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

Date: 13 February 2017

Court File No.: Brampton 20016/16

Ontario Court of Justice

Between:

The Children's Aid Society of the Region of Peel, Applicant,

— AND —

S.C. Respondent,

P.S.S. Respondent

Before: Justice P.W. Dunn

Heard on: January 25, 2017

Motion for Summary Judgment released: 13 February 2017

Counsel

David Sider, Esq. — counsel for the Applicant Society

S.C. — self-represented

Paul B. Fox, Esq. — counsel for Respondent P.S.S.

Decision

DUNN J.:

Introduction

[1] Before the Court was a motion for summary judgment dated 5 December 2016, brought by the Children's Aid Society of the Region of Peel (the "Society").

[2] The subject children in the motion are:

1. P.S.J., born […], 2002 (14), a boy, (called "P.J." to distinguish him from his father, P.S.S.)
2. I.S., born […], 2005 (11), a girl, called "I."
3. R.C.1, born […], 2011 (5), a girl, called "R."

P.S.J., I.S. and R.C.1 collectively are called the "children".

Their mother is S.C. ("Ms. S.C.") and their father is P.S.S. ("Mr. S.S.")

[3] The maternal grandparents are Mrs. R.C.2 and Mr. K.C. ("Mr. and Mrs. C." or the "maternal grandparents"). Mr. and Mrs. C. did not file responding materials to the motion nor to the Amended Protection Application. They are in default, and were not permitted to partake in this proceeding, although they have had a long and close relationship with the children.

[4] The motion requested that the Court make statutory and protection findings under the Child and Family Services Act (the "Act"), and that the children be placed with Mr. P.S.S. pursuant to Section 57.1 of the Act.

[5] Mr. P.S.S. supported the Society's motion. The children reside with him in Toronto since September 2016 under an Order of this Court.

[6] Ms. S.C. opposed the motion and argued that P.S.J. and R.C.1 be returned to her. She accepted that I.S. continue with Mr. P.S.S. for the time being.

[7] The Society relied on Rule 16 of the Family Law Rules (O. Reg. 114/99 as am.) to bring this motion to seek final Orders without a trial, on the basis that there are no genuine issues for a trial.

Evidence Before the Court

[8] The Society submitted affidavits in support of its position:

(a) Affidavits of Diane Robev, a protection team leader with the Society, sworn 6 December 2016 and 17 January 2017;

(b) A Report, dated 12 July 2016, by Dr. Vincent Murphy, psychologist;

(c) A Parenting Capacity Assessment dated 23 November 2016 by Dr. Betty Kershner, psychologist;

(d) Notes from the Society's records;

(e) Affidavit by Mr. P.S.S., sworn 2 September 2016.

[9] Since Ms. S.C. was the only party opposing the motion, she had the onus of establishing that there are genuine issues for a trial. However, the only written material before the Court from Ms. S.C. was her Answer and Plan of Care in response to the Society's Amended Protection Application. She did not file an Answer to this motion.

Factual Background

Recurring Themes in Ms. S.C.'s History

[10] In examining the history of Ms. S.C.'s involvement with the Children's Aid Society of Toronto ("CAS of Toronto") and the (Peel) Society, Mr. Sider submitted that there were recurring themes about Ms. S.C.:

(a) Questions about the stability of her mental health;

(b) Her unwillingness to work with children's aid societies;

(c) Lack of supervision of children in her care;

(d) Conflict with others;

(e) Excessive physical discipline of her children.

1999

[11] The CAS of Toronto and police were involved because of Ms. S.C.'s physical aggression to two other of her children. Those children were left unattended, and Ms. S.C. was uncooperative with that society's investigation. They were placed with Mr. and Mrs. C. under supervision.

2008

[12] On 13 February 2008, P.S.J. and I.S. were apprehended by the CAS of Toronto and placed into care. In the spring of 2008, Ms. S.C. was unable to care for P.S.J. and I.S., and they were placed with Mr. and Ms. S.C. under supervision.

