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: 2014-12-11
Court File No.: Brampton 20027/11
Between:
The Children's Aid Society of the Region of Peel, Applicant
— AND —
D.W. (Mother) Respondent
— AND —
A.S. (Father) Respondent
Before: Justice L.S. Parent
Heard on: November 19, 2014
Reasons for Judgment released on: December 11, 2014
Counsel:
- S. Kinch — counsel for the applicant Society
- E. Adams-Idode — counsel for the respondent mother
PARENT, J.:
BACKGROUND
[1] The child who is the subject of this proceeding is L.W., born on […], 2014. L.W. is currently nine (9) months of age. The parents are Ms. D.W. ("the mother") and Mr. A.S. ("the father"). The Respondents were and continue to reside together at the time of the Society's involvement.
[2] The mother has five (5) older children, currently aged nine (9), six (6), four (4), three (3) and two (2) years of age. All of these children have been found to be children in need of protection in prior child protection proceedings.
[3] All five (5) children have been permanently placed outside of the care of the mother, either within a kin placement or an adoptive family. The mother was granted supervised access to the four older children and no access to the youngest child.
[4] The father of L.W. is also the father of the three (3) younger children, namely those aged four (4), three (3) and two (2). These children have also been permanently placed outside of the care of their father, either within a kin placement or an adoptive family. The father was granted no access to all three children.
[5] The Society issued a Protection Application regarding the child L.W. on February 27, 2014. The Application seeks (1) the statutory findings pursuant to section 47(2) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (hereinafter referred to as "the Act"); (2) that L.W. is a child in need of protection pursuant to section 37(2)(b)(i), (b)(ii) and (g) of "the Act"; and (3) that L.W. be made a crown ward and placed in the care of the Society.
[6] On March 3, 2014 the Society filed a notice of motion and an affidavit in support requesting that L.W. be placed in the temporary care and custody of the Society with access at their discretion.
[7] On March 5, 2014, a temporary without prejudice order was granted by Justice Pawagi in accordance with the Society's notice of motion.
[8] L.W. was discharged from hospital on March 30, 2014 and placed in the care of the Society pursuant to the order of Pawagi, J. L.W. remains in the temporary care and custody of the Society.
REQUESTS AND POSITIONS OF THE PARTIES
A. The Society
[9] The matter before the court is the Society's motion for Summary Judgment filed on October 6, 2014 and located at Tab 6, Volume 13 of the Continuing Record.
[10] The Society's motion seeks a final order on the issues of statutory and protection findings and an order making the child L.W. a Ward of the Crown and placed in the care and custody of the Society for the purpose of adoption.
[11] In support of its motion, the Society relies upon the following materials:
(i) The affidavit of Margaret Gillies, sworn April 4, 2013 located at Volume 7, Tab 2 of the Continuing Record;
(ii) The affidavit of Nancy Wangui, sworn April 5, 2013 located at Volume 7, Tab 3 of the Continuing Record;
(iii) The affidavit of Dr. Betty Kershner, sworn April 4, 2013 located at Volume 7, Tab 4 of the Continuing Record;
(iv) The affidavit of Teresa Kimberley, sworn April 4, 2013 located at Volume 7, Tab 5 of the Continuing Record;
(v) The affidavit of Teresa Kimberley, sworn November 1, 2013 located at Volume 9, Tab 4 of the Continuing Record;
(vi) The affidavit of Teresa Kimberley, sworn December 5, 2013 located at Volume 9, Tab 10 of the Continuing Record;
(vii) The affidavit of Atixhe Zeneli, sworn October 29, 2013 located at Volume 9, Tab 5 of the Continuing Record;
(viii) The affidavit of Atixhe Zeneli, sworn December 4, 2013 located at Volume 9, Tab 9 of the Continuing Record;
(ix) The affidavits of Teresa Kimberley sworn October 3, and November 4, 2014 and located at Tab 7 of Volume 13 and Tab 3 of Volume 14 of the Continuing Record;
(x) The affidavits of Dalraj Khalsa sworn October 3, and November 4, 2014 and located at Tab 8 of Volume 13 and Tab 4 of Volume 14 of the Continuing Record;
(xi) The affidavit of Carl Williams sworn October 3, 2014 and located at Tab 9 of Volume 13 of the Continuing Record;
(xii) The affidavit of Julie Johnson sworn October 3, 2014 and located at Tab 10 of Volume 13 of the Continuing Record; and
(xiii) The affidavit of Nancy Wangui sworn November 4, 2014 and located at Tab 2 of Volume 14 of the Continuing Record.
