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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Haldimand & Norfolk v. R.L.S., 2019 ONCJ 417

DATE: 2019 03 27

COURT FILE No.: Simcoe 40/18

BETWEEN:

The Children's Aid Society of Haldimand & Norfolk

Applicant,

— AND —

R.L.S. and S.T.J.B.

Respondents

Before Justice A.D. Hilliard

Heard on February 28 2019

Reasons for Judgment released on March 27, 2019

Darren Russell................................................................. counsel for the applicant society

Cornelius Brennan....................................... counsel for the respondent mother R.L.S.

Edward Kiernan........................................... counsel for the respondent father S.T.J.B.

Hilliard J.:

Introduction:

[1] This is a motion for summary judgment brought by the Society requesting a finding that the children B.B., G.B., and D.B., are in need of protection and requesting a disposition ruling that the three (3) children be placed in the extended care of the Society.

[2] Counsel for both the respondent mother and the respondent father resist the Society’s motion and argue that there are genuine issues for trial on both the issue of the finding that the children are in need of protection and the disposition in this matter – whether the children are returned to the care of the person from whom they were removed or placed in the extended care of the Society.

[3] The respondent father is not seeking to have the children placed in his care but is rather supporting the respondent mother’s position that the children should be placed in her care. The respondent father is only requesting that he be granted access to the children once placed in the care of the respondent mother under the supervision of the Society. Counsel for the respondent father also argued during submissions on the motion that it is open to the Court, given how long the subject children have been in care, to make a disposition order placing the children in the interim care of the Society for a period of three (3) or six (6) months despite that disposition not being sought by any of the parties.

The Evidence:

[4] The Society’s evidence on the motion for summary judgment is set out in the affidavits as follows:

(1) Affidavit of Megan Cooper, sworn November 23, 2018 at Tab 17;

(2) Affidavit of Megan Cooper, sworn November 23, 2018 at Tab 18;

(3) Affidavit of Megan Cooper, sworn November 22, 2018 at Tab 19;

(4) Affidavit of Jennifer Greenfield, sworn November 16, 2018 at Tab 20;

(5) Affidavit of Terry Stratford, sworn November 26, 2018 at Tab 21;

(6) Affidavit of Katie Bartlett, sworn November 27, 2018 at Tab 22;

(7) Affidavit of Lynn Brennan, sworn November 26, 2018 at Tab 23;

(8) Affidavit of Amy Hill, sworn November 28, 2018 at Tab 24;

(9) Affidavit of Megan Cooper, sworn November 28, 2018 at Tab 25;

(10) Affidavit of Kathyrn MacMaster, sworn January 9, 2019 at Tab 26;

(11) Affidavit of Terry Stratford, sworn January 10, 2019 at Tab 28;

(12) Affidavit of Jennifer Greenfield, sworn January 25, 2019 at Tab 29;

(13) Affidavit of Megan Cooper, sworn February 11, 2019 at Tab 30;

(14) Affidavit of Megan Cooper, sworn February 22, 2019 at Tab 33.

Undisputed facts:

[5] The respondent mother has two (2) other biological children who are not in her care, having been placed in the custody of their paternal grandmother, which placement was consented to by the respondent mother.

[6] The respondent mother has struggle with illicit substance use since 2000.

[7] The respondent mother completed a 35 day in-patient drug rehabilitation program in Windsor, Ontario and graduated from that program in October 2018 with honours.

[8] The respondent mother has been on the methadone program since 2012 but continues to struggle with relapses from time to time, including since completing drug rehabilitation.

[9] A summary of the respondent parents’ drugs screens from February 2011 to March 2018 is set out in the Affidavit of Megan Cooper, sworn November 23, 2018 at Tab 28 of the continuing record, which results are not disputed by the respondent parents. In January, February, and March 2018, the respondent father had positive results for cocaine metabolites, and in February and March 2018 positive results for fentanyl. The respondent mother had positive results for cocaine metabolites in January, February, and March 2018, and positive results for fentanyl in January and March 2018.

[10] There was a series of domestic disputes between the respondent parents that results in police attending at the home on eight (8) occasions between November 2017 and April 2018, none of which resulted in either of the parties being charged with a criminal offence.

Evidentiary issues:

Police occurrence reports as business records:

[11] During the course of argument on the motion for summary judgment, an issue arose regarding hearsay evidence that counsel for the Society was proposing to tender, which evidence was challenged by counsel for the respondent father.

