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.
(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.
(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
Court File No.: C60865/13
Date: 2016-04-05
Ontario Court of Justice
In the Matter of an Amended Status Review Application for the Crown Wardship of A.H., born […], 2012 under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11
Parties
Between:
Children's Aid Society of Toronto
Katie Skinner, for the Applicant
Applicant
- and -
S.H.
Hugh Evans, for the Respondent, S.H.
Respondent
Heard: March 16, 2016
Justice: M. Sager
Reasons for Decision
Part One – Introduction
[1] The Children's Aid Society of Toronto (the society) has brought a motion for summary judgment within its Status Review Application seeking an order that the respondent's (the mother) child (A.H.) born […], 2012, be made a Crown ward. Mother asks that the society's motion be dismissed.
[2] The issues for this court to determine on the society's summary judgment motion are as follows:
a) Is there a triable issue for a disposition for A.H. other than Crown wardship?
b) If a Crown wardship order is made, is there a triable issue over whether the mother should have access to A.H.?
Part Two – Legal Considerations
2.1 Summary Judgment
[3] The mother brings this motion pursuant to rule 16 of the Family Law Rules (the rules) – the summary judgment rule.
[4] The case law on summary judgment in family law matters was summarized by Justice Stanley Sherr in Jewish Family and Child Services of Greater Toronto v. E.W. and R.C., [2016] O.J. No. 9, where he wrote in paragraphs 8-20:
[8] The case law on summary judgment in family law matters prior to May 2, 2015 was summarized by Justice Ruth Mesbur in Native Child and Family Services of Toronto and D.C., 2010 ONSC 1038, where she wrote in paragraphs 4-6:
[4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for summary judgment such as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard (2000), O.J. No 969.
[5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party's position, but rather whether the evidence is sufficient to require a trial. Children's Aid Society of the County of Dufferin v. J.R., (2002) 45515 (ONCJ).
[6] Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial.
[9] As of May 2, 2015, the rules have been amended to broaden the powers of the court on a summary judgment motion. Rule 16 has now been amended to include the same summary judgment powers set out in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure. The relevant provisions of rule 16 now read as follows (with amendments bolded):
RULE 16: SUMMARY JUDGMENT
WHEN AVAILABLE
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).
AVAILABLE IN ANY CASE EXCEPT DIVORCE
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).
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 a 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.
NO GENUINE ISSUE FOR TRIAL
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
POWERS
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
ORAL EVIDENCE (MINI-TRIAL)
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[10] The Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7, set out the process to be followed in applying the expanded summary judgment rule in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure.
[11] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers. The legal principles set out in Bedard, above, would still apply at this stage.
[12] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).
[13] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).
[14] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a "will say" statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64).
[15] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial.
[16] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).
[17] The court also set out the following:
a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).
b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).
c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).
d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).
e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and to resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).
f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).
g) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).
h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).
[18] The principles in Hryniak have been applied to summary judgment motions in child protection cases since the amendments to rule 16 of the rules became effective on May 2, 2015. See: Children's Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per Justice Timothy Minnema and Children's Aid Society of Toronto v. A.G. and A.B., 2015 ONCJ, 331, per Justice Roselyn Zisman and Children's Aid Society of Toronto v. L.S., 2015 ONCJ 527, per Justice Penny Jones.
[19] It is also necessary to consider subrule 2 of the rules to ensure that a case is dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity. A summary judgment motion is a tool that can contain and control a child's drift in litigation. This appears to also be in keeping with the process set out by the Supreme Court of Canada in Hryniak. See: Children's Aid Society of Toronto v. A.G. and A.B., supra.
[20] The court was able to determine this matter without applying the new powers under rule 16. The use of the new powers only served to reinforce this court's finding that there is no genuine issue for trial.
Part Three – Facts Not in Dispute
[5] The facts that follow in this part were not in dispute or were only baldly denied by the mother.
[6] The society has been involved with the mother since […] 2012, shortly after A.H.'s birth when the society received a referral from a social worker at the hospital where the child was born. Following the referral, the society had concerns about A.H.'s safety, development and emotional well-being.
[7] The mother was referred to programs through Public Health which she originally declined when proposed by the hospital social worker but then agreed to enroll in after the society became involved.
