COURT FILE NO.: C1333/06
DATE: 2012-11-30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
A.M. (mother)
And
T.L. (father)
Respondents
Ms. Suranganie Kumaranayake - Counsel for the Applicant
Self-Represented
Self-Represented
HEARD: November 26, 2012
The Honourable mr. justice pazaratz
The Children's Aid Society of Hamilton ["the Society"] brought this motion for summary judgment within its amended child protection application regarding the child E.L. born […], 2012. The Society seeks Crown wardship with no access to either parent.
E.L. was apprehended at birth. She has been in care her entire life – nine months.
The mother A.M. is 29 years old. She has five older children. None of them are in her care:
a. One child is in the custody of a maternal aunt and uncle.
b. The remaining four children have been made Crown wards without access. This includes her next youngest child S.C.M. whose case was also disposed of by way of a recent summary judgment motion on October 29, 2012. S.C.M. had also been apprehended at birth and has remained in care his entire life.
The father T.L. is 22 years old. He has two other children whom he does not have access to. He is currently involved with the Catholic Children’s Aid Society of Hamilton (“C.C.A.S.”) in relation to those two children.
The Society initially commenced a Child Protection Application in relation to E.L. on March 6, 2012, seeking an order of six months Society wardship with access in the discretion of the Society supervised in its discretion.
On May 22, 2012 the mother filed an Answer and Plan of Care, proposing that the child be returned to her care under a supervision order. At the time A.M. had counsel but on June 11, 2012 the mother filed a Notice of Change of Representation indicating that she would be representing herself.
On June 25, 2012 the Society filed an Amended Child Protection Application seeking Crown wardship with no access. The mother did not file a separate Answer in relation to the Amended Application, but her original Answer was deemed to apply with respect to the Amended Application.
On July 31, 2012 the father filed an Answer to Amended Application and Plan of Care, supporting placement of the child with the mother; or in the alternative placement with his own mother. He sought access to E.L. At the time the father had counsel.
On September 28, 2012 the Society brought this motion for summary judgment.
Both parents were in court October 2, 2012 when timelines for delivery of responding materials were set. The mother appeared in person, declining assistance from duty counsel. The father appeared with his solicitor. Justice Brown ordered:
a. In relation to this summary judgment motion concerning E.L., the parents were to serve and file reply affidavits by November 2, 2012. Facta were to be served and filed by November 15, 2012. The motion was to be heard during the sittings of November 12, 2012, but not to be called before November 16, 2012.
b. In relation to the summary judgment motion regarding A.M.’s 22 month old son S.C.M., the mother was to serve and file her reply affidavit by October 19, 2012, with facta to be served and filed by October 26, 2012.
- S.C.M.’s summary judgment motion was heard on October 29, 2012:
a. The mother filed no materials in response.
b. She attended in person and requested an adjournment, on the basis that she found court procedures confusing and she had been preoccupied trying to find suitable housing.
c. The Society opposed an adjournment. The mother’s request was declined, primarily on the basis that it would have been unfair to the 22 month old child to have resolution of his situation delayed any further. As well, the mother confirmed she wanted an adjournment to clarify that she had only been homeless since just before S.C.M.’s birth in 2010, rather than the longer period of homelessness suggested in the Society’s materials. Those representations would not have affected the outcome of the summary judgment motion, in any event.
d. The motion proceeded. The court concluded the Society had overwhelmingly established a prima facie case.
e. With the mother filing no materials, the court concluded there was no genuine issue for trial, and summary judgment was granted.
f. The court also concluded the mother had not satisfied the onus placed on a parent in relation to access after a Crown wardship determination.
In relation to E.L.’s summary judgment motion before me, neither parent has filed an affidavit responding to the multiple affidavits filed by the Society. Earlier this month T.L.’s lawyer brought a motion to be removed as his solicitor of record. That order was granted on November 16, 2012, unopposed.
