COURT FILE NO.: C-954-08
DATE: 2013-11-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Catholic Children’s Aid Society of Hamilton
Applicant
– and –
R.M.
- and –
N.M.
Respondents
Toni Hammond-Grant, Counsel for the Applicant
Salvatore Garcia, Counsel for R.M.
Self-Represented
HEARD: November 6, 2013
The Honourable Mr. Justice J. W. Sloan
[1] At the beginning of trial Joel Kerr, who had been the lawyer for the respondent N.M., asked to be removed from the record and excused from the court room.
[2] N.M. had previously filed a notice of change in representation dated September 26, 2013, indicating that he would be representing himself. This is contained Tab 13 of the continuing record.
[3] After confirming with N.M. that he wished to represent himself and that he did not want Mr. Kerr to represent him and after explaining to him that the matter was going to proceed today N.M. also consented to Mr. Kerr being removed from the record and excused from the court room.
[4] Based on the above, Mr. Kerr was removed from the record and excused and the motion for Summary Judgment proceeded with N.M. being self-represented.
[5] For the record N.M. had been previously represented by another lawyer so it is obvious to the court that he has had access to legal advice and representation.
[6] This case involves two small children and both respondents are the biological parents.
[7] The children are G.M. born […], 2010 and S.M. born […], 2011.
[8] The current Status Review Application for S.M. was commenced February 29, 2012 and for G.M. was commenced March 6, 2013.
[9] Unfortunately for everyone involved the original Summary Judgment Motion which was heard in September of 2012, was, for procedural reasons, sent back for a rehearing by the Divisional Court on June 3, 2013.
[10] The CCAS requests that:
I. G.M. be placed in the custody of his mother pursuant to section 57.1 of the CFSA;
II. there be no access to G.M. by his father N.M.; and
III. the child S.M. (who has been in care since birth) be made a Crown ward without access and that any previous access orders be terminated.
[11] The CCAS currently has several concerns with respect to N.M.’s behavior and ability to parent effectively, including:
A. Domestic violence.
B. Not co-operation with CCAS.
C. Not always being forthright with the CCAS.
D. Not following Court Orders.
E. Filing approximately 12 different plans of care.
F. Making very little progress which would allow him to be considered as a full or part time care giver.
G. He forms multiple inappropriate relationships.
H. He has not filed any material to verify that anyone would be able to assist him with parenting.
I. He is a flight risk with no ties to Canada.
J. Inappropriate behavior to the children during supervised access.
Domestic Violence
[12] The CCAS filed a blue Criminal Reports Brief, which sets out 14 occurrences when police investigated either domestic violence or domestic harassment complaints against N.M..
[13] The brief is replete with physical violence and intimidation by N.M. on R.M..
[14] At Volume 1 Tab 24 of the Trial Record it shows that N.M. was convicted of assaults and uttering threats and breaches of probation for which he pleaded guilty and was sentenced on two occasions to the presentence custody and probation.
[15] N.M. was asked by the CCAS to take the Partner Assault Response program known as PAR.
[16] The final evaluation of his progress in this program is set out at Tab 23 of the trial record. Although N.M. appears to have attended and taken part in the program at paragraph 4 on the second page of the final report he did not complete the final letter of accountability which is a requirement of the program. Therefore he did not complete the program.
[17] N.M. did however, furnish a report which "includes some of the beliefs he continues to carry in regards to his partner and himself which are reflective of his unaccountability and the lack of insight and reflection on that which was discussed in the program. He "includes much blame of the system, stress, his partner and culture when speaking about his situation.”
[18] The report goes on to state, that the facilitators of PAR did attempt to contact him to review their concerns and inform him of their recommendations however they were unsuccessful in making contact with him.
[19] In essence the report indicates that N.M. did not demonstrate accountability for his abusive behavior which he continues to blame others for, altrenatively he ties to justify it or simply minimizes it.
Filing Numerous Different Plans of Care
[20] In his Plan of Care dated April 21, 2011 his plan was to reconcile with R.M. and to raise the child together. (Plan 1)
[21] In May 2011, his plan was to graduate and get a job go back to the Congo get married and bring his new wife to Canada to care for the children. (Plan 2)
[22] On June 28, 2011 his plan was to have both children placed with him and his girlfriend A.S.. He stated that he had known A.S. in April of 2007 and that they started dating seriously in May of 2011. (Plan 3)
[23] On September 13, 2011 he stated that his relationship with A.S. did not work out and that he wanted to reconcile with R.M.. To further this plan he contacted her in violation of his probation order.(Plan 4 although similar to Plan 1)
[24] On December 20, 2011 he advised the CCAS that although he did not trust R.M. he wanted to reconcile with her after his probation was finished.(Continuation of Plan 4)
[25] In his March 28, 2012 Answer and Plan of Care, he states that he is going to care for the children by himself and sets out other people and entities who may assist him but to date has not provided any proof of whether they will assist or what assistance they can offer. (Plan 5)
[26] On June 12, 2012 advised CCAS that he wanted his children placed with his brother P.M. in Michigan. (Plan 6)
[27] In his affidavit filed July 27, 2012 he asked that S.M. be adopted by his brother P.M. in Michigan. The affidavit did not mention the child G.M.. (Plan 7)
[28] On November 23, 2012 he provided a new plan stating he would live with S.L.M. and raise the children with her. (Plan 8)
[29] He repeats the above request on February 11, 2013 when he filed a further Answer and Plan of Care and stated that he and S.L.M. would be the caregiver of the children.
