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
Date: April 7, 2021 Court File No.: Brantford C 279/18 ext 002
BETWEEN:
The Children’s Aid Society of Brant o/a Brant Family and Children’s Services Applicant
— AND —
A.B., C.T., J.D., K.S. Respondents
Before: Justice A.D. Hilliard
Heard on: March 1, 2021 Reasons for Judgment released on: April 7, 2021
Counsel: B. Culp, counsel for the applicant society A. Macdonald, counsel for the respondent A.B. C.T., J.D., K.S., noted in default
Hilliard J.:
[1] By way of a Notice of Motion, dated October 20, 2020, the Society is seeking the following final orders:
(1) A finding that the children, L.R.T. and L.R.T., twins, born […], 2019, are in continuing need of protection pursuant to section 74(2)(b)(ii) of the Child, Youth and Family Services Act (CYSFA). (2) The children shall be placed in the extended care of the Society. (3) Access to the Respondent mother, A.B., at the discretion of the Society at a minimum of four (4) times annually. (4) Access to the Respondent grandmother, K.S., at the discretion of the Society. (5) The Respondents C.T. and J.D. shall have no access with the children. (6) The Respondent mother and grandmother shall be access holders and the children shall be access recipients.
[2] Although not specifically plead in its notice of motion, by implication the Society is seeking that the Court find that there is no genuine issue for trial such that these orders can be made on a summary basis.
[3] For the following reasons, the Society’s motion for summary judgment shall be dismissed.
Background
[4] L.R.T. and L.R.T. were removed from Ms. B’s care on June 28, 2019 and have remained in the care of the Society ever since. The status review proceeding commenced in March 2019, prior to the children’s removal from Ms. B’s care, was resolved by way of an agreed statement of facts on October 3, 2019, wherein L.R.T. and L.R.T. were found to be in continuing need of protection pursuant to s. 74(2)(b)(ii) of the CYSFA and were placed in the care of the Society for a period of six (6) months.
[5] The protection concerns about Ms. B’s ability to care for the children are captured under three (3) broad categories:
(1) Untreated mental health issues (2) Domestic violence (3) Illicit substance misuse
[6] Ms. B has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Depression, and Anxiety. Prior to her incarceration in February 2020, Ms. B had not been adequately accessing treatment and counselling to address her mental health.
[7] Ms. B was involved in an unstable and violent relationship with Mr. T.. She was physically assaulted by Mr. T. in the presence of the twins and Mr. T. was charged criminally as a result of that incident in 2019. Ms. B had marks all over her body and a black eye from the physical assaults by Mr. T.. Immediately upon his release from custody in June 2019, Mr. T. and Ms. B reconciled their relationship. In late July 2019, Ms. B reported another domestic assault by Mr. T. Prior to her incarceration in February 2020, Ms. B did not access counselling services for victims of domestic violence as recommended to her by the Society.
[8] Throughout 2019, Ms. B was using illicit substances including cocaine and opiates. Her drug screens consistently tested positive throughout 2019 for illicit substances despite her being on methadone. Ms. B was inconsistent in attending for drug testing in 2019 and into 2020 until her incarceration in February 2020. In September 2019, Ms. B revoked her consent that had permitted the Society to directly access the results of her urinalysis.
Current proceedings
[9] The current proceeding before the Court is the second status review proceeding that was commenced in February 2020. On February 17, 2020, Ms. B was arrested and taken into custody on charges, including but not limited to, robbery with a firearm, break and enter into a dwelling house, and possession of a weapon for a dangerous purpose. Ms. B was detained in custody after a bail hearing and remained in pre-trial detention until her release on December 1, 2020, on which date all of the charges before the Court were withdrawn at the request of the Crown.
[10] Ms. B was in pre-trial detention for a period of ten (10) months. During that time she completed multiple counselling programs addressing the topic of domestic violence, including a sixteen (16) module program on domestic violence offered by the Elizabeth Fry Society of Hamilton. After her release from custody, there is no evidence that Ms. B has resumed her relationship with Mr. T. or any other individual.
[11] Throughout her pre-trial detention, Ms. B did not use illicit substances. Since her release, Ms. B has been attending the Fresh New Start clinic to obtain her prescribed Suboxone and provide urine screens. Her evidence is that she has full “carries” which is not disputed by the Society. The importance of Ms. B being able to pick up her medication rather than have it administered at the clinic is that it is further confirmation of Ms. B’s assertion that she had remained abstinent from illicit substances since December 2020.