On November 26, 2012 both parents attended in person when E.L.’s summary judgment motion was called to be heard. At the hearing:
a. Each parent was self-represented.
b. Despite repeated invitations by the court, they each declined to see duty counsel.
c. Both parents acknowledged they were aware they were supposed to have filed affidavits in response to the summary judgment motion.
d. The mother acknowledged that less than a month earlier – on October 29, 2012 when she appeared for the Society’s successful summary judgment motion in relation to S.C.M. – the mother had been reminded by this same court of the importance of filing responding materials in relation to a summary judgment motion.
e. Both parties explained that they did not file any responding materials in relation to the summary judgment motion because they felt it would not make any difference.
f. Both parties agreed to proceed with the motion.
g. At the outset of the motion the father said he did not agree to Crown wardship and he proposed that E.L. should be placed with either the mother or with his own mother.
h. Also at the outset, the mother said she did not agree to Crown wardship and felt the child should be returned to her care.
i. After hearing submissions from the Society lawyer, neither parent wished to make any submissions.
- The Society has a history of involvement with the mother dating back to 2002. Among the concerns:
a. There are historical concerns regarding a lack of parenting skills, lack of supervision, domestic violence, and substance abuse. The mother has a long-standing pattern of being unable to appropriately address these concerns.
b. She admitted using alcohol during the first two months of her pregnancy, when she claimed that she did not know she was pregnant.
c. A.M. has been unable to obtain and maintain appropriate housing for a period of at least two years. She has a pattern of being evicted because of unpaid rent.
d. Since January 2011 A.M. has moved at least eight times. She has admitted that many of these residences were temporary or unsuitable for a child.
e. The mother has been advised on multiple occasions of the need to obtain and maintain appropriate housing in order for the Society to move forward with case planning and for the Society to move access out of the access center and into a home environment. The mother has consistently agreed to work toward securing appropriate housing but she has failed to do so.
f. A Society worker offered to write a letter of support to advocate for the mother to receive subsidized housing, but the mother did not accept this offer.
g. In July 2012 A.M. and T.L. moved into the paternal grandmother’s home. They did not permit the Society to conduct meetings at that residence as they reported it was only a temporary residence.
h. On October 25, 2012 the Society learned A.M. was no longer living at the paternal grandmother’s home.
i. For a period of time it was unclear to the Society whether the parents were living together once again. However at the hearing on November 26, 2012 the parties advised the court they are once again living together.
j. The Society and community service providers have struggled to maintain contact with A.M. at times, as she has not ensured that she has airtime for her cell phone.
k. The Society acknowledges that within the controlled environment of the Society’s access center, supervised access generally goes well. Society access facilitators have reported that A.M. generally responds appropriately to E.L.’s needs, although there have been occasional visits when the mother has presented as overwhelmed and she has struggled to settle the child.
l. However there were significant concerns about A.M.’s attendance for access with respect to S.C.M. That access was placed on hold several times because of missed visits.
m. The mother has also missed visits in relation to E.L.
n. A.M. has reported that E.L. cries a lot during visits, and the mother has difficulty getting the child to take a bottle. This is inconsistent with the foster mother’s reports that the child does not cry very often; takes a bottle without issue; and is usually soothed easily. The foster mother advises that E.L. is doing very well; meeting all of her developmental milestones; and has no major health issues.
- The Society expressed concerns about the on again/off again relationship between A.M. and T.L.:
a. The parties have engaged in multiple domestic disputes.
b. T.L. has admitted to choking A.M. four days after she gave birth to S.C.M. T.L. said that he lost his temper.
c. In August 2011 the mother disclosed that during a verbal argument with T.L. he threatened to push her down the stairs if the Society continued to contact them. A.M. was 3.5 months pregnant with E.L. at the time. The mother and T.L. resumed their relationship several days later and the mother said she felt safe with him. T.L. denied that this incident occurred.
d. In November 2011 A.M. reported that T.L. did not trust her due to a paternity test which indicated that he was not S.C.M.’s biological father. The mother reported that she became very angry at T.L. at times, such that she wanted to hit him and he would ask her to leave the residence when she became this angry.
