SUPERIOR COURT OF JUSTICE - ONTARIO
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of
RE: FAMILY AND CHILDREN’S SERVICES OF FRONTENAC, LENNOX AND ADDINGTON v. J. L. A. and K. C. W.
COURT FILE NO.: 55/09
DATE: March 14, 2014
BEFORE: THE HONOURABLE MR. JUSTICE J. M. JOHNSTON
COUNSEL:
L. David Toupin, for the Applicant
Duty Counsel for J. L.A.
DATE HEARD: February 25, 2014
RULING ON MOTION FOR SUMMARY JUDGMENT
[1] This is a Motion for Summary Judgment in a Protection Application, commenced under Rule 16 of the Family Law Rules. The Applicant is the Family and Children’s Services of Frontenac, Lennox and Addington (“the Society”). The Society seeks the following Final Order in respect of the child, S. M. W., born […] 2013:
(1) a finding that the child, S.W., is a child in need of protection pursuant to subclause 37(2)(b)(i) and 37(2)(g) of the Child and Family Services Act; and
(2) a final Order pursuant to clause 57(1)(3) and subsection 59(2) of the Child and Family Services Act, that the child, S.W., be made a ward of the Crown.
Background:
[2] The child in question is S.W., her mother is J.L.A. born […], 1990 (age 23). The child’s father is K.C.W. born […], 1991 (age 23). On May 17, 2013, Robertson, J. granted a Temporary Order for temporary care and custody of the child to the applicant with access in the discretion of the applicant.
[3] Both mother and father have filed Answers. In her Answer, mother requests the child be returned to her care alone under a Supervision Order.
[4] On August 29, 2013, Trousdale, J. granted the Society’s Motion on consent of mother and directed that the parents submit to a Parenting Capacity and Psychological Assessment to be completed by the Family Court Clinic in Kingston.
[5] On September 13, 2013, at the scheduled Temporary Care and Custody Hearing, on consent, Leroy, J. continued the existing Temporary Order placing the child with the Society with access to the parents at the Society’s discretion.
[6] At Assignment Court on November 29, 2013, this matter was placed on the trial list to commencing March 31, 2014 for five days.
[7] On January 9, 2014, the return date for the Motion for Summary Judgment, Sheffield, J. set a hearing date of February 25, 2014. On January 21, 2014, Abrams, J. granted a Final Order for this case at the Trial Management Conference held.
[8] On February 6, 2014, Abrams, J. granted the Motion of Peter McCullough to be removed as counsel of record for mother and granted a Motion of Courtney Kottel to be removed as counsel for father. The Court directed that the Summary Judgment Motion and trial, if needed, are to proceed whether the parent(s) have counsel or not.
[9] The child continues to be in the temporary care and custody of the Society. On May 16, 2013, the Society moved the child to the same resource foster home where the child’s sibling, C., a Crown Ward, is placed for adoption. Accordingly, the child, S. (the subject of this Motion), has resided with her brother in the same placement for nine months prior to hearing of the Motion for Summary Judgment.
[10] Mother has four older children, the youngest of which (C.) is also a child of the same father in this matter. All four of the children are living outside the care of mother as a result of protection concerns and Orders. The child, J.W.T.A. born […], 2008, was apprehended January 22, 2008, and again November 30, 2009, and was made a Crown Ward on January 7, 2010, for the purposes of adoption. The next child, T.R.N. born […], 2009, was apprehended November 30, 2009 and was made a Crown Ward on January 7, 2010, for the purposes of adoption. The next child, K.I.A., was born […], 2011, and placed in the custody of an extended family member who was granted custody under Section 57.1 of the Child and Family Services Act on April 12, 2012, and C.W.C.W. born […], 2012, was apprehended at birth and made a Crown Ward on February 19, 2013 and is placed for adoption.
Initial Protection Concerns for the Child, S.W.:
S.W. is mother’s fifth child and father’s second child. The Society became involved with the parents during mother’s pregnancy. The Society identified, inter alia, the following protection concerns: the parents’ mental health difficulties, including mother’s history of depression and father’s poor emotional control and aggression, mother and father’s poor follow through with medical services regarding their mental health, mother’s inability to adequately bond with prior children, parents’ inaccurate reporting or misrepresentations to the Society about their engagement with the health services, parents’ lack of regular attendance at access with prior children, incidents of adult conflict between the parents, lack of safe and stable housing and a lack of planning for the expected child.
Access:
[11] Following the apprehension at birth of S.W. on […], 2013, the Society provided the opportunity for the parents to visit with S.W. at three supervised scheduled visits per week for two hours each at the Society’s office - Tuesday, Wednesday and Thursday.
[12] The history of parents’ attendance for access visits is detailed in the Factum filed by the Society, which is a summary of various Affidavits from Society workers. Suffice it to say that neither parent has punctually or regularly attended access. Father’s visitation has been abysmal and he last attended a visit on September 27, 2013, and has not attended a visit or contacted the Society since that date. Mother has not attended a visit since December 10, 2013. Mother attended a total of 45 of 89 scheduled visits.
The Law on Summary Judgment:
[13] The test for Summary Judgment, pursuant to Rule 16 of the Family Law Rules, is whether there is a “genuine issue requiring a trial of a claim or defence”. Rule 16 mandates the Court to make a Final Order where there is no genuine issue requiring a trial.
[14] The moving party must serve Affidavit evidence showing that there is no genuine issue for trial. The responding party may not rest on mere allegations or denials, but must serve an Affidavit setting out facts showing that there is a genuine issue for trial.