2012 Onwards

[13] The Society's current involvement with the family began shortly after 27 February 2012, when a Court in Toronto placed P.S.J. and I.S. in the joint care of Mr. and Mrs. C., Ms. S.C. and Mr. P.S.S. under s.57.1 of the Act. The youngest child R.C.1 was put in the sole care of Mr. and Mrs. C., and the parents received access to all the children. The children's primary residence was with the maternal grandparents in Peel Region. Then Ms. S.C. was residing with the maternal grandparents, and Mr. P.S.S. lived separately.

[14] In the winter of 2012, the Society assisted the family because of conflict between Mr. K.C. (paternal grandfather) and Ms. S.C., and she was asked to leave the maternal grandparents' residence. The Society was coming to an understanding that it was a disturbance in Ms. S.C.'s mental health that led to her conflict with people.

[15] By June of 2012, school authorities observed that the children did not have lunches and there were hygiene issues, and P.S.J. was absent without explanations. Ms. S.C. was uncooperative over these issues.

[16] In April of 2013, the maternal grandparents placed the children with Ms. S.C. without Court involvement. The Society was questioning whether apparent deficiencies in Ms. S.C.'s parenting ability represented a risk to her children.

[17] In July 2013, Ms. S.C. entered a Voluntary Service Agreement with the Society. She was asked to do a mental health assessment, but declined.

[18] In August 2013, the Society's notes indicated that Ms. S.C. became inappropriately upset over P.S.J.'s actions. The boy reported to a worker at the Peel Children's Centre that he felt unsafe emotionally when his mother abused him.

[19] By the fall of 2013, the Society had ongoing questions about Ms. S.C.'s emotional outbursts and their affect on the children. Ms. S.C.'s and Mr. P.S.S.'s conflicts also presented risks to them.

[20] In the spring of 2014, Ms. S.C. admitted to the Society that she had been diagnosed with Bipolar and Post Traumatic Stress Disorder. The children were still witnessing parental conflict, and Ms. S.C. did not understand the impact on her children of her inconsistent discipline, and Ms. S.C. still declined assistance from the Society. On 14 July 2014, the Society verified that Ms. S.C. had used unsuitable physical discipline on P.S.J. and I.S.

[21] By the fall of 2014, previous aspects of Ms. S.C.'s parenting that concerned the Society continued. Ms. S.C.:

(i) Did not attend certain doctors' appointments for the children;

(ii) Was inconsistent in attending office visits with case workers;

(iii) Did not work with the Society on goals.

January 2016 — Pivotal Event

[22] A pivotal event occurred to I.S. on 25 January 2016 when she was four-years-old. She was with Mr. P.S.S. and she complained about being hurt by Ms. S.C. Police and the Society investigated. I.S. said her mother hit her on a regular basis, and that she often got angry and was mean. I.S. feared talking to Ms. S.C. because of what might happen, and she said Ms. S.C. also hit P.S.J. and R.C.1.

[23] On 25 January 2016, Ms. S.C. was charged with assault on I.S. Ms. S.C. was released on bail, and could only see I.S. under Society supervision.

March 2016 Order

[24] On 30 March 2016, this Court gave a temporary Order placing the children with Mrs. R.C.2 (maternal grandmother) under supervision, and Mr. P.S.S. received unsupervised access on weekends. Access to Ms. S.C. was in the Society's discretion. The Society made it clear to the maternal grandparents and to Ms. S.C. that she was not to have access without its permission.

[25] Unfortunately, it was proven that the maternal grandparents violated the 30 March 2016 Order and allowed access to Ms. S.C. That action resulted in concern by the Society that the maternal grandparents and Ms. S.C. could not be trusted to follow Court Orders that were in place for the protection of the children.

September 2016 — Children Placed with Father

[26] The Society had no misgivings about Mr. P.S.S.'s ability to meet the children's needs. On 2 September 2016 they were placed temporarily with him under supervision. One term was that he facilitate supervised access to Ms. S.C. and the maternal grandparents under the Society's direction. Since this Order on 2 September 2016, Mr. and Mrs. C. have not requested supervised access.

November 2016 — Supervised Access Incident

[27] Another significant recent event occurred on 19 November 2016. Ms. S.C. attended at the Society's office for supervised access with the children. She was:

(a) Confrontational with the children and the access supervisors;

(b) Pressuring the children to live with her;

(c) Not insightful to the effect that this emotional pressure could have on the children.

