ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-1481
DATE: 2012/11/14

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF A.L., born […], 1998

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant

– and –

H.L. (the mother) and S.R. (the step-father)
Respondents

C. Engelking, for the Applicant

H.L., in person
S.R., not appearing
Lise Parent, for the child

HEARD: November 14, 2012

REASONS ON SUMMARY JUDGMENT MOTION

M. Linhares de Sousa J.

[ 1 ] On November 14, 2012, I granted a motion for summary judgment brought by the Children’s Aid Society of Ottawa in this child protection matter. In granting the motion I gave brief oral reasons and indicated that more fulsome written reasons for granting the motion would be given at a later date. What follows are those reasons.

[ 2 ] The summary judgment motion was brought in the context of a child protection application brought by the Society concerning the child A.L., who was born on […], 1998, and who is now 14 years old.

[ 3 ] In its child protection application the Society sought a finding that the child was in need of protection pursuant to s. 37(2)(c) (sexual molestation), s. 37(2)(f) (emotional harm) and s. 37(2)(g) (risk of emotional harm) of the Child and Family Services Act , R.S.O. 1990, c. C.11, as am. [ CFSA ]. The Society seeks an order making A. a ward of the Society for a period of six months. The Society also asks for an order of access to family members at the Society’s discretion, taking into account the child’s wishes and best interests.

[ 4 ] A. is currently in the care of the Society on a temporary care and custody order granted on June 25, 2012, after A. was apprehended by the Society.

[ 5 ] A.’s biological mother is H.L. She contested the child protection application and the motion for summary judgment. She contests that the child is “in need of protection” and that a disposition, placing the child in the care of the Society is in the best interests of the child.

[ 6 ] A.’s biological father, C.R., consented to the Society’s child protection application. A.’s stepfather, S.R., was noted in default at the commencement of the summary judgment motion.

FACTUAL BACKGROUND LEADING TO A. GOING INTO THE CARE OF THE SOCIETY

[ 7 ] The recent facts which led to these legal proceedings were not in serious dispute. Prior to coming into the care of the Society, A. lived with her mother, stepfather and younger sibling, N.L. The evidence supported the finding that A., at 14 years old, is a mature child and raised by her mother to exercise much independence, “a very liberal, alternative lifestyle” (see affidavit of Debbie Brown, dated June 22, 2012, at tab 3 of the continuing record).

[ 8 ] In the spring of 2012, A. and her mother began to engage in serious parent-child conflict. As a result of this conflict A. began running away from her mother’s home and staying at the home of different friends.

[ 9 ] On March 12, 2012, Ms. L. asked the Society to place A. in the care of the Society for one week. Subsequent to that Ms. L. and the Society entered into a voluntary Temporary Care Agreement signed on March 20, 2012, providing that A. would remain in the care of the Society for a three-month period.

[ 10 ] During the period of voluntary care by the Society, the relationship between mother and daughter did not improve. At the one visit which took place in a meeting with the Society worker, the parent-child conflict surfaced in a serious way. After that meeting, A. refused to have any visits with her mother but continued to see her sibling N. The Society respected A.’s wishes not to visit with her mother while at the same time encouraging her to do so. They have also encouraged A. to participate in counseling which the child refused until very recently.

[ 11 ] Ms. L. was not happy with the developments and began to blame the Society for the turn of events and the fact that A. was not visiting with her. She began to criticize the Society’s care and supervision of her daughter.

[ 12 ] In the course of the Society’s investigation during the voluntary Temporary Care Agreement and interaction with the family, the Society began to have the following protection concerns relating to A.: the serious parent-child conflict manifested by A.’s total refusal to visit with her mother, the excessive alcohol consumption of A.’s stepfather and inadequate supervision resulting in A. being sexually exploited.

[ 13 ] With respect to this latter concern, the evidence showed that Ms. L. permitted an unknown 22 year old man to move into the home and share a bedroom with A. who was 13 years old at the time. This unknown 22 year old man began to sexually abuse A. until A. told him to leave the home. Ms. L. was not aware of the sexual abuse until he had left the home. Criminal charges against this individual are pending. Ms. L. has accepted responsibility for her part in the sexual abuse of A. In court she again acknowledged this responsibility and expressed her remorse.

[ 14 ] Ms. L. did not arrange for her daughter to receive any counseling after this traumatic experience. According to Ms. L. this was because her 13 year old daughter did not want to go.

[ 15 ] Nonetheless, this traumatic event in A.’s life, along with the serious conflictual manner in which A. and her mother communicate with each other, as observed by the Society workers, has contributed to the serious deterioration in the parent-child relationship to the point where A. categorically refuses to see her mother and to have any communication with her.

