Children’s Aid Society (Simcoe County) v. TD

COURT FILE NO.: FC-07-398-02

DATE: 2012-11-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society (Simcoe County), Applicant

AND:

TD, Respondent

BEFORE: THE HON. MADAM JUSTICE R.A.WILDMAN

COUNSEL: Karen O’Keefe, Counsel for the Applicant

John Winter, Counsel for the Respondent

HEARD: October 12, 2012

WARNING

This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILDREN – No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

76(11) PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ENDORSEMENT

[1] The CAS has brought a summary judgment motion, seeking an order that six-year-old O and two-year-old C be made Crown wards with no access for the purposes of adoption. TD is the mother of O and C.[^1]

[2] Crown wardship without access is the most extreme order that can be sought in a child protection proceeding. It is an order of last resort, as it has the result of permanently removing a child from his or her birth family. The court has a statutory duty to support the autonomy and integrity of the family unit, with supports if necessary,[^2] and to consider the least disruptive available course of action to help a child.[^3]

[3] The severe consequences of the order sought mandate a cautious approach to summary judgment motions in CFSA matters. If there is any genuine issue for trial, an order for summary judgment should not be granted.[^4] Even if it is unlikely that a parent will be successful at trial, summary judgment for Crown wardship should not be granted when the parent has raised a triable issue, which, if resolved in the parent’s favour, could result in any order other than Crown wardship without access.

[4] However, if an examination of the evidentiary record establishes that the result at the end of a trial is inevitable, an order for summary judgment should be made. There are various reasons for this.

[5] Many of the parents in child protection matters have already had very difficult lives, and they are often dealing with other immediate stresses in their lives. For example, the mother in this case is homeless, living on a limited disability income and facing criminal charges. She should not be put through a difficult trial, in which her entire life, personality and parenting decisions are publicly scrutinized in painful detail, if there is no hope of success.

[6] The resources of the Society and the parents (or their funding sources) should also not be focused on hopeless trials, if the inevitable result is obvious before the trial begins.

[7] However, by far the most important reason to grant summary judgment in appropriate cases is the children. They do not deserve to be left waiting any longer than necessary in foster care because the Court is reluctant to make a difficult decision without a trial. These children deserve an answer about their future. They should not have decisions about permanency planning delayed for months, often years, while their parents present well intended and hopeful plans to the court about their future care, but are unable to take the steps to translate their proposals into a plausible reality.

[8] The rule permitting summary judgment in CFSA matters is there for a reason and, however difficult it may be to make such an extreme order without a trial, if there is no genuine issue for trial, the order should be granted at the motion.

[9] Actions speak louder than words. A party responding to a summary judgment motion is required to put his or, in this case, her best foot forward. She is required to set out specific facts showing that there is a genuine issue for trial.[^5] If there is no question that Crown wardship without access will be granted, even if the facts raised by the parent are established at trial, then the order should be made on the summary judgment motion.

[10] Sadly, this is one of those cases. The mother has a long-standing history of addiction to prescription painkillers, involvement with an abusive partner, and inability to maintain stable housing. Despite these concerns, the children have been placed with her in the past, but the placement didn’t last. Understandably, O and C have been affected by this instability. They now need a permanent, stable home. They need caregivers who are functioning well in their own lives, and who understand O and C’s needs, so that they can try to work with various service providers to overcome some of the children’s problems.

[11] TD has some issues about the care that these children received while under Society wardship. However, even if TD were successful in establishing that she has not been the source of all the instability that O and C have endured, or that there are concerns with the decisions that the CAS made, that should not be the focus of the trial. The issue is what is best for the children at this point. It is also not enough for TD to show that she has tried to address some of her problems. The question for the trial judge is whether, after six years of trying, TD has put herself in a position to adequately care for these children. Unfortunately, it is inconceivable that anyone would consider returning these children to TD’s care at this time.

[12] A trial judge would be particularly interested in what progress TD has been able to make since the Crown wardship application was brought in July of 2011. Looking at the situation in 2012 alone, there is no hope that she will be able to satisfy a trial judge that she has been able to achieve enough stability to consider placing the children with her. She remains homeless. She is unable to work because of her own psychological problems and is supported entirely by her disability benefits. She has shown little insight into the children’s difficulties, so she has not been able to demonstrate any ability to work with service providers to help the children. She continues to give O inappropriate messages about her future. She has shown an inconsistent commitment to the children, as she stopped seeing them for several months in 2012, and only resumed two-hour weekly supervised visits just before the motion was heard. She continues to have contact with her abusive ex-partner. The police attended her residence in May and June of 2012 and observed her to be intoxicated both times. As recently as September 29, 2012, she was charged with public intoxication.

[13] The therapist[^6] and assessors[^7] who have worked with O and C note the effect that their chaotic background has had on the children, and stress the need for a consistent, stable placement to try to undo some of this damage. C has significant medical needs. The medical[^8] and therapy reports confirm that these children will require an organized and committed caregiver, who can get them to the numerous medical and therapeutic appointments that they will need in the next few years.

