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 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 Information

Ontario Court of Justice

Date: 2015-07-03

Court File No.: C-316-13

Parties

Between:

The Children's Aid Society of the Districts of Sudbury and Manitoulin Applicant

— AND —

H.C. Respondent

— AND —

S.M. Respondent

Before: Justice A. L. Guay

Motion for Summary Judgment pursuant to Rule 16 of the Family Law Rules released on July 3, 2015

Counsel

Dawn Dubois — counsel for the Applicant

Darren Berlinguette — counsel for H.C.

S.M. — on his own behalf

Decision

GUAY J.:

Background

[1] The child who is the subject of these proceedings, B.C., was born on […], 2013. B.C. was formally placed in the care of the Children's Aid Society of the Districts of Sudbury and Manitoulin, hereinafter called the Society, by order of this court on […], 2013. He was apprehended from his mother's care about one month after he was born. At this point, he has been in care for close to two years, well over the statutory limitation set out in section 70 of the Child and Family Services Act (RSO 1990, c. C.11, as amended). Both of B.C.'s parents were Crown wards and emerged from adolescence with many emotional and other issues. B.C.'s mother is still receiving assistance from the Society under its Continued Care and Support for Youth Program.

[2] Initially, B.C. and his mother, H.C., were placed together in a foster home with the purpose of providing support to her in her new parenting role. This arrangement broke down within a month and B.C. was placed in a foster home. Since that time, the mother's access to B.C. has largely been at the offices of the Society. B.C.'s father, S.M., has not had contact with him for some time and was earlier noted in default in these proceedings.

Society's Evidence

[3] In the affidavit material filed by it, most of it based on its direct experience with the respondents, the Society has itemized in fine detail the parenting behaviour of the respondents. It has equally described their response to the opportunities provided by it to help them improve their parenting and develop a genuine relationship with their son, B.C.

The Respondent Father

[4] The respondent father was shown to have a number of issues affecting his parenting, including substance abuse, anger management and spousal violence. He has a criminal record and has spent time in jail. He continues to have involvement with the criminal justice system. More than one year ago, he lost contact with and interest in B.C. There was clearly never a realistic possibility that he or a member of his extended family could parent B.C.

The Respondent Mother

[5] The respondent mother was also described as having issues affecting her parenting ability. From the outset she was encouraged by the Society to address a number of these issues. These included frequently engaging in unhealthy and dysfunctional relationships and an inability to focus on her parenting.

[6] The Society's opposition to her parenting B.C. is one predicated on repetitive patterns of behaviour wherein 1) she failed to improve her parenting skills and focus her attention on parenting B.C. and 2) she has been engaged in a number of relationships with dysfunctional and abusive men who posed a threat not only to her but also B.C.

[7] While the respondent mother participated in the Society's Clinically Managed Access Program shortly after B.C.'s birth, she failed to successfully complete that program and her participation in it was terminated by the Society. During the course of the program, she showed herself unable to consistently focus on B.C.'s care and to incorporate into her parenting the principles which the access worker attempted to teach her. While she was resistant to the access worker's advice and recommendations, she showed herself woefully inadequate in her parenting skills. The nursing staff at Health Sciences North at the time of B.C.'s birth had not had any more success in their attempts to assist her with her parenting.

[8] While the Society's Clinically Managed Access Program was again made available to her after the birth of her son, C.C., on October 20, 2014, the results this time were no better. The Society's concern with the use of drugs by someone in or visiting her residence and the presence of unknown males in her residence led the Society to move her visits to its offices.

[9] During the course of her relationship with S.M. in 2013, the respondent mother entertained a brief relationship with S.R. S.R. was an individual with a history of spousal abuse and mental health problems. In the months following the termination of her relationship with S.M., the respondent mother engaged in a relationship with an individual by the name of "D.". Again, as had been evidenced during the course of her other relationships, she missed a number of visits with her children when she became caught up with the drama of that relationship rather than focusing on her young son. No sooner had her relationship with "D." finished than the respondent mother became involved (early in 2014) in a relationship with S.L., a young man with a history of spousal abuse. During the few months of her relationship with S.L., the respondent mother missed and/or terminated early a number of visits with B.C. It was in February 2014 that she became pregnant with S.L.'s child.

[10] In reviewing the history of this matter, it is clear that these and a number of other personal relationships continued to dominate the respondent mother's attention, to the detriment of B.C. and his attachment to her. While she did participate in spousal abuse counseling at the Sudbury Counseling Center, the Society was informed that she lacked commitment to that counseling and did not complete sufficient counseling to address her repeated and risky participation in abusive relationships.

