ONTARIO
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.
COURT FILE NO.: SCJ-F 12-452
DATE: 2013-06-18
B E T W E E N:
Children’s Aid Society of Brant
K. Stacy Neill, for the Children’s Aid Society of Brant
Birkin Culp, for the Office of the Children’s Lawyer
Respondent on Appeal/Applicant
- and -
J.B. (mother) and C.B (father)
Margaret McCarthy, for Jennifer Burns
Appellant/Respondent
HEARD: March 5, 2013 in Brantford
MILANETTI J.
1J.B. appeals the decision of Justice Martin dated October 15, 2012 granting the Society’s motion for summary judgment. The result of that order was that both of N.P.B. (child) and J.B. (child) were made Crown wards with no access.
FACTS
The Apprehension
2N.P.B. (born[…], 2007) and J.B. (born […], 2008) were apprehended from the care of their mother, J.B., on September 21st, 2011 after two police officers and a Children’s Aid Society worker attended her home.
3The Society and the police found Ms. B. passed out and inebriated on the couch. There was significant smoke in the home as a pot had been left on the stove to burn. Ms. B. woke up, was yelling, and her behaviour escalated. She assaulted a police officer, and was charged and incarcerated overnight.
4A temporary care order was put in place for the two boys on September 26, 2011. The children were placed in the care of the maternal grandparents subject to Society supervision.
5This placement broke down when, on November 7th, 2011, Ms. B. took the children to a neighbour’s without her parents’ approval. She had an argument about this with her mother and her mother had a heart attack. Ms. B.’s sister assumed care on a temporary basis but she was unable to provide a long-term placement.
6As such, the Society took over and placed the children together in a foster home where they have remained to date.
7Ms. B. exercised supervised access (at her home) two times a week for four hours each visit.
8A protection application was commenced on November 22nd, 2011.
Prior History
9Ms. B. has struggled with abuse and addiction issues for many years. Her two eldest children are no longer in her care as a result of these issues. Her eldest child was placed with his maternal grandparents at 18 months of age and has remained in their care pursuant to a custody order. The second child is in the custody of his biological father.
10The Society has been involved with the family since 2001, when she was pregnant with her first child and found to be using marijuana. The concerns regarding dependency expanded – she was found to be using crack cocaine when pregnant with her second child.
11The Society was also concerned with domestic violence in the presence of the children, the mother’s poor judgment, impulsivity that affected her ability to care for the children and her lack of engagement in Society services. Sadly, these same concerns are addressed in Justice Martin’s decision.
12Ms. B. had issues with both the law and her own mental health in 2005. The latter involvement concerned an involuntary committal to hospital after she threatened to kill both herself and her mother. Between August 2006 and March 2010 there were ongoing reports related to domestic abuse, and the intoxication of the Ms. B. and the children’s father, C.B. The children’s father, Mr. B., was incarcerated. Ms. B. signed a protection service agreement on April 15th, 2010, allowing N.P.B and J.B. to be placed with their maternal grandparents while she worked on her issues of substance abuse and maintaining stability. The children were returned to her care on April 30th, 2010.
13From July to September 2010, Ms. B. appears to have made strides – she had moved to a residence close her parents’ home so that they could provide assistance.
14There were no reports of difficulties with alcohol or drugs. Things seemed more stable until October 2010, when Ms. B. was found by the Society and police to be intoxicated and incapable of caring for her sons.
15The children were thus placed in the temporary care of the Society pursuant to an agreement signed October 27, 2010. N.P.B. and J.B. remained in care until April 29th, 2011, at which point Ms. B. had completed a residential treatment program for her alcohol dependency, made significant progress, and once again had the support of her family.
16The Society’s involvement continued throughout the summer of 2011. Ms. B. called the police in July 2011when Mr. B. came home with a friend and became threatening and abusive. Mr. B. was arrested. Ms. B. and the children went to Nova Vita as a result.
17Mr. B. told the Society that they both had been drinking heavily while caring for the children over the course of that summer. The Society pursued an anonymous report that Ms. B. had been drinking and smoking marijuana on August 29th, 2011. When they attended her home they found three cases of beer and numerous empty bottles of wine and alcohol in the garage. She denied consumption; saying the bottles belonged to others.
