ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-2209-10
DATE: 2012/09/28

BETWEE N:

THE CATHOLIC CHILDREN’S AID SOCIETY OF HAMILTON

T. Hammond-Grant, for the Applicant

Applicant

• and -

N. C. (Mother)

S. Garcea, for the Respondent

Respondent

• and -

A. J. M. (Father) Respondent

HEARD: September 14, 2012

The Hon. Mr. Justice Harrison S. Arrell

JUDGMENT

INTRODUCTION:

[ 1 ] The Society brings this motion seeking summary judgment to have M.A.C., born […], 2010, made a permanent Crown Ward with no access to her biological parents.

[ 2 ] The mother opposes the motion and seeks to have it dismissed and the matter proceed to trial. The father has not participated in these proceedings and is noted in default.

FACTS:

[ 3 ] N.C., who was born on […], 1990, is the biological mother of M.A.C. and A.J.M., born on […], 1989, is the biological father. Both parents were Crown Wards of the Society; N.C. until May 19, 2011, at age 21, and A.J.M. until October 2008, at age 18.

[ 4 ] N.C. has filed an Answer and Plan of Care asking that the child be placed in her care. The matter is scheduled for trial commencing October 8, 2012 for 5 to 7 days.

[ 5 ] M.A.C. is the only child of N.C. and was apprehended at birth. She has remained in care to date. She is happy, engaged, doing well and meeting all expectations for a child her age. The Society expects no difficulty in having her adopted quickly given her age, good health and not having any known deficits to date.

[ 6 ] N.C. has had only supervised access to M.A.C. which has occurred regularly two times per week for approximately 2 ½ hours per session. She has never been left alone with the child.

[ 7 ] A Parenting Capacity Assessment (PCA) was completed on November 2, 2011. The recommendations of the assessors were that the child should be made a Crown Ward without access. It is regrettable that assessment has not been updated as it is now 10 months out of date.

[ 8 ] N.C. went into care, along with her siblings, in 2000. Without doubt she has had an unhappy and difficult childhood and early medical reports indicate “significant emotional problems”. She was diagnosed with low self-esteem, some self-destructive behaviors, Dysthymic Disorder, and Social Anxiety Disorder. She has had various treatments over the years as a teenager including residential treatment.

[ 9 ] A.J.M. has had a similar youth history as N.C. and indeed his issues may very well be more severe than hers. They met in 2008 and have had an off again on again relationship since that time. At present the evidence would appear to be that A.J.M. has not been in N.C.’s life for the past year. She described her relationship with him as “love-hate” and likened her relationship with him to that of her abusive mother. He has been physically abusive to her and in fact pleaded guilty to assaulting her and was placed on probation, which was breached by the two of them as a result of having continued contact. As well he has been incarcerated for assaulting her.

[ 10 ] The evidence is overwhelming that A.J.M. is a very negative influence in N.C.’s life and indeed likely a danger to her and if M.A.C. was placed in her care unsupervised she as well would be at risk if A.J.M. re-entered their lives.

[ 11 ] The evidence also indicates that N.C. does not appreciate the safety risk posed by A.J.M. and the very negative influence he has had in her life. As well she has been less than forthright regarding her various involvements with him by making a number of contradictory statements to different workers and assessors.

[ 12 ] N.C., through no fault of her own, has not lived alone at any time in her life. I was advised that she was to finally move into her own apartment on September 15, 2012. Prior to that she has lived with a friend C., who has 3 children. Before that she was at St. Martin’s Manor for 8 months prior to the birth of M.A.C. and for a short time thereafter. The reports from that organization are not positive, even though she received significant support and assistance.

[ 13 ] Since leaving St. Martin’s Manor in February, 2011 she has resided with her friend C., D. and their 3 children. They are involved with the Hamilton C.A.S. and N.C. has reported they smoke marijuana in front of their 3 children.

[ 14 ] N.C. has been prescribed Celexa, an anti-depressant, since age 15. She has taken it semi-regularly since then. She has had various forms of counseling from at least that time until present. N.C. reported using this drug, cigarettes and marijuana during her last trimester of pregnancy to help her feel calmer. She received a great deal of counseling and took various courses and programs while at St. Martin’s Manor, to help her ready herself for her new baby. After a period of time she appears to have disengaged regarding many of these forms of assistance.