e. Both parties minimize the various reports of domestic conflict – some of the incidents being quite serious.
f. A.M. has not followed through with recommendations made by a Violence Against Women consultant regarding safety planning. The mother was provided with information for community resources which she could access to address the violence in her relationship and to safety plan. The mother later said that she would be willing to follow through with recommendations to “get a certificate so people will get off [her] back”.
g. A.M. also failed to address anger control issues by the father of three of her children.
h. After T.L.’s most recent period of incarceration which ended in July 2012, he and A.M. resumed their relationship.
- The Society has separate concerns regarding T.L.:
a. He admits to using marijuana to manage chronic pain due to a bullet wound.
b. He has refused to obtain a family physician.
c. He has refused to meet with an addictions worker to discuss his substance use, as he does not view his marijuana use as an issue. The Society also believes he uses cocaine and percocets.
d. T.L. has refused to work with the C.C.A.S. since 2009 when his two older children were apprehended.
e. It was reported that T.L. had previously kidnapped those two children from their mother for three days before being apprehended by the police. T.L. has apparently denied this.
f. T.L. has also been incarcerated multiple times in the last two years. He has been incarcerated twice since E.L. was born […] months ago.
g. He was convicted of assault against a female neighbour in mid 2012. He has reported previous convictions for numerous assault charges, assault with a weapon, uttering death threats, theft and breach of probation. A.M. advised the Society that T.L. has been in and out of jail since age 12.
h. T.L. has apparently admitted to pulling a butcher knife at a party because he thought some people were going to start a fight.
i. A C.C.A.S. worker has advised that T.L. had previously been charged with assault against an ex-partner, and he pled guilty to threatening to stab an ex-partner’s 6-month-old baby in the face. T.L. has apparently denied this.
j. T.L. has refused to meet with Society workers.
k. T.L.’s attendance for access to E.L. has been sporadic. He does not attend without A.M.
The Society has investigated potential placement with the paternal grandmother, but she has been ruled out as a suitable potential caregiver, as a result of historical concerns about her involvement with the Society. No other family placements or kinship options have been identified.
The Society’s ultimate position:
a. The mother has admitted to the Society that little has changed in her life since 2007 when three of her older children were made Crown wards.
b. Little has changed since a 2007 parenting capacity assessment ("PCA") regarding the mother and those 3 oldest children [together with a 2008 supplementary PCA] set out a continuing pattern of childcare concerns on the part of the mother.
c. The mother's fundamental inability to organize her life and secure stable and appropriate housing has made it impossible to facilitate an expansion of interaction between the mother and E.L., and to assess her parenting skills in an unstructured environment.
d. The mother shows no sign of being able to overcome her difficulties in the foreseeable future.
e. The father’s criminal and behavioural history, and his current attitude make it inappropriate for him to have any unsupervised contact with any child. His relationship with E.L. is limited.
f. The circumstances of A.M. and T.L. are unlikely to change in the foreseeable future.
g. E.L. has been in the continuous care of the Society since birth – […] months.
h. The child requires permanence and stability. The Society submits that neither A.M. nor T.L. are able to provide this.
i. There is no genuine issue for trial in relation to any aspect of this case.
SUMMARY JUDGMENT
Rule 16 of the Family Law Rules allows a party to bring a motion for summary judgment after the respondent has served an Answer or after the time for serving an Answer has expired.
Rule 16(2) specifically allows for summary judgment in child protection proceedings. The rule does not preclude such a motion in cases in which the Society requests Crown Wardship.
Pursuant to Rule 16(4) the Society is obligated to serve an affidavit, or provide other evidence, that sets out specific facts to convince the court that there is no genuine issue that requires a trial.
Rule 16(4.1) provides that a responding party must also set out by way of affidavit or other evidence that there is a genuine issue for trial. Mere allegations or denials of the evidence of the Society will not be sufficient.
Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.
