ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
COURT FILE NO.: 76/13
DATE: 2014/02/21
BETWEEN:
THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION
Kim Hertwig, for the Applicant
Applicant
- and -
L.B. and
J.S.
Self-represented Respondents
Respondents
HEARD: January 30, 2014
The Honourable Madam Justice W.L. MacPherson
REASONS FOR JUDGMENT
[1] The Children’s Aid Society of the Niagara Region (“the Society”) has brought a motion for summary judgment seeking the following orders:
An order pursuant to s. 47(2)(a) of the Child and Family Services Act correcting the child’s full legal name from J.B.S. to J.B..
A final order pursuant to Rule 16 of the Family Law Rules and pursuant to ss. 64 and 65 of the Child and Family Services Act making the child J.B., born […], 2013, a Crown ward without access.
[2] The summary judgment motion was heard on January 27, 2014.
BACKGROUND FACTS
[3] L.B. and J.S. are the biological parents of J.B., born […], 2013.
[4] The mother has another child, M.B., born […], 2008. M.B. resides with his biological father in Orillia, Ontario and L.B. does not have access to him.
[5] The father has children from a previous relationship, D.S., born […] 2009, and K.S., born […], 2012. Both children are in the legal custody of their maternal grandparents. The Society’s evidence was that he does not have access to these children. J.S. disputed this stating he does see them.
[6] The Society has had prior involvement with J.S. and his former partner (from June 2009 to October 2012) regarding concerns about J.S.’s anger issues, domestic violence and his regular marijuana use.
[7] When the Society commenced the current application regarding the child, J.B., the protection concerns included the mental health of the parents, their drug use, their refusal to make appropriate preparations for the infant’s arrival and refusal to voluntarily work with the Society during pregnancy planning. There was also a concern regarding the father’s history of violence and aggressive posturing toward the Society’s workers.
[8] The child, J.B., was apprehended with a warrant from her parents’ care at the St. Catharines General Hospital on January 31, 2013.
[9] Following the apprehension, the child was placed in foster care, where she has remained.
[10] On the first return date of the Protection Application and on February 5, 2013 a temporary without prejudice order was made placing the child in the temporary care and custody of the Society with access to the parents as arranged by the Society and supervised in its discretion.
[11] On May 13, 2013, an order was made by Justice Scott which included the following:
a) Preliminary findings were made which included the child’s name shown as J.B.S. based on the Court Information Sheet completed by the father on February 7, 2013.
b) The child was found to be in need of protection pursuant to section 37 (2) (b) (ii) of the Child and Family Services Act.
c) The child was made a ward of the Society for a period of three months, with access to her parents to be arranged by the Society and supervised in its discretion.
[12] The Society brought a Status Review Application in June 2013 seeking a Crown ward order, with no access, for the purpose of adoption.
[13] There was difficulty in serving the parents as they did not have a residence but had been registered at a local homeless shelter, Start Me Up Niagara. An order for substitutional service on the parents was made on July 29, 2013 and after multiple extensions had been granted, the parents did file an Answer and Plan of Care dated October 8, 2013 seeking the return of the child to their care subject to supervision by the Society or, in the alternative, access to the child.
[14] The matter was next in court on October 16, 2013 and the parents were in attendance when a Settlement Conference date was set for December 4, 2013 at 10:00 a.m. and it was confirmed that the parents were to file Settlement Conference briefs.
[15] The parents were not in attendance at the Settlement Conference nor did they file a Settlement Conference brief. It appears from the Affidavits filed in support of the Summary Judgment motion that the parents arrived late for the Conference arriving at 10:20 a.m.
[16] At the Settlement Conference, in the absence of the parents, the Summary Judgment motion was set for the week of January 27, 2014.
[17] The parents were served with the Summary Judgment motion material on January 8, 2014. The Summary Judgment material included multiple affidavits by Fiona Barr, child protection worker, and Pam Fitzgibbon, Child Protection Supervisor.
[18] The parents did not file any affidavit material. The mother was not in attendance on the return date of the motion. The father did attend and was permitted to file a four page unsworn document consisting of a letter of support from Tony Venditti, Center Coordinator of Start Me Up Niagara, and a handwritten note from the father setting out his request that he and the mother be given the opportunity to parent the child, J.B.. J.S. was also permitted to make submissions at the hearing of the motion.
