WARNING

The court hearing this matter directs that the following notice 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

Ontario Court of Justice

Date: 2013-10-02

Court File No.: Municipality of Chatham-Kent No. 293/09

Between:

Chatham-Kent Children's Services, Applicant

— AND —

A.B. and D.J., Respondents

Before: Justice Stephen J. Fuerth

Heard on: August 7, 2013

Reasons for Judgment released on: October 2, 2013

Counsel

• M. Moynahan — counsel for the applicant society
• D. Jacobs — counsel for the respondent A.B.
• D.J. — on his own behalf

Reasons for Judgment

Fuerth, J.:

[1] This was a motion for summary judgment brought by the applicant Chatham-Kent Children's Services for Crown wardship of the children of the respondents with no access.

[2] The application with respect to the child T.L.J. born […], 2007 was a status review application. The application with respect to the child C.L.M.J., born […], 2011, was a protection application.

[3] The statutory findings are made with respect to C. in accordance with paragraph 4 of the affidavit of Jammie Dault at Tab 18 of the continuing record.

[4] The child T. was apprehended on October 8, 2009 and placed in the temporary care of the Society. On September 21, 2010, an order was made finding the child in need of protection and placing the child in the care of the Society with access to the parents. The reasons for the order for protection were set out in the Order.

[5] On February 14th, 2011, an order was made on status review finding the child to continue to be in need of protection. At that time the child was placed in the care of the mother subject to supervision for a period of six months, with supervised access to the father. The reasons for the finding were set out in the order, and included such reasons as the fact that the child had been in care for more than 12 months, the drug use by both parents, the failure of the parents to complete effective rehabilitation, and the father's criminal activities.

[6] In March of 2011 the child was apprehended by the Society, and on March 28, 2011, the child was ordered to be placed in the temporary care of the Society with access to the parents. The child has remained in the care of the Society since that date.

[7] On […], 2011, the child C. was born, and was apprehended at birth. On August 5th, 2011, the child was placed in the temporary care of the Society on a temporary basis, and this was confirmed at the Temporary Care hearing on February 3rd, 2012. The child has remained in care since birth.

Drug Use and Testing

[8] There were drug tests conducted on the mother in March of 2011 which found the presence of drugs, including Oxycodone and marijuana in her system. This followed an unannounced visit to the home by Amanda Kelly, a worker for the Society who observed during her visit to the home on March 2nd, 2011, both of the parents present, and the smell of marijuana in the home, with the child at home. In her material on the motion, the mother did not deny the allegation. On April 21st, 2011, the mother admitted to the Society worker that she had consumed oxycodone and marijuana, and the father admitted to use of marijuana.

[9] The child C. was treated with morphine for drug withdrawal symptoms. Her meconium was tested and found to be positive for morphine, methadone and cannabinoids. The hospital records including notes by Dr. Tithecott confirmed the presence of the drug withdrawal by the child. The mother was tested on August 10th, 2011, and the results showed presence of cocaine and its metabolite, codeine, oxycodone and marijuana (carboxyThc).

[10] There was an objection to the hearsay evidence of the nurse reporting the drug test results of the mother at the time of her admission for the birth of C. Even without this evidence, I was satisfied that there was sufficient evidence to demonstrate the ongoing use of drugs by the mother during the pregnancy, and the fact that these substances had been found in the child resulting in the child's withdrawal symptoms at birth requiring treatment of the child.

Kinship Placements and Housing

[11] I was satisfied that the society investigated and considered kinship placements for the children. The one kinship placement that was put forward by C.D. was not appropriate, and the motion to place the children with her was ultimately withdrawn by the mother.

[12] At the time of the birth of C., the mother had no residence, and had abandoned her furniture as it was infested with fleas. She was without a residence at that time, and it was November 1st, 2011, when she obtained a bachelor apartment in Ridgetown.

Criminal Record and Father's Conduct

[13] A criminal record check of the mother on August 5th, 2011 revealed outstanding charges of theft and possession under $5,000.00. These charges were ultimately resolved under a direct accountability program by payment of $150.00, and the charges withdrawn.

