ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-841/07
DATE: 2012-03-8

BETWEEN:

C.A.S. Applicant – and – R.S. (mother) and M.L. (father of XL) and M.S. and B.S. (maternal grandparents) Respondents

Manjeet Singh – counsel for the Applicant

Joel Kerr – counsel for Respondent mother
David Morneau – counsel for Respondent grandparents
No one for ML (father)

HEARD: March 2, 2012

the honourable mr. justice a. pazaratz

[1] The Children's Aid Society of Hamilton ["the Society"] has brought a summary judgment motion within an amended amended status review application in relation to two boys, seven-year-old JS and four-year-old XL. The Society argues there is no need to conduct a seven to ten day trial currently scheduled for June 2012 because there is no genuine issue for trial.

[2] The Society seeks an order that JS be placed in the custody of the maternal grandparents MS and BS pursuant to section 57.1 of the Child and Family Services Act ["CFSA"], with access to the mother RS at the discretion of the maternal grandparents. The identity of JS’ biological father is unknown. ML is the biological father of the younger child XL. The Society asks that ML have no access to JS.

[3] The Society also seeks an order that the child XL be made a ward of the Crown, with no access to either parent.

OVERVIEW

[4] JS has been in the care of the maternal grandparents for more than a year, subject to a supervision order since November 2010. Prior to that JS had resided with the maternal grandparents for a total of approximately 17 months between December 2006 and May 2008. He was in foster care from June 2008 until October 2010. Accordingly JS has not been in the mother's care for almost 5 years – the majority of his young life. The Society argues a custody order will provide JS with the permanency and stability he requires and deserves.

[5] XL has been in the care of the Society since May 30th 2008, approximately 3.5 years, which is well beyond the statutory time limit set out in the CFSA. The four-year-old has been diagnosed with a mild form of Ehlers-Danlos Syndrome which causes hypermobility (loose joints) and skin that can stretch easily. The Society argues that XL requires permanency and stability and it is in his best interests to be made a ward of the Crown without access to the parents. There are no other members of the child's family or community who are in a position to care for XL. The Society's adoption supervisor has confirmed that given his age and current health, there are no limitations to XL being adopted. It is the Society's intention to advocate for an adoptive home for XL that is willing to maintain contact between the brothers and the maternal grandparents.

[6] XL's father ML is 34. He was noted in default on April 11, 2011. He has an extensive criminal record and has serious problems with substance abuse, anger management, and violence. He is not involved in either child's life.

[7] The mother RS is 33. She filed an answer and is represented Mr. Kerr. However she did not file any responding materials in relation to the summary judgment motion. Of approximately 10 court appearances since February 1, 2010 [including settlement conferences, a trial management conference, and two motions brought by the Society dealing with access and placement of the children] JS has only attended one court appearance during the past two years. She also attended the hearing of the summary judgment motion to oppose the relief sought by the Society.

[8] The maternal grandparents MS and BS are represented by Mr. Morneau and filed an affidavit dated December 22, 2011 supporting the Society’s position in relation to each child. The uncontroverted evidence is that JS is thriving in their care. The maternal grandparents clearly have both the ability and desire to provide JS with a permanent home in Kitchener Ontario where they are well settled.

[9] For a period of time the maternal grandparents had also proposed that XL remain in their care. However, largely as a result of their concern about their ability to meet XL’s extensive medical needs, eventually the maternal grandparents withdrew their proposal that XL live with them.

ML’S LAST MINUTE REQUEST

[10] On the scheduled return date of this matter, March 2, 2012, ML attended without counsel and requested that the summary judgment motion not proceed. He said he now wishes to retain counsel to attempt to set aside the April 11, 2011 default order, so that he can participate in the scheduled June 2012 trial. He had never filed an Answer. He simply didn't want the Society’s motion to proceed because he felt that fairness dictated that there should be a trial – and he should be allowed to participate in the trial. He said at trial he hoped to explain to the court how his personal situation has improved.

[11] The mother RS supported ML’s request.

[12] Counsel for the Society and the maternal grandparents strenuously opposed ML's last-minute request that the summary judgment motion not proceed. Ms. Singh and Mr. Morneau noted that no materials had been filed by either RS or ML; timelines for resolution of these children’s lives have long-since been exceeded; and JS and XL require permanence and stability.

[13] As I will set out below, these children’s lives have been on hold for an extended period, while RS and ML have missed multiple opportunities to participate in the process and address very serious parenting and behavioural problems. The summary judgment motion has been properly brought and asks the court to make an important determination of a threshold issue -- is there a genuine issue requiring a trial? To accede to ML’s last minute request for an adjournment – so he can try to participate in the trial – would create further delay, and deprive the Society of an opportunity to have its motion determined on the merits.

[14] I dismissed ML’s request for an adjournment. I then heard the motion, with Mr. Kerr making submissions based on materials filed by the Society and the maternal grandparents (since his own client, the mother, had not filed an affidavit).

THE SOCIETY’S EVIDENCE

[15] The Society’s extensive – and undisputed – sworn materials set out overwhelming concerns about RS and ML, their unhealthy relationship with one another, their respective parenting and lifestyle problems, and the resulting protection concerns in relation to JS and XL. Among the concerns:

a. the relationship between RS and ML has been very tumultuous throughout the Society’s involvement, including several incidents of domestic violence involving police;

b. the efforts of Waterloo Family and Child Services [“Waterloo FACS”] and the Hamilton Society to work with the parents pursuant to service agreements and court orders have been ineffective;

c. The parents contravene and ignore court orders imposed on them, including terms contained in ML's probation orders;

d. The parents fail to recognize the serious risks their volatile relationship poses to the children;

e. The Society has been working with the mother for almost five years with little or no progress respecting her ability to recognize risks and protect the children;

f. The mother has given her relationship with ML priority over the children and there is no evidence that this will change in the foreseeable future;

g. The mother has repeatedly made representations that she has terminated her relationship with ML and that she was keeping the children away from him – only to have it later confirmed that she and ML were back together. Several of those secret reconciliations resulted in further police calls as a result of domestic violence.

[16] The history of these proceedings may be briefly summarized as follows:

[Content continues verbatim exactly as in the source…]

Pazaratz J.

Released: March 8, 2012

C ITATION : CAS v. R.S. and M.L. et al v. 2012 ONSC 1523

ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: C.A.S. Applicant – and – R.S. (mother) and M.L. (father of XL) and M.S. and B.S. (maternal grandparents) Respondents

REASONS FOR JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

Released: March 8, 2012