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.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court File No.: C55705/11

Date: 2012-10-15

Ontario Court of Justice

Toronto North Family Court

In the Matter of an Amended Protection Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of D.B., born on […], 2011.

Parties

Between:

Children's Aid Society of Toronto

Simon Fisch, for the Applicant

Applicant

- and -

B.B. and R.T.

Joseph Kary, for the Respondent, B.B.

Respondents

Cynthia Pon, for the Respondent, R.T.

Heard: October 9, 2012

Justice: S.B. Sherr

Reasons for Decision

Part One - Introduction

[1] The Children's Aid Society of Toronto (the society) has brought a summary judgment motion pursuant to Rule 16 of the Family Law Rules (the rules) requesting the following orders:

a) That the statutory findings pursuant to subsection 48(3) of the Child and Family Services Act (the Act), be made in accordance with the society's protection application dated December 23, 2011.

b) That the child, D.T., born on […], 2011, be found to be a child in need of protection pursuant to clause 37(2)(b) of the Act.

[2] The respondents, B.B. (the mother) and R.T. (the father), are the parents of D.T. (the child). R.T. supports the society's summary judgment motion. B.B. asks that the summary judgment motion be dismissed. Neither of the respondents opposed the statutory findings sought by the society and that order will be made.

[3] I reviewed the affidavits of Deanna Lelevicius, sworn on December 22, 2011, March 13, 2012 and August 14, 2012, Shannon Deacon, sworn on August 13, 2012 (these affidavits filed by the society in support of their motion), the father, sworn on September 7, 2012 and October 4, 2012, the mother, sworn on March 5, 2012, March 9, 2012, September 4, 2012, October 2, 2012 and October 9, 2012, Jacqueline Heron, sworn on October 1, 2012, and Anna Stranges, sworn on October 1, 2012 (the latter two affidavits sworn on behalf of the mother), and heard submissions from counsel for all of the parties.

[4] This summary judgment motion is only about whether the child should be found in need of protection. It is not about what dispositional order will be made for the child.

Part Two – The Law on Summary Judgment

[5] Rule 16 of the rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:

When Available

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial.

Evidence of Responding Party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence Not From Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[6] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged, the responding party must prove that its defense has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence that the parties would present at trial. Toronto-Dominion Bank v. Hylton, 2012 ONCA, par. 5.

[7] Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. Jewish Family and Child Services of Toronto v. A.(R.), 2001 O.J. No. 47 (SCJ).

[8] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.).

[9] The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence at a summary judgment motion. This is reserved for the trier of fact. Children's Aid Society of the District of Nipissing v. M.M., [2000] O.J. No. 2541 (SCJ); Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ).

[10] The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.); Children's Aid Society of the Regional Municipality of Waterloo v. H. (T.L.), 2005 ONCJ 194, [2005] O.J. No 2371 (Ont. C.J.).

Part Three - Background Facts

[11] The mother is 35 years old and the father is 56 years old.

[12] The mother is single and has no living children, other than the subject child.

[13] The respondent has six children, including the subject child. One of his children, age 16, lives with him.

[14] The parents started their relationship in September of 2010. They were living separate and apart when the child was born.

[15] The child was apprehended at birth, at the hospital, by the society, based on the protection concerns that will be set out in detail below.

[16] On December 23, 2011, Justice Geraldine Waldman placed the child in the temporary care and custody of the society, with access to the parents to be in the discretion of the society as to frequency, duration and level of supervision, not to be less than twice per week.

[17] The mother subsequently filed affidavit material in anticipation of a temporary care and custody hearing. On March 16, 2012, the parties advised the court that they would not proceed with the temporary care and custody hearing and that, instead, the mother would participate in the society's Therapeutic Access Program. This is a program where the parent receives hands-on parenting education and assistance during access visits.

[18] The mother participated in the Therapeutic Access program until June 8, 2012.

[19] The mother moved to Montreal on July 1, 2012 and now resides there.

[20] The society amended their protection application on August 22, 2012 to seek a dispositional order for crown wardship, no access, for the purpose of adoption.

[21] The mother is currently exercising access once each week, supervised at the society office. She comes in weekly from Montreal to see the child.

[22] The father is also exercising access once each week, supervised at the society office.

Part Four - Evidentiary Issues

4.1 Evidentiary Standard

[23] The mother raised several evidentiary objections to the affidavit material relied upon by the society at the outset of the motion. Most of the objections related to the society including inadmissible hearsay evidence in the affidavits.