[ 15 ] Once M.A.C. was born the Society presented N.C. with a number of further programs and services that it wished her to complete. To her credit some have been completed. Significantly, a number were completed prior to the P.C.A. The assessors of the P.C.A. recommended several additional treatments including: psychiatric treatment for depression and substance abuse; cognitive-behavioral therapy; referral to the Mood Disorder Clinic at McMaster Medical Centre. None of these suggestions have been followed by N.C. however, her affidavit does list four other short counseling services she has engaged in since the P.C.A.

[ 16 ] The Society reports that generally N.C. has been co-operative with it.

[ 17 ] In September 2011 N.C. attended counseling for drug and alcohol abuse. During the P.C.A., completed in November 2011, she reported to being “very depressed and I’m starting to get angrier, and using drugs-marijuana to take the pain away”. She reported using marijuana 3 to 4 times a day and occasionally using alcohol. She identified that her drug use can stop her from meeting the child’s needs.

[ 18 ] N.C. advises she has not used drugs for the past 10 months.

[ 19 ] N.C. had prenatal care with both Dr. Namburi and the Maternity Centre. Both reported that they felt N.C. would be unable to parent. The Society received the same concerns from St. Martin’s Manor because it’s staff opined that: a) she would be unable to keep herself and the baby safe; b) she would place herself and baby in unsafe situations; c) she had difficulty problem solving and decision making; d) A.J.M.; e) drugs; f) she had an unrealistic plan about taking the baby into the community.

[ 20 ] A number of Society workers have been involved with N.C. since the birth of M.A.C. It is significant to this court that they have all consistently, and separately, reported similar concerns and problems. These problems have not changed, or improved, to any great extent over the past 21 months despite a great deal of treatment, programs, courses, recommendations, counseling and intensive one on one mentoring.

[ 21 ] The concerns expressed are an inability of N.C. to read the cues of the baby; sometimes not responding to the child; not initiating contact with the child; an inability to initiate new things taught at a previous visit; bonding; being easily manipulated by others even if contrary to the child’s best interests; difficulty dealing with the child’s behaviour and then personalizing that behaviour and inaccurately labeling that behaviour ; an inability to properly discern safety issues with the child; having continued problems with basic child care such as feeding, diapering, and understanding reasons for crying; difficulty adapting to different parenting situations as they arise; and she struggles to solve even minor problems.

[ 22 ] N.C., I conclude, really has virtually no support in the community other than the Society. She has listed her grandmother from Barrie that the Society has concluded, after observing her at access visits, to not be a positive support. She continues to list C. as a support, as well as her foster sisters, A. and J.. A. has advised the society recently that she was not interested in putting forth a plan to care for M.A.C.

[ 23 ] Significantly there are no affidavits from any of the proposed people who allegedly would be a support for N.C. advising the Court of their ability and availability to provide regular and consistent assistance to her and M.A.C.

POSITION OF THE PARTIES:

[ 24 ] The Society’s argument is that the evidence from numerous sources, over a lengthy period of time, have consistently stated that N.C. is incapable of parenting despite all kinds of assistance and support since becoming pregnant and indeed well before that as a Crown Ward. It further argues that there is no evidence that further support or programs will change the current situation such that N.C. could in the foreseeable future be left alone with M.A.C. Having a trial will not change the evidence and the outcome is inescapable that the best interests of the child is to be made a Crown Ward without access. This would allow her to be quickly adopted into a good home, while still relatively young, and giving her the best chance for a promising future.

[ 25 ] Counsel for the respondent argues that many things have changed over the past 12 months regarding N.C. and she has addressed many of the concerns of the Society: she has taken several programs and some counseling since the PCA was done; she has secured full time employment; she has eliminated A.J.M. from her life; she has quit smoking marijuana; she is taking her medication regularly; she has secured her own accommodation; she has a plan and supports in place; the PCA is out of date. Counsel also points out that the PCA states that N.C. is capable of acquiring the knowledge and skills to be able to parent, although no time frame is indicated. He concludes by suggesting that the only way a Court can determine if N.C. has the ability to parent is to have a trial where all the evidence is put forward and tested by cross examination.

