ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: FS-12-4145
Date: 20130222

B E T W E E N:

CHILDREN’S AID SOCIETY OF THE REGION OF PEEL

Laura Shaw, for the Applicant (Respondent in Appeal)

Applicant
(Respondent in Appeal)

• and -

J.S.

Andrew Sudano, for the Respondent (Appellant in Appeal)

Respondent
(Appellant in Appeal)

HEARD: February 4, 2013

REASONS FOR JUDGMENT

Seppi J.

1On August 22, 2012 Maresca J. of the Ontario Court of Justice (“OCJ”) made an order of Crown Wardship of the child J. (“the child”) with no access to J.S., the appellant. This was on the respondent Children’s Aid Society of the Region of Peel (“the Society”) motion for summary judgment, on which the court found there was no genuine issue for trial. The appellant J.S. is J.’s biological mother. She appeals the order requesting the order be set aside and the Crown Wardship issue be remitted to trial.

2The grounds of the appeal are:

(a) The trial judge made a palpable and overriding error in her appreciation of the facts.

(b) The learned trial judge erred in not considering extending the statutory timelines.

(c) The learned trial judge placed insufficient weight on the respondent mother’s evidence regarding the improvement of her parenting skills and behaviours.

Background/Chronology

3J. was born on […], 2007. In December 2009 the Society applied to the Ontario Court of Justice in Brampton for a supervision order while J. remained in the care and custody of the appellant. The supervision order was granted on March 16, 2010 on consent. On July 15, 2010 the Society apprehended the child, placed her into foster care, and brought an early status review application on July 20, 2010.

4On April 20, 2011 all access by the appellant to J. was by order temporarily suspended. There was a trial period between November 2011 and February 2012 during which efforts were made to reinstate access which were not successful. The appellant has not had any access to J. since February 2012. At the time of the hearing before Maresca J. the child had been in care for a period of 25 months. In pursuance of its legal obligation to obtain a permanent plan for the child pursuant to section 63.1 of the Child and Family Services Act (“CFSA”) the Society had secured an adoptive home for her.

5The Society’s summary judgment motion was originally scheduled for May 30, 2012 but adjourned to August 22, 2012 at the request of the appellant’s then newly retained counsel. The child’s biological father, P.M., did not participate in the child protection proceedings and on March 24, 2010 was found to be “not a male parent” within the meaning of the CFSA.

6It is clear that at the time of the hearing the child had been in care far beyond the legislative timelines. Pursuant to section 70 of the CFSA children under six are allowed to be in the care of the Society for a maximum of 12 months. Pursuant to subsection 70(4) this time limit may be extended by a period not to exceed six months if it is in the child’s best interests to do so.

The Motion Judge’s Reasons for Judgment

7Justice Maresca recognized the need to provide a timely decision and gave oral reasons following the hearing. On the record before me her outline of the material facts is comprehensive and accurate. She noted from the material filed that the finding in March 2010 of J. to be a child in need of protection pursuant to section 37(2)(b)(i) and (2)(b)(ii) was based on agreed facts evidencing risk of physical harm and risk of neglect. The Justice notes the access, which was initially allowed, had been suspended in April 2011 due to a risk of ongoing emotional harm to J. and the child’s apparent distress during the access visits.

8The Justice accurately summarizes the services made available to the appellant with the assistance of the Society in an effort to help her better manage the access visits. She thoroughly reviews the findings of Dr. Betty Kershner Ph.D., C. Psych., who conducted and prepared a detailed Parenting Capacity Assessment dated February 2011. The assessor had relied on two observational visits, as well as numerous recognized psychometric instruments, for the assessment of parenting capacity.

9Justice Maresca carefully considered the observations and conclusions in Dr. Kershner’s report in the context of all the evidence that was before her. She finds consistency in terms of the affidavit materials and records of the access visits. For example, she appropriately expresses concern over the appellant’s high score on a “faking good scale” in relation to her performance on the Child Abuse Potential Inventory, which is an instrument designed to identify the likelihood of future abuse. The assessor’s conclusion, as noted by the Justice, is that the appellant’s scores place her “at an extremely high risk of physically abusing a child in her care.” She notes the assessor’s observations of the appellant on visits with the child to have become “more and more out of sync”, with both the appellant and the child alternately withdrawing and becoming confrontational. The Justice notes the evidence about the access attempts and discontinuation as being consistent with these observations of the assessor. She also in her decision relies on the play therapy report observations and expressed need for reparation relationships for J. who has been “chronically neglected, under-stimulated and subjected to violence.”

10Justice Maresca notes the evidence of the appellant’s transient lifestyle, but also fairly credits her with finding more stability in Ontario Housing during the recent months before the hearing. She thoroughly reviews the appellant’s own affidavit material which, as she correctly observes, shows “very little insight into some of the issues confronting [J.] and her contribution to those issues.”

11The OCJ Justice accurately observes as follows:

The affidavit is replete with denials; it demonstrates no acceptance of any responsibility for the difficulties facing [J.], and sees no problems with herself as a mother.

12The Justice emphasizes the “difficult burden” and onus that is on the Society to demonstrate there is no triable issue. She finds no triable issue on all the material, including the appellant’s affidavit material and letter from the Elizabeth Fry Society counsellor which attests to the appellant’s completion of an anger management program. Justice Maresca also recognizes the need to consider the strict legislative timelines in regard to the child’s best interests and need for permanency planning.