[8] In 2013, the mother was given a referral to the infant mental health program at Aisling Discoveries but only attended sporadically, resulting in her removal from the program after missing three sessions. The mother provided evidence that she could not complete the program "due to my anxiety condition".
[9] The society received several referrals from the police during their involvement with the mother. The police were called to the mother's home on three occasions before the society commenced the Protection Application and on 6 occasions after A.H. was brought into care.
[10] The society initiated a Protection Application on May 1, 2013, as result of: their concerns that the mother continued to struggle to ensure A.H.'s safety and emotional wellbeing; the multiple referrals from the police stemming from domestic disturbances; and, the mother was no longer participating in any community programing.
[11] On May 8, 2013, Justice Harvey Brownstone made a temporary order placing A.H. in the mother's care subject to the society's supervision.
[12] On July 29, 2013, Justice Harvey Brownstone found A.H. to be in need of protection pursuant to sections 32(2)(b)(i) and 37(2)(b)(ii) of the Child and Family Services Act and made an order placing A.H. in the care and custody of the mother subject to supervision by the society, with conditions, for a period of six months. Justice Brownstone also made a finding of no male parent for A.H.
[13] On August 16, 2013, A.H. was apprehended and the society initiated an early Status Review Application in which the society's concerns were stated to be that:
(a) The mother missed several home visits by either cancelling or not answering the door;
(b) On an unannounced visit on August 16, 2013, the worker found unsafe conditions in the home; and,
(c) On the unannounced visit on August 16, 2013, the mother's cousin was present in the home and reported to the worker concerns regarding the mother's substance abuse and her poor care of the child, including leaving her for long periods of time in her crib and not feeding her solid foods.
[14] On August 21, 2013, Justice Carolyn Jones made an order, on a temporary without prejudice basis, placing A.H. in the care and custody of the society. The mother was granted access at the society's discretion, to occur at a minimum of twice weekly.
[15] On September 25, 2013, Justice Brownstone made a final order making A.H. a ward of the society for a period of 6 months. The society brought a Status Review Application on February 5, 2014 seeking a further six month society wardship for A.H.
[16] On June 19, 2014, following an approved kinship assessment, Justice Stanley Sherr made an order placing the child in the temporary care and custody of the maternal great cousin, S.B., subject to supervision by the society with conditions. Access by the mother was to be at the society's discretion in consultation with S.B.
[17] On December 2, 2014, Justice Roselyn Zisman made a final order placing A.H. in the care and custody of S.B. subject to society supervision for a period of six months, with the mother's access to be at the society's discretion in consultation with S.B. The parties executed a Statement of Agreed Facts in which the mother supported an order placing the child with S.B. for a period of 6 months.
[18] On April 29, 2015, the society brought a Status Review Application in which the society sought a further six month supervision order with S.B. as the society felt the mother was not making significant progress addressing the society's protection concerns. S.B. and her husband required further time to determine whether or not they would be prepared to adopt A.H.
[19] The mother served and filed an Answer and Plan of Care dated July 13, 2015, opposing a permanent placement with kin and seeking the return of A.H. to her care.
[20] The society held a Branch Conference on August 28, 2015 to consider permanency plans for the child. The mother attended the conference. Following the conference the society decided to seek an order of Crown wardship for A.H. The society filed an Amended Status Review Application on September 29, 2015.
[21] The mother relies on her Answer and Plan of Care dated July 13, 2015 opposing an order for Crown wardship of the child. The mother's plan is to have the child returned to her care and she would work with the society. The mother's plan provides for access to the child in the alternative to the child being returned to her care. Finally, the mother's Answer and Plan of Care provides as a last resort that the child be placed with S.B. subject to society supervision.
The Mother's Alcohol Abuse and Mental Health Issues
[22] The mother has acknowledged in these proceedings that she has suffered from alcohol abuse, sometimes drinking heavily in the past.
[23] The society's evidence is that early in their involvement they referred the mother to the Jean Tweed Centre and to Metro Addiction Referral Services to help address her issues with alcohol abuse.
[24] The mother also disclosed to the society that she suffers from anxiety attacks for which she was prescribed medication. In October 2014, during a home visit, the mother advised her Family Service Worker that she had been hospitalized as a result of her anxiety and that she attended a 10 day rehabilitation program at the Scarborough General Hospital in July 2014.
