WARNING
The court hearing this matter directs that the following notice should 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.
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
Court File Number: C70002/14
Ontario Court of Justice
Court Office Address: 47 Sheppard Ave. E, Toronto, Ontario
Date: July 15, 2014
Endorsement by Justice S.B. Sherr
Parties and Counsel
Applicant: Children's Aid Society of Toronto
- Counsel: Nicole Horwitz (Present)
Respondent (Mother): J-Y. W.
- Counsel: Nancy Thompson (Present)
Respondent (Father): A.S.
- Counsel: Julie Ralhan (Present)
Decision
Motions for Extension of Timelines
[1] The respondent parents have brought motions pursuant to subrule 33(1) of the Family Law Rules (the rules) to extend the timelines to permit the filing of Answers/Plans of Care regarding the child M.S., born […] 6, 2012.
[2] The parents have filed Answers/Plans of Care regarding the child E.S., born on […], 2014. This is a separate protection application. The society is seeking a disposition that E.S. be made a society ward for 6 months. Discussions were held during these motions about finding E.S. in need of protection.
[3] The society opposes these motions, seeks to note the parents in default and proceed on an uncontested basis. The society seeks orders finding M.S. in need of protection pursuant to clauses 37(2)(b) and (g) of the Child and Family Services Act (CFSA) and a disposition that he be made a crown ward, with no order as to access, for the purpose of adoption.
[4] The society relied on three worker affidavits. The father relied on his affidavit. The mother relied on her two affidavits. The motions were argued today.
[5] The material facts in this case are not really in dispute. The issue is what to do about these facts. To their credit, in submissions, the parents stated that they would not oppose orders being made finding both M.S. and E.S. in need of protection.
Legal Framework
[6] Rule 10 of the rules requires that an Answer/Plan of Care is to be filed within 30 days of a party being served with the protection application. As a result of the parents' failure to file an Answer/Plan of Care regarding M.S., the provisions of sub-rule 10(5) of the rules apply — they are not entitled to participate further in the case in any way, not entitled to notice of steps in the case and the court is permitted to proceed with the case in their absence.
[7] Subrule 33(1) of the rules sets out a timetable for child protection cases and confirms the 30-day filing requirement for the Answer/Plan of Care.
[8] Sub-rule 33(3) of the rules states:
(3) Court may lengthen times only in best interests of child.— The court may lengthen a time shown in the timetable only if the best interests of the child require it.
[9] Subsection 37(3) of the Act sets out factors to be considered in determining the best interests of a child and I have considered those factors on this motion.
[10] I reviewed the case law on this legal issue in paragraphs 23-31 of my decision in Jewish Family and Child Service of Greater Toronto v. M.J.P., 2012 ONCJ 66 and rely on this. In brief, the case law sets out the following considerations in determining whether to grant an extension order to late file an Answer/Plan of Care:
a) The amount of time that the child has been in care.
b) The failure to meet prior extension orders.
c) The reason for the failure to meet the timelines.
d) For a hearing to be fair, a parent should have a reasonable opportunity to present their case effectively.
e) What will be the extent of the delay if the extension order is granted?
f) Rule 2 does not expand the test – the best interests of the child must require the extension order.
g) Most importantly, an extension order should not be granted if there is no air of reality to the parents' plan.
[11] In M.J.P. I added the following observations at paragraphs 33-36:
[33] In child protection cases, the court is often dealing with the most vulnerable people in our community. Many of the parents that the court sees have significant challenges in their lives. The involvement of the society is often a tremendous blow to their self-esteem. It is humiliating to be accused in their community of being either an abusive parent or so inadequate a parent that their children have to be removed from their care. Parents in these situations have to deal with difficult emotions such as anger and shame when they are often very ill-equipped to deal with them. They often become paralyzed in taking the positive steps necessary to achieve the return of their children and can be unfocused and disorganized. Quite often they do not proceed with a case or make progress in addressing the risk concerns in the linear fashion that professionals would prefer. This is particularly common in the earlier stages of child protection cases.
[34] I agree with the comments of Justice Heather L. Katarynych in paragraph [20] of her decision in Catholic Children's Aid Society of Toronto v. Tenisha S., where she wrote:
[20] I also kept in mind the approach of the Newfoundland Court of Appeal in Lundrigan Group Ltd. v. Pilgrim (1989), 75 Nfld. & P.E.I.R. 217 — that rules governing practice and procedure in the courts are guidelines for action, to be used in the furtherance of procedural justice. They are not inflexible "iron rails".
