ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-10-1720-2

B E T W E E N:

The Children’s Aid Society of Ottawa

Deborah Rosefield, for the Applicant

Applicant

• and -

K.L. and J-M.R.

Kristen Robins, for K.L. and Wendy Rogers (by her agent, Ms. Naik) for J-M.R.

Respondents

HEARD: April 27, 2012

Amended Reasons for Judgment – Motion for Summary Judgment

This is an amendment to the Reasons for Judgment released May 4, 2012. The amendment occurs at para. 12.

Aitken J.

Nature of Proceedings

[ 1 ] The Children’s Aid Society of Ottawa-Carleton (“the Society”) has brought a Summary Judgment motion seeking an order placing J.R-L. (D.O.B. […]) in the sole legal custody of her father, J-M.R., with supervised access to her mother, K.L. For the reasons that follow, I grant the motion, subject to the conditions explained below.

[ 2 ] The Society has a history with K.L. dating back to 2004. There have been three previous file openings: March 2004, September 2008, and July 2009. The Society’s concerns included J.R-L. (and her older sibling, who now lives with his maternal grandmother) being exposed to serious domestic violence, substance use by both parents, K.L.’s poor mental health, and K.L.’s instability. K.L.’s addiction problems date back to when she was 14 years old and was already dealing drugs. She did this for many years but was eventually caught and incarcerated for trafficking cocaine and for reckless driving. During her period of incarceration, K.L. received some drug and alcohol treatment programs. Over the years, K.L. has also suffered from some psychiatric problems – though the specific nature of those problems remains vague. By 2009, K.L. was reporting that she was seeing a psychiatrist on a regular basis for depression and anxiety.

[ 3 ] The file was opened once again on March 18, 2010 as a result of an incident of domestic violence between J-M.R. and K.L., for which J-M.R. plead guilty and received 18 months probation. From March 18, 2010 to July 2010, the Society worked voluntarily with the family. On July 27, 2010, J.R-L. was apprehended due to K.L.’s crack cocaine use, her neglect of J.R-L., and her putting J.R-L. at risk when she was using drugs. The police had to assist the Society in apprehending J.R-L. because K.L. refused to give her up.

[ 4 ] On January 24, 2011, Blishen J. found J.R-L. to be a child in need of protection. She determined that it would be in J.R-L.’s best interests, and the least disruptive alternative, to be placed in the care and custody of her father, J-M.R., for five months, subject to the supervision of the Society. A minimum of one visit a week with K.L., supervised at the discretion of the Society, was ordered.

[ 5 ] On September 9, 2011, James J. ordered that J.R-L. be placed in the care and custody of J-M.R. for a further four-month period, subject to the supervision of the Society. K.L. was granted access at the discretion of the Society a minimum of twice a week. If K.L. missed two consecutive visits or 50% of the visits in a two-week period, then access would be solely at the discretion of the Society.

J-M.R.’s Suitability as a Custodial Parent

[ 6 ] Throughout the course of the Society’s involvement with the family since March 2010, J-M.R. has worked cooperatively with the Society and he has addressed the Society’s concerns in regard to his alcohol and drug use, medical issues, and violent behaviour.

[ 7 ] More particularly, J-M.R. has engaged in the New Directions Program for anger management and has received addictions counselling from the Sandy Hill Community Centre, Rideauwood Addiction, and Family Services. In October 2010, J-M.R. cooperated in providing a hair strand for analysis with negative results. There is no evidence that J-M.R. is currently abusing drugs or alcohol.

[ 8 ] Furthermore, J-M.R. has participated in the Society’s Family Support Program and has been active with J.R-L.’s day care, the Foster Farm head Start Day Care Centre. As well, over the course of his involvement with the Society, J-M.R. has come to realize the significant challenges facing K.L. as a parent; namely, her mental health problems, her drug use, and her instability. He is now showing a willingness and ability to protect J.R-L. from the risks K.L. poses.

[ 9 ] The child protection worker visited J-M.R.’s home in December 2011, January 2012, and February 2012. She observed J.R-L. to be happy in his care and J-M.R. to be using interventions with J.R-L. appropriate for her age and stage of development.