[12] Ms. B’s evidence is that she has been meeting with Dr. Purohit weekly to monitor her symptoms and medications prescribed for her ADHD, Anxiety, and Depression. These weekly appointments have been ongoing since Ms. B was released from custody.
[13] Attendance at access has been consistent since December 2020. The Society does not dispute that Ms. B’s access visits are going well and she is re-establishing a bond with L.R.T. and L.R.T. Ms. B is attentive and appropriate with the children during her access visits.
Analysis
[14] The test on motions for summary judgment under the CYSFA has been clearly articulated by the Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316. The five (5) main considerations for motions judges in determining whether a motion for summary judgment should be granted are as follows:
(1) In exercising Hyrniak’s fairness principles for summary judgment in child protection matters, the court must exercise caution and apply the objectives of the CYSFA including the best interests of the child. (2) The burden of proof is on the party moving for summary judgment, but if the Respondent’s evidence does not establish a genuine issue for trial, the court must be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. (3) The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. (4) Judicial assistance must be provided for self-represented litigants. (5) Special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
[15] The Court of Appeal makes it clear that motions courts need to take a cautious approach to granting summary judgment in child protection proceedings. Although counsel for the Society takes issue with me referring to language used under the previous Child Youth and Family Services Act (CFSA) caselaw that analogized an order making a child a Crown ward to a life sentence, it is still the case that granting motions for summary judgment must be the exception rather than the rule.
Finding in need of protection
[16] Ms. B does not seriously dispute that the children continue to be in need of protection. Her history of intimate partner violence, untreated mental health concerns, and illicit substance misuse is acknowledged. Ms. B also acknowledges that the gains she has made are recent and do not simply erase her past mistakes and missteps.
[17] I am satisfied that there is sufficient evidence before me that the children continue to be in need of protection. There is no genuine issue for trial regarding protection findings. An order will issue on a final basis that the children, L.R.T. and L.R.T. are in continuing need of protection.
Disposition
[18] The issue to be determined regarding whether there is a genuine issue for trial regarding the disposition of this matter – should the children be returned to the mother or placed in the extended care of the Society – rests on whether the evidence demonstrates that it is plain and obvious that Ms. B’s plan cannot succeed.
Mother’s recent change in circumstances
[19] Counsel for the Society urges me not to put too much weight on Ms. B’s successes since her release from custody in December 2020. The implication of the Society’s position is that Ms. B’s efforts are simply too little too late. The Society also submits that Ms. B had nothing better to do while in pre-trial detention other than participate in whatever programming was offered.
[20] It is not the case that every individual held in custody pending trial in criminal proceedings will access programming and support services offered in detention facilities. There is no requirement for detainees to participate in any or all of the programs offered at any particular facility.
[21] I find that the steps taken by Ms. B both while she was in custody and after her release are a significant factor in determining whether or not there is a genuine issue for trial. Although Ms. B’s pre-trial detention was involuntary, I find that the end result is the same as if she had voluntarily entered into an in-patient rehabilitation program. Upon her release from custody, Ms. B had been abstinent from substances for a period of ten months. She had participated in programming designed to give her the tools necessary to understand the consequences of her choosing to be involved in a violent relationship. The programs Ms. B participated in also provided her with insight and understanding into the impact of domestic violence both on her and on the children.
[22] In child protection proceedings, it is always hoped that with some time and the proper supports, parents can address the protection concerns that initially brought them before the court, and/or their children into the care of the Society. The reunification of families is the ultimate goal, wherever possible. In assessing whether there is a genuine issue for trial, I cannot simply look to Ms. B past mistakes and assume that she will continue to make the wrong decisions in the face of evidence that she has finally started to demonstrate that she understands the protection concerns and is taking positive steps to address them. I find that were I to place too much weight on Ms. B’s past failures to address the protection concerns and too little weight on her recent successes, that would be an error on my part. The issue for me to decide on this motion is not what the disposition should be ordered, but rather whether there is a genuine issue for trial considering Ms. B’s plan of care for L.R.T. and L.R.T.
Impact of the time the children have been in care
[23] The Society has also submitted that I must consider the significant amount of time that L.R.T. and L.R.T. have been in care – over 20 months at the time of argument of the motion. However, I am reminded by Ms. B’s counsel that almost half of that time is after the onset of the COVID-19 pandemic.
