SUPERIOR COURT OF JUSTICE - ONTARIO

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of I. K., born […], 2007 and A. K.(2), born […], 2010

RE: The Children’s Aid Society of Ottawa v. C. D. and A. K.

BEFORE: Mr. Justice Paul Kane

COUNSEL: Judith Hupé, for the Children’s Aid Society of Ottawa

Audra Bennett, for the Mother, C. D. (Ms. D.)

Kristen L. Robins, for the Father, A. K. (Mr. K.)

E N D O R S E M E N T

[ 1 ] This is a motion by the Children’s Aid Society of Ottawa, (“Society”) dated December 2, 2011 for summary judgment placing the children I. K. and A. K.(2) in the care and custody of the Society as wards of the Crown. Counsel advise that the trial of this application cannot proceed before September, 2012. The originating application is dated July 20, 2011.

[ 2 ] I. K. is currently 5 years of age. He has been in the custody of the Society for the last 581 days since October 15, 2010. A. K.(2) is presently 2 years of age. She has been in the custody of the Society for the last 512 days since October 21, 2010.

[ 3 ] Ms. D. is the biological mother of seven children, namely:

1. C. D. - 11 years of age,
2. D. S. - 8 years of age,
3. K. D. - 7 years old,
4. I. K. - 5 years old,
5. T. K. - 4 years old,
6. A. K.(1) - 3 years old,
7. A. K.(2) - 2 years old.

[ 4 ] Ms. D. no longer has any of these children in her care.

[ 5 ] D. S., C. D. and A. K.(1) were until recently in the care of the maternal grandmother. They were apprehended from the home of the maternal grandmother in January, 2012 by the Society. Mackinnon J. in a decision dated March 20, 2012, returned the two boys to the maternal grandmother subject to terms and a condition that the grandmother’s son and dog vacate her home. Mackinnon J. awarded temporary care and custody of A. K.(1) to the Society and to remain in foster care. The request that she be returned to the care of her maternal grandmother was currently refused.

[ 6 ] K. D. is in the care of her maternal aunt and uncle, C. B. and J. B.

[ 7 ] T. K., I. K. and A. K.(1) were apprehended by the Society in March, 2011.

MOTHER

[ 8 ] Ms. D. has a history of tumultuous relationships with several male partners. She struggled with depression related to her experience as a youth. She is consenting to the Society’s application for permanent Crown Wardship of I. K. and A. K.(2), consents to this summary judgment motion in that regard and opposes these two children being placed in the care and custody of Mr. K.

FATHER

[ 9 ] Mr. K. is the father of the four youngest above children and until recently resided in Windsor Ontario. He has had limited contact with his children. In his defence dated February 20, 2012, he seeks custody of I. K. and A. K.(2) under supervision of the Society and/or access.

[ 10 ] In his defence, Mr. K. states that the proposed residence in Ottawa for himself and these children and their daycare are matters to be determined. He states that his plan is to apply for social assistance in order to provide for the children. His mother resides in Ottawa and is proposed by Mr. K. as a future source of emotional and moral support as well as child care as needed.

[ 11 ] Mr. K. and Ms. D. began their relationship in 2005. They lived together. In April, 2009, Ms. D. was in hospital with the birth of A. K.(2). Mr. K. was at home caring for I. K. I. K. awoke, went outside and was found by a neighbour while Mr. K. slept. The Society became involved and apprehended the children. It had several concerns including his failure to care for the children and possible use of drugs.

[ 12 ] Mr. K. and Ms. D. ultimately agreed to place I. K. and T. K. in the temporary care of the Society. Mr. K. also agreed to Ms. D.’s request that he leave the home to improve her chances to regain custody of the children. His departure was in June, 2009. Ms. D. then learned she was expecting the birth of their daughter A. K.(2). Mr. K. has never seen this daughter. There is therefore no past or existing relationship between this father and this daughter.

[ 13 ] Mr. K., following June, 2009, became involved in another relationship thereby ending his relationship with Ms. D. He learned of Windsor child protection proceedings involving his children from a prior relationship, so he moved to Windsor in the summer of 2009. The Society complains of difficulty contacting Mr. K. in Windsor and his refusal to provide them with an address while residing there.

