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 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(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.
(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 File and Parties
Court File No.: TORONTO C49346/09
Date: 2012-05-30
Ontario Court of Justice
Between:
CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO,
Applicant,
— AND —
S., I. (mother) and
— AND —
M., D. (father),
Respondents.
Before: Justice Marvin A. Zuker
Heard on: May 9, 2012
Reasons for Decision on Motion for Summary Judgment: May 30, 2012
Counsel:
- Fatima Husain for the applicant society
- Lance Carey Talbot for the respondent mother
- Cherry Evangeline Isaacs-Reynolds for the respondent father
ZUKER J.:
Motion for Summary Judgment
[1] This is a motion for summary judgment brought by the Society, pursuant to an amended, amended protection application with respect to two children, G.I.S.M. (born […], 2009) and M.G.S.M. (born […], 2010). Both are under the age six and have been in care in excess of one year at this time.
[2] The Society seeks statutory findings that the children are in need of protection pursuant to subsections 37(2)(b)(i) and (ii) and 37(2)(g) of the Child and Family Services Act, and a further order, once the children are found to be in need of protection, the children be made Crown wards with no order as to access for the purposes of adoption.
[3] The family consists of I.S. (mother), D.M. (father) and their two sons, G.I.S.M. (born […], 2009) and M.G.S.M. (born […], 2010), who are the children before the court.
Background Facts
[4] According to Alanna McNee, in part, in her affidavit dated March 23, 2012:
My involvement with Ms S. and Mr. M. commenced on November 5, 2009, and ended January 11, 2010.
When I was the intake worker, Ms S. was a young mother, eighteen (18) years of age. As a former Crown Ward of the Society, Ms S. was receiving financial support from the Society through the Extended Care and Maintenance Program.
There were two referrals made by Ms S.'s Long-Term Care Worker, Skye Sweet, and a third referral made by Ms S. herself on May 7, 2009.
Ms Sweet made her first referral with respect to Ms S. as a parent on April 3, 2009, as she was concerned that Ms S. was pregnant, and a child in her care would be, in her view, at risk. Ms Skye had concerns with Ms S.'s maturity, as well as her partner, Mr. M. She was concerned that Mr. M. suffered from bipolar disorder and ADHD, and, while she had taken medication in the past while in care, was not currently on any medication. As well, that Mr. M. had an extensive criminal history, which included trafficking, threatening death, auto theft, and assaults. Furthermore, Ms S. and Mr. M. appeared to have a very conflictual relationship.
I verily believe that Ms Sweet made her second referral on September 11, 2009, as Ms S. was in her eighth month of her pregnancy, and she continued to have concerns with Ms S.'s ability to parent.
The third referral report I reviewed was taken by Society Intake Screener Darlene Johnston, dated May 7, 2009. Ms S. advised that her boyfriend, D.M., had pushed her while they were visiting friends. At the time of the incident, Ms S. stated that she did not contact the police and stated that she was afraid of Mr. M. and afraid that he may find out that she told anyone that he had pushed her.
[5] On November 10, 2009, Spence J. returned G. to the care of I.S., subject to the supervision of the Society, on terms and conditions, including a condition that required Mr. M. not to reside in the home.
[6] Ms S. is no longer planning for the children. She consents to the order of Crown wardship for her two young sons. Mr. M. is opposing this order. He is planning for the children on his own.
[7] The only plans therefore before the court are the plan of the father and the plan of the Society. The only options are an order for Crown wardship or an order returning the children to the care of the father under either an order of custody or a supervision order.
Society's Position
[8] The Society is not supporting a plan for the boys to be cared for by Mr. M., for the following reasons:
a. Criminal History and Violent Behaviour
Mr. M. has a history of violent behaviour. He has a criminal record dating back to 1989 (including youth court offences). He has convictions (as an adult offender) for various offences, including violent offences including assault, sexual assault, assault with intent to resist arrest, and uttering threats. Ms S. has admitted that he has been violent with her in the presence of the children, he has admitted to domestic violence with the mother of his older son, Haley, and, most recently, he has been convicted of uttering threats to the previous Family Services Worker as well as assault against Ms S. He also threatened me in December 2011. He has been incarcerated on several occasions as a result of his crimes, including for approximately seven months in 2011. It is the Society's understanding that he was released from Hamilton-Wentworth Detention Centre on December 5, 2011 (he was incarcerated since his arrest on May 7, 2011), and served the remainder of his sentence on weekends.
b. Non-Compliance with Court Orders
Mr. M. has a history of non-compliance with court orders. His criminal record includes several charges of failure to comply with probation orders or recognizance, and he has admitted openly (as recently as December 13, 2011, in open court) that he has not complied with the orders made by the court in terms of this proceeding, stating that he "raised" his children from birth, despite orders by the court at various times that he have only supervised contact with the boys.
c. Non-Co-operation with the Society
Mr. M. has a history of non-co-operation with the Society. Over the course of the Society's work with him, he has refused at times to meet with the Society workers involved. On more than one occasion, the previous family services worker required assistance from Toronto Police to gain entry into the home. Furthermore, Mr. M. has threatened myself and the previous family services worker. Given his threats to society staff, it would be extremely difficult to supervise his care of the children or to work co-operatively with him.
d. Unstable Lifestyle and Limited Family Support
Mr. M. has an unstable lifestyle given his frequent incarcerations and very limited family support to assist him with the care of the children, despite the fact that he names a number of family members that can support him. He is currently residing with his mother, P. A.M., and there is well-documented concern about her ability to parent, as D. was removed from the care of his own parents as a very young child himself. His parents (including P.A. "P." M.) have a longstanding history of child welfare involvement, his sisters both have had child welfare involvement regarding their own children, and the person he proposed to provide kinship care of the children (Ms C.L.N.) also had previous and current child welfare involvement. Although he cites the maternal grandmother, E.S., as a support, she has been inconsistent in her support of Mr. M., and she too has her own history of child welfare involvement and poor parenting of her own children (both of her daughters, including I.S., were removed from her care and ultimately made wards of the Crown.
Past Parenting
[9] The Society was involved with the M. family (paternal grandparents) several times since the 1970s leading up to March 2009.
[10] There have been several openings for D.M. (as a parent, regarding his own children) with child welfare authorities extending over approximately ten years, including involvement with the Sudbury Manitoulin CAS and the London-Middlesex CAS.
[11] In October 2003, the maternal grandmother of Mr. M.'s previous partner (and mother of his son, Haley) contacted London-Middlesex CAS, and the Society became involved at various times over the next several years. There were concerns of domestic violence and drug abuse.
[12] Currently, Mr. M. exercises very structured access to the children.
[13] Mr. M. has a history of non-compliance with his medication to address his mental health condition, as well as a history of substance abuse. He currently has a doctor, Dr. Slyfield, who has prescribed him medication. He enrolled, in January 2012, in Phase One of a substance-abuse treatment program through the Centre for Addiction and Mental Health. He has enrolled in parenting courses.
[14] In 2006, Mr. M. was admitted to the Secure Treatment Unit while incarcerated at the St. Lawrence Valley Correctional & Treatment Centre/Brockville Jail. He underwent psychometric testing. He was assessed as "posing High Risk to reoffend in a violent manner."