B. The Mother D.W.
[12] The mother filed an Answer and Plan of Care in these proceedings on May 15, 2014. The mother seeks the placement of L.W. with a third party pursuant to section 57.1 of "the Act".
[13] The mother seeks an order dismissing the Society's motion. Counsel for the mother further advises that the placement contained in the mother's Answer and Plan of Care is no longer an option. Counsel therefore seeks an order that should the Society's motion for Summary Judgement be dismissed, that the mother be permitted to file an Amended Answer and Plan of Care.
[14] The mother also seeks an order for an assessment pursuant to section 54 of "the Act." The Society opposes this request.
[15] The mother has filed an affidavit in support of her position sworn October 27, 2014 and located at Tab 1 Volume 14 of the Continuing Record.
C. The Father A.S.
[16] The father was served with the Protection Application regarding L.W. on February 27, 2014. He has not filed an Answer or a Plan of Care in these proceedings. The father was noted in default on May 24, 2014.
[17] The father has not filed any materials seeking leave to file materials in response to the Society's Summary Judgment motion or the mother's motion for an assessment. The father was not in attendance on the day of the hearing of the motions.
ISSUES
[18] The issues before the Court for determination are:
(i) Is there a triable issue for a disposition for L.W. other than crown wardship?
(ii) If the Society's Summary Judgment motion is denied, should leave be given to the mother to file an Amended Answer and Plan of Care?
(iii) Should the request of the mother for a section 54 assessment be granted?
(iv) Is there a triable issue over whether the mother should have access to L.W. given the Society's plan for the adoption of L.W.?
THE LAW
A. Summary Judgment Motion
[19] Counsel agreed that Rule 16(1) of the Family Law Rules permits a motion for Summary Judgment to be brought in child protection matters.
[20] Counsel further agreed that Rule 16(6) sets out the test to be applied on such a motion, namely whether or not the moving party can establish, on a balance of probabilities, that there is no genuine issue for trial. If this burden is met, Rule 16(6) provides that "…the court shall make a final order accordingly".
[21] Case law further provides guidance to the court in determining whether or not to grant a request for summary judgment.
[22] The court's decisions in 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.) establish that only a dispute regarding facts that a party is required to prove create a genuine issue for trial as such a fact is material to the issue before the court.
[23] Justice Pazaratz, in his decision of The Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (SCJ), stated at paragraph 43 that the criteria of a genuine issue for trial is met "…. where there is no realistic possibility of an outcome other than that as sought by the applicant."
[24] The other relevant sections of Rule 16 are as follows:
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.
[25] In his recently released decision in The Catholic Children's Aid Society of Toronto v. O.(G.), 245 A.C.W.S. (3d) 613 (Ont. C.J), Justice Sherr stated the following at paragraphs 74 and 75:
"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." See: Jewish Family and Child Services of Toronto v. A.(R.), 2001 O.J. No. 47 (SCJ).
"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." See: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.).
[26] If the summary judgment motion is granted in the context of a Protection Application, the court must thereafter consider the requirements under section 40(1) of "the Act" which requires the determination of whether or not a child is in need of protection pursuant to section 37(2) of "the Act"; the statutory findings pursuant to section 47(2) of "the Act" and as required by section 47(1) of "the Act", and the appropriate disposition under section 57 of "the Act". Given the Society's request for an order of crown wardship without any term of access, the court must also consider the issue of access pursuant to section 59(2.1) of "the Act".
