COURT FILE NO.: FC-860-08
PERTH, ONTARIO
ONTARIO
SUPERIOR COURT OF JUSTICE
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 D.D.D.D. (d.o.b.) […], 2011
B E T W E E N:
FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE
Heather Morrison, for the Family and Children’s Services of Lanark, Leeds and Grenville
Applicant
- and -
J. D.
T.S.
Wendy Rogers, Nasu Naik for the Father J.D.
Audra Bennett, for the Mother, T.S.
Respondents
HEARD: May 26, 2012
McMunagle J.
REASONS FOR RULING ON MOTION FOR SUMMARY JUDGMENTS
[1] The Family and Children’s Services of Lanark, Leeds and Grenville (“the Society”) bring this motion, pursuant to Rule 16(6) of the Family Law Rules, O. Reg. 114/99. The Society’s motion seeks an Order for Summary Judgment for a Final Order without a trial, for the relief set out in the Child Protection Application issued on August 24, 2011. Specifically, the following order is sought:
- That the child D.D. (d.o.b. […], 2011), be made a ward of the Crown and be placed in the care of the Society.
INTRODUCTION
[2] The child, D.D. (d.o.b. […], 2011), was apprehended from the Smith Falls Hospital by the Society on August 20, 2011. On August 25, 2011, she was placed in the temporary care and custody of the Society, pursuant to an Order of Belch J.
[3] The biological father of D.D. is J.D. (d.o.b. […], 1983). J.D. is represented by Wendy Rogers, who was represented by her agent, Vasu Naik. J.D. wishes that the child be returned into the care of J.D. and T.S.
[4] The biological mother of D.D. is T.S. (d.o.b. […], 1990). T.S. is represented by Audra Bennett and, likewise, wishes that the child be returned into the care of J.D. and T.S.
[5] Apart from the child D.D., J.D. and T.S. are also the birth parents of two other children, M.D. and J.H.D.
[6] M.D. (d.o.b. […] 2, 2008) was found to be a child in need of protection and made a ward of the Crown and placed in the care of the Children’s Aid Society of the County of Lanark and the town of Smith Falls, by Final Order of Hackland J., dated February 5, 2010, following argument of a motion for Summary Judgment.
[7] J.H.D. (d.o.b. […], 2010) was apprehended following his birth by the Catholic Children’s Aid Society of Hamilton, Ontario. He resided in the care of that Society until he was made a Crown ward on March 21, 2011.
[8] The court was also advised, at the hearing, that T.S. is pregnant and that the couple is expecting their fourth child sometime towards the end of October 2012.
[9] The mother and father have each filed an Answer and Plan of Care, in response to the Society’s Child Protection Application.
FACTUAL BACKGROUND
[10] The Society has had previous involvement with J.D. when he was a child. As an adolescent, J.D. was found guilty of the following criminal offences:
Sexual Interference - s. 151 of the Criminal Code (x3); Invitation to Sexual Touching - s. 152 of the Criminal Code (x3); Anal Intercourse – s. 159 of the Criminal Code (x2); Assault with a Weapon – s. 267(a) of the Criminal Code; Uttering Threats – s. 264.1; Sexual Assault – s. 271 of the Criminal Code.
CHILD PROTECTION PROCEEDINGS INVOLVING M.D.
[11] As an adolescent, J.D. took a number of children into the woods to play the game “Truth or Dare.” Some of these offences also occurred in his residence. For these offences, J.D. received a sentence of 12 months open custody, followed by two years probation. As part of a prior child protection proceeding regarding M.D., J.D. participated in a Sexual Behavior’s Assessment with Dr. Anthony Eccles. The assessment was requested by the Society to determine what risk, if any, J.D. might pose to his son.
[12] Dr. Eccles’ Assessment Report is dated June 28, 2009. It should be noted that, at p. 10 of his report, Dr. Eccles concluded that the Phallometric Testing results and J.D.’s history are consistent with pedophilia of the non-exclusive type. Furthermore, at p. 11 of his report, Dr. Eccles concluded that J.D.’s risk of reoffending in a violent manner is deemed to be in the “high risk range.”