[15] The Society currently seeks a finding that G. and M.S.M. be found in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(i) of the Child and Family Services Act. G. and M. were abandoned by their mother I.S. in April 2011.
[16] On September 2, 2010, Police Constable A. Murray (31 Division) contacted the Society's Emergency After-Hours Service and reported that a neighbour called about a domestic incident between the parents. Mr. M. was arrested due to an outstanding warrant as a result of a charge of uttering threats in March 2010.
[17] Ms S. gave birth on […], 2010.
[18] Ms S. allowed Mr. M. access to her home and to the children in spite of the condition of the temporary supervision order stating, "Ms. S. shall ensure that Mr. M. has no contact with the child except such contact as is supervised by the Society or by a person approved of in advance by the Society."
[19] On April 5, 2011, Ms Hall stated that: "I attended the home shortly thereafter accompanied by Ana Quadros, Society Parent Support worker, and two uniformed police officers, PC Perelli (badge #10425) and PC Hansen (badge #10020)."
The children, G. and M., were apprehended on April 5, 2011. I.S., mother of the children, abandoned them. The children were left with their father, D.M.
I.S. indicated had no interest in parenting her children.
I introduced myself to him and he allowed me and Ms. Quadros to sit down and speak with him. Mr. M. told me as follows:
I.S. left the home and went to Hamilton as he kicked her out of the home last night. When she left, he told her that she would never see the children again.
He has two other children: Haley (10 years old), whom he visits with all the time, and Erica (6 years), whom he has only met once.
He was diagnosed with bi-polar disorder about four years ago through the St. Lawrence Valley Correctional Centre, but felt that he was "healed now."
He planned to attend the Clarke Institute tomorrow to do a psychiatric assessment and would also do a urine screen and bring this information to court with him.
He admitted to smoking marijuana and drinking alcohol, "no more than six beers a week," but denied using any other substance.
[20] Past parenting, according to Mr. M., was a joint venture between Ms S. and Mr. M. He submits that the Society never gave him a chance to parent these children on his own.
[21] Mr. M. submits that he has gone under extensive rehabilitation since the children came into care. This demonstrates his desire to care for these children. The CAS, according to him, has not exhausted its efforts to assist this family.
Criminal Record
[22] Ms Hall reviewed the police record check of D.M. dated December 7, 2009, obtained prior to her involvement by the aforementioned intake worker, Alanna McNee. It lists various charges and convictions against Mr. M., including youth court entries, that he had sustained to that point in time. The convictions related to violence and drugs, as well as non-compliance.
[23] Since that time, Mr. M. has sustained further charges and convictions, including relating to violent crimes.
[24] Mr. M. was charged in relation to the mother of his older son, Haley. Mr. M. was involved in a relationship characterized by domestic violence with respect to Haley's mother. According to the records of the Children's Aid Society of London-Middlesex, "Both parents believe that Haley is violent, loses control and is destructive, likely because he had seen similar things in their relationship over the years." One of the major concerns and reasons for involvement with that child was Mr. M.'s violent behaviour in the home.
[25] Mr. M. was admitted to the Secure Treatment Unit from August 23, 2006, until his discharge Christmas Day on December 25, 2006, while incarcerated at the St. Lawrence Valley Correctional & Treatment centre/Rockville Jail. While there, he underwent psychometric testing and a recidivism risk assessment (as referred by his psychiatrist Dr. Balmaceda as part of his pre-parole assessment). He was diagnosed with bi-polar disorder, assessed as having substance dependence, and assessed as "posing High Risk to reoffend in a violent manner."
[26] Mr. M. was arrested and subsequently incarcerated. He spent approximately seven months at the Hamilton Wentworth detention Centre while his children remained in care. While in jail, Mr. M. called the Society on several occasions to obtain updates about his case and his children. He wished to present a plan proposing Ms N. as the caregiver for his children. He expressed his displeasure with and anger towards Ms S.
[27] Ms S. submits that she was threatened by Mr. M. so she allowed him to reside with her.
"I had asked Mr. M. to leave my residence several times but he would, instead, continue to act in a hostile and violent manner towards me. Every time I explained to him about the terms of the Society and stressed that he was not permitted to live with me, he would refuse to leave. I was really frightened of him and he would hurt me. I was extremely concerned for my children's well-being. If I had called the police for assistance, I was scared that he would find me and hurt me since he had threatened to do so. I recall Mr. M.'s becoming hostile towards the social worker and I also remember an occasion when Mr. M. threatened the Society worker and was charged criminally in relation to this incident. ..."
[28] As far as the Society is concerned, it has not really been involved with the father since the birth of the children. He has at times been involved with the Society and at times he has had no communication with the Society. I refer to the affidavit of Roxanna Hall who had no communication with the father for several months.
[29] This file was transferred to Ms Hall approximately a year after Mr. M. made a threat against the previous worker while at court. He was eventually incarcerated as a result of that charge and other charges. He is currently bound by two orders of probation.
[30] Mr. M. was released in December 2011. He has had access since approximately mid-December 2011. He had been incarcerated from May 2011 to December 2011.
[31] Appended to the affidavit of Roxanna Hall at Tab G is the criminal record of Mr. M., which includes, inter alia, violent crimes, trafficking, breach of probation, escape lawful custody, sexual assault, and failure to comply orders.
[32] His crimes of violence included the uttering of a death threat against the previous family services worker and an assault against the mother of the children.
[33] Mr. M.'s affidavit material sets out a plan of care that, in the Society's view, is speculative and hopeful. He says he has changed.
[34] Mr. M. states that he never received a copy of his criminal record. It is therefore not complete.
[35] Exhibit I of Mr. M.'s affidavit is a letter from his probation officer. "Please find enclosed copies of two probation orders listed above," and that's -- as indicated, the probation orders according to this letter run from November to -- November 2011 to November 23rd, 2013. In response:
MS. HUSAIN: ...he was only released on December 5th, 2011. And the second probation order runs from March 17th, 2012 -- so it just recently started -- to March 16th, 2015. From what the Society understands, Mr. M. has recently been, until mid-March, serving part of his sentence on weekends. So that is, to the best of the Society's knowledge, what his current criminal record would indicate. But the Society does not have an updated copy of the criminal record, has not been able to obtain it, and it has not yet...
[36] The letter from the probation officer does not include the actual probation orders.
[37] Tab J of Ms Hall's affidavit is the actual discharge summary and assessment, a recidivism risk assessment, as indicated, that was done in 2006.
[38] The end of the assessment conducted by a psychometrist states in part, "Based on these predictive tools, Mr. M. is evaluated as posing high risk to reoffend in a violent manner." He has reoffended in a violent manner since then on several occasions.
[39] On July 13, 2011, the Society held a Permanency Planning Conference. Mr. M. was in custody at the time. The decision was made to seek Crown wardship with no access for the purpose of adoption unless there was a viable kin plan presented for the children's care.
Children's Developmental Assessments
[40] On September 23, 2011, M. had a Developmental Assessment conducted by Jennifer Miles. M. demonstrated a low threshold for frustration for his age and little vocalization other than screaming. He was found to have average motor skills, self help and socialization skills, however, possible or probable delay in Expressive Language and Attention and Memory.