PROTECTION CONCERNS
Access/Anger Management Issues
[19] The Family service worker arranged for the parents to exercise access at the Society office twice per week.
[20] When the parents did attend access, for the most part there was affection shown toward the child. However, there were several areas of concern. One was the anger and volatility of the parents, sometimes toward each other, but sometimes with the Society staff. Another area was the parenting ability of the parent and that they were not receptive to redirection or instruction about the care to be provided to an infant.
[21] In the first three months, the parents were routinely late (ranging from fifteen to forty-five minutes); one or the other parent was absent from the visit; or they cancelled access visits at the last minute. In particular, five minutes before the scheduled start time of the April 18, 2013 visit, there was a call to cancel the visit and then neither parent attended access nor called to cancel the scheduled visits on April 24 and May 1, 2013.
[22] On May 11, 2013, the parents were advised that access was suspended until they could meet with the child protection worker. They denied that there was any problem with their attendance at access. The next contact with the worker occurred by way of a telephone conversation with the father on June 11, 2013 at which time a meeting was arranged for June 19, 2013. J.S. did call on the day of the meeting, but when he learned that the Society was continuing with its application for a Crown wardship order with no access and that the child would not be in attendance at the meeting, he began yelling and ended the telephone call. Neither parent attended the meeting scheduled for later that day.
[23] On August 20, 2013, J.S. contacted Ms. Barr and advised that he had been out of town. A meeting was scheduled for both parents to attend at the Society office on August 28, 2013 at 11:00 a.m. Neither parent attended the scheduled meeting.
[24] On September 17, 2013, J.S. spoke by telephone with Ms. Barr. The parents had failed to attend court in the morning and he was advised that the Society was proceeding with the Crown ward application. He was also advised of the next court date. J.S. advised that he had been in jail, but would not disclose the reason.
[25] On October 29, 2013, L.B. called to arrange a meeting to discuss resuming access and a meeting was scheduled for November 7, 2013. The parents did attend the meeting but it had to be terminated due to the parents’ aggressive conduct toward the workers and due to concerns about the safety of other families in the Society office, the police were called to ensure that the parents left the property.
[26] On December 4, 2013, Pam Fitzgibbon observed the parents arriving at court twenty minutes after the scheduled time for the Settlement Conference. The parents explained that they thought the Conference was set for 10:15 a.m. and they had also stopped to get drinks. When the parents did enquire about an access visit, Ms. Fitzgibbon confirmed that they still needed to meet to review the expectations of them during the access visit. A meeting was scheduled for December 10, 2013 at 3:00 p.m. The worker also forwarded a letter to the parents at the address that they provided, which confirmed the date, time and location of the meeting.
[27] Neither L.B. nor J.S. attended at the meeting scheduled for December 10, 2013.
[28] Ms. Fitzgibbon contacted J.S. on December 17, 2013 and he confirmed that they had been out of town and had missed the bus back to Niagara. The meeting was rescheduled to December 23, 2013 at 2:00 p.m. Neither parent attended at the meeting, nor did they call or leave a message that they would not be attending.
[29] On December 24, 2013, J.S. called the Society office and left a voice mail message that something needed to be done to “get things going”.
[30] As the parents have yet to attend a meeting with the Society worker to review the concerns about access and what needed to happen for access visits to resume, there has not been any access exercised by the parents since the visit of April 4, 2013.
Parents’ Drug Use
[31] The records of the Children’s Aid Society of Simcoe indicated that L.B. had voluntarily arranged for her child, M.B., to be cared for by his father. There were concerns that the mother was using drugs during access visits with that child and the mother admitted to using marijuana.
[32] With regard to the child, J.B., L.B. had admitted to her doctor (Dr. Okon) that she had used marijuana during her pregnancy.
[33] On April 1, 2013, the Society obtained a hair sample of the child for drug testing to determine if she had been exposed to drugs prenatally. The test results were received by the Society on April 17, 2013 which was positive for cocaine, likely from exposure in utero after the 28th week of gestation in the third trimester.
[34] On December 4, 2013, L.B. confirmed that she was on a methadone program. She was advised to collect her urine screen test results from the methadone clinic for the past few months and to provide them at the next meeting. L.B. confirmed that she had tested positive on some of the weeks.
[35] In his statement, J.S. confirmed that they were both drug addicts at the time of J.B.’s birth. However, he indicated that he and L.B. are now on the methadone program and they are now clean of drugs and they plan to remain off drugs. He also confirmed that they do smoke weed, but he did not see that this should interfere with their ability to parent a child.
