WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87.— (8) Prohibition re 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.
87.— (9) Prohibition re identifying person charged.
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.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: May 14, 2018 File No: 09/17
Applicant: Family and Children's Services of Guelph & Wellington County
Respondents: A.I.S. (Mother); D.D.D.H. (Father)
Date Heard: May 4, 2018
Decision Released: May 14, 2018
Counsel:
- Olivia Rebeiro for the Applicant
- Jonathan Krashinsky for A.I.S.
- Luke Weiler for D.D.D.H.
Endorsement
Introduction
[1] This is the Applicant's motion for summary judgment brought within a protection application issued on September 8, 2017.
[2] The subject children are twins – A-L.H. and V.H. born […], 2017. The Applicant intervened upon their birth when they were kept in hospital for several weeks due to complications arising from a premature birth together with circumstances recently resolved in a separate child welfare case respecting another child of the parents.
Parents Not Responding
[3] The summary judgment motion was set to be argued peremptorily on this date; however, neither parent had responded. After submissions by counsel and for oral reasons given, I denied an adjournment to allow the parent's time to file.
[4] The application and the present motion materials were issued when the CFSA remained in effect. However, as at May 1, 2018, the Child, Youth and Family Services Act, S.O., 2017, Chapter 14 was proclaimed and came into effect. In the result, this motion must be assessed under the new legislation and all former paragraph references from the CFSA will be replaced with its counterpart under the CYFSA.
[5] As a result of this development, I allowed counsel for the parents' to make submissions respecting the potential impact of the changes provided any submission demanding a fact base had to flow from the Applicant's materials and not through counsel.
[6] In addition, I also reviewed the answers filed by the parents to assure they did not identify a factual issue that would merit a formal hearing.
[7] Given that the CYFSA does not alter the summary judgment process which has developed over the years and does not truly impact best interests considerations defining placement, counsel paid close attention to the assessment of access which the new legislation has redefined.
Law: Summary Judgment
[8] Since this is an uncontested motion, I do not intend to extensively review the law respecting summary judgment. However, the Applicant must still plead sufficient facts to prove a prima facie case supporting extended society care failing which its motion would be summarily dismissed.
[9] If the Applicant meets its prima facie onus, the Court will then determine whether the facts pleaded support the placement sought on a balance of probabilities, are consistent with the principles in s. 1 of the Act and the evidence meets the statutory requirements of the Act. The statutory requirements demand a hard look at CYFSA subsections 101(2), (3), (4) and (5) if applicable as well as sections 100 (plan of care) and 122 (time limits in care).
Finding
[10] The mother has three older children who were born in 2012, 2013 and 2016. She lost care and control of all of them through the child welfare process due to her addiction to drugs. DDDH was the father of the child born in 2016.
[11] On July 18, 2017, the parents executed an agreed statement of fact supporting risk findings and placement of their third child, C.H. The mother formally acknowledged her lengthy history of abusing amphetamine and methamphetamine. C.H. tested positive at birth for both drugs.
[12] The mother further acknowledged she had not completed any form of rehabilitation or treatment for her addiction.
[13] The mother denied she was pregnant with the twins when asked by the Applicant. She did not obtain any pre-natal care. The twins were born prematurely and tested positive for amphetamine and methamphetamine as did the mother. Notwithstanding her denials, the father acknowledged her pregnancy.
[14] The mother recently acknowledged she used drugs regularly to cope with life's stresses and that she continues to do so.
[15] The mother has promised repeatedly to obtain treatment. She went to a detox program for several days and then entered a treatment facility in the spring of 2017; however, she left the treatment facility after a day. Apart from this attempt, the mother has claimed throughout she is on treatment waiting lists but has never actually enrolled.
[16] The father acknowledged in the agreed statement of July 18, 2017 his lengthy history of drug abuse.
[17] He claims he has been drug free for about four years since he entered into a methadone program. He claims the only drug he presently uses is marihuana for which he has a prescription to address insomnia and anxiety.
