) the case is a waste of time, a nuisance or an abuse of the court process. EVIDENCE ON MOTION FOR

SUMMARY DECISION OF LEGAL ISSUE

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission. 39. Rule 16(2) specifically allows for

summary judgment in child protection proceedings. The rule does not preclude such a motion incases in which the Society requests Crown wardship. 40. Pursuant to Rule 16(4) the Society is obligated to serve an affidavit, or provide other evidence, that sets out specific facts toconvince the court that there is no genuine issue that requires a trial. 41. Rule 16(4.1) provides that a responding party must also set out by way of affidavit or other evidence that there is a genuine issue fortrial. Mere allegations or denials of the evidence of the society will not be sufficient. 42.

Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule is mandatory. Ifthe court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly. 43. The court must proceed cautiously in a motion for

summary judgment and ensure absolute fairness to the parties (Children’s AidSociety of Toronto v. M.(P.) (2002), (ON CJ), 2002 CarswellOnt 1883, (S.C.J.)). 44. Considerations of due process, statutory requirements and the best interest, protection and well-being of the children will determineultimately the appropriateness of

summary judgment (Children's Aid Society of the Regional Municipality of Waterloo v. T.S. (ON CJ), [1999] O.J. No. 5561 (O.C.J.)). 45. In considering a motion for

summary judgment, the first step is to review the entire evidentiary record, to determine whether -- inthat evidence -- there are specific facts to support a triable issue in any of the determinations required to be made by the court.(Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.), (ON CJ), [2000] O.J. No. 4880 (Ont. C.J.)(page 8)). 46. The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial: Children'sAid Society of Waterloo Region v. Taryn S. and Eric P., , 100 A.C.W.S. (3d) 820, 14 O.F.L.R. 90, [1999] O.J.

No.5561, 1999 CarswellOnt 4859 (Ont. C.J.). 47. The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence; this is reserved for the trierof fact: Children's Aid Society of Nipissing v. Marielle M., , 98 A.C.W.S. (3d) 134, [2000] O.J. No. 2541, 2000CarswellOnt 2372 (Ont. S.C.). 48. In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaborationwhich might be available for trial.

The court must rely on — and evaluate — the sufficiency of the evidence as disclosed by theaffidavits: Children's Aid Society of Toronto v. Cynthia H. and Hassan S., 2004 ONCJ 224, 134 A.C.W.S. (3d) 261, [2004] O.J. No.4084, 2004 CarswellOnt 4076 (Ont. C.J.). 49. The court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on theapplicant 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 (S.C.J.)).

50. The responding party, faced with a prima facie case for

summary judgment, must provide evidence of specific facts showing thatthere is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific fact showingthat there is a genuine issue for trial must be insufficient to defeat a claim for

summary judgment. (Children's Aid Society ofMetropolitan Toronto v. A. (M.), (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.) (page 6)). 51. The respondent is obliged to provide a full evidentiary record and put his or her best foot forward in the material. The genuineness ofthe issue for trial must arise from something more than a heartfelt expression of desire to be given an opportunity to parent. (Children'sAid Society of Toronto v. H. (R.), (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.)). 52. Notably, the joint affidavit of AV and GM specifically acknowledged awareness of the need to “put their best foot forward”, and toset out more than a “heartfelt request to be parents.” 53. The test for granting

summary judgment is met when the moving party satisfies the court that there is no genuine issue of materialfact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. Thefact must be material. (Children’s Aid Society of Toronto v. K.T. [2000) O.J. No. 4736 (Ont. C.J.)). 54. "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed."(Children's Aid Society of Oxford (County) v. J. (J.), (ON SC), [2003] O.J. No. 2208 (Ont.

S.C.J.)); when the“outcome is a foregone conclusion” Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (ON SC),139 D.L.R. (4th) 534. To put it another way, no genuine issue for trial exists where there is no realistic possibility of an outcome otherthan that as sought by the applicant. (Children's Aid Society of Simcoe v. C. S. [2001] O.J. No. 4915 (Ont. S.C.J.) (page 2)). 55. In their reply materials, AV, GM and RM suggested

summary judgment would be inappropriate because of the “weight andcomplexity of the case.” But child protection cases are inevitably complex. They involve a great deal of information, gathered overlengthy periods, involving numerous participants, and sometimes multiple agencies and previous judicial determinations. Countlessincidents, meetings, observations and interactions may be described in hundreds of pages of court documents. In that context, it isinevitable that there will be factual disputes; things people disagree on, or remember differently. 56.