[25] The mother provided the society with her outpatient records from the Scarborough General Hospital for her visit to the hospital on July 21, 2014. The records state that the mother's chief complaint was anxiety. At the hospital, the mother reported that she has a history of anxiety and that she has symptoms of anxiety daily, including shortness of breath, tightness in her chest, and racing thoughts.
[26] The mother's hospital records also disclose that the mother reported that she has a history of alcohol abuse and that she had limited contact with her daughter due to a history of alcohol dependence. The records disclose that the mother reported that she continued to use alcohol and was interested in addictions counselling.
[27] It does not appear from the hospital records that the mother was admitted to the hospital or that she attended a 10 day rehabilitation program as she had advised the Family Service Worker in October 2014. The mother was referred to Pinewood SCWMS program by the hospital to address her addictions and she was encouraged to speak with her family doctor.
[28] On July 22, 2014 the mother was contacted by an RN from the hospital who enquired as to how the mother was doing since her visit to the hospital on July 21, 2014. The progress note reports that the mother was encouraged to telephone Pinewood.
[29] The society has not received any evidence from the mother that she has completed a treatment program. The mother's explanation is that she does not require alcohol rehabilitation. She states in her affidavit sworn January 15, 2016, that she was given a referral to Pinewood but that "my major concern was my anxiety and stress and my depression. I was given a prescription for anti anxiety medication and started to take it. As a result, my mood improved and I did not use alcohol afterwards. I am now completely abstinent from alcohol and have been since late 2015."
[30] The mother further deposes in her affidavit sworn January 15, 2016 that she went to the intake appointment at Pinewood "and was advised to try a course of anti anxiety medication before resorting to an alcohol addiction/rehab program." The mother states in her affidavit, "I did not need rehab. I did have withdrawal symptoms in July 2014, but these subsided as time passed. Because I stopped drinking heavily, I did not need to attend Pinewood or any other rehab or alcohol counselling service."
[31] The mother acknowledges that she suffers from anxiety and depression but that this has been "minimized by medication". The mother further deposes that "I currently have no issues with alcohol use. My mental condition had improved and my home environment is safe and secure for a child." The mother declares in her affidavit that she did a urine test in the summer that was negative and that she asked her doctor to forward the test to the society but that she does not know if he followed through with her request.
[32] The mother provided no documentary evidence to support the statements contained in her affidavit about her current mental health, her claim that she has fully abstained from the use of alcohol since late 2015 and, that she does not require alcohol addiction rehabilitation or counselling.
The Mother's Follow Through with Other Recommended Services
[33] The mother was referred to a parenting program for infants at Aisling Discoveries called 'Beyond the Basics'. Mother began attending the program but after missing 3 sessions was not permitted to return. The mother acknowledges in her affidavit that she did not complete the program "due to my anxiety condition".
Ongoing Domestic Violence/Police Involvement in the Mother's Life
[34] From August 2013, when A.H. was brought into care until May 2015, the mother acknowledges 8 reports of domestic incidents in which she was involved at her home necessitating police involvement. The mother deposes that since May 2015, "there have been no disturbances and/or domestic violence involving me or at my residence."
[35] The mother attended for a visit with A.H. on June 18, 2014 with a black eye and the society claims she shared "very little information as to how she was hurt". The mother does not address or explain this incident in her affidavit.
[36] The society reports one additional domestic incident involving the mother in October 2015. The mother's affidavit is silent in regards to this 9th report to police of a domestic incident since August 2013.
The Mother's Access to A.H.
[37] Between August 2013 when A.H. was apprehended and June 18, 2014 when she was placed in the care of S.B., the mother visited A.H. fairly consistently. The mother has only visited with A.H. on 5 occasions since she was placed with S.B. in June 2014. This is not disputed by the mother.
[38] The mother explains in her affidavit that it is very difficult for her to visit her daughter as her placement is "4 or 5 hours away from me in the bus and costs $90.00". The society provided evidence that in July 2015, the mother was advised that the society would pay for half of her bus fare to visit A.H. and that the mother only visited A.H. once after the society made this offer. The mother's affidavit did not address the society's claim that it offered to pay half of her bus fare to visit her daughter.
[39] The mother did state in her affidavit that she asked S.B. to meet her halfway to reduce her travel time and the cost of travel to $30.00 but that S.B. was unable to meet her half way. The society deposes that efforts were made for S.B. to meet the mother half way on two occasions to visit A.H. but the mother cancelled these visits because she was ill.