[ 14 ] Mr. K. states he commuted occasionally from Windsor to Ottawa between June and October, 2009 and when in Ottawa, stayed with Ms. D. and the children. He states he has since communicated with I. K. from Windsor via telephone and internet. The Society responds that under his terms of bail Mr. K. is prohibited from communicating with Ms. D. and the children and he therefore is either breaching bail or misstating his contact with I. K. and A. K.(2).

[ 15 ] Ms. D. and Mr. K. had a fight in October, 2009. He was charged with assault as a result. The criminal trial of that matter was scheduled to proceed in November, 2011. It is now scheduled to proceed in December, 2012. His terms of release on bail prohibit communication with Ms. D. Mr. K. resumed his residence in Windsor upon his release on bail. The Crown has told Mr. K. that upon a conviction, it will be seeking 90 days incarceration plus probation.

[ 16 ] Mr. K. states he was unaware of the Society’s apprehension of I. K. and A. K.(2) in October, 2010. Upon so learning, Mr. K. decided to not get involved, apparently in compliance of the request of Ms. D. that he not do so. He states Ms. D. later advised him that she anticipated the children would ultimately be returned to her.

[ 17 ] Mr. K. states he remained uninvolved in these proceedings until told by Ms. D. in October or November of 2011 that the Society was seeking wardship of the children and there was nothing either of them could do to prevent that from happening. Mr. K. spoke to the Society at that time and knew that the children were in its custody. He thereupon retained counsel and obtained an order extending the time to file a defence which was filed in February, 2012.

[ 18 ] Mr. K. moved to Windsor in 2009. He stated to the Society in 2011 that he was unable to provide his residential address in that community as he had no current permanent address.

[ 19 ] Mr. K. states that he moved back to Ottawa on January 1, 2012, and reported to police as he had failed to attend his trial of the above criminal charge of assaulting Ms. D. The trial had been scheduled to proceed in November, 2011. He states he did not attend that trial because he could not afford the transportation cost to Ottawa. He pled guilty to failing to appear in court for the trial and was sentenced to 17 days incarceration as a result.

[ 20 ] Mr. K. admits that he use to have a drinking problem which led to his arrest and conviction in 2005 for assaulting his former partner on two occasions. Mr. K. fathered three children with his former partner. He admitted to the Windsor Society that his then partner in 2005 during an argument was seriously assaulted for speaking rudely to him. He denies other allegations of assaulting his partner in 2010 and throwing a glass at his step-daughter. He served two periods of incarceration for two 2005 convictions.

[ 21 ] The three children of this former relationship were apprehended several times by Children’s Aid in Ottawa or Windsor but were ultimately returned to their mother. Mr. K. refused a request of the Society at the time that he be examined by a psychiatrist. He does not know the whereabouts of these three children and has lost contact with them.

[ 22 ] Mr. K. is confident he no longer has a problem with alcohol and states that he has not drunk alcohol since 2005. He denies consuming drugs or having a gambling problem. He admits to convictions for robbery, assaults and resisting arrest.

[ 23 ] Mr. K. does not allege that he provided any financial child support to Ms. D. between 2005 and 2009. He states that his mother and brother provided some child support to Ms. D.

[ 24 ] Mr. K. on February 28, 2012 began an anger management program. He rejected participation in such a program in October, 2011 when it was recommended by the Windsor Society to him. A case worker with the Windsor Society has expressed fear and the need to develop a safety plan if Mr. K. returns to Windsor because of her past negative reports about him.

[ 25 ] Mr. K. began an alcohol education program on March 12, 2012, which provides information as to how to drink responsibly however he states that he does not currently drink and in fact has not done so since 2005. The author of the letter from the Windsor Society records Mr. K. telling her that he has not consumed alcohol since May, 2010.

[ 26 ] Mr. K. is enrolled in a parenting course scheduled to begin April 11, 2012.

[ 27 ] Mr. K. has obtained part time (20 hours per week) employment in a restaurant. His plan is to live with his mother or grandmother with I. K. and A. K.(2) until he can afford to get his own place. He states his mother or other family member or friends can care for the children while he works.

[ 28 ] The Ottawa Society expresses concern about the lack of care and involvement provided by Mr. K. to the children since returning to Ottawa. These actions include sleeping while the children are in his care, appearing in underwear upon the arrival of the Society worker and not taking necessary steps to provide a limited level of household cleanliness during his care of or in the presence of the children.