[18] His urine is tested periodically as an aspect of the methadone program. Between September 21 and December 28, 2017, he tested positive for cocaine five times. He claims the marihuana he buys on the street is often laced with cocaine. He claims he buys on the street because his prescription does not always meet his needs.
[19] Considering the evidence as a whole, I am not prepared to trust his explanation. In any event, there is no evidence how frequently he uses marihuana or its strength. It appears on the evidence that the father's use of marihuana is somewhat aggressive and this, in my mind, is inconsistent with an ability to parent safely or consistently. This finding is confirmed in the observations of the father during his access visits.
[20] The father argues he has participated in a relapse prevention program through the doctor monitoring his methadone program. I firmly doubt a methadone clinic doctor has much time to spend on such a critical topic given his/her obligations to all the other persons using the clinic's services. In my mind, using the clinic doctor is a convenient way to avoid the hard work and commitment demanded by legitimate relapse prevention programs.
[21] The father does not believe he requires professional help. He believes all the help he needs is provided by the clinic. Again, this is a convenient excuse to avoid the work and commitment demanded in drug treatment therapy.
[22] Lastly, methadone is itself an addictive substance and with nothing more is not a legitimate substitute for addictions therapy.
[23] On the evidence, I find the father is at as great a risk of relapse as is the mother. He remains an undertreated addict.
[24] In my mind, the evidence outlined above supports a prima facie finding of risk as defined in s. 74(b)(i) of the CYFSA.
[25] Both parents answered the protection application. I looked at their answers and neither responded to any of the factual risk allegations laid out in the application and which are repeated above.
[26] Failing any response by the parents, I find the evidence tendered is sufficiently strong to show, on a balance of probabilities, that there are no triable issues respecting risk; and, no facts are pleaded that would bar an order granting the finding sought.
Placement
[27] The children have been in the care of the Applicant since September 19, 2017.
[28] They have been in a kin home since November 24, 2017.
[29] The kin parents are paternally related to the children.
[30] The kin parents are prepared to retain the children permanently if the order permits.
[31] There is no direct evidence that the kin parents will adopt the children.
[32] The father and mother have resided with the paternal grandmother and her partner since C.H. was born. For the past three years, they have been incapable of locating independent housing notwithstanding that the father is employed and notwithstanding that the Applicant was prepared to advocate for them.
[33] The parents have done nothing else of any substance to show they are prepared and/or ready to take care and control of the children. To all intents and purposes, the evidence supports that they struggle to meet their own daily needs.
[34] Both children have experienced physical difficulties requiring considerable time and attention which, on the evidence, the parents are incapable of delivering.
[35] Whether the children's exposure to drugs at birth results in future difficulties is not presently clear. However, the evidence is clear that neither parent is prepared to or capable of managing such difficulties if they were to arise.
[36] The aforementioned facts together with the evidence supporting the protection findings supports a prima facie case for permanent placement with the Applicant.
Statutory Considerations: Placement
[37] In regard to the best interest criteria at s. 74(3) CYFSA, the Applicant's evidence supports that:
[38] The children cannot express their views and preferences and their race, ancestry, cultural and linguistic heritage are not placement factors in this case.
[39] As indicated earlier, the children have immediate physical needs that demand heightened care and attention which the parents are incapable of providing. This is not a weighty factor since there is no evidence the physical difficulties will limit either child into the future.
[40] From the perspective of familial relationships, neither parent is presently capable of fostering an independent relationship in a family setting considering their inability to locate suitable housing, managing their own daily needs and considering their untreated addictions.
[41] The children are too young to assess whether they have an emotional tie to their parents. However, the evidence does satisfy me that the parents are not emotionally attached to the children. If they were, some steps would have been taken to date to address their addiction issues and the parents would attend every visit on time.
[42] The untreated addictions gives rise to significant difficulties in regard to continuity of care. The risk of re-apprehension is extremely high. The secondary risks related to addictions – financial stress, unsavory associations, unsanitary housekeeping and a general lack of supervision – all increase the risk of another apprehension.
