SUPERIOR COURT OF JUSTICE

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

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

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

ST. CATHARINES COURT FILE NO.: 449/10

DATE: 2013-03-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of the Niagara Region

Ciara McCaffrey, for the Applicant

Applicant

and

R.C. (Mother) and M.C. (Father)

Respondents

Edward F. Kravcik, for the Respondent Mother

No one appearing for the Respondent Father

Ronald F. Adams, for the Office of the Children’s Lawyer for the children T.C. and S.C.

Linda McKenzie, for the Office of the Children’s Lawyer for the child A.C..

HEARD: January 29, 2013

The Honourable Mr. Justice B.H. Matheson

REASONS FOR JUDGMENT

[1] The applicant brought a motion before this Court pursuant to the Family Law Rules and the Child and Family Services Act for an order on summary judgment that the children A.R.C.C., born […], 2000; T.G.A.C., born […] 2004; and S.G.P.C., born […], 2004, shall be made wards of the Crown and placed in the care and custody of the Children’s Aid Society of the Niagara Region.

[2] Also pursuant to the Family Law Rules and the Child and Family Services Act, the Children’s Aid Society is seeking an order on summary judgment that the above mentioned children shall have access to one another and to their siblings K.C., M.C. and J.C. There is to be no access by the parents, M.C. and R.C..

[3] I will be dealing with the issues of law and the relevant statutes later, after I have outlined the basic facts of this case.

[4] I believe that a brief outline of the uncontested facts will put this matter in a better perspective.

BRIEF OUTLINE

[5] R.C. and M.C. are the parents of the six children referred to above.

[6] On June 25, 2010, Mr. C. was arrested for incest, sexual assault and sexual interference. He pled guilty to a number of the charges and was sentenced to nine years incarceration. He is still in the penitentiary.

[7] J.C. and M.C. were made Crown wards with access on August 31, 2011. K.C. is not subject to these proceedings because of her age.

[8] There have been approximately 17 interventions by the Society, with some or all of the children, in the Niagara area. The C.’s lived in the Frontenac area before moving to St. Catharines. The Frontenac CAS had involvement with the C.’s from 1996 until 2000. He apparently pled guilty to assaulting Mrs. C. and K.. Mr. C. was ordered not to reside at the home as a result. It is alleged that Mrs. C. allowed him access to the children. They were apprehended by the Frontenac CAS.

[9] Mrs. C. has signed a consent agreeing to the children J. and M. being made wards of the Crown on September 19, 2011, with access subject to the wishes of the children.

[10] On November 1, 2010, Mrs. C. signed a consent agreeing that all five children be made wards of the Crown for a period of six months with access to be arranged by the Society.

[11] On October 31, 2011, Mrs. C. signed a consent agreeing that the children A., T. and S. be made wards of the Crown for a further period of six months.

[12] Needless to say, there has been much involvement with the C. family and the Children’s Aid Societies in Frontenac and Niagara.

[13] That outline was to provide a basis upon which the Court could apply the law and also the arguments that counsel gave.

[14] The Society seeks an order that the three children before the court be made wards of the Crown and that the parents have no access to them. There would be access amongst the six children.

ISSUES TO BE DECIDED

[15] They are:

(i) Has the court jurisdiction to make the orders requested?

(ii) Is there a genuine interest for trial?

(iii) Should the order be made without a trial?

(iv) Should the final order, if made, deny access by the parents to A., T. and S.?

STATUTES TO BE APPLIED

[16] Rule 16 of the Family Law Rules:

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12(6).

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount.

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may also,

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise to prevent injustice);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pre-trial disclosure).

(10) If the party who made the motion has no success on the motion, the court shall decide the amount of the other party’s costs of the motion on a full recovery basis and order the party who made the motion to pay them immediately, unless the motion was justified, although unsuccessful.

(11) If a party has acted in bad faith, the court shall decide the costs of the motion on a full recovery basis and shall order the party to pay them immediately.

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process.

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission.

[17] Section 65 of the Child and Family Services Act states the following:

(1) Where an application for review of a child’s status is made under section 64, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 57 (1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1.

[18] Section 59 (2.1) of the Child and Family Services Act states:

A court shall not make or vary an access order made under section 58 with respect to a Crown ward 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.

A BRIEF SUMMARY OF THE STATUTES

GOVERNING THIS APPLICATION

[19] Moving party shall serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[20] Responding party or parties may not rest on mere allegations or denials. The respondents shall set out specific facts showing that there is a genuine issue for trial.

