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 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (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.
45.— (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
Date: June 6, 2013
Court File No.: Brampton 20074/12
Between:
The Children's Aid Society of the Region of Peel, Applicant,
— AND —
A.R., Respondent.
Before: Justice Philip J. Clay
Heard on: May 15 and 16, 2013
Reasons for Judgment released on: June 6, 2013
Counsel:
- Diane DeGrace — counsel for the applicant society
- Samir Patel — counsel for the respondent(s)
CLAY J.:
[1] Application for Summary Judgment
[1] The Society brought an application for Summary Judgment in which they sought:
(a) An order that the child N.R. born […], 2008 be made a ward of the Crown without access for the purpose of adoption and that the said child shall be placed in the care of the Children's Aid Society for the Region of Peel.
(b) In the alternative an order pursuant to R. 16 (9) of the Family Law Rules specifying what facts are not in dispute, stating the issues and giving directions about how and when the case will go to trial.
[2] The mother contested the motion and sought a return of the child to her care pursuant to a supervision order.
Procedural History
[3] The mother placed the child in the Society's care pursuant to a Temporary Care Agreement on June 1, 2011. The T.C.A. was extended three times and expired on May 31, 2012. On January 19, 2012 the mother consented to a Parenting Capacity Assessment being completed. That assessment began on January 26, 2012 and was completed on June 8, 2012.
[4] On June 8, 2012 the Society filed a Protection Application seeking a protection finding pursuant to ss. 37(2)(b)(i) and (ii) of the Child and Family Services Act ("the Act"). Those grounds are that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by that person's:
(i) Failure to care for, provide for, supervise or protect the child adequately
(ii) Pattern of neglect in caring for, providing for, supervising or protecting the child.
[5] The Society sought a four month Society wardship. On June 13, 2012 it was found that there was no male parent within the meaning of the Act. On July 25, 2012 the parties filed a Statement of Agreed Facts in which the mother conceded the protection findings and the child was placed in the care and custody of the Society for a period of four months. The Court also found it to be in the best interests of the child for the statutory time limits to be expanded pursuant to s. 70(4) of the Act.
[6] On October 16, 2012 the Society filed an Application for Status Review seeking that the child be made a Crown Ward with no access for the purpose of adoption. The mother filed an Answer and a Plan of Care asking for the return of the child to her care or in the alternative that the child be placed with the maternal aunt Helen MacNaughton subject to the Society's supervision.
[7] On the second review of the Status Review on February 6, 2013 the matter was set down for Summary Judgment. The Society relied upon the following affidavit material to support their motion:
(a) The Affidavit of Augustina Osei-Boateng dated April 3, 2013;
(b) The Affidavit of Roxana Condor dated April 3, 2013;
(c) The Affidavit of Vanessa Porter dated March 26, 2013;
(d) The Affidavit of Michelle Pommells dated March 21, 2013;
(e) The Affidavit of Neetu Duhar dated April 3, 2013;
(f) The Affidavit of Grace Cheung dated March 21, 2013;
(g) The Affidavit of Lidia Vieira dated March 21, 2013; and
(h) The Affidavit of Danielle Mitchell dated April 10, 2013.
[8] Mr. Patel filed his client's affidavit of April 29, 2013.
The Law
[9] A motion for summary judgment is permitted in child protection cases. The governing rule is Rule 16 of the Family Law Rules. R. 16(6) reads as follows:
(6) NO ISSUE FOR TRIAL — If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[10] The use of the mandatory word "shall" in Rule 16(6) means that if no genuine issue for trial exists the court has no choice but to grant the summary judgment.
[11] On a motion for summary judgment, 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 the society to show that there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) per Gordon J.
[12] In determining if there is sufficient evidence led by the parent, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial. CAS Dufferin v. J.R., O.J. No. 4319.
The Evidence
[13] There was no real dispute about the facts in this matter. This is not a matter in which there was one incident or one issue that led to a protection finding. The Society relied upon a number of significant concerns and the findings of a Parenting Capacity Assessment. The mother was generally co-operative with the Society throughout their lengthy involvement.
[14] A.R. was only 17 when she became pregnant. She admitted that she drank alcohol and used marijuana during her pregnancy. She gave birth to her son N.R. on […], 2008.
[15] A.R. brought her son home to reside with her in an apartment that she shared with her own mother V.R. The Society had been notified of the child's birth and they worked voluntarily with the mother. Services and programs were recommended and A.R. was co-operative and expressed a willingness to learn.
