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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.— (8) 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.
85.— (3) A person who contravenes subsection 45(8) (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
Ontario Court of Justice
In the Matter of the Child and Family Services Act
Between:
The Children's Aid Society of the Districts of Sudbury and Manitoulin
R. Saari, for the applicant
— And —
R.S.
D. Berlinguette, for the respondent mother
Heard: July 19, 2017
Justice: John Kukurin
Reasons for Decision
Introduction
[1] These are Reasons on a motion (at Tab 13) brought by the applicant society in this child protection case, for:
(a) a finding that the child in this case is in need of protection on grounds of risk of physical harm under s. 37(2)(b)(i) and s. 37(2)(b)(ii) of the Child and Family Services Act (hereinafter referred to as the "CFSA");
(b) an order for crown wardship; and
(c) an order for no maternal access,
all by way of summary judgment.
[2] The motion for summary judgment is brought in child protection application which was started in July 2015. At that time, the society was seeking six months wardship of the child with access to the child's mother. It amended its application almost one year later to seek crown wardship with no access.
Background of the Mother
[3] The child's name is J. and she is now almost two years old. She has always resided in the same foster home and is understandably attached to her foster parents. Her mother has only ever exercised supervised access to her, including 32 weeks in a Clinically Managed Access program. Her access is currently twice per week for two hours. J. was apprehended at birth from the hospital. This was a warrantless apprehension. This society does not give good reasons why it apprehends without obtaining a warrant. I predict that someday, this practice of warrantless apprehensions will bite this society where it hurts.
[4] The child's mother R.S. has no partner. She cannot even identify the child's father by his full name. She only knew him by his first name "S.", and knows nothing else about him. He is not involved, and is not even named as a party in this case.
[5] R.S. has had three prior children, now ages 21, 19 and 16. None of these children were raised by R.S.. The two older ones were raised by R.S.'s parents who obtained custody from an early age. R.S.'s access to them became problematic. The grandmother requested she exercise access elsewhere. R.S.'s access moved to a supervised access facility. The access was little better there. These boys did not want to go for access. Access petered out and was terminated when they were ages 12 and 10. The younger child was apprehended at birth and was the subject of a contested child protection application which resulted in an order of crown wardship with no access. In that proceeding, R.S. dropped out of the contest and consented to a finding and to an order of crown wardship with no access to herself. This child's ultimate placement was by adoption with his paternal extended family. The mother apparently has no formal access relationship with this child either.
[6] R.S. is now age 39. She has no known partner or current relationship with one. She does not have a strong family support structure in place. She has never actually parented any child successfully as all of her children were apprehended from her care. She has had at least two failed relationships with the fathers of her other children and she has no relationship to the father of the child who is the subject of this application. She has not filed an Answer to the society's amended application but did file one to its initial application. In it, she indicated that she was a recipient of Ontario Works, did not work or go to school, and had some friends who were supportive, but did not specify how. In her response to the motion for summary judgment, she set out her plan of care for the child if she is placed with her, detailing where they will reside, where she will attend pre-school, and school when ready, who will be her family doctor, and who will be her babysitters.
[7] R.S. was assessed by Dr. Chris Nash in 2002. This report may have been pursuant to an assessment under s.54 CFSA but not necessarily so. It is filed in this proceeding as society evidence. The mother did not object to this evidence being admitted on this motion. It does not speak positively of her overall abilities and is rather pejorative on her parenting capacity and her prognosis for improvement. This is clearly a dated report, but the psychometric testing yields results that should remain valid over time.
[8] In a much more recent Parenting Capacity assessment report of Dr. P. Ross prepared and filed under s.54 CFSA, the psychometric testing yields results that are similar to and tend to corroborate Dr. Nash's psychometric testing results. This report is statutorily deemed to be evidence in this case.
[9] As an example, Dr. Ross scored R.S. at Full Scale IQ of 60, which places her below the 1st percentile compared with other adults her age. Dr. Ross describes her as having "very serious intellectual deficits" that would impact on her ability to effectively parent a child. The bottom line from Dr. Ross is that regardless of the positive gains she has made in pursuing courses and programs, and regardless of how attached she is to her daughter, and how motivated and committed she may be to parent her, these do not outweigh R.S.'s severe intellectual limitations. To place the child in R.S.'s care would be placing the child in a situation of serious risk of neglectful and potentially harmful parenting. In fact, Dr. Ross suggests that even R.S.'s access to her child should continue to be supervised.
[10] In short, the recent assessment not only supports, but in many ways corroborates the earlier one. Both assessors come to virtually the same conclusions about R.S.'s personality assessed from a clinical as opposed to a psychometric point of view. R.S. has troubles interacting with others and this leads to potential risk of harm if the child is present, and perhaps even if the child is not. Neither assessor is of the opinion that R.S. should be parenting a child.
