WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87(8) Prohibition re 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.
87(9) Prohibition re identifying person charged.
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.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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
Children's Aid Society of the Regional Municipality of Waterloo v. S.H., 2018 ONCJ 955
Date: 2018-12-04
Court File No.: Kitchener 699/16
Between
The CHILDREN'S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO
Applicant,
AND
S.H. AND C.B.
Respondents
Before: Justice B. C. Oldham
Heard on: November 1, 2018
Reasons for Judgment released on: December 4, 2018
Counsel
- Mr. Boich — counsel for the applicant society
- Mr. Wintar — counsel for the respondent (S.H.)
- Mr. Bromwell — counsel for the Office of the Children's Lawyer, legal representative for the children
OLDHAM J.:
[1] Introduction
This is a summary judgment motion (the "SJM") brought by the Children's Aid Society of the Regional Municipality of Waterloo (the "Society") in respect of a protection application that was commenced on October 4, 2016.
[2] The Parties and Children
S.H is the biological Mother. She was born […], 1986. C.B. is the biological Father. C.B. was born […], 1978 and passed away on […], 2016. The children who are the subject of these proceedings are H.B., born […], 2005, and Z.B. born […], 2009.
Background Facts
[3] Initial Society Involvement
The Society first became involved in this family in November 2013 when Waterloo Regional Police Services ("WRPS") responded to a report of domestic violence between the parties. C.B. was charged with assault. The parties had recently separated, but were living in the same home at the time.
[4] Mother's Hospitalization and Initial Placement
S.H. was hospitalized following an attempted suicide on December 20, 2013. S.H. claims that the suicide was precipitated by years of parenting on her own while C.B. worked out west. She also claims that he was physically abusive to her in the years leading up to her suicide attempt. Following S.H.'s hospitalization, the children were temporarily placed with the maternal grandmother until February 1, 2014 when they were placed with C.B. C.B. engaged the children in counselling and worked with the maternal grandmother. The Society closed its file.
[5] Incident in July 2014
The Society's next involvement was in July 2014 when WRPS reported an incident between C.B. and S.H. C.B. called WRPS alleging that S.H. arrived at the home demanding to take the children. He alleges that she physically assaulted him. S.H. denies the allegations. H.B. verified that she was sleeping when her mother came into the home and woke her up. She also describes an incident between her parents. S.H. disputes that the information provided by H.B. is accurate and suggests that the distortion comes from her age and the manner in which she was questioned.
[6] Voluntary Services Period
From August 2014 until April 2015, C.B worked voluntarily with the Society. During this period of time, he was struggling as a single parent. The children have significant behavioural issues making them unmanageable at times. C.B. obtained services through the Society and was supported by the school.
[7] Assault Incident and Removal from Father's Care
On May 4, 2015, the school reported that C.B. physically dragged H.B. to school and that her lip was bleeding when she arrived. C.B. was charged with assault. The children were removed from his care. S.H. had relocated to Trenton in and around this time and was not available to care for the children.
[8] Temporary Care Agreement
The children were initially placed in foster care pursuant to a six-month Temporary Care Agreement (the "TCA"). The TCA was terminated on June 17, 2015 by C.B. when the children were placed with the paternal grandparents.
[9] Father's Sentencing and Return to His Care
C.B. pled guilty and was sentenced on September 28, 2015 with no restrictions on his contact with the children. The children were returned to his care in October 2015 after he had completed extensive programming.
[10] Custody Application and OCL Appointment
In April 2016, C.B. commenced an application under the Children's Law Reform Act ("CLRA") and obtained an interim custody order. S.H.'s access was to be supervised by a family member. The OCL was appointed for the children. S.H.'s access during this period was sporadic.
[11] Escalating Behavioural Issues
Throughout 2016, the children's behavioural issues continued to escalate. C.B. was having difficulty getting them to school on time and the school was reporting that H.B. was anxious and having accidents (urinating) in class. Z.B. was suspended from school for periods for aggressive behaviour toward teachers and students.
[12] Assessment Recommendation and Eviction
The Society recommended that H.B. be assessed. C.B. did not follow through with this recommendation. C.B. continued to have difficulties with the children's behaviours and he was ultimately evicted from his home as a result of excessive noise (related reports of C.B. and the children yelling at each other). C.B. was supervising S.H.'s access at this time. The OCL reported that the children were likely exposed to the conflict, noting that both parents were responsible.
