) ) T.S. Appellant – v. –, 2013 ONSC 2738

CITATION : TS v CAS/SL/PJA, 2013 ONSC 2738 COURT FILE NO.: 2634/12 DATE: 2013-05-14 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) T.S. Appellant – and – CHILDREN’S AID SOCIETY OF ALGOMA, S.L. (AKA S.K.) AND P.J.A.Respondents ) ) ) ) ) ) ) ) ) ) ) ) T. Frederick Baxter for the Appellant Bonnie L. Ostroski for the Children’s Aid Society of Algoma ) ) ) HEARD: February 7 and 25, 2013 REASONS ON APPEAL JUSTICE E. GAREAU [ 1 ] This is an appeal of a decision of the Honourable Justice R. Villeneuve of the Ontario Court of Justice. The decision was released on October 22, 2012. [ 2 ] The Society brought a motion for

summary judgment pursuant to Rule 16 of the Family Law Rules . Justice Villeneuve heard this motion on July 9, 2012 and released his written decision on October 22, 2012. [ 3 ] The decision of Justice Villeneuve finds that the child, N.R.S. born […], 2007 is to be a crown ward without access, making N.R.S. eligible for adoption by adoptive parents. [ 4 ] Previously, on July 30, 2009, Mr. Justice M. McLeod made a finding that the child was in need of protection. This finding was made on the consent of the parties.

Therefore, this appeal concerns only the disposition made by Villeneuve, J. in making the child a crown ward without access. [ 5 ] The appellant, T.S., is the biological mother of the child. The respondent, S.L., is the biological father of the child. The respondent, P.J.A., is a friend of the mother and is a person with whom the child was placed for a period of time by court order. Neither the respondent, S.L., nor the respondent, P.J.A., have filed any material on the appeal. BACKGROUND: [ 6 ] The child has not resided with the mother since January 30, 2007.

The child has never resided with the father and the father has not exercised access to the child since May, 2011. [ 7 ] There was a parental capacity assessment of the mother, T.S., conducted by Dr. Andrew Hepburn, who produced a report dated March 1, 2007. This report concluded that the mother had intellectual limitations to such an extent that she was completely

incapable of parenting a child. Dr. Hepburn recommended that the Society proceed with permanency planning in the form of crown wardship and adoption. [ 8 ] There was also a parental capacity assessment of the father and his mother, J.W., conducted by Mr. Andrew Hepburn, who produced a report dated June 1, 2008. As noted in paragraph 11 of the decision of Villeneuve, J. dated October 22, 2012: “That report concluded that the father and his mother lacked the ability or capacity to effectively parent this child, either separately or acting together. Furthermore, S.L. at that time continued to struggle with alcohol and drug addiction issues which as of the date of

summary judgment motion, remained unaddressed.” [ 9 ] It was clear from the reports that N.R.S. could not be placed in the care of either his biological mother or biological father. [ 10 ] After the finding that N.R.S. was in need of protection was made on July 9, 2009, by McLeod, J., the matter proceeded to a disposition hearing which was dealt with by order granted on March 17, 2010 by Guay, J. At that point in time, N.R.S. had been in the care of the Society since January 30, 2007.

Justice Guay dismissed the Society’s request for an order of crown wardship with no access for the purpose of adoption and placed N.R.S. with P.J.A. under a supervision order for a period of 12 months with access to the parents supervised in the discretion of the Society. [ 11 ] The order granted by Guay, J. on March 17, 2010 was appealed by the Society to the Superior Court of Justice. A stay of Justice Guay’s order was granted pending the hearing of the appeal. [ 12 ] The appeal was heard on February 25, 2011 by Ellies, J.

Justice Ellies dismissed the appeal by the Society and affirmed the placement of N.R.S. with P.J.A. but with the judge’s supervision order varied to provide that “P.J.A. will enroll N.R.S. in school as directed by the Society.” [ 13 ] As a result of the decision of Ellies, J., N.R.S. was placed in the care of P.J.A. on February 25, 2013. [ 14 ] The Society monitored the placement of N.R.S. with P.J.A. by a series of scheduled and unscheduled visits. [ 15 ] The Society, on more than one occasion, requested that N.R.S. be enrolled in school for September, 2011. [ 16 ] P.J.A. refused to comply with the Society’s direction to enroll N.R.S. in school preferring to home school N.R.S..