[12] In support of facts set out in the Society’s factum, counsel for the Society proposed to tender police occurrence reports that had been obtained by the Society and served upon the parties with a Notice pursuant to sections 35 and 52 of the Evidence Act, R.S.O. 1990, E.23, as amended.

[13] Counsel for the respondent father objected to the Society filing the occurrence reports on the motion. The argument put forward by counsel for the respondent father was that police occurrence reports are not Business Records within the meaning of the Evidence Act and that the reports are hearsay evidence that do not meet the test of necessity and reliability such as to fall within a principled exception to the hearsay rule. Mr. Kiernan went on to argue that documentary evidence such as police occurrence reports cannot be tendered by a party as part of their evidence in chief. Occurrence reports, counsel submitted, can only be put to a witness during cross-examination to challenge that witness’ evidence in chief as a prior inconsistent statement.

[14] Counsel for the Society took the position that police occurrence reports are Business Records and that the parties had been put on notice in November 2018 that the Society would be intending to rely on the police records as evidence. Mr. Russell argued that the occurrence reports contained statements made by the respondent parents to the police and therefore were not hearsay statements. Counsel further argued that even if the occurrence reports were hearsay, as they contained statements from parties to the proceedings they could be tendered into evidence as the respondent parents had been put on notice that the Society would be relying on those reports and therefore had an opportunity to respond to the contents of the reports in their affidavit evidence. Mr. Russell submitted that the respondent parents’ failure to address the police occurrence reports in their affidavit material should lead to an inference by the Court that the respondent parents were not disputing the contents of the reports. Counsel argued that if the police occurrence reports were deemed to be hearsay, they should be admitted under the principled exception to the hearsay rule. The Society was intending to rely on the police occurrence reports for the purpose of demonstrating the ongoing domestic discord between the respondent parents.

[15] In an oral ruling, I found that police occurrence reports may be admitted as Business Records pursuant to the Evidence Act but that such admissions are to be carefully considered by the court on a case by case basis. In this particular case I declined to allow counsel for the Society to tender nine occurrence reports in their entirety as evidence on the motion for summary judgment. The admissions from the respondent parents that resulted from the argument of this issue regarding domestic discord are set out above.

Hearsay in affidavit evidence:

[16] The affidavit of Avery Peterson is relied upon by the Society to demonstrate the historic involvement of the respondent parents with children protection authorities. This affidavit was filed in the continuing record as an Exhibit to the Affidavit of Megan Cooper, sworn November 23, 2018, rather than as an affidavit filed on its own right in a separate tab. I note that it contains a significant amount of hearsay evidence but was referred to and relied upon by counsel for the respondent mother in submissions and I therefore place greater weight on this affidavit evidence than I might have otherwise.

[17] The affidavit of Megan Cooper, sworn November 23, 2018 at Tab 18 of the continuing record, sets out in the results of the respondent parents’ drug tests but does not actually append as exhibits the drug results themselves. Counsel for the respondent parents acknowledged the results of the drug tests and I therefore have relied upon and taken as agreed facts the results as set out in the affidavit.

[18] Any other hearsay statements in the affidavit evidence filed on behalf of the Society I have given little weight to on the summary judgment motion as the caselaw is now settled that evidence on these motions should be in the form of trial affidavits.

Parents’ history with child protection agencies:

[19] The respondent parents’ historic involvement with the Children’s Aid Society of Sarnia-Lambton is set out in the affidavit of Avery Peterson, sworn April 10, 2018, which is located at tab 17 of the continuing record, Exhibit A to the affidavit of child protection worker Megan Cooper.

[20] The respondent mother had two (2) biological children prior to her relationship with the respondent father.

[21] Despite the respondent mother’s protestations to the contrary in her affidavit material, the affidavit of Avery Peterson details the apprehension of both of those children from the respondent mother’s care due to concerns about the respondent mother’s illicit substance use and failure to meet the children’s basic needs. Those children are now in the custody of extended family and have been since May 2009.

[22] The respondent parents’ involvement with child protection authorities as a couple dates back to 2013 just prior to the birth of B.B. with a referral from a community health nurse that was made with the acquiescence of the respondent parents. This referral was made as a result of the parents’ disclosure of their ongoing struggles with illicit substance use.

