SUPERIOR COURT OF JUSTICE - ONTARIO
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.: C49/12
DATE: 2013-09-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children’s Aid Society of Hamilton, Applicant
AND:
R.M. and J.G., Respondents
BEFORE: The Honourable Madam Justice Brown
COUNSEL:
Ms. Watts, Counsel for the Children’s Aid Society of Hamilton
Ms. Graham, Counsel for R.M.
No one appearing for J.G.
Ms. Bale for the Office of the Children’s Lawyer
HEARD: September 11, 2013
ENDORSEMENT
[1] On December 5, 2012, an Amended Status Review Application was brought by the Children’s Aid Society of Hamilton and issued by the Court with respect to the children, N.M., B.M. and A.M..
[2] A Trial with respect to that Application is scheduled for the sittings of November 4, 2013.
[3] The Society has now brought a Motion for Summary Judgment.
[4] The Society seeks an Order making the children Wards of the Crown and placing them in the care of the Society.
Background Facts
[5] For the purposes of this Motion, I find that the background facts are as follows:
[6] The children are A.M., born […], 2006, B.M., born […], 2002 and N.M., born […], 1998.
[7] The mother of the children is the Respondent, R.M., born […], 1981.
[8] The biological father of A.M. is the Respondent, J.G., born […], 1984. Service of the Amended Status Review Application on J.G. was dispensed with by Orders of Chappel, J., dated August 22, 2012 and July 15, 2013. The Society noted in an Affidavit sworn on July 5, 2013 that despite efforts to contact him, they have had no communication from J.G. in over two years. J.G. has not filed any materials in this proceeding.
[9] The biological father of B.M. is T.C. He is not a Respondent in this proceeding. He is named on B.M.’s Statement of Live Birth, however he is now deceased.
[10] The biological father of N.M. is R.P. He is not a Respondent in this proceeding. According to R.M., he is not named on N.M.’s Statement of Live Birth and has never seen N.M.. On April 2, 2012, Chappel, J. found that there was no male person who qualified as a parent for N.M. within the meaning of the Child and Family Services Act.
[11] N.M. was originally placed in the care of the Society in January, 2011 pursuant to a Temporary Care Agreement. He has remained in the Society’s care since that time.
[12] B.M. and A.M. were placed in the care of the Society in April, 2010 pursuant to a Temporary Care Agreement. They were returned to their mother’s care in September, 2010 but were subsequently apprehended in June, 2011 and placed in care again pursuant to a Temporary Care Agreement. They have remained in the Society’s care since that time.
[13] For the purposes of this Motion, I find that the relevant history of litigation is as follows:
[14] The Society’s involvement with the family commenced on January 29, 2010.
[15] R.M. entered into Temporary Care Agreements with the Society, beginning in April, 2010.
[16] The Society commenced a Protection Application, dated January 11, 2012.
[17] On April 23, 2012, Chappel, J. found the children to be non Native, non Indian, not of the Catholic faith and in need of protection pursuant to section 37 of the Child and Family Services Act. The children were made wards of the Society for a period of four months, with access to the mother at the discretion of the Society in consultation with the children.
[18] The Society commenced a Status Review Application, dated August 22, 2012, seeking a further six month Society Wardship Order. On that date, Chappel, J. made an Order continuing the existing Order.
[19] The Society commenced an Amended Status Review Application, dated December 10, 2012, seeking an Order for Crown Wardship, with access at the discretion of the Society.
Materials Reviewed
[20] In determining this Motion for Summary Judgment, I have very carefully reviewed and considered the following materials, filed in the Continuing Record:
a. Notice of Motion, dated July 11, 2013;
b. Affidavit of Leah Hansen, sworn July 12, 2013;
c. Affidavit of Alison Lucas, sworn July 15, 2013;
d. Affidavit of Alison Lucas, sworn August 22, 2013.
Summary of Society Concerns
[21] I find that the Society’s concerns with respect to R.M. and her ability to parent the children can best be summarized as follows:
[22] R.M.’s alcohol use has been a serious ongoing concern since the Society commenced its involvement with her in January, 2010. Her most recent alcohol hair strand test in November, 2012 indicated heavy alcohol usage.
[23] Over the past three years, R.M. has been offered several supports and services to address her alcohol abuse, history of domestic violence and past issues of trauma. She has failed to follow through with many of these services, despite being advised repeatedly that it is the Society’s expectation that she will in order to even consider having the children returned to her care.