13Justice Maresca observes that mere blanket denials in an affidavit, or evidence of taking courses, without evidence confirming that there has been any progress made in parenting ability as a result of such courses, do not raise a triable issue in the face of the Society’s case which she describes as “strong and significant”.

Analysis

14The standard of review in an appeal from a motion for summary judgment in child protection cases is succinctly stated by Low J. in the Divisional Court in the case of Catholic Children’s Aid Society of Hamilton v. C.R., 2009 34047 (ON SCDC), 2009 CarswellOnt 3850, at para. 10 as follows:

The standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On pure questions of law, the standard of review is correctness. On findings of fact, the reviewing court ought not to interfere unless it is established that there has been a palpable and overriding error. On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law.

1. Did the OCJ Judge make a palpable and overriding error in her appreciation of the facts?

15The appellant submits Maresca J. failed to appreciate the progress the appellant demonstrated as a result of the completion of various programs. The appellant’s position is that the Justice “misapprehended the evidence in relation to her improvements” and thus failed to appreciate she has taken responsibility for her actions and has shown “at least some insight through her actions by recognizing the need to attend these courses and programs”. Counsel submits this is evidence of improvements which raise a triable issue.

16This ground of appeal does not succeed. Contrary to the appellant’s argument, Maresca J. gave due and careful consideration to all the evidence including the evidence about the efforts of the appellant in improving herself. She specifically noted the comments about the appellant working towards creating stability in her life. The conclusion of the court below that there is no evidence of such efforts resulting in any improvement or benefit to the appellant in her ability to parent J. is fair and accurate in the context of the evidence as a whole. Maresca J.’s thorough analysis in her reasons amply supports a clear understanding of the evidence in the finding of facts. There is no palpable or overriding error in her appreciation of the facts.

2. Did the OCJ Justice err in not considering extending the statutory timelines?

17The appellant submits her numerous and documented efforts to improve herself by attending therapy, counselling and various courses make this an exceptional case in which the timelines of section 70(1) of CFSA should not be a significant consideration. The appellant submits she should therefore be given the opportunity for a full examination of the evidence at trial to show she has taken responsibility and made progress “to the point that she is close to being able to have [J.] returned to her care and custody”.

18This ground of appeal also does not succeed. The appellant relies on dicta in the Children’s Aid Society (“CAS”) of Niagara Region v. C.(S.), 2008 52309 (ON SC), 2008 CarswellOnt 5929 at para. 41, and CAS of Toronto v. D.(S.), 2009 CarswellOnt 6725 at para. 72, both of which reference the best interests of the child being the focus in the consideration of the statutory timelines when that timeline has significantly passed.

19In D.(S.) Czutrin J. refers to CAS of Hamilton v. N.(M.) 2007 13503 (ON SC), [2007] CarswellOnt 2453, in which the court had held it to be improper for the CAS to utilize the system as a means of delay to trigger its argument that Crown Wardship is the only remedy. That is not the situation in the case at bar. The Society gave the appellant numerous opportunities and extra time to demonstrate an ability to parent J. In each situation it was the appellant’s own shortcomings which ultimately led to the Crown Wardship application. There was no evidence before Maresca J. to support the conclusion that the extraordinary indulgence of a further extension of time would be in the child’s best interests.

20The Ontario Court Justice made no error in her decision to not consider extending the statutory timelines in the circumstances of this case.

3. Did the OCJ Justice place insufficient weight on the appellant’s evidence regarding the improvement of her parenting skills?

21The appellant submits that Maresca J. erred in weighing conflicting evidence about her completion of the courses or programs. Counsel submits that where there is a conflict in evidence, as there is with respect to the benefits accrued to the appellant from these courses and programs, it is an issue of credibility which gives rise to a genuine issue for trial.

22This ground also fails. A review of the evidence and the reasons of the OCJ Justice make it abundantly clear this is not a case in which there is a conflict in the evidence regarding the parenting programs undertaken by the appellant. This evidence of programs having been concluded by her was accepted by the OCJ Justice. The Society did not dispute the fact that the appellant has taken these courses. There was no credibility issue on those facts.

23What is lacking is evidence to demonstrate the benefit of the programs to the appellant’s ability to parent, as these programs would have needed to benefit and improve the appellant’s serious parenting deficiencies. This was not a credibility issue. The problem is the lack of evidence.

24As noted above in regard to the first ground of appeal, the evidence of the programs and therapy pursued by the appellant was duly canvassed by Maresca J. Her evidence about the programs she had taken was accepted by the court below. But those efforts, on the evidence, have not come to fruition as would be needed to overcome the appellant’s serious parenting deficiencies. Maresca J’s rejection of those efforts and her conclusion that no triable issue has been shown is sound, and accords with the evidence before her.

Result

25For the reasons above, the appeal is dismissed.

Seppi J.

Released: February 22, 2013

COURT FILE NO.: FS-12-4145
DATE: 20130222

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF THE REGION OF PEEL

Applicant
(Respondent in Appeal)

• and –

J.S.

Respondent
(Appellant in Appeal)