[43] Considering the evidence supporting the finding in need of protection, the risk of physical harm as defined in subsection 74(2)(b)(i) is high if the children were returned at this point, particularly in context of providing for and supervising the children.
[44] I read the parents' answers to determine if any factual allegations contained in them might define a best interest issue respecting placement that would merit a trial.
[45] The mother asked that the children be placed in her care. All she indicated in support was that she was cooperative with the Society, well connected to community supports and that she is an able and fit caregiver. These are conclusions unsupported by a fact base and entirely inconsistent with her history.
[46] She acknowledged the paternal grandmother's residence was not suitable to parent the children and alleged she was in the process of finding suitable accommodations. That was last November and she is still with the grandmother.
[47] The mother claimed she was on waiting lists for addictions treatment. That was last November and I am not prepared to trust that not a single slot has since opened.
[48] The father asked for a custody order. Like the mother, he admits his mother's home is inappropriate and claimed that he "is actively looking for more appropriate housing for him and the children". That was last November and he is still with his mother.
[49] The father pleaded that he "is an appropriate and able caregiver". No facts supporting his parenting history or strengths were offered. This is a conclusion which does not constitute an issue for trial and, in any event, the conclusion does not fit his history.
[50] The Applicant has satisfied me its efforts to assist the children before intervention were appropriate and failed solely due to the refusal of both parents to acknowledge the impact of their addictions on their ability to parent. I find there are no lesser disruptive alternatives to the placement orders sought. And, I find the Applicant made family and community inquiries respecting alternate plans and none apart from the kin placement were put forward. In the result, I find sections 101(2), (3) and (4) of the CYFSA do not present as barriers to the placement order sought.
[51] I find the Applicant's plan for the children at Volume 2, Tab 4 meets the criteria defined in s. 100 of the CYFSA and its plan for the children is clear and appropriate to their needs.
[52] Section 122 of the CYFSA replaces s. 70 of the CFSA and limits the amount of time a child can be in the care of a society. Both children have been in care for 8 months. This falls below the 12 month ceiling fixed in s. 122.
[53] Notwithstanding that the clock has not yet expired respecting either child, the court finds on the evidence that there is no likelihood of a change in the parents' untreated addictions within the time remaining or even an extension if one were to be granted. Any supervision order granted during the time remaining would require 24/7 monitoring.
[54] In the result, I give s. 122 significant weight in context of the placement assessment since it will definitely expire before any appreciable change is accomplished.
[55] The risk evidence and the statutory findings show on a balance of probabilities that no placement issues for trial have been identified. Without a response from the parents, there is no doubt the Applicant is entitled to the placement order sought.
Access
[56] In context of an "extended society care" (Crown wardship) order, the new legislation has retained a number of former s. 59 considerations but also enacted a significant change respecting the assessment of access following an extended care disposition.
[57] The CYFSA appears to have retained the terminology supporting the former s. 59(2) CFSA presumption against access once an extended society care order is made: see, s. 105(4). The wording of s. 105(4) also appears to support the continued applicability of prior court decisions that the onus shifts to the person seeking access: see Children's Aid Society of the Niagara Region v. C.(J.); Children's Aid Society of Toronto v. P.(D.).
[58] However, the onus is now based on a best interest assessment on the considerations defined in s. 74(3) together with beneficialness and meaningfulness which were adopted from subsection 59(2.1) of the CFSA and added as a new best interest criterion for an access assessment: see s. 105(6) CYFSA.
[59] In the result, beneficialness and meaningfulness is no longer the sole criterion (apart from the adoption question) defining the access onus. Reading subsections 105(5) and (6) together, the beneficialness and meaningfulness criterion should be given no greater weight than the balance of the subsection 74(3) criteria.
[60] The question is whether beneficialness and meaningfulness should be interpreted as it was under the CFSA: see Children's Aid Society of Niagara Region v. J.(M.). Nothing in the wording of the CYFSA appears to bar applying the prior interpretation; however, given that this new criterion is merely one of fourteen considerations, will the prior interpretation risk giving it greater weight than it merits under the new regime?