[16] A.R. had her own challenges which included a learning disability and a substance abuse problem with both alcohol and marijuana. Her mother V.R. had mental health problems for which she was taking medication. The state of their apartment was a constant concern as various affidavits filed by Society workers spoke to garbage strewn about the balcony, frequent and serious cockroach infestations and generally very unhygienic conditions. To be fair there were occasions when the Society workers noted that the apartment was neat and clean.
[17] Ms. DeGrace for the Society divided the Society's evidence into three broad themes:
- The mother's failure to follow up with services
- The mother's history of alcohol and substance abuse
- The recommendations of the Parenting Capacity Assessment
Failure to Follow up with Services
[18] N.R. was born on […], 2008 and the first report to the Society with concerns was made on June 5, 2008 when a Public Health Nurse from "The Healthy Babies, Healthy Children" program reported concerns about A.R.'s substance abuse and its effect on N.R. Referrals were made including one to the Early Years Centre.
[19] The Society opened a file in June 2008 and closed it in August after making the referrals and determining that it was safe to leave the child with his mother.
[20] By July 2009 the Public Health Nurse reported concerns about the child's diet and regarding A.R.'s mental health and lack of progress notwithstanding the support of "The Healthy Babies, Healthy Children" program.
[21] Danielle Mitchell the worker at the time noted that A.R. "presents as a vulnerable adult, who has a limited social network of friends or other outside connections besides the programs that she has been referred to."
[22] On August 2009 the Healthy Babies program terminated A.R.'s involvement with them. Among the reasons given were that A.R. had failed to meet the goals that she set for herself and she informed the nurse that she really does not want to change. The nurse stated that N.R. had developmental/behavioural concerns as he had bit his mother and the nurse and A.R. was at a loss as to what to do. The program asked the Society to remain involved with the family.
[23] It was apparent from all of the Society's evidence that A.R. was a pleasant and co-operative young mother who welcomed the Society's assistance and agreed to attend the programs to which she was referred. The Society's position was that A.R. was unwilling or unable to put into practice what she had learned or that she was unable to absorb the information provided due to cognitive limitations or other factors.
[24] One example was the Society's recommendation to the mother in September 2009 that the child be taken to an Early Years Centre or Readiness Center to introduce him to other children and new experiences. She agreed to do so. Notwithstanding monthly reminders she had not done so by a December 9 visit. The Society had already identified a number of concerns with the home and the fact that A.R. was socially isolated and the child developmentally delayed. This example was part of a pattern in which the mother would agree to take steps and then fail to follow through.
[25] By January 2010 many of the identified safety and hygiene concerns with the home remained unaddressed. A new plan of service was developed and explained to A.R. Ms. Makin a worker from a "Families 0-6 program" was put in place to visit twice a week to work with the mother on identified concerns. The March 2010 report stated that the child was unfocused and aggressive and a real challenge. The mother had taken no steps to take the child out of the apartment. Ms. Makin took A.R. and her son to the Readiness Centre and while he was aggressive with other children he seemed to enjoy it.
[26] A.R. told the Society worker that she found that the visit program was going well and she found the support helpful. This is another example of A.R. being co-operative and accepting services when a service provider was with her and laid out a very specific plan. It was clear from all of the evidence that A.R. needed very focused and direct instruction to take any recommended steps. When she was told more general information such as to keep her apartment clean and smoke free or to take the child outside and interact with others at children's programs she failed to follow through. Her apartment could be clean and safe if she knew a worker was coming to visit. She would take the child to a centre when accompanied by a worker. Left on her own A.R. failed to take the steps that the Society thought were needed.
[27] By May 5, 2010 Ms. Makin reported concerns regarding N.R.'s development and lack of stimulation. She said that although his mother engages and appears insightful she was not implementing the recommendations such as playtime and getting the now two year old child to walk within the home.
[28] It was noted in the report that while A.R. appeared to have a desire to support her son in reaching his developmental milestones she had great difficulty in prioritizing in that area. It was felt that her low energy/high stress personality and pattern of putting other tasks (i.e. shopping, appointments) ahead of child focused ones prevented her from doing what she would be able to verbalize was necessary.
[29] Ms. Makin reported on July 30, 2010 that as A.R. kept cancelling appointments she had last seen the family on June 24, 2010. The program was terminated in October 2010 and recommendations were made.