The mere volume of information or complexity of the case does not in itself create “a genuine issue for trial.” Not everydisagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to proveconstitutes disagreement about a material fact (Children's Aid Society of the Regional Municipality of Waterloo v. T.L.H. 2005 ONCJ 194, [2005] O.J. No 2371 (O.C.J.)). 57. A genuine issue must relate to a material fact or facts (B. (F.) v. G.(S.) (2001), (ON SC), 199 D.L.R. (4th) 554,[2001] O.J.

No. 1586, (S.C.J.)).There must be some connection between the determination of that disputed fact and the outcome of thetrial. If determination of the issue will have no bearing on the outcome of the trial, it is not a "genuine issue for trial". 58. In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protectionprocedure under the CFSA. The court must give paramount consideration to the best interests test which would include, among otherfactors, as certain a future as possible. (Children's Aid Society of Algoma v. P. (L.), [2002] O.J. No. 2895 (Ont.

S.C.J.) (page 4)). 59. It is no longer necessary that every case be "the clearest of cases". Caution is called for but if the evidence does not raise a triableissue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with atrial and the resulting prolongation of the state of uncertainty about the child's future. (Jewish Family & Child Service v. A. (R.), [2001]O.J . No. 47 (Ont. S.C.J.)). 60.

Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-framethat is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent.(Children's Aid Society of Toronto v. H. (R.), (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.), paragraph 15). In childprotection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for childrenis done in a timely fashion (Children’s Aid Society of Ottawa v. C.(M.), supra).

61 . In all cases, regard must be had as to the primary objective of the Family Law Rules , stated in Rule 2 in the following manner: Primary Objective

(2) The primary objective of these rules is to enable the court to deal with cases justly. Dealing with Cases Justly

(3) Dealing with a case justly includes, (

a) ensuring that the procedure is fair to all parties; (

b) saving expense and time; (

c) dealing with the case in ways that are appropriate to its importance and complexity; and (

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. Duty to Promote Primary Objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. Duty to Manage Cases

(5) The court shall promote the primary objective by active management of cases, which includes, (

a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (

b) encouraging and facilitating use of alternatives to the court process; (

c) helping the parties to settle all or part of the case; (

d) setting timetables or otherwise controlling the progress of the case; (

e) considering whether the likely benefits of taking a step justify the cost; (

f) dealing with as many aspects of the case as possible on the same occasion; and (

g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. SOCIETY’S PROTECTION APPLICATION 62 . Where a child has been apprehended by a Society, the Society is required to commence an application under section 40(1) of the Act. 63 . There are two stages to a protection application. The court must first determine whether the child is in need of protection pursuant to section 37(2). 64 . The Society asks that DM be found in need of protection pursuant to sections 37(2)(

b) and (

g) of the CFSA. The relevant provisions state: 37( 2) Child in need of protection

A child is in need of protection where, (

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 or resulting 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. ….. (

f) the child has suffered emotional harm, demonstrated by serious, (

i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (

v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child; …… (

g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (

v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child; 65 . Section 57(1) of the Child and Family Services Act prescribes that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under

section 57.1, in the child's best interests: 1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. 2. That the child be made a ward of the society and be placed in its care an custody for a specified period not exceeding twelve months. 3. That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71(1), and be placed in the care of the society. 4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. 66 . In determining which disposition is in the child's best interests, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be made a Society ward under

section 70 of the Act : 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 child being 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. ...

70(4) Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so. 67 . The factors to be considered in determining the best interests of a child are contained in section 37(3) of the Act : 37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1.

The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child's physical, mental and emotional level of development. 3. The child's cultural background. 4. The religious faith, if any, in which the child is being raised. 5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. 6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community. 7.

The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. 8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child's views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11.

The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13. Any other relevant circumstance. 68 . Section 50 (1) of the Child and Family Services Act specifically allows for the Court to consider past conduct toward any child and any oral or written statement or report that the Court considers relevant as well as the reasons for a decision in an earlier civil proceeding. 69 .