B. Amending an Answer
[27] Although not specifically submitted by counsel, Rules 11(2) and (3) of the Family Law Rules are clear in permitting a party to amend an Answer on consent or with the court's permission, unless a disadvantage ensues which cannot be addressed by costs or an adjournment.
C. Assessment
[28] Counsel further agreed that section 54 of "the Act" and Ontario Regulation 25/07, pursuant to section 54(1.4) of "the Act", provides the legislative framework to determine whether or not an assessment is to be ordered.
THE EVIDENCE – SUMMARY JUDGMENT MOTION
[29] The Society submits that there is no genuine issue for trial regarding the protection findings or the disposition it is seeking as set out in its Protection Application filed February 27, 2014.
[30] The Society is seeking an order finding that the child, L.W., is in need of protection pursuant to section 37(2)(b)(i) and (ii) and (g) of "the Act". In support of its application, the Society highlights in its materials and its submissions, that L.W.'s five older siblings were found to be children in need of protection pursuant to section 37(2)(b)(i) and (ii) and (g) of "the Act" and placed outside of the care of their parents.
[31] The Society submits that the concerns of the Society remain the chronic and ongoing poor condition of the home; the parents' chronic and ongoing lack of capacity and insight to properly care for their children, including L.W., and that the mother's plan is not realistic and does not allow for permanency planning for L.W.
[32] The Society submits that the concerns regarding the poor condition of the home and the parents' lack of capacity to properly care for a child were concerns which lead to protection proceedings being initiated regarding L.W.'s five older siblings and ultimately a determination that these children were found in need of protection.
[33] The Society, in support of its position that these concerns are longstanding and chronic, relies on the decisions of Clay, J, regarding L.W.'s five older siblings which were released on June 20, 2013 and December 23, 2013.
[34] The Society submits that the court can rely on the findings of fact regarding the mother's past conduct as contained in these prior decisions which ultimately granted a finding in need of protection regarding all five (5) children. The Society submits that section 50 of "the Act" specifically supports the position that the decisions of Clay, J. are (i) admissible as evidence and (ii) may be considered by the court in the proceeding regarding the child L.W.
[35] The Society's materials and submissions by counsel for the Society summarized the findings of fact regarding the parents made by Clay, J in his decisions regarding L.W.'s siblings as follows:
i. the acceptance by the court of Dr. Brian Phillips' conclusion following the completion of his neuro-developmental and Educational Assessment on the mother on January 14, 2013 that she has a "borderline intellectual functioning";
ii. the acceptance by the court of Dr. Betty Kershner's conclusions as noted at pages 32 and 33 of her parenting capacity assessment regarding the parents dated September 28, 2011, namely:
a) that both parents "… are functioning cognitively in the range of Developmental Delay. Both of them demonstrate personality features that lead them to ignore or dismiss as trivial problems that should be addressed".
b) that both parents "… do not, on their own, have the capacity to adequately care for and protect the children.";
c) "… neither parent has the capacity…to understand and identify potential risks that would compromise the physical safety and emotional well-being of the children….";
d) that both parents "… are extremely limited in their comprehension of these needs [developmental needs of the children] and what they entail."; and
e) that "… the mother's childhood experiences and trauma are impacting negatively on her parenting….D.[W.] lacks insight as well."
iii. the acceptance by the court of the conclusions reached by Dr. Kershner that, in order for the parents to be able to properly parent their children, they would require courses in child development and parenting techniques, intensive work with the Therapeutic Access Centre, the appropriate use of learned parenting techniques and skills while with their children and the maintenance of a stable, consistently clean and appropriate home for a period between four and six months.
iv. The acceptance by the court of the conclusions regarding the parenting strengths and concerns in four parenting domains regarding the mother as stated in the Therapeutic Access and Assessment Program (TAAP) assessment completed May 30, 2013 and its recommendations regarding the child born just prior to L.W. The report's recommendations read as follows on page 11:
"Overall, D. and A. were able to engage in the program and some of the teachings, When in a highly supportive and contained environment with someone available to cue D. around meeting her son's needs, D.'s parenting is found to be accurate to reading and matching her son('s) cues. However, when staff support was not available to her, she was found to resort to poor coping strategies and was unable to transfer the learning into her parenting. This led to her being inattentive and unavailable to meeting T.'s physical and emotional needs on a consistent basis.
