ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-10-54-03
DATE: 20121221

BETWEEN:

The Children’s Aid Society of the County of Simcoe Applicant – and – L.J., M.W. and B.M. Respondents

Karen O’Keefe, for the Applicant

Linda Paterson-Kelly, for the Respondent L.J.
Christopher Severn, for the Respondent B.M.

HEARD: September 24, 2012

Olah J.

REASONS FOR JUDGMENT

Introduction

[ 1 ] This is a motion for summary judgment by The Children's Aid Society of the County of Simcoe (Society) regarding M.J., born […], 2009 and L.J. born […], 2011, based on an Amended Status Review Application regarding M.J. and a Protection Application regarding L.J.

[ 2 ] Pursuant to Rule 16 of the Family Law Rules (FLR), the Society must demonstrate a prima facie case in support of their requested order that the children be found to be in need of protection and placed in the care of the Society by way of Crown Wardship, with no access, for the purposes of an adoption.

[ 3 ] The Court must be satisfied that no genuine issue exists requiring trial.

Parties

[ 4 ] The Mother has two other older children, T.J. born […], 2006 and H.J born […], 2005 who were previously found to be in need of protection and placed in the custody of the maternal grandmother by virtue of a deemed custody order.

[ 5 ] T.J.’s Father is A.J. A.J. is the not the Father of either M.J. or L.J. Accordingly, A.J., previously identified as a party, is struck as a party to these proceedings.

[ 6 ] The Father of the child M.J. is M.W.

[ 7 ] Belated DNA testing confirmed B. M. as the biological Father of L.J. Accordingly, the party K.F., previously identified as L.J.’s Father, is struck as a party to these proceedings.

Background

[ 8 ] The Society became involved with the Mother in October 2005 when the Mother attended at the Society for assistance in relation to the upcoming birth of her first child. She required assistance with housing and financial issues. In 2006, the Society was once again involved as a result of a violent incident between the Father of the first child and the Mother. In July 2007, when the Society attended at the parents’ home, the Society workers found it to be in deplorable condition. The house was littered with garbage. The Mother reported that the Father was incarcerated at the time and that she was starting to care for the child on her own. On a temporary basis, the Mother placed the child with the Society. At the time of the Society's involvement in July 2007, the Mother was pregnant with her second child, H.J., and that the Father of H.J. was M.W., who was incarcerated. M.W identified himself as H.J.’s Father and identified that he had been diagnosed with bipolar disorder, ADHD and was treated for anger management issues since he was 7 years of age.

[ 9 ] Throughout the period from July 2007 to the time the Society initiated this protection application in March of 2010, the Mother and the Father, M.W., continued their involvement with the Society in relation to ongoing issues associated with transiency, M.W.’s mental health issues, M.W.’s criminal involvement, domestic violence and the Mother's inability to adequately care for the children.

[ 10 ] During the period of July 2007 to March 2010, the children moved between the maternal grandmother’s home, the paternal grandmother's home, and two motels.

[ 11 ] On March 16, 2010, the Society commenced a protection application with respect to the Mother's oldest three children for the following reasons:

(a) the Mother displayed a pattern of being unable to cope with parenting the children resulting in numerous separations between the Mother and the children;

(b) the Mother demonstrated difficulty maintaining stable and consistent housing and financial support to provide for her and the children;

(c) the Mother demonstrated that she was unable to meet suitable, hazard free and appropriate living environments for the children. The Mother had been found to be residing with the children in deplorable conditions on more than one occasion;

(d) the Mother demonstrated a lack of parenting skills and an inability to be a caregiver to the children on a continuous day to day basis.

(e) the Father, M. W., had been incarcerated several times since 2007 resulting in numerous separations from the children;

(f) the Father, M. W., had a mental health condition and was inconsistent with his medication and displayed aggressive behaviours.

[ 12 ] On April 21, 2010, the child M.J. was discharged from the care of the Society. She was placed by way of a final order under the supervision of the Society in the home of the paternal grandmother and her partner, with a consent finding that the child was in need of protection pursuant to section 37 (2) (g) and (g.1) of the Child and Family Services Act (CFSA).

[ 13 ] The child, M.J., remained in this home until June 7, 2010 with regular supervised access to the Mother and the Father, M.W.

[ 14 ] On April 21, 2010, a final order was made placing the two older children T.J. and H.J. in the care of the maternal grandmother under terms of supervision for six months with a consent finding that the children were in need of protection pursuant to section 37 (2) (g) and (g.1) of the Child and Family Services Act ( CFSA).