THE LAW:

[ 26 ] A motion for summary judgment is available in child protection cases, and the test is that there is no genuine issue for trial.

Family Law Rule 16

[ 27 ] The onus is on the Society to prove on a balance of probabilities through its motion materials that there is no genuine issue requiring a trial. Once that evidence is provided and that prima facie onus is met, it becomes the task of the responding party to lead sufficient and cogent evidence in order to avoid an order for summary judgment.

Children’s Aid Society region of Halton v. K.L.A ., 2006 33538 (ON CA) , [2006] O.J. No. 3958 (C.A.)

[ 28 ] 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 the uncertainty about the child’s future.

J.C.J.-R.V. Children’s Aid Society of Oxford County 2003 2388 (ON SC) , [2003] O.J. NO. 2208, paras. 4 and 6

[ 29 ] “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that sought.

J.C.J.-R. v. Children’s Aid Society of Oxford County , supra. para. 8

Children’s Aid Society of the Niagara Region U.S .C. 2008 52309 (ON SC) , [2008] O.J. No. 3969, paras. 40 and 43

[ 30 ] Summary Judgment is a tool to control a child’s drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child’s needs. The legal process should not be used to “buy” a parent time to develop the ability to parent.

Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ) , [2000] O.J. No. 5853, para. 15

[ 31 ] In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernible from the parents’ evidence that she faces some better prospects than what existed at the time of the Society’s removal of the child from her care and has developed some new ability as a parent.

Children’s Aid Society of Toronto v. R.H. , supra, paras. 18 and 26

[ 32 ] In determining whether there is a triable issue, the court must not speculate as to possible evidence but rather rely on the evidence as disclosed by the affidavits filed with the court. A bold allegation or denial without setting forth facts in sufficient detail to show a genuine issue for trial are not enough. The responding party’s responsibility was to provide a complete evidentiary record in response to a motion for summary judgment and to put their “best foot forward” in the material.

Catholic Children’s Aid Society of Hamilton v. P.B. and K.O.Sr. (December 8, 2008) Hamilton C3-07 at para. 44

[ 33 ] Pursuing and protecting the best interests of the child must take precedence over the wishes of a parent.

Syl Apps Secure Treatment Centre v. B.D. 2007 SCC 38 () , [2007] S.C.J. No. 38, para 45

[ 34 ] A best interests test should have a wide focus encompassing the entirety of the situation and include concerns arising from emotional harm, psychological bonding and the child’s desires. The emotional well-being of the child is of the utmost importance.

Children’s Aid Society of Haldimand-Norfolk v. T.M.A. [2007] O.J. 760, para. 22

[ 35 ] It would be contrary to a child’s best interest to remove her from a stable environment and place her in an uncertain one in which the person required to provide stability for that child has demonstrated a total lack of ability to plan for and create a stable environment for herself and the child.

Children’s Aid Society of Haldimand-Norfolk v. T.M.A . supra, para. 19

[ 36 ] To be able to parent a child a person must do more than simply react to situations, they must be proactive to plan for situations that may arise in the best interests of the child. A person must demonstrate an ability to control their own life effectively and make decisions in their own best interests to demonstrate an ability to do so for a child.

Children’s Aid Society of Haldimand-Norfolk v. T.M.A. supra. paras. 16 & 17

[ 37 ] Once an order for Crown Wardship is made, the onus shifts to the person seeking access to the child to show that access is beneficial and meaningful to the child, and will not impair the child’s future options for a permanent and stable placement. The test is conjunctive and a person must rebut both elements. Recent changes in the legislation opens the door slightly but does not change or reduce either element of the conjunctive test in S.59(2.1) CFSA.

Children’s Aid Society of the Niagara Region v. D.B. [2011] O.J. No. 4956 para. 62 and 66 .

ANALYSIS:

[ 38 ] This court is well aware of the very serious nature and permanency to all parties involved with this type of motion.