In order to support a reintegration of T. into D. and A.'s care, staff would have needed to see that the mother was able to transfer any of the teachings and/or interventions from TAAP into her caregiving behaviours in a sustainable way. In addition, staff would have needed to see an increase in her ability to have reflective capacity and insight into how T. was experiencing her as a caregiver."
[36] Counsel for the Society submits that there has been insufficient progress by the mother since Justice Clay's most recent decision released December 23, 2013 to support a plan of care for the child L.W. other than crown wardship without access.
[37] In support of this position, counsel refers to paragraphs 44 to 46 inclusive of the affidavit of Teresa Kimberley sworn October 3, 2014 wherein she states that the home environment of the mother remained a concern, specifically regarding the smell of cat urine, during two home visits on February 27 and March 24, 2014.
[38] At paragraph 44 of her affidavit, Ms. Kimberley notes that she attended the mother's home on February 27 and March 24, 2014. Her evidence is as follows:
"As I approached the front door of the parents' apartment, I could smell the scent of car urine in the hallway…When we arrived at the apartment [on March 24, 2014], I noted that although the apartment was tidy, the smell of car urine was incredibly strong and that it could be smelt from the hallway….I noted that despite the fact that Ms. W. had opened a window and the fact that she was cooking when we arrived, the scent of cat urine remained extremely strong and masked the smell of the fresh air and Ms. W.'s cooking…"
[39] Ms. Khalsa is the current child protection worker involved with this family. Her affidavit sworn October 3, 2014 indicates that she assumed carriage of the file on March 29, 2014.
[40] Ms. Khalsa sets out in her affidavit, at paragraphs 12 to 30, evidence in support of the Society's position. The evidence of Ms. Khalsa outlines the following concerns:
a) She confirms the observations noted by Ms. Kimberley in her affidavit during the March 24, 2014 attendance at the home. Ms. Khalsa notes, at paragraphs 17 to 20 inclusive of her affidavit, the smell of cat urine from the hallway during unannounced visits to the mother's home on April 4, and 28 and May 14 and 20, 2014.
b) That the mother remains unwilling or unable to acknowledge and/or address the concerns regarding her home;
c) That the mother appears to be avoiding communication and/or contact by Ms. Khalsa when home visits are made on an unannounced basis; and
d) That the mother is able to demonstrate positive parenting only when in a contained, supportive environment such as the Society's access centre.
[41] Counsel for the mother indicated in her submissions that the mother is not challenging the chronological history as outlined in the Society's materials regarding the mother's five (5) older children. Counsel did not object to the Society's reliance on section 50 of "the Act", to introduce into the proceeding regarding L.W., the decisions of Clay, J regarding L.W's older siblings.
[42] Submissions by counsel were that the Society's sole focus in support of their Summary Judgment motion is the mother's past conduct toward her other children. This evidence, counsel submits, is insufficient to meet the threshold requirement that there is no genuine issue for trial as there have been developments in the mother's life and circumstances since the court's decision on December 23, 2013 that the youngest child, T.S., born […], 2012, be found to be in need of protection pursuant to section 37(2)(b)(i) and (ii) and (g) of "the Act" and made a ward of the Crown without access.
[43] Specifically, counsel refers to the mother's affidavit sworn October 27, 2014 wherein she states at paragraph 9 that she has "… been able to implement recent changes such as improving my financial situation, securing and maintaining appropriate accommodation, independently and adequately cared for L.(W.) at the NICU as well as at the access visits without cues."