[40] The society deposes that they were unable to contact the mother for a period of almost 4 months between December 2, 2014 and March 24, 2015. The mother does not deny the society's claims in this regard.
[41] The society deposes that the mother's last visit with A.H. was in July 2015 and the mother claims it was in October 2015. In any event, the mother has not seen A.H. for at least 5 months and, according to the mother, once in 9 months.
Part Four – Legal Considerations in a Status Review Hearing
[42] The court must determine whether there is a triable issue within the legal considerations that apply on a status review application. The status review application is brought pursuant to section 64 of the Act. Subsection 65(1) of the Act sets out the court's options on a status review application as follows:
65. Court may vary, etc. -- (1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,
(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;
(b) order that the original order terminate on a specified future date;
(c) make a further order or orders under section 57; or
(d) make an order under section 57.1.
[43] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:
Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57.)
If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.
If a Crown wardship order is to be made and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child (section 59(2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.
Determine whether the access would impair the child's future opportunities for adoption (section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step.
Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)
[44] Subsection 57(2) of the Act requires that I ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act. The child was placed in the care of the mother subject to society supervision before the child was apprehended. During this period, the family was assigned a Family Services Worker whose role is to provide service to the family. The mother was referred to addictions programs and parenting programs. In 2013 the society met with the mother and a worker from Aisling Discoveries to explain the infant mental health program to the mother. The society supported the mother's involvement with a public health nurse and an Infant Nurse Specialist. Society workers visited or attempted to visit the mother at her home on several occasions. When society workers were able to visit mother in her home, they encouraged the mother to connect with Aisling Discoveries, pursue addictions counselling and to make arrangements for A.H. to attend daycare.
[45] The society also referred mother to the Jean Tweed Centre, Metro Addiction Referral Services and to the CAMH to address her issues with alcohol abuse.
[46] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate to protect the child.
[47] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care. The society has met their obligation in this regard as the child has been placed with the mother's great cousin.
[48] In determining the appropriate disposition, I must decide what is in the child's best interests. I have considered the criteria set out in subsection 37(3) of the Act in making this determination.
[49] A Crown wardship order is the most profound order that a court can make. To take someone's child from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. J.G.-T. (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.).
[50] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 CarswellOnt 376.
[51] A child's need for permanency planning within a time frame sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See Children's Aid Society of Toronto v. R.H. and M.N., 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.) per Justice Heather L. Katarynych.
Part Five – The Plans of Care
[52] The society's plan of care is to make A.H. a crown ward with no order as to access. The society's affidavit evidence states that on August 28, 2015, S.B. and her husband advised the society that they are interested in A.H. becoming a permanent member of their family. Since that time the society has begun the home study assessment process for S.B. and her husband to adopt A.H.
[53] The mother's plan is to have A.H. placed in her care and she will cooperate with the society. She will live on her own in a 1 bedroom apartment and A.H. would not have to attend daycare as she does not work or attend school. The mother will have the support of her father, paternal grandmother and her brother. Her father and grandmother live about 20 minutes away from her and her brother lives in Oshawa.
[54] The mother does not work or go to school and is available to care for A.H. during the day but has looked into daycare for A.H. to enable her to "meet other children".
[55] The mother did not produce the names of any other supports, specifically with respect to her mental health issues or her misuse of alcohol.
Part Six – Is There a Genuine Issue Requiring a Trial Based Only on the Evidence Before the Judge, Without Using the Judge's Fact-Finding Powers?
[56] The court does not have to use its fact-finding powers to determine that there is no genuine issue for trial.
[57] The least disruptive alternative for A.H., consistent with her best interests is to make her a Crown ward.
[58] The court is not relying on contested evidence at this stage to reach this conclusion. In particular, the court is not relying upon contested evidence that:
a) The mother has abstained from using alcohol since late 2015.
b) The mother has not sought appropriate treatment for her alcohol addiction.
c) The mother did not need to attend an alcohol rehabilitation program/counselling.
[59] The uncontested or baldly denied evidence reveals several reasons why it is not in the best interests of A.H. to be placed in the care of her mother.
[60] The first significant reason is that the mother has had a very limited relationship with the child. The mother has only seen A.H. on 5 occasions since June 2014 and at the most, once since October 2015.