[30] On August 1, 2013, he requests that the two children be returned to his care alone. (Plan 9)
[31] On September 7, 2013, he requested that only S.M. be returned to his care. (Plan 10)
[32] On September 16, 2013 he filed a further answer and plan of care [Exhibit 2] in which he stated that his wife A.M. is going to look after both children. He tried to explain how A.M. could be his wife when she still lives in the Congo and he hopes to bring her to Canada. He tried to explain that they were married however at best it seems that the two families have agreed that they should be have married and something like to a dowry may have been paid. He was also clear that they have never attended to before a celebrant to get married in the sense of what Canadians would consider a marriage and since N.M. has obvious strong Christian beliefs I'm not sure how he could consider himself married. In any event A.M. is a 22-year-old person that he knew in the Congo however when he left that country for North America she was an eight years old child. He states in his Answer and Plan of Care that, “A.M. is willing to be the mother and take full responsibility for both children.” (Plan 11)
[33] No documents were produced at court in an effort to confirm whether any of the above allegations with respect to A.M. are true and what her prospects of being accepted as a landed immigrant in Canada would be or when she might be able to come to Canada on a permanent basis.
[34] N.M. could not articulate a plan as to how he would support A.M. and the two children.
[35] At this point in time there is simply no realistic stable and permanent plan put forward by N.M. to care for either of the children.
[36] If N.M. had custody of either of the children over the last two years they would have at the very least gone through multiple significant caregivers in the form of stepmothers in a very short period of time.
[37] In his affidavit of September 16, 2013 (Ex 2) he indicates that he has a wife while in his affidavit dated September 17, 2013 (CR V8b Tab 11) he indicates he is not in a relationship. This of course cannot be, and therefore it does not appear that he read these documents carefully before swearing that they were true.
[38] When the court distills down all of his plans they are essentially to find someone other than himself to raise the children.
[39] No other person has filed any material to indicate that they are willing to assist N.M. or what type of assistance they could reasonably offer.
[40] N.M. who says he will continue his education and/or work has not filed any material with the court that would suggest that he has looked into day care for either of the children, and whether that day care is available and whether it is affordable.
Ability to Work With CCAS and Abide by Court Orders
[41] N.M. has expressed a dislike for the CCAS and its workers. He has asked for a change of society workers on a number of occasions.
[42] Despite being asked not to call and leave messages for workers who are not familiar with this file and not to attend at the CCAS is without an appointment he continues to do so.
[43] He has expressed on numerous occasions, verbally and in writing, that he distrusts almost everybody including the CCAS, lawyers, police officers and anyone he feels is working for or with the government. He sends copies of these letters to Prime Minister Stephen Harper, Premier Kathleen Wynne and various other government MPs and MPP's as well as a President of the Board of Directors of the CCAS.
[44] He has been less than truthful with the CCAS. An example of such would be when he tried to manipulate the times for access stating that the then current time interfered with his education which was not true.
[45] He repeatedly makes comments about the CCAS killing babies.
[46] He has researched the full names of CCAS’ workers and identified them on the Internet, and made statements about them such as "the most evil child protection workers". This obviously causes concern for the personal safety of the CCAS workers.
[47] Although he denies his statements are a threat he has left phone messages such as "we must wage war on the CCAS like the war on Afghanistan", he stated after court on June 3, 2013 "they would pay" and in September 2013 made a statement that the CCAS had to return his children in three months "or else".
[48] It is difficult to see how any normal person would not take the statements as a threat to their safety
[49] N.M. has been difficult to contact at times as telephone numbers provided would not be working, he would cancel scheduled appointments and state that he would not come to the CCAS's offices for meetings.
[50] Despite having signed the minutes of settlement acknowledging in his children were in need of protection he repeatedly states he does not understand or have any idea what the child protection concerns are about him or why his children were removed from his care and remain in care. His denial of understanding is not believable and if true shows that he is not a candidate custody of his children.
Inappropriate Behavior With Respect to Access
[51] During CCAS supervised access he often made derogatory remarks about the mother in the presence of the children.
[52] He also tried to question G.M. about R.M.'s parenting and told G.M. that he was not handsome in front of the child when he was complaining about R.M..
[53] He is inappropriate with the children often undressing the children looking for marks as a method of getting back at R.M. and making complaints about the mothers care of the children that were not observed by the workers. He also complained when the children had colds and would write inappropriate comments in the communication book that went on about the children and expressed his political and religious views.