[13] Apprehension and Supervision Order
Given the escalating behaviours of the children, the failure of C.B. to follow through with the assessment and the concerns raised by the OCL, the Society apprehended the children and placed them with C.B. under terms of supervision.
[14] Temporary Care Hearing
A temporary care hearing was held on November 10, 2016 and an Order was made by Justice Rogers on November 17, 2016 confirming the placement of the children in the Father's care subject to terms of supervision.
[15] Father's Death
C.B. passed away suddenly on December 12th, 2016.
[16] Placement with Paternal Grandparents
By order of Justice Hardman dated December 16th, 2016, the children were placed with the paternal grandparents and they have remained in that home since. S.H. has access to the children at the discretion of the Society.
[17] Factual Background Dispute
S.H. has requested that the above factual background be redacted from the Society's affidavit on the basis that the focus of the SJM is to be on the incidents following C.B.'s death. While the focus of the SJM is on the child protection issues giving rise to the Society's involvement and an assessment of the well-being and best interests of the children currently, the background is also important. S.H. has provided a response to the history provided in the Society's affidavits and there is no significant dispute in terms of the material facts.
Position of the Parties
[18] Society's Position
The Society amended its protection application on March 14, 2017, from a supervision order with C.B. to a 12-month supervision order placing the children with the paternal grandparents. At the SJM, the Society requested a custody order in favor of the paternal grandparents pursuant to section 102 of the Child, Youth and Family Services Act, 2017 SO 2017, c 14, Sch. 1 (the "CYFSA"). It is the Society's position that there is no issue requiring a trial in respect of the statutory findings, the findings in need of protection and the disposition sought.
[19] Access Position
With respect to access, the SJM seeks an order granting the paternal grandparents with discretion over access between the children and S.H. In submissions, the Society agreed with counsel for the Mother that a specific access order would be in the children's best interests.
[20] Mother's Position
It is S.H.'s position that this matter cannot be dealt with on a summary basis. It is her position that there is an issue which requires a trial; specifically, whether there is a protection concern preventing the children from returning to her care. S.H. seeks to have the children returned to her care and the protection application withdrawn, or in the alternative returned to her care pursuant to a voluntary services agreement, or in the further alternative, a supervision order. S.H. has been caring for K.C. who was born […], 2017 in her home with A.C. A.C. is K.C.'s biological father. There is no ongoing Society involvement with S.H., A.C. and K.C.
[21] Mother's Evidence of Capacity
It is S.H.'s position that she has demonstrated the children can be placed in her care. She has addressed any mental health issues and provided a safe, stable home for K.C. for over a year. Access between S.H. and the children has expanded and S.H. currently sees the children for one overnight each weekend, either Friday to Saturday or Saturday to Sunday, and Wednesdays from 5 p.m. to 7:30 p.m. If the children are placed with the paternal grandparents, it is S.H.'s position that the access should be specified and not left to the discretion of the grandparents.
[22] OCL's Position
It is the OCL's position that the children should remain with the paternal grandparents pursuant to a custody order. While both children were clear that they did not want to choose between their mother and their paternal grandparents, it was the OCL's position that they are doing well in the paternal grandparents' home and that it is in their best interest that they remain as it is a stable home. The children were clearly impacted by the ongoing involvement of the Society, social workers and even the OCL. On their behalf, the OCL urged the court to bring an end to the litigation and to provide them with permanency.
Summary Judgment Motions
[23] Rule 16 of the Family Law Rules
This summary judgment motion is being made pursuant to Rule 16 of the Family Law Rules which provides:
RULE 16: SUMMARY JUDGMENT
16.(1) When Available — After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1)
16.(2) Available In Any Case Except Divorce — A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).
16.(4) Evidence Required — The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
16.(4.1) Evidence Of Responding Party — In response to the affidavit or other evidence served by the 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.
16.(5) Evidence Not From Personal Knowledge — If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
16.(6) No Genuine 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.
16.(6.1) Powers — 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, unless it is 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.
16.(6.2) Oral Evidence (Mini-Trial) — The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
16.(9) Order Giving Directions — If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2):
(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);
(b) give directions; and
(c) impose conditions (for example, require a party to pay money into court as security or limit a party's pretrial disclosure).
[24] Application of Hryniak Framework
Justice Sherr in A.E.A. v. F.A.H., 2015 ONCJ 339, refers to the Supreme Court of Canada decision in the case of Hryniak v. Mauldin, 2014 SCC 7, to describe the process to be followed in applying the expanded summary judgment rule in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure. Specifically he states:
[7] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.