The court must proceed cautiously in a motion for summary judgment and ensure absolute fairness to the parties (Children's Aid Society of Toronto v. M. (P.), 2002 CanLII 53206 (ON CJ), 2002 CarswellOnt 1883 (O.C.J.)). Considerations of due process, statutory requirements and the best interests, protection and well-being of the children will determine ultimately the appropriateness of summary judgment (Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.), 1999 CanLII 14252 (ON CJ), [1999] O.J. No. 5561 (O.C.J.)).
While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the evidence available, the best interests of the child and their particular needs should not be discounted. (CAS of the Regional Municipality of Waterloo v. R.S., 2000 CanLII 22902 (ON CJ), [2000] O.J. No. 4880).
In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine whether — in that evidence — there are specific facts to support a triable issue in any of the determinations required to be made by the court. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.), 2000 CanLII 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.) (page 8)). The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.), 1999 CanLII 14252, (1999), [1999] O.J. No. 5561, 1999 CarswellOnt 4859 (O.C.J.)).
The court is not to assess credibility, draw inferences from conflicting affidavits or weigh the evidence; this is reserved for the trier of fact: (Children's Aid Society of Nipissing (District) v. M. (M.), 2000 CanLII 22922, [2000] O.J. No. 2541, 2000 CarswellOnt 2372 (S.C.J.)). However, the court can and should examine the evidence to decide whether it meets the threshold test of reliability: (Children's Aid Society of Toronto v. D. (C.), [2004] O.J. No. 2461 (O.C.J.)).
In determining whether there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration which might be available for trial. The court must rely on — and evaluate — the sufficiency of the evidence as disclosed by the affidavits. (Children's Aid Society of Toronto v. H. (C.), 2004 ONCJ 224, [2004] O.J. No. 4084, 2004 CarswellOnt 4076 (O.C.J.).
The court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the applicant to show that there is no genuine issue for trial (Children's Aid Society of Hamilton v. N. (M.), 2007 CanLII 13503 (ON SC), [2007] O.J. No. 1526 (S.C.J.)).
The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. A party cannot rest on a denial and must put his or her best foot forward. (Children's Aid Society of Metropolitan Toronto v. A. (M.), 2002 CanLII 53975 (ON CJ), [2002] O.J. No. 2371 (O.C.J.) (page 6)); (Jewish Family & Child Service v. A. (R.), [2001] O.J. No. 47 (S.C.J.)).
The respondent is obliged to provide a full evidentiary record and put his or her best foot forward in the material. The genuineness of the issue for trial must arise from something more than a heartfelt expression of desire to be given an opportunity to parent. (Children's Aid Society of Toronto v. H. (R.), 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.)).
In determining whether there is a triable issue, the court must not speculate as to possible evidence but rather rely on the evidence as disclosed by the affidavits filed with the court. A submission that the Society's evidence must be tested through cross-examination is akin to the "bald allegation" or "mere denial" referred to in Rule 16(4.1) of the Family Law Rules. (Children's Aid Society of Hamilton v. M.A., [2007] O.J. No. 2454; 158 A.C.W.S. (3d) 766 (S.C.J.); Children's Aid Society of Hamilton v. S.P., [2008] O.J. No. 4608 (S.C.J.)).
The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. (Children's Aid Society of Toronto v. T. (K.), 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736 (O.C.J.)). A genuine issue must relate to a material fact or facts (B. (F.) v. G. (S.) (2001), 2001 CanLII 28231 (ON SC), 199 D.L.R. (4th) 554, [2001] O.J. No. 1586 (S.C.J.)). There must be some connection between the determination of that disputed fact and the outcome of the trial. If determination of the issue will have no bearing on the outcome of the trial, it is not a "genuine issue for trial". (Children's Aid Society of Hamilton v. A.D.L. [2009] O.J. No. 4390 (S.C.J.)).