[28] Two days after that meeting, Ms. Robev telephoned Ms. S.C. to express the Society's concerns about what she had said. Ms. S.C. advised Ms. Robev that she would say whatever she wished, and used insulting language and hung up after saying she wanted to hear from Ms. Robev's supervisor. A senior Society representative did telephone Ms. S.C., but Ms. S.C. would not talk to her. The Society then decided there would be no further access until Ms. S.C. would meet to discuss its concerns about the 21 November 2016 visit. Since that conference did not occur, there has been no further access for the children's mother.

Expert Evidence

Dr. Betty Kershner — Parenting Capacity Assessment

[29] Dr. Betty Kershner, psychologist, did a Parenting Capacity Assessment of Ms. S.C. with a Report dated 23 November 2016. The findings showed considerable lapses in Ms. S.C.'s caregiving ability. She:

(a) Did not place her children's needs ahead of her own;

(b) Was self-absorbed and limited in her ability to give empathy;

(c) Did not have the ability to learn and put into practice good parenting behaviour;

(d) Did not understand risks that presented danger to the children's physical and emotional well-being;

(e) Had thought disorder and was subject to delusional and paranoid thinking;

(f) Did not comprehend the impact of her negative behaviour on the children.

[30] What was perhaps the most relevant finding from a prophylactic perspective, was that Dr. Kershner could not identify an intervention that could change Ms. S.C.'s behaviour or attitude that could lead to effective parenting.

[31] I accept the observations and conclusions of Dr. Kershner. In many ways, they independently match the observations of the Society personnel.

Dr. Vincent Murphy — Psychological Report

[32] The Society asked Dr. Vincent Murphy, psychologist, to interview I.S. to see if he could offer suggestions for the little girl to move forward after the abusive treatment from Ms. S.C. At that time, I.S. was living with her maternal grandparents and seeing Mr. P.S.S. on weekends, but with no access to her mother. In his Report dated 12 July 2016, the psychologist observed:

I.S. was attached to her mother, despite the bad behaviour she received. Among the siblings, I.S. was the primary target of Ms. S.C.'s anger. It was I.S.'s confrontational behaviour that prompted her mother's bad temper. Counselling was suggested for mother and daughter to explore and resolve the areas of conflict between them.

Children's Lawyer Report

[33] At the hearing, Ms. Joshi, the Children's Lawyer, reported on her involvement with the children. She saw them separately on six occasions between March 2016 and January 2017. They were happy living at their father's, but missed their mother and wanted to see her. They enjoyed their school and the extra-curricular activities in which they engaged.

CAS of Toronto Monitoring

[34] The Society requested that the CAS of Toronto monitor the children's placement with their father in Toronto. Brendon Cronin was the Toronto social worker who visited Mr. P.S.S.'s home on several occasions. His observations were:

(i) The children settled well at their father's;

(ii) Their school performances were above average;

(iii) There were no concerns about Mr. P.S.S.'s parenting skills or his capacity to meet the Society's expectations.

Ms. S.C.'s Refusal to Cooperate

[35] On 29 December 2016, Mr. Cronin telephoned Ms. S.C. to arrange for an office visit where her supervised access to the children would be discussed. Ms. S.C. said that she would not attend, and she was tired of the Society's involvement. She would not travel to Toronto from Brampton, and she did not understand the purpose of such a meeting. Ms. S.C. was "unsettled" (Ms. S.C.'s word) with the Society, and believed it wished to remove the children from her. Mr. Cronin's note of that conversation read:

[Ms. S.C.] stated clearly that she did not wish to arrange any meetings or plans for access, and that she would be contacted [sic] her lawyer instead. [Ms. S.C.] stated that she would be following that route instead of working with the Society at this point.

Ms. S.C.'s Submissions at Hearing

[36] At the conclusion of the arguments at the hearing by Mr. Sider, Mr. Fox and Ms. Joshi, Ms. S.C. addressed the Court. She made the following points. She:

(A) Did not abuse the children and there was no need for findings that they are in need of protection;

(B) Asked that P.S.J. and R.C.1 be returned to her (I.S. could remain with Mr. P.S.S. for now.);

(C) Believed the Society sent subliminal messages to the children to indoctrinate them with new realities;

(D) Thought the Society and Mr. P.S.S. were alienating the children from her;

(E) Understood Mr. P.S.S. was not meeting the children's physical, emotional or psychological needs;

(F) Considered that Mr. P.S.S. had problems the Society has not addressed;

(G) Acknowledged that she had spoken inappropriately in front of the children.

