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: January 5, 2017

Court File No.: Brampton 20039/11

Ontario Court of Justice

Between:

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

— AND —

M.H. Respondent,

S.H. Respondent

Before: Justice P.W. Dunn

Heard on: December 14, 2016

Reasons for Judgment released on: January 5, 2017

Counsel

Ms. Laura Shaw ............................ counsel for the Applicant Society

Ms. Renatta Austin ........................ counsel for the Respondent M.H.

Mr. O. Benjamin Vincents ................. counsel for Respondent S.H.

REASONS FOR JUDGMENT

DUNN J.:

Background and Procedural History

[1] This is a summary judgment motion (herein called the "motion") dated 31 May 2016 brought by the Children's Aid Society of the Region of Peel ("the Society"). The Respondents were M.H. and S.H., the parents of A.H., a boy, born […], 2015. A.H. was apprehended at birth and placed the next day with D.H., a first cousin of S.H.

[2] The Society requests the Court to make statutory and protection findings, and then do an Order for Crown wardship, silent as to access, pursuant to the Child and Family Services Act (the "Act").

[3] The Respondents consented to the statutory findings, but not to those for protection, nor to the Society's recommended disposition.

[4] The Court makes the following statutory findings on consent:

• Name of child – A.H.
• Date of birth – […], 2015
• Gender – male
• Mother's name – M.H.
• Father's name – S.H.
• Religion – Islamic
• Native Status – Not an Indian or Native person.

Statutory Framework and Protection Grounds

[5] The Society sought protection findings under subclauses 37(2)(b)(i)(ii) and 37(2)(a)(i) of the Act.

37(2) A child is in need of protection where,

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

37(2) 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.

[6] The Court must first find that A.H. is in need of protection before considering a disposition.

[7] I am also mindful that this child has been in care for twenty-two months, virtually his whole life. Section 70 of the Act states that a Society wardship order soon will not be available after the child has been in care for twenty-four months.

Family History and Prior Proceedings

[8] The Respondents have other children:

1. M., a girl born […], 2008, who died […], 2011 at age 27 months. (The Respondents were charged and convicted of manslaughter in the death of M.);
2. A.1, a girl born […], 2005 (now 11);
3. A.2, a girl born […], 2014 (now 2).

Ms. H. is expecting another child in February, 2017.

[9] In the twenty-seven months between M.'s birth and passing, it did not seem that the Society had involvement with the family. However, after the little girl's demise, police and the Society investigated family circumstances before her death.

[10] When M. was born in 2008, A.1 was 3 years old. A.1 was apprehended by the Society on 13 April 2011, which was less than two months after M.'s death and placed in a foster home. The fact is that the Respondents parented A.1 for three years without the Society's intervention. After the apprehension of A.1, the child's blood testing showed deficiencies in vitamins D and B12, and the Respondents would not consent to medical intervention for A.1. The child remained in foster care, because the Society was not confident the Respondents would give vitamins to her. However, they did have access to their daughter.

[11] A.2 was born nine months after A.1. Because of its concerns for past parenting of M. and A.1, A.2 was also apprehended 13 April 2011 and placed in foster care. A.1 and A.2 originally had different foster homes, but on 30 June 2015, they were both placed with their relative, D.H., where A.H. has been since 20 May 2015.

[12] The Respondents appealed the manslaughter conviction and were released on bail on 25 November 2015, pending the result of their appeal. Since their discharge from custody, they saw A.H. once a month supervised.

Prior Court Decisions

[13] On 13 April 2013, Justice Parent, in a separate summary judgment motion, found A.1 in need of protection pursuant to subclauses 37(2)(b)(ii) and (h) of the Act. There was no disposition sought in that summary judgment motion. The protection findings meant that the Court determined that A.1 was at risk of suffering physical harm. Also she was found to have endured a mental, emotional or developmental condition, that if not attended to, could seriously impair her development, and that her parents did not, or refused to provide treatment to remedy or alleviate the condition. There was no appeal from Justice Parent's decision.

[14] After the Respondents were convicted of manslaughter of M., on 10 April 2015, Justice Sproat in the Ontario Superior Court sentenced the Respondents to thirty months incarceration. The Court found that they failed to provide M. with the necessaries of life. Justice Sproat accepted the medical evidence that M. was malnourished due to protein and vitamin deficiencies, because the Respondents failed to follow the advice of a Dr. Race. He told them to see a specialist because of M.'s low weight and walking problems. Disregarding this advice made them culpable at law.

