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.: Brampton 20012/10

Ontario Court of Justice

Between:

Children's Aid Society of the Region of Peel, Applicant,

— And —

B.L., G.R. and N.R. Respondents.

Before: Justice J.C. Baldock

Heard on: September 26, 2012

Reasons for Judgment released on: October 15, 2012

Counsel:

• Laura Shaw, for the applicant society
• George Schnall, for the respondent B.L.

Reasons for Judgment

BALDOCK, J.:

Summary Judgment Motion

[1] This is the society's Summary Judgment Motion.

[2] The society seeks a final order for placement of the two subject children, T.R., born […], 2005 (now 7) and N.R.2, born […], 2003 (now 9) with their father and stepmother pursuant to s.57(1) of the Child and Family Services Act as a deemed custody order pursuant to s.28 of the Children's Law Reform Act.

History of the Case

[3] The history of the case is as follows:

[4] In January 2010, the society commenced a Protection Application seeking a six months supervision order placing the children with their stepmother N.R.1. The protection concerns arose from the mother's admission to hospital as a result of a drug overdose.

[5] A temporary order was made, followed by a final order in March 2010, for six months supervision placement with N.R.1, based on an agreed statement of facts.

[6] The mother continued to have issues relating to drug use.

[7] The children's placement has been monitored by Mr. Steven Sullivan of the Toronto Children's Aid Society and he reports that they are doing well and he has no concerns.

[8] The boys have regular contact with their mother.

Society's Concerns Regarding the Mother

[9] The society's ongoing concerns with respect to the mother are:

(a) she was unwilling to take recommended steps to address underlying problems;

(b) there have been sporadic issues of drug abuse;

(c) the mother has exercised poor judgment in having a relative stranger sleep over when the children were present;

(d) her current living arrangement is not adequate for the children;

(e) she acknowledges some difficulty managing the boys' behaviour when they are visiting;

(f) when upset, the mother has made threats of suicide.

The society's child protection worker, Mr. Peter Vambe, reports that as recently as August 20, 2012, the mother disclosed she was purchasing Oxycontin over and above what had been prescribed for pain.

Mother's Evidence and Efforts

[10] The mother states she lives in a two bedroom apartment, which conflicts with the evidence of Mr. Vambe wherein he states it is a one bedroom residence.

[11] She states that she has been compliant with the society's requirements in that she commenced a program with Dr. Debra Wilson-Smith, a psychologist. That program ended in June 2010.

[12] She attended a substance abuse program with Addiction Counselling Services which she completed in July 2011.

[13] She receives $1,235.00 per month by way of Canada Pension Plan disability pension and is able to provide adequate care for her sons.

Legal Framework and Analysis

[14] This is a status review. As such, disposition is the only issue having regard to the children's best interests. On its Summary Judgment Motion, the society must satisfy the onus of showing that there is no triable issue.

[15] The mother has raised some minor concerns regarding the boys' care but Mr. Sullivan, who supervises the placement, is satisfied that Ms. N.R.1 and her husband are meeting all the physical and emotional needs of the children.

[16] I must therefore consider whether the mother is currently in a position to provide the same or better care than that offered by their father and stepmother.

[17] In my view the children have stability in their present home, which allows for them to have regular and meaningful contact with their mother.

[18] No report cards have been produced but there is no evidence to suggest that they are not performing at an acceptable level at school.

[19] The mother has obviously struggled with her drug dependency and I do question whether this has been fully addressed given the use of Oxycontin in recent weeks. While I accept that this has been prescribed for pain, I question why the mother would not have requested an alternate less narcotic alternative given her history.

[20] Counsel for the society argues that efforts to resolve the matter via mediation were unsuccessful, as the respondent mother refused to participate in the process.

[21] The children have been in the care of Ms. N.R.1 almost three years. N.R.2 has exhibited some behavioural issues which are being addressed through The Children's Centre.

[22] The mother has acknowledged exercising poor judgment in having someone she had known for a fairly short time stay in her residence. However, I am troubled by her evidence that she realized her mistake when he stole money from her. She did not appear to recognize the potential impact on the children as being a more significant factor.

[23] The mother has, to her credit, taken some concrete steps to address addiction issues, and has had periods when she has been drug free. In my view, she has yet to establish a sustained and well entrenched lifestyle change, although she appears to be on the right track.

[24] The mother has not persuaded me that the boys would be better served by residing with her.

[25] There are no credibility issues. The mother, again to her credit, has been forthright in acknowledging the issues raised by the society.

[26] There is no conflicting evidence, save and except for the number of rooms in the mother's residence, which is of little relevance as the society has had no issues with the children spending overnights there, and I give it no weight. The only other area of dispute arises from the concerns of the mother regarding the boys' care. This has been fully explored by the society worker and in any event the evidence of the mother in this regard would not in my view result in any prospect of changing their residence.

[27] Counsel for the mother argued that the level of the mother's ability to care for the boys is a triable issue.

[28] I find this is not the case. The society has supported the mother having extended time with the children, notwithstanding their concerns regarding drug use.

[29] I find that, even if there were no concerns with respect to the mother's ability to care for the children, she would have to demonstrate that it would be in their best interests to change the long standing status quo.

[30] This is a hurdle the mother cannot overcome at this time, however well she is doing.

[31] I conclude that there are no issues, credibility or otherwise, for trial, the outcome of which is clear. Merely disagreeing with the society's position does not constitute a triable issue.

[32] Accordingly, I grant the society's motion.

Order

[33] Order:

1. The children T.R., born […] 2005 and N.R.2, born […], 2003 are placed in the care and control of the respondent N.R.1 pursuant to s.57.1 of the Child and Family Services Act as a deemed custody order under s.28 of the Children's Law Reform Act.

2. The respondent mother shall have reasonable access to the children, including overnight visits, in the discretion of G.R. and N.R.1, having regard to the best interests of the children.

3. The respondent mother shall not permit any other person to be present on an overnight basis while exercising access, without the prior consent of G.R. and N.R.1, such consent not to be unreasonably withheld.

4. The mother is entitled to obtain information directly from the children's schools, doctors and other professionals involved in their health, education and welfare.

Released: October 15, 2012

Justice J.C. Baldock