Kawartha–Haliburton Children’s Aid Society v. C.D., 2015 ONSC 7885

DIVISIONAL COURT FILE NO.: 801/15 DATE: 2015-12-15

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, WILTON-SIEGEL AND MULLIGAN JJ.

BETWEEN:

KAWARTHA-HALIBURTON CHILDREN’S AID SOCIETY Applicant (Respondent in Appeal)

– and –

C.D. and R.C. Respondents (Appellants in Appeal)

Counsel: Belinda Jesudasan, for the Applicant (Respondent in Appeal) Christopher Spear, for Appellants

HEARD at Toronto: December 15, 2015

ORAL REASONS FOR JUDGMENT

SACHS J. (ORALLY)

Nature of the Proceeding

[1] The appellants appeal from the order of Hughes J. dated March 20, 2015, wherein she granted the respondent Society’s summary judgment motion and ordered that the child, L., be made a Crown Ward without access for the purpose of adoption. Hughes J. also found that the child was in need of protection pursuant to the Child and Family Services Act, (the “Act”), section 37(2)(b)(i)(ii). Hughes J. gave an oral ruling in the presence of the appellant mother.

[2] The appellants seek an order that the March 20, 2015 summary judgment order be set aside and that the matter be set for trial as soon as possible.

Background

[3] The child, L., was born in 2013. He is almost three years old. He was apprehended at birth and has remained in the care of the Society since birth. As of the date of the motion the child had been in care for over twenty-four months. At the time of the motion, L. was and he continues to live in a foster home with the family who wishes to adopt him. This foster family has also adopted L.’s older full-sibling, L., and the siblings have resided together since L.’s birth. Since his birth, there have been supervised access visits between the appellants and L. a few times per week. Access was discontinued following the order of Hughes J.

Other Children

[4] L. is the appellant mother’s second child and the appellant father’s third child. L., born in 2010, is a full sibling to L. The Society initially became involved on June 16, 2010, when a prenatal reference was received due to concerns over domestic violence in the relationship between the appellants. L. was made a Crown Ward on September 18, 2012 by Hatton J. at the conclusion of a five-day trial. The appellants appealed this order, but their appeal was dismissed on December 16, 2012 as it was not perfected.

[5] The appellant father’s eldest child, S., born December 25, 2000, was adopted by maternal relatives and the appellant father has had no contact with her since she was an infant.

Original Summary Judgment Motion and Referral for Services

[6] On May 29, 2013, the Society brought a summary judgment motion. Hughes J. dismissed the Society’s motion as premature and requested that the Society provide the parents with a list of referrals. The Society provided this list on June 7, 2013.

[7] The appellants, both individually and together, engaged in a number of initiatives following receipt of this letter, including anger management counselling, applying to Development Services Ontario, getting support from the Canadian Mental Health Association, getting counselling for addiction, meeting with a social worker at VoN 360 clinic, taking parenting programs, and engaging in individual and couples counselling. The respondent points out that for some of the programs the appellants missed or rescheduled appointments or did not complete or follow through with all the sessions. Hughes J. acknowledged the significant efforts both parents had made as a result of these recommendations.

Section 54 Assessment

[8] On September 6, 2013, Gunsolus J. ordered a Parenting Capacity Assessment on consent of all parties, pursuant to s. 54 of the Child and Family Services Act.

Issues Raised on this Appeal

[9] On this appeal the appellants made the following arguments:

(i) The motion judge erred in failing to recognize that there was a “hole” in the Society’s case that required a trial.

(ii) The motion judge’s reasons do not disclose the evidence that she relied upon in coming to the decision that she did.

(iii) The motion judge’s reasons do not meet the requirements of the Child and Family Services Act.

(iv) The motion judge failed to rule on the question of the admissibility of the s. 54 Assessment. According to the appellant this assessment was inadmissible since it did not answer one of the key questions that the Court had ordered the assessors to answer.

Alleged “Hole” in the Society’s Case

[10] The appellants submit that the evidence led by the Society failed to establish that it had researched what programs were available that were specifically designed to meet the needs of parents with intellectual disabilities and that it failed to demonstrate that, even with the support of these programs, the appellants could not parent their child.

[11] In making this submission the appellants acknowledge that they did not put any evidence before the motion judge that spoke to the availability of any such program or to the fact that with the assistance of any such programs the appellants would be able to parent their child. According to the appellants, that was the Society’s job.

[12] We disagree. As the motion judge found in her reasons, “The Society has no obligation to assemble the appellant’s plan of care for L.”

[13] In view of the fact that the appellants did not put forward a comprehensive plan of care that outlined the supports in the community or from their families that were available to the appellants to assist them in caring for their child that had not already been provided to them through the Society, there was no genuine issue for trial on this aspect of the case.

Failure to Cite the Evidence Relied Upon to Support Her Decision

[14] We disagree with the appellants that the motion judge’s reasons do not disclose the evidence that she considered and relied upon in coming to the decision that she did.