[30] Once N.R. was in daycare he made improvements. Unfortunately he missed a lot of days when A.R. stated that he was sick. Throughout the fall of 2010 and the winter/spring of 2011 the same concerns arose. The apartment was a "pig sty" (A.R.'s words) or a "disaster" (her mother's words), programs were accepted but not followed up on and N.R. was not making a great deal of progress.
[31] On June 1, 2011 the Society had determined that the child could not be left with A.R. The first of the Temporary Care Agreements was signed and N.R. has not been in his mother's care since.
[32] The initial access visits at the Society went well. The mother attended regularly and the interactions with the child were noted to be positive and loving. Visits were soon moved to the mother's apartment. A review of access generally shows that the mother and child did have a bond. The negative comments tended to focus on the mother's inattentiveness at times and the occasions when she would leave N.R. with her mother or others to go and have a cigarette.
[33] The Peel Region Fetal Alcohol Syndrome Clinical Service reported on August 22, 2011 that the child had Global Developmental Delay. An investigation of a possible diagnosis of Alcohol-Related Neurodevelopmental Disorder was deferred until 2013. It was clear from all the reports that N.R. would present more parenting challenges than most children. He would require a parent who could retain information about his condition and the steps to be taken to meet his individual needs and one who implemented those steps on a consistent basis. A.R. understood and accepted the diagnosis but either she had difficulty in appreciating what steps needed to be taken or she knew what to do but could not get around to doing it. For example one of the steps was being in a daycare program. Prior to his apprehension in June 2011 N.R. was absent from daycare 35% of the time.
[34] The daycare reported that once N.R. was in Society care that "his balance and attention span had improved and he was able to focus for approximately twenty minutes when completing an activity."
[35] The Society moved one access visit into the apartment that A.R. now shared only with V.R. as her father had moved out. The Family Service Worker Ms. Osei-Boateng attended at the apartment in April 2012 and noted that despite the fact that the grandfather W.R. was gone the smoke in the apartment was heavy and the junk on the balcony that posed a safety hazard still remained.
[36] More significantly the worker learned of the involvement of K.Y. in A.R.'s life. K.Y. was said to be a family friend who had known A.R. and her severely developmentally delayed sister J.R. since they were children. At 56 he was about the same age as V.R. K.Y. was a truck driver and he was said to visit at the apartment on weekends, once or twice a month.
[37] A.R. said that K.Y. played with N.R. and went to the park with him. A.R. said that K.Y. bathed N.R. and cleaned his penis at her request as she knew nothing of male hygiene. Initially both A.R. and V.R. said they had no knowledge of any past occurrences that would cause them concern regarding K.Y. caring for N.R. When prompted they admitted that K.Y. was charged with sexually assaulting A.R.'s sister J.R. who at 21 was said to have a mental age of about a 6 year old. He spent nine months in custody prior to the charges being withdrawn. Both V.R. and A.R. felt that the sister had lied and they fully supported K.Y. throughout the process. They are now estranged from J.R. who now resides in a special home. A.R. believed that K.Y. was a trustworthy male figure and a support for N.R.
[38] The child stated that "K.Y. … is bad" but in his meeting with the worker K.Y. explained that away by saying the child was sad when he was not there. Further discussion lead to information that K.Y. allowed the child to see him naked. He admitted to showing the young boy how to clean his penis but he didn't see anything wrong with doing that.
[39] As a result of her investigation Ms. Osei-Boateng cancelled home visits and directed that K.Y. was not to attend any visits. On May 9, 2012 K.Y. did pick up the child with A.R. for a visit. He said that N.R. was distressed that he was not seeing him and if the Society really cared for children they would allow him to see N.R. K.Y. did produce a police record which showed he had no convictions or outstanding charges. Both A.R. and her mother asked for K.Y. to be able to go for visits and by September 28, 2012 that was permitted.
[40] It is clear that A.R. sees no possibility of risk to the child if he were being looked after by K.Y. If her son was returned to her it is apparent that K.Y. would have an active role in parenting him. The Society quite properly recognized that K.Y. had never been convicted of any offence involving children and they did not rely upon his involvement in A.R.'s life as a major reason to seek Crown wardship. However K.Y.'s involvement in the family dynamic and his actions with the child raise questions of a lack of judgment on the part of A.R. that are addressed below in the parenting capacity assessment section.