"No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed." (Children's Aid Society of Oxford (County) v. J. (J.), 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.)); when the "outcome is a foregone conclusion" (Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (1996), 1996 CanLII 7271 (ON SC), 139 D.L.R. (4th) 534 (Ont. Gen. Div.)). To put it another way, no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant. (Children's Aid Society of Simcoe (County) v. S. (C.), [2001] O.J. No. 4915 (S.C.J.); Children's Aid Society of the Niagara Region v. S.C., 2008 CanLII 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (S.C.J).
In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the CFSA. The court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible. (Children's Aid Society of Algoma v. P. (L.), [2002] O.J. No. 2895 (S.C.J.) (page 4)).
It is no longer necessary that every case be "the clearest of cases". Caution is called for but if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child's future. (Jewish Family & Child Service v. A. (R.), supra).
Summary judgment is a tool to control a child's drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent. (Children's Aid Society of Toronto v. H. (R.), 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.), paragraph 15). In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children's Aid Society of Ottawa v. C. (S.), 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 (S.C.J.)).
Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. (Children's Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853).
The court must assume that a responding parent has "put their best foot forward" in their responding material and that this is the most they have to offer at that stage. "The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?" (Kawartha-Haliburton Children's Aid Society v. W.M., 2003 CanLII 2441 (ON SC), [2003] O.J. No. 3903).
It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. (Worthington v. Worthington 2000 CanLII 22469 (ON SC), 13 R.F.L. (5th) 220; [2000] O.J. No. 4853).
While a parent's desire to "have their day in court" is understandable, delay — particularly needless delay, as contemplated by Rule 16 — must be considered from the child's perspective. (Children's Aid Society of Hamilton v. S.P., [2008] O.J. No. 4608 (S.C.J.)).
In all cases, the court must consider the primary objective of the Family Law Rules, set out in Rule 2.
THE LEGISLATION
- The Society seeks a finding that E.L. is in need of protection under sections 37(2)(b)(i) and 37(2)(b)(ii) of the Child and Family Services Act (“CFSA”) which state:
37(2) Child in need of protection
A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.
- Section 57(1) of the Act prescribes that where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:
57(1) Order where child in need of protection
Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:
Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.
Society wardship — That the child be made a ward of the Society and be placed in its care and custody for a specified period not exceeding twelve months.
Crown Wardship — That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the Society.
Consecutive orders of Society wardship and supervision — That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.
57(2) Court to inquire
In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the Society or another agency or person has made to assist the child before intervention under this Part. 57(3) Less disruptive alternatives preferred
The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 57(4) Community placement to be considered
Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for Society or Crown Wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
- In making a decision, the court must give priority to the paramount purpose of CFSA as set out in section 1:
1(1) Paramount purpose
The paramount purpose of this Act is to promote the best interests, protection and well being of children.
1(2) Other purposes
The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. 3. To recognize that children's services should be provided in a manner that,
i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.
To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
The factors to be considered in determining the best interest of a child are contained in s. 37 of the CFSA:
37(3) Best interests of child
Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development. 3. The child's cultural background.
The religious faith, if any, in which the child is being raised. 5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family. 6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child's views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
In determining which disposition is in the best interests of the child, the court must be cognizant of the parameters imposed with respect to the total amount of time a child can be made a Society ward under s. 70 of the CFSA which provides:
70(1) Time limit
Subject to subsections (3) and (4), the court shall not make an order for Society wardship under this Part that results in a child being a Society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for Society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for Society wardship.
70(2) Same
In calculating the period referred to in subsection (1), time during which a child has been in a Society's care and custody under,
(a) an agreement made under subsection 29(1) or 30(1) (temporary care or special needs agreement); or
(b) a temporary order made under clause 51(2)(d), shall be counted.
70(2.1) Previous periods to be counted
The period referred to in subsection (1) shall include any previous periods that the child was in a Society's care and custody as a Society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a Society's care and custody. 70(3) Idem
Where the period referred to in subsection (1) or (4) expires and,
(a) an appeal of an order made under subsection 57(1) has been commenced and is not yet finally disposed of; or
(b) the court has adjourned a hearing under section 65 (status review), the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.