[13] In this case, among the issues of concern, as identified by Dr. Eccles, are that despite J.D.’s admissions regarding his sexual behavior problems, J.D. does not appreciate the need for future risk management strategies. J.D. also underestimates the challenges presented by his paraphilic proclivities. Dr. Eccles describes J.D. as deficient in his problem solving skills, which will hinder his efforts to maintain stability. Furthermore, Dr. Eccles notes that J.D.’s conduct while under supervision is troubling and that he does not appear to be supported by a partner who is able to offer consistent and stable support in overcoming his problems. At pp. 11-12 of his report, Dr. Eccles goes on to state that:
J.D. faces a lot of stressors in his life at present and his lack of employment renders him with a lot of unstructured time on his hands. His history is suggestive of a predisposition to sexual preoccupation. Moreover, he is sexually responsive to children, which is particularly problematic in light of his impulsive nature.
The greater number of negative clinical/dynamic factors relative to positive ones in this case is regarded as being consistent with moderate-high risk for a future sexual offence.
[14] It was Dr. Eccles’ opinion that combining these three components of risk – risk of sexual recidivism, risk of violent recidivism and clinical/dynamic risk factors – J.D. ought to be regarded as being consistent with a moderate-high risk for a sexual offence.
[15] Dr. Eccles went so far as to confirm, in his report, that he would not be in a position to support unsupervised access of J.D. with his son. Dr. Eccles stated that J.D. should not participate in activities such as bathing the child, changing diapers, or applying any creams/lotions below the waist. Dr. Eccles also indicated in his report that the aforementioned risk could be managed if J.D. was supervised by a competent and responsible adult.
[16] On August 13, 2009, with the consent of the parents, Quigley J. signed a Final Order making the child, M.D., a ward of the Society. M.D. would be a ward of the Society for a period of six months and, thereafter, he would be placed in the care and custody of the Society.
[17] J.D. and T.S. failed to attend a number of scheduled visits with M.D. in July and August 2009, resulting in the visits being suspended. The parents failed to follow up with their assigned worker. On September 15, 2009, the Society worker received the information that J.D. and T.S. had moved to Hamilton, Ontario.
[18] On December 1, 2009, the Society received a call from a public health nurse in the Hamilton Region, advising that she had received a referral for T.S. and her partner J.D., as they were expecting a child. A referral was made to the Hamilton Children’s Aid Society, who, subsequently heard from the Catholic Children’s Aid Society of Hamilton, that they were involved with J.D. and T.S. and were seeking information with regard to any child protection concerns.
[19] On February 5, 2010, M.D. (d.o.b. […], 2008), was found to be a child in need of protection and made a ward of the Crown and was placed in the care of the Children’s Aid Society of the County of Lanark and the Scott Falls.
CHILD PROTECTION PROCEEDINGS INVOLVING J.H.D.
[20] The child, J.H.D., was apprehended by the Catholic Children’s Aid Society in Hamilton on […], 2010, on the day of his birth.
[21] The case summary dated March 24, 2011, prepared by child protection worker, Becca Kadir, of the Hamilton Children’s Aid Society, reported the following:
(a) J.D. had discontinued counselling and had not participated in any treatment and had advised Ms. Kadir that he would not participate in treatment.
(b) The state of the home was deplorable, smelling of urine, feces and other unknown smells and extreme filth. There was no heat in the home.
(c) The couple was not consistent with attending access visits with their son.
(d) J.D. had been observed as being demeaning to T.S., teasing and making fun of her. The relationship appeared to be neither supportive nor healthy.
(e) J.D. does not recognize or understand the threat that he poses to children.
(f) The Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”) had attended the home and removed several pets, both living and deceased. J.D. and T.S. face a number of animal cruelty criminal charges. The OSPCA is seeking a “lifetime ban” on the couple from having animals, due to the condition and treatment of the couple’s pets.
[22] On March 21, 2011, J.H.D. was made a ward of the Crown and placed in the care of the Catholic Children’s Aid Society of Hamilton.
CHILD PROTECTION PROCEEDINGS INVOLVING D.D.
[23] J.D. and T.S. returned to the Lanark, Leeds and Grenville area on or about June 7, 2011. On June 7, 2011, the Society received a call from a worker with the Hamilton Catholic Children’s Aid Society, advising that T.S. had returned to the Lanark jurisdiction and was expecting to give birth to a child in […] 2011 and that, to the worker’s knowledge, T.S. had not had any pre-natal care.
[24] J.D. and T.S. resided in a tent on a RV site at the Lake Park Lodge for approximately one month. They had three dogs, four kittens and some spiders as pets.
