COURT FILE NO.: FC-03-485-8
DATE: 2012-10-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children's Aid Society of Ottawa
Judith Hupé, for the Applicant
Applicant
- and -
CD (mother), AK (father) and SA(paternal grandmother)
Audra Bennett for CD, Cedric Nahum for SA, no one appearing for AK, the Respondents
Respondents
HEARD: September 18, 2012, at Ottawa, Ontario
Madam Justice B. R. Warkentin
Reasons on Summary Judgment Motion
[1] This is a motion by the Children's Aid Society of Ottawa; ("Society") dated June 21, 2012 for summary judgment placing the child TK in the care and custody of the Society as a ward of the Crown. The originating application is dated November 23, 2011.
[2] TK, born […], 2008, is currently 4 years of age. He has been in the custody of the Society since March 17, 2011 when he was 2 years old. On September 18, 2012, the date of the hearing of this matter, TK had been in the Society's custody for 616 days.
[3] CD is the biological mother of seven children, the oldest is 11 years of age and the youngest is 2 years of age. The four youngest children, including TK, have the same biological father, the Respondent, AK and thus the same paternal grandmother, the Respondent, SA.
[4] CD does not have any of her children in her care. Until the date of the return of the motion on September 18, 2012, she opposed the Society's motion for summary judgment. Her lawyer advised the court at the commencement of this motion that CD had changed her position and that after considerable evaluation of the circumstances she had reached the conclusion that TK's best interests would be served by being made a crown ward and a permanent home found for him. CD through her counsel indicated that this had been a very difficult decision, but she realized it was in TK's best interests and she recognized that TK deserved finality to this process. CD vigorously opposes the Plan of Care put forward by SD, TK's paternal grandmother.
[5] At the present time, the four youngest children, including TK, reside together in the same foster home; the two youngest siblings having already been made crown wards.
[6] Two of CD's older three children are in the care of the maternal grandmother and the third is in the care of her maternal aunt and uncle.
[7] On April 20, 2012, after a summary judgement motion, Mr. Justice P. Kane granted summary judgement to the Society with Crown Wardship with respect to CD's youngest two children, IK and AK (2). CD did not oppose that motion; however, AK sought to have the two youngest children placed in his care and custody. CD opposed that plan.
[8] Justice Kane delivered detailed reasons as to why he refused to consider the Plan of Care by AK. In essence, Justice Kane found that AK had, by his own choice ignored his children, had virtually no contact with them throughout their lives and his plan of care was lacking and not in the children's best interests. AK still faces a trial for assaulting CD. The trial is scheduled for December 2012.
[9] For the same reasons it did not support AK's plan of care regarding IK and AK (2), the Society did not support AK's plan of care in this proceeding regarding TK. Subsequent to filing his plan, AK has apparently relocated to Windsor and did not appear at the motion for summary judgment. The court was informed that AK has abandoned his plan although he supports his mother, SA's plan of care for TK.
[10] The only issue in this proceeding is the paternal grandmother, SA's opposition to the Society's motion for summary judgment.
Paternal Grandmother, SA
[11] On March 22, 2012 SA first advised the Society that she wanted to see her grandchildren. She was unable to identify them by name, but stated she would like to put forward a plan of care in the event AK was not approved.
[12] SA was informed by the Society that they would not support a plan from her because there had been significant historical protection concerns with respect to SA and her own children as well as the fact that SA had minimal involvement with her grandchildren. In spite of this, the Society, at SA's request, initiated a comprehensive assessment of her proposed plan of care.
[13] SA has been married 8 times, divorced 7 times and widowed once. She has 9 children, with the three youngest (ages 21, 13 and 9) currently residing with her in a three bedroom home. SA is an active member of the Somalian community in Ottawa and would have some support from the Somali Canadian Youth Centre and the Somalian community in caring for TK.
SA's Involvement with the Society
[14] The Society has had nine previous openings with SA's family dating back to 1991 in Ottawa with some involvement by the Society in Windsor, however that information was not able to be provided due to consent forms required by SA's now adult children. SA's youngest child, MS, who is currently 9 years of age and autistic, has been apprehended on five occasions, the first time shortly after his birth in June 2003 and the most recent on February 4, 2012 and then again on June 13, 2012.
[15] The Society has stated in its affidavit material that its involvement with SA has been due to physical abuse by SA toward her children, her lack of supervision of her children, neglect and domestic violence.
[16] The Society expressed concerns to SA in the spring of 2012, during the course of its involvement with MS that she permitted her son AK, the father of TK to live in her home after he was released on bail in February 2012 from the charges stemming from his alleged assault on TK's mother, CD. AK was prevented by the conditions of his bail from having contact with his own children. The Society was of the view that AK presented a risk to his minor siblings, particularly MS as well.
[17] SA denied that AK was residing with her however this was untrue. SA was his surety and his bail conditions required that he reside with her. SA failed to cooperate with the Society by permitting AK to continue to reside with her until May 2012 notwithstanding that she was aware the Society had informed her that this was in violation of the conditions regarding MS returning to the home after the 4th apprehension in February 2012.
[18] M was returned to SA's care on a temporary supervision order on July 4, 2012. The matter regarding M was adjourned to a care and custody hearing scheduled for July 23, 2012.
[19] In addition to these incidents, SA has a long history of refusing or failing to cooperate with the Society.
Issues
[20] The Society argues that there are no genuine issues requiring a trial.