[24] R.M.’s housing situation has been unstable since at least January, 2012 and at times, she has been homeless.
[25] R.M.’s attendance at access visits began to decline in November, 2012. On March 21, 2013, her access was placed on hold after she failed to attend three consecutive visits. Her visits have since been cancelled because she has failed to meet with the Society to discuss reinstating access. She has not had any access since March, 2013.
[26] R.M. has not met with her Society Worker since November, 2012. Between October 5, 2012 and July 5, 2013, she either missed or failed to confirm her attendance at approximately ten scheduled visits or meetings. During this time period, her Worker also made additional efforts to meet with R.M. by attending her home unannounced or by sending letters with proposed meeting dates, without success.
[27] The Society is unaware of R.M.’s current whereabouts. On July 3, 2013, R.M. advised the Society that she was out of town but planned to move back to Hamilton. She has not contacted the Society since that date.
Society’s Position
[28] The Society is seeking an Order making the children Wards of the Crown and placing them in the care of the Children’s Aid Society of Hamilton, with access by R.M. to be in the discretion of the Society and with access between the children to be in consultation with them and taking into account their wishes and to be a minimum of once each month.
R.M.’s Position
[29] R.M. has not filed any materials in response to the Society’s Motion for Summary Judgment and her counsel did not take a position on the Motion.
Office of the Children’s Lawyer Position
[30] The Office of the Children’s Lawyer supports the position of the Society.
Child and Family Services Act
[31] I am governed in my determination of this matter by the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended.
[32] At the hearing of a Protection Application brought pursuant to the Act, the Court must first determine whether the child is in need of protection.
[33] In this case, findings of protection have already been made and I find, based on the evidence before me, that the children continue to be in need of protection.
[34] If a child is found in need of protection but the Court is not satisfied that an Order is necessary to protect the child in the future, section 57(9) of the Act provides that the Court must Order that the child remain with or be returned to the person who had charge of the child immediately before intervention.
[35] Section 57(1) of the Act prescribes that where the Court finds that a child is in need of protection and is satisfied that intervention through a Court Order is necessary to protect the child in the future, the Court must make one of the following Orders or an Order under section 57.1 (custody Order), in the child’s best interests:
That the child be place in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.
That the child be made a Ward of the Society and be placed in its care and custody for a specified period not exceeding twelve months.
That the child be made a Ward of the Crown, until the Wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the Society.
That the child be made a Ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.
[36] The “best interests of the child” is the governing principle when considering placement.
[37] The factors to be considered in determining the best interests of a child are contained in section 37(3) of the Act, which provides as follows:
Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[38] Sections 57(2), 57(3) and 57(4) of the Act obligate the Court to consider additional factors when determining the issue of placement, including whether there are any less disruptive alternatives, such as community or extended family placements, and to make enquiries with respect to what efforts the Society has made to assist the child before intervention.
[39] In determining which disposition is in the child’s best interests, the Court must be also be cognizant of the parameters imposed with respect to the total amount of time a child can be made a Society ward under section 70 of the Act.
[40] Section 70 provides that the Court shall not make an Order that results in a child being a Society Ward for a period exceeding twenty-four months, if the child is six years of age or older on the day the Court makes an Order for Society Wardship. This time limit may be extended by six months, should the Court determine that it is in the child’s best interests to do so.
[41] In this case, the children have been in care in excess of the timelines with respect to an Order for Society Wardship.
[42] Therefore, if I determine that intervention is necessary to protect the children in the future, the only options available to me at this time are to return the children to the care of a parent or other person with or without supervision or to make an Order for Crown Wardship.
[43] The Court’s decision with respect to what will happen to the children must take into consideration the paramount purpose of the Act, as articulated in section 1(1), which is to promote the best interests, protection and well being of children, and which takes precedence over all other considerations.
[44] The Court must also consider the additional purposes of the Act, as set out in section 1(2), provided they are consistent with the best interests, protection and well being of children.
[45] With respect to the issue of access, section 58 of the Act sets out the test, namely that the Court may, in the child’s best interests, make, vary or terminate an Order respecting a person’s access on such terms and conditions as the Court considers appropriate.