[ 16 ] In October of 2012, an attempt at joint counseling between A. and her mother with the counsellor, Mr. Pascal Hamelin was attempted at Ms. L.’s suggestion and insistence even though it was the opinion of the Society worker that it was too soon in view of the fact that access was not taking place. It was the opinion of Mr. Hamelin that there appeared to be a lot of bitterness and hurt between Ms. L. and her daughter and that a lot of counseling work had to be done before he could “even begin to address the major difficulties and issues between Ms. L. and A.” (para. 27, page 8 of affidavit of Debbie Brown, dated November 6, 2012).

[ 17 ] Since coming into care A. has applied herself to her studies with an Individual Education Plan which assists her in catching up on some scholastic deficits which she has. A. is also involved with a group of circus performers which she enjoys very much. A. is not up to date on all of her immunization and the foster home in which A. resides is in the process of remedying this.

MS. L.’S POSITION

[ 18 ] Ms. L. has consistently taken the position that her daughter should be back in her care. There is no question that Ms. L. loves her daughter and wants her reunited with the family. Ms. L. sought the help of the Society to accomplish this. As the relationship with her daughter deteriorated so did her relationship with the Society. She contests any further Society involvement without a “time-sensitive reintegration plan” for A. to return to the family. She wants to see her daughter and wants to participate in counseling with A.

[ 19 ] Ms. L. contests that A. is a child in need of protection. She maintains that she has only acted with A.’s short term and long term best interests in mind. She contests that A. should be the one to determine whether she has contact with her mother or not.

[ 20 ] Furthermore, Ms. L. does not believe that it is her daughter’s genuine wish not to see her mother. She argues that the Society has alienated her daughter from her.

[ 21 ] Ms. L. has provided this Court with a lengthy affidavit dated November 8, 2012, providing her perspective on the events which led to A.’s apprehension by the Society and to the circumstances in which the family now finds itself. Whether one accepts the facts as presented by Ms. L. or not, the end result is the same. Ms. L. does not deny that there is serious, serious parent-child conflict between her and her daughter to the point of her daughter running away from her care and refusing to have any contact with her. The little contact which has taken place since A. coming into care has ended in parent-child interaction that is conflictual, bitter and hurtful.

[ 22 ] Ms. L. acknowledges at para. 13 of her affidavit, mentioned earlier that “A. returning home at this point will be difficult, but feels that only full immersion back home can salvage the family unit.” Ms. L. does not endorse the use of force to make A. communicate with her and she also acknowledges that there is a flight risk if A. is forced to go home.

A.’S VIEWS AND PREFERENCES

[ 23 ] At the request of A.’s counsel, who spoke to the maturity and the strong feelings of her client, A. was permitted to be present at this motion against the wishes of Ms. L. A.’s counsel submitted that her client does not want to have contact with her mother although she would like to continue seeing her sibling, N.

[ 24 ] Visits with N. have been terminated. Apparently N., according to Ms. L., supports her in the position that if A. wishes to see her sibling she should do it at the family home rather than the Society offices. A. was offered visits with N. in her home as an option but has chosen not to do this. There has not been any access or communication between A. and her family since August 23, 2012.

[ 25 ] A. has expressed to the Society workers and to her counsel that she was “emotionally abused” by her mother who is very controlling and would run away if she were forced to return to her mother’s care.

JURISPRUDENCE ON SUMMARY JUDGMENT AND THE APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

[ 26 ] The test for determining the granting of a summary judgment in child protection matters has been well-established in a number of cases. In particular, I make reference to the cases found in the Book of Authorities provided by counsel for the Society to the court. The principles enunciated in those cases were not contested and every case must be determined on the unique circumstances of the case.

[ 27 ] In this case there are two principal issues, namely, is A. a child in need of protection and what is the disposition that is in her best interests?

[ 28 ] On the motion if the court determines that there is no genuine issue requiring a trial then a summary judgment is mandatory. The “genuine issue” must relate to a material fact or facts. The court must make a proper consideration of “a full evidentiary record” and take a “good hard look at the evidence presented on the motion.”

[ 29 ] If a prima facie case for summary judgment is made out by the Society then Ms. L. must provide evidence to rebut that case. She cannot rest on mere allegations or denials. She must set out in her affidavit material or other evidence the specific facts showing that there is a genuine issue for trial.

[ 30 ] After examining all of the evidence presented on this motion by both parties I conclude that there is no “genuine issue” relating to a material fact or facts requiring a trial. In fact, there is little disagreement on the material facts relating to this family. There is certainly disagreement as to how this family came to the state in which it now finds itself. But there is no real disagreement about the resulting facts that brought A. into the Society’s care or about the facts that point to the conclusion that it is in A.’s best interests to keep her in the Society’s care for the next six months.