[8] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).
[9] If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).
[10] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).
[11] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.
[12] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).
[25] Child Protection Considerations
In child protection matters, I am to consider not only the nature of the evidence, the intrusiveness of the order and the mandatory time frames, but also the statutory criteria involved and in particular, how material are the facts in dispute to the issue before the court (See: GAS Algoma v. E.W.).
[26] Caution in Child Protection Cases
Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. (See: C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357.)
[27] Divisional Court Guidance on Summary Judgment
In Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783 (Divisional Court), the Divisional Court had the following to say about the steps to follow in a summary judgment case:
Neither party has the onus of establishing who will succeed at trial. That is the wrong question. Pre-Hryniak case law where courts examined whether a party has any reasonable chance of success no longer applies (para. 45).
The key question is whether it is in the interest of justice for the court to resolve the case summarily? To do so, the court is required to consider whether the process allows it to make the necessary findings of fact based on the facts pleaded, to apply the law to the facts, and that it is a proportionate, more expeditious, and less expensive means to achieve a just result. Stated alternatively, does the process allow the court to fairly and justly adjudicate the dispute and is it a timely, affordable, and proportionate procedure (para. 46).
The summary judgment process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial (para. 43).
[28] Burden of Proof
The burden of proof is on the party who moves for summary judgment. (See: Sanzone v. Schechter, 2016 ONCA 566 at para. 30.)
Law and Analysis
[29] Four Stages of a Protection Application
There are four stages to a protection application:
a) The court must determine whether the child who is the subject of the proceeding is in need of protection within the meaning of section 74(2) of the CYFSA.
b) If a protection finding is made, the court must determine if further intervention through a court order is necessary to protect the child in the future.
c) The court must then make a determination regarding the placement of the child that is in the child's best interests.
d) Finally, the court must decide the issue of access to the child.
Findings in Need of Protection
[30] Statutory Basis for Protection Finding
The Society has the onus on a balance of probabilities to establish that the children are at risk of harm. In this case, the Society seeks a finding pursuant to s. 74(2)(b)(i) and (ii) and 74(2)(h) of the CYFSA. These subsections provide the following:
Child in need of protection
(2) A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
[31] Timing of Risk Assessment
The court must assess whether there was a risk of harm at the time that the children were apprehended. Consistent with the purposes of the legislation, a more flexible approach may be taken to admit evidence related to the finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. (See: Children's Aid Society of Hamilton - Wentworth v. K.R. and C.W., [2001] O.J. No. 5754 (Sup. Ct.); Children's Aid Society of Brant v. J.A.T. and M.M.S., 2005 ONCJ 302)
[32] Circumstances at Time of Apprehension
The protection application was commenced on October 4, 2016. At that time, C.B. was struggling with the care of the children. He had been evicted from his home and was not following through with the assessment for H.B. The children were exhibiting significant behavioural issues and had missed or been late for school 18 of 29 days. H.B. was uncooperative with going to school and would lock herself in her room to avoid having to go.
[33] Sibling Conflict and Parental Management
The OCL report described an incident where Z.B. struck H.B. with objects, threw hard objects at her. The OCL noted that the interaction between the siblings and C.B.'s management of the children was very concerning.
[34] Trauma Experienced by Children
The children had also experienced significant trauma by the time that the Society commenced its application which included a high conflict separation; mental health issues which rendered their mother unavailable to visit with them or care for them for periods of time; and an assault on H.B. by her father.
[35] Undisputed Evidence of Risk
S.H. did not present any evidence that would dispute the facts supporting a finding of need of protection as claimed by the Society. There is no question based on the evidence before me that these children were at risk of physical and emotional harm which was demonstrated through the children's behaviours.
[36] Finding in Need of Protection
There is no issue requiring a trial in respect of the finding in need of protection and accordingly, there will be an order that the children were in need of protection pursuant to subsections 74(2)(b)(i) and (ii) and 74(2)(h) of the CYFSA.
Is There a Need for an Ongoing Order
[37] Post-Death Trauma and Therapy
Both children engaged in counselling following the death of their father. The notes from Gabriela Ellas, the Therapist at Carizons, details the testing which confirms trauma related symptoms in both children. The observations of the paternal grandmother, the Clinician with the OCL and Sherry Rehkopf confirm extreme behaviour including outbursts, physical aggression, rocking, bed wetting and withdrawal from communication.
