Endorsement

File No: 54/14

Applicant: Children's Aid Society of St. Thomas & Elgin

Respondents: A.C.M. & J.P.A.

Date of Hearing: February 4, 2015

Counsel:

• Karen Veenstra for the Applicant
• Nicole Keating for the Respondent mother
• Respondent Father not attending

Overview

The matter before me today is the Applicant's summary judgment motion asking that J.J.M. who was born […], 2013 be found to be a child in need of protection as defined in s. 37(2)(b)(i) & (ii) and (g) of the Child and Family Services Act and that he be made a ward of the Crown without access.

The child's mother, A.C.M., consents to the order sought. His father, J.P.A., has not appeared notwithstanding that he has answered in support of an ongoing access order in his favor.

Notwithstanding the mother's consent and the father's failure to attend, the Applicant is nevertheless required to file materials which meet the onus defined under Rule 16 of the Family Law Rules. This onus demands evidence satisfying the court that there is no genuine issue requiring a trial on any of the relief requested. In addition, the materials must speak to all statutory preconditions to securing the orders sought.

Risk

J.J.M. is the mother's fourth child. The three older children have all been made wards of the Crown without access and adopted into the same family home into which the Applicant proposes to place J.J.M. The risks that brought the older children into the permanent care of the State related to the mother's abuse of drugs and alcohol resulting in instability of mood, instability of residence, domestic violence and her involvement with the criminal justice system.

When J.J.M. was born, the mother was serving a Conditional Sentence related to charges of theft and several administrative breaches. The Conditional Sentence order required her to reside at "Fresh Start" which is a home in St. Thomas for mothers who require parenting education and assistance. She resided at Fresh Start for several months until she was evicted for assaulting another resident.

This assault was unprovoked and particularly violent. The Applicant described historic incidents of assaults caused by the mother losing her temper without reason. All of the assaults described define the mother's inability to control her mood which would swing from complacent to violent quickly and without apparent reason.

The mood swings are likely fuelled by either alcohol or drug use and possibly an undefined personality disorder. The evidence is clear that the mother has not addressed her addictions. She acknowledges she continues to drink and ingest her drug of choice – methamphetamine. She intermittently takes medication to address depression but is not in an ongoing mental health program to address her personality disorder. The violence of her mood swings have been extensively described during her stay at Fresh Start and these events almost always occurred while her child was with her.

Within months of J.J.M's apprehension, the mother determined she was not in a position to address her personal issues and asked the Applicant to develop a permanency plan for her child. This process has been ongoing since May of 2014. In making this request, the mother tacitly acknowledged she would not be able, in the reasonably foreseeable future, to safely parent.

In the result, the evidence is un-contradicted that if J.J.M. were placed in his mother's care, he would be at risk of physical harm while his mother was ingesting either drugs or alcohol and, as occurred at Fresh Start, while she experienced mood swings. When she is under the influence or experiencing a violent episode, her child would be either neglected or at risk of inadvertent harm. These circumstances would, considering the lack of treatment, become a pattern of behaviour that would intensify over time to the point that J.J.M. would be emotionally harmed in a variety of circumstances described in 37(2)(f) of the Act.

In the result, I am convincingly satisfied that J.J.M. is at risk of harm as defined in s. 37(2)(b)(i) & (ii) and (g) of the Child and Family Services Act and summary judgment should issue respecting this aspect of the relief requested.

It is to be noted that this finding is based on the mother's circumstances. The child was never in his father's care prior to apprehension and his father was defaulted from answering the issues of risk and placement. He was only permitted to propose an access plan in his answer.

Disposition

The order sought is Crown wardship.

From the mother's perspective, she does not wish to plan for her care of the child. She acknowledges the risks identified above would prevent her from doing so without extensive (almost 24/7) assistance. She acknowledges she has not dealt well with the number of people who have been watching her every move to this point and she acknowledges that sort of intrusive attention would be a daily pattern if she were to care for the child in the future. Her violent mood swings are frequently focused toward those tasked to assist her.

Failing a plan, there is no best interests assessment under s. 37(3) to consider in regard to the appropriate disposition for J.J.M.

The father is presently 40 years of age. Since he was 13, he has been consistently in trouble with the law. He has been sentenced 27 times between 1988 and 2014 and more recently was held without bail for administrative breaches. He has accumulated 13 sentences for offenses involving violence. Due to the length of his record, all sentences now and into the future will involve jail time. Between April of 2010 and February of 2014, he has spent 533 days in pre-trial or post-conviction custody with more recent time in custody during 2014-15 the duration of which is unknown. Considering this information alone, he could not plan to care for his son: any plan would be subject to frequent and lengthy disruptions.

It is clear he could not parent without extensive assistance. I note he has been convicted 30 times for failing to comply with probation or recognizance terms and this fact denies he would be willing to cooperate with any form of supervision plan.

As to the father, the Applicant has conclusively shown there are no issues requiring a trial respecting disposition.

Statutory Preconditions

This is a protection application. In that regard, I confirm the s. 47 statutory findings on the particulars set out on page 3 of the application at Tab 1 of the record.

Services were provided to the mother by Children's Aid Societies in Perth, Middlesex and Elgin counties. The Applicant has satisfied its onus that those services focused the risks defined above and that there is no rationale to delay disposition for additional services. No issues are identified under s. 57(2).

The Applicant has satisfied its onus that there are no less disruptive placements that need to be considered before making a Crown wardship order. The evidence is clear that the child's needs focus only a permanent placement, not a temporary placement as anticipated under s. 57(3).

The placement anticipated for J.J.M. is in the home in which the mother's three older children are placed. In the result, considerations under s. 57(4) are unnecessary.

The Applicant's plan of care filed at Tab 4 of the record meets the demands of s. 56 of the Act.

For obvious reasons, a permanent order is demanded in this case and s. 57(9) is not applicable.

J.J.M. has been in care since April 4, 2014 and no consideration to s. 70 need be referred to.

Access

When a Crown wardship order is made, the onus shifts to the parents to prove access to their son is both beneficial and meaningful. Both aspects must be satisfied and, if the parents cannot do so, their application must fail. See C.C.A.S of Hamilton v. D.B. & P.B., [2003] O.J. No. 1968, Steinberg, J.; and, Children's Aid Society of Niagara Region v. J.(M.), 4 R.F.L. (6th) 245, S.C.J., Quinn, J.

Beneficial and meaningful has been defined to mean that contact with a parent must be "significantly advantageous" to the child; and, given the wording of s. 59(2), beneficialness and meaningfulness are to be reflected by the relationship to date, not a relationship anticipated in the future. Children's Aid Society of Niagara Region v. J.(M.), supra.

In context of the motion today, the simple determination is that neither parent responded with the result that neither has identified an issue requiring a trial.

In regard to the father's answer, however, there is no doubt he has failed to identify any form of a relationship with his son. There were no visits until May of 2014. The father did not actively pursue his right until then. Since May of 2014, the father's access has been sporadic or, since October 1, 2014, non-existent.

For the same reasons the father could not parent, the frequency of any access to his son would be defined by his criminal conduct. I am satisfied there is no relationship today and no identified circumstances in which one might arise.

In the result, the Applicant is entitled to an order of Crown wardship without access.

Conclusion

For the reasons above, an order for summary judgment shall issue as asked in its consent with the mother filed herein.

February 4, 2015

Justice M.P. O'Dea