History of Alcohol and Substance Abuse
[41] The second theme identified by Ms. DeGrace in her submissions was the significant history that the mother had with alcohol and substance abuse. The evidence of that was interwoven throughout the Society's affidavit material which was organized in a chronological way for each worker involved.
[42] The evidence with respect to substance abuse was similar to the evidence referred to above. A.R. would express a motivation to change and even take very positive steps along that path but at some point, despite her stated intentions, she would relapse. The Society's position was essentially that this pattern of relapsing would put both A.R. and her son at risk.
[43] The evidence was that A.R.'s father W.R., who resided with his wife V.R. and A.R. prior to the child's birth, and subsequently for a few years, was said by all involved to be an abusive alcoholic. He had involved his daughter A.R. in his drinking binges when she was just 19 years old and sadly those sessions seemed to be the only time that A.R. spent any significant time in a one on one relationship with her father.
[44] A.R. was very forthcoming about her battle with addiction. She self-identified as being addicted to marijuana as opposed to alcohol although she admitted drinking alcohol and smoking marijuana during her pregnancy. She told Society worker Ms. Duhar that she had attended a 28 day treatment program at St. Joseph's Hospital in Elliott Lake in or about 2005.
[45] A.R. told Ms. Duhar that she smoked one to two joints a day during her pregnancy. She wanted to stop smoking marijuana as she was breastfeeding her son. She was receptive to information about the risks to using marijuana when in a care giving role and the risks of marijuana use and breastfeeding.
[46] To her credit A.R. did follow up with attendance at an out-patient program run by the Youth Substance Abuse Treatment Centre in 2008. She attended five one hour sessions and the Society felt she was addressing the issue and they closed their file.
[47] On the re-opening of the file in March 2009 substance abuse was again identified as an issue. Once again A.R. was very forthcoming with the Society. She admitted that she had consumed too much alcohol once while in a caregiving role with N.R. She said it was an isolated incident because living with her parents was causing her stress. That she suffered stress is totally understandable. Her father W.R. continued to abuse alcohol and her mother's mental health issues left A.R. in a position where she felt that she had to care for her mother at all times. A.R. admitted that she "needed" her mother as well when the relationship with family members was further explored. The notes from the 2008 opening showed that A.R. admitted to drinking one to two drinks a day to cope with the stress. In March 2009 the mother said that her over-consumption of alcohol was an "isolated incident". Nevertheless A.R. subsequently requested on-going services from the Society and stated that she felt that she needed support.
[48] On April 23, 2009 Bev Smith a Family Visitor from the Healthy Babies program stated that when A.R. showed up at the Readiness Centre one day with her mother and 10.5 month old N.R. she could smell alcohol on her breath. A.R. admitted to having one rye that day when out with her friends. Ms. Smith went on to note that A.R. did not appear intoxicated and appeared steady on her feet.
[49] The extent of the use of alcohol by A.R. was one of the few facts upon which the Society and A.R. disagree. In particular A.R. denied that she had attended for access visits after drinking. On a summary judgment motion based upon untested affidavit evidence the Court cannot resolve the credibility issue. It is to be noted that even if the Society workers were right they still permitted the visits and there were no complaints of intoxication or that alcohol use impacted A.R.'s behaviour during visits.
[50] A.R. agreed to counseling with Dr. Monik Kallia the psychologist who completed the Parenting Capacity Assessment. In a report dated February 4, 2013 he noted that A.R. had attended 15 sessions since August 2012. He remained concerned about addiction issues and advised her to attend a program called Addictions and Concurrent Disorders at the Credit Valley Hospital. She attended an intake assessment and started an outpatient program on February 19, 2013. She also started attending an Alcoholics Anonymous group. On April 3, 2013 A.R. began attending a 35 day residential program at Hope Place Women's Residential Centre in Milton. She completed the program and her certificate was filed as an exhibit.
[51] With respect to drug use A.R. had consented to a hair follicle drug test and the results were released on May 5, 2012. She tested positive for THC the active chemical in marijuana. The test results showed a relatively low amount. The Society's stated concern was not that there was any specific example in which the use of drugs and/or alcohol caused impairment that put the child at risk. It was more that despite efforts to stop using A.R. continually relapsed. Ms. DeGrace submitted that A.R. had stated that she used marijuana to cope with stress. She continued to use even when her son was not in her care. She had admitted that caring for N.R. was very stressful as he had global developmental delays. The Society argued that if the child were in her care it was likely that A.R. would turn to marijuana or alcohol or both in order to cope.