[44] A review of the mother's affidavit reveals that the focus of her evidence is to accuse the Society of not being forthright and fair in its evidence, of "tricking" her into consenting to participate in the parent capacity assessment conducted by Dr. Betty Kershner, and denying the existence of the severity of the concerns raised by the Society regarding her home environment and ability to address L.W.'s needs.
ANALYSIS
A. Statutory Findings
[45] The evidence of the parties does not indicate that there is dispute regarding the statutory findings as plead by the Society in their materials.
[46] There is therefore no genuine issue for trial regarding the statutory findings. Accordingly, an order will go that the statutory findings required pursuant to section 47(2) of "the Act" are found to be as outlined in paragraph 2 of the Society's notice of motion dated October 3, 2014.
B. Finding in Need of Protection
[47] The Society seeks an order that the child L.W. is a child in need of protection pursuant to section 37(2)(b)(i), (b)(ii) and (g) of "the Act", namely that L.W. is at risk to likely suffer physical harm inflicted or caused by or resulting from the mother's failure or pattern of neglect "to adequately care for, provide for, supervise or protect" him and there is a risk that L.W. is likely to suffer emotional harm as defined under section 37(2)(f) resulting from the mother's ".. actions, failure to act or pattern of neglect…"
[48] I find that the evidence of the Society regarding the likelihood of risk that L.W. is to suffer physical and/or emotional harm as defined under section 37(2)(b)(i),(b)(ii) and (g) to be convincing. The Society's evidence is detailed in this regard. The evidence provided by the Society is comprised of direct observations and interacting with the mother, during a significant period of time.
[49] The Society's concerns have been determined to be well-founded in two prior decisions by this court to the extent that L.W.'s five (5) other siblings have been found to be children in need of protection pursuant to sections 37(2)(b)(i), (b)(ii) and (g).
[50] The mother's evidence, consisting of denials of the Society's concerns and accusations regarding the Society's motives throughout their entire involvement with her, as outlined in her affidavit, does not satisfy me that there are credibility issues regarding these concerns which require cross-examination during a trial on the issue of finding in need of protection.
[51] I find therefore that there is no genuine issue for trial on the issue of finding in need of protection. An order will go finding that the child L.W. is a child in need of protection in accordance with paragraph 3 of the notice of motion dated October 3, 2014.
C. Disposition
[52] If the motion is granted, the Society seeks an order pursuant to section 57(1) 3 of "the Act", namely an order that the child L.W. be made a ward of the crown.
[53] Justice Clay, in his decision dated December 23, 2013 states at paragraph 53 the following:
"In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to in this case assume care of a child. There must be an arguable notion discernable 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.
[54] The Society's evidence regarding the mother's continued inability to acknowledge and address the concerns raised by the Society regarding her ability to properly parent L.W. is overwhelming.
[55] I find that the evidence of the mother in response to the concerns raised by the Society in its materials coupled with her evidence in support of changes she indicates she has made has made since the decision of Justice Clay in December 2013 to be insufficient to raise questions of credibility requiring cross-examination.
[56] The evidence as presented by both parties satisfy me that that there is no realistic possibility that a trial will lead to an outcome other than an order for crown wardship. In making such a determination, I have considered the evidence of both parties in light of the following sections of "the Act" namely:
(1) section 57(2) of "the Act" which requires an inquiry directed at the parties regarding what efforts the society or another agency or person made to assist L.W. before intervention under Part III of "the Act";
(2) section 57(3) of "the Act" which requires that consideration be given to less disruptive measures than removing L.W. from the permanent care of his mother;
(3) section 57(4) of "the Act" which requires consideration to be given to community placements, including family members, before deciding to place a child in care;
(4) paragraph 2 of section 1(2) of "the Act" which requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate to help L.W., provided that it is consistent with his best interests, protection and well-being; and
(5) section 37(3) of "the Act" which requires the court to decide what is in L.W.'s best interest as set out in the criteria under this section.