[25] On August 3, 2011, a Society worker observed J.D. and T.S. riding bikes in Perth, Ontario, carrying an end table and lamps. The worker met with the parents in their home. They had a four-month old puppy, a cat that had just had two kittens and a bird. J.D. said that, “they had four spiders, but got rid of them.” T.S. stated that J.D. would get drunk, take the spiders out of their cage, and the spiders would bite him, causing his arm to swell and go numb.
[26] The worker also spoke to J.D. about his alcohol consumption. At that time, he stated that he had cut back on his drinking from a “forty ounce bottle” on the weekend to having two “twenty-six once bottles” last for the month. T.S. stated that J.D. spends his money on alcohol and that she receives the same amount of money and plays Bingo with her mother.
[27] J.D. advised this same worker that he was willing to see Dr. Eccles again and start counseling, but only if the Society was willing to pay for it. The worker noted that the Society needed to look at the likelihood for change in the family. However, the worker found that the coupled seemed to be following the same patterns as she had observed in the past. There were still several animals in the home; the condition of the home was concerning; their housing situation was unstable; neither was involved in counseling; and J.D. continued to abuse alcohol.
[28] J.D. and T.S. have continued to keep pets, although their care of pets appears to have improved since their return to the Lanark jurisdiction. They maintain that the charges filed against them by the OSPCA in Hamilton were dismissed. However, the Lanark Society worker was advised on March 28, 2012, by Ms. Kadir of the Hamilton Children’s Aid Society, that J.D. and T.S. were supposed to be in court on that day for their trial on animal cruelty charges; both were not present at the trial. Ms. Kadir further indicated that the trial judge postponed the trial until July 2012.
[29] As of April 20, 2012, J.D. and T.S. have two dogs, a cat, and one guinea pig in the home. T.S. advised that the other pigs died of “old age.”
[30] As of mid-February 2012, the parents have not yet gotten in touch with any community collaterals in order to address the protection concerns. J.D. advised that he called Dr. Bradford of the Brockville Psychiatric Hospital the week before and that he would call him again. J.D. discussed his concerns about the Phallometric Testing, maintaining that it was not accurate, and that he would not undergo such testing again. T.S. advised that she was trying to get counselling through TriCounty Addition Service (“TriCAS”) for a possible Bingo/gambling addiction, but she had not called or spoken to anyone yet. Although, she has called Telehealth Ontario. The Society worker reminded J.D. and T.S. of the timelines regarding children residing in care as set out in the Child and Family Services Act, R.S.O. 1990, c C.11 [CFSA]. The Society worker reminded the parents that if they needed any assistance in accessing service, such as a letter of support, that she would be willing to provide that. The worker and J.D. discussed the cost of his treatment and the Society offered that it would look into the issue of cost should J.D. need assistance with payment.
[31] The Society worker then attended the parents’ home on April 20, 2012. J.D. did not meet with the worker during this visit. T.S. advised that she had not yet been to TriCAS and that there had been no action taken with respect to connecting with Dr. Bradford.
[32] T.S. is currently pregnant. She advises that she and J.D. are attending Healthy Baby group every Tuesday from 1:00 p.m. to 3:00 p.m., and that she is receiving pre-natal care through Dr. Kerner in Smith Falls.
ACCESS VISITS FOR D.D.
[33] J.D. and T.S. are the parents of D.D. The parents’ initial attendance at visits with D.D. can be fairly described as inconsistent. They indicated to the Society Child Protection support worker that they were unable to attend scheduled visits in early September 2011 because they had plans to hitchhike to Canada’s Wonderland, and were attending the Perth Fair.
[34] The access visits were scheduled for one hour per week. As of November 9, 2011, the visits moved to two hours in duration. It should be noted that the Society provides volunteer drives for the parents, from Perth to the Society office in Smith Falls, where the visits occur. In other words, there is no economic impediment preventing J.D. and T.S. from visiting their daughter, D.D. Based on her observations, the Society Child Protection support worker supervising the access visits has concluded that J.D. and T.S. “appear to find two hour visits too long.” The couple took a number of smoke breaks during the visits. J.D. was seen using his cell phone and texting during the visits. Until February 2012, the parents consistently wanted to get D.D. ready to leave the visits ten to 15 minutes earlier than was necessary.
[35] However, this same Society Child Protection support worker also made a number of positive observations, which included the following:
(a) J.D. and T.S. washed their hands prior to holding D.D. and before preparing her bottle.
(b) J.D. and T.S. take turns when meeting D.D.’s needs during access.
(c) T.S. continues to provide the majority of the care and continues to do all diaper changes for D.D. J.D. has made some improvement in this area, as he will feed D.D. and play with her on the floor.