[61] In my mind, the J.(M.) interpretation of "significantly advantageous" stands a risk of overpowering the other 13 criteria in subsection 74(3).
[62] In J.(M.), Justice Quinn applied a dictionary meaning to both beneficial and meaningful. The dictionary would have offered any number of choices. "Significant" is the most exaggerated synonym for meaningful; but it also equates with "telling", "expressive" or "important". "Advantageous" is a synonym of beneficial but so are "helpful", "valuable", "positive" and "constructive".
[63] In the result, the choice of "significantly advantageous" appears to have been quite subjective and it constricted two factors into one. I agree with the court in Children's Aid Society of Owen Sound v. T.(T.) that beneficial and meaningful are not synonymous; however, the words have, since 2004, been interpreted synonymously by many courts each time advantageous was qualified by significant.
[64] The phrase significantly advantageous also creates, in my mind, an ideal concept of a parent-child relationship that cannot be met in the circumstances of most parents in our child welfare system. On top of that, the word significant, when attached as an adverb to qualify advantageous, can be applied so strictly and subjectively that many parents were doomed to failure even with decent evidence.
[65] I consider that the Legislature's decision to add 13 more "considerations" to an access assessment suggests it intended to broaden the assessment itself and soften the impact of the former interpretation.
[66] For the purposes of the CYFSA, I would interpret beneficial and meaningful to mean that the access relationship at the time of trial was both "positive" and "important" to the children since, in my mind, these words appear contextually compatible with the balance of the subsection 74(3) considerations whereas significantly advantageous reads as an overriding consideration.
Parents' Access Evidence
[67] Failing a response, the parents must find evidence within the Applicant's materials that will support an issue for trial.
[68] As it should, the Applicant has outlined a fair and balanced description of the strengths and weaknesses of the parents' access regime to date.
[69] On the evidence of the Applicant, the parents have had visits twice weekly for three hours each. The strengths are:
[70] The mother's attendance has been regular and if she was to miss a visit, advance notice and credible explanations were given. The father has been essentially regular but not to the extent of the mother.
[71] The parents do not fight or argue during visits and are pleasant and cooperative with staff.
[72] Both parents engage the children in a warm and loving manner; they are gentle in conversing with and handling the children; both are loving and affectionate and have been throughout.
[73] Both can read the children's cues and need no reminders to change or feed the children.
[74] The weaknesses noted are:
[75] Both parents have been habitually late for at least half of the scheduled visits and more frequently since the visits were moved to Guelph. Their explanations exhibit a lack of forward planning and a habit of double booking other appointments on visiting days.
[76] The father frequently falls asleep while holding and/or feeding a child and notwithstanding persistent warnings, is not able to avoid doing so. He claims the child he is holding is safe but I accept the workers observations respecting the child being dropped or choking. This observation also appears consistent with his diagnosis of insomnia.
[77] Neither parent has attempted to care for both children – each takes carriage of the same child each visit and focuses his/her attention strictly on that child. In the result, neither has been evaluated on their ability to multi-task.
[78] In regard to the subsection 74(3) assessment:
[79] The children are too young to express a view or preference respecting ongoing contact with their parents; the children do not have First Nations status or identify with one; there is no evidence either child has a physical, emotional or mental need which would favor access; and, there is no evidence that access is in a child's interest due to his/her ancestry, religion, sexual orientation or cultural or linguistic heritage.
[80] In the result, subsections (3)(a), (b), (c)(i), (ii), (iii) and (iv) do not support an ongoing access regime.
[81] There is no evidence how the children might benefit by ongoing extended family contact through access as there is no evidence that anyone on the maternal or paternal sides of the family had a prior relationship with the children except the kin family.
[82] There is no evidence how access has "grown" the children's relationship with their parents. I acknowledge this sort of evidence is difficult to articulate with children so young, particularly when they were removed at birth.