[14] On Oct 17, 2011 father contacted society and requested access. He could not attend with the mother due to a non-association order with the mother, and was going to plead guilty to several charges on break and enter x3, theft, possession of break and enter tools, and break and enter commercial. He intended to plead guilty, and said he was going to jail for quite some time, and wanted to see the children before doing so on the 28th of October. He was allowed access on Oct. 20 and 21. He failed to attend for requested drug tests that were arranged in October.

[15] Arrangements were also made for the father to have access at Christmas of 2011, on December 22nd, 29th and 30th. He reported to the Society that he was scheduled for sentencing in London on January 3rd, 2012, and in Chatham on February 3rd, 2012.

Ongoing Drug Testing and Treatment

[16] Drug testing was arranged for the mother on October 24th, 2011. When she appeared, she had bleached her hair, and a decision was made not to proceed with testing due to this fact.

[17] In April of 2012, the Society received information from the great grandmother, who was approved to supervise visits by the mother, that the mother had attended access with marijuana in her purse. As a result of this, the Society removed approval of the designate except on special occasions, and reduced the mother's visits to 3 times per week at the Supervised Access Center.

[18] On May 18th, 2012, the Society received reports submitted by the mother that she had been on the methadone program from October 21, 2011 until February 22, 2012. The doctor's opinion letter was that she was fully compliant, that all urine screens conducted twice weekly were negative for all substances, and that he considered her not to be opiate addicted.

[19] On July 31, 2012, a letter was received from the Renew Medical Clinic in Leamington. In that report, the doctor said that the mother had been a patient from June 16, 2011 to October 26, 2011, and had been tested and found negative for substances, and was compliant with the program.

[20] On August 21st, 2012, the mother said she was continuing methadone, and had one carry. The mother acknowledged she had slipped up one, using "crystal something", and continued occasional marijuana use. She said she was trying to cut back on marijuana. She last saw the father in June 2012, who was going to start over fresh. She did not know where he was.

[21] In April 2013, the mother confirmed that the father was released from custody in April, and was living with her in Ridgetown.

[22] On May 1st, 2013 drug testing arranged for both parents. The father had no hair, but gave a urine sample. Father advised he was facing 6 drug charges in Sarnia, and currently on house arrest until November of 2013. He was also serving a sentence on weekends and had another 31 weekends to complete his sentence.

[23] Father admitted marijuana use, and no other substances, and he was not getting treatment. The Mother asked about father resuming access.

[24] On May 6, 2013, report from Bluewater Health for period from January 2013 to present was received for the mother. The report said the mother had 6 carries, was drug testing once per week, and was compliant 21 out of 22 times. The report concluded that "A. is in recovery".

[25] On May 7th, 2013, the test results were received for father. The test found the presence of carboxyThc, amphetamines, and methamphetamines.

[26] On May 16th, 2013, the test result for the hair sample of the mother was received. The results showed the presence of amphetamines, methamphetamines, and carboxyThc.

Evidentiary Issues

[27] During the argument there was an objection by the mother to the admission of certain evidence on the basis of hearsay. I did not consider the evidence of the hearsay of Ms. Butler. The information caused an investigation by Amanda Kelly on March 2nd, 2011, and I have already commented on her findings which were not denied.

[28] I did not consider the hearsay evidence reported by the Society worker from the nurse at the hospital as to drug test results on admission. The presence of drugs was found in the mother in early August, and the hearsay evidence was unnecessary, and ignored by me.

[29] There was an objection to the hearsay evidence contained in the letters of interpretation of the recent tests conducted on the mother and father, that is, the tests conducted in May, 2013. I noted that the existing orders of the Court required the parents to submit to random drug testing. However, the existence of the order is not a shortcut to the admission of opinion evidence, and should not be treated so. The purpose of such orders is to require the parent to submit samples for testing. The test results speak for themselves and are presumptively admissible, allowing the Court to conclude that there are drugs in the system of the parent or not. However, the interpretation of these results, and the opinion as to the quantity and level of use are matters of expert opinion, and often beyond the knowledge of the Court, requiring expert evidence as to the pattern and extent of use.