70(4) Six month extension
Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.
ANALYSIS
The Society has presented comprehensive evidence by way of affidavits of its employees setting out each and every component of its request for summary judgment. The Society has established a prima facie case.
A.M. and T.L. each had an obligation to file an affidavit setting out their respective positions: facts which would establish a genuine issue for trial.
As stated, neither parent filed any materials in response to the summary judgment motion. Both parents had ample opportunity to do so. Both parents understood the need to do so. They simply elected not to file any materials because, in their own words, they “didn’t think it would make a difference”. They each elected not to meet the legal onus created by Rule 16(4.1).
In the final analysis I only have the evidence of the Society, and I accept that evidence in its entirety.
I am satisfied that E.L. is in need of protection pursuant to both sections 37(2)(b)(i) and 37(2)(b)(ii) of the CFSA. This is a very young, vulnerable child. The parents have been completely unable to organize their lives, or adequately address personal, lifestyle and relationship issues. They have been unable to progress in their ability to parent E.L.
The father supports the mother’s plan. The mother says she wants E.L. placed in her care, even though the mother has been unable to care for her five older children all of whom have been taken away from her. As Society lawyer Ms. Kumaranayake noted, the mother’s chronic inability to secure and maintain adequate housing – perhaps the most basic element of parenting – makes it clear that she could not provide even the basic necessities for E.L., either on her own or as part of a joint plan with the father.
I have considered all available options and dispositions: the mother’s overwhelming lack of progress in addressing fundamental parenting issues; secondary concerns about her chronic lifestyle and relationship problems; the volatile and unpredictable relationship between the parents; the father’s lack of a realistic plan other than to request access [within the context of E.L. being placed with either the mother or the paternal grandmother]; the best interests of the child; efforts by the Society to assist the parents and the family unit; the lack of alternative kin placement options; and the objectives of the CFSA and the Family Law Rules.
I have also considered timelines. E.L. is nine months old. She has been in care all of her life. Section 70 provides that a child of this age should not be in care more than 12 months. I agree with Ms. Kumaranayake that the section 70 timelines represent a maximum rather than a minimum. I have been presented with no evidence whatsoever to suggest that either parent could realistically address their multiple and fundamental issues and deficiencies within the timelines set out in section 70 - even including a six month extension under section 70[4].
I am satisfied that there is indeed no genuine issue for trial with respect to the motion brought by the Society. The mother has demonstrated that she is reasonably adequate as an access parent — for short periods of time, when she shows up at the Society access facility. But she has done virtually nothing to demonstrate that she has the ability to organize her life to provide a safe and stable physical and emotional environment for E.L. T.L.’s involvement has been even less reassuring.
E.L. cannot wait any longer. She is in need of protection. She requires permanence. She cannot be placed in the care of the either parent — even under supervision — currently or in the foreseeable future. I find that the only realistic option for E.L. is Crown Wardship. There are no other or less intrusive alternatives available.
ACCESS
- Once there is an order for Crown Wardship, the focus of the CFSA is to establish a permanent and stable placement for the child. The Society has an obligation pursuant to section 63.1 of the CFSA to make all reasonable efforts to assist a child who is made a Crown Ward to develop a positive, secure and enduring relationship within a family through one of the following:
1.An adoption. 2. A custody order under section 65.2(1). 3. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.
The Society seeks an order of Crown Wardship with no access for purposes of adoption.