[15] Justice Sproat wrote inter alia in his judgment:

While there is no specific expression of remorse, I believe the H. have learned from this tragedy, and would not make the same mistake again that lead to malnutrition.

[16] To employ Justice Sproat's expression, the Respondents have not been allowed to make the same mistake again, because their three other children were apprehended.

[17] When the Respondents were in jail, it was difficult for the Society to implement access, because the incarceration facilities did not provide sufficiently for family visitation.

[18] Regarding the children A.1 and A.2, the Society sought Orders for Crown wardship. A twelve-day trial was held periodically from April in 2014 to early January in 2015. Justice Bovard found that A.2 was in need of protection under clause 37(2)(i) and under subclauses 37(2)(b)(i) and (ii) of the Act. (A.1 had already been found in need of protection by Justice Parent on 13 April 2013.) Both children were made Crown wards without access. A decision was made by the Respondents not to give evidence at trial. However, their lawyer argued that the Respondents would cooperate with the Society in the future, but without their testimony, the Court could not accept that it would be true.

[19] Justice Bovard determined that the Respondents' past parenting of M. that resulted in her death from malnutrition, coupled with their unwillingness to change the child's dietary habits and their reluctance to cooperate with the Society, proved that there was a risk that A.1 and A.2 were likely to suffer harm from the Respondents.

[20] Justice Bovard noted that there was case authority to find that there would be a risk to A.1 and A.2, even though the harm had not been done to them, but to their sibling M. Catholic Children's Aid Society of Metropolitan Toronto v. O. (C.M.), 6216 (Ont.C.J.), Children's Aid Society of Peel Region v. J.(S.), 2007 ONCJ 328, 2007 ON CJ 328, paragraph 33.

[21] This principle is momentous, because it is a significant extension beyond the meaning of the risk of harm clause. The clause on its face only affects the care by the caregivers to one child, but the cases extend the range of care by the parents to their other children. A Court must be particularly cautious and wary before extending the meaning of the risk of harm clause to take into account other children.

[22] Justice Bovard observed that "after years of strong genuine efforts on the part of the Society, the Respondents and the Society have not been able to get along." He also noted, "It is obvious that the Respondents would continue to parent A.1 and A.2 as they did M." The Respondents' appeal of Justice Bovard's decision will be heard in 2017.

Evidence Before the Court

[23] Returning to the Society's motion before this Court concerning A.H., now about 18 months old, Michelle Bennett with the Society, swore an affidavit on 31 May 2016 which made the following points:

1. She had not seen any change in the Respondents' ability to protect A.H., if he were to be placed in their care. [Ms. Bennett did not state the period of time she worked with the Respondents, nor the particulars of the changes she was contemplating.]

2. The Respondents continued to blame others for the death of M.

3. The Respondents did not acknowledge any role in M.'s death, so "The Society cannot say if the risk to A.H. is mitigated".

The Society wanted the Respondents to admit that when the children were in their care, they were vitamin and nutrient deficient.

[24] Ms. Bennett swore another affidavit on 24 November 2016 in support of the Society's motion wherein she made the following assertions:

1. There was no evidence before Justice Bovard of the Respondents' parenting skills, because they did not participate in any parenting assessments.

2. The Respondent did not testify at trial, nor did they call witnesses regarding their parenting ability.

3. The Society workers found the Respondents to be uncooperative.

In paragraph 6, Ms. Bennett stated:

In my observations of access visits and working with the [Respondents], they had an opportunity to make decisions for A.H., and have chosen to continue in the same pattern of behaviour that they have done through the Society's involvement. [Ms. Bennett did not state how many visits she observed, nor the length of her involvement with the Respondents.]

In paragraph 9, Ms. Bennett wrote:

Ms. H. and Mr. H. would need to demonstrate both [an] understanding of the child protection concerns [and] an ability to parent, in order to care for A.H. on a long term basis, in addition to not being incarcerated.

She wrote in paragraph 14:

Very recently the Society has received an indication that the [Respondents] may cooperate with the Society in regards to the current pregnancy. The Society would need to see sustained evidence of cooperation before it could have any bearing on the Society's position with respect to A.H.

[25] The Society relied on the affidavit of D.H. sworn 1 June 2016 in support of its motion. (D.H. is the foster parent of A.1, A.2 and A.H.) In her affidavit, Ms. H. mentioned difficulties she had with Mr. and Ms. H. In paragraph 33, she stated:

I believed that time in jail, nutrition classes and parenting programs as ordered by the judge would help the parents to see that they need to place the needs of the children first. Unfortunately, I do not see that either [Respondent] made any changes to their belief system.