[41] On September 23, 2011, G. had a Developmental Assessment conducted by Erin Sclisizzi. Ms Sclisizzi's findings indicated that G. presented as a fairly scattered profile of developmental functioning.
[42] These children have special needs. The foster parents' affidavit sets out the behavioural issues. Ms S. has admitted she was consuming drugs and alcohol during her pregnancy. The Society is concerned they may have further special needs. They are currently being assessed.
[43] Mr. M. was in the home for some of the time the children were placed with Ms S. under an order of supervision. Again, that was in contravention of the conditions of supervision in place at that time. Mr. M. submits that he cared for the children for a period of time until their apprehension in April of 2011.
[44] Mr. M. has admitted hiding in a closet when the Society workers came to visit the home and has admitted in court that he was residing in the home. He felt that he was right to do so.
[45] Mr. M. submits that the mother was assaulting the children while they were in her care and she was not providing appropriate care to the children, including not feeding them.
[46] The Society apprehended the children in April of 2011, when Mr. M. then contacted the Society to indicate he had concerns about the mother.
[47] Mr. M. currently exercises access once every two weeks, fully supervised by the Society.
[48] As indicated, Mr. M. does have another child, a son, Haley, whom he has access to.
[49] The Society's concern with respect to Haley is that those parents have a history of domestic violence, and according to the records of London Middlesex CAS, the child was exposed to a number of violent acts between the parents, largely perpetrated by Mr. M. against Haley's mother, and that Haley had a number of behavioural issues that both parents admit were, in part, because of Haley's witnessing acts of violence.
[50] Pursuant to Ms Wasserman's affidavit sworn March 6, 2012:
On October 27, 2011, I had a long and detailed conversation with I.S. in order to get some additional information to make a referral for the Fetal Alcohol Spectrum Disorder ("FASD") assessment. Ms. S. indicated that Mr. M. did drugs while the boys were in the house. Ms. S. also indicated that Mr. M. often spoke of wanting to kill himself. Ms. S. told me that Mr. M. had choked her on the day that she left. As well, she indicated that she had tried to call the police but Mr. M. would smash her phone, which is why she said her phone number had changed so frequently.
Ms. S. spoke of an incident during her pregnancy with M. when Mr. M. sat on her back after she was on the floor on her stomach because he wanted money to buy crack. Ms. S. indicated that Mr. M. would hit her in the stomach during her pregnancies and indicated that she lost a pregnancy in 2008 at 14 weeks after an assault by Mr. M. Ms. S. expressed that she did not want the boys to be with Mr. M. as she felt they would have "a terrible life." Ms. S. indicated that she started to worry for the children when she saw G. copying some of Mr. M.'s violent behaviour.
Ms. S. indicted that Mr. M. would often punch holes in the walls that she would patch up. Ms. S. indicated that the boys witnessed domestic violence, throwing objects, yelling and screaming. Ms. S. indicated that she did not use drugs during her pregnancy with M. but did admit to drinking large amounts of alcohol on three occasions during the pregnancy. Ms. S. also admitted to drinking smaller amounts at other times during the pregnancy before she knew she was pregnant. During G.'s pregnancy Ms. S. admits to using ecstasy in January 2009. Ms. S. admitted to drinking alcohol in the first trimester of the pregnancy. Ms. S. indicated that she would drink alcohol about 3 – 4 times a week having on average three drinks a time but as many as 6 drinks until she found out she was pregnant at 10 weeks.
Plan of Care by the Society
[51] Further to the order sought by the Society, that G.I.S.M. (born […], 2009) and M.G.S.M. (born […], 2010), be made wards of the Crown without access for the purpose of adoption:
a. The Society will maintain the children in an appropriate foster placement until an appropriate adoptive placement is found.
b. The Society will endeavour to find the children an appropriate and loving adoptive family.
c. The Society will find an adoptive family that will adopt both children together.
d. The Society worker shall ensure that there is a final goodbye visit arranged between Ms S., Mr. M. and their children.
e. The Society shall assist Ms S. and Mr. M. with appropriate referrals for any services or community resources that are deemed to be helpful or necessary to Ms S. and Mr. M.
[52] The child(ren) cannot be adequately protected while in the care of the respondent(s) because:
a. Ms S. abandoned the children on April 5, 2011, and left the children in the care of their father, Mr. M.;
b. Ms S. has indicated that she no longer wished to parent the children;
c. Prior to the children being apprehended, Mr. M. has refused to work with the Society co-operatively and has been hostile with the Society workers.
d. Mr. M. has mental health issues, has admitted to using drugs, he has lengthy criminal history, and has known to be violent with Ms S.;
e. Mr. M. is currently incarcerated.
(R. Hall, August 19, 2011)
[53] The children were placed with the mother subject to Society supervision and with conditions. While in her care, the Society's Health Specialist, Christina Gray-Hall, was involved from the time of G.'s birth from […] 2009 until July 2010, and again after M. was born from […] 2010 to the end of December 2010. The Society's parent Support Worker, Ana Quadros, also worked on parenting strategies with her from February 2010 to July 2010.
[54] Ms S. was involved with the "Healthy Babies, Healthy Children" program through the Public Health department.
[55] Roxanna Hall assumed coverage of the file on March 31, 2010.
[56] Ms Hall's first contact with Mr. M. was when the children were apprehended on April 5, 2010. Mr. M. disclosed to Ms Hall that he was always actively involved in the children's lives, was living in the home, and both he and Ms S. were hiding this information from the Society.
[57] On or about November 24, 2011, the Society received a copy of the psycho-developmental assessment report, completed by Dr. Kushnir. The assessment noted that M. had average cognitive skills but on the borderline limit on the 4th percentile for the language scale. Receptive language was at a 7-month level while expressive language was at a 9-month level. M.'s adaptive or functional behaviours were in the moderately low limits in the 12th percentile. Overall the assessment noted that M. is delayed in some areas of development. The report noted that M. should be considered as a child with special needs who is at risk of developmental and behavioural difficulties.
[58] The assessment for G. found that he had average cognitive skills. G. scored in the low average limits for receptive and expressive language which were at the 19th-month level (G. was 24 months at the time of the assessment). G. was within the moderately low limits for adaptive or functional behaviours. G.'s receptive language was within low moderate limits while his expressive communication was moderately low. G.'s daily living skills and socialization skills were within the moderately low limits. G.'s motor skills were within the adequate limits. Overall, G.'s non-verbal cognitive ability is within average limits; however, language and adaptive functioning are delayed. The assessment notes that G. should be considered a child at risk in terms of his language and social-emotional development.
Access Visits Since December 19, 2011
[59] Mr. M. had about seven visits with the children after their apprehension and prior to his arrest and incarceration on May 7, 2011.
[60] On December 15, 2011 Mr. M. left a message apologizing for his unacceptable behaviour. He needed to provide confirmation that he was on medication. He advised that he was involved with Dr. Slyfield and has been prescribed Epival for his bi-polar disorder and Seroquel for anxiety which also helps him sleep. He provided Dr. Slyfield's telephone number and gave verbal consent to speak with him and to confirm he was on medication.
[61] Mr. M. is currently having access visits twice monthly with both children, fully supervised, for an hour per visit.