[ 31 ] Both parties agree that there is a profound conflict between A. and her mother to the point of this child totally withdrawing from the care of her mother and from any contact with her. The fact that Ms. L. in the past put A. in harm’s way which led to her sexual abuse and left the issue of counseling to her young daughter was not contested. It can also not be contested that this incident has contributed to A.’s withdrawal from any relationship with her mother.

[ 32 ] Both parties recognize that this family requires resources which Ms. L. has not been able to provide nor accomplish on her own to date. Ms. L. acknowledged that this may not be the best time to bring her daughter home. Ms. L. acknowledged that A., if returned to her care is a flight risk. I must conclude that on the facts this is more than just a risk but a probability that will materialize because it has frequently happened in the past and appears to be what moved Ms. L. to seek the Society’s assistance in the first place. There has been no change in this regard.

[ 33 ] Ms. L. alleges certain facts without any evidentiary basis. She alleges that the Society has alienated her daughter from her. A finding of parental alienation requires evidence to support that conclusion. There is no such evidence before me. I also note that A.’s alienation from her mother was occurring long before the Society got involved with this family in a substantial way.

[ 34 ] Ms. L. alleges that the Society has not been encouraging and advancing the counseling A. needs on both a personal level and jointly with her mother. I can find no evidence of that and in fact the evidence is to the contrary. The basis for Ms. L.’s allegation seems to be that A. has not been in counseling until very recently. Ms. L. was quick to add that she was glad that counseling for her daughter had started although it took the Society a long time to get it started.

[ 35 ] The evidence was not disputed that A. is now undergoing counseling; that the counseling is a positive development in A.’s best interests; that the counseling commenced when A. was in the Society’s care; and that it should continue without interruption. This is part of the Society’s plan of care for A.

[ 36 ] Ms. L. denies that it is A.’s genuine wish not to have a relationship with her mother. She provides no evidence to support this denial. In fact, once again, the preponderance of the evidence is to the contrary. I am satisfied on all of the evidence that A. is a mature and independently-minded 14 year old who is capable of knowing her own views and preferences and of clearly communicating those views and preferences to her counsel, as painful as those views and preferences may be to hear. I am also satisfied on the evidence that A. is very capable of acting on those views and preferences to her detriment and possibly putting herself in a situation of risk.

[ 37 ] Finally, Ms. L. submits that she contests the Society application and summary judgment motion because she felt she had no other option in view of the fact that visits with A. were not happening and that she perceived that the Society was not encouraging counseling for A. For the reasons given earlier this submission does not raise a genuine issue on any material fact or facts that would require a trial in this matter.

[ 38 ] For the above reasons, I grant the Society’s motion for summary judgment. Ms. L. has not rebutted the Society’s prima facie case requiring the summary judgment to be granted. A. is a child in need of protection pursuant ss. 37(2)(c), 37(2)(f) and 37(2)(g) of the CFSA . She has been sexually abused in the past and her mother failed to protect her and failed to ensure that she receive the resources she needed to deal with that abuse. The evidence relating to the full dynamics of the relationship between A. and her mother and A.’s complete withdrawal from any contact with her mother and from her mother’s care leads one to conclude, on a balance of probabilities, that a case of emotional abuse or risk of emotional abuse exists if A. is forced to return to her mother’s care at this time has been made out.

[ 39 ] In considering the evidence relating to what disposition is in A.’s best interests, I have examined the evidence in light of the factors enumerated under s. 37(3) of the CFSA . Both parties agree that the commencement of counseling which A. has long needed is a positive development. That should not be interrupted and clearly should continue. Mr. Pascal Hamelin indicated that there are many issues to be dealt with in this case before he could even begin to deal with the mother-daughter relationship. The Society’s plan of care at this point in time is the one that best meets A.’s best interests. There is no other viable option that would meet A.’s needs and best interests. Ms. L. has not presented this Court with any evidence relating to her ability, assuming she could keep A. in her care, to ensure that A. would cooperate with her in continuing with that counseling. Consequently, it is evident that the disposition which is in A.’s best interests at this time is an order for Society Wardship for a period of six months and it is so ordere d.

M. Linhares de Sousa J.

Given Orally: November 14, 2012

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF A.L., born […], 1998 BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – H.L. (the mother) and S.R. (the step-father) Respondents REASONS ON SUMMARY JUDGMENT MOTION M. Linhares de Sousa J.

Given Orally: November 14, 2012