P.J.A. made her position with respect to home schooling N.R.S. clearly known to the Society. [ 17 ] The Society commenced a status review application on September 8, 2011 seeking a crown wardship order with no access. N.R.S. went back into the Society’s care by way of an interim order granted on September 12, 2011 by Keast, J. [ 18 ] On December 12, 2011 an order was made by Villeneuve, J. that N.R.S. remain in the temporary care and custody of the Children’s Aid Society of Algoma with access to the biological parents supervised in the discretion of the Children’s Aid Society of Algoma.

In paragraph 1 of that order, there is a provision adding P.J.A. as a party to the proceedings. [ 19 ] The motion for

summary judgment brought by the Society was argued on July 9, 2012 before Villleneuve, J. who rendered his written decision on October 22, 2012. It is that order that is the subject of the appeal before this court. PRELIMINARY MATTERS [ 20 ] Prior to hearing argument of the appeal on its merits, the court had to dispose of a motion dated February 1, 2013 brought by the appellant for the following order: (

a) granting leave to the appellant, T.S., to file a supplementary appeal record on this appeal containing the following evidence: 1.

Clearer copy of the affidavit of J.A. sworn September 8, 2011; 2. affidavit of T.S. sworn on November 9, 2012; 3. affidavit of Kerri Hill sworn on November 30, 2012; 4. portions of transcript evidence of Sarah Bolduc and P.J.A. re: the schooling issue and other matters or full transcripts of such evidence as may seem just; 5. affidavit of P.J.A. sworn on February 4, 2013. [ 21 ] This material was filed in a supplementary appeal record dated February 4, 2013 and filed with the court on February 5, 2013.

The five tabs in the supplementary record conform with the five documents listed above. [ 22 ] There was no objection to the filing of the affidavit in Tab 1 as it was just a clearer copy of an affidavit previously produced and which was before Villeneuve, J. at the time the motion for

summary judgment was argued on July 9, 2012. [ 23 ] Similarly, the affidavit of P.J.A. sworn on February 4, 2013 at Tab 5 of the supplementary appeal record was admitted for consideration on the appeal with the proviso that the Society’s affidavit in response, being an affidavit of Melinda McNeal sworn on February 6, 2013 be admitted as well.

[24] In contention were the affidavits and portions of the transcripts at Tabs 2, 3 and 4 on the supplementary appeal record. Theadmission of these documents was essentially the admission of fresh evidence to be considered on the appeal. [25] The court has the general power in the “proper case” to receive fresh or further evidence on an appeal. Section 134(4) (

b) ofthe Courts of Justice Act provides as follows: “Unless otherwise provided, a court to which an appeal is taken may, in a proper case, (

b) receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as thecourt directs.” [26] A four-part test for the admission of fresh evidence on appeal, in applying Section 134(4)(

b) has been set out by the OntarioCourt of Appeal in Visagie v. TVX Gold Inc. (ON CA), 49 O.R. (3d) 198 as follows: 1. by due diligence it could not have been adduced at trial; 2. it is relevant to a decisive or potentially decisive issue; 3. it is reasonably capable of belief; and, 4. if believed, it could reasonably, when taken with the other relevant evidence adduced at trial, be expected to have affected theresult. [27] Appellate courts have applied the above test less stringently in child protection matters where the best interest of a child is ofparamount concern.

As noted by the Ontario Court of Appeal in Children’s Aid Society of Peel v. W. (M.J.) (1995), (ON CA), 23 O.R. (3d) 174, in child protection matters more flexible standard for admitting new evidence should be applied than inother civil proceedings. This theme of a less stringent test in child protection proceedings has been reiterated by the Supreme Court ofCanada in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. (SCC), [1994] S.C.J. No. 37 – a lessrestrictive and a broad and generous approach to the admission of further evidence in appeals in cases involving the welfare of children.

The basis for this approach is that the court should have the benefit of up-to-date information when making a determination involvingthe best interest and welfare of children. [28] Section 69(6) of the Child and Family Services Act R.S.O. 1990 c. 11 states that on an appeal to the Superior Court of Justice,“…the court may receive further evidence relating to events after the appealed decision.” I have read and applied section 69(6) with theaforementioned cases in mind. [29] The affidavit at Tab 2 of the supplementary appeal record is an affidavit of T.S., the biological mother, sworn on November 9,2012.