[24] In Windsor-Essex Children's Aid Society v. S.M.D., 2011 ONCJ 311, [2011] O.J. No. 2858, Justice Sharman Bondy conducted an exhaustive review of the case law interpreting the evidentiary standards to be applied on summary judgment motions. She found that one judicial approach seems to allow for some limited admission of hearsay given the "permission" that may be allowed under subrules 16(5) and 14(9) of the rules. See: Huron-Perth Children's Aid Society v. C.H. et al, 2007 ONCJ 744; Children's Aid Society of Algoma v. E.W. et al, [2001] O.J. No. 2746 (OCJ). Another judicial approach is not to admit any evidence on a summary judgment motion that would be inadmissible at trial. See: Children's Aid Society of Hamilton v. M.N., supra, and Bruce Grey Child & Family Services v. DN, 2012 ONSC 4992.

[25] My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination.

[26] I will adopt the approach taken by Justice Roselyn Zisman in Children's Aid Society of Halton Region v. E.S.M., 2010 ONCJ 776 where she writes in Paragraph 37:

[37] But in this case, the trial affidavits continued the practice of repeating much of the same hearsay evidence. I therefore agree with the submissions of counsel for the mother that no weight be put on any of the hearsay statements in the affidavits filed by the society. Many of the hearsay statements contain information that is highly relevant to the issues in this case such as, information about the mother's mental health, the state of the mother's apartment and concerns by the foster mother about the mother's telephone access and the foster mother's observations of the child. This first hand evidence could and should have been introduced by the society if it intended the court to rely on it. Therefore, I have only considered this hearsay evidence as background information to put into context the steps taken by the society worker because of the information received [emphasis mine].

[27] The mother also asked me to exclude statements made to society workers by both her and the father. These statements are admissible. In the Law of Evidence, 5th Edition, David M. Paciocco and Lee Steusser, the authors write that a party may introduce into evidence against an opposing party any relevant statement or act of the opposing party. They write at pgs. 147-148:

Admissions are acts or words of a party offered as evidence against that party. Professor Younger provides this rule of thumb: "Anything the other party ever said or did will be admissible so long as it has something to do with the case". Often the phrase, admission against interest is used. Beware. The phrase invites confusion between an admission made by a party and the completely different hearsay exception for "declarations against interest" made by non-parties. An admission does not require that a party knowingly make a statement against interest. The evidence is "against interest" simply because the opposing side has decided to introduce it at trial against the other party.

[28] The parents made multiple allegations against one another in their affidavits and to the society. It was not necessary for the court to divine who was telling the truth and these statements were not used for this purpose. This evidence informed the court about the level of dysfunction in the parties' relationship.

[29] Lastly, the affidavits filed by the society included summaries of protection concerns and statements of position. These were not relied upon for the truth of the contents, but were treated as context for the factual statements that followed.

4.2 Discrete Affidavits for Summary Judgment Motions

[30] The society ran afoul of the evidentiary rules in this motion by relying on previous affidavits prepared in anticipation of a temporary care and custody motion. The problem with doing this is that different evidentiary standards apply on temporary care motions. Subsection 51(7) of the Act permits evidence that the court finds credible and trustworthy in the circumstance to be admitted on temporary care and custody motions. It is common to have hearsay evidence filed on such motions. The evidence is usually rapidly developing at this stage of the case and courts recognize that there often isn't sufficient time to obtain first-hand affidavits.

[31] However, evidence that is admissible on a temporary care and custody motion is not necessarily admissible on a summary judgment motion. The time constraints that existed at the temporary care and custody motion should no longer exist by the time a summary judgment motion is heard. The society has sufficient time to obtain affidavits from the persons that they would call as witnesses at a trial. They have the time to obtain their best evidence – admissible evidence, and they have the time to obtain and give the proper notices to introduce medical reports and business records as set out in the Evidence Act.

[32] The best practice is for the society to provide discrete affidavits for summary judgment motions that comply with the rules of evidence. Relying on affidavits filed on a temporary care motion will often be problematic.

[33] Next, I will address specific evidentiary issues in the society affidavits.

4.3 The Affidavit of Ms. Lelevicius Sworn on December 22, 2011

[34] This affidavit was prepared in support of the society's motion to place the child in care after he was apprehended. This affidavit includes considerable hearsay and, at times, multiple hearsay. An example of this is at paragraph 34 of the affidavit which starts as follows:

According to Ms. Clippingdale-Marshall's recordings, on September 28, 2001, Ms. Cheryl Dillon, Public Health nurse, reported to her that the mother had advised her of the following:

[35] The affidavit sets out evidence received from third parties reported to society workers, Ms. Clippingdale-Marshall, Ms. Penton and Ms. Lelevicius.

[36] The society provided no explanation as to why Ms. Clippingdale-Marshall and Ms. Penton did not file affidavits. This would have not been difficult. They have been employed by the society, and their evidence only goes back one year.

