Court Information

Ontario Court of Justice Family Court

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

-and-

A.M.P. and M.V.J.L.

Reasons for Decision

Before the Honourable Justice J. D. Keast

On June 16, 2015

Appearances

• P. Marcuccio for the Applicant
• G. Fournier for A.M.P.
• E. Gray for M.V.J.L.

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(7) AND 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Decision

Tuesday, June 16, 2015

KEAST, J. (orally)

This is a summary judgment motion wherein the Children's Aid Society seeks crown wardship without access to the child S1, born […] 2014. This couple has another child, born […], 2013; that child's name is S2. That child is being raised by an aunt. At the outset of the motion parents' counsel conceded the issue of finding and crown wardship. The parents seek access, and the Society opposes any access.

Legal Framework for Access Orders

As a matter of law, an access order can only be made if it is in the child's best interest. There is a presumption against access when a crown wardship order is made. Under section 59 of the Child and Family Services Act, a court shall not make an access order under the CFSA unless the court is satisfied that the relationship between the parent and child is beneficial and meaningful to the child and ordered access will not impair the child's future opportunities for adoption. This is a two-pronged test wherein the parents have the evidentiary burden on a balance of probabilities as it relates to both tests, or I should say both prongs of the test.

In 2011, the Child and Family Services Act was amended to provide for openness orders. Prior to 2011 there was a serious social problem in Ontario wherein thousands and thousands of children who were crown wards with access could not be adopted. The amendments allowed crown wards with access to seek adoption. So an access order was no longer an impediment to adoption planning. These provisions have had a significant impact on the second of the two-prong test. There is a dearth of case law as to whether these provisions impact a consideration of the first part of the test. There is no appellate authority to say that such does. It is noteworthy that the legislature did not change section 59 as it relates to the meaningful and beneficial test.

Summary Judgment Framework

The framework in which these issues are to be decided is one of summary judgment. In my decision of the Children's Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2011 ONCJ 745, I review the essential features of summary judgment taken from several cases. I will read paragraphs ten, 11 and 12 of my case. It should be noted that recently in Ontario there have been material changes made to summary judgment in terms of the rules and in terms of the factors involved and the powers and discretion of judges.

In paragraph ten it is stated:

"The court's function is very narrow. The court does not resolve an issue of fact, but does determine whether a genuine issue of fact exists. A genuine issue of fact requires the fact to be material to the decision in the main litigation. If the conclusion of the proceeding does not turn on the existence or non-existence of the fact that is advanced as a genuine issue, then it cannot be said the alleged fact is a genuine issue for trial."

Paragraph 11 states:

"The court does not weigh evidence, assess credibility or find facts. However, the court must take a 'hard look' at a case and carefully scrutinize material facts from non-material facts and determine whether the material facts require a trial."

Of particular importance is paragraph 12, which states:

"The party responding to such a motion must not rest on mere allegations or denials. They must put their 'best foot forward' and set out specific facts, that are material in nature, which require a trial to resolve. The genuineness of an issue for trial must arise from something more than a heartfelt expression of a parent's desire to resume care of a child. The parental position cannot be based on conjecture or speculation as to better prospects in the future. The evidence must be based on the here and now and be in existence at the time of the motion. A promise to do something, such as take an assessment or attend a program in the future, does not constitute a material fact for trial. The responding affidavits must not be unduly self-serving and must go beyond a superficial approach."

Analysis of Material Facts

The question now is what material facts are required to be determined by a trial. The most essential material fact is the nature and quality of the relationship between the parents and the child. In their initial affidavits the Society puts forth considerable information as to the indifferent and inconsistent attitude of the parents towards S2 and S1, in particular as it relates to the consistency of the access.

The parents in their affidavits do not remotely deal with the Society materials. The response is a generic denial. The genuineness of an issue for trial must arise from something more than a heartfelt expression, which is the dominant theme in their affidavits. They have a feel-good approach as to how they relate to the child. The parents have not set out specific facts that are material in nature that require a trial to resolve.

Much has been said about the CAS evidence as it pertains to the consistency of access with the child S2, in particular a hearsay statement made to the social worker quoting the aunt that the parents don't or rarely visit S2. That statement is contained in a rebuttal affidavit that was put together close to the hearing of this motion. Though it is clearly inadmissible hearsay, it has to be considered in the context of the considerable Society record that demonstrates an indifferent and inconsistent attitude towards access with S2 – and of crucial importance is the parents have not responded to this massive record. The aunt's comments are consistent with the history of their access with S2. She does not add much to the history.

I can indicate that the first three affidavits of the Society give considerable detail as to the inconsistent and indifferent access with the child S2, which detail is not responded to in any meaningful way in the parents' responding affidavits. Also, the parents have not responded to the considerable record as it relates to access with S1. That access was suspended in November 2014 because of the inconsistent and sporadic access that existed prior to that. The parents did not deal with most of that record; instead, they focus on the eight visits that took place when the suspension was lifted in late December 2014.

In conclusion there are no material facts that require a trial to resolve.

Therefore I am able to draw inferences from facts that don't require a trial.

The "Beneficial and Meaningful" Test

The leading case on the phrase beneficial and meaningful is Justice Quinn's decision in the Children's Aid Society of Niagara Region v. M.J.. Paragraph 45:

"What is a 'beneficial and meaningful' relationship in clause 59(2)(a)? Using standard dictionary sources, a 'beneficial' relationship is one that is 'advantageous.' A 'meaningful' relationship is one that is 'significant.' Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough -- it must be significantly advantageous to the child."