The Summary Judgment Motion
[11] A child protection case has three components: finding in need of protection, disposition, and (almost always) access. These are usually not able to be dealt with very quickly after the society intervenes in a family. As a result, some interim or temporary measures are put in place pending the final determination of these three elements. In the present case, that has been an interim "without prejudice" order that placed the child in the temporary care and custody of the society. To date, there has been no temporary care and custody hearing in this two year old case despite the timeline in the Family Law Rules of a maximum 35 days from inception for completion of a temporary care and custody hearing.
[12] The usual route for a child protection application takes it to a hearing which is by way of a trial. However, a formal trial with viva voce evidence is not always necessary. The motion for summary judgment in child protection proceedings has evolved since the early 1990's as a means to avoid or curtail the length of unnecessary formal trials. It is now enshrined in our Family Law Rules (the "Rules") as Rule 16, which has recently undergone some significant amendments in terms of how evidence may be judicially treated on summary judgment motions.
[13] The essence of a motion for summary judgment is the judicial determination that there is no issue in the case requiring a trial. Rule 16 sets out what and where the onus lies in such motions, and deals with the nature of evidence on such motions, and what the court's obligations, functions and limitations are on such motions. There is an ever expanding universe of jurisprudence of cases that involve motions for summary judgment, not surprising when one reads about the formal trial process being perceived more and more as a cumbersome, and perhaps outdated, method of resolving litigation.
[14] In the present application, the society has the onus of setting out specific facts showing that there is no genuine issue for trial. The Respondent mother on the motion has the onus of setting out specific facts showing that there is a genuine issue for trial. It is perhaps trite to say that the onus on each of the parties applies to each of the three elements in the case -- finding, disposition and access.
[15] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged, the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. A party answering a motion for summary judgment cannot just rest on bald denials. The court is entitled to assume that the record contains all the evidence that the parties would present at trial.
[16] The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact.
[17] Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence.
Evidence on a Summary Judgment Motion
[18] With respect to evidence on a summary judgment motion, hearsay evidence is permitted. However, it is still subject to the preference in Rule 14(18):
An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.
It is also subject to requirement in Rule 14(19)(a):
The affidavit may also contain information that the person learned from someone else, but only if (a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true.
Finally, hearsay is subject to the adverse evidentiary inference provided for in Rule 16(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.
This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, if any, that the court deems appropriate. I might add that when the evidence is second or third hand hearsay, it is even more prone to attract an adverse judicial inference.
[19] Finally, as a result of recent amendments to Rule 16, the court's function on a summary judgment motion is no longer as circumscribed as it was previously. Judges can now weigh evidence contained in affidavits filed on a summary judgment motion, draw inferences and evaluate credibility.
[20] However, some jurists are of the view that because the summary judgment motion could and often do effectively replace the trial, evidence on such a motion should approximate only the evidence that would be admissible at trial.
Grounds Under Section 37(2) CFSA
[21] Before any evidence can be heard on disposition (or access), the court must hear and decide if the child is in need of protection. This is as applicable to the motion for summary judgment where finding as well as disposition are in issue as it is at trial. This runs contrary to current practice where a society will argue both issues simultaneously.
[22] In the present case, the society's grounds are risk of physical harm as a result of the grounds described in clauses (i) and (ii) of s. 37(2)(b) CFSA. Clause (ii) requires that the risk of harm derive from a pattern of neglect of the person having charge towards the child who is the subject of the proceeding. The child in this case was apprehended at birth. The mother never had care and custody of the child. It would be virtually impossible for her to establish any pattern in such circumstances and certainly not one as described in s.37(2)(b). The society argues that this pattern is established by the mother's behaviour during access visits. While post apprehension behaviour can also support a finding that a child is in need of protection, I decline to make a finding on the evidence relating to the mother's access visits. Firstly, they were all supervised. Secondly, the society did not present evidence of specific facts that would be capable of supporting a "pattern" of neglect on the part of the mother, and certainly not of the magnitude to support a finding. The society is stretching too far. And the mother's behaviour towards other children, in the past, while perhaps admissible, is not of any relevance to this ground.
[23] This leaves s.37(2)(b)(i) grounds. The question to be answered is whether the society has satisfied the court that this is not an issue that requires a trial. There are many synonymous ways to phrase this. Some have looked at whether it is a foregone conclusion. Others that it is an inescapable outcome on the evidence before the court. The respondent must show the opposite. That there are issues that are material issues that only a trial can resolve.