(d) The Society Child Protection Support worker who supervises the visits has encouraged and modeled interaction with D.D. She has observed that the parents are able to interact for “brief intervals”, but at times struggle with keeping the momentum of interaction with D.D.
(e) The parents have purchased and brought clothing for D.D. to their access visits.
[36] This same worker has also made a number of observations that give her cause for concern including:
(a) J.D. and T.S. often talk about their personal life during access visits and discuss the turmoil between their family members. Often, they seem preoccupied and not entirely focused on maintaining a positive interaction with D.D.
(b) J.D. has admitted that, at times, he and T.S. look after other people’s children, despite their being advised on several occasions that they cannot be in a caregiving role to any child at this time.
(c) J.D. has been observed as generally less engaged in the visit than T.S. At times, eye contact between T.S. and D.D. is limited.
(d) Despite being told that he must refrain from texting and smoking during the visits, J.D. continues to do both. T.S. did stop smoking when asked, with the exception of the visit on August 25, 2012, when she left the visit to go have a cigarette.
(e) The parents require encouragement to sustain interactions with D.D. and have only recently shown “some improvement” in their ability to do so.
(f) The parents have a limited ability to pick-up on D.D.’s cues and then respond appropriately.
[37] D.D. has been residing in the care and custody of the Society since […], 2011, the day after her birth. On October 17, 2011, D.D. moved to a concurrent foster home placement.
[38] D.D. is developing well, both emotionally and physically. She receives regular medical care. The Society worker has observed that D.D. seems to have a very good connection with her foster mother, who has been described as “very alert and engaging.”
[39] The Society’s plan is for D.D. to be adopted by her current foster family where she has been residing since October 17, 2011.
J.D. AND T.S.’ PARENTING SKILLS
[40] J.D. and T.S. have taken the Healthy Babies course, in order to assist them with parenting and are open to further suggestions from the Society.
[41] J.D. and T.S. are of the view that they have been attending the access visits with D.D. “consistently”.
[42] The Society acknowledges, through their workers, that there has been “improvement” to J.D.’s and T.S.’s parenting skills, as well as their openness to other ideas and suggestions by the Society.
[43] The parents have been observed tending to D.D.’s needs, attempting to soothe her when she is fussy, and listen to suggestions from the Society’s worker.
[44] T.S.’s individual interactions with D.D. have been described as positive. T.S. was observed to be a caring and observant mother, successful in meeting her daughter’s needs.
[45] J.D. and T.S. are of the view that if given the opportunity to spend more time with their daughter, D.D., they would be able to “practice their parenting skills” and, thus, show greater signs of improvement.
[46] J.D. and T.S. disagree with the results of the aforementioned assessment conducted by Dr. Eccles. J.D. is of the view that he can control his “attractions” and, most importantly, from both J.D. and T.S.’s perspective, there have been absolutely no allegations against him of any sexual improprieties for the last 13 years.
[47] J.D. has been unsuccessful in obtaining counselling from Dr. Eccles, and/or Dr. Bradford, from the Royal Ottawa Hospital. However, he was advised that Dr. Eccles is not taking any new clients and Dr. Bradford is only available on a private retainer basis, which is not financially foreseeable for J.D. J.D. indicates that he is willing to seek such counselling services, provided the Society funds the counselling.
[48] T.S. has indicated that she now realises the crucial importance of pre-natal care and she has been engaged in pre-natal care at Dr. Kerner’s office and at “Connection” and will follow all recommendations made by them.
[49] J.D. and T.S. concede that their apartment was dirty when D.D. was apprehended in August 2011. Since then, the Society has observed, on several occasions, that J.D. and T.S.’s apartment has been in an acceptable state and their pets appear to be in good health.
[50] J.D. and T.S. have also indicated their desire to maintain a stable, clean and safe home for D.D. They have also stated that, if recommended by the Society, they will cease to care for any animals in their home.
THE ISSUES
Has the Society shown that there is no genuine issue requiring a trial, in order to make a finding that the child, D.D., is a child in need of protection?
Has the Society shown that there is no genuine issue requiring a trial, in order to make the order that it is in the child’s best interests to be made a Crown ward?
THE LAW
General Principles
[51] The paramount purpose of the CFSA is to promote the best interests, protection, and well being of children. As such, the focus of any case must be the needs and interests of the child. An additional purpose of the CFSA is to consider the least disruptive course of action that is available and appropriate in a particular case to help a child.