[57] Counsel for the mother submits that there have been no efforts by the Society to assist her client prior to the apprehension of L.W. She submits that the Society filed its Protection Application eleven (11) days following L.W.'s birth seeking an order of crown wardship.
[58] The mother states that if L.W. is returned to her care "..in the near future", she will arrange daycare for him. This statement is the only evidence provided by the mother regarding a plan of care. Her affidavit is absent of any other evidence in support of a plan of care, including the placement of L.W. through a kin placement.
[59] I am mindful that the mother is seeking leave to amend her Answer and Plan of Care within these proceedings. Such an order however is not needed for her to provide details regarding her plan for her child. In fact, she is obligated to "put her best foot forward" at this stage of the proceedings.
[60] The Society sets out in detail the efforts it has provided to the mother so as to assist her in caring for L.W. and her other children.
[61] The Society relies upon the findings and recommendations stated in the parenting capacity assessment, the Neuro-Ed assessment and the TAAP assessment in support of their position that the mother requires significant assistance from numerous resources for L.W. to be returned to her care.
[62] The Society submits that the mother has not even acknowledged that she requires outside resources despite being fully aware of the recommendations and conclusions of the professionals involved with her since the birth of her first child nine (9) years ago.
[63] The Society submits that the mother's response, as outlined in her affidavit, is to limited to denials and accusations, directed at the Society, of manipulating her and of not being truthful. The Society submits that the mother may no longer even be accessing assistance from professionals she previously indicated she voluntarily sought, namely her counselor and psychiatrist. The mother's materials do not indicate any implementation of the recommendations of the parenting capacity assessment, the Neuro-Ed assessment or the TAAP assessment.
[64] I find that only the Society's Plan of Care will better meet L.W.'s physical, mental and emotional needs, especially in light of the Society's evidence that L.W. has special needs given his premature birth. The affidavit of Ms. Khalsa sworn October 3, 2013 indicates at paragraph 36, L.W.'s health concerns and needs following his premature birth at thirty-one (31) weeks gestation as follows:
a) Left small multi-cystic kidney;
b) Atrial septal defect and patent ductus arteriosus;
c) Suspected sepsis;
d) Hyperbilirubinemia; and
e) Apnea of prematurity; and social concerns.
[65] Ms. Khalsa also states the following evidence in her affidavit:
"Given the said diagnosis, L.(W.) is required to attend for regular follow-up appointments with his nephrologist…" (para. 38)
"L.(W.) is currently thriving in his foster home placement. He has adjusted to the structure and routines within the home and despite being born premature with various health issues, he is currently meeting his developmental milestones." (para. 34)
[66] The mother, in her materials, does not recognize or address L.W.'s health concerns or how she proposes to provide him with the necessary care. L.W.'s needs require care, attention and continuity.
[67] The evidence of the Society, which is not disputed by the mother, is that L.W. has been in the care of the Society since March 5, 2014.
[68] Section 70(1)(a) of "the Act" prohibits the court from making an order for society wardship for a period exceeding twelve (12) months if a child is less than six (6) years of age. Section 70(2)(b) of the "the Act" includes in this calculation, the time a child spends in the temporary care and custody of the Society.
[69] There is therefore slightly less than three (3) months remaining in the requirements of section 70(1)(a). The evidence supports a determination that the risk of placing L.W. in the care of his mother remains high. The mother did not provide sufficient evidence to demonstrate that this risk is likely to diminish in the next three months. This matter cannot be delayed any further. L.W.'s needs require that a permanent home be provided without delay.
[70] I therefore find that there is no triable issue regarding disposition, including on the issue of a less intrusive alternative and what is in L.W.'s best interest. For these reasons, the Society's motion that the child L.W. be made a ward of the crown pursuant to section 57(1) 3 of "the Act" is granted.
ACCESS
[71] Given my determination that L.W. is to be made a ward of the Crown, I must address the issue of access.