[52] To her credit A.R. had admitted her issues with substance abuse and taken steps. She also admitted her relapses when her son was not in her care. In her own affidavit at paragraph 18 she stated that:
…I do regret to admit that there have been a few instances since 2012 where I had relapsed and resorted to either smoking marijuana or consuming alcohol, or both; however I deny that any such use took place immediately prior to or during my scheduled access visits...I felt that the such use would help me to ease the anxiety and stress that had been experiencing (sic) from the thought of having N.R. taken away from me.
[53] There is no doubt that most parents would find it to be extremely stressful to have their child in care with a Crown wardship trial pending. There is also no doubt that A.R. has taken advantage of treatment and after-care programs. The Court finds that the substance abuse issue on its own would not be enough to warrant permanently removing the child from his mother's care. However put together with all of the other concerns identified the history of using alcohol and drugs to cope with stress is certainly a factor to be considered in an overall evaluation of whether it would be in the child's best interests for him to be returned to the care of his mother.
Parenting Capacity Assessment
[54] A.R. consented to a P.C.A. which was undertaken by a clinical psychologist Dr. Monik Kallia. His report was released on June 28, 2012. The Society had committed themselves to following the recommendations of this report.
[55] Dr. Kallia noted that A.R. took responsibility for her actions or inaction and did not blame the Society for her plight. She said they "just wanted to make sure that N.R. was safe." She said that their concerns were valid and "I should have been more alert right at the beginning to prevent all this".
[56] Dr. Kallia stated in his report:
Based upon the information from psychological testing clinical interviews and collateral contacts it is my opinion that …A.R… does not suffer from any major mental illness or psychosis. However the results of the personality and emotional testing indicate features of anxiety, dysthymia, drug dependence and post traumatic stress disorder. It also points to avoidant and dependent personality traits.
[57] Interestingly A.R. did not mention K.Y. during the assessment process. It was V.R. who stated that her daughter was in an intimate relationship with K.Y. a "long-time family friend". She said that A.R. sometimes stayed with K.Y. K.Y. had been emotionally and financially supporting A.R. V.R. said that K.Y. also had a very good relationship with N.R. Later V.R. clarified to the assessor that she had been incorrect in saying that the A.R.-K.Y. relationship was an intimate one. For her part A.R. said that she did not consider that she should mention K.Y. and added that he was a "role model and a friend".
[58] In his summary Dr. Kallia notes that A.R.:
…has not been able to exhibit good judgment about her relationships with male partners. She can be vulnerable in dating or relationship situations where a partner is manipulative. She has difficulty picking up signals leading to abusive interactions.
[59] The doctor was unable to contact K.Y. due to the latter's work schedule so he did not specifically comment in his recommendations on K.Y.'s role in the life of A.R. and her child. However K.Y. did file an affidavit in which he supported the return of the child to A.R. and clarified his role in assisting A.R. in caring for her son. He stated that the charges laid against him concerning the child J.R. were withdrawn as the child had admitted to lying. He said he had tried to educate the child N.R. in self-care but had never touched his penis. Ultimately the Society did not rely on K.Y.'s presence in the child's life as indicating a risk of sexual interference.
[60] In a consideration of the best interests of the child the Court needs to look at the mother's complete parenting plan in light of all of the evidence. For a person as forthcoming as A.R. in every other area of her life her decision to withhold information regarding K.Y. does raise questions. On the other hand the Court is satisfied that it is not likely that any further light can be shed on this issue through a viva voce trial process. The basic facts are not in dispute. There is before the Court the sworn evidence of the mother and of K.Y. that they have a friendship and that he is an important role model to the child.
[61] Dr. Kallia then looked to the child's developmental delay and he wrote:
…He has language and cognitive delays, gross motor delays, some behavioural difficulties and sensory issues. His alcohol related neurodevelopmental disorder has been deferred to 2013. Children like N.R. are often difficult to manage and may easily frustrate any caregiver. This situation coupled with the caregiver's use of substance to deal with stress the risk to the child is further increased (sic). Challenges posed by special needs children can cause additional frustrations for a caregiver like … A.R...that uses drugs to cope. The use of drugs may lead to further psychological and difficulties (sic) and she may become so frustrated that she may end up abusing or neglecting N.R.