Summary Judgment - No Genuine Issue for Trial
[46] In considering a Motion for Summary Judgment, the first step is to review the entire evidentiary record, to determine whether in that evidence there are specific facts to support a triable issue in any of the determinations required to be made by the Court: (Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.). 2000 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.).
[47] In this regard, I have very carefully reviewed the Affidavits filed on this Motion for Summary Judgment and I have considered that evidence in conjunction with the relevant legislation and the caselaw.
[48] The test for granting Summary Judgment is met when the moving party satisfies the Court that there is no genuine issue of material fact that requires a Trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for Trial. The fact must be material: (Children's Aid Society of Toronto v. T. (K.). 2000 20578 (ON CJ), [2000] O.J. No. 4736 (O.C.J.).
[49] A “genuine issue for trial” requires that there be some connection between the determination of that “triable issue” and the outcome of the Trial. If determination of the issue will have no bearing on the outcome of the Trial, it is not a “genuine issue for trial”.
[50] Additional guidance with respect to assessing whether a Society has met its obligation of showing that no genuine issue for Trial exists can be found in Children's Aid Society of Oxford (County) v. J. (J.). 2003 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.), where Mr. Justice Heeney stated: “As to what constitutes "no genuine issue for trial", the Ontario Court of Appeal has equated that phrase with "no chance of success", and "plain and obvious that the action cannot succeed": (Prete v. Ontario, 1993 3386 (ON CA), 16 O.R. (3d) 161 leave to appeal to S.C.C. refused, [1994] S.C. C.A. No. 46, 110 D.L.R. (4th) vii.)
[51] Chapnik J. in Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) 1996 7271 (ON SC), 139 D.L.R. (4th) 534 also provides a useful yardstick in suggesting that it is appropriate to grant Summary Judgment "when the outcome is a foregone conclusion."
[52] Stated slightly differently, no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the Applicant: (Children's Aid Society of Simcoe (County) v. S. (C.). [2001] O.J. No. 4915 (S.C.J.)).
[53] In opposing a Motion for Summary Judgment, the Respondents are obliged to provide a full evidentiary record and put his or her best foot forward in the material.
[54] The genuineness of the issue for Trial must arise from something more than a heartfelt expression of desire to be given an opportunity to parent: (Children's Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.)).
[55] The responding party, faced with a prima facie case for Summary Judgment, must provide evidence of specific facts showing that there is a genuine issue for Trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific fact showing that there is a genuine issue for Trial must be insufficient to defeat a claim for summary judgment: (Children's Aid Society of Metropolitan Toronto v. A. (M.). 2002 53975 (ON CJ), [2002] O.J. No. 2371 (O.C.J.)).
[56] Rule 16 of the Family Law Rules governs Motions for Summary Judgment. Subsection 4.1 of that Rule provides as follows:
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.
Burden of Proof
[57] In a Motion for Summary Judgment, the moving party bears the onus to prove, on a balance of probabilities, that there is no genuine issue requiring a Trial for its resolution.
[58] An Order making a child a Ward of the Crown is probably the most profound civil order that a Court can make. In this regard, I note with approval the following comments made by Henderson, J. in Children’s Aid Society of Niagara Region v. R. (P.) 2005 CarswellOnt 1405 (S.C.J.):
An order that permanently removes someone's child from them will have dramatic and life-altering effects. Therefore, a judge should only exercise his or her power to do so after a careful examination of the evidence and the possible alternatives (para. 19).
[59] There has been some debate in the caselaw with respect to whether the significant consequences of a Crown Wardship order raise the burden of proof from the ordinary civil burden based on the balance of probabilities to some higher burden. With respect to this issue, I agree with the position taken by Henderson, J. in Children’s Aid Society of Niagara Region v. R. (P.), supra:
In my view all of the comments of the judges and authors in this area are in reality comments with respect to the need for high quality evidence in matters that involve profound consequences. Their comments should not be interpreted as changing the burden of proof; rather they should be interpreted as placing an evidentiary burden on a party to provide convincing evidence whenever the order sought would result in profound consequences.
Therefore, without any clear binding authority that specifically defines a new type of burden of proof in Crown wardship cases, I find that the burden of proof in Crown wardship cases is the ordinary civil burden based on the balance of probabilities.
Analysis and Discussion
[60] Based on the evidence presented by the Society, I find that it has established, on a balance of probabilities, a prima facie case for Summary Judgment.
[61] Not only has R.M. failed to provide a full evidentiary record and put her best foot forward in the material, she has decided not to participate at all.