[62] M. is a child with special needs who is at risk for behavioural and development difficulties and G. is a child at risk in terms of his language and social-emotional development. Both boys appear unable to tolerate frustration and tantrum frequently. Both boys can be challenging at times to parent due to their behaviours. Both boys require a regular routine and structure as well as a great deal of stability and patience in their parenting. D.M. and Ms S. are not able to meet the children's needs. Ms S. has expressed her support of Crown wardship with no access for the purpose of adoption for G. and M.S.M.
[63] Ms S. believes it is in the children's best interest to be adopted rather than placed with Mr. M. Mr. M. is unable to meet the needs of the children due to the neglect the children experienced prior to coming into the Society's care and he acknowledged he was a large part of their care: the alleged drug use and domestic violence that Mr. M. subjected the children to, the children's high needs and Mr. M.'s inability to consistently and effectively meet the needs, as well as Mr. M.'s ongoing criminal activity.
Father's Response
[64] Pursuant to the affidavit of D.M. dated April 19, 2012, he states in part:
This affidavit is made in response to the Society's motion for summary judgment. I will respond as comprehensively and extensively as possible, as the very nature of my children's lives is dependent on me answering all of the Society's allegations truthfully. Should I fail to reply or to respond to any statements or allegations in the Society's affidavits, this should not be construed as an admission or acknowledgement of the Society's statements or allegations.
It is my position that the Society's motion ought to be dismissed as there are genuine issues for trial as to whether the children are in need of protection.
I am asking for an order that the trial be expedited and that the matter be tried at the next trial sittings.
The grounds for the Society's request for the findings are past parenting and past conduct. I intend to show that the past parenting was a joint venture between Ms. S. and me. Further that the Society never gave me a chance to parent the children alone. Future parenting of the children will be by myself only, more so Ms. I.S. has distanced herself from any desire to care for the children. I intend to show that my past actions were independent on extrinsic circumstances including the relationship between I. and myself and I. is no longer part of my life as I am planning to parent the children myself. If however the court finds the children are in need of protection, it is my position that the care and custody without any further involvement of the Society, in the further alternative that the children be returned to me under a supervision order.
It is my intention to show the CAS that the factors they rely on no longer exist.
That I no longer take illicit drugs.
That my behaviour is not volatile and erratic.
That any issue that I may have with mental health is closely supervised and I am under medication.
That while my criminal record may be extensive, there was no record of violence towards my children, and in fact I have always kept my children safe. That a contributory factor to my criminal behaviour was my drug use, which has now been corrected. Even more significant is that since the birth of G. and M. I have avoided becoming involved in criminal activities.
That my relationship with my older son Haley's mother is in the past and was caused mainly by my drug use. But I have always kept Haley safe.
That the reason I did not co-operate with the Society is because I had a fear for the Society given my traumatic experiences in the Society's care when I was a minor. Further that the Society took the position that I was the bad guy and rushed to judgment by denying me the opportunity to parent my children. I only lied to keep my children safe as I realized that I. could not be depended on to keep our children safe.
That I am stable, I am working, and I do not use drugs.
Although the Society refused to let me back into the home, and yes, I disobeyed the Society's order to remain out of the home, but I did so only to protect the children as they were at risk in their mother's care.
It is my understanding that the Society has an obligation to assist me by recommending services. They did not. On my own in 2010 I sought help from my pastor, Rev. Randal Lankheet, and I continue to look towards him for counselling and mentoring. Attached hereto and marked as Exhibit "A" are two letters from Covenant Reformed Church dated September 20, 2011, and a recent letter I received from him on Monday, April 16, 2012.
Without the assistance of the Society I sought out and again attended the Stepping Stones programme at Yorktown Family Services – I commenced January 26, 2012 and completed on March 8, 2012.
Given my concern about my children's speech delay I consulted with a Speech Pathologist during the fifth session of the Stepping Stones programme.
I also attended the Jane and Finch Community and Family Centre where I enrolled in the programme " Kids have stress too ." I learnt problem-solving skills, how to have my children relax, how to assist my children in problem-solving.
I am currently enrolled in another programme at Yorktown, called Mindful Fathers , which commenced on January 26, 2012 and will end in April 2012.
I am also enrolled in a parenting course on-line called the Logan Group Inc. This is a self-awareness programme. This programme has assisted in giving me a number of hands-on learning tools for effective use when dealing with my children.
Further on May 7, 2012, I will commence the programme Nobody's Perfect run by City of Toronto Public Health Department.
I no longer take drugs.
I have continued to attend for drug testing at my family physician, Dr. Goldman. Dr. Goldman has now tested me once per week. The Children's Aid Society had previously requested a hair test from me but they never followed through on the hair test.
I have also attended and completed both Phase I and Phase II of the CAMH Programme. I have been consistent in my attendance.
I realize that I have an extensive criminal record; however, a substantial amount of the charges were prior to my younger children being born. I have never used physical discipline or violence towards my children. The fact that I have been like that does not affect my ability to parent.
I was charged with uttering threat to the Children's Aid Society; I regret these charges.
With respect to my last set of charges, assault against I., which occurred on May 7, 2011, this was a onetime occurrence. I am very remorseful that this altercation occurred.
I have made an effort to obtain a copy of my updated Criminal Record; however the Toronto Police Department has informed me that I will take at least 4-6 months.
Although the Society refused to pay for a Parent Capacity, I on my own requested one. I personally paid for the Parent Capacity assessment, together with help from Covenant Reformed Church.
I currently work with Cona Contracting as a carpenter. I had previously worked with Cona in the past and was able to retain my job once I was released from jail. I earn approximately $500.00 weekly.
I sought the assistance of the Canadian Mental Health Association to assist me in addressing some of the issues of my anger. They put forward a plan pending my release which included me accessing regular psychiatric care through Dr. Slyfield. Immediately on being released I have followed through on the plan and have been receiving regular treatment from Dr. Slyfield.
I also attended other Harm Reduction Programmes, which benefitted me tremendously and have assisted me in taking a "step back" so as to analyze my behaviour and to realize how harmful my actions have been to the community.
I also attended a number of Bible Study and chapel services on a regular basis as I wanted to reconnect with my religion.
ACCESS
I have attended all of the access visits as given to me by the Society. There have been no concerns expressed by those supervising the access. I have been quite friendly and very co-operative with the persons supervising the visits. I believe the visits have gone well. There were a few times when the children were cranky because they were sick.
As stated above despite the lack of encouragement from the Society I have undergone a parent capacity assessment. I have not received the final report as yet from Dr. Perlman.
[65] The father states he has now changed. He no longer consumes drugs or alcohol. The last time he consumed alcohol was a month and a half ago. He is no longer taking crack cocaine, which he indicates he was addicted to from the age of 16 until 2011. He indicates that he is now under the care of a physician and is now taking medications to control what he states is a bipolar disorder.
[66] The first letter from Dr. Goldman, dated May 8, 2012, says, in part, "The disabling conditions that I'm aware of that affects Mr. M. are a history of drug abuse and a questionable bipolar diagnosis." Dr. Goldman's notes subsequently indicate that he does not have Mr. M.'s complete record, which would include his criminal record.