[24] I am of the view that the society has met its obligation to show a prima facie case that there is a risk that the child is likely to suffer harm if placed in the mother's care as a result of her failure to care, provide, supervise and protect her. I come to this finding for a number of reasons:
The historical evidence, dated though it may be, and frail though it may be, by virtue of being hearsay in nature, of the mother's track record with her three other children, in particular her parenting of them;
The fact that the mother has virtually no relationship with her older children even though they were apparently raised locally and with extended family;
The mother's now twice tested level of cognitive functioning which is very concerning if she were to be a full time mother;
The mother's continued problems controlling her personality problems with others, which even in the context of access was so problematic that her own mother asked to have her access removed from her home. This was re-iterated by society access supervisors with whom the mother often came into conflict. This evidence was not so much hearsay as first hand.
The mother has no history of successfully parenting a child for any significant length of time.
The mother is a single mother, without a partner to share the load of homemaking and child care, with limited financial resources, and no solid prospects that her circumstances will change for the better any time soon;
The parenting capacity recommendations which did not advocate her having care of her child unsupervised
Her inability to work within the confines of a supervision order with the society or even with other service providers.
While these considerations may not be totally relevant to a finding only, they create enough of a risk of likely physical harm that the court is satisfied that s.37(2)(b)(i) grounds exist.
[25] The evidence of the mother is regrettably tepid in response. She adverts to the programs she has undertaken and completed. She denies that she is combative, aggressive, hostile at times, a poor communicator, rigid, untrusting and obstinate. However, her programs have been of short duration. Her completion of these programs, and even the letters attached to her affidavit in response in this summary judgment motion, do not say how she fared in these programs other than that she completed them. She continues to attend one, in fact. Despite the completion of such programs, the mother has not shown that she has overcome what I characterize as her insistence that she is right and that others are wrong. The mother does not have a teachable spirit and particularly so when it comes to parenting her child. She will do what she wants, even though the rest of the world may disagree with her.
[26] The mother has denied and put a different spin on some of the access events that the society found concerning from a child protection standpoint. However, at the end of the day, she has no independent evidence with respect to these events. It is her interpretation of them versus the society's interpretation of them which she wants to present at trial. Is it necessary to hear viva voce what is already in written form from both sides? I don't think so. The court is able to engage in assessing credibility and drawing inferences from affidavit evidence, something I have always felt was what courts could and do actually do. On the evidence in this case, I note that access events were, for the most part, reported as first hand accounts by the society's witnesses. So they do not have the weakness of other historical evidence of the society. Secondly, the mother does not respond to all of the allegations contained in the society's evidence. Some are left unchallenged and uncontradicted. Thirdly, there is a consistency that characterizes all of the evidence of the society about the mother's manner of parenting during access, and her relationship to not only the society access supervisors but also others like the foster mother. This consistency also extends to observations and clinically expressed opinions of both of the assessors whose reports have been filed. In short, there is too much that is relevant to protection of this child and it is too consistent to be ignored. If the mother had been successful in challenging the assessment reports, or in striking out some of the more damaging evidence of the society, she may have had a better chance to have her day in court. However, she did not. Her day in court was this summary judgment motion and she has fallen short on the issue of grounds to find J. to be a child in need of protection.
Disposition
[27] By disposition is meant what order the court should make with respect to the child. Because of the length of time this case has taken to reach this point, the options are limited. They are a placement with the mother subject to a supervision order, or crown wardship, with or without access to the mother. There is no longer time for a time limited society supervision order. There is, on the evidence no "kin" placement that is available. There is no father (other parent) with whom this child can be placed.
[28] The finding of the child to be in need of protection, particularly the reason for the need of protection, precludes the placement of the child with the mother. The society cannot supervise the mother 24 hours per day and there is no other supervisor in sight. The mother proposes to live alone with the child and she is the source of the risk of potential harm. More importantly, if the child were to be placed with the mother, it would be with a supervision order with conditions. The mother is unable to abide by conditions and would constantly argue with anyone trying to exert any controls on her. Supervision is not workable with this mother. From an objective point of view, this mother should not have given birth to this child in her circumstances. She obviously did not learn from her previous experiences that she was at risk of having the child apprehended, which is precisely what happened. She finds herself repeating at her current age what she underwent well over a decade ago.
[29] This leaves only the disposition of crown wardship. Crown wardship provides permanence as a solution for children caught up in child protection proceedings. This child has been too long in a temporary situation and should have a permanent resolution. I fault both the society and the mother for the delay in this case. They are each expected to know the law and its limitations on the length of time a child should be in society care without permanency, particularly when both have legal representation and advice. Both have not complied with statutory timelines, with temporal limitations, and with reaching a judicial finding within the statutory time given to do so. It is little wonder that the society changed its claim to one of crown wardship. It is almost inevitable that it would have to in any case that was so slow through the system. There are clearly some systemic features in the court at Sudbury that do not encourage that a file moves with alacrity through the steps of litigation. I speak of the lack of available early court dates that essentially cause a case to linger in the system before the next step can be scheduled, often months into the future. This is inconsistent with the thrust of the CFSA which demands early attention and prompt resolution of issues in child protection cases. If systemic faults are present, it is up to the bar and the societies to meet with the justice system participants to solve these problems.