[ 39 ] The evidence allows me, however, to come to no other conclusion but that there is no issue for trial. The best interests of 21 month old M.A.C. clearly lies in being permanently placed for adoption with no access by her natural parents.

[ 40 ] I come to this inescapable conclusion as a result of a number of factors. Those include the recommendation of the assessors of the P.C.A. This 66 page report is thorough and exhaustive. The assessors are experienced. I acknowledge their comment, as pointed out by respondent’s counsel, that N.C. can acquire the knowledge and skill necessary. They go on to state… “However, it is the application of the skills and knowledge on an ongoing basis that determines a parent’s capacity to parent. There is no evidence at this time that the mother is capable of implementing the knowledge and skills as evidenced during the observation of the parent-child interaction and as per what was reported by The Society’s workers and the results of the Parenting Stress Index.”

Parental Capacity Assessment, Nov. 2, 2011, page 44

[ 41 ] There continues to be no evidence that N.C. is capable of implementing those skills she has been shown and indeed no evidence as to when she might be capable, if ever.

[ 42 ] I also accept the evidence of the various experienced social workers who have been involved with N.C. over a substantial period of time both while pregnant and after the birth of M.A.C. Their observations are consistent with each other, detailed, thorough and agree with the conclusions of the PCA. Significantly, counsel for the respondent did not make submissions challenging their evidence. I have also considered N.C.’s history, the choices she has made over the past few years and the consequences of those choices.

[ 43 ] I have considered at length the evidence of N.C. and the lack of evidence of anyone else on her behalf, in particular people who would be available for support. I have concluded that her plan to care for the child is vague and unrealistic. At present she is working full time and mostly at night. There is no evidence before me as to how she would care for the child while working or whether she would quit her job and if so what economic considerations would then apply. I am to assume she has put her best foot forward on this motion so I conclude this evidence has either not been thought out or is not available.

[ 44 ] N.C. has been provided with a huge amount of support since her pregnancy became known. She has had treatment, counseling, courses, work programs, one on one mentoring; some before the P.C.A. and some after. All to no avail. Certainly there have been improvements to her life—she has an apartment; she has held down a full time job at a pizza shop for a period of time; she appears to be off drugs for the time being and likewise at present A.J.M. is not part of her life. She is to be congratulated for accomplishing these positive steps in her life.

[ 45 ] The fact remains, however, that despite all of the professional support she has received and the improvements in her life personally, her parenting skills have not improved. She has been told repeatedly what to do, how to do it, why she needs to do it. Despite all of that help and mentoring she still cannot be left alone with the child and there is no evidence before me of any foreseeable change to her lack of parenting ability.

[ 46 ] I have also concluded that the respondent has not demonstrated that continued access would be beneficial and meaningful to M.A.C. It might certainly be helpful to N.C. but that is not the test. There is no evidence that such access would be “advantageous” or “significant”. More is required than love or the display of love.

Children’s Aid Society of Hamilton v. W.M. 2009 ONCJ 466 () , [2009] O.J. No. 4052 , para 49

[ 47 ] M.A.C. is young, happy and healthy and I conclude very adoptable. That would obviously change if access were to continue. I conclude that the respondent has not shown that the child’s future options for a permanent and stable placement would not be impaired by continued access. Indeed, I conclude they would be impaired as future adopting parents would not want to be involved if the biological mother continued to have access.

[ 48 ] I therefore conclude there is no triable issue and it is plain and obvious that a trial will conclude that M.A.C. continues to be in need of protection and that it is in her best interest to be a Crown Ward with no right of access and placed for adoption as soon as possible. I further conclude that N.C. has not led sufficient or cogent evidence that would avoid an order for summary judgment issuing.

[ 49 ] The motion of the Society is granted and M.A.C. will be made a Crown Ward without access. Any previous access orders to the child shall be terminated.

ARRELL, J.

Released: September 28, 2012

COURT FILE NO.: C-22-09-10
DATE: 2012/09/28

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: THE CATHOLIC CHILDREN’S AID SOCIETY OF HAMILTON Applicant - and - N.C. (Mother) Respondent -and- A.J.M. (Father) Respondent REASONS FOR JUDGMENT ARRELL, J.

Released: September 28, 2012