Parents’ Physical and Mental Health
[36] The Society records indicated that J.S. is in receipt of Ontario Disability Support Payments as a result of a brain injury. The records also show that J.S. has been diagnosed with bipolar disorder and had been under the care of a psychiatrist, Dr. Santher.
[37] In April 2013, J.S. reported to a Society worker that he had a small tumor on the left side of his brain and that he would have his doctor call the worker. On an earlier occasion, when the parents had missed an access visit, L.B. indicated that J.S.’s tumour “had exploded” and he had been in the hospital.
[38] At the meeting of November 7, 2013, when the father was asked about the tumour, he responded in a sarcastic tone, “It’s miraculously gone away”.
[39] At the meeting on November 7, 2013, as an explanation for her absence since April 2013, L.B. advised that she had broken her jaw and that her mouth had been wired shut for five weeks. There was no explanation provided as to how this injury had happened.
[40] There was also reference in the letter from Tony Venditti to the mother having broken her jaw in July 2013, but no medical records were provided.
[41] As of the date of the motion, neither parent had signed consents to release medical information to the Society.
Counseling and Programs
[42] As of the date of the Summary Judgment motion, neither parent has completed any programs.
[43] The letter from Tony Venditti indicates that the parents are enrolled in the methadone program; that they are willing to take anger management; that the mother has recently obtained a family doctor and that she is agreeable to receive counseling.
THE CHILD
[44] J.B. has remained in the same foster home as when she entered care just over one year ago.
[45] J.B. has been followed by the Infant and Child Developmental Services (ICDS) through Public Health. This referral was made due to the child having been born premature and prenatal exposure to cocaine. J.B. has been meeting her developmental milestones.
[46] The child had hernia surgery on April 10, 2013. She fully recovered from the surgery with no difficulties. J.B. is in good physical health.
[47] The child has shown that she is able to settle and is attached to her foster parents, who have been her caregivers her entire life.
[48] There are no impediments to the child being adopted. She has successfully worked the drugs out of her system that were present at her birth. Although the child is involved with ICDS this should not interfere with her ability to be adopted as this is a community service that focuses upon ensuring that the child is meeting her developmental milestones.
CHILD’S NAME
[49] When the child came into care, her birth had not yet been registered.
[50] On May 13, 2013, the court made preliminary findings based on the court information sheet signed by the father on February 7, 2013 showing the child’s name to be J.B.S..
[51] On August 13, 2013, Society worker, Nancy Biamonte, completed a birth registration for the child as the parents were either unavailable or unwilling to do so. When the child’s name was submitted for registration by Ms. Biamonte, the child’s name was listed as J.B..
SUMMARY JUDGMENT (THE LEGISLATION AND THE LAW)
[52] Rule 16 of the Family Law Rules allows a party to bring a motion for summary judgment for a final order without a trial and Rule 16(2) specifically allows for summary judgment in child protection proceedings.
[53] Pursuant to Rule 16(4) the Society is obligated to serve an affidavit or provide other evidence that sets out specific facts to satisfy the court that there is no genuine issue that requires a trial.
[54] Rule 16(4.1) provides that a responding party must also set out by way of affidavit or other evidence that there is a genuine issue for trial. Mere allegations or denials of the evidence of the Society will not be sufficient.
[55] Rule 16(6) sets out the test that must be met by the Society to succeed. They must prove that there is no genuine issue requiring a trial. The rule is mandatory such that if the court concludes there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.
[56] In considering a motion for summary judgment, the first step that a court must take 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.) (p. 8))
[57] 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.))
[58] “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”. (Children’s Aid Society of Oxford (County) v. J. (J.), 2003 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.); when the “outcome is a foregone conclusion” (Catholic Children’s Aid Society of Metropolitan Toronto v O. (L.M.) (1996), 1996 7271 (ON SC), 139 D.L.R. (4th) 534 (Ont. Gen. Div.). To put it another way, no genuine issue for trial exists when there is no realistic possibility of an outcome other than as sought by the applicant. (Children’s Aid Society of Simcoe (County) v. S.C., 2008 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (S.C.J.))
[59] In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the Child and Family Services Act. The court must give paramount consideration to the best interests test which include, among other factors, as certain a future as possible. (Children’s Aid Society of Algoma v. P. (L.), [2002] O.J. No. 2895 (S.C.J.))