[ 29 ] Mr. K. points to the fact that prior to his mid-2009 separation with Ms. D., the Society took custody of but then returned the children to this couple. He points out that it was only after the parental separation that the Society removed and did not return the children to the mother’s care. Accordingly, he argues that the Society acknowledges that the problem parent is Ms. D. and not himself.

[ 30 ] The father filed an affidavit by his brother, A., who is 21 years old. A. will be studying medicine in China commencing in September, 2012. A. has been supportive and occasionally present in the lives of I. K. and A. K.(2) over the past year or two. A. states that he originated telephone calls to Mr. K. so the children could talk to their father while he babysat the children for Ms. D. Mr. K. relies upon these calls originated by his brother to demonstrate he has remained in contact with the children since 2009.

[ 31 ] Neither Mr. K. nor his brother provided information as to the frequency of these calls placed by this brother. A. gives no details as to the frequency of contact he originated with the children prior to this motion.

MATERNAL GRANDMOTHER

[ 32 ] Mr. K. points to s. 57(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, (“CFSA”) and faults the Society for not assessing the placement of the children with the paternal grandmother as an alternative to wardship.

[ 33 ] The paternal grandmother has not filed a plan of care. She has not filed an affidavit on this motion communicating such consent. There is no evidence she has contacted the Society since 2009 and proposed her custody of the children rather than foster care. She did not, since their apprehension in 2010, ask to visit the children while they were in the Society’s care.

[ 34 ] The Society has in the past been involved and taken temporary protection measures regarding the paternal grandmother and children in her home who are siblings of Mr. K. That grandmother had a tumultuous relationship with her partner requiring involvement of the Society. Under his terms of bail, Mr. K. is required to live with his mother. The Society has expressed concern to the paternal grandmother against Mr. K. supervising his two younger brothers, aged 8 and 11 without the presence of this paternal grandmother. The grandmother and Mr. K. have undertaken to not allow this to happen.

[ 35 ] The additional problem with Mr. K.’s offering of his paternal grandmother is the Society’s imposition of the above restriction that Mr. K. not be alone to care for the children. This complaint against the Society for not evaluating the paternal grandmother is form over substance.

A. K.(2)

[ 36 ] The Society affidavits report that A. K.(2) is doing very well in her current foster parents’ home and has shown marked improvement since her apprehension in October, 2010.

I. K.

[ 37 ] I.K. seems to be developing as expected for a child of his age since in the care of the Society in October, 2010.

ISSUES

[ 38 ] The Society argues that there are no genuine issues requiring a trial.

[ 39 ] Mr. K. argues that the issues requiring a trial are the following, namely:

(a) Whether the father was historically involved with the children;

(b) Did the father remain in contact with the children in 2009 and 2010?

(c) Ms. D.’s evidence against the father is untrue and should not be relied upon which is what the Society has done and that will be demonstrated in a trial; and

(d) Credibility as to the above issues may only be determined with a trial.

[ 40 ] As in every case alleging the children are in need of protection and a claim of Crown Wardship, the underlying issues are:

(1) Are the children in need of protection?

(2) Is the disposition sought by the Society in their best interests or is there another disposition that is in their best interests?

LAW

[ 41 ] Rule 16 of the Family Law Rules, O. Reg. 114/99, mandates this Court to make a Final Order where there is no genuine issue requiring a trial. This is clearly indicated by the use of the word “shall” in sub-rule 16(6) of the Family Law Rules. Specifically, this Court must make a Final Order if the evidence does not disclose a genuine issue requiring a trial. (Children’s Aid Society of Hamilton v. A.(M.), 2007 CarswellOnt 3977, para. 60; Children’s Aid Society of Toronto v. H.(R.), 2000 3158 (ON CJ), 2000 CarswellOnt 6170 (Ont. Ct.); Children’s Aid Society of Ottawa v. M.C., 2003 67754 (ON SC), 2003 CarswellOnt 9373 (Ont. Sup. Ct.) p 2.)

[ 42 ] The nature of the evidence, the reasonableness of potential plans, and the statutory timeframes are all relevant to whether or not there is a genuine issue for trial. A proper consideration of “a full evidentiary record” is necessary for a “good hard look” at the evidence on the motion. (B.(F.) v. G.(S.), 2001 28231 (ON SC), 2001 CarswellOnt 1413 at para. 19 and Children’s Aid Society of Ottawa v. M.C., supra, at paras. 10 and 11).

