ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C512/10
DATE: 2013-12-19

BETWEEN:

Children’s Aid Society of Hamilton

Applicant

– and –

A.W.

And

B.J.

Respondents

John Bland
Counsel for the Applicant

Nicole Matthews
Counsel for the Respondent-Mother

And

Frank A. Lanza
Counsel for the Respondent-Father

HEARD: December 13, 2013

THE HONOURABLE MR. JUSTICE PAZARATZ

INTRODUCTION

1. This is a motion by the Children’s Aid Society of Hamilton (“the Society”) for summary judgment within an amended protection application regarding the child C.L.J. born [...], 2012. The Society requests that this almost two year old girl be made a Crown ward with no access.

2. On January 7, 2013 this matter was placed on the trial list sittings of February 3, 2014 for an anticipated 10 day trial. The Society submits there is no need for that trial to proceed. It says the facts overwhelmingly support the Society’s position, and there is no genuine issue for trial.

3. The parents want the matter to proceed to trial.

MATERIALS FILED

4. Initially the Society filed the following materials in relation to this motion:

a. Notice of Motion dated October 24, 2013.
b. Affidavit of family service worker Dana Chiasson dated October 24, 2013.
c. Affidavit of family service worker Alison Lucas dated October 22, 2013.

5. The father B.J. filed no materials in response to this motion. He did not attend when the motion was argued on December 13, 2013. His lawyer attended and said he had no instructions. Apart from confirming that the father supports the mother’s position, the father’s lawyer had no submissions.

6. The mother A.W. attended court for the hearing of the motion, at which time her lawyer requested leave to file an affidavit on her behalf dated December 12, 2013.

7. When Justice McLaren dealt with scheduling of this motion on November 15, 2013, she ordered that all materials (including factums) were to be filed by December 9, 2013. Ultimately counsel agreed the mother’s last minute affidavit could be received by the court, in addition to a very brief handwritten reply affidavit of Alison Lucas sworn December 13, 2013. Only the Society filed a factum.

PRELIMINARY FINDINGS

8. On February 22, 2013 preliminary findings were made. C.L.J. is:

a. Not Native
b. Not Indian
c. Not Roman Catholic.

CURRENT REQUEST

9. The Society now seeks:

a. A finding that the child is in need of protection pursuant to section 37(2)(b)(i) and (g) of the Child and Family Services Act (“the Act”).
b. Crown wardship with no access.

10. The mother’s primary request appears to be that at the very least she should continue to have access while she tries again to establish a stable life -- hoping for an eventual return of the child to her care. Addressing the limited options available to the court as of the scheduled February 2014 trial, the mother’s counsel insisted it was possible the court could conclude the mother is ready to have C.L.J. returned to her immediately.

11. The father supports the mother’s position.

MOTHER’S PREVIOUS CHILD

12. The Society has been involved with the mother since 2009 regarding her older child D.W-D. (of another father) who was born on [...], 2010.

a. When D.W-D. was born, serious concerns were reported to the Society by hospital staff regarding the mother’s lack of parenting skills.
b. To ensure the newborn’s safety, the Society agreed the mother and D.W-D. would reside with the maternal great aunt R.W.
c. On March 8, 2010 the mother and D.W-D. moved into R.W.’s residence for this co-parenting arrangement.
d. But within days -- on March 12, 2010 -- R.W. announced she could not co-parent with the mother. The maternal great aunt expressed many concerns about the mother, describing her as being disinterested in the baby. She refused to allow the mother and child to remain in her home.
e. As a result, on March 17, 2010 D.W-D. was apprehended and placed in care.
f. In February 2011 D.W-D. was placed back in the temporary care of R.W.
g. On August 17, 2011 D.W-D. was found to be in need of protection, and the child was placed in the care of the maternal great aunt under a six month supervision order.
h. On July 3, 2013 D.W-D. was placed in R.W.’s custody pursuant to s. 57.1 of the Act.

PROBLEMS CONTINUED

13. Apart from those first few days in the maternal great aunt’s home, the child D.W-D. never lived with the mother. She now has some access to that child as arranged through and supervised by R.W.

14. During its involvement in relation to D.W-D., the Society had regular involvement with the mother, including the period leading up to C.L.J.’s birth on [...], 2012.