[14] The Society has been working with TD for six years. There is no question that TD loves O and C. However, TD is not in a position to offer these children the level of care and stability that they need. The time for experimentation and the hope for rehabilitation are over. TD has been offered multiple services to try to assist her but, sadly, it seems beyond her ability to bring her parenting and personal life up to a level where she can adequately care for her children.

[15] This is an appropriate case for summary judgment. I have considered the factors set out in s. 37(3) of the CFSA, and the evidence is overwhelming. There is no genuine issue for trial, as another placement with TD at this time is clearly not in the best interests of these children. For the reasons discussed in more detail below, there will be an order for Crown wardship of O and C, without access, for the purposes of adoption.

PROCEDURAL ISSUES

The evidentiary record for this motion

[16] I agree with Mr. Winter: the CAS is required to serve a comprehensive affidavit in support of each summary judgment motion, so that the responding party knows the case she has to meet. The CAS cannot bolster their case during argument by referring to the multiple previous affidavits in the continuing record that have been served over the years during the life of this file, without giving TD notice of the specific paragraphs they will be drawing to the court’s attention. For the purpose of this motion, I am relying only on the endorsements in the record; the factum of each party, including any references to paragraphs of previous affidavits (as this gave TD notice of specific factual allegations in prior affidavits that were being relied upon); the affidavit of the worker, Terry Bridgeo, dated October 1, 2012; and TD’s responding material, including the documents in her document brief.

[17] In future, the Society should ensure that a fresh affidavit is prepared and served for summary judgment motions, summarizing all the information that the Society wishes the judge to be aware of about the case, and putting the responding party on notice of what needs to be addressed in the responding material. They should not prepare a fresh affidavit and attach the prior affidavits as schedules. The court needs the assistance of both parties in organizing the evidence in a reasonable way, so that the judge will realistically have a chance to read the material, and complete the hearing in the time that has been scheduled for the motion. If the summary judgment motion is not successful, the affidavit may be useful in reducing the time for oral testimony by the worker when the trial begins. Often, if the trial judge reads a comprehensive affidavit in lieu of hearing a lengthy examination-in-chief from the worker at the trial, the time required for the trial can be reduced and focused considerably.

[18] I thank Mr. Winter for his usual professionalism and courtesy in permitting Ms. O’Keefe to direct me to the one paragraph of an earlier affidavit that outlined the services that had been provided to this family, the contents of which were apparently not in dispute.

[19] For the purposes of this motion, I will not wade into the issue of assessing credibility. I will assume that the facts set out by the mother in her affidavit material would be established at trial. Unfortunately, even if that were the case, they do not establish any genuine issue for trial.

The outstanding disclosure requests

[20] This case has been going on for six years. The Crown wardship application was commenced July 14, 2011. The Society advised of its intention to bring this summary judgment motion when the trial management conference was conducted on August 10, 2012. No issues of disclosure were noted at the time.

[21] On September 17, 2012, Mr. Winter wrote to the Society requesting “all case notes in this matter, other than those previously delivered, together with all records compiled under the Child Protection Standards”.

[22] He has not yet received that disclosure and suggests it is improper to proceed with this motion until the Society provides it.

[23] I disagree. I am prepared to assume, for the purposes of this motion, that the mother’s evidence will be established at trial. However, the trial would not focus as much on the historical events, as it would on the mother’s current situation. The focus of this motion is the same. That evidence comes primarily from her. The lack of production of all the case notes and protection records in no way prejudices her opportunity to “put her best foot forward” about her ability to implement a plan that would be in the best interests of these children.

[24] I am not prepared to allow a recent request by TD’s counsel for additional disclosure to delay this motion and a decision about permanency planning for these children.

Dispensing with service on DR

[25] I am satisfied on the basis of the affidavit evidence filed that O’s father, DR, is aware of these proceedings, knows how to contact the worker, and has shown no interest in putting forward a plan. He has had minimal involvement in O’s life, and the last time the worker spoke to him, he was questioning paternity. He has not seen O in years. The worker has made reasonable efforts to contact him but has been unable to locate him.

[26] There is no benefit in delaying permanency planning any longer by making further efforts to find DR, when he has no interest in participating in these proceedings or presenting a plan to care for O.

[27] An order will issue that service on DR is dispensed with.

The statutory timelines

[28] The CFSA sets out maximum timelines for a child to remain in Society care without a decision being made about a permanent plan for his or her future. The timelines have been exceeded in this case.

[29] O has now been in care a total of approximately 36 months, and C has been in care 25 months.[^9] While Mr. Winter says he has not confirmed the exact number of months, he acknowledges that both children have now been in care well beyond the statutory maximum under s. 70(1) of the CFSA, even if a six-month extension were found to be in the best interests of the children and granted under s. 70(4). The only placement options open to a trial judge in this case would be Crown wardship or a return to the mother, with or without supervision. An order for society wardship is no longer available.