[ 43 ] The existence or non-existence of a fact, which is not determinative of the result of the proceeding, is not a fact material to an action requiring a trial. (Children’s Aid Society of Ottawa-Carleton v. A.C., [2007] O.J. No. 1322 (S.C.) at para. 6).

[ 44 ] If the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child’s future. (R.A. v. Jewish Family and Child Service, [2001] O.J. No. 47 (S.C.) at para. 20).

[ 45 ] The onus is on the moving party, the Society, to show that there is no genuine issue requiring a trial. Summary judgment may be granted where there is no substantial evidence on an issue, where the evidence that is tendered is too incredible to be accepted by reasonable minds, or even if accepting its truth, it is without legal probative force. (Children’s Aid Society of Ottawa-Carleton v. A.C., supra, paras. 8 and 10).

[ 46 ] Where the moving party presents a prima facie case for summary judgment, the responding party must provide evidence to rebut that case. (Children’s Aid Society of Ottawa v. M.C., supra, at para. 11).

[ 47 ] If the Society presents a prima facie case, the parents must on a motion for summary judgment put their “best evidentiary foot forward” to demonstrate that there are the material facts in dispute and/or there is an issue of credibility requiring a trial in order to prevent summary judgment. A responding party must not rest on the mere allegations or denials of the party’s pleadings, but must set out in affidavit material or other evidence. (Children’s Aid Society of Hamilton v. A.(M.), supra, para. 65 and B. (F.) v. G. (S.), supra, para. 13).

[ 48 ] The nature of the evidence, the reasonableness of any potential plans, and the statutory time frames are all relevant to whether or not there is a genuine issue requiring a trial. (B. (F.) v. G. (S.), supra, para 19).

[ 49 ] Since October 2010, the two children in issue have been in foster care far in excess of the one-year statutory limit. That status will have lasted two years if this trial can proceed in September, 2012.

[ 50 ] As to the two children in issue, Mr. K. since this couple’s separation in April, 2009 has been absent as a parent. He has never seen A. K.(2) since her birth in 2010. Attempting to blame Ms. D. as justification for absenting himself from these children’s lives and their needs for three years is insufficient and demonstrates his lack of maturity and failure to assume his involvement and responsibilities as a parent.

[ 51 ] I. K. and A. K.(2) are his children. Regardless of what his former partner asked of him, and independent whether he was served by the Society with papers in the application, this father has for over three years ignored these children and absented himself from their care and needs.

[ 52 ] By his own admission, Mr. K.’s contact with the children was so infrequent that he was not aware for a considerable time that the children had been in custody since October, 2010. These are known facts and no trial is going to change this reality.

[ 53 ] Regardless of his consumption of alcohol or whether he consumed drugs in the past, Mr. K.’s contact with the children since 2009 has been miniscule and next to non-existent. He could have sought amendment to his terms of bail to permit contact and access to the children. He is responsible for not doing so and has not alleged he applied and was denied such relief.

[ 54 ] He could have since 2009 approached the Society seeking access in some form to see his children and/or present a plan of care prior to the eve of this motion. Instead he files an Answer stating he has no home, no income, and no plan regarding daycare.

[ 55 ] On this motion, Mr. K. files an affidavit stating he now has part time employment without stating his income level and discloses no plan to increase his employment or income level. His affidavit states that because of his lack of income, he must live with his grandmother who has two other children less than 12 years of age to care for or live with his mother about whom this Court has no information beyond the fact that two of her children must reside with the grandmother.

[ 56 ] Mr. K.’s affidavit establishes that he has lost contact with his three other children from his former relationship but for some reason, I. K. and A. K.(2) are very important to him and he wants custody of them after a three year absence. He did not seek Society permission to see them until late February, 2012.

[ 57 ] Mr. K. admits that he has physically assaulted at least one of his former partners and has spent time in jail as a result. He seeks a trial to claim custody in this matter in September, 2012 but faces a December, 2012 trial for assault which was not worth showing up for in November, 2011 when that trial, and any possible incarceration resulting therefrom could, by September, 2012, have been behind him. Instead, these children must remain in foster care until September, 2012, in the hope that Mr. K. can win custody and then possibly have the children return to foster care for up to nine months during his possible incarceration.