[37] When Mr. Sider was arguing the Society's position at the hearing, Ms. S.C. frequently spoke in outbursts in disagreement with the Society's actions. Her words were logically and intelligently expressed, but incongruous in the context of a Court hearing. It was evident that Ms. S.C. would be uncooperative with any authority she opposed.

Court's Analysis and Findings

[38] Turning to the Society's motion, I do not believe Ms. S.C. would oppose the statutory findings, which I now make.

Statutory Information

(1) Child's full Legal Name: P.S.J.

Date of Birth: […], 2002

Sex: Male

Name of Mother: S.C.

Name of Father: P.S.S.

Religion: Roman Catholic

Native Status: Not an Indian or native person.

Child's Full Legal Name: I.S.

Date of Birth: […], 2005

Sex: Female

Name of Mother: S.C.

Name of Father: P.S.S.

Religion: Roman Catholic

Native Status: Not an Indian or native person

Child's Full Legal Name: R.C.1

Date of Birth: […], 2011

Sex: Female

Name of Mother: S.C.

Name of Father: P.S.S.

Statutory Grounds for Protection

[39] The Society requested that the children be found in need of protection under the following Subclauses in the Act:

37(2)(a)(i) and 37(2)(a)(ii)

A child is in need of protection where:

(a) the child has suffered physical harm, inflicted by the person having charge of the child, or caused by or resulting from that person's:

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

37(2)(b)(i) and 37(2)(b)(ii)

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's:

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

[40] In considering whether the children should be found in need of protection under these clauses in the Act, I reviewed the Society's evidence, as well as the Answer and Plan of Care by Ms. S.C.

(2) I do not find there are genuine issues for a trial in the Society's requests for findings pursuant to the Act, and Ms. S.C. did not establish that there are triable issues.

Finding Under 37(2)(a)(i) — Physical Harm

[41] Considering Subclause 37(2)(a)(i), the three children did suffer physical harm by Ms. S.C.'s over-discipline. Those facts were confirmed in the investigation that led to the assault charge against Ms. S.C.

(3) P.S.J., born […], 2002, I.S., born […], 2005, and R.C.1, born […], 2011, are found in need of protection under Subclause 37(2)(a)(i) of the Child and Family Services Act.

Finding Under 37(2)(a)(ii) — Pattern of Neglect

[42] The Court finds that there was a pattern of neglect in Ms. S.C.'s care for the children as Subclause 37(2)(a)(ii) prescribed. History showed that Ms. S.C.'s supervision of the children was inadequate. In the spring of 2012, school authorities noticed that Ms. S.C. was not providing lunches for the children, and there were reoccurring hygiene issues. When Ms. S.C. was uncooperative with the school authorities' concern, she was neglecting the teachers' legitimate regards.

(4) P.S.J., born […], 2002, I.S., born […], 2005, and R.C.1, born […], 2011, are found to be in need of protection under Subclause 37(2)(a)(ii) of the Child and Family Services Act.

Finding Under 37(2)(b)(i) — Risk of Physical Harm

[43] Likewise, the Society established a need of protection under Subclause 37(2)(b)(i). The possibility of the risk of harm was clearly established in Dr. Kershner's Report, wherein Ms. S.C. inter alia was not found to have the ability to learn and put into practice good parenting. Ms. S.C.'s unwillingness to accept the Society's direction in what she could appropriately say to her children put them at risk, because they would not know what to believe. The fact that Ms. S.C. told the Society she would say to the children whatever she wished was evidence of her inability to understand the impact on the children of her negative behaviour.

(5) P.S.J., born […], 2002, I.S., born […], 2005, and R.C.1, born […], 2011 are found to be in need of protection under Subclause 37(2)(b)(i) of the Child and Family Services Act.