[37] Paragraphs 7-30 of this affidavit contained the mother's history as a crown ward, and the history of referrals about the mother to the society.

[38] During argument, the society indicated that they would not rely on the mother's history as a crown ward, so I did not consider paragraphs 7-11 of this affidavit.

[39] The history of society openings covers the period from 2001-2009. This is relevant evidence, as a backdrop to consider the more recent protection concerns. The evidence from the opening in 2001 related, to a limited extent, to past parenting and the court can consider this pursuant to subsection 50(1) of the Act. I find that the presentation of the historical evidence by the society in this form (summarized by the current worker) was necessary. There are multiple persons referred to in the affidavit who provided the society with evidence about the mother over this time span. It would be unrealistic to obtain affidavit evidence from each of them, so many years after their involvement. It would also be unfair to bombard the parents with voluminous historical records from the society. Further, the evidence was recorded by society workers, who had a duty to record the information contemporaneously, and it is likely more reliable than the evidence that could be obtained from those witnesses today. Lastly, the reliability of this evidence was buttressed by the mother's acknowledgement of historical mental health and substance abuse challenges, much of which she attributed to a combination of cocaine use and being given inappropriate anti-psychotic drugs by her doctors. The mother's position was that she had adequately addressed these issues at the time of the child's apprehension, not that these issues had not existed.

[40] To the extent that the historical society information contained first-hand hearsay, I considered it, applying the principled hearsay exception of necessity and reliability set out in R. v. Khan, [1990] 2 S.C.R. 531. I considered second-hand hearsay (reports made by community referrals to the society) only for the purpose of understanding why the society acted in the way it did, and not for the truth of the contents. Due to the historic and second-hand nature of much of the evidence, I attached lesser weight to it.

4.4 The Affidavit of Ms. Lelevicius Sworn on March 13, 2012

[41] Paragraph 19 of this affidavit contains Ms. Lelevicius' opinion about the mother's mental status. She is not qualified to give this opinion and no weight was given to it.

[42] I did not place any weight on statements made by third parties to Ms. Lelevicius. There were multiple examples of this in the affidavit.

[43] Ms. Lelevicius expressed concerns about the mother's parenting in paragraphs 83-93 of her affidavit. There is no indication that she directly observed any of the mother's visits with the child. It appears that all of this information came from third parties. I did not place any weight on this evidence.

4.5 The Affidavit of Ms. Lelevicius Sworn on August 14, 2012

[44] Paragraphs 9-11 of this affidavit set out summaries of prior medical reports. None of these reports were attached as exhibits to the affidavit. The mother did not dispute that she had numerous mental health admissions, so I considered this evidence for that limited purpose. However, I was not prepared to give any weight to the different diagnoses from doctors set out in the affidavit that the mother contested. Better evidence could have been presented.

[45] Paragraph 13 of the affidavit was hearsay from another society worker and no weight was placed on it.

[46] An example of troubling inadmissible hearsay evidence was contained in paragraph 16 of this affidavit. It refers back to Ms. Lelevicius' December 22, 2011 affidavit where she states that she spoke to a police officer who told her that the police had extensive involvement with the mother, with over 100 hits on CPIC. The society had considerable time to obtain police records, confirm if this statement was accurate and give the court information about when these "hits" took place and what they were about. None of this evidence was provided. No weight was placed on this statement.

[47] Paragraphs 35-40 of the affidavit contain information received from the Therapeutic Access Program. It is clearly inadmissible hearsay evidence and I placed no weight on these paragraphs.

[48] With respect to Paragraph 19 of the affidavit (relating to the mother's failure to attend at a criminal court hearing to obtain a peace bond against the father), the mother had ample opportunity to provide evidence to the court that she did attend at criminal court or to provide a copy of the peace bond, so this evidence was considered.

4.6 The Affidavit of Shannon Deacon Sworn on October 4, 2012

[49] Ms. Deacon works for the society and is their Therapeutic Access Coordinator. Her affidavit was filed by the society as reply evidence.

[50] The mother objected that this affidavit was not proper reply evidence. The society argued that it was proper reply evidence, as it responded to evidence filed on behalf of the mother regarding her parenting of the child.

[51] I agree with the mother that this was not proper reply evidence. The mother and her supporting witnesses were addressing the hearsay evidence given by Ms. Lelevicius (as related to her by Ms. Deacon) about her parenting ability in their responding affidavits. She couldn't have been expected to let these allegations go unaddressed and hope that the court would disregard them. The evidence from Ms. Deacon could have and should have been included in the society's original summary judgment material. Instead, the society chose to incorporate her evidence into the affidavit of Ms. Lelevicius. It is interesting to note that the front page of Ms. Deacon's affidavit is dated August 13, 2012 (the day before Ms. Lelevicius' final affidavit), but was not sworn until October 4, 2012. No explanation was given for the failure to file this affidavit as direct evidence.

