Court File and Parties
COURT FILE NO.: C-539/17 DATE: 20190614 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF HAMILTON Applicant – and – KD, MC, TD and RD Respondents
Counsel: T. Watts, counsel for the Applicant KD self-represented MC in default, not appearing TD and RD self-represented K. Junger, counsel, Office of the Children’s Lawyer
HEARD: April 8, 2019
RESTRICTION ON PUBLICATION
This is a case under the Child, Youth and Family Services Act, 2017 and is subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
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.
(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.
R. Reid J.
Decision on Summary Judgment
[1] The Children’s Aid Society of Hamilton (the “Society”) brought this summary judgment motion within an amended amended status review application in relation to the children, OCD, AC, and AD who are currently about 12½, seven and five years old respectively. Another child, ACD, who is currently 16½ years old, was subject of the original status review application. She was placed in Extended Society Care on October 15, 2018, with access to her mother, father, maternal grandparents and siblings by order of Justice Sloan.
[2] KD is the mother of the children. She participated in the summary judgment motion without counsel after consulting duty counsel. The father is MC. He did not participate and was previously noted in default. TD and RD are the maternal grandparents of the children. TD was self-represented and made submissions on behalf of herself and RD. The children were represented by counsel from the Office of the Children’s Lawyer who, on consent, expressed the wishes of the children from the counsel table.
[3] The Society sought a final order placing OCD in Extended Society Care with access to her siblings, mother, father, and maternal grandparents. As to AC and AD, the Society sought a final order placing them in the custody of TD and RD, pursuant to s. 102 of the Child, Youth and Family Services Act, with access to their siblings, mother and father.
[4] KD opposed the Society’s request and requested a return of the children to her care.
[5] TD and RD supported the position of the Society.
[6] Counsel for the OCL supported the position of the Society.
Background and Litigation History
[7] In February 2016, all four children were removed from the mother’s care. They were placed with their maternal grandparents on consent of the mother. The mother had administered corporal punishment to ACD by hitting her with a belt, and ACD reported that similar punishment had been administered by the mother to OCD and AD. OCD and AC reported that AC had been hit by the mother with a closed hand.
[8] The mother was charged with assault with a weapon on ACD and pleaded guilty in late May or early June 2017, following which she was placed on probation for 21 months, a term of which was that she not contact ACD except under a Family Court order, or with the Society’s permission.
[9] On April 13, 2017, in response to a protection application, Justice Madsen granted a temporary order placing ACD in the custody of the Society and placing OCD, AC, and AD in the care of their maternal grandparents with access at the discretion of the Society.
[10] The mother refused to discuss matters with the Society despite repeated attempts on the part of the Society from June through December 2017. When discussions did occur in December, the mother admitted to having had difficulty dealing with ACD’s behaviour.
[11] On December 11, 2017, Justice Lafreniere granted a final order pursuant to minutes of settlement. The four children were found in need of protection. ACD was made a ward of the Society for a period of six months and OCD, AC and AD were placed in the care of the maternal grandparents, subject to Society supervision for six months with access to the parents.
[12] The Society brought a status review application originally returnable June 5, 2018, seeking an order that the existing placements continue for a further six months. On that day, Justice Chappel granted a temporary order continuing the existing order.
[13] At the request of OCD and on consent of the maternal grandparents, the Society removed her from their care and placed her in the care of the Society, with access. As a result, an amended status review application sought an order to that effect and a temporary order was made by Justice Lafreniere on that basis dated July 20, 2018.
[14] As noted, on October 15, 2018, Justice Sloan granted a final order pursuant to minutes of settlement. ACD and OCD were found to be in continued need of protection and ACD was placed in the extended care of the Society, with access.
[15] The Society then brought the current amended amended status review application, seeking a final order placing OCD in the extended care of the Society with access in the discretion of the Society, to be exercised in consultation with OCD, and placing AC and AD in the custody of their maternal grandparents. On November 19, 2018, Justice Pazaratz granted a temporary order that the existing order would continue. The Society then proceeded to bring this summary judgment motion.