[23] The respondent parents’ were also investigated on a number of occasions as a result of B.B. being found outside of the home without a parent, often wearing inadequate clothing. The family became known to local police due to the number of times that B.B. wandered out of the family home and was found on the street. At the relevant times when B.B. was found outside of the home without a parent present, he was non-verbal and therefore unable to communicate who he was or where he lived with his parents.

[24] Despite numerous protection concerns over the years due to the respondent parents’ care of the children, the Society in Lambton County never deemed the risk sufficient to warrant commencing a protection application or apprehending the children from the care of the respondent parents.

[25] What is clear from the affidavit of Avery Peterson is that despite ongoing concerns about the respondent parents’ illicit substance use, the respondent parents continued to work cooperatively with child protection authorities in Lambton County and that Society was satisfied with their efforts to protect the children from the effects of their drug use.

[26] I note that at paragraph 40 of Avery Peterson’s affidavit, the child protection worker deposes:

the family Ms. S. and Mr. B. presented as cooperative with ongoing protection services and able to adequately meet the needs of the children. Furthermore, that Ms. S. had demonstrated that she was able to act protectively of the children as demonstrated by her seeking alternative living arrangements to prevent the children (sic) exposure to adult conflict. The parent child interactions were observed as positive. […] although ongoing concerns were presented with regards to the parent’s (sic) history with drug use, their unwillingness to sign consent to Bluewater Methadone Clinic, and also their recent self-reports of relationship issues, these concerns presented as mitigated by the family’s willingness to engage with the Society and community services on a regular basis to monitor the situation.

[27] The respondent parents moved to Simcoe at the end of March 2018 and the Children’s Aid Society of Haldimand & Norfolk became involved with the family as a result of a police call to the respondent parents’ home in April 2018.

[28] Relying mostly upon the records received from the Sarnia-Lambton agency, which involved a significant amount of hearsay including anonymous referrals and unverified complaints about the respondent parents’ care of the children, the child protection workers from the Haldimand & Norfolk agency determined that the risk of harm to the children was so great as to require that the children be apprehended from the care of the respondent parents in April 2018.

[29] The affidavit evidence filed on behalf of the Society detailing the respondent parents interactions with child protection workers from the Haldimand & Norfolk agency depict the parents as being uncooperative with the Society and unwilling or unable to engage with resources proposed by the Society. Counsel for the respondent parents acknowledge that the respondent parents have been sporadic in their communication with the child protection worker at times due to transiency and financial issues, which the respondent parents attribute directly to the apprehension of the children from their care.

The children after coming into care:

[30] At Tab 22 of the continuing record is the affidavit of B.B.’s foster mother. She describes B.B. as nonverbal when he first came into care, making no attempts to engage or interact with other individuals in the home.

[31] B.B. had dental surgery to remove decayed teeth and put caps on other teeth. The foster mother deposes that after the surgery B.B. “had only 6 teeth remaining that had not need to be removed or capped.”

[32] B.B. was taken to McMaster Children’s Hospital after being brought into care and was diagnosed with level 3 Autism Spectrum Disorder (ASD). He is described as requiring constant supervision.

[33] At Tab 23 of the continuing record is the affidavit of G.B. and D.B.’s foster mother. She deposes that in October 2018 G.B. had dental surgery consisting of 5 filings, 3 baby root canals, 3 crowns, and 4 extractions.

[34] Although the foster mother for G.B. describes him as “easy to care for”, she also indicates that he “requires constant supervision.”

[35] D.B. came into care at 5 months old. She presented as having a flat head and a flat affect. It was recommended by Dr. Baird, a pediatrician from McMaster Children’s Hospital, that D.B. not sit but rather lie on the floor or be held in an adult’s arms to strength her range of motion.

The respondent parents’ access with the children after apprehension:

[36] The affidavit of Jennifer Greenfield, sworn November 16, 2018 at Tab 20 of the continuing record, outlines the respondent parents’ access with the children from April to August 2018.

[37] The respondent parents’ visits continue to be supervised at the Society’s offices in Townsend to date.

[38] Ms Greenfield indicates in her affidavit at paragraph [] that two visit supervisors were provided for the visits due to “both the intensive needs of the children and the challenges that Ms. S. and Mr. B. demonstrated when meeting these needs.”

[39] The visits were initially scheduled to take place three times per week: Monday 4:00 p.m. to 6:00 p.m., Wednesday 10:00 a.m. to 12 noon, and Thursday 10:00 a.m. to 12 noon.