DISCUSSION

[30] In this section, I will deal with some of the major concerns of the Society, the mother’s response, and why I have found that there is no genuine issue for trial that might, if resolved in TD’s favour, result in the children being returned to her.

The concerns about drug and alcohol abuse

[31] Both of TD’s children were born with drugs in their systems. O’s birth tests revealed trace amounts of cocaine. C’s tests did not disclose cocaine at birth but did reflect the prescription drugs (methadone) that TD has taken for a number of years to combat her prior drug addiction. However, when C was tested during other medical treatment at five months old, cocaine was also detected in his system.

[32] TD admits that she has been addicted to prescription pain medication since O’s birth, so that explains most of the positive readings in the children. However, she denies she was the source of the cocaine found in each baby’s system. She suggests that perhaps these readings were as a result of contact between each infant and his or her father. She admits that both of the fathers used illegal drugs, including cocaine. There is no specific explanation in the material filed on this motion about how TD explains the cocaine in O’s system at birth. However, she suggests that C’s cocaine reading may have been a result of his father, CM, rubbing teething gel on C’s gums, and introducing trace amounts of cocaine by pore to pore contact.

[33] For the purpose of this motion, I am prepared to assume that the clear drug screens that TD provided, along with the letters of support from Dr. Cooper, will establish that TD entered a methadone program in August of 2007, and has attended diligently since that time. Her weekly urine tests will only show prescribed medication with no illicit substance use, with the exception of one positive test for cocaine in 2012, which she attributed to the stress associated with her dealings with the Children’s Aid Society.

[34] I am also prepared to accept that Jan Aikins would provide testimony that would be supportive of TD. Ms. Aikins is a worker with Canadian Mental Health Association’s addiction counselling services. She provided a letter in January of 2012 confirming that TD had attended 13 sessions with her program between April of 2011 and January of 2012 to “consolidate her personal insight and relapse prevention skills”.

[35] However, TD will also have to face the reality that each of her infants somehow ingested cocaine while in her care; that she may have used cocaine herself on one occasion in 2012 after Ms. Aikins’s letter; that the police have been involved with her and CM several times in the last year and have noted her excessive use of alcohol on more than one occasion; that she continues to associate with CM, despite his past problems with drug use; and that she was charged with “public intoxication” just before the summary judgment motion and kept in custody until she sobered up.

[36] I am satisfied that TD’s drug use will not be a determinative factor in this trial, as her commitment to her methadone treatment is reassuring. However, her history of addiction problems, combined with her continuing association with a drug user (CM) and her recent problems with alcohol leading to a criminal charge, are not positive factors in assessing her ability to provide safe, stable care for her children. If this were her only problem, the effect to which her methadone treatment offsets the concerns about alcohol use and the one positive cocaine reading in 2012, might be a genuine issue for trial. However, this is not TD’s only problem.

Domestic violence

[37] TD has a history of poor choices in domestic partners. As mentioned, both O’s father (DR) and C’s father (CM) abused illegal drugs, including cocaine.

[38] The Society is particularly concerned that TD has been unable to completely extricate herself from her relationship with CM and has not demonstrated an appreciation for how unhealthy her continued association with him is for both her and the children.

[39] CM has a history of violence and abuse. TD needed medical treatment after at least one of his assaults. He has tried to strangle her. Although the CAAP assessors indicate that TD “identified being beaten by him a number of times” and that “O witnessed two assaults on (TD by CM) which involved choking”, I will assume for the purpose of this motion that TD would be able to establish her current version of events at trial. She emphasizes that the children have not witnessed all the abuse, as she says in her affidavit,

…the Court should know that there are no allegations that (CM) was (or is) a danger to the children. Historically there was a very upsetting incident in 2009 where (CM) had physically assaulted me (choked me) and O was present. This was the only instance of abuse by (CM) witnessed by either of our children. [Emphasis in original]

[40] However, TD does not deny that CM was abusive to her on other occasions. She does not seem to take issue with the statement in the CAS affidavit that, in June of 2010, she contacted the Society to advise that CM had threatened both her and O, who would have been four at the time. She said O was wetting her pants in response. TD also does not deny that she has told the worker that both she and O are afraid of CM. Finally, she does not seem to dispute that, when discussing C’s developmental delays with the CAAP assessors, she told them, “I’m sure there are problems. I was being beat to a pulp when I was pregnant with him.”

[41] The issue of exactly how much abuse the children have witnessed does not need to be resolved for the purpose of this motion. It is clear that whatever O, in particular, has been exposed to, it has affected her.

[42] In play therapy, O had a number of recurring themes. The therapist’s November 29, 2011 report provides some insight into the continuing impact on O.

One theme was the way O used the dollhouse to represent family dynamics. Most often O would have more than one mother in the family and would say “the daddy is in jail” to explain the absence of a father in the family. On one occasion when the father was present in the family, O said “he’s mean to the babies. The babies are crying for their mommy” and “That one’s the bad guy and he hurt the mom”. While playing with the dollhouse or Barbie dolls each week, the most common theme was distressed children crying for their mother.