[ 10 ] Wendy Miron from Foster Farm Daycare advised the Society that J.R-L. attends their full-day program on a regular basis, she appears happy and well cared for, and J-M.R. is cooperative with the program.

[ 11 ] J-M.R. has enrolled J.R-L. in full day kindergarten in the fall of 2012. She is also enrolled in swimming and soccer lessons this spring.

[ 12 ] J-M.R. has significant health problems – he is awaiting a double lung transplant. The Society has done a preliminary kinship assessment of Y.L., J.R-L.’s godmother. It is currently J-M.R.’s plan that if he is hospitalized, becomes incapacitated, or dies, J.R-L. would reside with Y.L. Currently, Y.L. babysits J.R-L. twice a week with the Society’s knowledge and consent.

[ 13 ] J-M.R. provided evidence that at the present time there is another woman and her two children staying with him and J.R-L. on a temporary basis. The Society has approved this arrangement on a temporary basis. J-M.R. also acknowledges that he used to be a smoker but recently stopped smoking. More will be said of both of these points shortly.

[ 14 ] The Society has no continuing concerns regarding J-M.R.’s parenting of J.R-L.

Concerns Regarding K.L.’s Parenting Capacity

[ 15 ] In the months following J.R-L.’s apprehension, the Society encouraged K.L. to seek counselling for her addictions, and to ensure that she was getting the psychiatric help she required. K.L. complained of being all alone, or not having the support of her family, of feeling overmedicated, and of not being able to do anything other than sleep and feel depressed. The protection worker asked to meet with K.L. and her psychiatrist, but K.L. was reluctant to have such a meeting. From time to time, K.L. stated that she was not taking her medication. At these times, she was overly emotional and unable to function.

[ 16 ] In the fall of 2010, K.L. missed many access visits with J.R-L. K.L. stated that it was her mental illness which prevented her from consistently attending visits. K.L. was observed to be scattered and unfocused during visits. K.L. stated that this was due to the medication she was taking which made her appear to be intoxicated. On occasion, when K.L. attended for meetings or access visits at the Society, she was observed to slur her words and not have good balance.

[ 17 ] By November 2010, K.L. was on the waiting list for an addictions treatment program at the Royal Ottawa Hospital. Otherwise, she had been unable to arrange any treatment programs for her addictions. Shortly before Christmas, K.L. was offered a spot in the program. She declined it and instead went back on the waiting list and simply attended a weekly appointment. Subsequently, she vacillated as to whether she would or would not attend a program at the Royal Ottawa Hospital.

[ 18 ] By February 2011, K.L. was attending addiction counselling and individual counselling at the Western Ottawa Community Resource Centre. At the time, K.L. was living with a male whom she described as “a pervert and watches porno films all the time”. On February 3, 2011, K.L. reported to an access supervisor that she had been assaulted the previous evening. When the child protection worker contacted her, K.L. said that she had been assaulted by the police the previous weekend when they arrested her and charged her with assaulting a police officer. On the same day, K.L. said that she was not comfortable living with her current female roommate, whom she knew possessed a gun, and who she labelled “a pot head”.

[ 19 ] On February 7, 2011, K.L. stated that she had called the Mood Disorders Clinic at the Royal Ottawa Hospital to request an appointment; however, within a couple of days, she was advising the child protection worker that she did not want to attend any substance abuse program or mental health program at the Hospital. She also refused to arrange an appointment for the child protection worker to meet with her and her psychiatrist.

[ 20 ] By February 2011, J.R-L. was observed to urinate on herself prior to and during access visits with her mother. The behaviour appeared to relate to her anxiety in regard to those visits, during which K.L. was poor in setting boundaries and presented as being jittery and scattered. In February 2011, K.L.’s visits with J.R-L. were again reduced to once a week.

[ 21 ] On a number of occasions during communications with the child protection worker, K.L. stated that she had multiple personalities.

[ 22 ] By April 2011, K.L. had moved in with her mother – a situation that was not positive for her mental health.