[21] If a party’s evidence is not from personal knowledge of the facts in question, the court may draw conclusions unfavourable to that party.

[22] If the court finds that there is no genuine issue, it shall make a final order accordingly.

[23] If there is an issue of law or an issue of financial amount, the court shall decide the issue or issues.

[24] If the court does not make a final order, the court may specify the facts that are not in dispute and state the issue or issues to be decided at trial.

[25] Also sections 65 and 59(2.1) of the Child and Family Services Act allows the court to vary or terminate an existing order. It shall not make an order or vary an order under section 58 unless it is beneficial and meaningful to the child, and not impair the child’s future opportunity for adoption.

THE MAIN ISSUE

[26] The Society is seeking a final order that the children A., T. and S. without a trial making the children Crown wards without access by either parent. In addition to that, the Society is seeking a further order that the children of this proceeding have access to their older siblings: K., M. and J..

[27] Counsel for the children T.C. and S.C. supports the Society’s application for Crown wardship with sibling access.

[28] He sees the only issue is access by the mother, R.C.. He supports the position that the father have no access.

[29] The position of counsel for the Office of the Children’s lawyer on behalf of A.C., Linda McKenzie, is that there should be access by A. to her mother R.C..

REASONS

[30] As stated, this court must determine basically the one issue, should R.C. have access to her child, A..

[31] A. is now 12 and will be 13 on […], 2013.

[32] Counsel for A. states that A. has strongly expressed her wishes that she wants to maintain contact with her mother.

[33] I have read the affidavit of Amy Chapman, who is a child protection worker with the Society. It was a very full and complete report on her medical problems as well as her behaviour. She has made much improvement since going into foster care.

[34] At paragraph 90, the affidavit reads, “… A. does talk about access with her sisters and her mother and it is clear that access with them remains important to her.”

[35] Justice Leach in Huron-Perth Children’s Aid Society and J.F. stated the following at paragraphs 82 and 83:

[82] In this case, to the extent the trial judge considered whether J.F. had satisfied the onus of proving that her relationship was “beneficial and meaningful” from M.F.’s perspective, in the sense required by the authorities, he seems to have relied primarily if not exclusively on the “close and loving bond” existing between mother and daughter, and the fact that M.F. is “clearly attached to her mother”.

[83] However, emphasized by the Divisional Court, such considerations are not enough to satisfy the requirements of s. 59(2.1)(a) of the CFSA, especially in the face of other evidence, also acknowledged by the trial judge in his reasons, that the uncertainty created by ongoing contact with her mother was causing M.F. significant stress.

[36] It is clear that A. is at an age when it becomes increasingly more difficult to be adopted.

[37] Dr. Maureen Joyce has assessed the three youngest children. She diagnosed A. with cognitive delays, global delays with her motor skills, ADHD, and Oppositional Defiance Disorder.

[38] From the material filed it would appear that there may be an issue as to whether she is adoptable. Certainly if there were access rights, that would be one more hurdle to overcome.

[39] The mother has had a long history with the Society both here and in Frontenac. The father is in jail for nine years because of his behaviour with the children and with Mrs. C..

[40] Dr. Oren Amitay assessed the mother’s capacity to parent in May of 2012. He concluded that she lacked the capacity to meet the children’s needs.

[41] Having reviewed the material filed and hearing from counsel, I am not satisfied that there is a triable issue warranting a full trial.

[42] The material before me indicates that there has been a history of improper parenting and sexual abuse by the father, which has landed him in jail for nine years.

[43] The mother has not brought to the court’s attention evidence that would warrant a trial. She has left open the medical evidence of her daughter and has not adduced material evidence to contradict that evidence. In my opinion, a trial on an issue would not be successful.

[44] There will be summary judgment that A.C., T.C. and S.C. will be made Crown wards with access to one another and to their siblings K.C., M.C. and J.C.; and without access to their parents, R.C. and M.C..

”Original Signed by Justice B.H. Matheson”

Matheson, J.

Released: March 12, 2013

ST. CATHARINES COURT FILE NO.: 449/10

DATE: March 12, 2013

B E T W E E N:

The Children’s Aid Society of the Niagara Region

Applicant

and

R.C. and M.C.

Respondents

REASONS FOR JUDGMENT

Matheson, J.

Released: March 12, 2013