Access is dealt with in sections 58 and 59 of the CFSA. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2.1) creates a presumption against access where the child is a Crown Ward. Section 59(2.1) has not been changed by the recent amendments, and reads:
(2.1) A court shall not make or vary an access order with respect to a Crown Ward under section 58 unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption,
Once there is an order for Crown Wardship, the focus of the CFSA is to establish a permanent and stable placement for the child. There is a presumption against access to Crown Wards (Children's Aid Society of Toronto v. C. (S.A.) (2005) 2005 ONCJ 274, O.J. No. 2154 (O.C.J.). The person requesting access must provide evidence with respect to both requirements of s.59 (2.1). Children's Aid Society of Metropolitan Toronto v. A. (M.) (2002) 2002 CanLII 53975 (ON CJ), 2002 CarswellOnt 1923 (O.C.J.); D. (C.) v. Children's Aid Society of Algoma (2001) O.J. No. 4739 (S.C.J.) (pages 16, 17). The rebuttable presumption under s. 59(2.1) is conjunctive. A person must rebut both elements of s. 59(2.1) or the access cannot be ordered.
The first step is to consider whether or not the access to the Respondents would be "beneficial and meaningful." It must be shown to be beneficial and meaningful from the child's perspective — not that it would be beneficial to a parent or family member.
The Divisional Court provided guidance with respect to the first part of the s. 59(2.1) test in Children's Aid Society of the Niagara Region v. J.C. (2007) 2007 CanLII 8919 (ON SCDC), O.J. No. 1058. Aitken J. stated at paragraph 29:
"Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant" (Children's Aid Society of Niagara Region v. J. (M.) (2004) 2004 CanLII 2667 (ON SC), 4 R.F.L. (6th) 245, 2004 Carswell 2800, at para. 45). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the mother's relationship with the children at the time of trial was that she loved the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified.
Justice Lafrenière adopted those comments in Children's Aid Society of Hamilton v. W.M. (2008) 2008 CanLII 53130 (ON SC), O.J. No. 4052 (S.C.J.), finding that it was not sufficient for parents to state that "access was appropriate and that no concerns had been identified." The court held that the mother's access was not "beneficial" because "it does not bring any positive advantage" to the child.
The meaning of "beneficial and meaningful" was examined by Justice J. W. Quinn in Children's Aid Society of Niagara Region v. M.J., K.S. and S.S. (2004) 2004 CanLII 2667 (ON SC), O.J. No 2872, where he commented:
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.
I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent. Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.
In E.L's case, the Society materials established that the parents’ opportunities to develop a relationship with the child have been stunted by their own shortcomings, and their volatile, unpredictable and chaotic lifestyles. They have filed no materials. There is no evidence in the record to suggest that continuing access between either parent and the child would be "beneficial and meaningful" from E.L.'s perspective.
Similarly, neither parent filed evidence to address the second element of the s. 59(2.1) conjunctive test — that an access order would not impair a child's future ability to be adopted. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable. (Children's Aid Society of Ottawa v. W. (C.) (2008) 2008 CanLII 13181 (ON SC), O.J. No. 1151 (S.C.J.); (Children's Aid Society of Niagara Region v. C. (J.) (2007) 2007 CanLII 8919 (ON SCDC), O.J. No. 1058 (Ont. Div. Ct.)).
Recent amendments to the Act mean that Crown wards who are the subject of access Orders are now still eligible for adoption. However, section 59(2.1) of the Act has not been amended. This means that the presumptive rule (and the test for access) remains the same.
On the access issue as well I find that there is no genuine issue for trial. The parents have not satisfied any aspect of the s. 59(2.1) test.
THE ORDER
- The Society is entitled to summary judgment, granting a final order without trial in the following terms:
a. The child E.L. born […], 2012 is found to be in need of protection pursuant to sections 37(2)(b)(i) and 37(2)(b)(ii) of the CFSA.
b. The child E.L. is made a Crown Ward and placed in the care of the Children’s Aid Society of Hamilton.
c. There shall be no access to the child E.L. by either parent.
d. Service of the Crown wardship order on the parents shall be by way of regular mail to the address set out in my handwritten endorsement.
Pazaratz, J
Released: November 30, 2012
COURT FILE NO.: C1333/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
- And –
A.M. (mother)
And
T.L. (father
Respondents
REASONS FOR JUDGMENT
The Honourable Mr. Justice Pazaratz
Released: November 30, 2012