I have considered all of these criteria in reviewing the evidence on this

summary judgment motion. In applying the best interests criteria set out in section 37(3), I have attempted to maintain a child-centred focus, reflecting the paramount purpose of the CFSA as set out in

section 1: 1(1) Paramount purpose The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) Other purposes

The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are: a. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent. b. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. c.

To recognize that children's services should be provided in a manner that, i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate. d.

To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences. e. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. APPLICATION OF RULE 16 70 .

Having reviewed the evidence, the legislation, the Plans of Care, and the case law, I am satisfied that the Society has put forward a prima facie case for

summary judgment both in relation to findings and disposition. The Society has met the onus of establishing that there is no genuine issue for trial. None of the Respondents have set out any allegation, fact, or collection of facts or information which – even if accepted by a trial judge – would change the result in their favour. 71 . Despite their current lack of legal representation, AV and GM were very clear in acknowledging an obligation to “put their best foot forward”.

They acknowledged that it was incumbent on them to set out facts or proposed evidence which would amount to more than “a heartfelt request to be parents.” 72 . In reality, however, AV and GM have provided little information about what they would say at trial – other than that this is a complex case and they want a trial. 73 . AV and GM have failed to provide any meaningful response to the overwhelming concerns set out in the Society’s materials.

Neither appears to acknowledge or comprehend the serious expressions of concern about their parenting skills, their individual circumstances, or the volatile and unstable nature of the relationship between them – as set out in Justice Taliano’s December 23, 2008 judgment; and as confirmed in the Society’s detailed affidavits. 74 . AV and GM do not present realistic plans to care for DM individually, jointly, or in combination with any other person. 75 . RM filed materials in relation to the Society’s first set of

summary judgment materials, issued prior to RM being added as a party. Notably, neither she nor the parents filed any reply materials in relation to Ms. Vilardebo’s affidavit sworn September 29, 2010. 76 . I agree with the Society’s decision to reject RM either as a participant in the plan advanced by the parents or in relation to her own plan. She does not appear to have an understanding of the parents’ relationship. She does not have awareness of the Society’s concerns regarding the parents. She had initially agreed that she would not be able to care for the child on her own.

77 . I do not doubt RM’s motivation. She appears to be a very nice lady, loyal to her own son GM, and interested in helping her granddaughter DM in any way she can.

But she has not disputed the Society’s materials which clearly set out that she has had limited involvement with this child; she only presented a kinship plan late in the process and primarily to assist GM and AV; she appears to be greatly influenced by GM, and has difficulty resisting his requests; her direct parenting skills in relation to DM appear to be problematic; she has not presented a comprehensive, viable, long-term plan (particularly given her age and health issues); and she lacks the insight and ability to protect DM from GM and AV.

If the court takes the required “hard look” at RM’s evidence, it amounts to little more than a well-meaning grandmother saying she’d like to help if she can. 78 . Both individually and cumulatively, the materials filed by the Respondents do not dispute overwhelming concerns which justify a finding that DM is in need of protection. The proposed dispositions set out by the Respondents amount to little more than general expressions of love, and naively optimistic statements that unspecified arrangements will be successful.

AV, GM and RM have all expressed a blanket commitment that they’re prepared to do whatever may be required of them. But none of them have actually set out in their materials that they understand what is required of them; any comprehension of the nature of the commitment they would have to make; or that they have the capacity to meet DM’s needs. 79 . None of the Respondents have set out, with even a rudimentary level of detail, any set of facts or allegations which – if accepted by a trial judge – could affect the outcome of this case.

None of the Respondents have satisfied the court that there is a genuine issue to be determined at trial. 80 . DM is a very young, vulnerable child. She has been in care her entire life. None of the Respondents have provided any evidence to suggest that they are able to meet the child’s physical, mental and emotional needs. Placing the child in the care of any of the Respondents would create a high level of risk to her well-being. And timelines are critical. We are rapidly approaching the deadlines set out in section 70(1)(

a) with respect to the amount of time she can remain a society ward. Even with a six month extension under section 70(4) of the Act, it wouldn’t be enough for these Respondents to overcome their problems and limitations. It is simply not safe to return DM to the care of either parent, and RM’s plan is superficial, and fraught with overwhelming deficiencies which have not been denied. 81 . I am satisfied that DM is in need of protection, and that it is in the best interests of the child that she be made a ward of the Crown. No less intrusive disposition would be realistic or viable. ACCESS 82 .

