WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Between:
Kenora Rainy River District Child and Family Services
Applicant
— AND —
H.K.
and
F.K.
Respondents
Before: Justice Peter T. Bishop
Heard on: April 20, 2016
Reasons for Judgment released on: May 18, 2016
Counsel
David Elliott — counsel for the Applicant(s)
Mark Mymko — counsel for the Respondent - H.K.
Robert Stead — counsel for the Respondent - F.K.
Michelle Simone — counsel for the Office of the Children's Lawyer, For the children
BISHOP J.:
BACKGROUND
1Kenora Rainy River District Child and Family Services (the Agency) commenced a Protection Application on September 19, 2014 alleging that the two children, T.A.1, date of birth […], 2003 and T.A.2, date of birth […] 2001, had suffered emotional harm or risk of emotional harm contrary to Sections 37 (2)(f),(f.1),(g),(g.1) and (h) of the Child and Family Services Act.
2The Agency brings a motion for summary judgment requesting a further six month Society Wardship Order.
3On September 23, 2014, the Court ordered counsel to be appointed for the children.
4On October 6, 2014 the Court granted the Agency temporary care and control of the children to be placed in the care of the paternal grandmother G.B.
5On February 10, 2015 the Court granted temporary care and control of both children to the Agency.
6On September 21, 2015, on consent, Justice Hoshizaki made findings that both children were in need of protection contrary to Section 37 (2)(b),(i),(ii),(f),(f.1),(g),(.1) and (h) of the Child and Family Services Act.
7On June 15, 2015 a settlement conference was commenced and new counsel was appointed for the children.
8On February 22, 2016 the father agreed with the Agency's position and instructed counsel to have no further involvement.
9On April 20, 2016 the father was noted in default and the Agency brought a motion for summary judgment requesting a Society Wardship Order for six months.
EVIDENCE
10I have reviewed the affidavits of Regan Takacs, sworn April 7, 2016, S.M. sworn April 8, 2016, Paula Delorme sworn April 8, 2016 and the reply affidavit of H.K., sworn April 15, 2016.
SUMMARY OF THE EVIDENCE OF THE AGENCY
11Ms. Regan Takacs is a Child Youth Worker employed by Connor Homes in Brantford, Ontario where the children are in a specialized placement.
12Ms. Takacs supervised visits with the mother on February 11, 12 and 13, 2016 and observed that the mother discussed the court case with the child T.A.1 and negatively commented on the foster parents making money from the children. There were also comments about the mother's back issues and the mother declined to follow instructions about going into the community. The mother was more interested in having cigarettes than having a meaningful visit with the children.
13The affidavit of S.M. disclosed that she has been a foster parent with Connor Homes for approximately one year and both children were placed with her family on July 25, 2015. The child T.A.1 had a visit with her mom on February 12-14, 2016 inclusive but the child T.A.2 did not want to participate in any visits.
14After each visit with the mother, the child T.A.1 took some time to readjust and warm up to the foster family.
15It was her observation that T.A.1 initially had many angry episodes and the foster family was trying hard to change that behaviour as she now has many friends in the neighborhood.
16With respect to the child T.A.2, she did not want to attend any visits with her mother and does not want to speak to with her because she really doesn't know her. T.A.2 is doing well and has developed many friendships in the Brantford area. This child does not have any health complaints and presents as a young girl who enjoys her life.
17Paula Delorme is a Child Protection Worker with the Agency. She stated that the family has a history with The Society dating back to June, 2008.
18This protection file was opened in May, 2014 as the parents had separated and the mother was not accessing counselling for the children as a result of their disturbing behaviours. The mother had refused to work cooperatively with the Agency.
19On October 1, 2014 the children were apprehended from school as a result of behaviour which appeared to be mental health issues. The child T.A.2 was self-mutilating, had suicide ideation and the mother had a lack of appropriate responses.
20The Agency made efforts to have T.A.2 assessed at the counselling services of Firefly and the mother refused that initiative if the father had to consent and be part of the process.
21T.A.2 began using Firefly services but struggled with feelings of guilt.
22The mother has informed the Agency that the children should be returned to her care but has not provided a psychological or psychiatric assessment which was stipulated in the original supervision order. The mother has not attended counselling on an ongoing basis and has not provided medical records or a statement of her medications. She has not provided consents signed so that the Agency can obtain information from her physicians and evaluate her concerns.
23On February 4, 2015, a medical practitioner, Dr. Jollymore, provided a report with respect to both children with the following conclusion:
(a) This may be a rare case known as Munchausen's by proxy. The mother's general poor level of coping and her own physical and psychological issues, created an unhealthy environment whereby she reflected somatic and psychological manifestations of her own issues on to the children.
(b) He was very concerned about the health and safety of the children and the mother's apparent inability to see the importance of appointments and maintaining a state of organized life to get her daughters to booked appointments.