[30] Accordingly, there will be an order of crown wardship. I cannot foresee any cogent reason why the issue of disposition might need a trial. The evidence on grounds applies equally to disposition in the circumstances of this case. Any evidence that does not relate strictly to grounds for a finding is above and beyond what I have already canvassed. It is not likely to require the format of a trial, and would make no impact on the material issues that affect disposition.
Access to Child Post Crown Wardship
[31] The mother has claimed, in the alternative to a return of the child to her, an order for access in her favour. The CFSA has a presumption of access when a child is removed from a parental caregiver, in favour of that caregiver. However, when the child is made a crown ward, there is a presumption against access to that caregiver.
[32] The onus shifts to the mother to satisfy the court that not just one, but rather both of the statutory pre-requisites are met for her to have access after crown wardship. She must do so in the context of this summary judgment motion just as she would have had to if this case were to go to trial. This is an onus that many respondent parents minimize or forget about (as do many of their lawyers). In this case, the mother has very little evidence in her affidavit that relates to these pre-requisites.
[33] From the child's point of view, which is the point of view from which beneficial and meaningful must be gauged, the relationship with the mother is clearly a regular one as the mother has been fairly consistent in attending all of her access visits. Moreover, it is clear that the child recognizes that the mother is her mother. Finally, there is evidence that the mother and the child interact in a parent-child manner that is often, but not always, appropriate.
[34] The mother argues that the child should know her parentage and her roots. There is, however, no evidence that she does not. Moreover, of the 168 days in each week, the mother is with the child for only 4 of those hours. The rest of the time, she is with her foster parents. There is little evidence that the child is attached to the mother or that the mother has bonded with the child. In fact, there is some evidence of absence of attachment, which is not surprising with the few hours that parent-child contact actually occurs. In addition, all of the mother's contact with the child is supervised and monitored by the society in its facilities. This cannot be all that meaningful to the child and she does not seem to put up any fuss when an access visit ends.
[35] Jurisprudence has examined what is meant by beneficial and meaningful in the context of s.59 of the CFSA. The mother has not introduced factual evidence that persuades this court that trial is needed to determine if her continued access meets the meaningful and beneficial pre-requisites for continued access. This is not a situation where this mother and this child have ever had a mother and child relationship outside of access visits. The visits are short and not always incident free. And the child obviously has formed other relationships that are by far much more meaningful and beneficial to her than is her relationship with her mother.
[36] There is also the pre-requisite that the access sought to a crown ward will not impair the child's future opportunities for adoption. Adoption for this child is noted in the society's Plan of Care as the means to establish permanence for her. What is not in the evidence, however, is by whom the child will be adopted. The society is not ready to commit to the present foster family as being the prospective adoptive family. It depends, it says, on the outcome of this case. In any event, the society's evidence on adoption for this child is deficient. In absence of an identified adoptive family, it is ill advised for a court to speculate on whether parental access to this child as a crown ward will or will not impair opportunities for adoption. I am not prepared to take judicial notice of anything relating to impairment of adoption opportunities by reason of the existence of an access order. I am well aware that openness orders are available in appropriate cases to continue access post adoption. Moreover, I am aware of the mandate of the society to seek permanence by placing children entrusted to their care for adoption.
[37] The mother's onus is a difficult one to establish this pre-requisite. It is essentially to prove a negative. It is not an impossibility but is extremely difficult for a child the age of J., who appears from all descriptions of her to be quite adoptable.
[38] The mother has not satisfied her onus to justify an access order in her favour.
Conclusion
[39] The end result of this motion for summary judgment is that the society has met its onus. The mother has not. The court is satisfied that there is no genuine issue for trial with respect to finding, disposition or access. In such circumstances, the court is bound by Rule 16(6) of the Family Law Rules:
If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[40] This is what I am bound to do. It is unfortunate for this mother who I am sure loves her child very much and has shown a commitment to her since she was born. These child protection cases are not so much about the parents as they are about the child or children involved. The protection of children overrides any sympathies that the court may have for a parent. The mother can take solace from the fact that the child has been able to form good relationships in her foster family and has turned out to be a happy child.
[41] There will be a finding under s.37(2)(b)(i) CFSA that the child is in need of protection. There will be an order for crown wardship of the child and she will be placed in the care of the Applicant society pursuant to paragraph 3 of s.57(1) CFSA.
[42] There will be an order for no access to the mother.
[43] Any future dates set for this case are vacated.
[44] I thank the counsel for their submissions on this motion.
Released: July 20, 2017
Justice John Kukurin