[43] Between September of 2010 and December of 2011, CM went to jail for an aggravated assault causing bodily harm conviction. Before he was imprisoned, he advised the worker that he was going to jail because he had “slashed a kid’s face”.

[44] When CM went to jail, TD had her chance to sever contact with him. Unfortunately, she was unable to do so. When he was released from prison in late 2011, TD resumed a relationship with him, even though the CAS had already commenced their Crown wardship application.

[45] It is unclear if TD is denying that CM moved in with her following his release. She appears to have been sharing a residence with him for the first half of 2012 but, even if she were able to establish that he was not living with her full-time, she allowed him to be present during her access to the children on January 19, 2012, in contravention of a court order. This resulted in her right to have unsupervised visits with her children in her home taken away.

[46] TD has various excuses about CM’s presence on January 19. She says he “had just dropped by with coffee”, which, in my view, demonstrates an alarming level of familiarity and casual attitude towards CM’s involvement in her life. She also suggests that she was confused about whether CM could be there, because she may have signed a revocable consent in the criminal proceedings to allow CM to have contact with her. She seems to suggest that the fact that CM may have been permitted to have access to the children, supervised by the CAS, somehow lessened the seriousness of her allowing him to be present during her access visits, in breach of the recent CFSA order.

[47] I am concerned about TD’s apparent inability to abide by the order that she had agreed to, which prohibited anyone being present without CAS approval. However, of far greater concern to me is TD’s lack of appreciation for why CM should not be around the children. She seems to be completely unable to grasp that O might experience stress from being around someone who had choked her mother in front of her. The focus on what the orders did or did not permit reinforces the most important problem: TD apparently doesn’t recognize her responsibility as a mother to ensure that CM was not present when the children were coming for access in her home.

[48] I am also concerned about TD’s apparent minimization of CM’s ongoing abuse. She does not deny that she arrived at the Society’s office on March 30, 2012, crying and asking what to do. She talked to the worker about the abusive relationship with CM, and said that she no longer felt safe living with him. She said he “scream(ed) at” her and, on one occasion, tried to kick the door in when she had locked it. She said that O and C should not live in that environment.

[49] The worker immediately took TD to the local women’s shelter. TD left two days later and returned to the apartment and CM.

[50] During the intake interview at the shelter, TD said that she was being evicted from her apartment as of April 30, 2012, and would have no place to live. Apparently, she managed to get a reprieve, because the eviction did not take place until the end of June. However, the conflict with CM at her residence continued. The police were involved in altercations between TD and CM at her home in May and June of 2012. The police noted that TD smelled strongly of alcohol each time.

[51] In July 2012, TD had been evicted from her apartment. She gave CM money to find housing, although she herself had nowhere to live, and she told the worker that she “did not know what (would) happen to her now”.

[52] At the end of August 2012, TD said that she terminated her romantic relationship with CM and that he had another girlfriend. For the purpose of this decision, I will assume that TD would be able to establish at trial that she is no longer romantically involved with CM.

[53] However, she has not severed all contact with him. Only a few weeks before this motion, on September 29, 2012, the Orillia police attended at CM’s residence at 2 a.m. to do a compliance check for his probation. Not only did they find TD sitting on a couch drinking, she and CM were arguing and TD told the police that, if they had not arrived when they did, the argument would have escalated into something physical. CM was arrested for two counts of breach of probation because he was prohibited from drinking alcohol and from having contact with TD. TD was charged with public intoxication because she was apparently quite inebriated and became “extremely rude and disrespectful” towards the officers.

[54] TD does not seem to understand what impact her continued association with CM has on her proposal to have the children returned. The issue is not just whether they are still in a romantic relationship. Any involvement with him, with a Crown wardship trial imminent, raises a multitude of questions. How can her priorities be so misplaced? What was she doing giving CM money to get housing, when she did not even have a place to live herself? Why would she place CM’s need for housing above her own need to have a place to offer the children to live? What was she doing recently in his room, drinking and arguing at 2 a.m.? Why would she put herself in a position where an argument was about to escalate to a physical altercation, with a man who had previously choked her and “beaten (her) to a pulp”? How could the court have any possible faith that she and CM would abide by conditions to protect the children from him, when she breached the condition in the CFSA matter within weeks of agreeing to it, and he breached his probation order to stay away from her?

[55] The history of abuse previously inflicted by CM on TD is frightening. She has required hospitalization. She knew how concerned the CAS was about him. It is astonishing that she would be in his room on September 29, knowing this summary judgment motion was scheduled for October 10. It is a shocking error in judgment, and speaks volumes about TD’s inability to focus on her children. It is unimaginable to me that any trial judge would feel that it is appropriate or safe to return O and C to TD’s care. This is not just because of the direct safety concern presented by CM, but also because of TD’s lack of judgment in continuing to associate with him, and her failure to acknowledge the effect of exposure to domestic violence on her children. She has presented no evidence that would satisfy a court that she understands the need to change her behaviour, and protect herself (and the children) from unhealthy relationships with abusive men.