[52] Subrule 14(20) of the rules reads as follows:

Restrictions on evidence. The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:

1. The party making the motion shall serve all the evidence in support of the motion with the notice of motion.

2. The party responding to the motion shall then serve all the evidence in response.

3. The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.

4. No other evidence may be used.

[53] Subrule 14(20) of the rules sets out a clear process for the introduction of evidence at a motion. Compliance with this process should be the rule and not the exception. The onus is on the party seeking leave to introduce evidence not falling within paragraphs 1-3 of the sub-rule to justify its admission.

[54] In Fakhim v. Shirazi, 2007 ONCJ 126, par. 9, I set out the appropriate procedure for a party to follow seeking admission of an additional affidavit pursuant to subrule 14(20) as follows:

9 If a party is seeking leave to admit an affidavit pursuant to subrule 14(20), the best practice is to serve and file a motion with supporting material. If the other party or parties do not consent to the admission of the affidavit, these motions should generally not be submitted by over-the-counter motions under clause 14(6)(e.2) of the rules via Form 14B. A Form 14 motion seeking leave to file the affidavit is preferred so that submissions as to admissibility can be made in open court, as well as any requests for adjournment (and terms of adjournment) that may result from the admission of the affidavit. If it is impractical to bring this motion prior to the hearing of the primary motion (which I understand will often be the case), then this motion should be returnable on the same day as the date for the hearing of the primary motion and the confirmation form sent to the court should indicate that the introduction of the affidavit will be in issue. The affidavit should not be filed without prior leave of the court.

[55] The society did not follow this procedure.

[56] Notwithstanding the procedural irregularity, the court has the discretion to admit the affidavit and "to order otherwise" as described in subrule 14(20). In paragraphs 7 and 8 of Fakhim, supra, I wrote as follows:

7 In Winton v. Lofranco (2004), 7 R.F.L. (6th) 444, [2004] O.J. No. 3418, 2004 CarswellOnt 3346 (Ont. S.C.), Justice Susan G. Himel allowed a party to file an additional affidavit at a motion and held, at paragraph [20], that the court should take an expansive rather than a technical approach to the admission of evidence when children are involved, provided the evidence is relevant, necessary and probative to the matters in issue.

8 In determining whether all or part of an affidavit should be admitted into evidence, despite the evidentiary restrictions in subrule 14(20), the court needs to strike a balance between the importance of ending the delivery of duelling affidavits on motions and the importance of receiving all relevant evidence. Subrule 14(20) is designed to prevent the additional time, expense and escalation in tensions associated with a multiple exchange of affidavits. However, courts need to be sensitive to the reality that a significant number of litigants, especially in this court, are unrepresented. Many of these litigants are unsophisticated and have challenges with language and literacy. It would not be just to hold these persons to a strict evidentiary standard, as important evidence, affecting the best interests of children, would not be received. Often, the unrepresented litigant will file an unsophisticated affidavit to start the case and it is critical to have this affidavit supplemented. The court also needs to be attuned to the fact that custody and access cases are not static. Fresh and relevant evidence is continually unfolding and often needs to be brought to the court's attention. In my opinion, the court needs to be flexible in its response to individual fact situations when dealing with this subrule.

[57] I will admit this affidavit. It is in the best interests of the child to make this important decision about his future, based on the best possible evidence. The mother was not prejudiced by this evidence as she had the time and opportunity to make full reply (I admitted the mother's responding affidavit on the motion date). She was not caught by surprise by the contents of the affidavit. I might have ruled differently if the mother had received late notice of the affidavit that would necessitated a lengthy adjournment of this motion, unduly delaying a decision for the child.

[58] This all said, Ms. Deacon's affidavit had very limited value for the purpose of this summary judgment motion. It contained inadmissible hearsay and, at times, it was unclear if the observations were made by Ms. Deacon or someone else. I did not place any weight on such paragraphs. The affidavit primarily dealt with concerns about the mother's ability to parent the child. Due to the flaws in her evidence and the contradictory evidence provided by the mother and her supporting witnesses, I find that the society was unable to show that there was no triable issue that the child was in need of protection under clause 37(2)(b) of the Act, based on the mother's parenting deficiencies as demonstrated at the Therapeutic Access Program.

Part Five – Finding in Need of Protection

5.1 The Law

[59] The society seeks a finding that the child is in need of protection pursuant to clause 37(2)(b) of the Act. This clause reads as follows:

37(2)(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

[60] The society has the onus, on a balance of probabilities, to establish that the child is at risk of physical harm.

