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 45(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 File and Parties

Court File No.: Sudbury C-371-06 (0002)

Date: 2014-05-28

Ontario Court of Justice

Between:

The Children's Aid Society of Sudbury and Manitoulin

Applicant

— And —

M.M. and R.P. Jr.

Respondents

Before: Justice A. L. Guay

Heard on: May 16, 2014

Reasons for Decision released on: May 28, 2014

Counsel:

• Dawn Dubois for the Applicant
• George Florentis for the Respondent M.M.
• Elizabeth Gray for the Respondent R.P. Jr.

GUAY J.

REASONS ON MOTION FOR SUMMARY JUDGMENT

1: INTRODUCTION

[1] This motion for summary judgment was heard on May 16, 2014. The society asked the court to make an order for Crown wardship without access on a summary basis pursuant to Rule 16 of the Family Law Rules (O. Reg. 114/99). The respondent parents, both present, asked the court to reject the motion and order that the matter proceed to trial. Trial dates have been reserved for this matter in June 2014.

2: BACKGROUND

[2] The affidavit material filed indicated that child protection authorities had been involved with the parties for a number of years prior to their move from London to Sudbury in 2012. In December 2008, M.M.'s child K., a child from a previous relationship, was placed in the custody of her maternal grandparents under a section 57.1 order pursuant to the Child and Family Services Act (R.S.O. 1990, c. C.11). Her history of mental health concerns, domestic violence, parenting inadequacy and substance abuse were of concern to protection workers when M.M. resided with her previous partner, D.B.

[3] R.P. Jr., M.M.'s current partner, is himself the father of two older boys. He continues to have supervised access to the younger of them. His past, like that of his co-respondent, M.M., is also a troubled one involving issues similar to hers.

[4] M.M. and R.P. Jr. moved to London, Ontario from Parry Sound, Ontario, at the time M.M. was expecting their first child, S.P. S., who was born on 2010, is the subject of these proceedings. Soon after the respondents moved to the Sudbury area in the Fall (November) of 2012, the Sudbury Children's Aid Society received a referral from the Children's Aid Society of London and Middlesex with respect to that society's involvement with the respondent parents over the previous two years. It had had concerns with respect to the respondents' ability to provide adequate parenting to S. as well as reported incidents of domestic violence and drug abuse.

[5] The respondents were not long in Sudbury when hotel managers where they first resided reported that there had been loud screaming and yelling from their units and a baby screaming and crying during all hours of the night. A further referral to the society from the Greater Sudbury Police Service indicated the police had ongoing concerns with the respondents' abuse of prescription narcotics and as well domestic violence.

[6] S. was apprehended on November 27, 2012 and placed in the care of the society, subject to supervised access by her parents. S. was placed in the temporary care of her paternal aunt and uncle on February 28, 2013. On April 10, 2013 S. was found to be a child in need of protection pursuant to subsection 37(2)(b)(ii) of the Child and Family Services Act. It was on this latter occasion that she was placed into the care of her paternal aunt and uncle for a six-month period under a supervision order in favour of the society. When that placement broke down, S. was again placed into the society's care in May 2013. She has remained in care since that time.

[7] The affidavit evidence indicated that the problems which first brought both the London and Sudbury Children's Aid Societies into the lives of the respondents and their daughter, S., have remained unresolved. While there appears to be less involvement on the part of the local police service with the respondents as a result of domestic violence complaints, the respondents have continued to struggle with their drug addiction problems. As recently as February and March 2014, there is clear evidence that they have consumed narcotics even while on a methadone program. Their struggle with addiction is far from over and is not likely to end in the foreseeable future, even though they presently appear to be motivated to deal with this issue.

[8] The affidavit evidence makes sadly clear the impact that the respondents' prior domestic violence and addiction issues had on S. Following her apprehension, she displayed the behaviours of a disturbed little girl. While not psychologically assessed, it is clear that the violence exhibited by her had much to do with the atmosphere of violence and drug consumption which her parents visited on her as a baby and toddler. Since her apprehension and placement with her current foster parents, some of these issues appear to have been resolved.

[9] While on a methadone program, the respondents have not taken positive steps to deal with their drug addiction. The history of their drug testing since November 2012 shows that even after that date, they were consuming opiates, cocaine and oxycodone. Notwithstanding their addiction, they have not taken any treatment programs to help them overcome it. Such programs on which they have embarked have not been completed or participated in successfully.

[10] When one gauges commitment to a child on the part of parents from whom the child has been removed by child protection authorities, it is common to look at the history of their post-apprehension access to that child. While the respondents in this matter have attended many visits, there are still many occasions (set out in the affidavit material) where they failed to attend such visits. The problem is that if parents miss numerous opportunities to interact with their child when they are deprived of day-to-day care of that child, a serious question of commitment arises. This does not mean they are disinterested in that relationship, but it probably does mean that they are too distracted by other more pressing concerns, such as dealing with drug addiction and personal relationship issues, to be fully committed to their child and to be available to meet her needs.