[72] The relevant section of "the Act" is s. 59(2.1) which reads as follows:
ACCESS: CROWN WARD – A court shall not make or vary an access Order made under section 58 with respect to a Crown ward unless the court is satisfied that,
The relationship between the person and the child is beneficial and meaningful to the child; and
The ordered access will not impair the child's future opportunities for adoption.
[73] Counsel for the Society submits and the Court agrees that the evidentiary onus is on the mother to establish that the test pursuant to section 59(2.1) has been met beyond a balance of probabilities. The consideration of what is in L.W.'s best interests, as required under section 58 of the CFSA, is only relevant if the Court determines that the test pursuant to section 59(2.1) has been met.
ANALYSIS
[74] In order to consider whether or not the mother/child relationship is meaningful and beneficial to L.W., as required under section 59(2.1), it is necessary for the Court to consider the nature of the relationship between them as supported by the evidence filed by the parties within the context of the summary judgment motion.
[75] The court must first examine whether or not the relationship between L.W. and the mother is meaningful and beneficial.
[76] In his decision in The Children's Aid Society of Niagara Region v. M.J., 2004 O.J. No. 2872, Justice Quinn of the Superior Court of Justice, Family Court held at paragraphs 45 through 47 that a meaningful relationship was one which is "significant".
[77] Justice Clay in his decision dated December 23, 2013, stated at paragraphs 60 and 61 as follows:
"The first step then in determining whether there should be access to a Crown ward is to determine whether the access is meaningful and beneficial to the child. The law is clear that the evidentiary onus is on the parent. A beneficial relationship is one which is advantageous. A meaningful relationship is one which is significant. It is not enough that there are some positive aspects to it: it must be significantly advantageous to the child. It speaks of an existing relationship, not the possibility of a future relationship. Even if the relationship is beneficial and meaningful there must be some qualitative weighing of the benefits of access vs. no access." The Children's Aid Society of Niagara Region v. M.J., 2004 O.J. No. 2872 (SCJ). (emphasis added)
"The quality of the relationship must be the focus. The parents have to show more than just that a child has a good time during visits. (Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ)). More is required than just a display of love between a parent and child. The Divisional Court has held that a person seeking access must prove that his or her relationship with the child "brings significant positive advantage to the child". The Children's Aid Society of Niagara Region v. J.C., [2007] O.J. No. 1058 (Div. Court).
A. Evidence of the Respondent/Mother
[78] The evidence of the mother regarding access is contained in paragraphs 49 to 51 of her affidavit sworn October 27, 2014. She states as follows:
(a) Her visits with L.W. remain supervised;
(b) That she has regularly attended every visit and has never been late;
(c) That L.W. is very attached to her; and
(d) That L.W. smiles at her, makes eye contact with her when hearing her voice, and makes sounds and interacts with her when she is talking to him.
[79] Given this evidence, counsel for the mother submits that the access between mother and child satisfies the criteria under section 59(2.1) of "the Act".
B. Evidence of the Society
[80] At paragraph 22 of her affidavit sworn October 3, 2014, Ms. Khalsa states that the mother's access with L.W. has been as follows:
(a) daily access visits at the hospital following L.W.'s birth on February 16, 2014 to March 30, 2014 when the child was discharged; and
(b) supervised access once per week for a period of two (2) hours which is ongoing.
[81] Ms. Khalsa notes at paragraph 23 that "… I have also noted that when in a contained, supportive environment (i.e. the Society's access centre), Ms. W is able to demonstrate many moments of positive parenting."
[82] Ms. Khalsa provided additional information at paragraph 8 of her affidavit sworn November 4, 2014. She acknowledges that the mother did not miss any access visits with L.W. until late-September, 2014. Paragraphs 8(a) to (f) inclusive however provides detailed information regarding access including that the mother did not attend for access visits on September 24, October 1, 8, 16 and 23, 2014 and the efforts made by the Society to communicate with the mother to discuss access.
