ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 276/03
DATE: 2012/07/23

BETWEE N:

THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION

Paula Ferré for the Applicant

Applicant

• and -

A.L. and M.T.

Keith Newell for the Respondent A.L., and Edward F. Kravcik for the Respondent M.T.

Respondents

HEARD: April 1, 2012.

The Honourable Mr. Justice D.J. Taliano

[ 1 ] This is a motion for summary judgment brought by the Society for an order making LMT (hereafter referred to as “L”), born […], 2010, a Ward of the Crown without access for the purposes of adoption.

[ 2 ] The mother of the child is AL (hereafter referred to as “the mother” or “Ms. L”). The father of the child is MT (hereafter referred to as “the father” or “Mr. T”). Both parents have filed Plans of Care.

[ 3 ] Ms. L has been involved with the Society since October 2002 because of concerns related to her parenting skills, unstable lifestyle, conflict with partners and extended family and her inability to meet the needs of her children. On August 8, 2008, her child, M, was made a Crown Ward without access. On November 4, 2011, after a six day trial, three of her other children were made Crown Wards by order of Scott J., two without access and one with access to the mother. [1]

[ 4 ] Given their history, when the Society learned on September 9, 2009 that the mother was pregnant with L, officials were justifiably concerned. However, Ms. L expressed a desire to work co-operatively with the Society and to access resources and support in order to address past protection concerns that resulted in her losing her other four children. Most importantly, the father also expressed an interest in caring for the child and was willing to co-operate and participate in the services that were being made available to them. The Society was hopeful that together, as a couple, they might be able to parent L.

[ 5 ] A pregnancy planning file was opened in January 2010 and during her pregnancy Ms. L met regularly with support workers in preparation for the future care of this child. However, given the mother’s background, the Society was exercising caution and advised the parents that the Society would be pursuing a protection finding along with the request for a 12 month supervision order to ensure ongoing co-operation until the child reached one year of age.

[ 6 ] The child was born at the General Hospital and without any congenital abnormalities or complications noted.

[ 7 ] As the Society predicted, a Protection Application was initiated and, on June 14, 2010, the child was found in need of protection. An order was made placing the child in the care of Ms. L and the father, for a period of 12 months subject to Society’s supervision. The father was seen by the Society at the time as a risk-lowering factor and a stabilizing element in the mother’s life.

[ 8 ] Arrangements were made for both parents to work with Children’s Services worker, Carly MacVicar, and other personnel from the Niagara Peninsula Children's Center so that the parents could learn strategies to support the child’s development. However, by the end of October 2010, after considerable marital turmoil, some of which was in the presence of the child, Ms. L and the father separated.

[ 9 ] Before and after this time, the mother spoke frequently of moving her residence, both within and outside of the Region of Niagara and this instability in the mother’s living arrangements and future intentions heightened the Society’s concerns.

[ 10 ] Major alarm bells went off regarding this child’s care on February 4, 2011 when Dr. Brar, the child’s doctor, noted delays in L’s gross and fine motor development. The child was not using opposing fingers to grasp an object; he was not exhibiting a supported stand, not pulling to a stand and was not able to get into a sitting position. At a subsequent examination, approximately one month later, the doctor noted that the child was refusing to take weight on his legs, could not get into a sit or pull to a stand and would not stand even with support.

[ 11 ] On April 7, 2011, the Society issued a Status Review Application seeking an order placing L with his mother, subject to supervision for six months and conditions. On April 14, 2011, the Society received a report from Infant Child Development Services of Niagara (“ICDS”) [2] confirming that L was demonstrating a significant delay in his gross motor skills. In addition, a report of Andrea Abbott of the Niagara Peninsula Children’s Centre, dated May 3, 2011, indicated that the child’s muscle tone was low and he scored well below the fifth percentile on gross motor tests.

[ 12 ] ICDS personnel also reported concerns not only about L’s development, but about arguing by the parents in the presence of the child, the mother’s lack of interest in birth control, the mother’s lack of awareness of the child’s cues, unreliable observance of physiotherapy appointments and resistance by the mother to co-operating in the child care placement.

[ 13 ] In addition, in April 2011, the mother advised the worker that she was pregnant with her sixth child by PM. In the worker’s opinion, Ms. L was completely lacking in insight as to how this pregnancy would impact on her care of L, which had already significantly declined after the separation between her and the father.