[67] Dr. Goldman indicates, on page two of the notes appended, that copies of the report from the St. Lawrence Treatment Centre, where Mr. M. was allegedly diagnosed with bipolar disorder, were not available to review, but may be important in terms of clarifying the diagnosis. He indicates he cannot refer the father for therapy, cognitive behavioural therapy, because Mr. M. has difficulty with impulse control and anger. He cannot be more helpful because of the lack of some of the information.
[68] The report from Dr. Slyfield indicates that he believes, according to Mr. M. that Mr. M. was to be the sole parent of the two children. This report is dated April 25, 2011. He says that he was to be the sole parent, but has to go to family court on the 9th of May with the hope that he will get his children back from the Society.
[69] He talks about the father separating from the mother, Ms I.S., because of her drug use and because she was allegedly promiscuous. The report does not mention domestic violence was occurring in the home, and to which the boys were exposed.
[70] Mr. M. submits that there are a number of triable issues.
[71] He is no longer on illicit drugs. He is no longer on any kind of drugs. His behaviour is not volatile and erratic. His mental health is closely supervised by his psychiatrist, Dr. Slyfield. He was never violent to any of his three children, including the two children now before the court.
[72] A contributory factor in his criminal behaviour, he submits, was his drug use. His relationship with his older son Haley's mother is very good. There are affidavits here supporting Mr. M. from Haley's mother. See Tab K.
[73] Mr. M. did not cooperate with the Society in the past because he wanted to keep his children safe. When he was caring for the children with Ms S., he had to deal with Ms S. He says he had to balance whether he should call the Society when Ms S. was hurting the children or not call. She confessed to him she had hit one of the children over 20 times. When Ms S. left the home, he called the Society.
[74] Another triable issue, he argues, would be whether the mental condition from which he suffers can be stabilized with medication. There is competing information, the information that the CAS, and the recent reports of Dr. Slyfield and Dr. Goldman.
[75] He submits that the conditions that existed in the past no longer exist. Exhibit A to his affidavit is two letters from Pastor Randall Lakheet, who is supporting Mr. M., and the church, which is also supporting him.
[76] In the first letter, more recent than the September 20, 2011 letter, Pastor Lakheet says in paragraph two, "In my nearly 27 years of ministry, I have rarely met someone who is motivated to turn his life around as is D.M.. A good part of his motivation comes, of course, from his hope to eventually regain custody of his boys, but I do not think this, this -- do, do not think this merely is a selfish or opportunistic motivation. Rather, I believe that D. has a genuine motivation to become a caring father to his two sons. Over the past few years, he is coming to realize how he suffered from not having a caring, involved father in his younger years." Mr. Talbot submitted on behalf of the mother:
MR. TALBOT: I just want to remind my friend that that's a letter, and it's not an affidavit.
Mr. M. submits that the treatment at CAMH was very extensive. They did some tests on Mr. M. at that time. He is no longer on any kind of, of drugs.
MS. ISAACS-REYNOLDS: The relationship with the respondent mother, Your Honour -- he doesn't have, he doesn't have any kind of relationship with the, with the respondent mother at present.
THE COURT: Does that present include the future?
MS. ISAACS-REYNOLDS: For the future, he wouldn't have any kind of relationship with her either, Your Honour. Mr. M. has thankfully moved on with his life. In terms of parenting, Your Honour, he has done a number of parenting courses. He has also -- and they are all part of the exhibits, Your Honour .
[77] Mr. M. states that the Society never told him what special needs the children's have.
[78] During one of Mr. M.'s parenting courses, he sought the assistance of a speech therapist. They have informed him they can help him in terms of assisting that child with his speech. This is part of the Exhibit C to his affidavit. He has done a number of parenting courses, including enrolment online. He now has a bundle of information in terms of how he can assist his children.
[79] Exhibit H speaks to one of the studies that Mr. M. underwent at CAMH, a study on impulsivity. In the study, there were no presence of illicit drugs or narcotics in Mr. M.'s system. He states that he has not even been smoking tobacco.
[80] Mr. M. states that he has also undergone a parent capacity assessment. We do not have the results. He was assisted in paying for that parent capacity assessment by his church.
[81] The assessment may be very important on a go-forward basis as to triable issues.
[82] Counsel for Mr. M. submits that other triable issues include the fact that Mr. M. is now on medication, and that there are extensive letters from both Dr. Goldman and Dr. Slyfield that speak to the issues of Mr. M.'s mental health. They have also been in consultation with CAMH, with Dr. Sokolov from CAMH. All these physicians have been consulting with each other in terms of Mr. M., his medication, in terms of his diagnosis, and in terms of his issues with impulse control.
[83] Dr. Slyfield's report, it is submitted, supports the fact that Mr. M. is now stable. He has increased the medication. Dr. Goldman said his condition is stable at present. There are no other medications that he needs to prescribe to address his current behaviour.
[84] Pursuant to the affidavit of Sheilagh Beatty dated March 8, 2012, the Adoption Worker assigned to assess the adoption readiness of the children:
"I am concerned about the relationship between these two boys. While the relationship is clearly important to G. and M. and while the brothers are clearly bonded to each other and while my preference would be to have the boys adopted together into the same home and this is what I would endeavour to find as my first choice, I am uncertain that this is currently possible, given the boys' aggression towards one another. However, if the brothers could not be adopted together at the same time, I would certainly ensure that any families chosen for either child would be open to facilitating ongoing sibling access in order to foster the relationship between the brothers or to having M. placed in the home at a later time, once a cessation of access and the introduction of treatment services allows him to deal with his past trauma issues and to stabilize in his placement.
"I believe and have confidence that, with the right supports in place, we will be able to place G. and M. with an adoptive family who will have the strengths and skills to meet their needs should they become legally free for adoption."
[85] MR. TALBOT:
"My client has lots of faults. Clearly, she does. She's in default. She has not filed any materials. If there's one thing that she's done right is she's saying, 'I am a drug addict. I have problems in my life, and I cannot raise my children, and I do not want my children to go with someone else who has beaten me up, who has done terrible things to me, sexual assault on his record, other assaults. I cannot imagine how he can do better than me, when I'm saying with total honesty that the children have to go into care.'
"Her own mother says she's not able to care for the children. She's here, but she's going to support her daughter -- or now going to support Mr. M. The problem is if the court gives the children back to Mr. M., what kind of relationship -- he's going to then have to have a relationship with Ms. S. of some kind of access, and he's saying there'll be no access. He hasn't addressed that very important issue, which is how will there be access if the children are living with him?
"The doctor says it's nothing, that that sums up the concern we have, that he's been out of jail five months, and he's done an excellent job so far: no drugs, going to church, doing, doing his various activities, but we have a whole lifetime of antisocial behaviour.
"My client will say that we really have to look under the surface of all of this. We'd find a person who's not capable of caring for his children, and the best decision would be that they are adopted, because, unfortunately, there's nothing that suggests -- he has to put his best foot forward, and we don't even have a letter from Dr. Perlman.
"It's just absolutely dreadful history. I mean, a history that suggests a -- and not just assaulting the worker, pleading guilty to assaulting the worker in the very Society that is supposed to be helping him, and now we're supposed to have these children returned to him, and he's saying, "I can do it.""