15. The Society provided detailed evidence setting out that:

a. The mother was unable to parent when D.W-D. was born in [...] 2010 as a result of serious problems which included substance abuse; an unstable life; an inability to prioritize the child; and a lack of commitment to working with community agencies which might help address her many issues.
b. Those same problems and limitations persisted during the years leading up to the birth of her second child C.L.J., the subject of this motion.
c. By the time C.L.J. was born in [...] 2012, the mother had learned virtually nothing from all of the problems which caused her to lose her first child.
d. During the two years since C.L.J.’s birth, the Society has continued to work diligently with the mother to try to help her overcome her recurring problems – but with little cooperation and virtually no success.

MOTHER’S SUBSTANCE ABUSE

16. At age 23, the mother already has a long history of drug abuse relating to cocaine. The Society’s materials provide a comprehensive historical context, including the following:

a. The mother missed an appointment with Alcohol Drug & Gambling Services (“ADGS”) on June 9, 2011 despite being reminded to attend by a Society worker.
b. In July 2011 the mother’s urine tested positive for cocaine.
c. In August 2011 she admitted to a Society worker she had used cocaine, and she again tested positive.
d. On October 19, 2011 she had a positive urine test for cocaine.
e. On October 27, 2011 she stated she was attending a methadone program.
f. In December 2011 -- one month prior to giving birth to C.L.J. – the mother failed to make herself available for an in-home drug test which had been previously scheduled.
g. In April 2012 the mother reported to the Society she had last used drugs two months prior. She admitted that if she had money and was around people who were using, it acted as a trigger for her to do drugs. The mother further admitted she believed she would use drugs again and that it was part of the process of treatment.
h. On June 28, 2012 she told the Society she had been consuming drugs “until recently”.
i. On July 4, 2012 ADGS closed her file because the mother missed counselling sessions on January 27, 2012 and June 6, 2012.
j. On July 19, 2012 the mother advised the Society she was “clean” and consented to a drug test. She subsequently admitted she had used within three months and correctly predicted her drug test would be positive for cocaine.
k. On January 7, 2013 the mother told a Society worker she last used illegal substances in June 2012.
l. In January 2013 the mother was referred to Womankind for weekly drug treatment sessions. The mother was subsequently advised by staff at Womankind that she would need to be referred to their program by ADGS following an assessment. An ADGS appointment was scheduled for February 23, 2013 but the mother failed to attend despite being reminded to attend by the Society.
m. On February 12, 2013 she missed a scheduled drug test.
n. The mother’s appointment with ADGS and a drug test were each rescheduled for April 3, 2013 but she failed to attend both.
o. Another appointment was scheduled for August 20, 2013 but the mother failed to attend that appointment as well. As a result, a referral could not be made on the mother’s behalf to attend Womankind.
p. In May 2013 the mother’s brother and her boyfriend D.C. (who had both lived with her) independently advised the Society they saw the mother regularly using cocaine.
q. In July 2013 Hamilton Police contacted the Society and reported they found a tent in a park and paperwork inside with the mother’s name on it. The tent was also filled with drug paraphernalia and needles. The police reported they phoned the mother who claimed she was on methadone and battling an opiate addiction. But the mother subsequently denied to the Society that she had spoken to the police. She claimed the contents of the tent belonged to a friend.
r. In September 2013 the mother admitted to the Society that she and the father had become addicted to prescribed medication from a dental infection and had been taking methadone as a result. She said she last used cocaine about 3 to 4 months prior and that she went through phases with cocaine but was not currently using.
s. The Society says despite its efforts, the mother has not participated in a drug test since July 2012, and she has not followed through with any type of substance abuse programming or treatment.

APPREHENSION

17. It was in the context of the mother’s long-standing problems – relating to drugs and other issues – that the subject child C.L.J. was apprehended at birth on [...], 2012:

a. The mother had only attended a minimal number of prenatal appointments in relation to C.L.J.
b. It was clear that the mother had been unable to address the multiple concerns which had arisen in relation to her previous child D.W-D.
c. The mother was still using cocaine despite alternating denials and promises that she would quit.
d. When C.L.J. was born the mother admitted to a hospital social worker that she had used cocaine two days before giving birth; and she had used cocaine intravenously throughout her pregnancy.
e. The child’s meconium was collected by the hospital at birth and tested positive for cocaine.