[61] The risk of harm under clause 37(2)(b) of the Act must be real and likely, not speculative: See: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273, (Ont. Fam. Ct.).

[62] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754, (Ont. Fam. Ct.); Children's Aid Society of Brant v. James Albert T. and Melissa Marie S., 2005 ONCJ 302, (Ont. C.J.), at paragraphs [13]-[26]. The parties had disclosure of the relevant evidence in this case.

5.2 Introductory Comments on Finding

[63] In making this decision, I only relied on facts that were admitted or not contested, or were only baldly denied by the parents. The evidence below contains statements that Ms. Lelevicius and Ms. Deacon state were made to them by the mother. The mother did not deny making any of these statements.

[64] Much of the mother's argument on this motion was focused on evidence that was only relevant to the disposition phase of this case. She made submissions about the gains she has made since the child was apprehended and the accordant reduction in the risk of harm to the child. She submitted that the society has not assisted her in finding appropriate services and has not facilitated her access, particularly since she moved to Montreal in July of 2012. She submitted that the society has not adequately investigated her new plan in Montreal and has not given her the opportunity to parent. These are all concerns that will have to be explored when the court deals with the issue of disposition, but the society has not brought a motion for summary judgment on the issue of disposition. This motion is limited to the narrower issue of whether or not the child should be found in need of protection.

[65] The society evidence went well beyond the factual findings that they asked me to make during their submissions. I will narrow my analysis to the factual findings that they asked me to make.

[66] The society argues that there are three primary protection concerns that justify this court finding the child in need of protection: the mother's mental health, her drug use and the level of domestic violence between the parents.

[67] I find that the society met their onus of establishing that there is no triable issue that the child is at risk of physical harm pursuant to clause 37(2)(b) of the Act, based on a combination of these protection concerns. I will review the evidence that supports each of these concerns below.

5.3 Mental Health

[68] The mother has had an extensive mental health history resulting in multiple hospitalizations.

[69] The society has had numerous case openings due to referrals about the mother's mental health.

[70] The first society case opening was in 2001 after the mother gave birth to twins. One of the twins died during delivery. Based on their previous history with the mother as a crown ward and reports from the police, a warrant of apprehension was obtained by the society for the surviving twin. At the time, the society records indicate that the mother admitted that she drank a lot and used crack cocaine, but claimed to have been clean for three years. The health of the second child declined and this child died nine days after her twin.

[71] The second society case opening was in July of 2004. Anna Stranges (who filed an affidavit in support of the mother on this motion) made a referral to the society. The society was advised that the mother had come to her reporting that she had given birth to twins a couple of days earlier and the society had apprehended the twins. The file was closed when it was determined that the mother had not in fact given birth to any children at that time.

[72] The third society case opening was in July of 2005. The society received a referral from Women's Own Detox, reporting that the mother was pregnant and delusional about her twins. The society put in a plan to provide services for the mother, but she miscarried and the file was closed.

[73] The fourth society case opening was in January of 2006. This referral came from a doctor on the Toronto Western Hospital Crisis Team, claiming that the mother had come to the hospital saying that she was 6 to 8 weeks pregnant, had been using crack cocaine daily for the last 8 months, her boyfriend had assaulted her and she refused to involve the police. In February of 2006, the society also received a referral from St. Joseph's hospital reporting that the mother had attended there, claiming that she had fled detox and would kill herself and the baby in an effort to keep the society from taking her baby. The society had no information as to whether the mother gave birth or miscarried. They closed their file.

[74] The fifth society case opening was in May of 2008. The society received a referral from a doctor at St. Michael's Hospital Crisis Centre reporting concerns about the mother's mental stability and that the mother was reporting she had given her children to her adoptive mother to look after. The society investigated and ascertained that the mother had no children.

[75] The sixth society case opening was in December of 2008. The society received a referral from a social worker at Toronto East General Hospital reporting concerns about the mother's mental health, use of crack cocaine, and abuse from her partner. The mother was pregnant. The mother subsequently advised the society that she miscarried and the file was closed.

[76] The seventh society case opening was in November of 2009, once again a referral from the same social worker from Toronto East General Hospital, reporting that the mother claimed that she had lied to the society and had a child living with an aunt in Montreal. The mother denied having another child, no evidence was found about another child, and the file was closed.

[77] The eighth and final society case opening related to this child and came from Breaking the Cycle, a drug treatment program, in August of 2011.

[78] The Public Guardian and Trustee for Ontario has managed the mother's finances since 2000.

[79] The mother deposed that she was placed in the care of the society at age 15 and placed on anti-psychotic medication that had severe side effects. She described severe trauma as a teenager, deposing that she was raped while at a psychiatric hospital. She deposed that, "later on, the crack and the prescribed medication became a reinforcing cycle, in which I took one to help the other".