[62] The assessor also wrote that:
A.R. did recognize her responsibilities as a mother and would like to see herself as an improved parent. She also understands the role of a caregiver. In addition to the above noted challenges due to her psychological difficulties, there are a number of strengths that A.R. possesses. These include her non-abusive history towards N.R., acknowledgement of her difficulties and positive attitude towards the possibility of personal change. In addition, she had demonstrated reasonable capacity to develop relationships with the helping sources of the Society and follow through with the protective service intervention plans as recommended by the CAS worker. There is no evidence that she uses N.R. to meet her own needs. She does not expect her son to make her life better by providing emotional comfort of care. …A.R. is open to receive therapy to address issues that have been posing a barrier for her progress as an individual and as parent.
[63] In answering the Society's specific questions regarding ability to parent Dr. Kallia provided a qualified response. In essence he said that her:
…capacity to parent, nurture and promote N.R's development is contingent on her compliance with recommendations and consequent recovery from the psychological difficulties she is facing.
[64] While he said the programs she attended were helpful the doctor thought that A.R. needed clinically focused interventions rather than general psycho-educational programs. Counseling needed to be tailor made to her abilities.
Summary and Analysis
[65] This P.C.A. was completed in June 2012 and by August Dr. Kallia was seeing A.R. in counseling. There were fifteen sessions in all. The Society's position is that despite the focused intervention by Dr. Kallia A.R. was still not in a position to care for the child on her own. The child had been in care since June 2011 and given that the child could not be safely returned to the mother Crown Wardship without access was the only option at this time.
[66] Dr. Kallia's report had recommended that the mother could parent if she was able to change her behaviour through focused intervention. As with any report that bears on the placement of young children the opportunity for change could not be completely open-ended. Dr. Kallia sent correspondence to A.R.'s counsel Mr. Patel on February 4, 2013. The assessor outlined the psycho-therapy he had provided and said that A.R. had attended all appointments except two. He noted her participation in addictions programs and the fact that at the time she held a full time job. He stated:
It is my understanding that she will need further assistance on a continual basis as she is still struggling with substance abuse and other psychological difficulties outlined in the P.C.A. report submitted on June 28, 2012. It should be kept in mind that parents with special needs (low cognitive functioning, Learning Disability, and ADHD-Inattentive sub-type) might take more time to achieve progress during counselling. Overall …A.R… has shown good motivation in counselling to change how she acted in the past and its impact on …N.R…. Future treatment will assist her to set up a viable relapse prevention plan and healthy coping strategies. I recommend that she continue with her recommended intervention to consolidate on gains made in the counselling so far. The prognosis for her to remain stable will depend upon her staying away from substance abuse and remain committed to counselling. At this time she requires more assistance to enhance her capability to parent …N.R…. before she can independently care for him.
[67] It is clear that Dr. Kallia was impressed with the mother's motivation to change her life and he states that she has made gains. Notwithstanding that he cannot support the mother caring for the child at this time. The time limits in the Act are such that there is no time left. The doctor is unable to be precise about how much time might be required for the mother to be in a position to parent. As a result his conclusions cannot be used to support a phased in re-integration process.
[68] Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The Court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. Jewish Child and Family Services of Toronto v. A.(R.), 2001 O.J. No. 47 (SCJ) per Lane J.
[69] While the Society workers all comment on the mother's co-operative nature and willingness to accept help the simple fact is that despite the child being in care for over two years the mother has not returned to unsupervised day access at her home much less overnight access. The mother's access was taken out of her home after the involvement of K.Y. in her life was discovered. At the time of the hearing she had supervised access with K.Y. once a week and another supervised visit on her own. There had been no real progress in the expansion of access.
[70] There is no evidence before the Court now, and there would be no evidence before the Court at a trial held this summer, of how the mother would be able to care for the child without supervision. The Court finds that for the first year that the child was in care A.R. did not follow through with the recommendations made to her by the Society. She did co-operate with the parenting capacity assessment and especially in the last few months she has tried very hard to meet the goals that have been set out for her. The P.C.A. recommendations in June 2012 effectively gave A.R. a year to gain the skills and knowledge to be able to parent. The evidence was also that it was not just a general capacity to parent that was required. A.R. with her cognitive limitations would need to be able to parent her globally developmentally delayed son. The evidence was that he presented with many challenges and that in the time prior to him coming into care A.R. had not been able to address those challenges. A.R. has quite correctly been commended for her willingness to accept help and direction. The corollary of that though is that she has been found to have both a dependent and avoidant personality and she had been unable to take steps to help herself or her son without a significant amount of direction. She sought help because she needed help.