[30] In this case, the Society produced letters of opinion from the testing labs. As a practical matter, such letters of opinion are often useful to enable parties to address the issues in a case, and develop a resolution and or a treatment plan. The letters of opinion are not however admissible evidence at a trial, or a motion for summary judgment. They may be considered at a temporary care hearing as reliable and trustworthy information for purposes of making a temporary order.

[31] In the case of trial, or summary judgment motion, however, the expert's opinion needs to be proffered in accordance with the rules and the Evidence Act. There must be notice of an intention to rely on the expert's opinion, which is to be produced along with the expert's qualifications. The expert must be available for cross-examination by the respondents if they require it, subject to an order for costs if it proves to have been unnecessary.

[32] I am also mindful of the rules requiring that cases be dealt with in a timely fashion and in a manner that is cost effective and a proper use of resources. This too is not a reason to admit expert evidence that is otherwise not admissible.

[33] A request to admit the facts contained in the letter of interpretation will usually sort out if the opinion is contested. This might be a useful practice to adopt upon receipt of such letters of opinion.

[34] In this case I did not consider the evidence of the letters of interpretation. There was no need to do so in this case. The test results confirmed the presence of illegal drugs in the systems of both the parents. The children have been in care for almost 4 and over 2 years at this point, well beyond the statutory period that compels permanency planning for the children.

Home Visit and Parents' Intentions

[35] On July 24th, 2013, a Society worker visited the parents at their two bedroom apartment in Pain Court. The apartment was found suitable for the children, and there was no issue about this.

[36] The father requested access again at that time. The worker indicated that the Society was not prepared to arrange access, in view of the fact that it was seeking an order for Crown wardship with no access.

[37] The parents were asked about their intentions regarding the recent drug tests. The father said he was going to seek counselling through probation and parole, not because he had to, but on a voluntary basis. The mother said she was going to start seeing a lady in Wallaceburg on Wednesdays, which she confirmed meant the methadone clinic.

Mother's Attendance at Access

[38] Finally I noted that the attendance of the mother at access was remarkably good, with an excellent record of attendance except for a period of time from January to April of 2012 when she missed 1/3 of the visits. She reasonably explained this as the result of her living in Ridgetown, the weather conditions, and her inability to secure reliable transportation. Otherwise she maintained a very commendable record of attendance.

Mother's Affidavit Evidence

[39] I considered the evidence of the mother in her affidavit filed on the motion.

[40] In essence, she did not contest that there was a need for protection for C., or a continuing need for protection of T. Paragraph 4 made it clear that the basis for the finding of protection was not contested, as it said in the paragraph, on the basis of "the history of Society involvement and previous findings with respect to T., the drug tests results which lead to the subsequent apprehension of T. on March 23, 2011, the March 24, 2011 Order that stated I was not to consume any illegal drugs, the drug test results of July 31, 2011, the meconium test results from the child C., the father's criminal activity, the father's lack of access to the children and mine and the father's drug test results of May 2013".

[41] The basis of the mother's affidavit in opposition to the motion of the society might be summarized as follows.

[42] She attended addictions counselling with Heather Batter. She was enrolled in the methadone treatment program and currently had six carries. She was being treated for back pain by her doctor with Tylenol and Motrin. She had a health card. She was attending access regularly. She currently had a suitable residence with the father.

[43] She said that the father was asking to see the children and was being denied that by the Society. She acknowledged that he had not seen them for a lengthy period of time when he was on the run, or in jail, but that he was currently dealing with his criminal matters.

[44] On this basis, she asked for a trial on the issue of disposition.

Legal Framework for Summary Judgment

[45] Rule 16 permits a party to seek summary judgment, and requires the moving party to file evidence that sets out specific facts showing there is no genuine issue for trial. The respondent is not entitled to rest on mere allegations or denials, but must set out specific facts showing a genuine issue for trial. If there is no genuine issue for trial, the court shall make an order accordingly (Rule 16(6)).

[46] On a motion for summary judgment, the court shall take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show there is no genuine issue for trial. Children's Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ)

[47] 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 Child and Family Services of Toronto v. A.(R.), [2001] O.J. No. 47 (SCJ)

[48] A party answering a motion for summary judgment cannot just rest on bald denial; they must put their best foot forward, showing that there is a genuine issue for trial. The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. Children's Aid Society of Toronto v. T.(K.), [2002] O.J. No. 4726 (OCJ)

[49] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from the parent's evidence that she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent. Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.) per Katarynych J.