[ 15 ] On June 07, 2010 the Society brought an early status review application in relation to the child M.J. The child was brought to the Society office by the paternal grandmother's partner, K. S., who indicated that the grandmother was no longer willing to care for the child. The child was left at the Society office and placed in a foster home. The child M.J. remained in the care of the Society and resided in the Society foster home with access visits with her parents three times per week on a supervised basis. With respect to the child, M.J., on August 6, 2010, the Society amended their application to claim Crown Wardship, no access.

[ 16 ] On May 18, 2010, the Mother advised the Society that she was pregnant again, advising that the Father of the child was K.F.

[ 17 ] On October 20, 2010, the two older children, T.J. and H.J, were placed into the care and custody of the maternal grandmother, pursuant to section 57 of the CFSA. Access for the parents were as arranged with the grandmother.

[ 18 ] On […], 2011 the Society received a call from the Orillia Memorial Hospital to report that the Mother had given birth to a child. L.J. Upon discharge from the hospital the child L. J. was placed in the Society foster home with her sibling M.J. With respect to the youngest child, the Society also sought Crown Wardship without access.

[ 19 ] On September 22, 2011 a parenting capacity assessment was completed in relation to the Mother, the Father, M.W. The assessment was not favourable to either parent indicating issues with cognitive delays and mental health concerns.

[ 20 ] In February of 2011, B.M. became aware of the possibility that he was the Father of the child, L.J. However, it was only after the passage of one year, after the birth of the child, that he pursued DNA testing. The Society received DNA testing dated February 17, 2012 which identified B.M. as L.J.’s Father. On Consent of the Society, he was added as a party to these proceedings on March 21, 2012 and he submitted his Answer and Plan of care on May 22, 2012. Subsequently, on July, 2012 he moved to obtain increased access to the child L.J.

[ 21 ] While the Father, M.W has not had access to the child M.J. since January 2012, the Father, B.M. has had supervised access to the child L.J once per week for two hours at the Society’s offices.

[ 22 ] The Mother’s access to both children has been sporadic.

[ 23 ] In July 2012, the Society commenced a separate child protection investigation in relation to B.M., his partner, E.B. and her child B.B. The Society verified concerns relating to domestic violence, housing instability and B.M.’s mental health.

Preliminary Findings

[ 24 ] With respect to M.J., her Father M.W. filed no Answer and Plan of Care. On Consent, the Father of M.J. is found to be in default of Answer and Appearance.

[ 25 ] With respect to M.J., the Mother filed an Answer and Plan of Care in relation to the status review application dated June 9, 2010 but not to the Society's amended application of August 26, 2010 requesting Crown Wardship and no access. Accordingly, the Mother of M.J. is found in default of Answer and Appearance in regard to the Amended Status Review Application requesting Crown Wardship, no access order.

[ 26 ] With respect to L.J., the Mother has filed an Answer and Plan of Care in relation to the protection application dated […], 2011.

Do Genuine Issues for Trial exist with Respect to M.J.

[ 27 ] Neither parent presented an Answer and Plan of Care for the child, M.J. The test for granting an order under s. 65 of the CFSA is the “child’s best interests”, the child having been found to be in need of protection pursuant to s. 37(2) (g) and (g.1). Accordingly, there is no triable issue with respect to the best interests of the child, other than that identified in the Society’s affidavits, namely, that the child has been in care for a period exceeding 12 months; the Mother has had sporadic access to the child, the Father has had no access to the child since January 2012; and, the s. 50 CFSA consideration of the past conduct of the parents.

[ 28 ] In light of the above, in respect to the Father M.W., and the Mother L.J. and the child M.J, there shall be an order that the child M.J. shall be a Crown Ward of the Society with no access to the Father or the Mother, for the purposes of adoption.

Genuine Issues for Trial Regarding L.J.

(i) Finding in Need of Protection

[ 29 ] The child L.J. was apprehended from the hospital, such that the Mother did not have any parenting involvement with the child for an extensive period of time. Even though she was granted access to the child, L.J., she exercised the access sporadically. In fact, the Mother acknowledges her poor attendance and assigns the blame for such attendance on her personal difficulties, which she, only recently plans to address. The Mother also acknowledges her lack of stability, having moved in 2012 four times. Despite the abusive relationship with M.W., in February of 2012, she has endured emotional suffering since her break up with M.W. As well, after February 2012, she was threatened, assaulted and physically hurt. Despite the emotional upheaval suffered in the early months of February, in February 2012, she re partnered with T.J.’s putative Father and suffered a miscarriage.