[ 14 ] On July 5, 2011, the Society amended its Status Review Application to seek an order that L be made a Ward of the Crown without access for the purpose of adoption. In response, the mother sought to have L returned to her care subject to Society supervision. The father served an Answer and Plan of Care seeking to have L placed in his care subject to Society supervision.

[ 15 ] On August 4, 2011, L was brought into care because of the previously noted development delays and the mother’s inadequate care of the child. Since then, L has undergone various medical and physiological tests to determine any biological explanation for his developmental delays, but none have been found. However, testing of the child when he was brought into care confirmed the previously noted delay in his gross motor skills which impacted his skills across other domains. Intermittent testing of L since he has been brought into care indicates that he has made consistent gains admittedly because of several additional services which have been made available to address his issues. These findings are all supported by written reports contained in the continuing record.

[ 16 ] As of April 16, L has been in Society care for a total of 256 days.

[ 17 ] Following the apprehension, arrangements were made by the Society to teach the mother the skills she needed to support the child’s development. However, the mother was not receptive to this involvement, telling the Society that she did not require its assistance since she already had the necessary skills. The access visits were therefore moved to the Society’s office where the mother showed frustration with the child’s behaviour, had difficulty in reading the child’s cues and in responding to his needs. She was also rough with the child and was overly harsh and punitive when he needed direction. When the mother ultimately agreed to accept assistance from the Society, Sharon Morabito, a Child Protection Support Worker, was assigned to work with her on November 10, 2011.

[ 18 ] Although Ms. Morabito was authorized to spend 13, two-hour sessions with the mother and the child, Ms. L frequently cancelled appointments so that only approximately half of the allotted time was actually used by the mother. An affidavit filed by Ms. Morabito, [3] indicates that during the sessions, the mother’s handling of the child was rough, the mother’s understanding of the child’s needs was limited and the mother was frequently frustrated by difficulties presented by the child's behaviour. In due course, the mother asserted that she had already had several children and knew how to care for them and she terminated the sessions on February 26, 2012.

[ 19 ] The foregoing developments are not surprising when one examines the history of this mother. In 2007, Dr. Betty Kershner completed a parenting capacity assessment of the mother, which may be found as Exhibit A to the affidavit of Jessica Kline. [4] In that report, the author expressed the opinion that Ms. L did not have the capacity to care for any of her children. Dr. Kershner concluded that Ms. L was functioning in the borderline range at the third percentile. She testified further that Ms. L was not likely to be able to learn and grow as would be needed in order to properly raise her children. (See page 21 of her report.) She offered that, in her experience, the mother’s cognitive condition was permanent and not likely to change. Dr. Kershner described Ms. L as strong at passive attention but weak at active attention, meaning that the mother can repeat what she has heard without necessarily having understood or absorbed it. She described the mother as weak in some important social skills, specifically seeing trouble coming and knowing how to respond to it appropriately. The doctor noted that Ms. L was not open to intervention, and although she could say some of the right things, she does not really know or want to know what they mean. Dr. Kershner also indicated that Ms. L derived a sense of identity from being pregnant and views her children in terms of their ability to meet her needs.

[ 20 ] Dr. Kershner testified at the previous trial and her testimony, although challenged at that time, was accepted by the court in a lengthy and thorough Judgment that discussed Dr. Kershner’s findings in detail and made Crown Wards of three of her children, two of them, without access.

[ 21 ] The views expressed by Dr. Kershner have since been validated by behaviour exhibited by the mother since 2007. The current evidence is that the mother’s parenting skills have not improved, yet she continues to bring children into the world without any regard for her inability to care for them. She continues to show in this current litigation, the same lack of insight and the same incapacity to properly parent her children that has been the subject matter of past litigation. Her affidavit in support of her Plan of Care does not respond to historical deficiencies in her ability to provide competent parental care. Nor does her material even attempt to explain or defend the development delays that L experienced while in her care.

[ 22 ] It was argued by Mr. Newell, on behalf of the mother, that the reports relied upon by the Society are hearsay and should not be admitted for their truth on a summary judgment motion. It was not argued that the reports are inaccurate. It was not argued that the contents of the reports will be challenged with contrary evidence at a trial. Counsel on behalf of the respondents did not seek an adjournment of the summary judgment motion in order to cross-examine the authors of the affidavits containing the reports. It was simply argued that hearsay evidence should not be used on a summary judgment motion.