18The Society’s next attendance was on the aforementioned visit on September 21st, 2011, when they, accompanied by police, found Ms. B. passed out, not having noticed the burned pot on the stove and the smoke in her home. N.P.B. and J.B. were apprehended and placed in the temporary care of the maternal grandparents subject to Society intervention.
19The children were ultimately placed in foster care, where they remain.
The B.s’ Appeal
20The appellant, J.B., is the biological mother of the two children who were made Crown wards with no access by Justice Martin in her decision of October 15th, 2012. Ms. B. appeals Justice Martin’s decision granting the summary judgment motion of the respondent Society. She asked that Justice Martin’s order be set aside and that the matter proceed to trial. The grounds for the appeal are that:
There was fresh evidence not produced at the summary trial that would be decisive in regards to the best interests of the children;
The learned judge gave too much weight to the hearsay and indirect evidence presented at the summary judgment motion that there were numerous incidents in 2012 when she was allegedly intoxicated;
The learned judge gave too little weight to the emotional and psychological bond between the appellant and both children and to the positive access visits between the mother and children;
The learned trial judge did not take into account the improvement in the appellant mother’s living and health circumstances in 2012.
21The biological father has been noted in default.
22At both the hearing before me and the initial hearing, counsel for the children (provided by the Office of the Children’s Lawyer or OCL) joins the position of the Children’s Aid Society.
23On a motion for summary judgment the moving party, in this case the Children’s Aid Society and the OCL, urged the motions judge to decide that there was no genuine issue requiring a trial. Justice Martin made her decision after hearing two days of argument and reviewing the entire continuing record.
STANDARD OF REVIEW
24Justice MacPherson, in Children’s Aid Society of Regional Municipality of Waterloo v. C.A.D., 2011 ONSC 2253, [2012] W.D.F.L. 1514 at paras. 64, 65 (S.C.J.) articulated the applicable standard of review on an appeal of this matter, on a pure question of law, and on an appellate review of the summary judgment motion, is one of correctness. (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 286 N.R. 1, 219 Sask.R. 1, 2002 SCC 33 (), [2002] 7 W.W.R. 1, 272 W.A.C. 1, 212 D.L.R. (4th) 577, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, [2002] S.C.J. No. 31, 2002 CarswellSask 178 (S.C.C.)).
25Where it is alleged that the Motions Judge made an error of fact, the standard of appellate review lies somewhere between “palpable and overriding error” and correctness. The cases on this standard are analyzed by Justice Hambly in Children’s Aid Society of Waterloo Region v. V.L. and A.C.P. 2006 32610 (ON SC), 2006 32610, 151A.C.W.S. (3d) 453, [2007]W.D.F.L. 2684 [2006] O.J. No. 3785, 2006 CarswellOnt 5729 (Ont S.C.) In those cases cited, the court concluded that the standard is “less deferential than manifest error” but falls short of the standard of correctness, where the matter being determined is one based on written material only.
26It is clear from all the law provided that this is not meant to be a rehearing. I am not to merely substitute my own decision for that of the original motions judge.
27Moreover, I am to be particularly deferential when reviewing the decision of a Justice specialized in this area of the law as is Justice Martin. This latter factor requires little emphasis when I review her extensive and well-reasoned decision.
FRESH EVIDENCE
28Each of the parties ask that I accept fresh evidence at this hearing; the Society by way of motion, Ms. B. only orally. She did not bring a motion. The evidence included her own new affidavit as well as an affidavit from her sister, Amanda. This latter affidavit request was withdrawn. At the end of the day, Ms. B. seeks to introduce evidence relating to her efforts of rehabilitation/sobriety both pre and post-judgment (from St. Leonard’s), her bond with the children, and her relationship concerns; Ms. B. also tendered new evidence to refute the judge’s assertion that she no longer had family supports available to her. I note this information came in the form of a letter from her mother, rather than an affidavit.
29The Society and the OCL also seek leave to adduce fresh evidence – much of which refutes the evidence Ms. B. seeks to adduce. The Society did bring a motion before me. Ms. B.’s counsel consented to the introduction of the evidence sought by the Society.