[52] The CFSA also identifies purposes in addition to the paramount purpose, but only to the extent that they are consistent with the best interests, protection and well-being of the child.
SUMMARY JUDGMENT
[53] A motion for summary judgment may be made in a child protection case. The responding party may not rest on mere denials or allegations, but must set out the specific facts showing that there is a genuine issue requiring a trial (Family Law Rules, Rules 16(1) & (4.1)).
[54] Rule 16 of the Family Law Rules mandates the court to make a final order where there is a finding of no genuine issue requiring a trial. This is confirmed by the use of the word “shall” in Rule 16(6) of the Family Law Rules (Children’s Aid Society of Ottawa v. C.(S.), 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 (Sup. Ct.), at paras. 5-7; Children’s Aid Society of Toronto v. A. (M.), 2006 CanLII 1671 (ON SC), [2006] W.D.F.L. 924, 145 A.C.W.S. (3d) 276 (Sup. Ct.), at para. 5.)
[55] Himel J. in F.B. v. S.G. (2001), 2001 CanLII 28231 (ON SC), 199 D.L.R. (4th) 554, 104 A.C.W.S. (3d) 893 (Ont. Sup. Ct.), at para. 26, has held that a “genuine issue” must relate to a material fact or facts.
[56] As per a recent appellate jurisprudence, which will be discussed shortly, Summary Judgment has been granted in family law matters that amount to the “clearest of cases.” Typically, the cases have been child protection cases where the facts unequivocally demonstrate that the children are “in need of protection” (C.(S.), at para. 10; F.B., at para. 14).
[57] As per Lane J. in R.A. v. Jewish Family and Child Service, [2001] O.J. No. 47, 102 A.C.W.S. (3d) 554 (Sup. Ct.), at para. 23, the test for granting a summary judgment is whether there is an issue of fact requiring a trial for its resolution and not whether it is “the clearest of cases”.
[58] Where the moving party presents a prima facie case for summary judgment, the responding party must provide evidence to rebut that case (C.S., at para. 11).
[59] Before granting summary judgment, the court must review the entire evidence with a “good hard look”, to evaluate the nature and strength of the appellant’s case (CAS of the Regional Municipality of Waterloo v. T.L.H., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028 (O.C.J.), at para. 5).
[60] On January 1, 2010, a number of important amendments to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, came into effect. Arguably the most important changes introduced were the amendments to Rule 20, which governs motions for summary judgments. As was stated by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] ONCA 764, 108 O.R. (3d) 1 (C.A.), at para. 2:
Simply put, the vehicle of a motion for summary judgment is intended to provide a means for resolving litigation expeditiously and with comparatively less cost than is associated with a conventional trial. Although such motions have long been available in this province, their utility had been limited in part by a line of jurisprudence from this court that precluded a judge on a summary judgment motion from weighing the evidence, assessing credibility, or drawing inferences of fact. These powers were held to be reserved for the trial judge.
[61] At para. 3 of Combined Air, the Court of Appeal affirmed that: “The 2010 amendments to Rule 20 effectively overruled this line of authority by specifically authorizing judges to use these powers on a motion for summary judgment unless the judge is of the view that it is in the interest of justice for such powers to be exercised only at a trial.”
[62] At para. 51 of Combined Air, the court further stated:
We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial. [Emphasis added.]
[63] Moreover, the Court of Appeal in Combined Air, held, at para. 54: “The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case.”
[64] Lastly, at para. 55 of Combined Air, the court stated:
Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment
[65] The change of the rules “from no genuine issue for trial” to “to no genuine issue requiring a trial”, together with the motion judge’s power to make evidentiary determinations, allows for a more meaningful analysis of the paper record and overrules jurisprudence restrictions in making such determinations (Steine v. Steine, 2010 ONSC 4289, 91 R.F.L. (6th) 93 (Sup. Ct.), at para. 52; and CAS of Ottawa v. C.B., 2010 ONSC 6961 (Sup. Ct.), at paras. 37-39).
[66] According to Steine, at para. 56 and C.B., at paras. 40-42, the aforementioned amendments to the Rules of Civil Procedure apply to family matters and should be considered in conjunction with Rule 16 of the Family Law Rules.
[67] In responding to a summary judgment motion, the parents have to respond to the evidence of the Society. The parents can respond either by way of affidavit evidence showing a different set of facts from those relied on by the Society or by showing a gap in the Society’s evidence. However, if the defence is a different set of facts, mere denial cannot be enough to raise a triable issue of fact (Jewish Family and Child Service, at para. 23).