Position of the Society
[16] The Society alleges that there is a continued protection concern because:
a. the children are at risk of physical harm based on the history of physical contact by the mother with them and her inability or unwillingness to accept responsibility for her behaviour; b. that the children are at risk since the mother has not followed through on many of the services and programming recommended by the Society; c. the mother has mental health issues, and has not consistently engaged in mental health services to address those issues; d. the mother has not been able to secure and maintain stable housing; and e. the mother has been inconsistent in exercising access to the children.
[17] The Society submits that the maternal grandparents, despite having some financial issues and concerns about managing the behaviour of AC and AD through physical discipline, are willing to have AC and AD placed in their custody. They are open to direction from the Society and willing to seek and accept help when needed.
[18] The Society submits that difficulties between OCD and the maternal grandparents and OCD’s own wishes make foster care the best option for her, subject to access with her siblings and maternal grandparents.
Position of the Maternal Grandparents
[19] As noted, the grandparents acknowledge some difficulties acting as custodial parents for AC and AD, both financially and in managing the children’s behaviour, but are prepared to continue to work with the Society to become more effective in that role. They agree that foster care is a better option for OCD, and are willing to facilitate access between OCD and her siblings.
Position of the Children
[20] Counsel appointed to represent the children confirmed OCD’s preference to live in foster care rather than with her mother or maternal grandparents. She has been in foster care since July 2018. Counsel also indicated that AC and AD want to maintain a relationship with their mother, but are content to remain in the care of their maternal grandparents with whom they have lived for over three years. AC would prefer to spend more time with her mother while AD is satisfied with the existing frequency and duration of contact.
Position of the Mother
[21] The mother seeks the return of the children to her care and custody. She notes her willingness to continue counselling as appropriate and doubts the ability of the maternal grandparents to care for the children properly. She proposes that the children relocate to live with her in Richmond Hill. She explains that her inconsistent access to the children is as a result of the distance from there to Hamilton and of her efforts to find and maintain employment. She needs to use public transit which makes for a lengthy round trip for access visits.
The Issues
[22] The questions to be determined by this court are as follows:
a. Is the matter suitable to resolution by summary judgment? b. If so, should there be a finding that OCD, AC and AD continue to be in need of protection? c. Should there be an order placing OCD in Extended Society Care? d. If there is to be an order of Extended Society Care, should there be access by OCD to her siblings, mother, father, and maternal grandparents and under what terms? e. Should there be an order granting custody of AC and AD to the maternal grandparents? f. If there is to be an order granting custody of AC and AD to the maternal grandparents, should there be access by AC and AD to their siblings, mother, and father and under what terms?
The Law
[23] In considering an application such as this one, Justice Pazaratz in Catholic Children’s Aid Society of Hamilton v. B.L.S., [2014] O.J. No. 4422, at para. 83 summarized the law as follows:
This is a Status Review Application pursuant to section 64 of the Act.
a. In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.)) d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child’s perspective.
[24] Although he was dealing with the predecessor legislation, s. 115 of the Child Youth and Family Services Act, 2017 (the “Act”) contains the same legislative provisions.
[25] The overarching consideration is a determination of the best interest of the children pursuant to the paramount purpose of the Act, set out in ss. 1(1) which is to promote the best interests, protection and well-being of children.
[26] This court recognizes the need, identified in ss. 1(2)2 of the Act, to consider the least disruptive course of action that is available and is appropriate in the particular case to help children, consistent with the children’s best interests, protection and well-being. In doing so, where children are found in need of protection, the court must consider the options set out in ss. 101(1) of the Act.
[27] Similarly, the court must consider another purpose of the Act, set out in cl. 1(2)3(v) which is to recognize that services to children should be provided in a manner that provides early assessment, planning and decision-making to achieve permanent plans for children when doing so is consistent with their best interests, protection and well-being.