[80] The mother deposed on March 5, 2012 that:

I began to use crack cocaine in about 2001, after the death of my new-born twin daughters. I have been diagnoses [sic], with depression and post-traumatic stress disorder, and while still a teenager in the care of CAST was prescribed psychotic medication by the CAST's doctors which had terrible side effects.

[81] The mother was admitted to the Sunnybrook Health Sciences Centre (Sunnybrook) on September 28, 2011, less than three months before the child was born. She remained in the hospital until October 4, 2011. The discharge summary from Sunnybrook was filed on this motion. The contents of the report were not contested. It set out the following:

a) The patient has a complicated social history in childhood with sexual abuse and she is already being seen by Psychiatry, but the patient does not follow the psychiatrist's advice and she stops medications without referring to anyone.

b) The patient is also known to have post-traumatic stress disorder with follow-up with psychiatry and she was taking antiepileptic and antipsychotic medications, but the patient stopped all medications in the pregnancy without advice.

c) Recommendations to the mother to see the neurology team regarding follow-up about epilepsy and the reintroduction of medications; to see and follow-up with psychiatry regarding the post-traumatic stress disorder.

[82] The report states that the mother was given an appointment with Neurology at St. Michael's hospital within one to two weeks. She did not keep this appointment.

[83] The mother deposed on March 9, 2012, and on September 4, 2012 that she was no longer taking the anti-psychotic medication. She deposed on March 9, 2012:

I continue however suffer [sic] from some of the old side effects. Although I think more clearly, it is hard to hold my neck up, so that my head tends to droop towards my chest or shoulder. I still have difficulty fully articulating my speech; I cannot fully open my mouth and my tongue still feels heavy. My hair will still not grow out. The drooling is significantly less, but happens from time to time. There has been a lot of improvement in the past year however, and for example I can talk more clearly than before; I hope that these things will continue fading and go away the longer I am off the medication.

[84] In her affidavit sworn on October 9, 2012, the mother deposed that her understanding was that her recent assessments pointed towards a diagnosis of post-traumatic stress disorder and depression. She said that she learned this from Dr. Krisman, a psychiatrist. She did not set out when she learned this.

[85] While living in Ontario, the mother received disability payments on the basis of her post-traumatic stress disorder.

[86] The mother filed no evidence that she followed up with the recommendations from Sunnybrook.

[87] The mother filed no evidence from a psychiatrist about her psychiatric state at the time of the apprehension, or since the apprehension.

[88] The mother has not yet seen a psychiatrist in Montreal.

[89] The society's evidence established a very real protection concern based on the mother's mental health. Presented with such evidence, the mother needed to provide some clinical evidence, such as a psychiatric report, to rebut it. She failed to provide any such evidence.

[90] Taking her evidence at its highest, the mother may have been making some mental health gains, but not nearly enough that she could safely parent a vulnerable infant at the time of the apprehension. This placed the child at risk of physical harm. The gains that the mother states she has made in her mental health since the child's apprehension will be relevant when deciding the disposition phase of this case.

5.4 Substance Abuse

[91] The mother admitted in submissions that she is a drug addict.

[92] The mother deposed that she began using crack cocaine in 2001.

[93] The mother deposed that she was convicted of trafficking in drugs in 2005 and sentenced to 30 days in jail.

[94] The mother deposed in her affidavit sworn on March 5, 2012 that she stopped using all drugs when she learned that she became pregnant with the child. In her affidavit sworn on March 9, 2012, she stated that she used marijuana to control nausea through her pregnancy.

[95] The Sunnybrook discharge report states:

The social history is complicated by marijuana smoking on a daily basis and the patient also smokes crack cocaine. The patient claims that she stopped using crack since March 2011. She also says that she increased her marijuana consumption since she stopped the use of crack cocaine…….

[96] Ms. Lelevicius deposed that the mother told her on December 15, 2011 that she used marijuana early in her pregnancy, but denied to her that she continued to use marijuana throughout the pregnancy, despite a positive urine screen at birth.

[97] Ms. Lelevicius deposed in her affidavit sworn on December 22, 2011 that the mother advised her that she had an addiction to crack cocaine and last used it in March of 2011. She would use cocaine weekly when she got paid. The mother advised Ms. Lelevicius that she attended at Women's Own Detox to get clean and completed their day treatment program in February 2011.

[98] Ms. Lelevicius deposed that the mother was highly resistant to the society's request to obtain hair-strand testing. She asked the mother to attend for this testing in February of 2012. She deposed that the mother became very agitated when she made these requests. She said that the mother eventually agreed under protest and accused her of terrorizing and provoking her. The mother went for the hair strand test on April 17, 2012.

