COURT FILE NO.: 557/06
DATE: 2012 07 03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of the County of Lanark and the Town of Smiths Falls
AND:
B.B.[1], G.M., S.M.T.T. and M.L.S.
BEFORE: The Honourable Mr. Justice R. F. Scott
COUNSEL: Nicola Edmundson, for the Applicant
Anne-Marie Langan, for the Respondent, B.B.[1]
Cameron Croxall, for the Respondent, M.L.S.
Gordon McDiarmid, Children’s Lawyer
HEARD: June 21, 2012
E N D O R S E M E N T
[1] This is a motion for Summary Judgment by the Applicant, Family and Children’s Services of Lanark, Leeds and Grenville (the CAS) dealing with the future of four children namely, G.B. (D.O.B. […], 2000), D.T. (D.O.B. […], 203), H.T. (D.O.B. […], 2003) and A.T. (D.O.B. […], 2006).
[2] Nicola Edmundson represents the CAS, Anne-Marie Langan represents B.B.[1], the mother of the children, Gordon McDiarmid for the Office of the Children’s Lawyer represents the children, Cameron Croxall represents M.L.S., the paternal grandmother of the three youngest children and the mother of S.M.T., the natural father of these same three children and G.M. is self-represented and is the common-law spouse of B.B.[1], the mother of the children.
[3] Mr. B.B.[2] is the father of the eldest child, G.B., however, he has never been involved in her life and is not a party.
[4] Mr. S.M.T. is the natural father of the three youngest children and although represented initially in this matter, his current whereabouts are unknown, and he did not take part on this motion.
[5] J.B. (D.O.B. […], 1995) is another child of B.B.[1], is not part of this matter and is over the age of sixteen and resides on a full time basis with B.B.[1]’s brother and sister-in-law, J. and K.B..
[6] The four children G.B., (G.B.), D.T. (D.T.), H.T. (H.T.) and A.T. (A.T.) were apprehended by the Frontenac Children’s Aid Society (Frontenac) on April 6, 2010. At that time, the youngest child, A.T. was 3 ½ years of age.
[7] D.T. was placed in the care and custody of M.L.S. subject to an interim supervision order made on April 9, 2010.
[8] G.B. was placed with J. and K.B. on April 9, 2010 subject to an interim supervision order.
[9] H.T. and A.T. have been in care since their apprehension.
[10] To date, all four children have been out of the care of B.B.[1] for over two years.
[11] As indicated, the apprehension which commenced this action originated with Frontenac, however, in March of 2011, after B.B.[1] and G.M. (G.M.) moved away from Kingston to a location some distance north and west of Perth, the file was transferred to the Lanark CAS which such agency recently merged with the Children’s Services of Leeds and Grenville (CAS).
[12] The CAS has had what could be best described as ongoing involvement with the B./T. family dating back to 2002 during which time, the Lanark CAS opened nine investigations regarding a pattern of neglect of the children’s basic needs which included unsafe conditions, chronic domestic abuse by Mr. S.M.T. against B.B.[1] as well as chronic alcohol and drug use.
[13] In 2006, prior to the birth of A.T., the other four children including J.B. were taken into care by the Lanark CAS.
[14] After the birth of A.T. in 2006, the Lanark CAS returned the children to B.B.[1] only to have the same issues re-emerge particularly as a result of Mr. S.M.T.’s actions against B.B.[1].
[15] In the winter of 2008, the Lanark CAS brought a status review application seeking termination however before the matter could be dealt with by the court, the conditions in the home deteriorated which resulted in another six months supervision order.
[16] This cycle was repeated in December 2008 however at this time B.B.[1] sought custody of all five of her children on the basis that Mr. S.M.T. was to have no access to the children, a plan supported by the Lanark CAS given the history of violence.
[17] A short time later, J.B. went to live with J. and K.B. with the blessings of the Lanark CAS.
[18] B.B.[1] and the four remaining children moved to Kingston in 2009 and B.B.[1] took up with Mr. G.M..
[19] Frontenac CAS assisted the family from July 2009 until the children were apprehended in April of 2010, for virtually the same concerns as were found in 2006 except that the source of the domestic violence is reported to be Mr. G.M. as opposed to Mr. S.M.T..
[20] As it relates to the concern of domestic violence the facts before this court suggest that in 2010 following an incident of domestic violence occasioned upon B.B.[1] by Mr. G.M., B.B.[1] invited Mr. G.M. to return. As well, there continued to be concerns of substance abuse and a general lack of hygiene in the home.
[21] As a result, the four children were apprehended by Frontenac as indicated earlier with G.B. being placed with her uncle and aunt, J. and K.B., where her brother J.B. also resides, D.T. resides now with his paternal grandmother, M.L.S. and the two younger children, H.T. and A.T. reside now in a foster home where the family wishes to adopt them.