[15] In particular, her reasons make it clear that she found that L. would not be safe in the appellants’ care because of the following:

(i) L.’s young age and consequent vulnerability.

(ii) The domestic conflict that exists between the appellants, a pattern that was observed during the appellants’ supervised visits with L. The motion judge further noted that this evidence was not disputed.

(iii) The evidence that the appellant father, despite repeated direction, refuses or neglects to take medication that has been prescribed to stabilize his mental health difficulties. There was also evidence that the father continues to self-medicate with marijuana, which interferes with the effectiveness of his prescribed medication. Again, the motion judge noted that this evidence was undisputed.

(iv) The evidence that there was no one in the appellants’ family or through community support agencies who could provide the comprehensive supervision of their parenting that the evidence disclosed the appellants needed. In this regard, the motion judge correctly found that it was not possible for the Society to supervise the appellants’ parenting on a 24 hour, 7 day a week basis. In this regard the motion judge also correctly stated that s. 70 of the Act did not permit her to make an order that the child remain a ward of the Society while the appellants continued to try and get these supports in place.

[16] Contrary to the submission of the appellants the motion judge also went on to explain her finding as to why access should be terminated. In particular, she states:

Given the nature of the conflict between the two of you that has continued to occur during supervised access both at the centre and in the community, I find that it would not be beneficial for L. for access to continue as part of the plan for his adoption.

Failure to Meet the Requirements of the Act

[17] The appellants submit that the motion judge’s reasons do not disclose that she considered the other alternative to Crown Wardship, in particular, whether the child could be placed with the parents with community support. We disagree. In her reasons, the motion judge acknowledged the “real and significant effort” the appellants have made to improve their ability to parent their child. She further acknowledged that they had participated in programs recommended by the Society, that they had sought out counselling in the community, and that they had met many of the expectations set out by the Society. In this regard there was no dispute about the fact that since 2010 the Society had made significant efforts to assist the appellants.

[18] The motion judge then found that the progress made by the appellants was not sufficient to ensure that L. would be safe in the care of the appellants unless the appellants were supervised on a 24 hour, 7 day a week basis. The opinion that this was the type of support that was needed was uncontradicted.

[19] The appellants also assert that the motion judge failed to consider the possibility of adoption with access. For the reasons set out above, we reject this submission.

Section 54 Assessment

[20] In her oral reasons the motion judge acknowledged reviewing all of the materials before her. The s. 54 assessment was included in these materials.

[21] The appellants argued that the s. 54 assessment should not have been admitted on the summary judgment motion because it failed to address a critical question directed by the Court order requiring the assessment. Section 6(iii) of the order of Gunsolus J. dated September 6, 2013 required that the s. 54 assessment address “identification of any services, assistance, funding or other facility that may be available or should be made available to Mr. R.C. to address his mental health and intellectual and cognitive functioning.”

[22] However, on pages 28 and 29 of the s. 54 assessment, these issues are directly addressed. The assessment states that the parents will need direct, 24 hour, in-home support and supervision to provide adequate care for a child in their care. It concluded that a responsible adult would need to be available at all times to step in and care for the child and manage conflict between the appellants. The assessment stated that “this kind of support is not available in the community and is typically provided by family members.” It observed that, in this case, the appellants have not identified any family members who might be available to provide such support. As such, it concluded that there was no reason to believe that any form of treatment would enhance the parenting capacity of the appellants to the point that there would not be a significant risk to a child in their care.

[23] In addition, the s. 54 assessment expressly addressed the issue raised in s. 6(iii) of the order of Gunsolus J. on page 29 in paragraph 8. The assessment concluded that, while the appellant father would benefit from the involvement of an Adult Protective Services Worker, this service would not improve his ability to parent a child independently.

[24] Accordingly, we do not accept this ground of appeal. The motion judge was entitled to rely upon the s. 54 assessment, which determination also addresses the appellants’ related ground of appeal that the motion judge failed to make an express determination of the admissibility of the assessment in her oral reasons.

[25] For these reasons the appeal is dismissed.

Costs

[26] I have endorsed the back of the Appeal Book, “For reasons delivered orally by Sachs J., this appeal is dismissed. On consent there will be no order as to costs.”

SACHS J.

WILTON-SIEGEL J.

MULLIGAN J.

Date of Reasons for Judgment: December 15, 2015 Date of Release: January 18, 2016

CITATION: Kawartha–Haliburton Children’s Aid Society v. v. C.D, 2015 ONSC 7885

DIVISIONAL COURT FILE NO.: 801/15 DATE: 20151215

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, WILTON-SIEGEL AND MULLIGAN JJ.

BETWEEN:

KAWARTHA-HALIBURTON CHILDREN’S AID SOCIETY Applicant (Respondent in Appeal)

– and –

v. C.D and R.C. Respondents (Appellants in Appeal)

ORAL REASONS FOR JUDGMENT

SACHS J.

Date of Reasons for Judgment: December 15, 2015 Date of Release: January 18, 2016