[40] The respondent parents were regularly late to the majority of their visits throughout the month of May 2018 as well as some of their visits in June, July, and August 2018.

[41] The workers noted ongoing concerns during the visits when both the respondent parents were present, specifically adult conflict and difficulty adequately monitoring and attending to all three children at once.

[42] There were positive aspects to the visits noted as well, specifically that the Respondent mother would greet the children at the commencement of visits with excitement and positivity, demonstrating physical affection for the children, and the children would reciprocate their mother’s positive emotions and affection.

Mother’s plan of care:

[43] The respondent mother’s affidavit at Tab 34 of the continuing record deposes that she has now obtained housing in Sarnia, Ontario. The respondent father supports mother’s request to have the children placed in her care under supervision and the parents’ plan is that they will not be living together or resuming their relationship.

[44] The respondent mother was pregnant at the time of the swearing of her affidavit on February 28, 2019. She deposes in her affidavit that her due date is March 28, 2019. She further states in her affidavit that she is working with the child protection agency in Sarnia in order to “ensure that the baby is not apprehended.” Although it was not specifically sworn to in mother’s affidavit, it would appear that the respondent mother’s plan is to parent the three children who are the subject of this application as well as her new born baby,

[45] The respondent mother states that in Sarnia she has significant family support and having grown up in Sarnia she deposes that she is familiar with all of the community supports that she will need to assist her in caring for the children.

Issues to be Determined:

[46] Is there a genuine issue for trial regarding whether the subject children are in need of protection?

[47] If there is no genuine issue for trial regarding protection findings, is there a genuine issue for trial regarding the disposition of this matter?

The Law:

[48] Pursuant to Rule 16 of the Family Law Rules, the Court may make an order for protections findings and/or disposition on a motion for summary judgment. The relevant provisions of Rule 16 are as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[49] Justice Myers sitting as an appellate court in Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783, [2018] O.J. No. 2399, clarified the legal test and burden of proof under the current Rule 16, described by the Court as the post-2014 era of summary judgment motions. Justice Myers applied the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, to child protection cases, holding at paragraph 43 that the new approach “considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial.”

[50] The Court must first determine on the evidence presented whether there is a genuine issue requiring a trial. If the Court finds that there is a genuine need for trial on the evidentiary record before the Court, the second step in the process is for the Court to then make a determination as to whether the need for trial can be avoided by the Court exercising the powers under Rule 16(6.1). See Hryniak v. Mauldin, supra.

[51] Justice Sherr in Catholic Children's Aid Society of Toronto v. A.M., [2016] O.J. No. 5454, cautioned at paragraph 17 that the court, “should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge.” In issuing that caution, Justice Sherr also referenced the case of C.R. v Children's Aid Society, 2013 ONSC 1357.

Analysis:

[52] Counsel for the Society submits that there is no genuine issue for trial that the children are in need of protection or that they should then be placed in the extended care of the Society.

[53] The Society’s position on the motion is that there is overwhelming evidence that the children are in need of protection due to the respondent parents’ lifestyle choices, including persistent and ongoing use of illicit substances, failure to adequately supervise the children, and transiency. Given all of these factors, the Society argues that it is clear on the evidentiary record before the Court that the children are at risk of harm in the care of the respondent parents.

[54] On the issue of disposition, the Society also submits that the evidence before the Court on the motion for summary judgment demonstrates that the respondent parents are unable to parents the subject children. The Society argues that the only options that will be available to the trial judge will be either return to one or both parents or place the children in extended society care.

[55] Counsel for the respondent mother submits that the respondent mother’s plan to have the children returned to her care raises a genuine issue for trial. In submissions, counsel for the respondent mother reminded the Court that an Order for extended society care should be an Order of last resort. He submitted that maintaining the family unit is the paramount objective of the Children Youth and Family Services Act (CYSFA). Counsel on behalf of the respondent mother did not make any specific arguments against the Court making a finding that the children are in need of protection.

[56] Counsel for the respondent father submits that there are genuine issues requiring a trial on the issues of both protection findings and disposition. However, the respondent father acknowledges that he is not in a position to put forward a plan to care for the children without the respondent mother and he is therefore supporting the respondent mother’s plan to have the children placed in her care under supervision.