Inconsistency in exercising access

[56] O and C have experienced a lot of chaos and upheaval in their short lives. The Society first became involved with TD in August of 2006, when O was born with drugs in her system. Although the baby was released to TD’s care, the Society started a protection application in December of 2007, claiming concerns about O’s “failure to thrive”, TD and DR’s drug use and TD’s transience.

[57] O lived with cousins, the Fs, for a period of time but was later returned to O’s care. However, they again became involved in November of 2009, when the local hospital called with concerns about the domestic abuse that TD had suffered at the hands of CM.

[58] O remained with TD and CM but there were ongoing concerns about domestic violence. C was born in […] of 2010. Following the discovery of drugs in C’s system in August of 2010, TD signed a three-month Temporary Care Agreement placing the children in the care of the Society.

[59] The children were again placed with the cousins, the Fs, until December of 2010, when they were no longer able to care for them. O and C have been in foster care ever since.

[60] In addition to the issues they experienced when living with their mother, the children lived through some difficult times with the Fs. I have purposely not gone into the issues with the Fs, as there may be some factual differences between the parties about exactly what happened, and whose fault it was that the children were with the Fs. For the purpose of this motion, those specifics are not important. What is important is that the breakdown of the placement with the Fs has added to the instability that the children have experienced, which increases their need for predictability and consistency from their caregivers in the future.

[61] TD has seen the CAAP assessment dated December 18, 2011, in which the need for consistency and stability was reinforced. Even without the report, she should have known that she needed to demonstrate the ability to offer the children consistent, predictable care, if she wanted them returned to her.

[62] Instead, she completely withdrew from their lives for several months in the last year.

[63] Following the incident on January 19, 2012, when CM was found to be present at TD’s home, the Society required all access to be supervised at their offices. TD did not respond well. She initially reduced her weekly access from six hours to two because she did not feel six hours of supervised access was good for the children. Then, she did not attend for any access to her children from March 26, 2012, until August 7, 2012.

[64] TD then resumed her weekly two-hour supervised visits on August 7, 2012. She had attended five visits by the beginning of October, when this motion was heard.

[65] Unfortunately, TD did not demonstrate appropriate sensitivity to the needs of O in the recent access. During the September 18 visit, O and her mother were observed talking quietly, after which O said, “I do not want to live with (her foster mother) anymore”. This was a marked departure from O’s previous conversations with the worker, in which she had asked to stay with the foster mother.

[66] On the same day, O asked to speak with the worker privately, and told her that her mother said that she “was going to fight for me in court”. A few days later, the foster mother had to explain to O what her mother had meant, as O thought it was “real fighting”. Aside from any issues about whether this was an appropriate conversation for TD to have with a six-year-old girl who is probably conflicted about her future, this was in breach of a court order that TD would not discuss the litigation or adult issues with the children.

[67] TD says she has been confused about what to do about exercising access because she saw the CAAP report and the Child Psychotherapy reports, which made unfavourable comments about her contact with the children. She says her “confusion” contributed to her abrupt decision to stop seeing them completely.

[68] However, she seems to fail to appreciate how damaging it is for these children when she comes and goes from their lives without any warning or consistency. How can TD possibly justify having no contact with her children for several months, while she is trying to pursue a plan to have her children returned to her care?

[69] The psychotherapist’s report of November 29, 2011, commented about the effect of access on O.

Each time O has contact with her mother her emotional stress response is being triggered due to memories of lack of support and neglect. Each visit destabilizes her even further and makes it harder to help her become regulated and calm. She requires time, individual therapy and specific therapeutic co-regulation in order to stabilize and heal. Therefore, it is strongly recommended that O does not continue visits with her mother at this time. To do so may put her at serious risk of permanent emotional instability. [Emphasis in the original]

[70] The issue of the qualifications of the play therapist was not raised on this motion. I note that TD has proffered no clinical evidence to counter the conclusions in the reports but I have considered the possibility that the therapist’s expertise might be challenged at trial, and have accordingly approached her opinions with some caution. However, even if the opinions expressed in the reports were challenged, TD would still have to contend with the factual observations made in those sessions, and show some evidence of how she responded.

[71] If TD wanted to succeed with her plan to have the children returned to her, it would have been important for her to gain some insight into the concerns regarding O’s need for safety and stability, and how TD might meet that need. TD’s decision to terminate contact for so much of 2012, and then suddenly resume visits in the last few months, does not demonstrate any sustained commitment to her children or an ability to focus on their needs, rather than her own. Her whispered discussions with O during her recent access visits further underlines her lack of comprehension about her children’s needs.

The high needs of the children

[72] The children both have special needs, at least in part as a result of their chaotic upbringing, and perhaps exacerbated by their exposure to drugs in utero. As previously mentioned, the children have been assessed at McMaster Children’s Hospital (the “CAAP” report). The report concludes that both children need permanency in a long-term, stable, neutral and safe caretaking placement, as well as a caregiver who can try to mitigate the negative consequences of their early adverse experiences by intervening and advocating for services and support in order to optimize their functioning.