[ 30 ] The Mother acknowledges that she needs time to improve her housing stability, her financial stability, her personal and emotional stability, her relationship stability and improve her parenting. But, desirous of controlling the placement of her child L.J., the Mother filed a belated affidavit supporting the placement of her two children, M.J. and L.J. with someone who is not the biological Father of M.J. and who has had very limited and recent contact with M.J. Such plan is reflective of her poor judgement and inability to empathize with the children’s needs for stability and nurturance.

[ 31 ] Disregarding the child L.J.’s need to have a relationship with her biological Father, the Mother mislead the Society and the Father as to the existence of the Father. On the other hand, upon discovery of the potential of being a parent to L.J., B.M., took steps to expedite the DNA finding that he was, in fact, L.J.’s parent. Unfortunately, because of the delay in the DNA testing, the delay prevented the child from forming an attachment with the biological Father. In fact, the Father was not involved with the child, L.J. for a period of 1.5 years after the child’s birth. He has taken steps to resurrect his relationship, but, has no appreciation of the emotional harm caused by the delay in his involvement with the child.

[ 32 ] Neither party has established a triable issue with respect to the finding. At the time of the apprehension, and, currently, given the circumstances affecting the Mother and the Father, the child L.J. was and is in need of protection.

[ 33 ] Accordingly, an order shall issue that the child L.J. is a child in need of protection pursuant to s. 37(2)(b)(i) and 37(2)(b)(ii) and 37(2)(g) of the CFSA.

[ 34 ] Further, on consent, L.J. is found to be non-native and non-catholic.

(ii) Are There Genuine Issues with Respect to Access to and Placement of the child, L.J. - The Mother

[ 35 ] As the child was apprehended from the care of the Mother, at the hospital, the Mother had many opportunities to improve her financial, housing, relationship and parenting situation. She addressed none of these issues until most recently. She did not complete counselling to address the issue of domestic violence; she did not undertake personal counselling; she did not complete parenting courses; according to her evidence, she engaged in another relationship which resulted in a miscarriage, despite her Doctor’s denial of such event. She has not addressed the issues raised in the parenting capacity assessment. She has not obtained stability in housing.

[ 36 ] The Mother’s Answer includes a joint application for the care of the child with the maternal grandmother, who has custody of the Mother’s 2 older children. In that application, she indicates that they are presenting a joint plant to ensure the safety of L.J. while in their care, and that such arrangement would allow sufficient time for the Mother to show that she could adequately and independently parent L.J. Of course, the Mother would play a central role in caring for L.J. and this arrangement would ensure that L.J. was raised by family, especially since it was planned that the Mother would move in with the maternal grandmother. As the maternal grandmother currently has custody of the Mother’s two eldest children, who are thriving in her care, it is surprising that the maternal grandmother did not extend a similar accommodation for both younger children. Both believed that their proposed arrangement for L.J., and not M.J. would enable the Mother to independently parent L.J. at the end of 12 months. This plan of care was issued on January 10, 2011.

[ 37 ] It is noteworthy that the maternal grandmother did not provide an affidavit in support of the Mother's reply to the motion for summary judgment and that the Mother's reply, by way of cross motion, essentially supports the placement of the child in the home of her Father, B.M., and not the home of the maternal grandmother as proposed in the Answer and Plan of Care filed.

[ 38 ] An assessment was commenced in July of 2011, 6 months after the birth of L.J. which involved the two children and the Mother, and Father, M.W. It makes no reference to the existence of L.J.’s Father, B.M. The Mother simply chose to ignore this significant issue, the reason lying in the conclusions found in Dr. J. Phillips’ Parenting Capacity Assessment, wherein he noted:

(a) “(Mother) is likely to be highly compromised in regard to participating consistently in any type of support system in regard to parenting activities.”

(b) “(Mother) is not a good candidate for further skill development, given cognitive delays and the history of not learning from her errors.”

(c) “(Mother) is not likely to be consistently receptive to being coached, receiving appropriate advice or assistance and support from others.”

(d) “(Mother) presents with psychological dysfunction which is related to mild intellectual delay … as well as dysfunctional personality characteristics as would likely reflect paranoia, borderline, and narcissistic tendencies. As well, anxiety and depression are thought to be prevalent, and the possibility of bipolar disorder exists.”