[ 58 ] Mr. K.’s current course undertakings ring shallow after his refusal to participate in the same in November, 2011. These children’s needs for their father existed then and not just now. His present legal counsel I suspect is to be commended for providing sound advice to take these courses in order to evidence some responsibility for his actions and inaction on the eve of this motion. His current attitude versus his attitude in November, 2011 when he refused such program is problematic and relevant on this motion.

[ 59 ] A trial will not alter any of the above facts and their impact on the lives of these children. Mr. K., for whatever reason, has not since 2009 done what is necessary to place his own life in order and develop sufficient maturity to assume the responsibility to care for children he brought into this world. He has been content to waste his time and abilities at the expense of his children. To suggest now, after three years and his history, that these children should be subjected to his continued instability and lack of maturity in the “hope” that he might turn his life around is nothing other than prioritizing his wishes ahead of the best interests of these children.

[ 60 ] Children’s needs and developmental requirements are constant and cannot be parked and ignored over extended periods of time while parents consider whether they have the capacity or inclination to protect and care for them. I. K. and A. K.(2) have already waited too long for this to occur.

[ 61 ] Returning to the father’s statement of genuine issues requiring a trial:

(a) Historical involvement with these two children as an issue does not alter the father’s absence and lack of engagement for the last three years as demonstrated on the evidence.

(b) The father’s level of contact with these two children in 2009 and 2010 is contained in the father’s evidence when he established that his brother, when babysitting the children for Ms. D., would call the father to allow the children to talk to him. Mr. K. presents no other evidence as to his efforts or the frequency of contact originated by his brother or himself. The responding party on a motion for summary judgment cannot remain silent or coy on an important issue and then use his own failure to disclose relevant information on a summary judgment motion as proof that a trial is needed.

(c) Ms. D.’s July 25, 2011 affidavit is irrelevant to this motion. No trial is needed to deal with inconsistencies in affidavit evidence by these two parents. Their principal contradiction relates to points (a) and (b) about which there is direct evidence or an absence thereof from the father.

[ 62 ] In summary, the issues identified by the father do not give rise to a genuine issue in a wardship case requiring a trial.

[ 63 ] Since the creation of Rule 16 of the Family Law Rules, the availability of summary judgment in child protection proceedings is no longer considered an extraordinary remedy only to be granted in the clearest of cases. (Children’s Aid Society of Toronto v. M.(P.), 2002 53206 (ON CJ), 2002 CarswellOnt 1883, paras. 6 and 7). The issues of intention and relationship to the children are not matters of credibility that require a trial. (Children’s Aid Society of Ottawa-Carleton v. A.C., supra, para. 12).

[ 64 ] Considering all of the evidence before me, I regretfully come to the conclusion that it is now too late under the legislation and too late given the immediate needs of these children, to allow this parent further time for personal development and treatment. These children cannot wait any longer.

[ 65 ] I am satisfied on the evidence that I. K. and A. K.(2) are in need of protection pursuant to s. 37 of the Act.

[ 66 ] The Society has established a primary case for wardship.

[ 67 ] Mr. K.’s own evidence establishes that the best interests, protection and well-being of these two children under s. 1 and considering the circumstances listed in s. 37(3) of the Act, is not with their father and his personal issues which prevent him being capable of caring for and supporting himself, let alone the care of a five year old and a two year old. There is no genuine issue requiring a trial as to this question.

[ 68 ] No alternate plan with any detail has been placed before the Court. The Society has already expressed concern and taken steps regarding the two younger siblings now living with the paternal grandmother if Mr. K. resides there.

[ 69 ] Having found no genuine issue requiring a trial, I grant this motion for summary judgment and determine that I. K. and A. K.(2) are to be made permanent wards of the Crown and shall remain in the care and custody of the Society.

Kane J.

DATE: April 20, 2012

COURT FILE NO.: FC-03-485
DATE: 2012/04/20

SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of Ottawa v. C. D. and A. K
BEFORE: Mr. Justice Paul Kane
COUNSEL: Audra Bennett, for the Mother, C. D. (Ms. D.)
Kristen L. Robins, for the Father, A. K. (Mr. K.)

ENDORSEMENT
Kane J.

DATE: April 20, 2012