[60] Summary Judgment is a tool to control a child’s drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child’s needs. The legal process should not be used to “buy” a parent time to develop the ability to parent. (Children’s Aid Society of Toronto v. H. (R.) 2000 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.) In child protection proceedings there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children’s Aid Society of Ottawa v. C (S.), 2003 67754 (ON SC), [2003] O.J. No. 6307, 2003 CarswellOnt 9373 (S.C.J.))
[61] Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent’s right to correct parenting inadequacies must be balanced with the child’s right to appropriate development within a realistic time frame, if damage to the child is to be minimized. (Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853)
[62] In all cases, the court must give priority to the paramount purpose of the Child and Family Services Act as set out in section 1. The paramount purpose is to promote the best interests, protection and well-being of children (s. 1(1)). Another purpose, so long as it is consistent with the best interests, protection and well-being of the child, is to recognize that the least disruptive course of action that is available and is appropriate in the particular case to help the child should be considered (s. 1 (2)). Another purpose, again so long as it is consistent with the paramount purpose, is to recognize that children’s services should be provided in a manner that provides early assessment, planning and decision making to achieve permanent plans for children (s. 1(3)(iii)).
[63] Section 64 applies where an order has been made pursuant to s. 57(1) for Society wardship. When such an order is under review, the court may, in the child’s best interests, vary or terminate the original order; order that the original order terminate on a specified date; make a further order or orders pursuant to s. 57; or make an order under s. 57.1 for legal custody of the child. (Sections 57, 64 and 65 (1) of the Child and Family Services Act)
[64] It is not the function of the status review hearing to retry the original need for a protection order. That order is set in time and must be assumed that it was properly made at that time. The question to be evaluated by courts on a status review is whether there is a need for a continued order of protection. (Catholic Children’s Aid Society of Metropolitan Toronto v. C. M. (1994) 1994 83 (SCC), 2 S.C.R. 165 (S.C.C.))
[65] It is a two-fold examination that must be undertaken on a status review. The first consideration is concerned with is whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. The second consideration is the best interests of the child, and important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or absence of circumstances that triggered the first order for protection, or from circumstances which have arisen since that time. (Catholic Children’s Aid Society of Metropolitan Toronto v. C. M., supra, para. 37)
[66] Section 37 (3) of the Act provides a list of the factors that the court should consider in determining the best interests of any child. The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child’s desires, which the Act contemplates as well. The “furtherance and protection of the child’s best interests must take priority over the desires and interests of the parent. (Catholic Children’s Aid Society of Metropolitan Toronto v. C. M., supra pars. 38, 41)
[67] In determining which disposition is in the best interests of the child, the court must be aware of the parameters imposed by the legislation with respect to the amount of time a child can be made a Society ward under s. 70 of the CFSA which provides:
70 (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.
70 (2) In calculating the period referred to in subsection (1), time during which a child has been in a Society’s care and custody under,
(a) And agreement made under subsection 29 (1) or 30(10 temporary care or special needs agreement); or
(b) A temporary order made under clause 51 (2) (d), shall be counted.
70 (4) Subject to paragraphs 2 and 4 of subsection 57 (1) the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.
[68] If the court makes an order for Crown wardship, the issue of access must be determined. When a Crown ward order is made, the focus of the Child and Family Services Act is to establish a permanent and stable placement for the child. The Society has an obligation pursuant to section 63.1 of the Act to make all reasonable efforts to assist a child who is made a Crown ward to develop a positive, secure and enduring relationship within a family through one of the following:
An adoption;
A custody order under s. 65.2 (1)
In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.
[69] Access is dealt with in ss. 58 and 59 of the Act. Section 58 permits one to seek an access order in respect of a child who is in the “care and custody or supervision” of a Society. But section 59 (2.1) creates a presumption against access where the child is a Crown ward. Section 59 (2.1) has not been changed by the recent amendments and directs the court that an access order to a Crown ward shall not be made unless the court is satisfied that:
(a) The relationship between the person and the child is beneficial and meaningful to the child; and
(b) The ordered access will not impair the child’s future opportunities for adoption.