[61] The mother has effectively been absent from her daughter's life for the past 22 months. As A.H. is only 3 years, 8 months old, that is one half of her short life. A child cannot reach her full potential without the stability and sense of security they enjoy knowing that their parents will consistently be present in their life.
[62] The mother used the time it takes her to travel to S.B.'s home (she deposed it takes her 4-5 hours by bus) as an explanation for her infrequent access. The court recognizes that the cost and distance the mother had to travel to see A.H. was significant. However, a parent dedicated to their child and determined to have the child returned to their care would find a way to visit the child even if it was only once every 3 or 4 weeks. If a parent whose child is in the care of the society cannot commit to visit with their child regularly even when doing so is difficult, they leave the court with great doubt that they will be able to meet the challenges they will inevitably face parenting the child on a daily basis if placed in their care.
[63] If the mother cannot organize her life to attend access visits regularly, the court cannot accept the mother's assertion that she is now capable of putting A.H. first such that she should be returned to her care.
[64] The second significant reason is that the mother has not demonstrated that she can care for this child.
[65] The mother has only had supervised access with A.H. and only on 5 occasions since June 2014. The court could not return A.H. to her mother when she has not demonstrated that she can care for A.H. for extended periods. The court could not even contemplate placing the child in the mother's care while she is exercising supervised access. Before the mother could even have unsupervised access, the court would want to see a period of time where she regularly attends for supervised access. This would be a lengthy process taking many months before the court could even evaluate the mother's plan to have the child returned to her care.
[66] The process of evaluating extended access never took place. The mother has had limited supervised access. The opportunity to expand access has long passed. A.H. has been in the society's care since August 16, 2013, a total of 2 years and 7 months, and she is 3 years and 8 months old.
[67] The uncontested evidence also reveals other reasons why the mother's plan has no realistic chance of success:
a) The mother's Answer and Plan of Care lists her father, paternal grandmother and brother as supports should the child be returned to her care. The child does not share a relationship with these people.
b) The mother claims that she did not require rehabilitation or counselling to address her admitted alcohol addiction. In light of her own admissions to the court and to the doctor at the Scarborough General Hospital, this concerns the court and brings her judgment into serious question. How can the court be confident that if the child is returned to her care, the mother will seek out assistance should she suffer a set-back in dealing with her alcohol dependence?
c) The mother shows no insight in her affidavit into the society's protection concerns. She provides no explanation for the 8-9 domestic incidents reported to police in which she was involved in a two year period. She does not take seriously the society's concerns about whom she was and would be exposing A.H. to if returned to her care. Her choice in terms of the people she is spending her time with and allowing into her home is of great concern to the society and the court, yet the mother does not address this issue at all in her affidavit other than to state that there have been no domestic incidents since May 2015.
d) The mother deposes that she did not complete the 'Beyond the Basics' parenting program offered at Aisling Discoveries due to her anxiety condition. The mother was referred to this program in 2013. The court notes that the mother deposes in support of her request that A.H. be returned to her care that her anxiety and depression have been "minimized by medication" but she provides no evidence of her enrollment in and completion of any other parenting course after failing to complete 'Beyond the Basics' program in 2013. If the mother cannot complete a parenting program, how can she care for the child?
e) By her own admission, the mother has done almost nothing to address the society's concerns that existed in August 2013 when the child was apprehended.
[68] The court finds, based on the uncontested or baldly denied evidence that:
a) The society's plan will better meet A.H.'s physical, mental and emotional needs. A.H. is doing very well in a family placement with loving and consistent caregivers.
b) The society's plan will better meet A.H.'s physical, mental and emotional development.
c) The society's plan will better meet A.H.'s need for continuity and a stable place in a family through adoption. S.B. and her husband are the only caregivers A.H. has known for half of her life.
d) The risk of placing A.H. with her mother is unacceptably high as she would be moved from a stable to an unstable environment.
e) The society's plan will better address A.H.'s needs than the plan proposed by the mother.
f) This case should not be delayed any further. A.H. should receive a permanent home as soon as possible. It is in her best interests that this placement be in an adoptive home.
Part Seven – The New Fact-Finding Powers
[69] While it is not necessary for the court to use its new fact-finding powers, the use of these powers reinforces the court's finding that there is no genuine issue for trial.