[73] The report recommends therapeutic services for O and her caregivers, to try to help her come to terms with the trauma she has been exposed to and target effective coping strategies for O to utilize during times of stress. The assessors noted,

Although O does not meet the criteria for a mood and/or anxiety disorder at this time, she remains at risk for these types of internalizing disorders. … When children have adverse experiences that are multiple, prolonged, and chronic they are vulnerable to emotional and behavioural difficulties. Such children are considered to have experienced complex trauma. … The most significant factor for O’s future well-being will be her caregiving environment.

[74] C was assessed by the CAAP team as having gross motor skills at a developmental age of nine to ten months, despite a chronological age of 18 months at the time. There were concerns that his other areas of development, such as speech, were similarly compromised, although a formal assessment had not yet been completed. He had a “lazy eye” requiring ophthalmological attention, and was sent for a urological consultation for an undescended testicle. Concerns were noted about the effect of C’s exposure to cocaine as a baby, as well as the effect of C’s exposure to methadone, smoking, marijuana and other prescription drugs during TD’s pregnancy. The CAAP assessment recognized that the long-term effects of these exposures remained unclear but emphasized the need for C to be placed in a stable long-term living environment as soon as possible with caregivers who could obtain a comprehensive developmental assessment to better understand his delays and access appropriate coordinated interventions.

[75] The CAAP assessment summarized C’s situation:

C has significant special needs which will require involvement in specialized therapeutic services and ongoing consistent follow up and interventions. … In order to ensure that his developmental potential is optimized, C will require a parenting environment that can attend to his needs and anticipate and follow-through with recommendations in order that he have success in his future milestones. This needs to occur in a consistent, safe manner with caregivers willing to work with agency supports in a cooperative way.

[76] Since the CAAP report was released, C has been assessed by an Infant Development Worker with the Simcoe County Infant Development Program.[^10] He was found to be functioning significantly below his appropriate age level in all areas of development, including cognitive, receptive and expressive communication, as well as in both fine and gross motor skills.

[77] C is involved with Occupational Therapy and Physiotherapy, as well as the Infant Development Program. He is on the waiting list for a Speech and Language assessment. Doctors are working with him about his visual impairment, but both the foster mother and TD have said that they have been told he is “legally blind”.

[78] The SCIDP recommendations included continued involvement with an early intervention program and a referral to the Resource Teacher Program through Simcoe Community Services; involvement with a Speech/Language Pathologist; involvement with an Occupational Therapist; referral to the Blind/Low Vision Program; participation in Physiotherapy Group for New Walkers; and further assessment prior to school entry to assist with planning.

The inability of TD to meet the high needs of the children

[79] This leads us to the clinical evidence that would be before a trial judge about TD. Although there is no parenting capacity assessment of her, there is a prior psychological assessment, as well as some reports from her psychiatrists.

[80] TD is a long-term recipient of ODSP. She is unable to work due to her own psychological issues.

[81] When TD was approved for benefits in 2008, she was assessed by a well-respected local psychologist, Dr. Peter Marshall, who made a diagnosis of panic disorder with agoraphobia and paranoid personality disorder. However, TD has letters from psychiatrists at Soldiers’ Memorial Hospital in Orillia that do not confirm that diagnosis. In fact, the most recent letter from her psychiatrist, Dr. Guller, dated November 8, 2011, confirms that TD has no signs of “psychopathology, behavioural dysregulation or significant instability”, nor has he observed any psychiatric or mental health concerns that would preclude her fitness to parent. I will assume for the purposes of this motion that TD will be able to establish that she does not have any psychiatric disorder. However, she would then need to establish how she would remain entitled to ODSP benefits and, if she is not disabled, how she would be able to support the children if her benefits are discontinued.

[82] The fact remains that TD has apparently not worked for six years. It is difficult to understand how she will be equipped to raise two young children, requiring significant psychological and medical support, when she has struggled to support herself, and has been unable to function at a high enough level to engage in any type of employment for such a long period of time.

[83] Although the CAAP team did not do a parenting capacity assessment of TD, they had two scheduled sessions with her, one unscheduled session and one telephone discussion. They expressed concern about her emotional and behavioural functioning, her lack of comprehension about the CAS involvement, and her lack of understanding of the children’s needs and the impact they would have on her children in the future. The report stated that “access between (TD) and the children should not interfere with the children’s opportunity for a stable, permanent and long term parenting environment” and recommended that any access between TD and her children be supervised. The assessment ended with the following observation and recommendation:

During this assessment concerns were raised regarding (TD’s) mood and understanding of her personal needs and those of her children. CAAP would support that she may benefit from a psychological assessment in addition to continued psychiatric support to better understand her emotional functioning.

[84] I am satisfied that the reports from TD’s psychiatrist may rule out any psychiatric disorder that would disqualify her from parenting, but TD’s presentation in the assessment raises concerns about her ability to function at a high enough level to offer her children the support they will need to overcome their past experiences. In particular, I am concerned about TD’s continued inability to understand why the CAS was involved with her children, and her insistence on documenting her concerns about the CAS’s conduct of the case to the assessor, rather than receiving feedback about the results of the assessment of her children, and possible strategies to address the children’s needs.