[70] The onus is on the person seeking access to provide evidence to show the court that, on a balance of probabilities: (1) the relationship between the person and the child is meaningful to the child, (2) the relationship between the person and the child is beneficial to the child, and (3) access will not impair the child’s future opportunities for a permanent or stable placement. All three factors must be proven. (Huron-Perth Children’s Aid Society v. J.F. 2012 ONSC 5142 (Ont SC))
[71] “Beneficial” has been held to mean “advantageous” and “meaningful” has been held to mean “significant”. The person seeking access to the child must prove that his or her relationship with the child brings a significant positive advantage to the child. (Huron-Perth Children’s Aid Society v. J.F., supra, para. 58, 80-81)
[72] Being an adequate or “good” access parent is not sufficient to award access to a parent if the real issue before the court is whether the parent is presently able to assume custodial responsibility toward the child. Primacy has to be placed on the child’s actual needs over a parent’s potential progress. The needs and desires of access parents are secondary to the best interests of the child. (Children’s Aid Society of Hamilton v. A.D.L., [2009] O.J. No. 4390 (Ont SC))
ANALYSIS
[73] The Society has presented extensive evidence by way of affidavit evidence setting out the basis for the court to grant summary judgment.
[74] Although neither parent has filed an affidavit as required by the Rules and the legislation, despite ample opportunity to do so, I have taken into consideration both the letters filed by the father although they were not in a sworn format, as well as the submissions made by J.S. on behalf of the parents.
[75] The only evidence of any change in the parents’ circumstances since the child’s birth is that they have now obtained a residence, whereas before they were homeless. However, to date the Society has not been permitted to review the residence to confirm its suitability for a young child. Even assuming that it is appropriate as submitted by the father, having a physical residence is only one of many factors needed to properly provide for a young child.
[76] The protection concerns remain with regard to the mental and physical health of both parents; their drug use; their ability to deal appropriately with one another; their ability to parent a young child; and their ability to interact and deal cooperatively with the Society.
[77] This is a very young and very vulnerable child. The parents have not been able to adequately address personal, lifestyle and relationship issues. They have been unable to progress in their ability to parent J.B..
[78] The application before the court is a status review of the order of Justice Scott dated May 13, 2013. On the basis of the uncontradicted evidence that has been submitted to the court, I am satisfied that the child remains in need of protection and as a consequence requires a court order for her protection. As such, the possible orders available to the court are as set out in s. 57 (1) of the Child and Family Services Act.
[79] Given that J.B. has recently turned one year of age and has been in care her entire life, the only possible orders that could be made are to return her to the care of her parents or to make an order of Crown wardship with or without access.
[80] Although the court has discretion to extend the time limits by up to six months, given the child’s young age and the parents’ lack of progress in addressing the protection concerns, I find that such an extension would not be in the best interests of the child.
[81] While the parents are apparently enrolled in a methadone treatment program, there has been no evidence provided that would confirm their compliance with the program and that it has been effective in ensuring their sobriety for any reasonable period of time. If anything, the evidence is that they have continued to use drugs until a few months ago, and even as of the summary judgment motion, they were continuing to use marijuana, despite a self-proclaimed “promise to remain drug-free”.
[82] The parents have expressed a willingness to attend anger management. There was no evidence as to any steps that have been taken to make that happen. There are often wait lists to be enrolled in such programs and then there will be additional time required to complete the course. It was apparent from the multiple examples of volatility toward each other, aggressive posturing toward the hospital nurses and society workers that this is a serious and longstanding issue that may or may not be addressed by simply taking a course. It was certainly not apparent that the parents actually acknowledged this to be a problem. Further, given the parents’ inability to attend appointments (whether for access, to meet with Society workers, or Court attendances) there is little reason for optimism that the parents will manage regular attendance at an anger management or other counseling program.
[83] Similarly and with regard to mental health issues of both parents, there was no indication that: a) they were accepting that this was even a legitimate concern; b) they would be willing to take steps to address this; and c) if they were willing to address this, whether it could be completed and would have some beneficial impact within a reasonable period of time. There was a statement that L.B. was willing to attend counseling, but without any indication as to what steps had been taken to proceed with counseling, the type of counseling that would be undertaken and how soon it could be completed. It was clear from J.S.’s conduct as detailed in the affidavits and his conduct during the hearing of the motion, that he was not accepting of the fact that he had any problems that needed to be addressed or that should prevent the child from being returned to his care.
