SUPERIOR COURT OF JUSTICE –Family Division

COURT FILE NO.: FC12-1155
DATE: 20140310

RE: C.A.S. v. N.L. and T.F.

BEFORE: The Honourable Mr. Justice J.P.L. McDermot

COUNSEL:
Jeffrey Hustins for the Society
David Zeldin for the Respondents

HEARD: March 7, 2014

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any child involved in the proceedings as a party or a witness or any information likely to identify any such child, or the child’s parent or foster parent or a member of the child’s family. This judgment complies with this restriction so that it can be published.

E N D O R S E M E N T

Introduction

[1] This was a motion brought by the Applicant Society for a finding that the children of the Respondents are in need of protection and for a resulting order for crown wardship of the children without access to the Respondents.

[2] This matter was set for trial commencing February 24, 2014. As indicated by my earlier endorsement, I agreed to adjourn the trial but only on the basis that this summary judgment motion would proceed on March 7, 2014.

[3] Mr. Zeldin appeared today requesting an order removing him as solicitor of record for the Respondents. He provided an affidavit indicating that he had advised the Respondents of this motion, that he had made an initial appointment with the Respondents and that they failed to attend at the appointment. He then arranged for his assistant to go to the residence of the Respondents and she did and gave them a copy of the material in support of the summary judgment motion. The mother, N.L. did attend at a subsequent appointment, but the father, T.F. failed to attend. Mr. Zeldin prepared some of the materials necessary to respond to the motion, but he asked that both come in on March 5 so that he could complete the responding materials. Neither of them showed up at that appointment. Mr. Zeldin was unable to prepare responding material for the motion.

[4] I refused the order for removal from the record. Both of the Respondents were paged and neither of them were in attendance today. Mr. Zeldin assured me that they were aware of the motion and the date it was being heard. I felt that it was important that the parents’ representative remained on the record for the argument of the motion although he could contribute very little through no fault of his own. Mr. Zeldin was present for argument of the motion. Again, for the record, he advised that the Respondents were aware of the date of the return of the motion and notwithstanding this, they were not in attendance.

[5] As such, I determined that the motion would proceed in the absence of the Respondents but in the presence of their counsel of record. As can be seen, the Respondents have filed no material in response to the Society’s motion.

Protection Issues

[6] The children in this matter are the Respondent’s daughters, A.L. and D.L. and their son, T.F. A.L. is nearly 9; D.L. and T.F. are 7 and 5 years of age respectively. They have been in care since August 12, 2012 when they were apprehended due to a number of reasons which will be outlined below. They have accordingly been in care more than 570 days.

[7] There is a history to this matter. The society has been involved with these parties since 2006 and there was one other period of society care of 10 days in 2010.

[8] The Society requests a finding that these children are in need of protection under ss. 37(2)(a)(i) and (ii) (physical harm), 37(2)(b)(i) and (ii) (apprehension of physical harm), 37(2)(e) (failure to obtain medical treatment) and 37(2)(g) (emotional harm) of the Child and Family Services Act.[^1] Based upon the affidavits filed by the Society, I have to determine whether there is no “genuine issue requiring a trial” regarding these statutory requirements: see Rule 16(4) of the Family Law Rules.[^2]

[9] In reviewing the Society affidavits, and in particular that of Lorrie Pepin, the social worker who is responsible for this file, I am satisfied of the following:

a. Drug and Alcohol Use

[10] There is ample evidence that these parents have used drugs to excess while the children were in their care. The worker when initially inspecting the home of N.L. noticed a leafy substance and part of a marijuana grinder on her coffee table. The children have told the worker that they have observed N.L. using a white substance “up her nose”. There have been a number of third party complaints from third parties, including N.L.’s sister and neighbours who have stated that the mother was using oxycodone.

[11] More telling is the fact that both parents were asked to participate in hair follicle testing through requests through their counsel, Mr. Zeldin. Neither parent showed up at the appointment and both indicated that they were refusing to participate in hair follicle testing.

[12] I am satisfied that there has been illegal drug use, and that drug use took place by N.L. at least, while she cared for the children.

b. Criminal Justice System

[13] There have been numerous encounters between the parents and the criminal justice system. The police records indicated that they had been called to the parents’ residence on 13 different occasions, largely for domestic disputes and when the children were living with them. In 2010, N.L. was convicted of changing a prescription to add Percocet to that prescription. T.F. has been convicted of several criminal offences, including domestic assault against the mother of his oldest child (not a subject of this hearing) and weapons offences in February, 2012. When the children were apprehended, he was incarcerated for those offences.