[ 23 ] The Society relies on the Supreme Court of Canada decision of Ares v. Venner [5] to support its position that the reports are admissible on this motion. I agree with the Society. In Ares , the court stated:

Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.

[ 24 ] In the present case, the respondents had the right to cross-examine the deponents on their affidavits prior to the return of the motion and chose not to do so. They also had the right to file materials that challenged the findings contained in the reports. They did not do so. Nor did they point out areas of the expert opinions that they would challenge in the event of a trial. The respondents have not disputed the evidence that L is significantly delayed and became so while in their care. They have simply challenged admissibility of such evidence on this motion. That is not good enough.

[ 25 ] The Society has presented a prima facie case entitling it to the relief sought. Without credible evidence that since the last trial, the mother has acquired the skills to properly parent an infant child and that she now presents herself as a responsible alternative to Crown Wardship, her Plan of Care will inevitably fail to carry the day. On a summary judgment motion, the mother has a duty to put her best foot forward in the material and to demonstrate how things have changed. In other words, she must present specific facts that would dispute the already accepted opinion of Dr. Kershner that the mother is not a competent mother or put another way, does not have the parenting skills to care for any child. Only the existence of such evidence would raise an issue that would warrant a trial. However, the mother’s material does not satisfy this requirement. She has presented no evidence that challenges the prior evidence or the prior judgment finding her unfit to parent. She therefore has not presented any facts that require a trial to resolve or adjudicate. There is no realistic possibility of an outcome other than that the Society will be successful in obtaining an order for Crown Wardship for L as against the mother.

[ 26 ] With respect to Mr. T, his proposed Plan of Care is also fraught with problems.

[ 27 ] By way of background, he was previously involved with the Society in 1999 with respect to an ex-partner. He was the biological father of a 13-year-old daughter and it was reported that he had been physically and emotionally abusive to his partner and became easily frustrated when the child cried or was fussy. The Society took the position that his access to the child needed to be supervised and it was supervised over several years.

[ 28 ] In a different context, between 2006 and 2008 the Society was involved with Mr. T and Ms. L in regards to their child, M, with respect to issues involving domestic violence. During that period, Mr. T admitted that he used marijuana, cocaine, crack cocaine and acid. The Society also had concerns regarding Mr. T’s lack of cooperation, his volatility, anger and refusal to exercise access at the Society's office. Concerns about mental health issues were also present. His child, M, was eventually made a Crown Ward without access. The father did nothing to oppose the Crown Wardship of M which raises questions about the legitimacy of his motives with respect to L.

[ 29 ] With respect to the current litigation, it should first be noted that the father resided with the mother and the child for the first six months of the child’s life. During that period, he was supposed to be a co-primary caregiver for this child. Even after the separation, he claimed that he saw the child every day and yet the child was found not only to be significantly delayed during his watch, but he did not even acknowledge the delay when first informed.

[ 30 ] After the Society intervened and the father expressed an interest in being a caregiver, he was required to submit to a police background check. That process produced information which was troubling as it indicated numerous incidents involving assault, drugs, harassment and property damage. The Society sought further particulars and when details were received, it confirmed that Mr. T had 14 previous criminal convictions that included possession of illegal drugs, assault and mischief.

[ 31 ] Ms. Kline met with Mr. T to discuss protection concerns on July 8, 2011, at which time Mr. T advised her that he had been having access to L “almost every day” and that he did not have any concerns about L’s development. His reaction shocked Ms. Kline because, by that time, the child had been diagnosed as having significant gross and fine motor delays, delays in social skills and delays in problem solving skills. When confronted with the facts, Mr. T’s next reaction was to minimize the condition and state that he also had delays as a child. At no time did he admit or acknowledge responsibility for L’s condition.

[ 32 ] Equally troublesome was the information that was forthcoming from Mr. T’s doctor, Dr. C.M. Wong. The doctor’s clinical notes are marked as Exhibit C to Ms. Kline’s affidavit. [6] Mr. T had consulted the doctor regarding his Ontario Disability Support Program (“ODSP”) application. In an effort to enlist support for his application for assistance, he reported to the doctor, on January 3, 2011, that he had not seen a psychiatrist since 1989 and was not taking medication since then. However, he said that he had a behavioural disorder as a child and had spent a good deal of time in jail. He acknowledged the daily use of marihuana. He advised that he was unable to work because he was unable to take orders, follow instructions, perform the required duties and he can only stay a matter of a few days with any job. These same characteristics would impede his ability to properly parent a child. He has mood swings and finds it hard to control his temper and his behaviour when he is not happy.