[26] At paragraph 35, Ms. H. wrote:

…I do not support further contact between the children and their parents at this stage… At present, it is also very emotional to see how upset A.H. gets when he is being picked up for his visit with his parents and when he returns.

Summary Judgment Standard

[27] Subsection 4 of Rule 16 of the Family Law Rules states:

The party making the motion [for Summary Judgment] shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[28] The Society relied on the following affidavits in support of its motion. That of:

a) Michelle Bennett sworn 24 November 2016; b) Michelle Bennett sworn 31 May 2016; c) D.H. sworn 1 June 2016.

[29] The Respondents must show in their materials that there is a genuine issue for trial, and not rely on mere allegations or denials (Rule 16 (4.1)). In that regard, the Court considered the Respondents' affidavits:

(i) M.H.' affidavit sworn 14 November 2016; and (ii) S.H.' affidavit sworn 14 November 2016.

Analysis: Genuine Issues for Trial

[30] Evidence of past parenting is a significant consideration in all cases under the Act, but especially where the parenting led to the death of a child. It is to be expected that every Society will carefully scrutinize parental behaviour when there is evidence assessed by a Court that parents failed in their duty to nourish and provide vitamins (see Section 50 of the Act).

[31] A.1 and A.2 were previously found to be in need of protection by Justices Parent and Bovard respectively. Justice Bovard then determined that the appropriate dispositions for A.1 and A.2 were for Crown wardship, even though the Respondents had never parented A.2 at the time of her apprehension. As stated earlier, there is authority for a child to be found at risk even if no harm had occurred to that child, but to a sibling.

[32] The Society has been faced with different parenting situations regarding the H. children and their unborn child.

[33] Regarding M., the Society had no involvement in the Respondents' care of this child before her death. However, after M.'s unfortunate passing, there was clear evidence of inadequate parenting because of the medical findings of malnourishment.

[34] The Society had engagement with the Respondents in their care of A.1 before that child's apprehension, and parental deficiencies were noted in the same areas of concern that arose in the Respondents' care of M. – a lack of cooperation with the Society, and a deficiency in nutrition and vitamins. In A.1's case, the Society had unsuccessfully tried to work with the parents.

[35] The Respondents never parented the girl A.2, however, they were blaming others for M.'s demise and were denying any parenting deficiencies. Justice Bovard in his Reasons for Judgment clearly canvassed the efforts the Society made to work with the Respondents, and their lack of responsiveness to the Society's and to the medical concerns regarding A.1 and A.2.

[36] The situation with A.H. is related to her siblings because of the Respondents' historic past parenting challenges. It is not known at all whether the Respondents could safely parent this child, nor whether they would cooperate in childcare planning. A look at the past often, but not always is a prediction of the future.

[37] For the unborn child expected in February 2017, the circumstances are similar to those regarding A.H., except the Society has noted that the Respondents may cooperate with its concerns. The only limited parenting the Respondents have done for A.2 and A.H. was during access, which the Respondents attended regularly.

[38] I repeat my concerns that past parenting is a very important consideration when considering whether A.H. is a child at risk, and whether Crown wardship would be the only realistic outcome if there were to be a trial.

Triable Issues Identified

[39] However, there are other significant considerations which must be canvassed. Consider Clause 15(3)(c) of the Act:

The functions of a children's aid society are to,

(c) Provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children.

[40] Bearing in mind Clause 15(3)(c) of the Act, the Court finds that the following would be issues for trial where a Court would be asked to find that A.H. is in need of protection under the relevant subclauses plead by the Society:

1. I cannot find a risk that A.H. will suffer physical harm by the person who cared for him, because the Respondents never cared for him. Likewise, there is no pattern of neglect by the Respondents' caring for this child. A Court should hear evidence about whether there is an actual risk.

2. Ms. Bennett's affidavits do not show that the Respondents have no parenting ability to care for A.H., and it is important to acknowledge that the Society recognized that they have some strengths. I do not believe Justice Bovard, in dealing with the children A.1 and A.2, found that the Respondents could not provide at least instrumental parenting care.

3. Ms. Bennett in her affidavit sworn 24 November 2016 stated that in her observation visits and in working with the Respondents, they showed the "same pattern of behaviour". A Court should hear what was that pattern of behaviour and more about those observation visits, their frequency and how the Respondents provided care. What were the particulars of Ms. Bennett's engagement with the Respondents, and over what period of time? What would the Respondents say about Ms. Bennett's evidence, should they testify?