[14] It is also to be noted that the evidence showed that the children had used those weapons and that the weapons and the ammunition was stored in reach of the children.

c. Domestic Violence

[15] As noted above, there were numerous incidents of domestic violence in front of the children.

[16] This continued after the children were apprehended. The access visits between the children and the parents can only be described as awful. That was often because the parents would become verbally abusive with one another in front of the children. That would obviously continue if the children were returned to their parents.

[17] It is interesting to note that during recent access visits, the parents had to exercise access separately due to the fights that they indulged in in front of the children. T.F. had acknowledged to the worker that he needed to get his own place because of these problems; however at the date the motion was heard, he remained living with N.L.

d. Inappropriate Discipline

[18] There was ample evidence of inappropriate discipline, especially by N.L. When the children were apprehended in August, 2012, the worker found a lock on the outside of T.N.’s room; he was reportedly locked in his room for long periods of time as a disciplinary technique. Both A.L. and D.L. reported that they had been thrown and pushed by N.L.; N.L. acknowledged to pushing her daughters. T.L. mouth had been washed out with soap. A.L. and D.L. reported having been hit on the mouth, head and bum. There was evidence that A.L. was also locked into her room with the door roped shut.

[19] During an access visit, the parents were observed threatening the children that if they did not behave, the society would take them away from them.

[20] It is apparent that discipline has been imposed on the children which was violent, inconsistent and inappropriate. The parents have failed to attend parenting classes and as such there is ample reason to believe that they would continue to act in this manner were the children in their care.

e. Dental Health

[21] The dental problems suffered by the children are unique and troubling. All needed numerous fillings in their teeth. All of the children had their front teeth removed due to tooth decay, probably resulting from excess sugary drinks and bottles propped in their mouths. The children’s dentist retained through the Society indicated that D.L. would have been in extreme pain due to her tooth decay.

[22] When the children were apprehended, N.L. acknowledged their dental needs. However, no appointment with the dentist had been scheduled.

f. Social Issues

[23] Both D.L. and A.L. started school quite late and remain far behind their peers in school. A.L. started school 2 ½ years after she should have; D.L. began school 1 ½ years after she should have.

g. Lack of Supervision

[24] There were multiple reports about the children being left on their own without adequate parental supervision.

[25] One earlier involvement of the Society respecting these children occurred in 2010 when the children were left in N.L’s sister’s care. The parents did not return when they were scheduled to, and the sister called the Society. The children ended up in care for 10 days.

[26] In 2012, just prior to the children being apprehended, the children were left in a neighbour’s care. The neighbour advised that N.L. had not left enough food for the children; most of the contents of the refrigerator were rotten. N.L. was supposed to return for D.L.’s birthday on Saturday but she did not. She was apparently in the city with a man, and returned only on Sunday.

[27] At one point in time, T.F. was injured on the head due to lack of supervision, requiring a trip to the hospital.

h. Transience

[28] The parents have not been able to maintain a stable home, having moved these children 14 times in 6 years.

i. Financial Concerns

[29] There were a number of financial concerns expressed by the workers involved in this file. Between July 3, 2007 and January 2, 2008, 14 food vouchers had to be given to the parents. Visits have been cancelled because the parents did not have funds to attend at the Society office.

[30] One telling incident occurred at Christmas, 2013. The parents showed up with 10 gifts for each of the children. They had no food for the children and blamed the foster parents for not providing food. The worker had to point out that the funds might have been better allocated for food than presents, especially as the Society had provided two wrapped presents for each of the parents to give to the children.

j. Access Visits

[31] The parents have missed numerous access visits with the children. N.L. has missed 60 out of 113 visits since the children were apprehended. T.F. started his access visits later as he was incarcerated for a period of time after apprehension; however he missed 46 visits out of 91.

[32] Counsel described the visits as “awful” and I agree with that assessment. There were numerous visits where the parents fought between themselves or with the worker in front of the children. They did not appear to be able to restrain themselves or understand the harm their fighting did to the children. It was apparent that they could not manage the children during the visits. If the access visits are any example of how the parents acted with their children, they are clearly better off in Society care.

[33] The visits have had a negative effect on the children. D.L. does not want to attend access visits anymore and had to be forced to return to at least one visit. There were two particularly difficult access visits, one in November, 2013 and another in January, 2014; after each of these visits both D.L. and A.L. reverted to wetting themselves and defecating in their clothes. D.L. smeared faeces on the walls of her room. The access visits are difficult for the children to manage and are clearly not beneficial to the children.

k. Parents’ Involvement

[34] The affidavit evidence indicates a toxic relationship between the parents and the Society worker, with both N.L. and T.F. accusing the worker of lying and deceit. There is little evidence of the parents cooperating with the Society to deal with the issues outlined above.