[ 33 ] On a subsequent visit on April 4, 2011, he added that he sometimes hears voices. Dr. Wong referred him to Dr. I.H. Naqvi, a psychiatrist, for further treatment. Dr. Naqvi’s report is marked as Exhibit H to Ms. Kline’s affidavit. However, the father did not present any evidence that he has pursued treatment for his medical condition from Dr. Naqvi.

[ 34 ] According to this report, Mr. T reported that he has had a long standing history of emotional problems since childhood involving chronic depression, diminished interest, feelings of hopelessness and low energy. As a child, he was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). He reported experiencing child abuse at the hands of both parents leaving him with feelings of detachment and estrangement from others. He also related a history of problems with concentration, focusing, task organization and forgetfulness. He admitted smoking cannabis up to one joint per day over the preceding two years. In addition, he admitted to a history of abuse of cocaine and crack from the ages of 18 to 21.

[ 35 ] As a student, he attended remedial classes and he has experienced severe behavioural problems since early childhood resulting in more than 50 charges, mainly for theft, assault and robbery, between the ages of 15 to 22.

[ 36 ] The doctor concluded that the patient was suffering from chronic symptoms of depression as well as Post Traumatic Stress Disorder (“PTSD”) related to childhood abuse. He suffers from a learning disorder and possible ADHD along with co-morbid drug use. He has antisocial traits as well as limited coping skills. He is socially inept and has limited ability to maintain employment because of the cumulative effect of his mental illnesses. His prognosis was “guarded” and medications were prescribed.

[ 37 ] Although he had been diagnosed to have chronic depression and post traumatic stress disorder, he had not seen a psychiatrist for many years prior to being seen by Dr. Naqvi and has not been back to Dr. Naqvi since March 2011, according to the doctor’s assistant. Although this latter allegation is hearsay and therefore not to be taken into account on a summary judgment motion, nevertheless the extensive medical information that has been filed along with other evidence that will be alluded to, indicates that Mr. T is in extremely fragile mental health. In spite of that, he has filed no evidence as to how his mental health issues are being treated if they are being treated or how he can effectively manage the responsibilities of caring for this child in his condition, other than saying that he is taking his prescribed medications. That is not good enough to support an order placing the care and custody of a significantly delayed child in his hands. Particularly is this so, when Mr. T does not appear to recognize the urgency and gravity of L’s condition even after being told about it. Given his mental health issues and his own troubled background, his ongoing drug use, Mr. T has not demonstrated that he has the capacity to manage a normal child let alone one with L’s complex requirements. On the contrary, the evidence strongly suggests that he lacks the requisite skills to properly parent this child.

[ 38 ] Any placement of this child with this father could only be done in circumstances where the parent was able to work co-operatively with Society officials in managing the child’s needs. However, the evidence indicates that the father has been unable or unwilling to work with Society personnel.

[ 39 ] Between November 2011 and March 2012, Ms. Kline documented the following difficulties she has had with Mr. T. She found that he was reluctant to accept support from the Society with respect to his care of the child, often times abruptly hanging up on workers and being abusive to them when they were attempting to discuss the case with him. On occasions, he has yelled and sworn at Society workers. He is hostile to them and blames them for his personal mental health issues. When he was offered access to mental health services, he refused stating that he did not need assistance, even though it was clear he was unable to manage his frustration and anger. When Society workers strongly urged him to establish a strong support network to assist him with his child care responsibilities, he responded that he did not need such support.

[ 40 ] Between July 2011 and March 2012, the Society expressed their expectations of Mr. T that included his taking a parenting course and cooperating in a drug assessment but his cooperation in respect to these two important areas was not forthcoming or timely.

[ 41 ] Although during submissions on this motion, counsel for Mr. T advised the court that his client was about to start a parenting course on May 2, 2012, he has had plenty of time to take those parenting courses earlier but failed to do so. He explained in his affidavit that he was not able to enrol earlier because of an extensive waiting list. However, in a letter dated April 26, 2012 from the agency who conducts the course, it is stated that “no waiting lists have been experienced by clients interested in participating in the program”. This is clearly hearsay evidence since it is not contained in an affidavit. There is persuasive case law [7] that on a summary judgment motion, hearsay evidence is not admissible, absent proof of reliability and necessity, notwithstanding that Rule 16(5) would seem to contemplate such evidence. The ratio of M.N. may be unnecessarily broad but it is not necessary to decide the admissibility issue for the purposes of this motion because there are numerous other factors that work against the father’s Plan of Care.

