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.: C 884/12
DATE: 2013-12-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
R. P. (mother)
Respondent
John Bland for the Applicant
Sam Garcea for the Respondent
HEARD: November 22, 2013
RULING
PARAYESKI J.
[1] On November 22nd, 2013 I heard and granted the applicant’s motion for summary judgment for written reasons to follow. These are those reasons.
[2] The Hamilton Children’s Aid Society [“the Society”] brought this motion for summary judgment within its child protection application regarding the child M.F.P., born on […], 2011. The Society seeks a finding that M.F.P. is in need of protection and making him a Crown Ward with no access.
[3] M.F.P. was apprehended at birth. He has been in care his entire life – 30 months as of the hearing date.
[4] The mother R.P. has one older child. He was born in 2000, and was apprehended at birth by the Halton Children’s Aid Society. He was subsequently adopted with the mother’s consent, although she says now that she was pressured to giving that consent.
[5] Brown J. has found that no male person qualified as a parent entitled to notice under the Child and Family Services Act. Her Honour also found that M.F.P. is non-native, not Indian and not Catholic.
[6] The Society’s current involvement commenced in […] of 2011 when it was contacted by a nurse from St. Joseph’s Hospital, who reported that the mother had just given birth, and had not know that she was pregnant. The Society was concerned regarding the mother’s living arrangements, the absence of prenatal care, a post birth drug test that was positive for Oxycontin use, and the mother’s prior involvement with the Halton Children’s Aid Society.
[7] On May 10th, 2011, the mother consented to a six month temporary care agreement. That agreement was extended for a further three months on the mother’s consent, on February 17th, 2012.
[8] On May 16th, 2012, the Society commenced a protection application asking that M.F.P. be made a Crown ward with no access. On that same date, McLaren J. granted a temporary without prejudice order placing the child in the care of the Society with access to the mother in the Society’s discretion and supervised at its discretion for a minimum of three times per week.
[9] On July 9th, 2012, Mazza J. ordered a s. 54 cognitive assessment of the mother to be completed by Dr. Nicole Walton-Allen. There had been concerns over the mother’s cognitive abilities going back to her attendance at St. Joseph’s Hospital the day she gave birth to M.F.P.
[10] In her report of December 30th, 2012, Dr. Walton-Allen stated that the mother’s IQ was 68, which is extremely low. Dr. Walton-Allen stated “The results indicate that Ms. [P.] has significant delays in overall verbal performance abilities, which are classified in the extremely low range of functioning.”
[11] The same report also stated the following: “Overall, Ms. [P] demonstrated extremely low cognitive abilities and her performance across all tested domains is fairly consistent. This profile would impair her executive functioning. She would be expected to experience difficulties in problem solving, abstract reasoning and informed decision-making…Overall Ms. [P] demonstrates an intellectual disability and extremely low academic abilities. Her intellectual profile would predict difficulties with problem solving, decision-making, planning and independently arranging and following through with daily responsibilities.”
[12] M.F.P. faces his own problems. He has been diagnosed with both autism spectrum disorder and alcohol related neurological disorder, the latter of which is a result of in utero exposure to alcohol. He requires, and is receiving, the assistance of a speech therapist, an occupational therapist, and an ophthalmologist.
[13] Dr. Mills has reported that M.F.P. will require a major commitment from very flexible caregivers attuned to managing his autism. In his report dated May 13th, 2013, Dr. Mills stated that M.F.P. “will require a caregiver for the rest of his life…he will need to live in a cloistered environment with other adults there to help him…He will require the services of a developmental team for a long time…his parents will be need to be flexible with their techniques, consistent and persistent in how they manage him, and will need to be excellent problem solvers as they are presented with the various changes in Max’s learning…”.
[14] The mother acknowledges that she smoked marijuana and drank at least some wine throughout the pregnancy, which she denies knowing about before she gave birth. She also acknowledges a positive drug test for Oxycontin and of a later positive drug test for cocaine use. She swears that she took nonprescription Oxycontin on one occasion only thinking that it was Tylenol 3 for pain. She swears that she used cocaine only once, implying that the positive drug test for that drug was an unfortunate coincidence.
[15] The mother has had a clear drug test following the one for cocaine. The Society is satisfied that her past drug use is not a present concern.
[16] The Society also acknowledges that the mother has also overcome one of its earlier concerns, that being transience. The mother has found living accommodations and has lived there for a sufficient period of time that The Society is satisfied that transience is not a current problem either.
[17] The mother deserves credit for having dealt with the concerns of drug use and transience. These are genuine accomplishments which likely took considerable effort on her part. Regrettably, no amount of effort is going to overcome the mother’s congenital cognitive limitations.
[18] Illustrative of this unfortunate reality is a problem having to do with the mother’s accommodation (not being transience). While she has been living at this property for sufficient time that transience is no longer an issue, there is a concern regarding the lack of a lock on her unit or room. This problem has been recognized for some time now, and it has not been addressed.
[19] This state of affairs represents a clear danger to the mother herself and, of course, to the child should he be returned to her. Either the mother is incapable of recognizing this danger, even though it has been plainly pointed out to her, or she lacks the ability to arrange for the installation of a lock.
[20] In argument, it was suggested on the mother’s behalf that the solution to the lock issue would be the making of any order returning the child to her conditional upon a lock being in place. That such a argument was thought necessary demonstrates the mother’s need for supervision in regard to very basic needs. The court cannot and will not always be available to provide that supervision.
[21] The Society has observed that the mother appeared to be confused and incapable when she recently took the child for an outing to a public swimming pool. She says that she felt rushed, however another valid interpretation is that she has difficulty coping with any change in routine. Based upon Dr. Mill’s prognosis, it appears quite likely that there will be many circumstances requiring adaptation to change in M.F.P.’s upbringing.
[22] In addition, the mother lacks support outside of the court. Her only strong connection is with her own mother, who herself has intellectual limitations and a history of involvement with the Children’s Aid Society. The grandmother’s partner, who one presumes would also be involved with the child, himself has a similar history.
(continued verbatim exactly as in the source text...)
Parayeski J.
Released: December 18, 2013
COURT FILE NO.: C 884/12
DATE: 2013-12-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Children’s Aid Society of Hamilton
Applicant
- and –
R. P. (mother)
Respondent
REASONS FOR JUDGMENT
PARAYESKI J.
MDP: mw
Released: December 18, 2013