Much of the content of this affidavit deals with events that pre-dated the hearing of the

summary judgment motion on July 9,2012. This is not evidence relating to events after the appealed decision and the evidence is not helpful in the disposition of the appeal. [30] The affidavit at Tab 3 is not an affidavit of the parties but rather is an affidavit of the legal assistant to the solicitor for theappellant, one Kerri Hill, which attaches a letter which purports to be signed by G.H., who is a friend of the appellant and who wishes tobe considered as a possible kinship placement for the child N.R.S.. This is a letter and not a signed affidavit by G.H.

There are nodetails provided as to why G.H. would be considered a suitable kinship placement for the child. Furthermore, if there is any legitimacyto this, G.H. could have been put forward at the time the

summary judgment motion was argued before Villeneuve, J., but that was notdone. [31] The affidavit at Tab 4 of the supplementary appeal record is a copy of the transcript of a portion of the evidence on cross-examination of Sarah Bolduc, a worker for the Society, and a portion of the evidence of P.J.A. given in-chief. Both the evidence ofSarah Bolduc and the evidence of P.J.A. was given at the trial of the matter in the Ontario Court of Justice before Guay, J. whichresulted in his order of March 17, 2010. This is not new evidence that has arisen since the

summary judgment motion heard byVilleneuve, J. in July, 2012. This evidence was readily available and ought to have been referred to on the

summary judgment motion ifthe appellant wished to rely upon the evidence. Furthermore, only five pages of the transcript of the evidence has been produced at Tab4 of the supplementary appeal record. In particular, pages 36, 37, and 38 of the cross-examination of Sarah Bolduc has been producedand pages 123 and 124 of the evidence in-chief of P.J.A. has been produced. Use of short portions of a transcript of evidence should beapproached cautiously as it can provide a distorted view of the totality of the evidence of a witness.

The preferable approach is to havethe complete transcript of the evidence of a witness available so the entirety of the evidence can be considered, both the evidence in-chief and in cross-examination. I am not prepared to admit as fresh evidence small portions of the evidence given by a witness during atrial and evidence that existed at the time that the

summary judgment motion was argued that could have been before Villeneuve, J. priorto him making his decision. [32] In my view, a distinction should be drawn between the evidence that was available to be used at the time that the

summaryjudgment motion was argued and evidence that has transpired since the

summary judgment motion was argued that is relevant todetermining the best interest and welfare of a child. The evidence at Tabs 2, 3, and 4 of the supplementary appeal record fall into theformer category and for the reasons given, I am not allowing, as fresh evidence on the appeal, the material at Tabs 2, 3 and 4 of thesupplementary appeal record filed on February 5, 2013 by the appellant. THE MERITS OF THE APPEAL [33] The appellant, T.S., asks the court to set aside the order granted on October 22, 2012 by Villeneuve, J. and send the matter

back to the Ontario Court of Justice for a trial with respect to disposition before a judge of that court other than Villeneuve, J. [34] The standard of review on an appeal of this nature has been recently set out in the case of Children’s Aid Society of Toronto v.M.S. [2012] O.J. No. 6132. It is worthwhile to repeat the observations of Penny, J. in paragraphs 4 to 9 inclusive of that decision. “4. It is well settled that on pure questions of law, the standard of review on appeal is correctness.

On findings of fact, the reviewingcourt ought not to interfere unless it has been established that there has been a palpable and overriding error. An error is “palpable” if it: 1) is made in the complete absence of evidence; 2) conflicts with accepted evidence; 3) is based on a misapprehension of the evidence;or, 4) fails to consider relevant evidence. An error is “overriding” if it is sufficiently important to vitiate the challenged finding of factsuch that the fact cannot safely stand in the face of the error. 5. Appellate review of a matter involving whether the test for

summary judgment has been satisfied involves the application of legalprinciples to the facts. It involves, therefore, a mixed question of fact and law. 6. On appeal of an order granting

summary judgment, the standard of review is less deferential than palpable and overriding error butmore deferential than correctness. The standard of deference is whether the motion judge “disregarded, misapprehended or failed toappreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from theevidence,” Equity Waste Management of Canada v. Halton Hills (Town), (ON CA), [1997] O.J. No. 3921 (C.A.), para46; see also Catholic Children’s Aid Society of Toronto v. Y.K., [2007] O.J. No. 3080, aff’d 2008 ONCA 27. The Test on a Motion for