[54] All of the above behavior demonstrates that he doesn't want to or doesn't know how to put the children's best interests ahead of his desire to get back at R.M..
[55] He canceled access numerous times without presenting proof of why he could not make the scheduled access. While the CCAS attempted to accommodate his school/work schedule at times he has not seen the children for up to eight weeks.
[56] He has had difficulty interacting with both children at the same time.
[57] He has difficulty reading their cues, properly completing basic childcare such as diapering and feeding and has deficiencies in his knowledge of age appropriate expectations.
[58] Although he displays affection for the children and can interact with them, the children have no difficulty ending the visits. Sometimes G.M. had to be coaxed into the visits with him or was reluctant to leave R.M..
[59] It is evident to this court that N.M. has almost no insight into the developmental stages of young children and has virtually no experience caring for young children.
He is a Flight Risk with no Ties to Canada
[60] N.M. has no family in Canada and therefore his only ties here are his children. He has stated numerous times that he would take the children to the United States and also that he would leave Canada.
Ability to Care for the Children
[61] N.M. has never had either child in his sole care and custody.
[62] He constantly changes his own stated educational plans.
[63] Currently, he appears to be living on student loans and could not give the realistic answer as to how he would support himself two children and his new wife from the Congo if she arrives.
G.M.
[64] G.M. has been in the mothers care since on or about March 2011. Since that time the evidence before me is that the child is doing well. As objective evidence of this we have numerous affidavits from the CCAS workers, and the police checked out the mother because of complaints from N.M..
[65] Other than for some eczema and childhood colds there is no medical evidence to suggest anything other than proper parenting by the mother from a medical perspective.
S.M.
[66] The mother has agreed with CCAS essentially since her birth, that S.M. should be adopted. She has acknowledged from the birth of the S.M. that she is unable to care for both of the children.
[67] The mother by choice has had very little if any contact with S.M..
[68] Although the two children may have met each other infrequently, from the evidence before me it is extremely unlikely given their age and lack of contact that there could ever be any sibling bond between them.
[69] In N.M.’s affidavit of July 27, 2012 found at the Volume 6 Tab 8 of the continuing record he suggests that because of “the society's opinion, philosophy and perspective" that his brother P.M. should adopt S.M..
[70] If there is a request for custody of G.M. in this affidavit it is not spelt out there very clearly.
[71] While this affidavit was filed by N.M. without representation, it should be noted that he was represented by a lawyer named Deepa Dayal up until June 21, 2012.
LAW
[72] With respect to S.M., the CCAS is requesting Crown Wardship without access. Before making such an order on a summary judgment motion the Court would need to find that there was no genuine issue for trial.
[73] “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed.”
[74] In the Children's Aid Society of Hamilton v A.M. [2102] O.J. No. 5700 at Paragraph 36 Justice Pazaratz stated "it is no longer necessary that every case be the “clearest of cases”. Caution is called for but if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future.”
[75] The court is well aware that a child development does not wait and that multiple issues of parental dysfunction cannot be changed quickly. S.M. has been in care for the entire 27 months that she has lived on this planet.
[76] The court must consider from N.M.’s evidence whether S.M. faces some better prospect now than what existed at the time of her removal and that he has developed some new abilities as a parent.
[77] The paramount consideration is always what is in the child's best interests, which of course includes the child's emotional well-being.
[78] I acknowledge that the burden of proof on the CCAS, is the civil standard of balance of probabilities.
[79] On the evidence before me as articulated in these Reasons for Judgment the CCAS has met the above-mentioned standard, and therefore the child S.M. born […], 2011 shall be made a Crown Ward without access. Any previous access orders to the child S.M. born […], 2011, are hereby terminated.
[80] With respect to G.M., N.M. asked for custody or alternatively shared custody on a week about rotation and in the further alternative for access.
[81] Based on all the factors outlined in these Reasons for Judgment and in particular the violence committed by N.M. on R.M., his lack of a realistic plan to look after the child and no evidence whatsoever to demonstrate why the child would be better off with him having sole custody or even shared custody and the child are doing well in his current arrangement living with mother I'm going to continue the current arrangement such that there will be a supervision order for 12 months with access to N.M. at the discretion of the CCAS.
[82] N.M. shall attend and complete any courses recommended by the CCAS such as Caring Dads.
[83] It is my hope that N.M. can significantly change his outlook with respect to the situation concerning G.M.. He must reflect on and come to grips with his behavior and his attitudes and acquire sufficient parenting skills and knowledge of child development to allow him to become a positive force in G.M.’s life and therefore have more and hopefully in the future unsupervised access to G.M..
[84] A good starting point would be for him to review with an open mind, and with the assistance of a counsellor, the final evaluation of the PAR at Tab 23 of the trial record.
James W. Sloan J.
Released: November 14, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Catholic Children’s Aid Society of Hamilton
Applicant
– and –
R.M.
- and –
N.M.
Respondents
REASONS FOR JUDGMENT
J. W. Sloan J.
Released: November 14, 2013