[35] More importantly, the parents have failed to attend at any sort of parenting program or parent education to deal with their problems or their own self awareness of how they parent. The evidence is that at one point, they signed up for a program, but were expelled because of lack of attendance. They refused to attend for the hair follicle testing. There is no evidence that the parents have attempted to change their habits or improve their parenting in order to arrange for a return of the children to their care.

l. The Children

[36] In all of this, these children are, not surprisingly, troubled. I have already commented on the educational delays and the wetting and defecation problems of A.L. and D.L. They are both in counselling and making progress. However, as noted, D.L. does not want to attend access visits anymore.

[37] T.F refused to sleep in a bedroom when he first went into foster care. He had night terrors, possibly because he was locked in his room as noted above. When he was apprehended, he exhibited sexualized behaviour, touching people on their buttocks and lifting the dress of the worker.

[38] He may suffer from Fetal Alcohol Syndrome; unfortunately, this cannot be confirmed because N.L. will not admit to drinking during pregnancy. All that can be determined is that he suffers from some of the symptoms of that condition.

[39] It is clear that access is not beneficial to these children.

Children in Need of Protection

[40] This is a motion for summary judgment under Rule 16 of the Family Law Rules. Under Rule 16(2), I can make an order for summary judgment in a child protection case; the criteria for obtaining an order is set out in Rule 16(6) which reads as follows:

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[41] The courts have often made awards for summary judgment in child protection cases; see for example Children’s Aid Society of Hamilton v. M.W.P.S. (2003), 2003 2309 (ON SC), 63 O.R. (3d) 512 (S.C.J.). Courts have made findings of Crown wardship without access on summary judgment applications where the facts so warrant: see Catholic Children’s Aid Society of Hamilton v. G.(C.), 2010 ONSC 4320 and Catholic Children’s Aid Society of Hamilton v. A.(M.), 2012, ONSC 267.

[42] The parents provided no material in opposition to this motion. They were given ample opportunity to attend their lawyer’s office to prepare and sign material and they did not. Mr. Zeldin was not in a position to make any reasonable submissions in opposition to the motion, or provide any evidence contrary to the Society’s position. The responding party to a motion for summary judgment must put his or her best foot forward and provide evidence which responds in a coherent manner to the motion for summary judgment: see Rogers Cable TV Ltd. v. 373041 Ontario Ltd., 1994 7367 (ON SC), 1994 CarswellOnt 166 (Gen. Div.) and Children’s Aid Society of Toronto v. E.L.L., 2000 CarswellOnt 6196 (C.J.). This the Respondents have not done. There is no evidence whatsoever filed in opposition to the motion filed by the Society, and no plan for the children for the future, and no self-awareness of the problems that the parents pose for these children.

[43] As such, I have no choice, and in fact, no difficulty, based on the evidence set out above, to determine that these children are in need of protection based on the sections of the CFSA put forward by the Society. There will therefore be a finding that the children are in need of protection pursuant to ss. 37(2)(a)(i) and (ii), 37(2)(b)(i) and (ii), 37(2)(e) and 37(2)(g) of the Child and Family Services Act.

Disposition

[44] The Society seeks crown wardship without access to the parents. They wish to plan for adoption of the children.

[45] There are no adoptive parents at present waiting in the wings. However, these children have been in care for 570 plus days, and as such have been in limbo too long. They need permanency planning which only permanent crown wardship will allow. Moreover, the time guidelines are long past and there are few other options. Certainly, in light of the parents’ refusal to cooperate with the Society, take drug testing or participate in parenting courses, there is little evidence that less intrusive measures, such as a supervision order, is in the best interests of the children. There have been no family members stepping forward for kinship placement. There shall be an order for Crown Wardship as requested.

[46] Based on the evidence from the society worker, the access visits are not only not in the best interests of the children; they are harmful to them. The responsibility for this lies with the parents, who cannot avoid fighting between themselves or with the Society worker in front of the children. Access is harmful to the children and would prevent permanency planning. D.L. wants no further access to her parents. There shall be no access by the Respondents to the children.

Order

[47] The Society shall therefore have summary judgment.

[48] There shall be an order according to paragraphs 2 to 5 inclusive of the Society’s Notice of Motion filed at Tab 1 of Volume II of the Continuing Record.

Mr. Justice J.P.L. McDermot

DATE: March 10, 2014

[^1]: R.S.O. 1990, c. C.11

[^2]: O. Reg. 114/99