[71] The mother placed the child in the Society's care pursuant to a Temporary Care Agreement on June 1, 2011. The T.C.A. was extended three times and expired on May 31, 2012. On January 19, 2012 the mother consented to a Parenting Capacity Assessment. That assessment began on January 26, 2012 and was completed on June 8, 2012.
[72] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent. Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J.
[73] A.R. does not have support within her immediate social network. Her mother has her own mental challenges. A.R. is very supportive of her but their co-dependant relationship has lead to A.R. not being able to make needed changes in her life. She stayed with her son in the apartment even when her abusive father was there as she was unwilling or unable to leave her mother. The state of her apartment cannot be blamed completely upon A.R. She had described her mother as a "hoarder" and the inability to clean up may be as much or more the fault of V.R. as it is that of her daughter. Outside of the Society or other agencies A.R.'s support network really comes down to her mother and K.Y. The evidence does not suggest that there will be any change to A.R.'s life in the near future.
[74] The simple reality is that there is no more time for A.R. to learn how to parent N.R. effectively. There is no real evidence in dispute. Mr. Patel quite rightly points to the fact that A.R. has tried very hard to meet the Society's expectations and she is limited by challenges that are not of her own making. It may not seem fair to A.R. that she should lose the opportunity to parent her son when she has done her best.
[75] Nevertheless the decision of this Court must be based upon the best interests of the child not the best intentions of the parent. It may be that A.R. will learn the skills to parent effectively and that she may have an opportunity to do so one day, perhaps with a child who does not have the developmental challenges of N.R.
[76] The Court's decision must be about whether there is a genuine issue for trial in the summer of 2013. The Court is satisfied that all of the relevant evidence that could be called on that issue is before the Court now. There are no major factual disputes or credibility issues.
[77] If the Society is able to establish that the inevitable result after a full trial would be a Crown Ward order then the Court must grant summary judgment for that relief. The Society has met the onus upon them and the Court's disposition is that N.R. shall be made a Crown ward.
Access — Meaningful and Beneficial?
[78] Pursuant to s. 58 of the C.F.S.A. an access order can only be made if it is in the child's best interests to make the order. There is a presumption against access when a Crown Ward order is made. Section 59(2) terminates any existing access order upon a Crown wardship order being made. Section 59(2.1) reads as follows:
(2.1) ACCESS: CROWN WARD — A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(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.
[79] It should be noted that the 2011 amendments to the C.F.S.A. which created s. 141.1.1 have changed the focus of the analysis of the second branch of the test. That section reads as follows:
s. 141.1.1 (1) ADOPTION PLANNING — Nothing in this Act prohibits a society from planning for the adoption of a Crown Ward in respect of whom there is an access order in effect under Part III (Child Protection).
(2) OPENNESS — Where a society begins planning for the adoption of a child who is a Crown ward, the society shall consider the benefits of an openness order or an openness agreement in respect of the child.
[80] The first step then in determining whether there should be access to a Crown ward is to determine whether the access is meaningful and beneficial to the child (emphasis added). The law is clear that the evidentiary onus is on the parent. A beneficial relationship is one which is advantageous. A meaningful relationship is one which is significant. It is not enough that there are some positive aspects to it: It must be significantly advantageous to the child. It speaks of an existing relationship, not the possibility of a future relationship. Even if the relationship is beneficial and meaningful there still must be some qualitative weighing of the benefits of access vs. no access. Children's Aid Society of Niagara Region v. M.J., 2004 O.J. No. 2872 (SCJ).
[81] The quality of the relationship must be the focus. The parents have to show more than just that a child has a good time during visits. (Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ)). More is required than just a display of love between parent and child. The Divisional Court has held that a person seeking access must prove that his or her relationship with the child "brings a significant positive advantage to the child". Children's Aid Society of Niagara Region v. J.C., [2007] O.J. No. 1058 (Div. Court).
[82] In this matter A.R. did consistently attend her access visits and it appeared that she only cancelled them when they conflicted with her work schedule. With some exceptions the access visits were said by the Society workers to go well. The assessor Dr. Kallia noted the following in his section entitled Home Visit Observation (page 9 of his report):
…N.R… was very happy to see his grandmother at the entrance of the apartment building. …N.R… then became upset when he did not find his mother around and inquired "where is mommy? N.R. was delighted when he saw …A.R… who later came at the entrance. N.R. was comfortably interacting with …A.R…. He made and maintained eye contact with his mother and seemed very interested in A.R.