[38] Ongoing Behavioural Challenges
There was an improvement in their behaviours following the counselling, but the extreme behaviour continues to present challenges to the paternal grandparents from time to time. S.H. has not had to deal with these issues and denies the behaviours. She acknowledges that Z.B. bangs his head and rolls it from side to side as a method of self-calming that has nothing to do with being stressed or worried or under pressure. She denies that H.B. avoids visiting with her and claims that her decision to stay home is simply because she wants to visit with her friends.
[39] Behavioural Escalation During Mother's Access
While the children have been exercising increased access with S.H., they have not been in their mother's full-time care since December 2013. Her access has been supervised until the past year. When the access first expanded to S.H.'s home, both the school and the grandparents reported a noticeable return to the negative behaviours, including wetting and angry outbursts. The children have reported concerns about being exposed to conflict in S.H.'s home, being yelled at by S.H. and A.C.; and in Z.B.'s case being blamed for an injury that occurred to K.C. H.B. has made the decision to stay home from access visits from time to time to avoid the pressure and/or conflict.
[40] Mother's Denial of Allegations
S.H. denies these allegations. She denies that the children are pressured to support her and the return to her home, or that she discusses adult issues in her home. However, the observable escalation in the children's behaviour at home and at school support a finding that the children continue to be emotionally fragile.
[41] Mother's Lack of Insight
While there is some dispute in terms of the cause and manifestation of the behavioural issues, there is no dispute in respect of the material issue which is that the children continue to struggle emotionally and need supports to manage at school. S.H. has spoken with the principal at [XX] School which is where she would enrol the children to ensure that programs, counsellors and IEPs that have been provided to H.B. and Z.B. at [XY] School would be available. She acknowledges that the children suffered a traumatic event, being the death of their father. They both were present when he collapsed and had to call for assistance. S.H. does not, however, appear to accept that the children suffered any emotional harm as a result of her actions. That lack of insight and the denial of the extreme behaviours raise concerns about her ability to manage the emotional needs of the children.
[42] Ongoing Need for Society Intervention
The children have suffered significant trauma. The expanded powers under Rule 16.1 of the Family Law Rules allow the court in a summary judgment motion the power to weigh the evidence, evaluate the credibility of a deponent and to draw reasonable inferences from the evidence. It is reasonable to draw an inference from the credible reports of the social workers and therapists involved with these children that there is an ongoing need for Society intervention, if the children are to be returned to the care of S.H.
What is the Least Intrusive Option
[43] Disposition Options Under CYFSA
The court's disposition options are set out in subs. 101(1) and 102 of the CYFSA.
101(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:
Supervision order
1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.
Interim society care
2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.
Extended society care
3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.
Consecutive orders of interim society care and supervision
4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.
Court to inquire
(2) In determining which order to make under subsection (1) or section 102, the court shall ask the parties what efforts the society or another person or entity has made to assist the child before intervention under this Part.
Less disruptive alternatives preferred
(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.
Community placement to be considered
(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of the child immediately before intervention under this Part, the court shall, before making an order under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
Terms and conditions of supervision order
(7) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,
(a) reasonable terms and conditions relating to the child's care and supervision;
(b) reasonable terms and conditions on,
(i) the child's parent,
(ii) the person who will have care and custody of the child under the order,
(iii) the child, and
(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.
Order for child to remain or return to person who had charge before intervention
(8) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.
No order where child not subject to parental control
(9) Where the court finds that a child who was not subject to parental control immediately before intervention under this Part by virtue of having withdrawn from parental control or who withdraws from parental control after intervention under this Part is in need of protection, but is not satisfied that a court order is necessary to protect the child in the future, the court shall make no order in respect of the child.
Custody order
102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
Deemed to be order under s. 28 Children's Law Reform Act
(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children's Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act.
[44] Best Interests of the Child
The court pursuant to sub-s. 101(1) must look at the best interests of the children. The best interests of the children as set out in sub-s. 74(3) of the CYFSA as follows:
74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Metis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Metis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and the degree of risk, if any, that justified the finding that the child is in need of protection.