[99] The society filed the mother's hair strand results, together with an interpretation report from Julia Klein from Drug Testing Consultants.

[100] The hair segment tested represented three months of hair growth, covering the period from early January until early April of 2012.

[101] The hair sample tested positive for cocaine and its metabolites, opiates and marijuana. The cocaine was present at a very high concentration. The metabolites benzoylecgonine and norcocaine were present at a low concentration.

[102] Ms. Klein reported that the presence of cocaine at such high concentration suggests that the mother used large amounts of it frequently, probably daily, in this three-month period.

[103] The mother tested positive for marijuana at a high concentration, suggesting, Ms. Klein reported, daily use in this three-month period.

[104] Ms. Klein reported that the meconium test result of the child at birth suggested that the mother used marijuana and codeine during her pregnancy, at low concentrations, but did not use cocaine during her pregnancy.

[105] The mother denies that she was using cocaine during this testing period. She argues that she was able to function normally during this time, keeping appointments and attending at access visits. Jacqueline Heron also deposed that the mother did not appear to be impaired during this time, and was keeping appointments. She expressed her opinion that the mother didn't behave like the typical habitual crack cocaine users she encounters. The mother claimed that one drug which is shown on the test results, benzodiazepine, is a by-product of a prescription medication she has taken since the child was born and argued that the other positive test results were likely residue of past use. She provided no clinical evidence to support these statements.

[106] The mother was required to put her best foot forward to rebut the evidence of drug use presented by the society during this period. If this is the extent of the evidence that she would have presented at a trial, it is insufficient to rebut the findings in the hair strand test. Her evidence amounts to little more than a bald denial. The evidence of Ms. Heron has limited use on this issue. She is not always present with the mother and wouldn't know if she was using drugs when she wasn't having contact with her. The mother filed no clinical evidence to challenge the test results.

[107] The evidence establishes that the mother was using marijuana regularly while pregnant and both cocaine and marijuana regularly from January to April of 2012.

[108] The mother's drug use during this period, in light of her history of drug addiction, created a risk of physical harm to the child. The risk was that the mother would become impaired and would be unable to safely care for or respond to the child's physical needs.

[109] The protection concern about the mother's drug use is exacerbated by her mental health issues. The mother acknowledged in her past that many of her mental health problems were as a result of drug use. This would be a dangerous mix for any baby in her care.

[110] The mother claims that she is now clean of drugs and invites the society to arrange another hair strand test. She provided clean urine screens for May and June of 2012. The mother's current drug use (or abstinence) is an issue that will go to the disposition phase of this case. It would be helpful for the court if the society arranged for the mother to take a new hair strand test, segmented for six months.

5.5 Domestic Violence

[111] The mother's relationship with the father has been chaotic and violent, and poses a risk of physical harm to the child.

[112] In response to concerns being raised by community service providers for the mother, Ms. Lelevicius deposed that, prior to the child's birth, she asked her if there was any domestic violence between her and the father. The mother denied that there was any domestic violence between them.

[113] However, the mother subsequently advised Ms. Lelevicius on January 12, 2012 that she did not feel safe living in the same building as the father.

[114] The society took steps to keep the mother safe from the father. They arranged for separate access times for the parents and asked the mother to obtain a peace bond against the father.

[115] Ms. Lelevicious deposed that the mother told her that she obtained a peace bond against the father. She said that the mother produced to her an application for a peace bond, returnable in criminal court on March 21, 2012. In the peace bond application, the mother wrote:

Mr. Thompson broke my arm; beat me while I was pregnant without son. Flow me [sic], show up when not invited. My last safe place is church now he start coming after been with him for 2 and one half years.

[116] The parents came together to the society office for an access visit on January 19, 2012. Ms. Lelevicius observed that the mother, in response to comments made to her by the father, became agitated and started raising her voice and crying while she was feeding the baby. Ms. Lelevicius had to intervene and asked the father to leave the visit.

[117] When the father left the visit, Ms. Lelevicius deposed that the mother said that the father had been terrorizing her for weeks. She asked Ms. Lelevicius to ask the father to leave her alone. The mother admitted to Ms. Lelevicius being at the father's place two weeks before.

[118] Ms. Lelevicius deposed that on January 20, 2012 the mother expressed a number of concerns to her about the father. She told her how he goes after vulnerable young women and that he went to jail for beating a woman. She showed Ms. Lelevicius a broken window in her apartment with shards of glass still in the window and told her that the police had attended at the home and she went to the doctor. She admitted to Ms. Lelevicius going to the father's home three times since the child was born.