Finding Under 37(2)(b)(ii) — Risk of Harm from Pattern of Neglect

[44] There is also a risk of physical harm to the children pursuant to Subclause 37(2)(b)(ii) by Ms. S.C.'s history of a lack of empathy and refusal to acknowledge any deficiency in her parenting ability.

[45] In Ms. S.C.'s Answer and Plan of Care, she acknowledged that she knew and understood what the Society thought were areas of concern, but she openly denied any existed. For example, she wrote in her Answer and Plan of Care:

(1) I did not hit my children; it was their father who coached them to make such allegations.

(2) The Society terminated my visits with the children in November 2016, alleging that the visits "are not going well", which is not the case.

(3) The Society's workers accuse me of not cooperating…with them to do any programming, when in fact I have been reaching out to them with all kinds of suggestions…

(4) The Society alleges that I suffer from a mental health disorder, but there is no evidence or any diagnostic foundation for such allegation.

(5) The Parenting Capacity Assessment dated 23 November 2016 is full of flaws.

Finally, Ms. S.C. pledged to cooperate with the Society in all the usually required ways, if the children were returned to her. However, that commitment was not supported by her history of failed cooperation.

(6) P.S.J., born […], 2002, I.S., born […], 2005, and R.C.1, born […], 2011, are found to be in need of protection under Subclause 37(2)(b)(ii) of the Child and Family Services Act.

Summary Judgment Standard

Rule (4.1) states:

In response to the affidavit(s)…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 there is a genuine issue for a trial.

[46] I do not find that Ms. S.C. has done any more than deny the Society's evidence, and has not established any genuine issues for a trial.

Disposition — Placement with Father

[47] The next issue was whether the Society's recommended disposition (placement of the children with Mr. P.S.S.) requires a trial.

[48] The recent record of Mr. P.S.S.'s caregiving abilities featured consistency, empathy, and ability to appreciate and meet all the children's needs. The observations of Mr. Cronin with the CAS of Toronto confirmed that information that the children are happy under Mr. P.S.S.'s aegis. Yes, the children love their mother and want to see her, but I doubt they believe she could care adequately for them on a full-time basis.

(7) I do not find that the Society's requested disposition of placement of the children with Mr. P.S.S. requires a trial. There was nothing Ms. S.C. produced to gainsay that finding.

Court Orders

(8) Order pursuant to Section 57.1 of the Act that the children, P.S.J., born […], 2002, I.S., born […], 2005, and R.C.1, born […], 2011, be placed in the care of their father Mr. P.S.S.

(9) This Order shall be a variation of the 27 February 2012 Orders which placed the children I.S. and P.S.J. in the joint care of the parents, S.C., P.S.S. and the maternal grandparents, R.C.2 and K.C., and the child R.C.1 was placed in the sole custody of Ms. R.C.2 and Mr. K.C.

(10) This Order shall be deemed to be a Custody Variation Order made pursuant to Section 28 of the Children's Law Reform Act.

Access Arrangements

[49] The Society crafted an access arrangement for Ms. S.C. to see the children. It was clear that they sought access, but I do not think they are in a position to know how much access would be in their best interests, given their mother's propensity to make unsuitable remarks. Another concern is that Ms. S.C., in her discussion with Mr. Cronin of the CAS of Toronto, was unwilling to travel to Toronto even to discuss access. The Society also had a reservation about whether Ms. S.C. would accept access if it was not on her terms. I accept the Society's proposal for Ms. S.C.'s access as being a reasonable compromise in the circumstances.

(11) Order for S.C. to have supervised access to P.S.J., born […], 2002, I.S., born […], 2005, R.C.1, born […], 2011, which shall occur at the nearest community supervised access center to the children's residence with P.S.S. Such access shall take place twice a month for two hours, and any cost of this supervised access shall be paid by S.C.

(12) R.C.2 and K.C., the maternal grandparents, shall have access to P.S.J., born […], 2002, I.S., born […], 2005, and R.C.1, born […], 2011, at the discretion of the children's father, P.S.S., who shall take into account the children's wishes.

Waiver and Return Date

[50] I waive approval of these Orders by unrepresented parties.

[51] This case shall return to Court on February 22, 2017.

Released: February 13, 2017

Justice P.W. Dunn