(e) “(Mother) presents with severe developmental delays which are likely to overwhelm and compromise her ability to parent effectively.”

(f) “(Mother) acknowledges a history of domestic conflict and argument, but suggests that no such issues exist at this time. However, again, given cognitive compromise, combined with paranoia and a history of interpersonal conflict, Mother is seen to be at high risk for interpersonal conflict and potentially domestic violence.”

[ 39 ] Further, despite the Mother’s allegation that the Psychologist misrepresented her answers and that his findings were therefore unfair, the Mother took no steps to provide psychometric testing to challenge the Psychologist’s findings.

[ 40 ] It is likely that the Mother is incapable of addressing the above issues such that she acknowledges her inability to do so at this time and relies on statements of her love for the child and L.J.’s close bond to her siblings who are in the care of the maternal grandmother. Such statements do not of themselves set up a triable issue. Under s. 59(2.1), the Mother must establish as a triable issue that the child L.J. and the Mother have a meaningful relationship which is beneficial and meaningful to the child; and the ordered access would not impair the child’s future opportunities for adoption. No such evidence was tendered. – an acknowledgement that there is no triable issue in regard to the Mother’s access to the child.

[ 41 ] Rather, the Mother relies on her current and new found positive relationship with the child’s Father, a father she chose not to identify for a period of one year; hoping that, with a placement with the newly identified father, she could make a Status Review Application, based on her future attendances at parenting courses, counselling and enhanced stability in relationships and housing. In her submissions she requested such placement until “she got her act together”. Such belated recognition of her inability to provide for the child’s need for stability and nurturing, certainly does not address the child’s need for current nurturing and parenting.

[ 42 ] Statements of the need of extended family to interact/visit with the child, as pleasurable experiences for the child do not address the primary issue: can the Mother provide the care for this child now?

[ 43 ] All of the above point to one conclusion: there is no triable issue presented by the Mother with respect to placement or access.

(iii) Are There Genuine Issues with Respect to the Placement and or Access to the Child L.J. - The Father, B.M.

[ 44 ] Much of the B.M.'s case rests on his proposition that the Society has not given serious consideration to his ability to parent L.J.

[ 45 ] Such proposition is based on the fact that the child was born on […], 2011. She was apprehended from the hospital on discharge. She remained in the care of the Society throughout the duration of the protection application to this date. On August 3, 2011 an order was made for a parenting capacity assessment to be carried out on consent. This assessment did not include B. M. as it was not known at the time that he was the Father of L.J. B. M. was added as a party upon the completion of DNA testing a mere two weeks after the Society became aware.

[ 46 ] It is indeed unfortunate that the Father was not informed by the Mother of his potential paternity. Nevertheless, he cannot transfer the responsibility for the delay in the recognition of his paternity to the Society. The fact is that during a crucial period of time, as required by the statutory timelines, the child had absolutely no contact with the Father. Unfortunately, pursuant to the statutory requirements, a permanent placement for the child had to be determined within a year of the child's apprehension.

[ 47 ] Despite the fact that the evidence is that the Father has attended all of his access visits; that is well prepared with snacks and gifts; that he has attended on any and all Society appointments as requested; that he is cooperative with the Society; that he has a genuine wish to parent the child L.J.; that he presents as gentle and patient with L.J.; he readily admits that he is a stranger to her and wants to give her time to get to know him, and feel more comfortable around him. For this reason, he has permitted the child's foster Mother and her sister M.J. to be present during his visits. All these behaviours are commendable; however, such evidence acknowledges that L.J.’s primary sphere of influence and attachment is the foster Mother and her sister M.J., and not B.M.

[ 48 ] He also relies in his Plan of Care for the involvement of his current common-law partner E.B. and her son B.B., (not the biological child of the relationship), both financially and emotionally.

[ 49 ] Yet, this relationship does not appear to be stable. With respect to the stability of their relationship, he denies that a major assaultive event occurred as between himself and his partner, but acknowledges that the police were called and there was some sort of altercation between himself requiring either B.M. or his partner to vacate the home for a period of time.