[35] It is particularly important in child protection matters that courts be flexible when dealing with timelines. The decisions made in these cases are arguably the most important decisions that our courts make. Courts need to be sensitive to the dynamics and challenges of the families that come before them. While subrule 33(3) sets out that the onus is on the parent seeking the extension order to show that the child's best interests require the extension, in the overwhelming majority of cases, it will be in the child's best interests to have the parents participate in the case and have their plans fully assessed.
[36] The threshold for establishing that it is in a child's best interests to grant an extension order should be very low. If the parent can establish that there is, as Justice Brownstone wrote, "an air of reality to the plan", or another plan that they are supporting, then the parent will usually have established that it is in the child's best interests to grant the extension order.
[12] In essence, I found that the extension test is fundamentally similar to the test for summary judgment. If there is a triable issue, an extension order should usually be granted. In M.J.P. I found no triable issue and denied the extension order.
Application to the Facts
[13] The parents did not file Answers/Plans of Care to the original protection application that was served upon them on January 7, 2014 regarding M.S. I accept the society's evidence as to when the parents were served with the amended protection application (April 10, 2014 for the father, and April 15, 2014 for the mother). The 30 day time limit for the parents to file their Answers/Plans of Care has passed. They provided poor excuses for their delay. They had obtained legal aid certificates in February of 2014. Their failure to file Answers/Plans of Care in a timely manner is a symptom of the difficulties they have been experiencing in their lives.
[14] The father also argued that he was not properly served on April 10, 2014, as the documents were not "left" with him pursuant to clause 6(3)(a) of the rules. I don't accept that argument. The worker gave the father the documents in prison. The documents were "left" with him at that moment, within the meaning of the clause. The father asked the worker to take the documents back. He was concerned about safety and confidentiality. He told the worker he would pick up the documents again when he was to be released the following day. He then disappeared for a month.
[15] This is the first extension order requested by the parents with respect to the amended protection application. They were given one filing extension, that was not met, with respect to the protection application.
[16] If the extension order is granted, the case regarding M.S. would likely be heard in the November trial sittings.
[17] This case is somewhat distinguishable from M.J.P. In M.J.P. the mother had taken absolutely no steps to address the risk concerns. She showed no insight into the child's needs and how her behaviour had affected the child.
[18] In this case the society acknowledges that the parents are very good with the child at visits. They are affectionate, interact and play well with him and keep him safe. They are attentive to his needs at visits. The parents have been consistent with their attendance at visits since they began again on May 12, 2014. There was little concern about the parents' ability to meet the child's instrumental needs when he was living with them. The issues primarily related to the child's safety.
[19] The society acknowledges that the parents have had some past parenting success – particularly when the child was placed with the father, with the mother as a support in the home.
[20] The parents are generally open with and cooperative with the society.
[21] The parents have taken significant steps in the past two months to address the risk concerns. They claim to be drug-free for that period and have had clean urine screens. The services that the parents have arranged are set out in detail in the father's affidavit. The mother provided positive letters from the Jean Tweed and Breakaway programs. They have arranged and started couples counseling. They are both seeing psychiatrists and appear to be compliant with treatment recommendations.
[22] The parents appear to be aware of and don't deny the parenting concerns.
[23] The parents now have another child, born on […], 2014 and there is an argument to be made that it is in the children's best interests to grow up together with the parents.
[24] Another difference between this case and M.J.P. is that in M.J.P. the society was only seeking a section 57.1 custody order for the child under the CFSA. The mother in M.J.P. would have the opportunity to continue a relationship with the child. Here, the society is looking to permanently sever the parents' relationship with M.S.. This dictates a need for more caution.
[25] As Justice Pazaratz in paragraph 43 of Children's Aid Society of Niagara Region v. S.C. and B.M. "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant".
[26] Based on the factual findings that will be set out below, there is no genuine issue for trial with respect to the issue of finding the children in need of protection. Further, the parents likely face challenges with respect to the issue of disposition. However, I cannot say with certainty (at this time) that there is no realistic possibility of an outcome other than that as sought by the applicant regarding M.S.. Certainly, he cannot be returned to the parents today. However, there is the possibility that a court would grant an extension order for society wardship pursuant to subsection 70(4) of the CFSA based on these facts.