[86] I agree with Mr. Talbot with respect to the nature of the exhibits to Mr. M.'s affidavit. However, I am satisfied this material could not have been adduced before and is relevant to enable the court to make a determination on an accurate picture of the situation as it is now.
[87] A court has all the necessary authority to receive further evidence in the best interests of the child.
[88] The evidence, if admitted, must be reviewed with the other evidence in determining the appropriate decision to be made.
[89] The further evidence of the father, while demonstrating some rehabilitation since he last got out of jail, does not dispel concerns about his capacity to care for the children and his acquisition of the special skills necessary to parent these children with special needs. The father may have begun to rehabilitate himself but the stress and responsibility of caring for these children, let alone the myriad of other factors noted, may compromise that.
[90] The children cannot be put at risk to test the father emerging parenting skills. The focus must be on the children and their best interests.
[91] In reply, the Society reiterates that there is a pattern in the father's behaviour. One of the most significant patterns is his failure to be able to comply with court orders or any reasonable expectations placed upon him. That is reflected in his criminal record in terms of not only orders of breach of his bail conditions but also breach of probation conditions.
[92] His breach of the supervision order conditions that he was bound by, he was aware he was bound by for a significant period of time. He now comes to court indicating that the Society should have worked with him. How could the Society have done so when he refused to meet with the worker?
[93] According to the Society, he was lying to the Society all along. He was hiding in the home. He expects the Society now to use that information as a positive for him, indicating that he was parenting the children all along.
[94] Mr. M. was subsequently charged. He was charged with not only a breach of his current conditions, he was also charged with a robbery. There were a number of charges outstanding at that time. He was incarcerated in May 2011, and was released in December 2011.
[95] He was then serving the remainder of his sentence on weekends, which concluded in March 2012. He has had only a few weeks during which he has not been serving any kind of sentence of incarceration. He is now bound by two orders of probation.
[96] It is unclear to the Society exactly what his up-to-date criminal record would contain if it were to be produced.
[97] Mr. M. did not undergo treatment at CAMH. He participated in a study, a brain imaging study, according to the letter produced from CAMH. He was not being treated there, the Society submits.
[98] The Society further submits that Dr. Slyfield is not a psychiatrist. He's a family physician. He did qualify as a psychiatrist in the UK. He is not qualified as a psychiatrist in Canada.
THE LAW
Summary Judgment Test
[99] Rule 16 allows a motion for summary judgment in child protection cases: FLR 16(2).
[100] The test for summary judgment motions is found in FLR 16(6) -- If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[101] In a ruling on a motion for summary judgment, the court is not to assess credibility, weigh evidence, or find the facts. The court's role on such a motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. The court, however, has the duty to take a hard look at the merits of an action at this preliminary stage.
[102] Historically, in cases of Crown wardship, similar principles apply as those initially articulated in Irving Ungerman Ltd. v. Galanis, Aguonie v. Galion Solid Waste Material Inc., and Vaughan v. Warner Communications Inc. et al..
[103] The court must review all the evidence to determine if there is a basis for the final order sought. A proper consideration of a "full evidentiary record" is necessary for a "good hard look" at the evidence on the motion. Then, the court must determine whether there are specific facts to support a triable issue. The court may then dismiss the motion, rule that there are only certain issues that require a full hearing or determine that there are no triable issues regarding the entire application. See B.(F.) v. G.(S.).
[104] A genuine issue must relate to a material fact or facts. If a fact is not material to an action, in the sense that that result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a 'genuine issue for trial': see Irving Ungerman Ltd. v. Galanis.
[105] The moving party has the onus to establish that there is no genuine issue requiring trial.
[106] The responding party must put its best foot forward. It may not rest on "mere allegations or denials" in response to the materials served by the moving party. The responding party must set out, in an affidavit or other evidence, specific facts showing there is a genuine issue for trial: FLR 16(4.1); see also Children's Aid Society of Toronto v. K.T..
[107] The court should proceed cautiously: "with the promulgation of the rules, the availability of summary judgment in child protection cases can no longer be considered an extraordinary remedy. However, as with any summary judgment proceeding, a court must proceed cautiously, bearing in mind the need to ensure absolute fairness to the parties and the requirement that a party not be deprived of a full trial on the merits except where there is 'no genuine issue requiring a trial'": see Children's Aid Society of Toronto v. P.M..
Best Interests of the Child
[108] The paramount purpose of the Act is to "promote the best interests, protection and well being of children"; Child and Family Services Act of Ontario, R.S.O. 1990, c C-, as amended, subsection 1(1).
[109] The primary consideration of the best interests test is the welfare of the child. See Re McGrath, [1893] 1 Ch. 143 at p. 148, cited with approval in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.).
[110] The welfare of the child is "not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense": see Re McGrath.
[111] The best interests test has a "wide focus." This means that the "entirety of the situation" must be examined in order to determine a child's best interests: see Catholic Children's Aid Society of Toronto v. M.(C.).
[112] The best interests of a child are continuously evolving: see Catholic Children's Aid Society of Toronto v. M.(C.). This means that different solutions may be required over time.
[113] The best interests of a child take priority over the desires and interests of the parent: see Young v. Young.
[114] The factors that must be taken into account when determining the best interests of a child are listed in CFSA, subsection 37(3).
[115] Where a court finds that intervention through a court order is necessary to protect a child in the future, a court must make one of the following three orders in the child's best interests (or a custody order under section 57.1): CFSA, subsection 57(1).
[116] Crown wardship is a permanent order: see Children's Aid Society of London & Middlesex v. V.(D.).
[117] The CFSA s. 71.1 was amended the Act, as of September 1st, 2011, to permit a society to provide care and maintenance to a person who is 18 years of age or more if, when the person was 16 or 17 years of age, he or she was eligible for support services that are prescribed by the regulations under the Act, whether or not he or she was receiving such support services: CFSA, subs. 71.1(3).
Past Parenting
[118] In Catholic Children's Aid Society of Toronto v. J.L., the Children's Aid Society applied to admit certain documents under s. 50 of the Child and Family Services Act, R.S.O. 1990, c. C.11 which did not comply with s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23.
[119] Section 50 of the CFSA reads:
- (1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [emphasis added]
[120] This section both excludes the Ontario Evidence Act and allows discretionary admission of a broad range of documents into evidence.
[121] A review of the J.L. case and cases subsequent to it make it clear this "threshold reliability" phraseology casts a wide documentary net.
[122] The court in J.L. did follow the oft-quoted case of Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al. and the principles set forth therein in its determination of the admissibility of documents proffered under the business records provision of the Ontario Evidence Act.
[123] In the absence of statutory prerequisites for admissibility, the discretion to admit hearsay generally and the records under s. 30 specifically should be exercised using the holistic approach respecting the indicia of reliability and necessity set out by Charron J. at paras. 42 and 49 of R. v. Khelawon:
42 … Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions: necessity and reliability. This Court first accepted this approach in Khan and later recognized its primacy in Starr.