[85] The CAAP assessment further reinforces my concern about TD’s conduct during her recent access visit. She did not display sufficient sensitivity to O, when TD focused on her own need to justify herself to her daughter, rather than trying to obey the court order and shield O from difficult and confusing conversations regarding her future placement.

[86] I share the concerns of the Society. It would be very difficult for TD to manage the complicated and demanding appointment schedule that will be necessary to get both of these children the help that they need to try to address their various problems. She has not shown sufficient insight into the needs of either of her children to expect that she would be able to adequately “anticipate and follow through” with therapeutic interventions. Unfortunately, she has not shown a high enough level of functioning in her own life to expect that she can realistically provide adequate parenting to address her children’s medical, emotional and developmental challenges.

The overall picture of TD’s past care of the children and her current situation

TD’s past care of the children

[87] Despite the various concerns of the Society, particularly the presence of drugs in O’s system at birth, they have tried to give her an opportunity to parent. The Society released O to her mother’s care after she was born, and even terminated their involvement in July of 2009. However, within months of the termination,[^11] the hospital in Orillia contacted the Society about concerns regarding O’s living situation with her mother, as TD was involved with CM by then, and he had choked or tried to strangle TD. She was pregnant at the time with C.

[88] The spring and summer of 2010 appear to have been a difficult time for TD. By the time C was born in […] of 2010, the police had attended at her home on another domestic violence call, and arrested CM on other charges. O was present at the time of this incident. As previously mentioned, in June of 2010, TD contacted the Society to advise CM had threatened both her and four-year-old O. In August, five-month-old C was admitted to the hospital, and drugs were found in his system, including cocaine. CM went to jail from September 2010 to December of 2011.

[89] TD has continued to insist that she was not the source of the cocaine in C’s system. However, regardless of the source, the discovery of cocaine in a five-month-old baby’s system should have been a wake-up call. The children were removed from her care. They have not lived with TD since August 19, 2010. From that day forward, it was up to TD to start gathering her evidence to demonstrate to the court that she had addressed the Society’s concerns about her care for the children, if she wanted them returned to her. Of course, the Society continued to have the onus of demonstrating that the children were in need of protection, but the drug test and the exposure to domestic violence were enough to raise concerns, which TD needed to show she was prepared to address.

[90] As previously mentioned, when the drug test on C came back in August of 2010, TD signed a Temporary Care Agreement to have the children brought into Society care and placed with her cousins. However, when the placement with the cousins subsequently broke down, the children went into foster care.

[91] A trial judge would focus on what TD has done since the “wake-up call” to address the protection concerns, and what plan TD can offer to the children at this time.

TD's current situation

[92] The Crown wardship without access application was commenced over a year ago.[^12] O has now been in care a total of approximately 36 months, and C has been in care 25 months. Given the statutory timelines discussed in paragraph 29, the only options open to a trial judge in this case would be Crown wardship or a return to the mother, with or without supervision.

[93] TD has had over two years, while her children were in Society care, to pull her life together, so that she could raise a triable issue about whether or not the children would still be at risk if returned to her care, and whether or not it would be in their best interests to do so. Despite the problems up to 2010, if she had some evidence to establish that she had adequately addressed the protection concerns, and put herself in a position to be able to offer the children a stable living situation with sufficient sensitivity to their needs, that would be a triable issue and summary judgment should not be granted.

[94] However, despite the spotlight of the CAS, and the court, being on her, TD resumed a relationship with CM. She returned to what she acknowledged was an abusive situation, even after the worker took her to a shelter. She gave him money for housing, leaving herself with nowhere to live.

[95] TD did do some positive things, particularly before CM came back into her life. She did attend a parenting course, she has continued her methadone treatment, she sees a psychiatrist and she attended some counselling with CMHA.

[96] However, it is not enough to simply attend courses or counselling. There has to be some change as a result. TD would have to demonstrate that the supports she has accessed have had a sufficient impact on her that she is unlikely to repeat the mistakes of the past. She would have to establish that things would be better for the children living with her now than they were in the past.

[97] TD has provided no evidence that would raise a triable issue about whether she recognizes the concerns regarding domestic violence, or that she has any appreciation of the children’s special needs and how to address them. She has not said or done anything to acknowledge that she accepts responsibility for what the children went through with her, which extinguishes any hope that she would not repeat similar mistakes.

[98] Despite the courses and counselling, TD continues to struggle. Each time the police have had the occasion to come to her home this year (or, more recently, CM’s home), she has been drunk. She is now facing criminal charges as a result. She has nowhere for the children to live.

[99] Time has run out. Given all her past and current problems, I am satisfied that no trial judge would consider returning these children to TD’s care right now. The only other option available under the statute is Crown wardship, and I am satisfied that such an order would be made at trial.

What services have been offered to try to assist TD?