[83] In answering the Society's question "What is the nature of the child's relationship to the mother and what would be the possible effect on the child of continuing or severing this relationship?" Dr. Kallia had this to say:
Based upon my observation N.R. has a secure attachment to his mother. N.R.…perceives his mother as a source of protection and comfort and not vice versa. Severing the relationship would likely increase N.R.'s emotional and psychological difficulties. He is vulnerable to suffer from separation anxiety due to severance of his relationship with his mother…
[84] The Court finds that the relationship here is meaningful and beneficial to the child. N.R. is five years old. He lived with his mother until he was three and he has seen her in access visits approximately twice a week for virtually every week since. The Court has accepted Dr. Kallia's evidence as the only expert evidence before the Court as to the mother's ability to successfully parent her son at this time and it accepts his evidence as the only expert evidence that addresses the impact upon the child if the relationship such as it is was severed. Dr. Kallia's conclusions were made at a time when the mother had supervised access only and at a time when he contemplated that it would be some time, if ever, before the mother could assume a primary parenting role. His comments regarding the attachment were made in the context of the existing access relationship. He was not just talking about positive visits or the possibilities of a future relationship he was addressing the strong relationship that then existed. There was no evidence before the Court that suggested that the access that existed impaired the child's ability to bond with his long term foster parents. To the contrary there is evidence set out below that shows that notwithstanding frequent access the child is very secure in his long term foster home.
[85] The second branch of the test, which is whether the access would impair the child's chances of adoption, must be considered differently now than prior to the 2011 amendments. The inquiry no longer ends if the child is found adoptable since a Crown ward with access can now be placed for adoption. The additional question that will now be raised is whether the possibility of an openness order will impair the child's opportunities for adoption. Catholic Children's Aid Society of Hamilton v. A. (M), 2012 O.J. No. 223.
[86] An affidavit from the adoption worker Dawn Tracz was filed. In paragraph 14 of her affidavit she stated:
When looking at contact between a birth family and a child placed for adoption, one of the key factors to be determined is whether or not the type of contact will undermine the adoptive parent-child relationship. Birth parents need to understand and accept that adoptive parents are the child's psychological and emotional parent…Should N.R. become a crown ward the Society would have to assess whether N.R's birth mother…A.R…. could respect the adoptive family relationship.
[87] The ability of A.R. to do that may be inferred to some degree from the next paragraph:
When placing a child for adoption, one of the key factors that must be addressed is assessing a child's attachment relationships. N.R. is showing clear indicators through his behaviours and interactions with his foster parents that he can form a healthy relationship.
[88] Earlier in her affidavit Ms. Tracz stated that the foster family would not be the adoptive family. However it appears that the frequent access that A.R. had to her son did not impair his ability to form an attachment to a long term foster placement. All of the evidence points to the fact that A.R. had some insight into the help that she needed and the parenting that her son would require. There was no evidence that she resented the Society's involvement or attempted to undermine the foster placement. The fact that a healthy relationship developed with the foster parents must in some measure be credited to A.R.'s acceptance of their important role in her son's life.
[89] Section 141.1.1 allows for an access order to be made but the 2011 amendments created a process by which that access order will be terminated upon an adoption subject to the right of the party with the access order to apply for an openness order. It is unnecessary in these reasons to set out that process. The important point to note is that even if a Crown wardship order provides for access that access may be lost once a notice of intent to place for adoption is made. The onus is once again on the party with access to satisfy the criteria set out in the legislation in order to continue access.
[90] The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother's care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. Access once per month will allow the mother and child to maintain their connection and will hopefully allow the child to have some security in knowing that his biological mother is still a part, albeit a much smaller part, of his life. This access will be for at least two hours every month and it shall be supervised with the time and place of the access to be in the Society's discretion. Only A.R. shall attend the access.
Order
[91] There shall be an order as follows:
The child N.R. born […], 2008 shall be a ward of the Crown for the purpose of adoption.
The said child's mother A.R. shall have supervised access once per month for a minimum of two hours with the time and place of the access to be in the Society's discretion.
Released: June 6, 2013
Justice P.J. Clay