Paragraph 46:

"I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important; it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent."

Paragraph 47:

"Even if the relationship is beneficial and meaningful, I think that as a final precaution there still must be some qualitative weighting of the benefits to the child of access versus no access before an order is made."

The parents have presented four cases on this issue. However, those cases are distinguishable from this one. There are material differences in the facts between this case and those cases. The outcomes in these cases are fact driven.

Application to the Facts

In considering the concepts of beneficial and meaningful, the most striking feature about this case is the overall lack of access and the inconsistency of the access. This demonstrates an indifferent attitude toward access wherein it is questionable about the nature and quality of the relationship between the parents and the child.

There is some positive commentary in the materials. They are cooperative with the supervisors of the access to the best of their ability. They played with the child and he was happy to be with them. They gave hugs and kisses which caused him to laugh. They showed love for the child. There has been some improvement in their care and management of the child.

Sadly, these parents have significant cognitive deficiencies which have had an enormous impact on their functioning in life and the relationship to the child. They have struggled with child management techniques; simply not understanding them and not implementing them on a consistent basis. As the child's needs changed they couldn't keep up with the techniques required to manage the change. There were times when they cooperated to the best of their ability, but overall the best of their ability was wholly inadequate to meet the needs of the child.

Attitudinal factors were a theme in many visits. They were sleepy or not alert and unusually tired, thus detracting even more from their limited ability to understand and implement. Often the relationship between the couple was poor, with petty bickering and power and control struggles, causing them to lose focus on the child.

But the most dominant feature is the overall access to the child has been erratic and inconsistent, wherein I infer an indifference to their relationship with the child. In 2014 visits were so erratic and so many were missed that the Society suspended access in November. Access resumed in late December 2014. Up to the time of the hearing of the summary judgment motion on April 13th, 2015, there has only been eight visits. There continues to be many missed visits. The pattern of erratic and inconsistent visits with S2 continued with S1. A meaningful relationship is one that is described by Justice Quinn as significant. The presence of some positive aspects is not helpful to the parents. I infer from the overall record of access and the lack of access that the relationship is NOT significantly advantageous to the child.

As Justice Quinn points out there must be an existing relationship, not contemplating a future relationship. There is no real and substantive relationship here. The parents say they have improved in the last few months, but this is too little too late. They continue to miss visits. The overall history suggests their visits will continue to be sporadic and inconsistent.

There must be some qualitative weighting of the benefits of access versus no access. On these facts, and I emphasize on these facts, that weighting is clearly in favour of no access.

Impact of Openness Provisions

The new openness provisions may impact in some cases on the beneficial and meaningful analysis, for example Justice Katarynych's decision in M. (S.) Re, 2009 ONCJ 317. In my view they do not impact on the facts of this case.

I felt much of the argument by counsel for the mother was based on a philosophical and public policy perspective as to how the openness provisions should apply to the beneficial and meaningful analysis. This approach would give predominant weight to the factor of openness and essentially render meaningless the concepts of beneficial and meaningful. If the legislature wanted to give dominant status to the concept of openness, then it would have specifically done so by either stating such or amending section 59 to adjust the meaning of the concept of beneficial and meaningful. The approach taken here by mother's counsel would materially lower the threshold of analysis under section 59 wherein openness would be the engine that drives the analysis.

I don't accept this argument. I believe Justice Quinn's decision is still good law. What I expect over time is courts to tease out those fact situations wherein openness is a more dominant factor in the section 59 beneficial and meaningful analysis.

One such case is Justice Humphrey's decision in the Children's Aid Society of the Districts of Sudbury and Manitoulin v. N.L. and C.M., released Jan 23, 2015, under court file no. C333-12 Ontario Court of Justice at Sudbury, Ontario.

In that case, strongly urged upon me by counsel for the mother, the judge placed significant emphasis on the openness provisions during the beneficial and meaningful analysis.

The facts of that case are materially different than the facts of this case. In those facts there was a much more significant relationship between the parents and the children. Though there were missed visits, there was a considerable quantum of visits over a longer period of time than compared to this case. In that case there was a clear existing relationship. Of crucial importance, there was a parenting capacity assessment conducted by a psychologist that concluded there was attachment from a psychological perspective between the parents and the children. The psychologist recommended future interaction between the parents and children, even after an adoption was completed.

There is no question that the openness provisions will greatly benefit children who are wards of the state. They will also benefit adoptive families. But these cases will continue to be fact driven, not driven by public policy. The openness provisions will not save a situation wherein there is a weak parent-child relationship such as we have here.

Conclusion

The parents have not discharged their burden under section 59. I find there does not exist a beneficial and meaningful relationship as a matter of law.

Of assistance in this matter is a recent article in Volume 34.1 of the Canadian Family Law Quarterly entitled "Openness orders: A new Frontier in Ontario Adoption Law", December 2014, 81. I would recommend this to counsel and judicial officers when considering this issue.

The endorsement reads as follows: for oral reasons provided, the motion for summary judgment is granted. There shall be an order for crown wardship, no access.

Certificate of Transcript

Form 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Sharon Joliat, certify that this document is a true and accurate transcript of the Recording of CAS v. P. and L. in the Ontario Court of Justice held at Courtroom B, 159 Cedar Street, Sudbury, ON taken from Recording 4031_CrtRmB_20150616_095142__6_KEASTJ.dcr which has been Certified in Form 1.

Transcript Order Received: June 16, 2015

Transcript Completed: June 29, 2015

Judicial Approval Received: September 1, 2015

Ordering Party Notified: September 2, 2015

Released: September 1, 2015