[57] On the issue of the Court making protections findings based upon the evidentiary record before the court, counsel for the respondent father submits that the Society has failed to demonstrate a causal connection between the respondent parents’ actions or inaction and the harm suffered by the children. Counsel further submits that the Court cannot look to a constellation of factors in the evidence to support a finding that the children are in need of protection but rather must assess each concern in isolation and make a determination.

[58] I do not accept the submission that the Court cannot look to a constellation of factors set out in the evidence to support a finding that the children are in need of protection. However in this case, there are multiple factors which each provide sufficient concern to warrant a finding pursuant to s. 74(2)(b)(i) of the CYSFA.

[59] All three subject children are under the age of 7 and require a high degree of supervision, the oldest having been diagnosed with ASD and the youngest being just over 1 year of age. During supervised access visits at the Society’s office, the respondent parents were unable to consistently demonstrate an ability to appropriately care for, monitor, and supervise all three children in a two hour period.

[60] B.B. and G.B. both required significant dental intervention upon coming into care. I do not accept counsel’s submission that there is no evidence to causally connect the state of the children’s teeth to inaction or neglect on the part of the respondent parents. I find that it is a reasonable inference for the court to draw, and in fact the only logical inference to be made on the evidence, that the poor dental health of B.B. and G.B. upon coming into care is a result of the respondent parents failure to provide adequate care for the children. I note that there was a complete absence of evidence from the respondent parents regarding what dental care, if any, they provided for the children prior to apprehension.

[61] The child, B.B., was found outside of the respondent parents’ home unsupervised on more than one occasion wearing inadequate clothing and had to be returned home by police officers. B.B. who suffers from ASD and was non-verbal while in the care of the respondent parents was not adequately supervised such that he exited the home without being noticed on more than one occasion.

[62] I find that on the evidentiary record before me there is no other conclusion for the court to reach other than the subject children are in need of protection.

[63] The issue of whether a disposition order can be made on a motion for summary judgment is much less clear.

[64] The Society in making its argument that there is no chance of success for the respondent parents to have the children returned to the care at the end of a trial points to the history of involvement with child protection authorities dating back to before the birth of the child, B.B., and the ongoing failure of the parents to engage with or mitigate the concerns of the Society.

[65] Both counsel for the respondent parents argue that the parents have demonstrated an ability to work cooperatively with the Society in Sarnia in the past and in so doing, have demonstrated an ability to recognize the risks that their behaviours pose to the children.

[66] Although there has been a marked lack of engagement with the Society in Haldimand & Norfolk, the respondent parents’ explanation that it has been due to financial difficulties resulting in transiency cannot be discounted. Upon the children being apprehended, the respondent parents lost their income supplement that directly impacted their ability to maintain their housing. The period of transiency that the parents experienced as a result of losing their housing in Norfolk County appears to be directly correlated to the apprehension of the children.

[67] It is also notable that the affidavit of the worker involved with the respondent parents in Sarnia specifically noted in his affidavit that he was of the view that the parents’ history of working cooperatively with him and his agency sufficiently mitigated the risk to the children such that intervention by way of a court application was not necessary.

[68] Both parents have now relocated back to Sarnia where they have significant family and community supports in place.

[69] Given the Society’s ongoing concern about adult conflict, the respondent parents have committed to remaining separate and apart.

[70] The respondent father has acknowledged that he is unable to care for the children alone and therefore has acknowledged that there is no genuine issue for trial regarding whether the children could be returned to his care under terms of supervision.

[71] The respondent mother has obtained housing and appears to be stable and working cooperatively with the Society for Sarnia-Lambton. Although counsel for the Society submits that the respondent mother cannot demonstrate that she alone could parent the three subject children as she has never done so in the past, there is simply an insufficient amount of evidence on the record before me that the respondent mother’s plan of care clearly cannot succeed.

[72] An Order for extended society care is the equivalent of a life sentence and I am not satisfied on the evidence before me that such an Order should be granted in this case on a motion for summary judgment at this stage in the proceedings.

Disposition:

[73] The children, B.B., G.B., and D.B. are found to be in need of protection pursuant to s. 74(2)(b)(i) of the CYSFA.

[74] This matter shall then be remitted for trial on the issue of disposition relating to mother’s plan of care to have the children returned to her under terms of supervision. As there is no genuine issue for trial regarding the respondent father being able to care for the children, the issue to be considered at the trial in this matter with respect to the respondent father will be his access with the children only.

Released: March 27, 2019

Signed: Justice A.D. Hilliard