[28] The Act provides, at s. 74(3), that the court must consider a variety of factors in determining the best interests of children. In this case, the provisions of cls. 74(3)(c)(i) and (c)(ii) are of particular importance, namely the children’s physical, mental and emotional needs, the appropriate care or treatment to meet those needs and the children’s physical, mental and emotional level of development. As well, given the order sought by the Society, the provisions of cl. 74(3)(v) are also important, namely the importance for the children’s development of a positive relationship with a parent and a secure place as a member of a family. Further, in cls. 74(3)(viii) and (ix), the court is mandated to consider the merits of a plan for the children’s care proposed by the Society, compared with the merits of the children remaining with or returning to a parent, as well as the effects on the children of delay in the disposition of the case. Obviously, this court must consider all of the factors set out in s. 74 in coming to a conclusion as to the children’s best interests.
Is the matter suitable to resolution by summary judgment?
[29] Rule 16(6) of the Family Law Rules, O. Reg. 114/99 provides for the making of a final order on summary judgment by motion if there is no genuine issue requiring a trial. Rule 16(2) specifically provides that a motion may be made in a child protection case.
[30] In compliance with the rules, the Society served and filed six affidavits setting out specific facts in support of its position that there is no genuine issue requiring a trial. In response, the mother filed at court on the hearing of the motion a form of affidavit [1] which had been served on the Society in March 2019. In response to the material filed by the mother, a further three affidavits were served and filed by the Society.
[31] According to rule 16(4.1), the responding party may not rest on mere allegations and denials but must set out in the affidavit specific facts showing that there is a genuine issue for trial. Regardless of the obligation on the responding party under the rules, the moving party still bears the ultimate burden of proof that there is no genuine issue requiring a trial.
[32] In considering whether the moving party has met its burden, the court must be careful to ensure that the evidence relied on would be admissible at trial.
[33] In this case, the mother did not object to the matter proceeding by way of summary judgment, but I have ascribed little importance to that fact, based on the self-represented status of the mother.
[34] I am satisfied that the summary judgment process has provided the parties with a reasonable opportunity to place their respective positions before the court. In other words, it is possible, based on the affidavit material filed, to arrive at a fair and just result for the parties.
[35] I conclude that there is no genuine issue requiring a trial.
Should there be a finding that OCD, AC and AD continue to be in need of protection?
[36] OCD was found to be in need of protection by order of Justice Sloan dated October 15, 2018. She has been in foster care since that date.
[37] AC and AD have been out of the care of the mother since February 2016. They have remained in the care of the maternal grandparents since that time, subject to access by the mother.
[38] As noted above, the children were found in need of protection in April 2017 as a result of concerns arising from the mother hitting ACD. That assault occurred in February 2016 and had been encouraged by the mother’s then partner. There was also evidence that the mother had struck OCD, AD, and AC.
[39] The mother entered a plea of guilty to a charge of assault with a weapon in late May or early June 2017. She received a sentence of 21 months’ probation together with 100 hours of community service and was not permitted to contact ACD except pursuant to a family court order or with the Society’s written permission. She has now completed her period of probation.
[40] The mother’s partner, who was present at the time of the assault, is no longer on the scene. There have been no further incidents of inappropriate physical contact between the mother and the children.
[41] The Society maintains a concern that the mother did not discuss the circumstances of the assault or accept responsibility for her behavior or her use of physical discipline against the children while the charge was pending. Although it is reasonable for the Society to have sought discussions with the mother about the assault, it is also understandable that the mother would not be in a position to do so while the criminal charges were outstanding. However, the Society also notes that it took almost six months after the charges were resolved before the mother finally met with a Society worker. When she did engage with the Society, the mother complained about ACD’s behavior and reflected on problems in her own upbringing, rather than make any admissions about her own responsibility. She acknowledged administering physical discipline to OCD and AD.
[42] Other than the departure of the mother’s then partner and the passage of time, there has been no demonstrated change in the mother’s situation such that risk factors are mitigated.