[11] S. will be 4 years of age this coming 2014. She will have been in care for well over 400 days by that date. The time she has spent in care even at the present time exceeds the statutory limit set by section 70 of the Child and Family Services Act. It is clear that S. cannot remain in foster care any longer, unless her best interests require a limited extension of the time that she is allowed to remain in care for a child of her age. It is equally clear that her parents, the respondents, still have many serious issues to resolve before it can be argued that they could successfully parent her or, even, that they would be able to parent her without again subjecting her to the trauma to which they subjected her in the first, emotionally fragile years of her life.

[12] Having reviewed the affidavit material filed in support of this motion, I am unable to see what genuine or material issue or issues remain to be resolved in order to determine what is in S.'s best interests by proceeding to a trial in this matter. This situation has played itself out to a point that there really is nothing left to inquire about or determine in order to make an order which is today in S.'s best interests. Proceedings such as this one are not about determining what is in the interest of a child's parents but rather what is in a child's best interests. It may well be here that the respondents are committed to one another and to working on their issues but, unhappily for them, they have to date failed to do so to a degree which would justify returning their daughter to their care. This is clear from the affidavit evidence. In real property law, there is a saying: nemo dat quod non habet. It means that one cannot give title or interest in property in which one does not have a legal interest. I find this saying or expression useful in other contexts, including the present one. If a parent does not have their "act" or life together, what does she or he have to give by way of parenting to a totally dependent child? Love is very important, yes, but it is not enough.

[13] The evidence indicates that no family members have advanced a plan for the permanent care of S. While the paternal aunt and her partner were committed to raising S., the behavioural problems visited on her by her parents, the respondents, during her infancy were too much for them to cope with and led to their decision not to continue providing long-term care for S. The respondents have not been able to propose any other person or persons both willing to provide and capable of assuming S.'s long-term care.

[14] The society seeks an order for Crown wardship without access in the hope of placing S. for adoption with her foster parents of the past two years. That is the society's plan in this matter. S. seems to be thriving in the care of her foster parents and her behaviours are in the process of being resolved. We owe it to S. to make sure that she is placed in the care of persons who have no parenting or other serious personal issues and who can be counted on to immediately provide her with the stability she needs to successfully grow to maturity as a healthy adult.

[15] As indicated by the society, the respondents have failed to provide a realistic plan for S.'s return to their care, a plan which is likely to guarantee her safety and normal development as a child and young person. While the respondents would like to resume S.'s care, the only conclusion that can be drawn from their failure to meaningfully address their parenting and personal issues is that returning S. to their care would mean taking a very serious risk with her development and well-being. We have a duty to make sure that she is protected from the risks of physical and emotional harm to which she was subjected prior to her apprehension from her parents' care in November 2012. While I am certain that they love her and that there is some bonding between them and her, there is an important difference between loving a child and parenting a child. Most parents love their children but not all parents can even adequately parent their children. In that latter event, we are mandated to do what is required to assure their protection and well-being. That is what is in their best interests. Providing that S. continues to be a child in need of protection (which she clearly is in light of her parents' unresolved parenting and other problems) doing what is in S.'s best interests is the legal test to be met in the society's present status review application (see here sections 37(3) and 64 of the Child and Family Services Act).

[16] For the above-noted reasons, I am directing that S. be made a Crown ward with no access to her parents for the purposes of adoption. Adoption is the plan which the society has advanced to provide for her long-term care. The presumption noted in subsection 59(2) of the Child and Family Services Act against making an access order when a Crown wardship order is made has not been rebutted by the affidavit material filed by the respondents. They have put forward no evidence setting out how a relationship between S. and themselves is or would in the future be meaningful and beneficial to S. Making such an order in favour of the respondents would clearly impair her future opportunities for adoption. As indicated, the family with whom she has now lived for more than 2 years wishes to adopt her and has by now presumably integrated her into their lives to some extent.

3: ORDER

[17] Making an order for Crown wardship without access is not made lightly but it is what the law requires me to do in this case. I am satisfied that a trial of this matter would not assist in determining what order is in S.'s best interests. Aside from the fact that a trial would not shed any further light on any of the genuine issues in this matter, the possible unforeseen delays associated with conducting a trial (notwithstanding that trial dates have been reserved) would only serve to prolong the uncertainty in S.'s life. She has now had close to 4 years of uncertainty engendered by her parents' failure to resolve their parenting and personal problems. There is no reasonable alternative to the making of such an order. An order for Crown wardship without access is the least intrusive remedy available to this court in light of the evidence in this matter. Such an order will therefore issue.

Dated at Sudbury this 28th day of May 2014

Justice A. L. Guay