[119] Ms. Lelevicius deposed that the father told her that he had been jailed for three months after being charged with assaulting a prior partner, but that he denied the assault. He told her that the matter was eventually resolved by his signing of a peace bond. He showed her a court order dated August 24, 2009, providing that he have no access to the child he had with this partner.

[120] Notwithstanding the mother's stated fear of the father, the parents came together again to the society office for the January 26, 2012 visit (despite the society arranging separate access times for them). Ms. Lelevicius deposed that she attempted to have the mother wait for the child in a separate room, but she refused.

[121] Ms. Lelevicius deposed that the mother told her later that day that she was fearful of the father. She advised the mother to go to a shelter and call the police. She deposed that the mother did not want to do this and told her that she hoped to move shortly (the mother was living in an apartment in the same building as the father at the time).

[122] On February 21, 2012, the mother advised Ms. Lelevicius that the father would not be attending the visit. This was indicative that the parents were continuing to have contact.

[123] Ms. Lelevicius deposed that starting in February of 2012 the father would report that the mother was pregnant and when asked, the mother would deny this.

[124] The mother did not attend at the criminal court date on March 21, 2012 and never obtained the peace bond against the father. Of note is that the mother deposed in her March 5, 2012 affidavit that she had obtained the peace bond, when the hearing wasn't taking place until March 21, 2012.

[125] On May 8, 2012, the mother advised Shannon Deacon that she had been pregnant but lost the baby. She admitted that it was the father's child and that she had initiated and engaged in intimate relations with him with the hope of reconciliation, which she hoped would increase her chances of having the child returned to her.

[126] On May 13, 2012, the mother was arrested for assaulting the father. The father was subsequently arrested and charged with assault, forcible confinement and sexual assault against the mother. Both parents deny the allegations against them.

[127] The mother deposed that she moved to Montreal on July 1, 2012 to make a clean break from the father and so that she wouldn't have the ready access to drugs that she had in Toronto.

[128] The father made numerous allegations against the mother in his affidavit. He accused her of being a crack addict, running a crack house, begging him for money for drugs, assaulting him and harassing him and his child (all denied by the mother).

[129] I wish to emphasize that the court is not making a finding that any of the allegations made by the mother or the father against the other are true. However, what they do show is that they had a dysfunctional and violent relationship and despite the society's reasonable direction to keep apart, they continued to have contact, culminating in the serious reciprocal criminal charges in May of 2012.

[130] The mother claims to have been violently assaulted (and in her words, terrorized) by the father, yet she continued to see him, had intimate relations with him and went to visits with him. She had the opportunity to protect herself by obtaining a peace bond, but did not follow through with this. This court recognizes that the dynamics of domestic violence are complex. However, the evidence is clear that the mother was unable to protect herself, let alone a vulnerable infant during this time.

[131] If the child had been in her care, it is more probable than not that he would have been at risk of physical harm. The mother was exercising poor judgment, was not taking appropriate steps to ensure her safety and it is likely that she would have exposed the child to dangerous confrontations between her and the father.

[132] The mother claims that she has recently addressed the domestic violence issue by moving to Montreal. Again, this will be relevant when the disposition phase of this case is considered. It is not relevant to the finding phase of this case.

Part Six – Conclusion

[133] The evidence supports a finding that there is no triable issue that the child is in need of protection based on any of the discrete issues of the mother's mental health, substance abuse and domestic violence. Taken together, the evidence is overwhelming that this child should be found in need of protection pursuant to clause 37(2)(b) of the Act. The mother has no realistic chance of success if the issue of finding goes to trial.

[134] An order will go on the following terms:

a) Statutory findings, pursuant to subsection 48(3) of the Act are made as set out on page 3 of the society's protection application dated December 23, 2011.

b) The child is found to be in need of protection pursuant to clause 37(2)(b) of the Act.

[135] The matter will return to court on October 23, 2012 at 2 p.m. to hear the mother's motion to transfer this case to Montreal, or to another territorial jurisdiction in Ontario closer to Montreal, and to increase her access. On this motion, the gains that the mother has set out since the child was apprehended will be considered.

[136] I thank counsel for their professional presentation of this motion.

Date: October 15, 2012

Justice S. B. Sherr

Footnotes

[1] These subrules read as follows:

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

16(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

AFFIDAVIT BASED ON OTHER INFORMATION

14(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.

[2] This subsection reads as follows:

Evidence

Past conduct toward children

50(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.

[3] Jacqueline Heron, the mother's addiction counsellor deposed that Dr. Krisman eliminated many of the mother's medications, which helped her mental health. However, it was unclear from her affidavit when this happened and what medications were eliminated. The court was not provided with a medical report from Dr. Krisman.