Summary Judgment 7. On motion for

summary judgment, the court’s role is narrowly limited to assessing the threshold issue of whether a genuine issueexists requiring a trial. The burden is on the moving party to show that there is no genuine issue requiring a trial. 8. Not every disputed fact or question of credibility, however, gives rise to a genuine issue for trial. A genuine issue for trial must relateto a material fact. It must be an issue that is substantial and sufficiently important to warrant a viva voce hearing prior to judicialdetermination. 9. The central issue in a

summary judgment motion is whether the case has a realistic chance of success at trial. The fundamentalquestion that a judge must ask on a

summary judgment motion, whether under Rule 20 of the Rules of Civil Procedure or Rule 16 of theFamily Law Rules, is: “can the full appreciation of the evidence and the issues that is required to make dispositive findings be achievedby way of

summary judgment, or can this full appreciation only be achieved by way of a trial?” [35] The Society brought its motion before Villeneuve, J. for

summary judgment under Rule 16 of the Family Law Rules. Rule16(1) reads as follows: “After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for

summaryjudgment for a final order without a trial on all or part of any claim made or any defence presented in the case.” [36] Rule 16(6) sets out the test for the granting of an order for

summary judgment, which is whether there is a genuine issue fortrial. Rule 16(6) reads as follows: “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.” [37] The test of whether there is a genuine issue for trial is a high test to meet. It must, as it has been noted in the case law, be“plain and obvious” as to the result. In other words, the result must be a foregone conclusion. [38] As noted in the case of B.(F.) v. G.(S.) 2001 R.F.L. (5) 237, the court’s jurisdiction to grant

summary judgment in childprotection cases is only to be exercised in the clearest of cases and with extreme caution. [39] Within this appeal there was a motion brought for access to N.R.S. pending the appeal being heard. This motion was heardby Koke, J. who released his decision on December 17, 2012. In paragraph 32 of that decision, Justice Koke makes the followingobservation: “Firstly, I am not satisfied that the applicant has established that there is a serious issue to be tried on appeal.

A review of the decision ofJustice Villeneuve reveals that there was ample evidence on which he could order that N.R.S. be made a ward of the court, withoutaccess to any person, for the purpose of adoption and for his concurrent finding that he was in a position to make this order on the basisthat there was no issue before him requiring a trial.”

[ 40 ] The appellant argues that Villeneuve, J. on the

summary judgment motion ignored or placed insufficient weight on the findings made by both Guay, J. or Ellies, J. on appeal concerning the parenting abilities of P.J.A.. As noted in paragraph 94 of the judgment of Ellies, J. released on February 25, 2011: “What is clear is that the trial judge found P.J.A., to be an adequate mother and an appropriate caregiver for N.R.S., a finding which was amply supported on the evidence.” [ 41 ] This observation by Ellies, J. reiterating the findings of Guay, J. were made at a time where P.J.A. had not in fact actually cared for or had N.R.S. living in her home.

N.R.S. started to reside with J.A. on February 25, 2013 and remained in her home until September 8, 2013. [ 42 ] The genesis of the Society’s resumption of the care of N.R.S. had to do with events that transpired after the orders of Guay, J. and Ellies, J. and primarily focused on the inability of J.A. to co-operate with the Children’s Aid society of Algoma while N.R.S. was in her care and the refusal of J.A. to enroll N.R.S. in school and to have him attend school in September, 2012. [ 43 ] With respect to the refusal of P.J.A. to enroll N.R.S. into school, Justice Villeneuve notes in paragraph 52 of his decision: “She believed in home schooling and would not change her beliefs despite any court order ordering her to do so.

In other words, if this court at the conclusion of trial were to place N.R.S. with P.J.A., it could virtually be guaranteed that any order that he attend school would not be followed.” [ 44 ] This is not an erroneous conclusion reached by Justice Villeneuve. It is a conclusion well supported by the evidence before him.

The simple fact is that P.J.A. placed her own beliefs and opinions about home schooling above what a court had determined was in the best interest of N.R.S. and in my view, Justice Villeneuve did not place too much weight on this factor in arriving at the decision he did. [ 45 ] The events following the orders of Guay, J. and Ellies, J. were properly considered by Justice Villeneuve and outweighed any findings of fact made by either Guay, J. or Ellies, J. about the parenting abilities of P.J.A..