[124] See also R. v. Hamilton, where the court at para. 138 states:
Khelawon advocates a holistic approach to the question of threshold reliability. In some instances, the threshold test for reliability will be met by simply looking at the circumstances under which the statement came about. In others, circumstances external to the making of the statement will allow for sufficient testing of the truth and accuracy of the statement. …
[125] The Supreme Court has provided clear guidance on the proper test for admission of "further evidence" in this kind of case in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., a case concerning s. 69(6) of the CFSA. L'Heureux-Dubé J. agreed with the decision of the Ontario Court of Appeal in Genereux v. Catholic Children's Aid Society of Metropolitan Toronto in which Cory J.A. (as he then was) stated:
It can be seen that the judge hearing the appeal is granted a very wide discretion with no restrictions imposed. This is remedial legislation dealing with the welfare of children. It should be broadly interpreted. Undue restrictions should not be placed upon it. Specifically, narrow restrictions should not be read into the section when they do not appear in the legislation.
The judge on appeal, bearing in mind that he is dealing with the welfare of children, may determine that he will exercise his discretion and will hear further evidence so long as it is relevant to a consideration of the best interests of the child. The decision will be based upon the circumstances of the particular case. (emphasis added by L'Heureux-Dubé J.)
[126] See Children's Aid Society of the Region of Peel v. W.(M.J.) and D.(R.) v. Children's Aid Society of Owen Sound, where the court at para. 21 determined that a flexible approach to admissibility of further evidence is desirable and is grounded in the best interests of the child:
[21] Given the inevitable fluidity in a child's development, in most cases it would be beneficial for a reviewing court to have the most current information possible to assist in evaluating whether a change in the factual matrix of a previous best interests determination warrants interference with that finding. Indeed, that is the purpose of s. 69(6) of the Act. In my view, the threshold of "potential decisiveness" has been met in these circumstances. The fact of the father's separation from the child's mother is highly relevant and worthy of consideration by the court in assessing the child's best interest.
[127] Past parenting evidence provides a reliable backdrop against which to measure the extent to which the respondent's abilities and circumstances have changed. The real impact of past conduct under the CFSA is not the conduct in and of itself but rather what the parent has done to resolve it.
[128] As indicated by Olah, J. in her decision of April 6, 2001 in Children's Aid Society of the County of Simcoe v. C.S., reliability of background evidence is based on the completeness of the particular piece of evidence, the age of the information and the extent to which the information contained in the past conduct is supported by direct interaction with the parent whose conduct is impugned. Subject to these caveats, the best indicator of a parent's likely future conduct is his or her past conduct.
[129] A detailed review of previous evidence must be taken into account. To allow admission of the same evidence that has already been dealt with would be to invite re-litigation of many of the points previously raised: see Kawartha-Haliburton Children's Aid Society v. D.C..
[130] See also: Durham Children's Aid Society v. Belanger, in which Rogers J. held that the execution of a consent by the CAS, the Mother and Children's Lawyer, pursuant to clause 37(2)(l) of the CFSA did not prevent the CAS from introducing evidence of past parenting other than the Agreed Statement of Facts.
[131] In Children's Aid Society of Algoma v. B.A., the court discussed subsection 50(2) as follows:
"... part of the reason for subsection 50(2) is to avoid dealing with disposition until a finding is made, as a finding is a condition precedent to any disposition under section 57. However, if a finding is made in a case, the Act does not, by subsection 50(2) require a repetition of any evidence that may apply to both finding and disposition that has already been adduced."
[132] Summary judgment has become more widely available since the passage of Rule 16. It is no longer considered an extraordinary remedy that is limited to only the clearest of cases. However, the jurisdiction to grant relief on a summary judgment basis in child protection and family law cases must be exercised cautiously, in keeping with the principles of justice, fairness and the best interests of children. See R.A. v. Jewish Family and Child Services, Children's Aid Society of Hamilton v. C.R., and Children's Aid Society of Halton Region v. K.L.A..
[133] A party responding to a summary judgment motion cannot defeat the motion by relying on mere allegations, blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial. Rather, they have a positive obligation to put their best foot forward to defend the motion with fulsome affidavit evidence. See Rule 16(4.1). The court must assume that the information put forward by the responding party is the best they have to offer at that stage. Kawartha-Haliburton Children's Aid Society v. W.M..
[134] Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion.
[135] In child protection cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent's evidence that the parent faces some better prospects than those that existed at the time of the Society's initial involvement, and has developed some new ability as a parent.
[136] The courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include "the nature of the evidence on the motion, any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issue to the case." Summary judgment is a means of controlling a child's drift in litigation and allowing for appropriate planning for the child in a timely manner. Children's Aid Society of Toronto v. C.(M.).
[137] The existence or non-existence of a fact, which is not determinative of the result of the proceeding, is not a fact material to an action requiring a trial. (Children's Aid Society of Ottawa-Carleton v. A.C. at para. 6).
[138] The nature of the evidence, the reasonableness of any potential plans, and the statutory time frames are all relevant to whether or not there is a genuine issue requiring a trial. (B. (F.) v. G. (S.) at para. 19).
[139] The Respondent father has virtually absented himself from the care and needs of his children since they came into care.
[140] Mr. M.'s current undertakings ring shallow. These children's need for their father existed then and not just some time in the future. His counsel is to be commended for providing sound advice to him to take programs in order to evidence some responsibility going forward. His current attitude is problematic and relevant on this motion.
[141] A trial will not alter the above facts and their impact on the lives of these children. Mr. M. has not done what is necessary to place his own life in order and develop sufficient maturity to assume the responsibility to care for his children. These children should not be subjected to his continued instability and lack of maturity in the "hope" that Mr. M. might turn his life around.
[142] Children's needs and developmental requirements are constant and cannot be parked and ignored while a parent(s) considers whether they have the capacity or inclination to protect and care for them. G. and M. have already waited too long for this to occur.
[143] The issues identified by the father do not give rise to a genuine issue.
Incarceration
[144] Parental incarceration clearly has negative consequences on minor children, including those who come from impaired family circumstances. See generally, John Hagan & Ronit Dinovitzer, Collateral Consequences of Imprisonment for Children, Communities, and Prisoners, 26 CRIME & JUSTICE 121, 124-26, 137-48 (1999) (discussing various harmful effects of parental incarceration on families, including loss of the parent's supervision, financial and social support, and mentor role as well as emotional and behavioural consequences on children).
[145] Children may be affected emotionally and behaviourally by the forced separation from their parents that incarceration requires. They may experience feelings of trauma, anxiety, shame, guilt, and fear, and display low self-esteem and social emotional withdrawal from friends and family. See Justice Brooks & Kimberly Bahna, It's a Family Affair – The Incarceration of the American Family, 28 U.S.F.L. REV. 271, 280 (1994), and Stewart Gabel, Behavioral Problems in Sons of Incarcerated or Otherwise Absent Fathers, 31 FAM. PROCESS 303, 306-07 (1992).
[146] I agree with Deseriee A. Kennedy, Children, Parents, and the State: The Construction of a New Family Ideology, 26 Berkeley J. Gender L. & Just. 78 (2011), that a parent's incarceration should not be the sole an independent factor. Rather, there should be a connection between the incarceration and parental wrongdoing, in order to avoid unnecessarily severing the parent-child relationship. Here the connection is obvious and ongoing.