[ 50 ] Not only is there an issue as to assaultive behaviours between B.M. and his partner, but also as to the ability of the partner to appropriately parent. B.M. himself contacted the Society reporting that his partner had spanked her child and left bruises upon him. When the worker attended at the home to investigate, B.M. advised that his concerns were no longer applicable as he and his partner had resumed their relationship and that B.M. would ensure that the child was safe. Despite the fact that the Society did not verify that the child had been physically hurt by any person, the Society opened a protection file as a result of other concerns as follows:

(a) the couple reported many incidents of verbal and physical abuse between one another not in the presence of the child and not with police intervention, although B.M. advised that his partner had left bruises and marks upon him;

(b) on July 1, 2012, the family relocated for the third time in the past six months;

(c) the parties had ended their relationship a number of times due to E.B.’s reported infidelity;

(d) at the time of the Society's investigation the home was observed to be cluttered and messy with safety issues present for the child B.B.;

(e) B.M.’s doctor, had reported to the Society that B.M.'s poor impulse control is a child protection concern, particularly if B.M. is not taking his prescribed medication; B.M. is reported to be taking his required medication at this time; B.M. has not attended for his scheduled appointments with the psychiatrist; B.M.’s criminal activities appear related to those times when he was not compliant with taking his medication; B.M.’s disability for ODSP purposes was reflected as: “poor impulse control” and “mental delays – NOS “; B.M. is required to use hearing aids, but he has not received them yet; B.M. would need a lot of assistance to be able to care for a young child.

[ 51 ] In response to his Doctor’s report, B.M. produced an updated medical report dated July 30, 2012, based on information given to Dr. Ho by B.M. This updated report is contradicted by the statements which B.M. made to the social worker above in that it states as follows:

i. B.M. appears to be taking his medications consistently as he is not had any trouble with the law and has been able to hold down two jobs.

ii. B.M. is in a consistent relationship with E.B. over the last year, and together they have been looking after her son for 18 months.

iii. B.M. obtained his driver's license back in November 2011;

iv. B.M. is to get his hearing tested to see if it would benefit him to get hearing aids.

[ 52 ] In further rebuttal to the original statements made by his physician to the Society, B.M. produced his Vulnerable Sector Check Certificate which indicates that in 2009 he was convicted of possession of a weapon pursuant to section 88 of Criminal Code and received probation for 18 months with a mandatory prohibition order under section 51 (1) of the Youth Court Justice Act; also, on August 30 th , 2011, he was the subject of a police occurrence, which included an assault, wherein he entered into a peace bond. There is also no rebuttal or explanation to the affidavit evidence that B.M. was incarcerated in late March, 2012.

[ 53 ] B.M.’s explanation with respect to his housing being messy at a time of the third move is plausible; and, in any event, I am not as concerned with the cleanliness of the accommodations as indicia of B.M.s ability to parent this young child.

[ 54 ] More concerning is the fact that his original Plan of Care did not include his parenting of M.J., who is not his biological child; such that the 2 sisters would be separated, a separation that is not supported by the Mother or the Society. In the eleventh hour, with the support of the biological Mother, B.M. posits that he is prepared to also parent L.J.’s sister, M.J., with whom he has had no legal or parenting relationship. Despite the fact that his own evidence establishes that he has had very little parenting experience and his own Doctor indicated that he would need assistance to parent L.J., given his problem with impulse control, he would add another child to his wish list. Such proposal would be catastrophic for both children.

[ 55 ] Further, this eleventh hour change of position only underscores a negative assessment of his ability to understand the emotional needs of the individual children; especially since the evidence presented, supported by the Mother and even B.M. is to the effect that the 2 girls should not be separated and that each seeks the emotional support of the other.

[ 56 ] Given the fact that B.M. has no standing for the placement of the child M.J. in his care, I cannot support his claim for the care of his child L.J. which would result in a separation of the two children.

[ 57 ] Further, even though, B.M. has put his best evidence for care before the court, this evidence falls far short of establishing his ability to care for the emotional and physical needs of L.J. having regard to his tenuous relationship with E.B. and B.B., his emotional and mental health condition, his compliance with his medication, his delay in addressing his hearing impairment.

[ 58 ] L.J. requires a placement with her sister, M.J. that is secure, stable, and emotionally supportive and immediate. She cannot wait for her Mother or her Father to “get their acts together”; nor does the legislation permit me to afford the parents with an indefinite opportunity to improve their evidence.

[ 59 ] No evidence was led as to the relationship between B.M. and L.J. being beneficial and meaningful. The only evidence was to the effect that their relationship was tenuous and B.M. needed time to improve his skills and his relationship with his daughter.

[ 60 ] Accordingly, B.M. has not established a triable issue regarding either access to L.J or for placement of L.J. with him.

Conclusion

[ 61 ] Order to go that L.J. be made a Crown Ward with no access for the purpose of adoption.

OLAH J.

Released: December 21, 2012