[24] In criminal proceedings, it is now well-established that the delay created by the pandemic is a discreet event for the purpose of assessing delay. Although there has been some difference in the time attributed to the pandemic in assessing delay in criminal proceedings, decisions from both the Ontario Court of Justice and the Superior Court of Justice have confirmed that the pandemic constitutes extraordinary circumstances resulting in unavoidable delays in the justice system.
[25] The impact of the delay in criminal proceedings undoubtedly affected Ms. B. Even matters where an accused person was in custody were delayed as a result of the suspension of normal court operations due to the pandemic. Given the serious nature of the charges against Ms. B, I find that the fact that the charges were all completely withdrawn could only be because of the lack of evidence against her, rather than a decision by the Crown that continuation of the prosecution was not in the public interest.
[26] Although s. 11(b) of the Canadian Charter of Rights and Freedoms does not apply in child protection proceedings, the legislation sets out timelines within which it is expected that proceedings will be completed. Children need permanency and stability and cannot be expected to wait interminably until their parent(s) do what is necessary to address the protection concerns. However, the legislative timelines often must give way to the realities of court scheduling.
[27] The pandemic unquestionably impacted the conduct of family proceedings. All in-person courts were suspended in March 2020 and to date, case management of family matters in Brantford has continued to be only virtual. There were delays caused by the pandemic that were unavoidable. The time that results from those delays gave parents involved in child protection proceedings a unique opportunity to address the protection concerns over a greater length of time than they might otherwise have had.
[28] The question is what did Ms. B do with the time she was given? I find that she took the time to take the necessary steps to make meaningful progress in addressing the protection concerns that necessitated the removal of L.R.T. and L.R.T. from her care in July 2019. Ms. B used the time she was given, while being involuntarily held in custody, to consider the choices she had previously made and consciously make an effort to choose a different path.
[29] Time marches on, and regardless of a global pandemic, children continue to need permanency and stability. However, delays in the court process caused by the pandemic must not be allowed to significantly prejudice a parent’s position. A motions judge should not, in my view, place undue emphasis on the length of time a child or children have been in care when deciding a motion for summary judgment if the court proceeding has been delayed as a result of the pandemic.
[30] Although L.R.T. and L.R.T. have been in care for over 20 months, I find that half of that time is due to the delays in the justice system caused by the pandemic. The ten (10) months that Ms. B spent in custody prior to the Crown withdrawing all charges against her is an unusually long period of time given the final result. To the extent to which some of the delay in the child protection proceedings can be attributed to Ms. B. being held in custody, I find that much of that delay was due to systemic delays rather than anything Ms. B did or failed to do regarding moving her criminal charges forward expeditiously.
[31] I also find that there would have been some delay in this proceeding regardless of whether Ms. B had been held in custody. From mid-March 2020 to July 2020, only urgent matters were proceeding in any substantive way. This motion for summary judgment would not have been scheduled for hearing, even if it had been brought, for at least a period of four (4) months. Furthermore, even if Ms. B had been out of custody, I find that it is very likely that her access in the first few months of the pandemic would have been restricted to virtual access only, as the Society was not providing any supervised access for parents for a period of time after the shut-down in March 2020. These limitations, necessary though they were, on parents’ access, put parents at a disadvantage in child protection proceedings, as they were not having any meaningful access and therefore were unable to demonstrate any improvements they may have made or additional parenting skills acquired.
[32] Given the delays caused by the pandemic, I find that the length of time that L.R.T. and L.R.T. have been in care is not as significant a factor as it would have been prior to March 2020. To assess the delay in the same manner as I would have prior to the pandemic, would, in my view, be an error, as much, if not all of the delay in these proceedings since March 2020 is through no fault of Ms. B’s. I find that this motion for summary judgment would not have been heard significantly sooner than it was, despite Ms. B being detained in custody on criminal charges, given the realities of court scheduling and the triaging of urgent matters.
[33] Based on the evidence before me, and my analysis above, I am satisfied that there is a genuine issue for trial on the disposition of this matter and therefore the balance of the Society’s motion for summary judgment is dismissed.
Order
- L.R.T. and L.R.T. will be found to be in continuing need of protection pursuant to s. 74(2)(b)(ii) of the CYSFA.
- The balance of the Society motion is dismissed.