[45] Counsel's Argument on Trial Necessity
Counsel for S.H. submits that there is an issue requiring a trial and that the court should not use the summary judgment procedures to shortcut a trial. It is his position that the wishes of the children are not clear and that the court cannot properly assess the plan by the paternal grandparents because they have not filed an affidavit. Counsel submits that the court is being asked to compare options akin to evidence that would be heard at a custody access trial, but to deal with it on a summary judgment basis.
[46] Adequacy of Protection if Returned to Mother
Given the length of time that the children have been in the care of the paternal grandmother and out of S.H.'s care, and given the significant trauma that the children have experienced, I am satisfied that they cannot be adequately protected if returned to the care of S.H., even if subject to terms of supervision.
[47] Custody Order in Best Interests
The children were originally apprehended from C.B., not S.H. Accordingly, even if there is no longer a need for a court order, the court is not obligated to return the children to S.H. pursuant to subsection 101(8) of the CYFSA. These children need permanency and the continued placement in the paternal grandparents' home provides them with a stable, supportive, loving home. I am satisfied that it is in the children's best interest that an order be made pursuant to subsection 102(1) of the CYFSA.
[48] Sufficiency of Evidence for Summary Judgment
A trial is not required to come to this conclusion as the following evidence, which is not contradicted by the evidence of S.H., is sufficient to allow the court to fairly and justly adjudicate the dispute:
1. Mother's Mental Health and Parenting Capacity
S.H. provided a report by Dr. Taylor, her family physician, dated February 9, 2017. Dr. Taylor confirmed that S.H. has been her patient since 1997. She has been diagnosed with Generalized Anxiety Disorder, Social Anxiety Disorder, Panic Disorder and Major Depressive Disorder. Dr. Taylor confirmed that S.H. has not followed up on medication plans and that "her experience over the years with [S.H.] makes [her] concerned about her consistent reliable adherence to treatment plans. She is certainly a mother who desires to spend more time with her children. I have heard from her that she would like to be able to demonstrate good mental health and judgment in order to resume her responsibilities as a mother. However, I have not seen her demonstrate that good mental health and good judgment with any consistency. The job of parenting is one with tremendous stresses, and [H.B. and Z.B.] have experienced significant trauma and instability in their lives. It is my opinion that [S.H.] has not demonstrated sufficient resilience, stability and responsibility to care for and parent her children." While Dr. Taylor confirmed orally for the Society that S.H. has managed well with the care of K.C., she has not provided anything that would suggest that her concerns around S.H.'s ability to care and parent H.B. and Z.B. has changed.
2. Children's Trauma and Counselling Recommendations
H.B. attended counselling at Carizons in 2016 and 2017. Z.B. attended in 2017. The sessions in 2017 ran from January 10, 2017 until June 2017. H.B. completed eight sessions and Z.B. six. Both were referred to the Trauma Treatment Service due to the number of upsetting events they encountered in their lives which included the loss/abandonment of a caregiver, disruption in caregivers, experience of emotional and physical abuse, having witnessed domestic violence and the passing of their father. A number of trauma-related symptoms were observed in both children. While the behaviours and the children's and caregiver's (paternal grandmother's) ability to manage the behaviours improved significantly, by the end of the counselling in June 2017, the importance of a stable environment free of conflict was noted as being significant to their ongoing well-being. S.H. does not dispute that the children suffer from trauma, but does not appear willing to acknowledge her role in that trauma. Her affidavit only identifies the trauma associated with the death of C.B. A comprehensive understanding and acceptance of the children's trauma is important to any caregiver's ability to support and manage the children's emotional state. In 2017 at the conclusion of the counselling, the counsellor highly recommended that the children remain with the paternal grandparents.
3. Children's Expressed Preferences and Pressure from Mother
The children have expressed feelings of conflict over their relationship with their mother and with the paternal grandparents. Significantly they have noted that S.H. pressures them or asks them questions about where they wish to reside. Since the access visits have been occurring in S.H.'s home, there have been increased reports of concerning behaviours at home and at school following visits. While it is not possible to specifically link the visit with the behaviour, the fact that the children report conflict in S.H.'s home when they visit and the fact that they report feeling pressured by S.H. to support her and their return to her care supports the inference that comments are being made. S.H. has not demonstrated that she is able to support the children's emotional needs to reside in a conflict-free, stable environment and there is significant risk to the children if she is unable to support them.