[ 23 ] From May 7 – 27, 2011, K.L. attended the Nipissing Detoxification and Substance Abuse Program in North Bay. Upon her return to Ottawa, she arranged for counselling at the Western Ottawa Community Resource Centre in regard to addictions, mental health, and violence against women. It came to the Society’s attention in August that K.L. had attended only about 50% of her scheduled appointments with her addiction counsellor and had stopped attending altogether in July. In August 2011, K.L. advised the protection worker that she had hurt her back in an accident at work and would be taking time off from counselling and programs. She continued to have sporadic attendance at meetings at the Society.

[ 24 ] In September 2011, the Society assisted in getting K.L. registered in the Beyond the Basics Parenting Program. By October 6, 2011, K.L. had missed two in-class sessions in the program and one access visit. K.L. had not called J.R-L. in three weeks, and was regularly missing access visits. By November 2, 2011, K.L. had missed seven sessions of the Beyond the Basics Parenting Program. The program coordinator recommended that K.L. not continue in the program. K.L. did not want to continue, claiming that she had been going through a depression. K.L.’s access to J.R-L. was again reduced to once a week due to her sporadic attendance.

[ 25 ] In November 2011, K.L. took to making threatening and aggressive phone calls to J-M.R. He suspected that K.L. had relapsed and was again using drugs when she had access to some money. K.L. refused to complete a drug screen. She also refused to let the protection worker speak to her family doctor.

[ 26 ] In the fall of 2011, the child protection worker advised K.L. on a number of occasions that the Society would be consenting to J-M.R. having sole custody of J.R-L. K.L. stated that she would not consent to this arrangement, even though she acknowledged that she personally had to get better before she could care for J.R-L.

[ 27 ] K.L. acknowledged to J-M.R. after the Christmas holidays that she had relapsed and had used drugs recently. Into the new year, K.L. continued to report on various mental health problems she was experiencing, on the significant memory loss she claimed to have suffered as a result of her work-related accident, and on her general state of poor physical and emotional health. Her attendance at access visits was sporadic, and she did not attend a number of scheduled appointments with the protection worker.

Motion for Summary Judgment

[ 28 ] Pursuant to r. 16 of the Family Law Rules , O. Reg. 114/99, after the respondent has served an answer or after the time for serving an answer has expired, a party in child protection proceedings may make a motion for summary judgment for a final order without a trial on all or part of any claim made. 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. 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. If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[ 29 ] The Society has brought a motion for summary judgment. In support of that motion, it has filed two affidavits of a child protection worker, Ivana Ljubic, and an affidavit of the father, J-M.R. He is consenting to the Society’s motion.

[ 30 ] The mother, K.L., has not filed any evidence in response to the motion for summary judgment. At the hearing, the mother’s counsel advised that the mother had just called her with instructions to seek an adjournment because the mother was having a nervous breakdown. She called back claiming she was having a stroke. The mother’s counsel tried her best to make submissions relevant to the motion for summary judgment but, in the absence of any evidence presented by her client, could not respond in specifics to the detailed and uncontroverted evidence provided on behalf of the Society and the father.

[ 31 ] I am satisfied, based on the evidence presented on the motion, that there is no genuine issue for trial. The evidence satisfies me that the least intrusive measure that would meet the best interest of J.R-L. is to place her in the sole custody of her father, J-M.R., pursuant to s. 57.1 of the Child and Family Services Act , R.S.O. 1990, c. C. 11 subject to these conditions. If the woman and two children who are temporarily living with J-M.R. have not found alternate accommodations by July 1, 2012, the Society shall conduct a follow-up assessment to determine whether there are any protection concerns in regard to J.R-L. were the woman and children to remain in J-M.R.’s home on an indefinite basis. Secondly, J-M.R. shall have custody of J.R-L. on condition that he not smoke or allow anyone else to smoke in-doors at their residence or in any vehicle when J.R-L. is present. K.L. shall only have supervised access to J.R-L. – such access to be supervised through the community supervised access program offered through Family Services Ottawa or through any other agency or individual acceptable to the Society.

Aitken J.

Released : May 22, 2012