4. In paragraph 9 of her affidavit of 24 November 2016, Ms. Bennett stated that the Society "needs to see sustained evidence of cooperation by the Respondents, before it would consider whether A.H. would be safe with them". Apart from the serious difficulty of the Respondents demonstrating a period of cooperation at this late stage, the issues of cooperation by the Respondents with the Society over A.H. have not been particularly canvassed. If I am wrong and it has been considered by the Society, a Court should hear that evidence. It is important to observe that from the time of Justice Bovard's judgment on 31 December 2015, a year has passed, and a Court should examine the level of cooperation (or possible cooperation if there were willing parties) in that year. Could Justice Sproat have been prescient when he wrote in his Judgment that he believed the Respondents learned from the tragedy of M.'s death and would not make the same mistakes again?

5. Ms. D.H. was an important figure in the lives of A.1, A.2 and A.H. She had relevant criticism of the parenting abilities of the Respondents, but what were the circumstances of her evaluations? If A.H. is staying with Ms. H. and there is access by the Respondents, would Ms. H. be able to facilitate the access and still work with the Respondents?

6. The fact that Justices Sproat's and Bovard's decisions are under appeal is not a triable issue. However, in its motion, the Society requested this Court to rely on the Sproat and Bovard decisions to find that A.H. is in need of protection and should be made a Crown ward. Until appeals on the Sproat and Bovard decisions are spent, it is tentative to rely on the unconfirmed findings in those adjudications. What is needed is for a Court to hear the Society's evidence in full for its application regarding A.H.

7. Ms. Shaw and Mr. Vincents urged the Court to consider medical evidence from Dr. Michael Pollanen and Dr. Patricia Horsham and other physicians. This evidence was conflictual, and a motion is not the appropriate venue to consider disputed medical evidence.

8. There is certainly an issue about how A.H. could be in need of protection under subclause 37(2)(a)(i) of the Act. The Society would have to establish that A.H. suffered physical harm from the Respondents, when they did not have charge of the child from his birth. There was an argument about whether the Respondents arranged for D.H. to care for A.1 or whether it was the Society. I do not see that as a significant concern.

Conclusion on Genuine Issues

[41] In conclusion, this Court finds that there are genuine issues for a trial on the Society's request for a protection finding first, and then on its application for a Crown wardship disposition.

Credibility and Weighing Evidence

[42] The next step is to consider whether a trial could be avoided by weighing the evidence, evaluating credibility, drawing inferences and receiving oral testimony.

[43] Based upon the contents of the affidavits provided by the Society in support of its motion, I cannot find that credibility can be evaluated. A crucial issue in this case is whether the Respondents have changed their beliefs on parenting and nutritional issues, and in the level of their cooperation with the Society. The Respondents' lawyer, in the trial before Justice Bovard, said they had changed their attitude, but there could be no corroboration of that without their testimony.

[44] Because the evidence regarding A.H. is based on past parenting respecting M. and A.1, it would be unjudicial to draw inferences with respect to A.H. without hearing evidence respecting current risks to A.H.

[45] It is always possible to "weight evidence", but I do not find it can be done in an objective and unbiased manner, without looking at current evidence about the Respondents' parenting ability. In that perspective, the Court would only have the word of the Respondents in their affidavits as to the future level of their cooperation with the Society, and their present knowledge of children's nutritional health. A Justice at trial may not find the Respondents to be credible, but they deserve the chance to be heard, and for the Society to show an evaluation of their future cooperation.

[46] The Court declines to hear oral evidence. There are too many positions that the parties would want to canvass, that a mini trial would likely balloon into a full hearing.

Decision

[47] Because this Court finds there are genuine issues requiring a trial over protection findings, the Society's motion is dismissed. Even if I had found protection issues existed, there still would be the serious considerations for a trial regarding the proposed disposition of Crown wardship.

[48] The status quo continues. The case is adjourned to 9:30 a.m. 25 January 2017, courtroom 208 to be spoken to.

Costs

[49] I am grateful to Ms. Shaw, Ms. Austin and Mr. Vincents for their thorough arguments. Any request for costs is to be served and filed with Mr. Marty Starkman, Judicial Secretary, Brampton Courthouse, 7755 Hurontario Street, 6th floor, Brampton Ontario L6W 4T6 (Martin.Starkman@ontario.ca, fax (905) 456-4829) by 15 February 2017.

[50] An Answer to a request for costs is to be served and filed by 1 March 2017.

[51] A Reply to an Answer is to be served and filed by 15 March 2017.

Released: January 5, 2017

Justice P.W. Dunn