[147] Goldstein, Freud, and Solnit believed that a child's relationship with his or her "psychological parent" should be protected at almost all costs. See Joseph Goldstein, Anna Freud, & Albert Solnit, Beyond the Best Interests of the Child (1973). The primary caretaker historically was supposed to identify the person most likely to be the best caregiver for the child because of his or her experience and assumed emotional bond with the child, as well as because it is consistent with the more general goal of promoting continuity and stability in a child's life. Neither of these parents fit under this umbrella.
[148] The psychological parent does not apply in these proceedings. It is too simplistic to suggest that the children are bonded to their parents. Many children have important relationships with a number of caregivers, including parents.
[149] Evidence that one parent abuses the other is a particularly powerful tool in itself for resisting the Respondent father's plan of care.
Domestic Violence
[150] Arguably, this is the case of unrebutted evidence of domestic violence which may outweigh consideration of any other factor in a best-interests analysis.
[151] There has been a "history of domestic abuse" between these parents.
[152] Whether either or both of the children witnessed the violence is irrelevant.
[153] The argument that domestic violence directed at an adult is irrelevant to a determination of a child's best interests and is clearly false. See, e.g., Lenore Walker, The Battered Woman Syndrome 59 (1984). Murray A. Straus, Richard J. Gelles, & Suzanne K. Steinmetz, Behind Closed Doors: Violence in the American Family, 216-17 (1988); and Peter Jaffe, David A. Wolfe, & Susan K. Wilson, Children of Battered Women 22-23 (1990); Jeffrey L. Edleson, The Overlap Between Child Maltreatment and Woman Battering, 5 VIOLENCE AGAINST WOMEN 134 (1999).
Conclusion
[154] I am satisfied based on the materials contained in the summary judgment motion record that a trial is not required in order to achieve a full appreciation of the evidence and the issues relating to the protection findings which the Society is requesting. The Society has led evidence that establishes a prima facie case for finding the children G. and M. in need of protection pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g) of the CFSA, on the basis of risk of both physical and emotional harm as defined in those sections.
[155] Court intervention continues to be necessary to ensure the protection and well-being of the children, G. and M.
[156] I find that the Society has satisfied the onus of proving that there is no genuine issue for trial on the issues of placement of and access to the children, and that the children should be made Crown wards without access.
[157] I have considered the serious and longstanding nature of the concerns which the Society has identified respecting these parents. I have considered Ms S.'s position in support of the Society.
[158] I have considered the children's physical and emotional needs.
[159] I find that numerous services have been recommended and offered to the Respondents. They have either not availed themselves of the services or have been unable to benefit meaningfully from the services.
[160] The onus is on Mr. M. to adduce evidence that an ongoing relationship with the children is beneficial and meaningful to them. He has failed to do so. Based on the evidence before me, I conclude that an order for no access to the children should issue.
Disposition
[161] Once the court determines that ongoing court intervention is required for the protection of the child(ren), section 57(1) directs the court to make one of the following orders, "in the child's best interests":
i. An order under section 57.1 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;
ii. An order 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 twelve months;
iii. An order that the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months;
iv. An order that the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society;
v. An order that the child be made a ward of the society for a specified period under section 57(1)2 and then be returned to a parent or another person subject to society supervision under section 57(1)1, for a period or periods not exceeding an aggregate of twelve months.
[162] Section 57(1) of the CFSA confirms that "the best interests of the child" is the governing principle for determining placement of a child in a Protection Application. Section 37(3) sets out the following factors which the court is required to consider in carrying out the best interests analysis:
Best Interests of a Child
37(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 take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
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.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
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's remaining with or returning to a parent.
The child's view and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
Access
[163] The case law provides guidance as to how, or if, that to grant access. See Gonthier J. in New Brunswick (Minister of Health and Community Services) v. M.L., and summarized as follows by Thibideau J. in J.A. v. J.B. (at para. 9):
After a permanent guardianship order is made access becomes a child right and the parental right to access ceases;
There is no inherent inconsistency between a permanent guardianship order and an access order;
However access in such circumstances is the exception and not the rule;
The consideration of preserving family ties is not a consideration in granting access unless all other relevant factors that make up the best interests of the child require that it be so;
Adoption cannot be hampered by an existing right of access;
Access should not be granted if it would negatively impact the physical or psychological health of the child.
[164] The Court adopted what it had previously said in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.) (at 559-560):
... the value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. In order to respect the wording as well as the spirit of the Act, it is crucial that this child-centred focus not be lost[.]
[165] The Court further noted (at 560):
Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to the other interests of the child such as security or psychological health... On the other hand, a child and a parent who are not attached to each other may not be granted access if the effect of doing so would be to disturb the child.
If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, access should not be granted... In other words, the courts must not allow the parents to "sabotage" an adoption that would be beneficial for the child[.]
[166] As I have already alluded, Section 59(2.1) of the CFSA establishes a presumption against access if the child is made a Crown Ward, as follows:
Access: Crown Ward
(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).
[167] The onus is on the party seeking access to satisfy the court on a balance of probabilities that the criteria set out in section 59(2.1) have been satisfied. See Catholic Children's Aid Society of Toronto v. M. (L.).
[168] The focus is on the importance of the relationship from the child's perspective. Quinn, J. outlined a number of important principles relating to the test in Children's Aid Society of Niagara Region v. J. (M.). He held that a beneficial relationship is one that is "advantageous," and a meaningful relationship is one that is "significant." The existence of some positive aspects in the relationship between a child and a parent is not sufficient to meet the first part of the test in section 59(2.1). The relationship must be significantly advantageous to the child. Even if the parent proves that the relationship is beneficial and meaningful, the court must still weigh the overall benefits of access to the child as opposed to no access before making a decision on the access issue.
[169] Bill 179, the Building Families and Supporting Youth to be Successful Act, 2011, S.O. 2011, c. 12, repealed former 141.1(a) of the Act. Societies may now place Crown Wards for adoption even where there is an outstanding access order, provided that they give anyone who has been granted an access order thirty days notice of the plan to place the child for adoption. Bill 179 also amended section 143(1) of the CFSA to provide that access orders in respect of Crown Wards are automatically terminated upon the child being placed for adoption, and granted those who have an access order in relation to a Crown Ward the right to apply for an openness order that would continue after adoption.
[170] The welfare of the child is the paramount consideration. As Lord MacDermott explained in J. v. C. [1070] AC 668, 711, this means that it 'rules upon or determines the course to be followed'. There is no question of a parental right. What is in the children's best interests? This is the paramount consideration. It is only as a contributor to a child's welfare that what is in the best interests of the child must be examined for its potential to fulfil that aim.
ORDER TO ISSUE
[171] The Society has satisfied the onus upon it of proving that there is no genuine issue requiring a trial for its resolution in this matter. Accordingly, a final order shall issue as follows:
The children G.I.S.M. (born […], 2009) and M.G.S.M. (born […], 2010) ("the children") are found not to be an Indian or native person, and not to have eligibility for Indian or native status.
The children are found to be in need of protection pursuant to section 37(2)(b)(i) and (ii) and 37(2)(g) of the Child and Family Services Act.
The children are hereby made Crown Wards, and shall remain in the care of the Catholic Children's Aid Society of Toronto.
There shall be no access to the children.
[172] Parties to be notified.
Released: May 30, 2012
Signed: "Justice Zuker"