4. Continuity and Stability of Current Placement
The children have suffered significant losses in their lives; namely, the separation of their parents in 2014; the absence of their mother in 2014-2015; the removal from their father's care following the criminal charges in May of 2015; and the passing of their father in December of 2016. The children have now established a secure, loving placement with the paternal grandparents and the support of a school which they have attended for most, if not all of their educational lives. A return to S.H.'s care would mean a significant disruption to this stability in that they would be moved to a new school; move into a home where their mother has a new partner who is not well-known to the children; and they would suffer the loss of another significant relationship, being the separation from the paternal grandparents.
[49] Children's Wishes and Preferences
In assessing the best interests of the children, I do not agree that their wishes and preferences are unclear and that a trial is required to determine this issue. The OCL has been assigned to and has met with both children on a number of occasions. It is clear that the children are conflicted and do not want to hurt their mother. Neither have indicated that they want to leave their paternal grandparents' home; nor have they strongly advocated to return to S.H.'s home. Instead, by their comments and actions, their preferences become clear. H.B. has refused to speak to and to attend at S.H.'s home on occasion. I do not accept S.H.'s suggestion that this is solely because H.B. wants to visit with her friends. I am able to draw a reasonable inference based on the evidence that H.B. is not always comfortable in her mother's home and that she chooses to avoid the pressure, conflict or stress from time to time by removing herself.
[50] Z.B.'s Expressed Preference
Z.B. stated at his latest meeting with the OCL that he wanted to live with both his mother and grandmother, but quickly clarified that he wants to live "mostly" with his grandmother. He was able to articulate reasons for this choice. Specifically that his grandmother was good, which he explained meant she was nice to him. She lays down with him at night, provides night lights when he is afraid and rubs his head to soothe him. He is not afraid to talk to her about issues and concerns.
[51] Paternal Grandparents' Commitment and Performance
The children have settled into the paternal grandmother's home and care over the past two years. The paternal grandparents are prepared to commit to the long term care of both children. The grandparents have been reported as doing a "fantastic job" with respect to the behavioural issues, communication, and cooperation with the school. They have been able to work cooperatively and effectively with the school and counselling supports to manage the children's challenging behaviors.
[52] Adequacy of Grandparents' Plan
Counsel for S.H. was critical of the fact that the paternal grandparents had not put forward a specific plan for the court to consider. I am not concerned about the fact that there is no formal plan. There is no question that the paternal grandparents have been able to meet the emotional, physical and financial needs of the children consistently throughout the past two years that they have been in their care.
Access
[53] Society's Position on Access
The Society is not seeking an Order for no access.
[54] Mother's Current Access and Request for Expansion
S.H. has been exercising weekly access on Wednesdays for two hours and one overnight weekly. Counsel for S.H. relies on Z.B.'s comments to the OCL to support the request to extend Wednesday access by two hours and to extend the weekend access to "at least dinner".
[55] Specific Access Schedule
There is no evidence to suggest that the paternal grandparents have not cooperated with and accommodated access. While I am satisfied that they would exercise their discretion fairly and in the children's best interests, I agree that it would be helpful to have a specific access schedule which can be modified to meet the children's needs.
Statutory Findings
[56] Statutory Findings
The statutory findings have not been made and there was no opposition to the findings requested.
Order
[57] Summary Judgment Appropriate
For the reasons set out above, I am satisfied that there is no issue which requires a trial and that the summary judgment process is a timely, affordable, and proportionate procedure which allows the court to make a fair and just determination of the issues in this case. Accordingly, the following order will be made:
FINAL ORDER
1. The names and dates of birth of the children are H.B. born […], 2005 and Z.B. born […], 2009.
2. The children are not First Nations, Inuit or Metis children.
3. The children are in need of protection pursuant to subsection 74(2)(b)(i) and (b)(ii) and (h) of the CYFSA.
Disposition:
4. Pursuant to s. 102 of the CYFSA and in the best interest of the children, M.L. and R.L. be granted sole custody of the children H.B. and Z.B.
5. Access to the children H.B. and Z.B. to their Mother S.H. will be in the discretion of M.L. and R.L. taking into consideration the wishes and schedules of the children, but is expected to include the following:
a. One overnight per weekend;
b. One mid-week visit from 5 p.m. to 8:30 p.m.; and
c. Such further and other access as may be agreed upon.
6. Any proposed changes to the custody access arrangements are to be reported by M.L. and R.L. to the Society.
7. Any variation of this order will be done under the Children's Law Reform Act and M.L. and R.L. will be noted as the Applicant.
Released: December 4, 2018
Signed: Justice B. C. Oldham