SOCIETY APPLICATION

18. On January 9, 2012 the Society commenced a protection application asking that the child be made a Society ward. That same day Justice Brown granted a temporary without prejudice order placing the child in care of the Society, with access to the parents to be in the discretion of the Society, supervised in its discretion.

19. On September 17, 2012 the Society commenced an amended protection application seeking Crown wardship without access. At the time the mother was making minimal efforts to address protection concerns, and the father was largely absent from the child’s life because he was in and out of jail.

20. On January 7, 2013 the matter was placed on the sittings of February 3, 2014 for a 10 day trial.

MOTHER’S ACCESS

21. The Society materials set out in great deal a very troubling lack of commitment to access by the parents. Often the father’s lack of access can be explained by his frequent periods of incarceration. But the mother’s lack of commitment to spending time with C.L.J. is more difficult to understand:

a. The January 9, 2012 order set out that access was to be a minimum of twice a week, with the Society to use its best efforts to facilitate access three times a week if possible.
b. But from the outset the mother’s attendance record for access was so dismal that the Society successfully brought a motion in June 2012 to discontinue a specified schedule (since she wasn’t showing up), and leave access in the discretion of the Society.
c. Thereafter, the mother’s pattern of access remained sporadic.
d. The Society materials set out detailed records of missed visits and the Society’s efforts to assist the mother in reinstating access.
e. A disappointing pattern quickly emerged. After the mother missed a certain number of visits, access would be suspended until the mother attended for a “reinstatement meeting” – basically to secure a commitment that she really would show up for future visits. But at times she would miss the reinstatement meetings. At times she would attend reinstatement meetings only to then fail to show up for the reinstated visits.
f. For example, in the spring of 2012 the mother missed a reinstatement meeting; then missed a re-scheduled reinstatement meeting; and then after access was reinstated she failed to attend for approximately the next nine visits – resulting in another reinstatement meeting which she also failed to attend.
g. To put things in perspective, the Society offered several different statistics: For example, between January 2012 and October 2013 the mother attended an average of 42% of scheduled visits. During the past year she has only attended approximately 34% of scheduled access visits. No matter what the exact percentages, the reality is that the mother has never shown much sustained interest in C.L.J. – just as she showed no sustained interest in her first child D.W-D.

FATHER’S ACCESS

22. The Society materials set out that the father’s involvement in the child’s life – and what he has to offer in the future – appears to be even more limited:

a. He’s 33 years old and has an extensive criminal record dating back 15 years, with frequent periods of incarceration.
b. Most recently he was incarcerated from December 2010 to April 2011; June 2012 to May 2013; and September to November 2013.
c. He has been incarcerated for the majority of the child’s life – which has made it impossible for the Society to engage him in drug testing, treatment or counselling. And when he’s not in jail, he doesn’t maintain a regular address, and he’s uncooperative with social agencies.
d. His recent criminal convictions include serious offences including assault causing bodily harm (a stabbing) and possession of cocaine.
e. More generally his record includes other convictions for assault causing bodily harm; assault with a weapon; break and enter; dangerous operation of a motor vehicle; robberies; thefts, and narcotics offences.
f. Notably, his criminal record includes 10 convictions for failing to comply with court orders (as recently as August 2013) – which raises serious doubt about the extent to which this court could have confidence that he would comply with future orders.
g. In July 2012 the father’s probation officer described him as a “hard core offender” who is well connected in the drug community. He has a lengthy history of cocaine use.
h. His probation officer did not believe it would be safe for a child to be exposed to the father’s environment.
i. Even when the father wasn’t incarcerated, he did not maintain regular access to C.L.J. He has not seen her since the summer of 2013. His limited interaction with his daughter has not been particularly positive or beneficial to the child.
j. He has a six year old child of another relationship. That child lives with the child’s mother and the father does not have any access.
k. In September 2013 the father told a Society worker that he wanted what was best for C.L.J. He said he recognized that his and the mother’s lifestyles were not fair to the child.

(continued exactly as in the judgment…)

Pazaratz, J.

Released: December 19, 2013.

COURT FILE NO.: C512/10

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicants

And

A.W. and B.J.

Respondents.

REASONS FOR JUDGMENT

Pazaratz, J.

Released: December 19, 2013