[68] A triable issue is one which is relevant to the issues to be decided. The test is whether the question at issue is a foregone conclusion. There may be a factual dispute on an issue, but that does not necessarily raise a triable issue if the balance of the admitted and undisputed evidence leads to an inevitable outcome. As per Heeney J., in J.C.J.-R. v. Children’s Aid Society of Oxford County, 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208, 123 A.C.W.S. (3d) 501 (Sup Ct.), at para. 25, if based on the admitted and undisputed evidence, it is a foregone conclusion that the best interests of the child require an order for Crown wardship, then there is no genuine issue for trial. While there may be issues to be decided, the question is whether they are issues that require a trial.
[69] As per Katarynych J. in Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2010] O.J. No 5853, 131 A.C.W.S. (3d) 455, at para. 26, a parent’s desire to resume parenting does not in itself constitute a genuine issue for trial. Moreover, “a parent’s possible reformation in her future ability to act as a parent to a child” is not a triable issue that requires a full hearing (emphasis added).
[70] The CFSA further states that where a child is under six years of age at the time that the order is being made, a court may not make an order that results in a child being in temporary Society care for a period exceeding 12 months; whether as a Society ward, or pursuant to an interim care and custody order or a temporary care agreement. An extension of up to six months may be granted, but only if it can be demonstrated that such an extension of time is in the child’s best interests (CFSA, s. 70).
[71] Where issues have not been addressed, the children cannot be left in “foster care drift” (R.H., at para. 36). The time limits provide “both a road map and a deadline for parents to pull their lives together” (Children’s Aid Society of the Regional Municipality of Waterloo v. T.L.H. (O.C.J.), 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, at para. 7).
[72] According to ss. 59(2) and 59(2.1) of the CFSA, where a child is made a Crown ward, the onus shifts to the party seeking access to show that any access would be beneficial and meaningful to the child and that such an access order would not impede the child’s future opportunities for adoption.
[73] The parents have the difficult onus of establishing both portions of the test in s. 59(2.1) of the CFSA. The meaning of the phrase “beneficial and meaningful” was examined by Quinn J. in Children’s Aid Society of the Niagara Region v. M.J. (2004), 2004 CanLII 2667 (ON SC), 4 R.F.L. (6th) 245, 132 A.C.W.S. (3d) 300 (Ont. Sup. Ct. (Fam. Ct.)), at para. 45, and cited in Catholic Children’s Aid Society of Toronto v. S.W., 2012 ONCJ 67, at paras. 69-70. Quinn J. in M.J. stated:
What is a “beneficial and meaningful” relationship in clause 59(2)(a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child.
[74] It is not enough that the child enjoys the visits or that there are some positive aspects to the visits. The relationship as it exists at the time of the analysis, and not potentially in the future, must be advantageous and significant to the child (M.J., as cited in S.W., at para. 71).
ANALYSIS
[75] There are two issues to be decided by this court in the Society’s Child Protection Application. Firstly, it must determine whether the child, D.D., is a child in need of protection. Secondly, it must decide, if the child is found to be in need of protection, whether the dispositions sought by the Society, namely, Crown wardship with a plan for adoption, is in the child’s best interests, or whether there is another disposition which is in the best interests of the child.
[76] With respect to the first issue, the protection concerns raised by the Society are as follows:
(a) The involvement of the Society in the lives of J.D. and T.S. since 2008.
(b) The fact that M.D. and J.H.D., the first two children from the union of J.D. and T.S., have been found to be in need of protection, at birth, pursuant to s. 32(2) of the CFSA, and both of these children have subsequently been made wards of the Crown and put up for adoption.
(c) This is the third child that J.D. and T.S. have had and despite the numerous and overwhelming evidence found in the various and numerous affidavits provided by the Society with respect to M.D. and J.H.D. and the difficulties therein, both of these parents have refused to fully engage in the services offered by the Society.
(d) These parents both admit to having addiction issues. Specifically, there is overwhelming evidence of the abuse of alcohol by J.D. With respect to T.S., she candidly admits that she is addicted to Bingo, that is, she has a gambling addiction. Despite the aforementioned, neither one of these individuals have ceased to drink or attend Bingo. More importantly, neither one of them has sought any help for these admitted problems.
(e) Both parties have done almost nothing, in the grand scheme of things, to improve or at least make an attempt to improve their parenting skills and knowledge. More specifically, given this couple’s history, a single parenting course taken by T.S. is simply insufficient.