Once there is an order for Crown wardship, the focus of the CFSA is to establish a permanent and stable placement for the child. The Society has an obligation pursuant to

section 63.1 of the CFSA to make all reasonable efforts to assist a child who is made a Crown ward to develop a positive, secure and enduring relationship within a family through one of the following: 1) An adoption 2) A custody order under

section 65.2(1) 3) In the case of a child who is an Indian or native person, a plan for customary care as defined in

Part X. 83 . Pursuant to

section 141.1 of the CFSA : 141.1 A society shall not place a child for adoption until, (

a) any outstanding order of access to the child made under subsection 58(1) of

Part III has been terminated; and (

b) if the child is a Crown ward,

(

i) the time for commencing an appeal of the order for Crown wardship under subsection 57(1) or 65.2(1) has expired, or (ii) any appeal of the order for Crown wardship has been finally disposed of or abandoned. 84. As part of its

summary judgment motion for Crown wardship, the Society seeks an order that the parents and RM have no access, sothat DM can be adopted. 85. Access is dealt with in sections 58 and 59 of the CFSA.

Section 58 permits one to seek an access order in respect of a child who is inthe "care and custody or supervision" of a society, which is the situation here. But section 59(2.1) creates a presumption against accesswhere the child is a Crown ward:

(2.1) A court shall not make or vary an access order with respect to a Crown ward under

section 58 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, 86. The onus is on the person requesting access to provide evidence with respect to both of these requirements. Children's Aid Society ofMetropolitan Toronto v. A. (M.), supra, page 6; D. (C.) v. Children's Aid Society of Algoma, [2001] O.J. No. 4739 (Ont. S.C.J.) (pages16, 17). The rebuttable presumption under s. 59(2.1) is conjunctive. A person must rebut both elements of s. 59(2.1) or the access cannotbe ordered. 87.

Once there is an order for Crown wardship, the focus of the CFSA is to establish a permanent and stable placement for the child.There is a presumption against access to Crown wards (Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274 , [2005]O.J. No. 2154 (Ont. C.J.). Ordinarily the onus created by section 59(2.1) is so high that it is difficult for a parent facing a

summaryjudgment motion to establish that after a Crown wardship determination, there is still a genuine issue for trial as to access. 88. The first step is to consider whether or not the access to the Respondents would be “beneficial and meaningful”. It must be shown tobe beneficial and meaningful from the child’s perspective -- not that it would be beneficial to a parent or family member. In the case atbar, there was no evidence provided by the Respondents regarding this. 89.

The second step places a burden on the person seeking access to show that an access order would not impair a child’s future abilityto be adopted. There is no onus on a children’s aid society to prove that a child for whom Crown wardship is sought is adoptable. (Children’s Aid Society of Ottawa v. C.W. (ON SC), [2008] O.J. 1151; (Children's Aid Society of Niagara Region v.C. (J.), (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.)). As it happens, in this case I received uncontradictedevidence from the Society that DM is healthy and adoptable.

No evidence was provided by the Respondents to suggest that any orderfor access would not impair the opportunity for this 11 month old child to be adopted. 90. Based on the evidence before me, I find that the Respondents have not satisfied the elements of the section 59 (2.1) test. There shallbe no access to the Respondents. THE ORDER 91. The Society’s motion for

summary judgment is granted on all issues. 92. DM, born January […], 2010, is found to be Roman Catholic, non-native and non-Indian. 93. DM is found to be in need of protection pursuant to section 37(2)(b( and (

b) of the Child and Family Services Act.

94 . DM is made a Crown ward without access. Pazaratz J. Date: December 8, 2010 CITATION : CAS (Niagara) v. A.V., G.M. and R.M. 2010 ONSC 6715 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CAS of the Niagara Region Applicant – and – A.V., G.M. and R.M. Respondents REASONS FOR JUDGMENT The Honourable Mr. Justice A. Pazaratz Released: December 8, 2010