[100] Before making an order for Crown wardship, the court is required to consider what efforts have been made to assist O and C before intervening. Mr. Winter allowed Ms. O’Keefe to review paragraph 101 of Ms. Bridgeo’s July 15, 2011 affidavit. At that time, the services offered had already been extensive.

The society has had a history of long standing involvement with the mother dating back to August 2006. During this period of time numerous Society and community supports were implemented to address concerns regarding the mother’s ability to parent, substance abuse and address her mental health issues. The services offered over the years have included: Simcoe Outreach Services, Healthy Babies Healthy Children, detox and rehabilitation centers, Early Intervention Program, the mother lived in Jubilee House from July 25, 2008 to June 8, 2009, Wraparound Program, Parenting programs, the Key Program through Soldiers Memorial Hospital, Community Mental Health, psychological testing and support by the Society. Despite the numerous Society and community services implemented to assist the mother in providing appropriate care, supervision, stimulation, stability and appropriate living conditions for the children the mother continues to demonstrate behaviours and patterns of behaviours that expose the children to domestic violence, drug and alcohol use, emotional frailty, and emotional abuse.

[101] I am satisfied that the Society has met its statutory mandate to try to provide services to assist the family, but there are no services available that would give the court a sufficient level of comfort to return these children to their mother. There is no doubt in my mind that, at the conclusion of a trial, an order for Crown wardship would be made. It is time to move forward and try to offer these children a safe, stable placement with caregivers who show sensitivity to the children’s needs and an ability to adequately address those needs, both personally and by ensuring they access available supports and interventions.

Access

[102] Once an order for Crown wardship has been made, the court will not order access to TD unless it is satisfied that the relationship between her and the children is beneficial and meaningful to the children and it will not impair their future opportunities for adoption.[^13] If the children are placed for adoption, any such access order would terminate,[^14] although the Society could apply for an “openness order” to permit continuing contact, again, if the relationship is beneficial and meaningful to the children.[^15]

[103] TD will be unable to meet the statutory test to gain access. O is six and C is two. The Society’s evidence is that they are adoptable, and the current foster parents are considering putting forward a request to adopt them. An access order would inhibit the ability of the Society to move forward with plans for an adoption placement.

[104] More importantly, TD has shown no evidence to establish that continued contact would be beneficial to the children. She has demonstrated in the last year that she is unable to maintain a consistent commitment to exercising her access. There is evidence that the children, particularly O, have behavioural problems and have showed signs of stress after visits. The CAAP assessors expressed some concerns about access and reinforced the need, should access occur, for structure that would “reduce the children’s confusion and their sense of instability”. As indicated above, the child psychotherapists noted in their December 7, 2011 report that, at that time, O was destabilized further by every visit with her mother. The report recommended that O not continue visits with her mother as the visits could put her at risk of permanent emotional instability.

[105] TD’s comments to O during access have been a long-standing concern for the Society, as she has, advertently or inadvertently, undermined O’s placement. This is understandable. It would take a high level of emotional maturity to be supportive of one’s child living with other caregivers. TD does not possess that level of maturity or insight into the stress she is placing on O with comments like, “I am going to fight for you”. The impact on O has been instantaneous, as demonstrated by her statement after access that she did not want to live with her foster mother.

[106] I am satisfied that there is no evidence to expect that TD’s access to C would be any less problematic for him than it has been for O.

[107] The evidence before me does not raise any triable issue about the question of access. It is inconceivable that a trial judge would find that TD has met the statutory test to obtain an order for access.

ORDER

[108] The Society’s motion is granted. There will be an order for summary judgment for Crown wardship without access for O and C, for the purposes of adoption.

WILDMAN J.

Date: November 30, 2012

[^1]: Service on O’s father, DR, is being dispensed with and C’s father, CM, has been noted in default. [^2]: Child and Family Services Act, R.S.O. 1990, c. C. 11, s. 1(2) 1 [CFSA]. [^3]: CFSA, s. 1(2) 2. [^4]: Family Law Rules, O. Reg. 114/99, Rule 16(6) [FLR]. [^5]: FLR, 16(4.1). [^6]: O has been involved in play therapy with a therapist and her supervisor from Family First Play Therapy Center Inc. (the “Child Psychotherapy reports” or the “play therapy reports”). [^7]: O and C were assessed by a multidisciplinary team from McMaster Children’s Hospital in Hamilton. The team included two pediatricians, a child life specialist and a pediatric nurse. Their assessment, entitled Child Advocacy and Assessment Program, Impact of Maltreatment Assessment, was released December 18, 2011 (the “CAAP” report). [^8]: C has been assessed by the Simcoe County Infant Development Program (the “SCIDP” report). [^9]: The CAS affidavit calculates the total time that O has spent in care as of September 26, 2012, at 978 days and C at 649 days. [^10]: The “SCIDP” report, dated June 21, 2012. [^11]: November 26, 2009. [^12]: July 14, 2011. [^13]: CFSA, s. 59(2.1). [^14]: CFSA, s. 143(1). [^15]: CFSA, s. 145.1.