[ 42 ] Of prime importance is the fact that the father has not undergone a complete drug assessment. Although he did attend for one session, he has not presented himself for a complete assessment as the Society requested. Mr. T states in his affidavit that he has not used illegal drugs in some time and only uses marihuana occasionally, yet he told his doctor that he smoked a joint every day. The medical evidence suggests that his use may be even more than that. Regardless of the extent of his use, his prolonged and historical use of illegal drugs, his failure to undergo a complete drug assessment and his admission that he continues to use marihuana, preclude the placement of this child in his care.

[ 43 ] In addition, Society personnel have concluded that he does not appear to understand his child’s long-term needs as compounded by the child’s developmental delays. Similarly, the evidence suggests that he lacks the patience and insight to manage the child’s needs. Given his own difficulties, it is not surprising that his capacity for understanding L’s needs is compromised. What is surprising is that a person who asks to be entrusted with the care of an infant needs to be taught how to nurture the most fundamental aspects of the child’s physical development. If he lacks this simple skill, as he most assuredly does, how could the court possibly entrust him with the long term care of this child where the challenges will be even more complex.

[ 44 ] Finally, his plan does not demonstrate any of the support networks that the court would need before it entrusted the care of this infant to the father. In his Plan of Care, the father simply indicates that he has a roommate and “many friends and family as supports to assist him with the care of L if necessary”. He does not provide any other details and this is entirely insufficient to carry the day.

[ 45 ] As previously noted, the burden of proof rests on the Society to make out a prima facie case that it is in the best interests of the child to be made a Crown Ward and to persuade the court that the respondents have not raised an issue that requires a trial to resolve. In opposing this motion, the respondents are obligated to provide a full evidentiary record and put their best foot forward in the material. They are obligated to provide evidence of specific facts showing that there is a genuine issue that requires a trial. Simple denials contained in a self-serving affidavit not supported by specific facts showing a genuine issue that requires a trial are insufficient to defeat this claim for summary judgment.

[ 46 ] In my view, the materials filed by neither of the respondents raise a realistic possibility of an outcome other than that L will be made a Crown Ward.

ACCESS

[ 47 ] When a Crown Wardship order is made, there is a presumption that there will be no access. The onus of persuading the court on a balance of probabilities that the criteria set out in s. 59 have been met rests with the respondents. The question is whether access is beneficial and meaningful to the child. If it is, the court must also determine whether access would impair future opportunities for adoption.

[ 48 ] Neither parent has produced any evidence that access would be meaningful or beneficial to L. The mother’s access was exercised both in her home for a period of time and in the Society’s offices as of September 27, 2011 for two hours per week. The visits have not been constructive because the mother lacks an appreciation of the child’s therapeutic needs. Nor does she show the necessary cognitive skill or disposition to properly care for a child with such complex therapeutic requirements, even in an access setting.

[ 49 ] The father’s access has similarly been limited to two hours per week and although he appears to love this child and wishes to care for him, he lacks the mental health and control over his anger management issues to be trusted to have unsupervised access. His initial failure to recognize the child’s need for therapeutic intervention and his inability to work with the Society makes ongoing access a distraction rather than a benefit for the child. Access would interfere with other more meaningful therapies the child requires.

[ 50 ] Accordingly, the Crown Wardship order of L must be without access.

Taliano J.

Released: July 23, 2012

COURT FILE NO.: 276/03
DATE: 2012/07/23

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION Applicant - and - A.L. and M.T. Respondents REASONS FOR JUDGMENT Taliano J.

Released: July 23, 2012

[1] Yet, another child, S, was apprehended at birth on […], 2011 and is the subject of a Crown Wardship application that has not yet been determined.

[2] Tab 13, Exhibit C

[3] Tab 14 of the Continuing Record

[4] Tab 5 of the Continuing Record

[5] Ares v. Venner , 1970 5 (SCC) , [1970] S.C.R. 608

[6] Tab 12 of the Continuing Record

[7] Children’s Aid Society of Hamilton v. M.N. , 2007 13503