(f) The parents have been seeing their child for one hour a week, which was increased to two hours a week, and yet it appears from the evidence that this amount of time is overwhelming to J.D. and T.S.
[77] This court is concerned that if this couple struggles to maintain a healthy and productive two hour visit, once a week, what further struggles will they face when they are dealing with the child, 24 hours a day, seven days a week, for the next 20-plus years. J.D. did not complete the full sexual behavior’s assessment because it appears he did not like the initial results of the testing and has subsequently refused to complete the testing. If, in fact, J.D. has his proclivities under control, then surely it behooves him to have his view scientifically confirmed, which he has thus far refused to do so. However, this court does acknowledge that he has neither been charged nor convicted of any further sexual offences since his youth. J.D. has refused to connect with a sexual counseling service to deal with his issues and puts the onus on the Society to arrange funding. J.D. cannot expect the Society to finance his treatment. There appears to be little to no evidence of efforts made by J.D. to find alternative sources of funding and/or seek alternative counseling.
[78] The fact that, while living in Hamilton, J.D. and T.S. faced a number of very serious animal cruelty charges, as a result of the treatment of the multiple animals that they had in their care and further failed to attend at their trial is a huge concern for the court. This court does not accept that J.D. and T.S. thought that the charges had been “dismissed.” It is difficult to imagine what basis they could possibly have had in order to come to this conclusion, particularly given the state of the house, as evidenced by the pictures attached to a number of affidavits. It would be reasonable for this court to conclude that the reason J.D. and T.S. left Hamilton was precisely to avoid the scrutiny of the courts, with respect to these charges. I note that the OSPCA is seeking a lifetime ban on future pet ownership, if convictions are registered.
[79] This court is relieved that J.D. and T.S. now appear to have a stable residence, that is, that they are no longer living in a tent in a trailer park, but in a proper apartment. It is also encouraging that the couple has now greatly reduced the number of animals that they own and appear, at least at this point, to be able to care for their new animals. However, a baby, as compared to a pet animal, is an extremely different question.
[80] The major concern here is the risk that J.D. would sexually re-offend and there is a “moderate to high risk” that J.D. would sexually offend children, despite the fact that J.D. has not been suspected, charged or convicted of any further sexual offences since his youth. With respect to future risk strategies, the best that J.D. and T.S. appear to be able to do is indicate that if the Society asked them to remove their pets from their home, they would. If the Society paid for J.D.’s treatment and found him the appropriate treating professional, J.D. would attend. J.D. indicated that his problems with mental health, sexual deviancy, and substance abuse, are all under control, and that T.S. has no concerns, despite this extensive history and the overwhelming evidence used in support of seizing the first two children, M.D. and J.H.D. J.D. and T.S. still persist in believing that they can parent their latest child, D.D., in these circumstances, despite the fact that they struggle with one, two-hour long visit per week.
[81] In summary, the Society believes that J.D. and T.S. are either very limited and/or have no capacity to parent a one-year old child, particularly in a situation where there will be another child born later this month. Another concern posited by the Society is that there has been almost no progression in the amount of time that the parents have requested to visit with D.D. over the past year and again, the evidence is overwhelming, that they struggle at times to fulfill their commitment of a two hour visit once a week. This court has to ask why they would keep any pets at all with the outstanding animal cruelty charges. This is yet another example of the lack of insight that this couple has with respect to the seriousness of the matters before the court. This court agrees that the couple’s focus should be solely on trying to either get their daughter back or at least try and have some kind of relationship with this child and her new family. The point is that their focus is not on getting D.D. back. Rather, their focus is elsewhere; such as pets, gambling, and alcohol, with very little else to do with their time.
[82] After examining the lengthy record in this matter, as discussed throughout these reasons, I am satisfied that the Society has established not only a prima facie case, but has established, beyond the balance of probabilities, that D.D. is a child in need of protection.
[83] The next question is one that this court has struggled with during these past few months. The question is whether D.D. should be made a ward of the Crown and placed in the care of the Society, and ultimately adopted by her current foster family where she has resided since birth and is thriving.