30The Society strongly opposes the introduction of the evidence sought by the mother, saying that it could have and should have been introduced at the hearing of the summary judgment motion and was not. The Society relied on the test set out by the Supreme Court of Canada and CAS of Metropolitan Toronto v. C.M., (1994) 1994 83 (SCC), S.C.J. 37 at para. 23 (S.C.C.) which states that:
We must determine is it highly relevant in that it enables the court to make a determination on an accurate picture of the situation at hand,
The evidence could not have been adduced before,
It potentially decisive as to the child’s best interests, and
It is credible.
31Counsel for the children suggests that I might receive the fresh information and decide how much weight to afford it.
32While I respect and understand the position taken by the Society, given that I am dealing with one of the most serious life decisions that could face either of a parent or a child, I will consider the new evidence and decide how much weight it should be accorded. I take this position somewhat advisedly as it is clear to me that the St. Leonard’s information, while demonstrative of Ms. B.’s participation and completion (pre- and post-judgment) of a steps to change rehabilitation program, could have and should have been made available at the summary judgment motion.
33A party responding to a summary judgment motion is required to put their best foot forward, lead trump, rather than resting on mere denials.
34While Ms. B. blames her lawyer for this gap, the affidavits reveal that the Society had asked her to sign consents for release of the records of both St. Leonard’s and Holmes House. Justice Martin drew an adverse inference from Ms. B.’s failure to comply with these requests. I note that while the St. Leonard’s information is now being presented, I still have nothing from Holmes House; additional information was sought by the Society via consent. Justice Martin drew an adverse inference from the absence of all of these records.
35Apart from this, Ms. B. advances information about her relationship with Mr. Butler which I note is called into question by the responding affidavits filed by the Society.
Analysis
36Justice Martin was faced with and made a very tough decision. Her analysis was extensive, thoughtful and measured.
37Her decision was grounded on four concerns:
Ms. B.’s long standing history of alcohol abuse,
Her poor relationship choices,
Her failure to cooperate and be candid with the Society and others, and
Her lack of family supports.
38The fresh evidence adduced deals primarily with the first of these concerns – the alcohol addiction. Ms. B. adduces evidence from St. Leonard’s that she completed a 10 week steps to change program there on September 25th, 2012. She files a letter from St. Leonard’s setting out the dates of her attendance. It also says that she planned to attend on a weekly basis for continual education and support, which Ms. B. says she has done.
39Ms. B. faults her former lawyer for failing to request this information. I find this evidence is inconsistent with Ms. B.’s August 9th 2012 affidavit (paragraph 6 specifically) where she gives specific reasons for her underlying refusal to sign the consents.
40The Society had sought Ms. B.’s consents for a release of the St. Leonard’s information as well as that of Holmes House. No information has ever been produced from Holmes House. This is concerning to me on two fronts:
a) the Society requested it, and
b) the affidavit evidence suggests that Ms. B. stopped attending after she discussed with Mr. Butler its usefulness.
41Additionally, I received substantial information about hair follicle testing, and whether or not Ms. B. knew that hair colouring chemicals would affect the test results. The affidavit of Ms. Berrouard dated January 31st, 2013 says that S.B., an anonymous source, told the Society that Ms. B. had gone online and learned that the test could be passed by washing one’s hair in Tide and vinegar for days. The affidavit also notes that Ms. B.’s hair was cut short and freshly dyed at the time of the test. Ms. B. denies all of the above.
42The Society expressed a concern about the validity of the test to Ms. B. and indicated they would need a fingernail test. I learned that a number of calls were made to Ms. B. in relation to this test; Ms. B. did not respond.
43Ms. B.’s affidavit of January 9th, 2013 says the Society never requested a fingernail test. However, the affidavit from Ms. Berrouard, a Society Protection Worker, lists quite specific dates that she and a representative from the SMAART program left Ms. B. messages requesting fingernail testing. The Society also includes a note from Ms. Berrouard’s own file setting out the initial request. This quite specific ancillary information lends support to the position of the Society that they had indeed sought this additional testing.
44I am unimpressed by the Society’s failure to report the positive hair follicle test results, even if they had a concern about their reliability. Such disclosure should have been made. That being said, I am left to wonder why a mother so intent on establishing a record of sobriety in the interests of her children, would not be willing to do everything in her power to assure the courts that she was indeed alcohol free.
45This is particularly so given the significance of the decision before the court. I have no satisfactory evidence as to why the fingernail testing was not completed. This causes me concern.