[62] The evidence satisfies me that a Crown Wardship Order would be a foregone conclusion if this matter were to proceed to Trial. That evidence includes the following:
a. R.M. has demonstrated considerable ambivalence with respect to her commitment to the children, as evidenced by her inconsistent attendance at access visits and by her having not attended for any access since March, 2013. Her behavior is not suggestive of a parent who will reliably play a role in the children’s lives over the long term.
b. R.M. has been unable to control her usage of alcohol for an extended period of time, despite knowing that this was a requirement in order to move forward with plans for reintegration of the children into her care. This behavior is suggestive of a parent who is unable to place the children’s needs ahead of her own.
c. R.M. has failed to follow through with many of the services and supports offered to her by the Society and has not maintained contact with the Society. The Society has no information regarding her current whereabouts.
d. R.M. has been unable to maintain stable housing and has at times been without a home.
e. The children have special needs. All three children have been diagnosed with Attention Deficit Hyperactivity Disorder and N.M. and B.M. have been diagnosed with learning disabilities. The Child Advocacy and Assessment Program Impact of Maltreatment Assessment of the children, dated November 15, 2012 indicate that the children require a long term parenting environment that is stable, consistent and predictable and that they require caregivers who understand and can advocate proactively for them. R.M. has not demonstrated that she is able to satisfy these requirements.
f. J.G. has had no contact with the Society for over two years and has not participated in this proceeding in any way.
g. There were issues of violence and inappropriate parenting by J.G. when he was in contact with R.M. and the children.
[63] Responding parties have an obligation to put their best evidence forward when answering a Motion for Summary Judgment. Neither parent has done so in this case.
[64] With respect to the children’s placement, I have considered the “best interests” criteria set out in section 37(3) in relation to the evidence before me and I find, on a balance of probabilities, that there is no triable issue in relation to that evidence which would lead to anything other than an inevitable finding that it is not in the children’s best interests to be placed in the care of either R.M. or J.G.. I find that the children could not be adequately protected in their care, even with terms of supervision.
[65] Based on all of the evidence before me, I find that further intervention by way of Court Order is necessary to protect the children in the future.
[66] In view of the nature of the concerns identified by the Society with respect to the Respondents, I find that neither Respondent will be able to meet the children’s physical, mental or emotional needs now or at any time in the near future.
[67] The children have been in the care of the Society for more than thirty months. Permanency planning for them must begin.
[68] As required, I have considered the services offered to the children and R.M. prior to intervention. R.M. was offered a variety of programs to address the issues of concern to the Society, but failed to follow through with many of them, despite being advised repeatedly by the Society that it was their expectation that she would do so in order for them to consider returning the children to her care.
[69] Neither parent has advanced any alternate caregivers for the child. The paternal grandmother had recently approached the Society indicating that she would like to adopt B.M. and A.M., however on July 19, 2013, she advised the Society that she had decided not to put forward a plan.
[70] Therefore, having determined that intervention is required and that it is not in the children’s best interests to be placed in the care of R.M. or J.G. and having no other less intrusive options available to me, I find that the children’s best interests require an Order for Crown Wardship.
Access
[71] The Society is seeking an Order that access between the children and R.M. be in the Society’s discretion. I find that this is appropriate and in the children’s best interests and I will so Order.
[72] The Society is also seeking an Order that access between the children be in the Society’s discretion in consultation with the children and in accordance with their wishes, to be a minimum of once per month provided they wish to attend. I find that this is also appropriate and in their best interests and I will so Order.
Order
[73] My Order is as follows:
The children, A.M., born […], 2006, B.M., born […], 2002 and N.M., born […], 1998, shall be made Wards of the Crown and placed in the care of the Children’s Aid Society of Hamilton.
Access between the children and their mother, R.M. shall be in the discretion of the Children’s Aid Society of Hamilton.
There shall be sibling access in the discretion of the Children’s Aid Society of Hamilton in consultation with the children and taking into account the children’s wishes, to be a minimum of once per month provided the children wish to attend.
Service of this Order on R.M. shall be by way of regular mail to her counsel of record and also to her last known address, being G[…] Avenue North, Hamilton, Ontario.
Service of this Order on J.G. is dispensed with.
The matter is removed from the November 4, 2013 Trial sittings.
Brown J.
Release Date: September 11, 2013