[27] The parents will be given the opportunity to participate in M.S.'s case, but on a very carefully prescribed basis. The recent Supreme Court of Canada decision of Hryniak v. Mauldin, 2014 SCC 7, sets out that courts should be creative in structuring a process that is proportional and just. This reasoning is very consistent with the directions set out in Rule 2 of the Family Law Rules about how to deal with cases justly. I am very mindful of the timelines and that delaying making a final decision to give the parents another chance to parent may be to M.S.'s detriment. Given that the material facts of this case are not in dispute, there is no reason why M.S.'s future should be subject to lengthy litigation. The facts and issues not in dispute will be clearly set out in this decision and, subject to the direction of any motions or trial judge, are not to be re-litigated. Any hearing is to be on focused issues and any additional evidence provided should be contained to what has happened since May of 2014.
[28] The parents will be permitted to file Answers/Plans of Care by July 30, 2014, on the issues of disposition and access only.
[29] The amended protection application regarding M.S. will be placed on the Assignment Court trial list for October 29, 2014 at 2 p.m.
[30] If the society obtains evidence that the parents are using drugs again (or that either parent has had another significant mental health episode) they may move by either Form 14B, or in open court, for an earlier summary judgment motion date.
Findings of Fact and Statutory Findings
[31] The statutory findings for M.S. are made as set out in the amended protection application and for E.S. as set out in the protection application.
[32] M.S. is found to be a child in need of protection pursuant to clauses 37(2)(b) and (g) of the CFSA and E.S. is found to be a child in need of protection pursuant to clause 37(2)(b) of the CFSA based on the following findings of fact:
The mother has a long history of mental health challenges. She has been diagnosed with Disassociative identity disorder, bipolar disorder and general anxiety disorder. As a teenager she engaged in self-harming behaviour.
The mother was also diagnosed with severe post-partum depression after M.S. was born.
The mother and father have a long history of substance abuse.
Both parents have reported difficult childhoods to the society. The mother reports that she was a victim of abuse.
The father has two other children, one who was made a crown ward in British Columbia. He has no contact with the other child.
The mother's mental illness compromised her parenting of M.S.. She was overwhelmed about caring for him. At one point in September of 2012 she expressed that she wanted the child adopted. At times, she felt the child did not love her. In September of 2012 she reported feeling paranoid and hearing voices. She couldn't sleep. The father reported that the mother was talking about strangling M.S. and that she didn't want to hurt the child. The mother was hospitalized in September of 2012 as a result of these concerns.
The parents were engaged in domestic conflict at this time. There was one incident where the mother threw a glass at the father, just missing him and M.S. and hitting the wall. The mother was charged with assault. The charges were eventually stayed in February of 2014.
The father reported feeling overwhelmed about caring for both the needs of M.S. and the mother. He was arrested in August of 2012 for a fail to comply. He reported feeling anxious, tired and he couldn't sleep. He reported paranoid thoughts. There was an incident where he disappeared and was wandering the streets. He told the society that "he was in a bad spot in his life".
The parents agreed to a temporary care agreement where M.S. was placed in society care from October 3, 2012 until December 17, 2012, when he was returned to the parents with the condition that the mother not be left alone with M.S.
The mother's mental health improved a bit from October of 2012 until February of 2013. The mother had engaged with services and had completed a Modified Behaviour Program. She was engaged in trauma counseling. However, in February of 2013 she began to struggle again. She had difficulties getting up in the morning. She began engaging in more conflict with the father in front of the child. She would sometimes forget to take her medication. She was anxious around the child. The mother began using drugs during this period. She tested positive for use of amphetamines. The father expressed difficulty in coping with everyone's needs.
The parents agreed to another temporary care agreement on July 4, 2013. M.S. has been in the society's care since that time.
In September of 2013 the crown attorney on the mother's criminal case reported to the society that the mother had an outburst at criminal court that made her concerned about the mother's mental health.
Supervised access visits were set up for the parents at the society's office. The parents had difficulty coming to the visits on time. Many visits were missed without a reasonable excuse.
The parents were using drugs again after M.S. went into care, even though they were involved with the Methadone program. The mother was using heroin and taking morphine pills. The father was also using heroin.