[43] The mother has not taken consistent steps to address the behavioural or mental health issues that led to the criminal charges and the children leaving her care. It is acknowledged that she completed nine out of 10 sessions of the Beyond Basics parenting program in 2017. The Society provided information to her about other programs in both Hamilton and in Toronto (where the mother began residing in summer 2016). In November 2018, the mother indicated that she planned to attend the Triple P Parenting program but did not register. In submissions before the court, but without affidavit evidence, the mother advised that she had completed the Triple P Parenting program one week before the motion hearing.
[44] In December 2017, the mother advised the Society that she was suffering from undiagnosed post-traumatic stress disorder. She was encouraged to seek psychiatric assistance.
[45] The mother engaged in some sporadic counselling but without much follow-through. In part, the sporadic nature of the contact can be explained by the mother’s move to Toronto, Scarborough, and then Richmond Hill while the recommended counsellors were in the Hamilton area. In about October 2018, the mother consulted a psychiatrist and was diagnosed with generalized anxiety disorder, discrete anxiety attacks with signs and symptoms of PTSD but not a full syndrome. The doctor suggested individual therapy and trauma therapy. No therapy has been undertaken.
[46] The evidence from the Society was that the main thrust of the counselling received by the mother was as to her traumatic upbringing, as opposed to her involvement with her children.
[47] As to housing, the mother sold her home in Stoney Creek in 2016 and moved to Scarborough. In April 2018, the mother moved to a different unit in the same residence in Scarborough. In September 2018, the mother moved into a residence in Richmond Hill where she currently resides. That one bedroom apartment raised no concerns for the Society. In that one area, the protection concern of the Society appears to be no longer present.
[48] In both her submissions and her affidavit evidence, the mother was very articulate. She was highly critical of the Society’s plan for the children and of the parenting and financial capabilities of the maternal grandparents. As to the Society’s protection concerns, the mother explained that she did not have sufficient confidence in the Society workers to engage in a meaningful discussion about the circumstances of the criminal charges. She noted that when she was close to doing so with one worker, that individual was reassigned around the beginning of 2018.
[49] As to parenting programs, the mother deposed that in May 2018 correspondence suggesting parenting courses was mailed to her former apartment address when she had moved to another address in the same building. The implication is that the mother did not receive the correspondence although that is not clearly stated. In any event, there is no reference at all in the mother’s material to her connection with parenting courses or to ongoing counseling or therapy that she intimates are necessary to overcome the effects of her traumatic family history.
[50] The mother has exercised access minimally with OCD, AC and AD since they ceased to be in her care in February 2016, a period of over three years prior to the summary judgment motion.
[51] Initially, the Society provided the mother with access twice per week for 1.5 hours per visit. A change in access days occurred in May 2016 to accommodate the mother’s employment. However, access was exercised inconsistently. The mother reported difficulty in commuting from Toronto to Hamilton for access visits. By agreement with the mother, access was reduced to once per week in October 2016. In early March 2018, the mother advised that she could not continue the weekly access visit due to her work schedule. Because weekday access could not occur, the only possible time for access was on weekends, but no Society facilities were available for supervised weekend visits. No face to face contact occurred between the mother and the children from March to September, 2018. Eventually, on August 8, 2018, the mother suggested a friend as access supervisor and regular access resumed at the Society offices on September 13, 2018 and then moved into the community on October 26, 2018 supervised by the mother’s friend. The visits were to be weekly on Friday evenings and biweekly on Sunday afternoons. However, Friday visits were cancelled by the mother effective November 22, 2018 because of her work schedule.
[52] OCD chose not to have access with her mother from October 2018 and access by the mother with OCD has not resumed to date.
[53] In summary as to access, the mother had minimal access with OCD, AC and AD up to October 2018 when access with OCD ended. Since November 22, 2018, access by the mother to AC and AD has been on alternate Sunday afternoons.
[54] I knowledge the evidence of the mother that she felt pressured by the Society to find and maintain gainful employment in order to provide stable accommodation and that doing so while living, most recently, in Richmond Hill makes it difficult for her to exercise access with her children in Stoney Creek. However, she does not address the position of the Society that contact with the children should be given a priority, nor did she address the reason for her relocation.