46This sequence speaks to both the alcohol issues and Justice Martin’s concern about cooperation with the Society. This is a substantial consideration given that any access would have to be supervised as has been the pattern since the apprehension in September 2011.
47I note Justice Martin’s criticism of the Society’s approach at some points (and add my own in relation to the positive hair follicle test), I agree with her conclusion that the relationship between Ms. B. and the Society is far less than ideal. Her lack of cooperation as regards the consents initially, and now in relation to the fingernail testing cause me ongoing concern. For her proposal for ongoing access to work, the relationship would have to be seamless. It clearly is not. While responsibility for some of this must be placed at the feet of the Society, Justice Martin and myself see Ms. B. as being less than forthright with the Society on many occasions.
Relationship Choices
48Justice Martin’s decision addressed a concern about Ms. B.’s relationship choices, most particularly as it impacted on the children. While Ms. B. asserts that she had terminated her relationship with Mr. Butler after he assaulted her in June 2012, the affidavit evidence before me is inconsistent with that assertion. I have two sworn affidavits which state that she was seen arm-in-arm with Mr. Butler at the mall in September 2012, and that his defence counsel made submissions at his criminal proceedings in October 2012 that Mr. Butler and Ms. B. planned to reconcile and that he had been compliant with his bail conditions.
49Ms. B. did not tell the Society about her concerns of abuse at the hand of Mr. Butler (apparently ongoing since March 2012) and in fact sought to have him made a supervisor for her visits with children.
50While Ms. B. focuses in this appeal on what she says is Justice Martin’s improper reliance on hearsay evidence in relation to the allegations of her use of alcohol in or about the July 2011 assault date, I find that Justice Martin specifically did not rely on this hearsay. She rather focused on the July sequences as the basis for finding that Ms. B. had made poor relationship choices. I do not disagree with this finding when I review the evidence.
51Ms. B. asks that I set aside Justice Martin’s summary judgment decision and send the matter back to a trial in Ontario Court. She argues that access should be continued as it is beneficial and meaningful to the children. In this regard she suggests that Justice Martin failed to consider the bond that existed between the children and their mother.
52Ms. B. specifically points to the affidavit evidence of Julia Wiersma (Tab 18) in this regard. While Justice Martin did not specifically address this affidavit, I find that she did indeed focus considerable attention on the relationship between Ms. B. and her children.
53Justice Martin was, in fact, critical of the Society at several junctures.
54Paragraphs 77 to 90 of the decision specifically addressed Ms. B.’s relationship with the boys and criticizes the Society for failing (in its first affidavit sworn May 3rd, 2012) to discuss the mother’s access and the quality of it.
55Paragraphs 84 and 85 of the decision as well specifically addressed this issue. That being said, the law requires something more than a good relationship between parent and child. This is particularly important when children such as these have been in the cumulative care of the Society for more than fourteen months.
56In addition to the nature of the bond/relationship between parent and child, a parent bears the onus of establishing that ongoing access will be beneficial and meaningful to the child and that such access would not impair the child’s opportunities for adoption.
57Justice Martin found that the mother had not met this onus and I have nothing new presented to refute this most significant finding.
58Rather, the fresh evidence introduced by the Society indicates that the children continue to do well in their foster placement subsequent to the court’s decision. They are stable and happy. It would appear that the current attachment is to their foster family rather than their mother.
59Sadly, I understand that the foster parents are not in a position to provide long-term placement. The Society intends to seek an adoptive home that would allow these young boys to remain together. Obviously, this would be the ideal situation for these boys. The longer the decision is prolonged the less likely this will come to pass. They cannot and should not be kept in limbo longer. They need to be allowed the opportunity to be adopted by a strong and stable family.
60I find no error in the decision of Justice Martin. Given the totality of the concerns before her at the time of the summary judgment motion, she made the correct decision in the interests of these boys.
61The fresh evidence presented by both mother and Society do nothing but reinforce the totality of circumstances that led to the decision of Justice Martin.
62The appeal shall be dismissed.
Milanetti J.
Released: June 18, 2013
COURT FILE NO.: SCJ-F 12-452
DATE: 2013-06-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Children’s Aid Society of Brant
Respondent on Appeal/Applicant
- and –
J.B. and C.B.
Appellant/Respondent
REASONS FOR JUDGMENT
Milanetti J.
JAM:mg
Released: June 18, 2013