Test on a Motion for Summary Judgment Under Rule 16 of the Family Law Rules

[11] Rule 16 of the Family Law Rules provides that the court may grant a motion for summary judgment on sufficient evidence (see subparagraphs 4, 4.1 and 5) "where there is no genuine issue requiring a trial of a claim or defense" (see subparagraph 6). The case law makes it clear that such a motion can be used to prevent a child in need of protection from being caught in litigation drift. Under section 70 of the Child and Family Services Act, a child under the age of six is not to remain in care for more than a year. In B.C.'s case, he has been in care for almost two years at this time. In this sense, the legislation designed to prevent him from remaining in legal limbo has failed him. The respondent mother in particular has not made use of the time to salvage her parenting.

The Mother's Evidence

[12] The Respondent mother did not file an affidavit in response to the affidavit material filed by the Society on its Motion for Summary Judgment. In fairness to her, I reviewed and considered the only affidavit which she did file (see Tab 5 of the Continuing Record) in the course of these proceedings. In that affidavit, she deposed that she was in the process of completing her high school education. She stated that she was participating in the Better Beginnings Better Futures Program. She also stated that she had attended the Babies Breath Program and had both participated in and completed the Clinically Managed Access Program, implying that she had successfully completed the latter. She further deposed that she had terminated her relationship with S.M. in December 2013, maintaining that she had attended for domestic violence counseling. She asked that her access at her home be significantly increased. According to the respondent mother, her goal, at least by November 2014, was that she be more attentive to B.C. and be more "hands-on with both boys". She proffered that she was achieving both of these goals and that her access was going well.

[13] A review of the Society's affidavit evidence makes it abundantly clear that the respondent mother's view of her parenting and how well she was succeeding in addressing her parenting and personal issues was greatly overstated. In the period since B.C.'s birth in […] 2013, November 2014 was probably as good as it got for the respondent mother and her attempts to parent her children. Thereafter, what little progress she had made in addressing her issues proved fleeting. Neither her access to her children nor her participation in abuse counseling improved. Her inability to avoid abusive relationships or relationships with abusive men and to recognize the risk that these relationships posed to her children remained unchanged.

Conclusion

[14] The respondent mother's contention that she has addressed the problems which led to the apprehension of B.C. in October 2013 is clearly without any basis. Her conduct throughout the period following B.C.'s apprehension to the present time offers unequivocal proof to the contrary. Alleging that she has successfully completed the programming required to overcome her parenting and personal issues is not proof that this has occurred. She filed no documentation and provided no information confirming that she had done so. The Society's affidavit evidence establishes clearly that B.C. is and remains a child in need of protection. That same evidence also clearly establishes that both of his parents have failed to address the issues which caused the Society to apprehend him shortly after his birth and place him in its custody.

[15] This being the case, this court cannot but conclude that there is no genuine issue for trial in this matter and that the Society has made out its case for Crown wardship without access. On the basis of the affidavit evidence filed by the Society, it is clear that B.C. is very much in need of long-term planning to guarantee that his best interests are served. The Society has tried but been unable to find a less detrimental alternative to his long-term care than Crown wardship without access. This is not altogether surprising, given that the respondents were themselves made Crown wards during their adolescence. While the respondent mother's step-sister presented a plan to assume his long-term care, her relationship with the respondent mother appears to be what brought this possibility to an early end.

Access

[16] While it is clear that the respondent mother does have some affection and emotional ties to B.C., it is also abundantly clear that she does not at the present time have the skills required to successfully parent him; nor does his father. From the available evidence, one cannot today describe the respondents' relationship with B.C. as either "meaningful or beneficial" (see section 59(2.1) of the Act) and deserving of an order for continuing access. One cannot help but conclude that such an order would definitely impair his prospects for adoption. An order for access post-adoption could only work if the parents were able to demonstrate a high level of maturity. The respondent parents have demonstrated their immaturity on multiple occasions during the past two years, being more preoccupied with their emotional needs than with providing to B.C. the emotional support he needs to thrive.

The Society's Plan

[17] The Society's plan is to place B.C. for adoption. Nothing in the affidavit material filed suggests that B.C. has any mental, emotional or physical problems which could impair his adoption. A trial on collateral issues such as how long it would take the respondent mother to develop sufficient maturity enabling her to parent B.C. or canvassing her degree of attachment to him would not result in findings which would permit the court to place B.C. in her mother's care, under supervision or not. The Society's motion for summary judgment seeking Crown wardship without access with a view to adoption is the only realistic option available to the court in this case. An order will issue accordingly.

Released: July 3, 2015

Signed: "Justice A. L. Guay"