[21] Given SA's long and current history of involvement with child protection agencies in Ottawa, the fact that she is currently involved in child protection proceedings regarding one of her own children (MS) and that MS (now 9) has been in CAS care on five occasions, it was the Society's position that her plan would not be in TK's best interests and would cause more instability and uncertainty for him. It is also a relevant factor that SA waited until very late in these proceedings (mid July, 2012) to seek to be added as a party.
[22] The Society affidavits report that TK is doing very well in her current foster parents' home since his apprehension in March 2011. TK is in the same home as his 3 biological siblings and while this arrangement may not be possible long term, the Society reports that it is committed to keeping the children together if at all possible.
[23] SA questions whether the Society has met its onus to show that there is no genuine issue requiring a trial.
[24] As in every case alleging the children are in need of protection and a claim of Crown Wardship, the underlying issues are:
a) Are the children in need of protection?
b) Is the disposition sought by the Society in their best interests or is there another disposition that is in their best interests?
The Law
[25] The onus is on the Society as the moving party, to show that there is no genuine issue requiring a trial. Summary judgment may be granted where there is no substantial evidence on an issue, where the evidence that is tendered is too incredible to be accepted by reasonable minds, or even if accepting its truth, it is without legal probative force. (Children's Aid Society of Ottawa-Carleton v. A.C., supra, paras. 8 and 10).
[26] Rule 16 of the Family Law Rules, O. Reg. 114/99, requires this Court to make a final order where there is no genuine issue requiring a trial. (Children's Aid Society of Hamilton v. A.(M.), 2007 CarswellOnt 3977, para. 60; Children's Aid Society of Toronto v. H.(R.), 2000 CanLII 3158 (ON CJ), 2000 CarswellOnt 6170 (Ont. Ct.); Children's Aid Society of Ottawa v. M.C., 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 (Ont. Sup. Ct.) p 2.)
[27] The nature of the evidence, the reasonableness of potential plans, and the statutory timeframes are all relevant to whether or not there is a genuine issue for trial. A proper consideration of "a full evidentiary record" is necessary for a "good hard look" at the evidence on the motion. (B.(F.) v. G.(S.), 2001 CanLII 28231 (ON SC), 2001 CarswellOnt 1413 at para. 19 and Children's Aid Society of Ottawa v. M.C., supra, at paras. 10 and 11).
[28] Without evidence of a triable issue regarding the best interests of the child, those best interests themselves call for a resolution without the delay that would be associated with a trial and the resulting prolongation of the state of uncertainty about the child's future. (R.A. v. Jewish Family and Child Service, [2001] O.J. No. 47 (S.C.) at para. 20).
[29] If the Society presents a prima facie case, SA must on a motion for summary judgment put her "best evidentiary foot forward" to demonstrate that there are the material facts in dispute and/or there is an issue of credibility requiring a trial in order to prevent summary judgment. SA may not rest on the mere allegations or denials of the party's pleadings, but must set out in affidavit material or other evidence, her position. (Children's Aid Society of Hamilton v. A.(M.), supra, para. 65 and B. (F.) v. G. (S.), supra, para. 13).
[30] Since March 2011 TK has been in foster care, far in excess of the one-year statutory limit. It is anticipated that by the time the matter proceeds to trial if this summary judgment motion is refused TK will have been in foster care for close to 2 years.
[31] SA has little or no relationship with TK. The evidence on this motion was that she was not even aware of his name prior to her decision to present a plan of care and that she has had little or no involvement with him or his siblings. Her evidence was that she occasionally saw TK with his siblings when he was an infant and she has seen him once since he was apprehended in March 2011.
[32] SA has a long history of involvement with child protection services and at the time of this motion there was an open file with the Society regarding her own son, MS. SA has regularly refused to cooperate with the Society. Her plan of care is based almost exclusively on the fact that she is SA's paternal grandmother and that she is able to provide a home for him.
[33] Based upon her past conduct, there is a risk that SA would permit AK access to TK against the recommendations of the Society. There is every likelihood, based upon her past conduct that she will not cooperate with the Society on even the most routine requirements. The most recent apprehension of MS is as a result of her alleged failure to supervise him. MS, now 9, is autistic. TK is only 4 and would require a great deal more supervision and care.
[34] A trial will not alter any of the facts. I am not convinced of the sincerity of SA's plan of care or of her ability to address the needs of TK. Except for her biological connection to TK, she has virtually no connection to him. She has not demonstrated an ability to care for him or to meet his needs. SA's own children, including AK, TK's father, do not know him.
[35] SA's plan of care does not address the strong relationship TK currently has with his own siblings and the loss to him of those relationships should he be placed in SA's care. I am mindful that two of TK's 3 biological siblings are already crown wards so that there is no guarantee of them remaining in the same home permanently, however, the Society anticipates facilitating the ongoing relationship between the siblings if it is at all possible.
[36] I therefore do not find it would be in TK's best interests to place him in SA's care.
[37] SA has presented no evidence nor raised any issues that give rise to a genuine issue in this case requiring a trial.
[38] I am satisfied on the evidence that TK is in need of protection pursuant to s. 37 of the Act.
[39] The Society has established a primary case for Crown Wardship.
[40] No alternate plan with any detail has been placed before the Court. Having found no genuine issue requiring a trial, I grant this motion for summary judgment and determine that TK is to be made permanent ward of the Crown and shall remain in the care and custody of the Society.
Madam Justice B. R. Warkentin
Released: October 22, 2012
COURT FILE NO.: FC-03-485-12
DATE: 2012-10-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of Ottawa
Applicant
- and –
CD (mother), AK (father) and SA(paternal grandmother)
Respondents
Reasons on Summary Judgment Motion
Warkentin J.
Released: October 22, 2012