[84] Submissions from counsel for the parents are essentially that J.D. and T.S. have never been given a sufficient chance to parent and, therefore, they should be given a chance to parent D.D., given the “improvements” that they have made. This court would phrase this submission in another way; specifically, the court is being asked to take a chance on the health, safety, and potentially the life of D.D. in order that the parents can be given an opportunity to demonstrate that they can parent her. This is all despite the fact that they were clearly and totally incapable of parenting their first two children. Essentially, this court is being asked to “take a chance” and allow J.D. and T.S. to use D.D. as a parental training tool. This court is not prepared to give J.D. and T.S. a chance to parent a one-year old – whom they barely know – when they have clearly demonstrated a complete lack of insight into the challenges that they themselves face as individuals, let alone the challenges they face as soon-to-be parents of another newborn.
[85] While this court does not believe that, at present, or for the foreseeable future, that this couple will be able to parent a child, this court must also recognize the positive steps, as was previously discussed, that have been taken by this couple to get off the streets, move into an apartment, and care for two pets.
[86] J.D. and T.S. have also demonstrated that they have consistently either refused to acknowledge their parenting deficiencies and/or to work cooperatively with the Society to deal with their obvious parenting deficiencies. This court wonders, given their demonstrated attitude, since 2008, whether this couple will ever acquire the required skills to adequately parent D.D. or the child that they are expecting in October, or any other child that may be created as a result of this union.
[87] It is for all of these reasons that the court must conclude that J.D. and T.S. have not raised a genuine issue requiring a trial with respect to the issue of whether D.D. is in need of protection. The court finds that the child is in need of protection, pursuant to ss. 37(2)(d) and 37(2)(g) of the CFSA. This court finds that the child, D.D., is in need of protection, pursuant to ss. 37(2)(d) and 37(2)(g) of the CFSA. Respectively, the court find that there is a risk that the child is likely to be sexually molested or sexually exploited, and that there is a risk that the child is likely to suffer emotional harm resulting from the actions, failure to act or pattern of neglect on the part of J.D. and T.S.
[88] With respect to the second issue of what disposition is in the best interests of the child, this court must conclude, for the reasons stated above, that the Society has established a prima facie case that J.D. and T.S.’s plan of care is neither a viable one, nor one which could be considered to be anywhere near the best interests of this child pursuant to ss. 37(1), (2), (3), (5), (7), (8), (10), (11) and (12) of the CFSA. Given the clearly established and unaddressed issues surrounding this couple, as well as their current conduct, this court concludes that there is also no genuine issue requiring a trial on the issue of which disposition is in the best interests of this child.
[89] D.D. is an extremely young child, that was taken away at birth, and properly so. Thereafter, she has been in the care and custody of her foster parents. These same parents are both prepared and looking forward to adopting D.D. into their family. They are solely awaiting this decision in order to complete that process. Accordingly, it is clearly in the child’s best interests to have the decision of her future decided now. The protection concerns; J.D. and T.S.’ behavior; and their response has been consistent throughout all of the past and present child protection proceedings. However, this court does acknowledge that there has been a number of improvements to the parents’ personal situation as a couple. But, with respect to their ability to parent, the improvements have been minimal at best. Furthermore, until there is a change in their attitudes and they become fully engaged in dealing with the various issues that this court has addressed, there is no evidence that their situation will change in the near future.
[90] On the evidence, there is not any least intrusive alternative for the care of D.D. other then the Plan of Care presented by the Society.
DISPOSITION
[91] After considering all of the evidence presented by the Society and all of the material filed by T.S. and J.D. in these proceedings; the time limits imposed by the legislation; and the paramountcy of the best interests of the child, this court concludes that there is no genuine issue requiring a trial in this matter. The evidence establishes that D.D. is a child in need of protection and that it would be in her best interests that she be made a Crown ward for the purposes of adoption.
[92] The Society is, therefore, granted summary judgment without a trial, pursuant to Rule 16(6) of the Family Law Rules.
[93] Accordingly, the court makes the following Order:
That the child, D.D. (d.o.b. […], 2011), is found to be a child in need of protection pursuant to ss. 37(2)(d) and 37(2)(g) of the Child and Family Services Act.
That the child, D.D. (d.o.b. […], 2011), be made a ward of the Crown and be placed in the care of Family and Children’s Services of Lanark, Leeds and Grenville.
Mr. Justice John A. McMunagle
Released: October 9, 2012
COURT FILE NO.: FC-860-08
PERTH, ONTARIO
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF D.D.D.D. (d.o.b.) […], 2011
B E T W E E N:
FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE
Applicant
- and –
J.D
T.S.
Respondents
REASONS FOR RULING ON MOTION FOR
SUMMARY JUDGMENTS
McMunagle J.
Released: October 9, 2012