Post 2010 Apprehension
[22] The CAS continue to have concerns about the cleanliness of the home and the situation with family pets and certainly not least in importance, the continuation if any of domestic violence particularly in the presence of the children. Perhaps the key issue for the CAS is that B.B.[1] continues the relationship with Mr. G.M. despite the evidence that suggests that this relationship is not a healthy environment for the children and appears to be repetitive of the B./T. relationship with similar predictable results.
[23] The CAS by affidavit indicates that recently the worker Ms. Ratzinger was not allowed into the home of B.B.[1] and G.M. because B.B.[1] and G.M. had concluded that Ms. Ratzinger would only be visiting their home to further the CAS plan to have the children removed permanently or, words to that affect.
[24] The reports from the workers and counselors involved regularly with the children indicate that the children are working through their previous issues and each have expressed the desire to remain within their current respective homes.
[25] The children have all indicated that it would be beneficial to them to have regular sibling visits.
[26] In support of the position of the CAS, I received material and submissions from Mr. Gordon McDiarmid, from the Office of the Children’s Lawyer who largely confirmed the CAS findings and plans for these children. I was impressed by the thoroughness of his interactions with each of the children in various environments and with his recommendations.
[27] Similarly, Mr. Cameron Croxall, counsel for M.L.S., although clearly representing the interests of Mrs. M.L.S. and D.T., was remarkably fair in putting forward the issues associated with this matter.
[28] Anne-Marie Langan, counsel for B.B.[1] put forward her client’s position by way of B.B.[1]’s affidavit sworn June 12, 2012 which sets out that the CAS is basically picking only that evidence which supports its position to put before the court. She has spoken of the many positives contained in the various reports and lastly, indicates that were her client given the opportunity to call a number of counselors and other individuals who have worked with B.B.[1] and S.M.T. over the last two years, the court would be able to clearly find that this family is worth saving as a unit and, at the very least, the two youngest children should be returned to the care of B.B.[1] and her common law partner, G.M.. Ms. Langan submits that there exists a triable issue and given what is at stake, the future of a family, the summary motion should be dismissed.
[29] G.M., the common law spouse of B.B.[1] is self-represented. He addressed the court himself and, I was impressed with his intelligence and his speaking abilities. He acknowledged his shortcomings including an horrendous criminal record dating back to 1992 as a youth through to a recent impaired driving conviction. Such record included two offences for robbery, the last of which resulted in a three year penitentiary sentence which when he was released, he re-offended and was recommitted.
[30] He told the court that he is prepared to call a number of counselors, neighbours and friends who would testify that he has changed and that his relationship with B.B.[1] is good and positive. He indicated that he wished to call in particular Louise Clairmonte, his former Probation Officer who would advise the court of his progress.
[31] G.M. addressed the court and on the discrepancies in the various affidavits of the CAS as well as the select matters presented by the CAS which reflected adversely on B.B.[1] and G.M. but not on the positive material also found in most of the reports brought before the court.
[32] G.M. asked that he and B.B.[1] and the children be allowed a trial because there is a lot at stake
Other Issues
[33] Clearly one of the central issues in this proceeding is the twenty-six month delay since the children were apprehended. The delay would appear to favour the CAS in that the children are now accustomed to their present home environments and appear to be flourishing without their mother or G.M.. Certainly as time goes by, the focus of these childrens’ lives results in a diminished capacity for their natural mother.
[34] Correctly, the CAS blames a portion of the delay on B.B.[1] and G.M. moving from Kingston to their current home, a move that necessarily transferred the file from Frontenac to this CAS. However, this only accounts for a part of the delay.
[35] One is left pondering whether things might have been different had the proceedings gone forward in a more efficient and timely manner.
[36] Without regards to the merits of any particular case where children are in need of protection, the parents are usually at a distinct disadvantage from the outset for many reasons including financial and educational factors.
[37] I realize that one of the goals for the CAS is to reunite the family as quickly as possible if it is in the best interest of the children, however, where the return of the children is determined not to be an option early on in the proceedings, any delay particularly in the range experienced here, is counter productive.
[38] In this situation, the CAS, in seeking a summary judgment, wish to maintain the status quo relating to the current homes for the respective children. Although argued, time is not really critical on this motion give these circumstances.
[39] Although it would be beneficial to have immediate closure, I find that any time delay associated with the trial proceeding is not real factor.
Summary Judgment
[40] I agree with the case law provided by the CAS relating to the test or concerns to be considered by a judge hearing a motion for summary judgment in child welfare cases.
[41] In all such cases, I am reminded of the words of Justice Stanley Sherr in CAS Toronto v. E.E. when he wrote at paragraph 18:
“A Crown wardship order is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies.”
[42] Having taken a good hard look at the materials and listened to the submissions of the parties, I am not convinced that there does not exist a triable issue. Motion dismissed.
[43] This matter must move to trial without delay and I would ask counsel for the CAS in consultation with the other parties to seek direction from the Perth Trial Coordinator immediately for the purposes of setting trial dates.
[44] I wish to thank counsel for their able submissions.
Scott, J.
DATE: July 3, 2012