[50] Courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge. See: C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357.

Court's Analysis

[51] In this case the Society has made out the basis for the order that it seeks. The evidence is clear that the reasons for the initial apprehension and the finding of the Court in 2010 as to the need for protection, that is the drug use by the parents, and the criminal behaviour by the father, has remained to this date without abatement. The father's criminality continued unabated. The evidence of his record, which was objected to as hearsay, was essentially confirmed by his own statements to the Society. He has spent significant time in jail throughout the last four years, and continues to face charges in Sarnia with respect to drug offences, among others.

[52] The drug use by the parents has continued unabated. While it appears that the mother may have addressed her opiate addiction, that is an addiction to oxycodone, she has continued to rely on other substances including marijuana and amphetamines. While she objected to the letter of interpretation as admissible evidence, she never denied the use of the drugs in her material, and instead relied on the promise and intention of continuing drug treatment on the methadone program.

[53] I noted that the mother appeared to have gotten the message in 2011 when she first entered the methadone program. She has apparently continued her attendance throughout the time period to this motion. She has also avoided the misuse of oxycodone. This is all to her credit. On the other hand, however, she admitted to continued use of other substances at times, and has been found by testing to have continued her use of other substances. She continued the relationship with the father, and now presented a joint plan with him, a father who has a serious drug problem that has not been abated or treated, and a father who has a demonstrated pattern of criminal misconduct.

[54] Viewed in its most optimistic light, there was a promise by both the mother and father to get treatment, and to succeed. The mother relied on her efforts in that regard, and on her track record of attending access. Regular attendance at access does not equate to a conclusion of an ability to parent children 24 hours a day, 7 days a week. These facts do not lead me to the conclusion that her plan is either safe or stable enough to consider returning the children to her care. In my view, there is only the promise to change, which for four years has not been met.

[55] In considering the best interests of the children, I appreciate that there is a bond of affection that the mother has for the children. However, the overriding concern with her plan is that the risks associated with her ability to parent the children, both by virtue of her drug use, and by virtue of her continued association with the father who presents with a significant risk of harm to the children, is overwhelming.

[56] It is significant fact that the children have been in care for a period of time beyond the statute. This is a compelling fact when considering their best interests. I cannot condone the continued delay in permanency planning for these children while waiting for the parents to successfully overcome their inability to parent because of drug use.

[57] The parents took the position that the Society failed to demonstrate in its material that the access enjoyed by the mother in particular was not beneficial or meaningful to the children. In fact, beyond the record of attendance, there was no evidence put forth by either party to demonstrate the benefits of continuing with access. The onus in that regard rested on the parents. They did not put forward any evidence to establish a prima facie case for an order for access.

Statutory Findings

[58] For these reasons, I have determined that the child Tabytha continued to be in need of protection pursuant to section 37(2)(b)(i) and (ii), for the following reasons:

[59] There were previous findings made with respect to the need for protection having regard to the presence of drugs and drug paraphernalia in the home, positive tests for drugs by the parents, and criminal misconduct by the father;

[60] The child C. was born with symptoms of drug withdrawal, and the meconium test of the child tested positive for illicit drugs, and she was treated for symptoms of withdrawal.

[61] The mother tested positive for illicit drugs on August 13, 2011.

[62] The father continued to engage in criminal activity resulting in jail, with current outstanding drug charges.

[63] In May, 2013, the mother and father both tested positive for illicit drugs, including amphetamines, methamphetamines and marijuana.

[64] I have also determined that the child C. was in need of protection pursuant to section 37(2)(b)(i) and (ii).

[65] There is no genuine issue for trial. The children require permanency planning in their best interests, and cannot wait longer for their parents to rehabilitate. In the words of Justice Pazaratz in Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (SCJ) "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought by the applicant".

Order

[66] There will be a final order for Crown wardship of the children, with no access to the parents for the purposes of adoption.

Released: October 2, 2013

Signed: "Justice Stephen J. Fuerth"