[55] Based on the foregoing, I find that the Society has established that the previous protection concerns relating to the risk of physical harm to OCD, AD, and AC have not been mitigated, including the failure of the mother to follow through on services and programming recommended by the Society and her failure to consistently engage with doctors and counselors as regards mental health services to address her issues. I acknowledge that there is no longer an outstanding issue of housing stability but I note the mother’s inconsistency and minimal contact by way of access. As a result, I find that OCD, AC and AD continue to be in need of protection.
Should there be an order placing OCD in Extended Society Care?
[56] OCD will be 13 years of age on August 29. She has achieved an age where her views are of significance. She has not been in the mother’s care since February 2016. OCD has been clear and consistent that she does not want to return to the mother’s care. Likewise, she has been clear and consistent that she wishes to continue in her present foster care placement which began in July 2018, following conflict in the home of the maternal grandparents.
[57] OCD is meeting with a counsellor, is enrolled in extracurricular activities, and is progressing well in foster care. Since September 2018, OCD enjoys access with her maternal grandparents on alternate weekends. She chooses not to have access visits with her mother but does connect with her siblings during visits to the maternal grandparents.
[58] Based on the protection concerns that I have indicated, it is not in the best interest of OCD that she be returned to the care of the mother. The maternal grandparents have agreed that the return of OCD to their care would not be in her best interest. OCD herself prefers to remain in foster care.
[59] In the circumstances and given the shared opinion of the Society, the maternal grandparents, and OCD herself, I conclude that it is in OCD’s best interest that an order be made as requested by the Society.
[60] Therefore, there will be an order that OCD be placed in the Extended Society Care of the Children’s Aid Society of Hamilton.
Should there be access by OCD to her siblings, mother, father, and maternal grandparents and under what terms?
[61] It is uncontroversial that children should be able to have contact with their extended family where to do so appears to be in their best interests. As I have noted, in reference to cls. 74(3)(c)(v) and (vi) of the Act, best interests include the importance for a child’s development of a positive relationship with a parent and a secure place as a member of a family; and the child’s relationships and emotional ties to a parent, sibling, relative and other members of the child’s extended family.
[62] In this case, the evidence was that the access by OCD with the maternal grandparents (and consequently, with her siblings) was suspended in late August 2018 at the request of the maternal grandmother based on her need for a respite from child care. Once regular access was reinstated on alternate weekends in September 2018, it appears to have proceeded without significant problems, although there were times when OCD was in conflict with AC. OCD also had access visits with her siblings and her mother at the Society office on a weekly basis during September 2018. Alleged concerns raised by the mother about conflict between OCD and the maternal grandfather were not substantiated by the Society.
[63] I conclude that it is in the mutual best interests of OCD and her siblings and maternal grandparents that she have access with them on a regular basis but that the Society remain involved to ensure the appropriate handling of any conflict that might develop. Although OCD does not wish to have contact with the mother or the father, I do not consider it appropriate to preclude that possibility.
[64] Therefore, there will be in order for access pursuant to ss. 105(5) of the Act by OCD to the mother, the father and the maternal grandparents which shall be at the discretion of the Society, in consultation with OCD. Access between OCD and her sibling, ACD, shall be at the discretion of the Society, in consultation with OCD and ACD. Access between OCD and her siblings AC and AD shall be as arranged between the Society and the maternal grandparents, in consultation with the children.
Should there be an order granting custody of AC and AD to the maternal grandparents?
[65] As I have noted, AC and AD are seven and five years old respectively. They are old enough to have their views considered but I do not place significant weight on those views. In any event, counsel for the OCL has indicated on their behalf that they want to maintain a relationship with their mother, but are content to remain in the care of their maternal grandparents with whom they have lived for over three years since February 2016 – meaning since they were just over four and two years of age.
[66] The maternal grandparents support the request by the Society that they be granted custody of AC and AD pursuant to s. 102 of the Act.