[83] It is not disputed by the parties that the child L.W. has never been in the care of his mother given that he was apprehended shortly after his birth. The visits between the mother and L.W. have always occurred within a controlled and secure environment, namely the hospital and the Society's access facility. Once discharged from the hospital, the access visits have been supervised and of limited frequency and duration.
[84] The mother has never sought to increase her access or vary the terms of access to L.W. by filing a motion.
[85] Given this evidence, I find that the relationship between L.W. and his mother is not beneficial and meaningful as defined by the case law on this issue. The mother has not met her evidentiary burden to satisfy me that the first branch of the test pursuant to section 59(2.1) has been met.
[86] The Society's plan is for L.W. to be adopted by the same family who is in the process of adopting a younger sibling of L.W. This information is contained at paragraph 25 of the affidavit of Julie Johnson, a permanency/adoption worker with the Society, sworn October 3, 2014.
[87] At paragraph 26, Ms. Johnson states that "The Society has no concerns with respect to T (W.)'s prospective adoptive family's ability to meet the needs of both L.(W.) and T.(W.)."
[88] Justice Clay granted an order of crown wardship with no access with regard to this older sibling. Accordingly, although not necessary to state given the failure of the mother to satisfy the first criteria of section 59(2.1), I find that an order permitting access between the mother and L.W. may impair future opportunities for adoption, including placing at risk the current plan of a placement with a sibling who does not have access to the mother.
[89] Given this decision, there is no need to consider what is in L.W.'s best interest under s. 58 of "the Act".
[90] Given these reasons, there will be no order for access.
THE RESPONDENT/MOTHER'S REQUEST TO AMEND HER ANSWER AND PLAN OF CARE
[91] Given my reasons granting the Society's summary judgment motion, the mother's request for leave to file an Amended Answer and Plan of Care is denied.
THE RESPONDENT/MOTHER'S REQUEST FOR AN ASSESSMENT
[92] The request of the mother for a section 54 assessment is also denied.
[93] In denying this request, I am relying on my reasons in support of granting the Society's request pursuant to the notice of summary judgement motion.
[94] The mother's request is also being denied given the absence of evidence to satisfy me that the requirements of Ontario Regulation 25/07 have been met. Specifically, the evidence of the mother:
(a) fails to satisfy the criteria of section 2(a) of Ont. Reg. 25/07, namely that an assessment is "necessary for the court to make a determination under Part III of the Act" given my reasons in support of the granting of the Society's summary judgment motion;
(b) fails to satisfy the criteria of section 2(b) of Ont. Reg. 25/07 namely that "the evidence sought from an assessment is not otherwise available to the court". My reasons clearly indicate that there is sufficient evidence before the court regarding the mother's parenting abilities, home environment and current life situation; and
(c) fails to provide sufficient evidence so as to permit the court to satisfy the requirements of sections 4(1) and (2) namely, the evidence of the mother did not (i) provide specific questions to be addressed by the assessor; (ii) identify which questions required recommendations and (iii) any time period for the completion and filing of the assessment report.
[95] The mother, through her evidence in support of her motion and through submissions from counsel on this point, failed to provide names of potential assessors and details regarding the funding of the assessment if granted. This absence of information also creates a concern of further delay in this matter which cannot occur.
[96] For all of these reasons, the motion by the mother for an assessment is denied.
ORDER
[97] Given these reasons, the Society's motion for summary judgement is granted. An order will go as follows:
(a) the statutory findings pursuant to section 47(2) are granted regarding the child, L.W. in accordance with paragraph 2 of the Notice of Motion dated October 3, 2014 and located at Tab 6 Volume 13 of the Continuing Record;
(b) the child L.W., born […], 2014, is found to be a child in need of protection pursuant to sections 37(2)(b)(i), 37(2)(b)(ii) and 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended;
(c) the child, L.W., […], 2014, is made a Ward of the Crown and placed in the care and custody of the Children's Aid Society of the Region of Peel for the purposes of adoption.
Released: December 11, 2014
Justice L.S. Parent