[84] The other area of concern is the parents’ refusal and/or inability to maintain contact with and work cooperatively with the Society. They were provided with numerous opportunities to meet with the workers to address the issue of the access visits in order that these could be re-instated. They failed to attend multiple scheduled appointments with a myriad of excuses for their non-attendance. When they were finally able to attend a meeting in November (after a six month suspension of access), their own aggressive conduct resulted in the meeting being ended and the police being called. Even after a further three months, they have not been able to organize their lives to be able to schedule and attend the mandatory meeting with the worker so that access could be resumed.
[85] All in all, over the past year, it is abundantly clear that the parents have not been able to demonstrate a commitment to their child. While the court accepts that both of the parents love their child and are sincere in their desire to be given an opportunity to parent her, having such feelings does not equate with an ability to provide for the proper care of an infant child.
[86] Based on the evidence, there is no possibility currently or in the foreseeable future that J.B. could be placed in the care of the parents. Supervision is clearly not a feasible option given the parents’ refusal to work cooperatively with or accept the assistance provided by the Society.
[87] As noted by J.S. in his submissions, the parents have not done what they needed to do in the past year to be in a position to provide for the care of a young child. The only sign of insight into the current situation was the acknowledgement by J.S. that “maybe it is too late”. Given the emphasis in the legislation on the best interests of the child and the need for permanency and stability for young children such as J.B., time has run out for the parents to show that they can provide for the child’s physical and emotional needs.
[88] J.B. should not have to wait any longer to see whether her parents are going to finally give this matter priority and follow through on the promises to remain drug free and to get the help needed to address their own mental health and physical needs. J.B. needs to and should have permanence.
[89] No family members or kin have come forward to the Society to present a plan to care for the child.
[90] Having considered the entire evidentiary record before the court, I am satisfied that there is no genuine issue that requires a trial to be held as there is no realistic possibility of an outcome other than an order of Crown wardship.
[91] In arriving at this, the court has considered all available options and dispositions; the lack of progress by the parents in addressing any of the protection issues; the efforts by the Society to assist the parents; the lack of an alternative kin placement; the timelines under the legislation and no evidence being provided that either parent could realistically address the multiple and fundamental issues within those timelines even with a six month extension; and considering the best interests of the child; and the objectives of the Child and Family Services Act and the Family Law Rules: the only realistic option is an order of Crown wardship. There is no other or less intrusive alternative available that is consistent with the best interests of the child.
[92] The Society is seeking an order of Crown wardship, without access, for the purpose of adoption. Under the Act, once there has been an order of Crown wardship made, there is a presumption against access. The onus falls on the parents to satisfy the court that ongoing access to the parents would be “beneficial and meaningful” to the child. This must always be looked at from the child’s perspective and not from the perspective of the parents. The parents must also demonstrate that an access order would not impair a child’s future ability to be adopted.
[93] On the evidence before me, where there has not been any access exercised by the parents for more than ten months, it would be absurd to suggest that access would provide any positive advantage to the child. The responsibility for access not taking place must fall squarely on the parents. They removed themselves from the child’s life and then failed to take any steps to have the access resume. As a result, there is no relationship between the child and her parents and no evidence that ongoing access would be meaningful or beneficial to the child.
[94] Further, there is nothing in the material filed by the parents that would satisfy the onus of establishing that an access order would not impair the child’s future ability to be adopted. There is no onus on the Society to prove that a child for whom Crown wardship is sought is adoptable. (Children’s Aid Society of Ottawa v. W. (C.), 2008 13181 (ON SC), [2008] O.J. No. 1151 (S.C.J.))
[95] As the parents have not satisfied either aspect of the s. 59 (2.1) test, with regard to the issue of access, the court has no difficulty in finding that there is no genuine issue for trial.
[96] Finally and with regard to the issue of the child’s name, the Society has established a prima facie case that the child’s full legal name is incorrectly shown in the final order of Justice Scott dated May 13, 2013 and this shall be amended to J.B. as set out in the birth registration.
THE ORDER
[97] The Society is entitled to summary judgment, granting a final order without trial on the following terms:
The child’s full legal name shall be amended from J.B.S. to J.B..
J.B., born […], 2013, is made a Crown ward and placed in the care of the Society.
There shall be no access to the child by either parent.
MacPherson J.
Released: February 21, 2014
COURT FILE NO.: 76/13
DATE: 2014/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION
Applicant
- and -
L.B. and
J.S.
Respondents
REASONS FOR JUDGMENT
MacPherson J.
Released: February 21, 2014