The best evidence of P.J.A.’s parenting abilities are facts based on when she actually had N.R.S. in h er care and in my view, Villeneuve, J. did not misinterpret those facts or place undue weight on those facts in arriving at his decision. [ 46 ] The appellant has argued on the appeal that Villeneuve, J. did not consider the evidence provided by P.J.A. with respect to the Society’s allegation of her lack of co-operation with the Society.

The suggestion is that Justice Villeneuve did not consider the responses provided to the concerns expressed by the Society and if he had, these responses would have raised a triable issue that necessitated a full hearing on the issue of disposition. In his Reasons, Justice Villeneuve specifically deals with the affidavit material filed by P.J.A. with respect to her lack of co-operation with the Society.

At paragraphs 47 and 48 of Justice Villeneuve’s Reasons he considers P.J.A.’s response as follows: “P.J.A.’s affidavit filed at Tab 3 and on the date of hearing again referenced her willingness to co-operate with the Society to a certain extent and explained the lack of access up to the date of the motion for

summary judgment. That evidence continued nevertheless to advocate in part for P.J.A.’s abilities to decide what is best for the child N.R.S.. Her position on home schooling the child despite the order of Ellies, J. was somewhat tempered in her affidavit evidence.” [ 47 ] In my view, in arriving at his decision, Justice Villeneuve considered and applied his mind to the response filed by P.J.A. by affidavit material and adequately considered her response in concluding that there was no triable issue. [ 48 ] Another point made by the appellant in her submissions to the court is that Villeneuve, J. placed too much weight on comments made by P.J.A. in court at the motion for

summary judgment, such comments being made in open court and not in evidence before the court. Mr. Justice Villeneuve makes mention of the submissions made by P.J.A. in court at the time the

summary judgment motion was argued in paragraphs 49 to 55 of his Reasons as follows: “When it came time for the court to hear from P.J.A. directly at the motion for

summary judgment, P.J.A.’s comments served, in large measure, to undo what had been prepared for her in her affidavit at Tab 3 and the affidavit most recently submitted on the hearing date. During those submissions she attempted to justify her ability to self-diagnose the child N.R.S. with the various ailments previously set out in this decision. She highlighted her success in raising her own children and relied on her extensive knowledge in child rearing. Of particular concern to her was that the child protection workers employed by the Children’s Aid Society knew less about rearing children than her.

She took the position that the requirements of the Society were less stringent than her own and that she would not change her way of

raising children to effectively do less for N.R.S.. She specifically indicated that during trial she advised Justice Guay that if N.R.S. would be placed with her that she would undertake a 6 month observation period before deciding what was in his best interests. None of that is referred to in Justice Guay’s decision. She was adamantly opposed to Justice Ellies’ order of placing N.R.S. in school. She home schooled her own children as she submitted and that she believed in home schooling and would not change her beliefs despite any court order ordering her to do so.

In other words, if this Court at the conclusion of the trial were to place N.R.S. with P.J.A., it could be virtually guaranteed that any order that he attend school would not be followed. P.J.A. felt that she could adequately educate N.R.S. in her own home until at least high school age. She questioned the Society’s evidence with respect to Dr. Aceti. She again went through her own self-diagnosis of issues affecting this child. She reached her own conclusion on allergies and the need for the child to see a doctor.

She offered the diagnosis that his adenoids were swollen and that this could be regulated by addressing his low blood sugar. She maintained that the Society was not properly attending to N.R.S.’s diet while in care. She maintained that Justice Guay in ruling as he did in 2010 gave N.R.S. to her to fix the problems that the Society had created for this child.

She reiterated in her submissions that she wished to raise N.R.S. but that she would do so on her terms and not any terms imposed by this Court or the Children’s Aid Society.” [ 49 ] J.A. was self-represented and entitled to make submissions during the motion for

summary judgment, which she did. Justice Villeneuve is entitled to consider those submissions in arriving at his decision providing he does not give those submissions the same effect as evidence and does not consider the submissions to the exclusion of the affidavit evidence filed on the motion. Justice Villeneuve cannot be expected to disregard the submissions made by a party in open court.

In my view, Justice Villeneuve considered the submissions of P.J.A. along with the affidavit evidence of P.J.A. and did not place undue weight on the submissions of P.J.A. in arriving at his decision. [ 50 ] The appellant submits that Villeneuve, J. did not take into account or apply the test of what was in the best interest of N.R.S. or do a best interest analysis set out in Section 37(3) in the Child and Family Services Act and that the learned motion judge’s failure to consider the best interest test in arriving at his decision amounted to an error in law. [ 51 ]

Section 57 of the Child and Family Services Act is the disposition

section of that Act engaged after the court makes a finding that a child is in need of protection.