(c) After the girls were placed in the care of their grandmother, in a relatively short time, he noticed a significant improvement in their states of mind and their general demeanor. He concluded that this improvement was likely due to not having exposure to the mother's influence and also believes that the mother was not acting in deliberate or malicious manner.
24On July 25, 2016, both girls visited Mr. Richard Crysler, a therapist at the Connor Home. He provided progress reports every three months and finds that the girls are willing to meet with him and participate in sessions on a weekly basis. Their progress thus far is favourable and both are attending school and have made appropriate connections in the school and with their foster parents. He views the current situation as positive.
25It is the position of the Agency that both children have special needs and they should remain in their present treatment foster home for the foreseeable future. One year is required to stabilize and establish a trusting and secure relationship with the professionals put in charge of their care. A further six months in care and treatment is required to address current protection concerns and issues.
26Connor Homes regularly assesses the plan of care. It is the opinion of the area supervisor and the regional director that the children have experienced a period of inconsistency and prolonged perception of stress that has an impact on their overall ability to self-regulate. Conner Homes supports the proposition that both children will benefit from maintaining their current placement within the foster home and continue to have the opportunity to engage in therapy with Mr. Crysler as well as a therapeutic program provided by the home itself. Trust and security are important areas that both girls need to develop, and they need that skill development to decrease their anxiety.
27The affidavit of H.K. sworn April 15, 2016 is a seven page denial of any problems on her part. She attacks the Agency and does not accept the Agency's conclusions and states that the children should no longer be in care and be returned to her. She reviews her compliance/non-compliance, her medical history, and the visit in Brantford which did not go well as the supervision is being used to "spy on her". There is a litany of denial but no evidence to support or rebut the substantial evidence put in by the Agency and the professionals to whom the children have been referred.
MOTION FOR SUMMARY JUDGEMENT
28I have reviewed Rule 16 of the Family Court Rules dealing with summary judgement.
29Procedurally, the party making the motion shall serve an affidavit or other evidence as such as specific fact showing that there is no genuine issue requiring a trial.
30Rule 16 (4.1):
In response to the affidavit or other evidence served by 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.
31Rule 16 (6):
If there is no genuine issue requiring a trial of a claim or a defense, the court shall make a final order accordingly.
32Rule 16 (6.1):
In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and the Court may exercise any of the following powers for the purpose, listed in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
POSITION OF THE PARTIES
33The Agency states that there is no genuine issue for trial at this stage.
34The father agrees with the Agency and has been noted in default and wishes to take no further action in this proceeding.
35The mother wishes the children to be returned to her care with or without supervision as she sees no difficulty with her parenting.
POSITION OF THE CHILDREN
36The child T.A.2 will be fifteen in May and prefers to live where she is. She wants to remain with the foster parents and has no objection to a Crown Wardship Order being made.
37The child T.A.1 is thirteen years of age and fluctuates in her wishes. She wants to go back and live with her mom and loves her and she wants to live in Dryden.
DECISION
38Having heard all of the evidence I am finding that; at this stage, there is no triable issue for the following reasons:
The children are special needs and in a specialized foster home placement in Southern Ontario. It would be contrary to the best interests of the children to remove them from that home where the progress reports and health care professionals and therapists indicate that the children are doing well and improving.
The mother's affidavit indicates that she has no confidence in The Children's Aid Society and has deeply held views about The Children's Aid Society and states that they have an evil agenda.
The mother has filed no clinical reports nor does she want to file any reports from any of her healthcare professionals so that an informed decision can be made about her situation. She is concerned that if she gives material to the Children's Aid Society it may end up on the internet.
The mother fails to appreciate that the decisions that the Agency makes are within the best interests of the children and not against her.
Many of the medical difficulties that the children were experiencing, prior to apprehension have now disappeared.
I have reviewed the case of C.R. and D.Q. v The Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357. This case is distinguished on the facts in that it was a final Crown Wardship Application and there were some procedural deficiencies in the process of proceeding to summary judgment.
I have also reviewed the case of Catholic Children's Aid Society of Toronto and S.M. and D.H., 2015 ONCJ 651 and note that that too was a final disposition on Crown Wardship and distinguished on the facts. I accept and adopt the principles contained therein.
In this case, the mother does not appreciate the issues and has produced no evidence to show that her failures to properly care for the children have improved.
The Court does not need to assess credibility or weigh evidence. The mother's affidavit is void with respect to her plan of care and is simply a statement of denials and non-cooperation and suspicion of the Agency.
It will be detrimental to the children's best interests to remove them from the specialized care that they are now receiving from the Connor Home and the excellent foster parents that are providing care to them.
The Agency has demonstrated that there is no genuine issue requiring a trial and accordingly that a trial would only prolong the inevitable result and keep these children without a final decision. In the circumstances, I am granting the Children's Aid Society a further Society Wardship Order for a period of six months with the ongoing placement to continue.
Released: May 18, 2016
Signed: "Justice Peter T. Bishop"