The parents missed multiple appointments with service providers, including appointments to obtain methadone treatment. The mother missed appointments with her psychiatrist.
The methadone clinic advised the society that the mother's failure to take methadone was placing her pregnancy at risk.
The parents admitted using heroin up until April 28, 2014. The mother used drugs, including heroin, while pregnant with E.S.
The parents were engaging in criminal behaviour during this time. The mother shoplifted from a pharmacy. The father was charged with theft on March 18, 2014. He remained in jail until April 11, 2014. When he was released, he stole a bag from the mother's doctor's office.
Access for the parents was originally scheduled for 3 times per week for 4 hours. Due to the parents' poor attendance record it was reduced to 1 time per week for 2 hours.
The parents did not see M.S. from December 18, 2013 until January 13, 2014. The mother then saw the child until March 5, 2014.
The mother went into a rehabilitation clinic and did not see M.S. again until March 12, 2014.
The father did not see M.S. from March 5, 2014 until he was released from jail.
The father was out of contact with the society for about a month after his release from jail. He claimed to be "distracted with everything".
The father reported a decline in his mental health when he went to jail. He reported that he was hearing voices and seeing things. He reported suicidal thoughts. He was referred to CAMH.
The mother prematurely left the drug rehabilitation clinic on April 26, 2014. She said that she would return, but never did.
The parents asked to resume access on May 12, 2014 and have been more consistent with visits since then.
The parents just started to meaningfully address the risk concerns in early May of 2014.
The parents have had difficulty maintaining stable housing, moving several times in M.S.'s life.
The risk concerns to justify the findings in need of protection are:
a) Both parents have significant mental health issues which compromised their parenting of M.S. The mental health concerns place both children at risk of harm as defined in clause 37(2)(b) of the CFSA. The parents have had difficulty meeting their own needs, let alone the needs of young and vulnerable children. The parents are fragile, both mentally and emotionally.
b) Both parents have had chronic substance abuse issues that have compromised their parenting of M.S. The mother used drugs while pregnant, placing E.S. at risk of physical harm. The drug use exacerbates the mental health risk concerns. The substance abuse concerns place both children at risk of harm as defined in clause 37(2)(b) of the CFSA.
c) The parties have been overwhelmed by the responsibility of parenting M.S. which has resulted in him coming into the care of the society twice.
d) The mother expressed ideation to the father of harming M.S. in September of 2012. The mother denies that she meant this.
e) The parents have engaged in significant domestic conflict in front of M.S., placing him at risk of emotional harm as defined in clause 37(2)(g) of the CFSA.
f) From the time he came into the care of the society on July 3, 2013 until the middle of May of 2014 the parents neglected M.S. (likely due to their mental health and drug issues) They missed many visits or came late to visits. This demonstrated a lack of understanding of M.S.'s developmental needs – his need for consistent parenting by his parents.
g) The parents have led an unstable lifestyle, frequently moving in the shelter system and engaging in criminal activity. This compromised M.S.'s need for consistency, safety and security.
h) The parents have had difficulty maintaining gains achieved while working with service providers. They have claimed to be drug-free before while working with service providers, only to relapse.
Further Findings and Directions
[33] The court further finds that the society has met their mandate to provide the parents and M.S. with services pursuant to subsection 57(2) of the Act. This is not to be in issue at any future hearing.
[34] There are no other family or community plans. The society has complied with their obligations pursuant to subsection 57(4) of the Act with respect to M.S. This is not to be in issue at any future hearing (unless a fresh plan surfaces).
[35] Regarding M.S., the issue for any future hearing (whether at trial or at a summary judgment motion) shall be whether the parents have done enough to address the risk concerns set out above to show that it is in M.S.'s best interests to be returned to their care pursuant to terms of society supervision. The onus of proof remains on the society.
[36] Any further evidence provided at a summary judgment motion or a dispositional hearing for either child, subject to the direction of the trial or motions judge, should be restricted to events that have taken place after May 12, 2014, when the parents' access resumed, together with any evidence about the needs of the children.
[37] The findings of fact set out above should form part of the record at any future hearing for both children.
[38] Given the narrowing of the issues and facts it is expected that if a trial regarding M.S. is necessary, it should be completed in no more than 3 days.
[39] The cases regarding both M.S. and E.S. will be adjourned for a case conference to discuss next steps.
Justice S.B. Sherr