[83] The children have siblings or step-siblings but there is no evidence defining the relationships between them.
[84] In the result, subsections (3)(c)(v) and (vi) do not support an ongoing access regime.
[85] One consideration for "continuity", in context of an access consideration, is the parent's record of attendance at scheduled visits and their investment with the children while there. On the facts tendered, subsection (3)(c)(vii) does support the parents' access plan.
[86] However, continuity, in context of access, must also factor the parents' inability to arrive on time. This was a repeated occurrence which I attribute to their inability to manage their own daily affairs.
[87] The "continuity" criterion supports the parent's plan but with some loss of weight.
[88] There is no direct evidence that an access regime would impair a permanent placement with the present kin family. The parents know the kin family. These factors tend to support the parents' access plan with the result that their plan merits weight under subsection (3)(c)(viii).
[89] There is no evidence that delay completing an adoption due to an access order would adversely affect the long term placement of the children. Consequently, subsection (3)(c)(ix) is neutral as it relates to the Applicant and adds some weight to the parents' plan.
[90] The degree of risk that justified the finding is as critical in an access assessment as it is to the placement assessment since it focuses the future. In this context, the issue of continuity will again acquire relevancy.
[91] Neither parent has taken a single step to address their addictions. If the court were to adopt any plan for access to the parents, a strict supervision regime as presently exists would be absolutely necessary in the interests of the children.
[92] Considering their answers and history, it appears to me that neither parent will accept ongoing supervision. In this context, their record of attendance may not carry as much weight since they were merely exercising a right and they are still embroiled in the present litigation. Considering all of the evidence, I will not assume their attendance will remain consistent after an extended care order is made. In my mind, they will quickly lose interest.
[93] In the result, subsections (3)(c)(xi) does not support the access order they seek.
[94] Balancing the merits of the competing plans, I give weight to the fact that the parents have not taken the opportunity to participate in this step of the proceeding. This failure strengthens my sense that they are incapable of managing their daily affairs and this factor will soon overwhelm their attendance record to date. If attendance breaks down, the balance of the strengths identified by the Applicant will lose significant weight.
[95] In context of what is positive and important to the children, there is no evidence supporting that the visits to date were important to the children – even after weighing the strengths articulated by the Applicant. I acknowledge this evidence is not easily articulable given their ages but the access assessment is child focused and an explanation for the want of evidence does not detract from the fact that this is an important consideration from the perspective of their long-term interests and well-being.
[96] It is not disputed that the children are now firmly entrenched in the kin home and that they are healthy and thriving. This is positive and important to them but nothing in the evidence suggests it is also positive and important that they continue to know and see their parents.
[97] In my mind, positive findings under subsections (3)(a), (b), (c)(iii), (iv) and (vi) will inform the new beneficial and meaningful criterion and it would be difficult, in the face of positive findings thereunder, to suggest that ongoing access is not both positive and important to the children – even in the face of unresolved risk issues.
[98] On a balancing of the subsection 74(3) criteria, I am of the view that no access issues demanding a trial have been identified by the parents.
[99] Applying the Hryniak v. Maudlin, 2014 SCC 7 principles, I am of the view if access issues had been identified in the Applicant's evidence, they could be disposed of using the powers in Rule 16(6.1) and (6.2). The parents' failure to respond supports that a summary judgment motion can achieve a fair process resulting in a just result that is proportionate, timely and affordable in comparison to the cost of and time to a trial.
Final Result
[100] For the reasons above, I find the Applicant has proved both finding and placement on a balance of probabilities and the parents have not satisfied me, on a balance of probabilities that the access order they seek should issue.
[101] In the result, summary judgment shall issue as asked at Volume 2 of the record, Tab 7.
[102] I further find, pursuant to CYFSA s. 90(2) that the children's names are as set out at paragraph 3 of the Application at Tab 2; that both children are presently 8 months old; that neither child is First Nations, Inuk or Metis; and, that the children were brought to a place of safety in the City of Guelph, County of Wellington.
Justice M.P. O'Dea