Section 57 provides for various options for disposition that can be considered by the court “in the child’s best interest.” [ 52 ] Section 37(3) of the Child and Family Services Act sets out various factors that shall be considered by the court in making a determination in the best interest of a child. Specifically, Section 37(3) of the Child and Family Services Act reads as follows:

(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. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) . [ 53 ] It is interesting to note in section 37(3) , a person directed to make an order or determination in the best interest of a child, shall take into consideration “those of the following circumstances of the case that he or she considers relevant.” Clearly, that suggests that not all of the 12 factors specifically listed have to be considered in every case.

There may be cases where some of the factors listed are not relevant or applicable to the individual case before the court.

Furthermore, the 13 th factor listed in Section 37(3) is “any other relevant circumstance”, clearly allowing the court to consider other factors that are not specifically listed in Section 37(3) in making a determination as to what is in the best interest of a child. [ 54 ] Not all of the factors listed in Section 37(3) need be considered if they are not relevant to the individual case before the court and the court can consider other factors not specifically listed in Section 37(3) in determining what is in the best interest of a child. [ 55 ] While it is true that Justice Villeneuve did not specifically refer to the factors set out in Section 37(3) of the Child and Family Services Act, I am not satisfied that Justice Villeneuve did not consider these factors or “any other relevant circumstance” in reaching his decision and I am not satisfied that Justice Villeneuve failed to do a best interest test analysis in reaching his decision.

The court does not have to specifically refer to each

section of 37(3) point by point and line by line in articulating a decision. It is clear from reading the totality of the decision of Justice Villeneuve that he did apply a best interest test and that although he did not specifically articulate it, that he did consider and apply his mind to the appropriate considerations in Section 37(3) in arriving at his decision that there was no genuine issue for trial with respect to the determination of what was in the best interest of N.R.S. regarding his placement. In his Reasons, Justice Villeneuve refers to the best interest of N.R.S..

At paragraph 62 of his Reasons, Justice Villeneuve states: “Following that placement in March of 2011, the battle, so to speak, with P.J.A. began.

She co-operated minimally with the Society and substituted her own opinions and solutions for what was in the best interest of the child over those of the Society.” At paragraph 73 of his Reasons, Justice Villeneuve states: “I find that the best interests of this child lie in an order for crown wardship without access.” [ 56 ] A reading of Justice Villeneuve’s Reasons clearly indicated that he considered the best interest test and considered the appropriate factors set out in Section 37(3) of the Child and Family Services Act in arriving at his decision. [ 57 ] Furthermore, considering the totality of the Reasons given by Justice Villeneuve, it is also clear that he considered the appropriate test on a motion for

summary judgment under Rule 16, namely, whether there is a genuine issue for trial. [ 58 ] In reviewing the record that was before Mr. Justice Villeneuve at the time the motion for

summary judgment was heard, I do not find that he committed any error in concluding that there was no triable issue with respect to the issue of disposition. Justice Villeneuve’s Reasons were clear and thorough and were well supported on the evidence that he had before him at the time the

summary judgment motion was argued. [ 59 ] It is undisputed from the evidence of Patti Steffanizzi sworn on May 31, 2012, at Tab 8, Volume 1 of the appeal record of the appellant that the Society’s view is that N.R.S.’s “overall wellbeing and long-term stability would be optimally promoted by a permanency plan based on adoption.” Specifically, paragraph 18 of Ms.

Steffanizzi’s affidavit states in part, “Based on this child’s current progress in meeting developmental milestones coupled with his age, the Society anticipates that an adoptive family could be found without difficulty.” [ 60 ] As indicated at paragraph 41 by Pazaratz, J. in Children’s Aid Society of Hamilton v. A.M. [2012] O.J.

No. 5141 : “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-frame that is sensitive to the child’s needs … In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion.” [ 61 ] For the aforegoing reasons, I am not convinced that Villeneuve, J. erred in finding that there was no genuine issue for trial or erred in concluding that the appropriate disposition in the best interest of N.R.S. born […], 2007 was that he be made a ward of the crown without access for the purpose of adoption.

Accordingly, the appeal is dismissed. Justice E. Gareau Released: May 14, 2013