[70] The new fact-finding powers are most relevant in determining how much weight to give to the society's concerns that the mother has not addressed her history of alcohol misuse.
[71] As stated above, the mother deposes that she did not require treatment for her history of alcohol abuse as it was brought under control by treating her anxiety and depression. The mother is minimizing her problem with alcohol given her own statements in her affidavit including that she drank heavily in the past, suffered from withdrawal symptoms in July 2014, and, the admissions she made to the doctor at the Scarborough General Hospital on July 19, 2014. Should the court have to weigh this evidence and evaluate the mother's credibility, it would not be unreasonable to conclude that the mother had significant alcohol abuse issues at the time A.H. was apprehended that have not been addressed by the mother in any meaningful way in the two and a half years that have passed since that time.
[72] It would also not have been unreasonable for the court to exercise its new fact finding powers and draw reasonable inferences against the mother for the lack of third party evidence to support her claims that she has successfully addressed her alcohol abuse and that her mental health issues are being treated and are under control. Without this important third party evidence, the mother's affidavit amounts to bald denials.
[73] The new fact-finding powers also assist the court in determining the following facts:
a) The mother's position in her Answer and Plan of Care is that the child should be returned to her care and she will "cooperate closely with the CAS". The mother has had very little interaction with the society in two and a half years and in fact had no contact at all with the society for almost 4 months between December 2014 and March 2015.
b) The mother says that S.B. did not cooperate to meet her half way to facilitate visits with A.H. She provided no reliable evidence in support of her assertion nor did she bring a motion seeking an order requiring S.B. to meet her half way. It is also difficult to accept the mother's evidence when she asks in her Answer and Plan of Care for the child to be placed with S.B. if the child is not returned to her care.
[74] The court wishes to emphasize that it is not making any findings that the mother continues to suffer from alcohol abuse or dependence. Due to the other overwhelming uncontested evidence, it is not necessary for the court to make this determination in deciding whether to grant the society's motion.
[75] There is no genuine issue requiring a trial. The least disruptive alternative consistent with the child's best interests is to make A.H. a Crown ward.
Part Eight – Access
8.1 The Law
[76] Once a disposition of Crown wardship is made, the Act provides for a presumption against access. The current test for access to Crown wards is set out in subsection 59(2.1) of the Act, which reads as follows:
Access: Crown ward
(2.1) 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,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption.
[77] The onus to rebut the presumption against access to a Crown ward is on the person seeking access. See: Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.). This person has the onus of establishing both portions of the test in subsection 59(2.1) of the Act.
[78] The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.
[79] The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examine the quality of the relationship from the child's perspective. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.
[80] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:
(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.
(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, for 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.
(47) Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.
[81] More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. 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. An access order cannot be merely a consolation prize for disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.
[82] The court must consider whether the relationship is beneficial and meaningful to the child at the time of the hearing. Considerations of openness should not be imported into this analysis. See: Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638.
[83] In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.
8.2 Analysis
[84] As the mother has only seen A.H. on five occasions over the last 22 months. This court cannot conclude, especially in light of her young age, that the relationship is beneficial and meaningful for A.H. as interpreted in the case law.
[85] The mother has been a sporadic visitor in A.H.'s life.
[86] There is no genuine issue requiring a trial regarding the mother's access. The access is not beneficial and meaningful for A.H.
[87] Since the mother did not meet the first part of the two-part test to obtain an order for access, it is unnecessary for the court to determine if the mother would have met the second part of the two-part test.
[88] No order for access will be made.
Part Nine – Conclusion
[89] An order will go on the following terms:
a) The society's motion for summary judgment is granted, there being no genuine issue for trial.
b) A.H. will be made a Crown ward without access, for the purpose of adoption and placed in the care and custody of the society.
Released: April 5, 2016
Justice Melanie Sager
Footnotes
[1] According to the society there have been 9 reports to police of domestic incidents between August 2013 and October 2015. Mother does not deny that there had been 8 incidents up to May 2015. She does not provide a response to the society's allegation that there was a 9th domestic incident reported to police in October 2015.
[2] The importance of this is emphasized by the fact that the mother swears to having abstained from alcohol use since late 2015 in her affidavit sworn in early 2016.
[3] Mother's Answer and Plan of Care dated July 13, 2015