[67] The maternal grandparents have been candid in recognizing the financial as well as the parental obligations of a custody order. There have been challenges in dealing with the behavior of the children, and particularly AC. However, the maternal grandparents have been willing to receive and act on the advice of the Society which in turn has been willing to remain involved on an advisory basis.
[68] Owing to the protection concerns that I have reviewed, it is not appropriate for AC and AD to be returned to the mother’s care. A kin placement is more in keeping with the provisions of s. 74 of the Act as to the children’s best interests where that option is available and in this case, there is three years of demonstrated commitment on the part of the maternal grandparents. In particular, ss. 74(3)(c) identifies at cls. (vi) and (vii) the importance of considering the child’s relationships and emotional ties to a parent, sibling, relative or other member of the child’s extended family and the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
[69] Much of the responding material filed by the mother was directed at casting aspersions on the parenting capabilities and practices of the maternal grandparents. All of those issues were investigated and addressed by the Society. It is the position of the Society, with which I agree, that the same protection concerns do not apply to the maternal grandparents as compared with the mother. For example, while there was some evidence of corporal punishment, the maternal grandparents accepted responsibility and were open to discussion and education about alternatives. Mental health issues were not identified, there is no issue about housing stability, and obviously three years of care for AC and AD is a significant period of dedication to the well-being of the children.
[70] I conclude, therefore, that a custody order is in the best interest of AC and AD. They remain together as part of a family. The maternal grandparents are close family members and well-placed to ensure contact amongst all the siblings and extended family including, where appropriate, the mother. The order represents stability for the children. There will be an order that the maternal grandparents shall be granted custody of the children AC and AD pursuant to s. 102 of the Act.
Should there be access by AC and AD to their siblings, mother, and father and under what terms?
[71] I repeat the comments made above as regards access by ACD to her siblings and parents: children should be able to have contact with their extended family where to do so appears to be in their best interests.
[72] Although access amongst AC, AD and their siblings has not been without incident, as indicated by the suspension of access visits in late August 2018, it has continued without significant problems from October 2018 to date. As well, although contact between the mother and AC and AD has not been as frequent as might be desired, the maternal grandparents have not interfered. I have already dealt with the concerns raised by the mother about specific incidents that have occurred between the siblings during access times.
[73] I conclude that it is in the mutual best interest of AC and AD that they have access with their siblings and mother on a regular basis but that the Society remain involved to ensure the appropriate handling of any conflict that might develop. As with OCD, the father has not been involved in any significant way with AC and AD, but I do not consider it appropriate to preclude that possibility.
[74] Therefore, there will be an order pursuant to ss. 105(2) of the Act for access by the mother and father to the children, AC and AD, which shall be as arranged with the maternal grandparents. Access by the children AC and AD to their siblings OCD and ACD shall be as arranged between the Society and the maternal grandparents, in consultation with the children.
[75] The children, ACD, OCD, AC and AD, the mother, the father, and the maternal grandparents shall each be a person who has been granted a right of access pursuant to s. 105(7) of the Act.
[76] The Society shall be provided with notice of any future Motions to Vary regarding the children AC and AD.
[77] There shall be a separate Order with respect to the custody order under s. 102 of the Act, as to the consequent access orders regarding AC and AD, with the maternal grandparents as the Applicants and the mother and father as the Respondents.
[78] Service of the Extended Care Order regarding OCD on the mother shall be by way of regular mail to her last known address at Unit 716, 9199 Yonge Street, Richmond Hill, Ontario, L4C 1H7.
[79] Service of the Extended Care Order regarding OCD on the father shall be by way of regular mail to his last known address at 192 Wilson Avenue, Unit 2, Newark, New Jersey, USA, 07105.
[80] Service of the Extended Care Order regarding OCD on the maternal grandparents shall be by way of regular mail to their last known address at 5 Raintree Drive, Stoney Creek, Ontario, L8E 0B1.
[1] I say “a form of affidavit” since it was an affidavit consisting of nine pages interspersed with a variety of exhibits.