[15] The Society argues that, in circumstances where the parents have been provided with ample time both to attend services recommended by the Court and to arrange suitable accommodations to receive the children but fail to do so, Summary Judgment was appropriate. The Society relies upon Children’s Aid Society of the County of Lanark and the Town of Smiths Falls v. A.M. (2005 28860 (ONSC)) at paragraph 12 and 23. The Court in that case noted that, “children’s need for permanency placing must be a time frame that is sensitive to the children’s needs.”
[16] The Society further recites the decision of Children’s Aid Society of the Nipissing and Parry Sound (Districts) v. B.(M.) [2005] ONCJ 261 at paragraph 16, 17 and 30. In that case the Court described the father as a “good man” but noted that, in and of itself, did not necessarily mean he was a good primary caregiver. The Court noted that the father had (a year) to “get it together to show that he could provide a good life for the child. He had done virtually nothing to show the Society that he could ensure the child’s best interests. The father failed to engage in recommended services to address child protection concerns, still did not have the proper accommodation and did not have what was needed to care for a child.”
[17] In child protection proceedings, there is an overriding statutory imperative to commence permanency planning for children in a timely fashion, CAS of Lanark and Town of Smiths Falls v. A.M. (supra).
[18] The Society quite rightly argues that the child in this case, S.W., is under the age of six and thus she may remain in the care of the Society for twelve months before the Society is mandated by legislation to ask for Crown Wardship. The child has been in the care of the Society as of February 25, 2014 for 288 days. This does not mean that one has to wait for the twelve months. The Society’s position is that both parents and, the mother in particular, have been given a sufficient amount of time to demonstrate an ability to care for S.W. on a long-term basis but have been unable to do so. The Society argues there is overwhelming evidence that the child is in need of protection and further overwhelming evidence that it is in the child’s best interests to be made a Crown Ward and there is a presumption against access.
Applying the Law to the Facts to the Case at Bar:
“Is the child in need of protection?”
[19] I agree with the Society and find that there is overwhelming evidence that the child, S.W., is a child in need of protection on the grounds sought by the Society. There are a number of historic concerns relating to mother’s ability to care for children in general. This is demonstrated by the fact that mother’s four previous children have all been removed from her care and, in coming to this conclusion, I rely and accept the background information provided by the Society as to mother’s care of her previous children. Further, I have reviewed and rely upon the Family Court Clinic Assessment completed by Robert C. Rowe, Ph.D., Clinical and Forensic Psychologist, dated February 25, 2014. The Rowe report indicates that children in mother’s care are considered at a moderate to high risk for abuse, neglect or future maladaptive behaviors. The record further reveals that there have been historic concerns regarding mother’s stability, addiction issues and mental health issues, combined with a history of not following through with treatment. The Rowe report indicates that mother has a history of “inability to prioritize her child’s needs, lack of commitment to the best interests of her child and a lack of empathetic understanding of a child” (page 14 of FCC Assessment). The Rowe Assessment report states, “Ms. A. has a history of failing to protect her children and has had four children previously removed from her care. In one case, a child was removed, returned and then removed again. Further, Ms. A. has a personal history of victimization including parental abuse and neglect as well as lack of secure parental attachments and role models during her childhood. These historical factors increase Ms. A.’s risk to children under her care.” Further, at page 10 of his report, Dr. Rowe states, “little motivation was evident of her (mother’s) desire to change her lifestyle or make positive or meaningful changes. Although she has demonstrated many basic childcare skills, she has not been able to demonstrate personal growth and decision making for major domains of her life.” (page 10 of FCC Assessment) In conclusion, I find there is no genuine issue requiring a trial on the question of whether or not the child, S.W., is a child in need of protection.
The Society Seeks Crown Wardship without Access:
[20] The Society argues that there is no genuine issue for trial as to what is in the best interests of the child. It is the Society’s position that neither mother or father have exercised any regular access, they have historic concerns and risk factors relating to their ability to parent children and neither parent has taken sufficient steps to address the risk factors. Accordingly, it is the Society’s position that the only result on the evidence be a finding that it is the child’s best interests to be made a Crown Ward, without access.
[21] I have seriously considered the Society argument, including the Affidavits filed in support of this Motion, the Factum and oral submissions of counsel. However, for the following reasons I find that there is a genuine issue requiring a trial on this second issue, namely, what Order is in the best interests of the child.
[22] It is trite, but true, to say that an Order of Crown Wardship without access is the most intrusive Order the state can make. Such an Order has permanent consequences for all involved. The Child and Family Services Act mandates that, at this stage in the process (namely, once a finding a need of protection has been made), the only issue is what is in the best interests of the child. The child in this circumstance is very young and, as such, permanency planning is paramount to the best interests of this and any other child of similar age.
[23] Counsel for the Society capably argues that parents’ commitment and ability to follow through on access to a child is a minimum requirement to being a capable parent. However, not all parents who are able to exercise access are in the end found to be capable of parenting. In the case at bar, the Society argues that neither parent has been able to even follow through on the minimum requirement of access.
[24] Mother has filed an Affidavit in response to the Motion for Summary Judgment. Mother has provided some explanation for her behaviors and what steps she has taken in an attempt to minimize the risk factors she has posed to children. It may well be that a Trial Judge, after hearing all of the evidence, will accept the Society’s argument that mother’s efforts are “too little, too late” and that the best prediction as to her future ability to follow through with counselling is an accurate assessment of her failure or refusal to follow through on counselling in the past. However, in my view, there is sufficient issue raised by mother, in conjunction with the findings of Dr. Rowe in the FCC Assessment, that require a Trial Judge to hear the evidence and make a determination. Dr. Rowe states in his report that mother “may be depressed; she expressed a dread of the future and a sense of hopeless resignation.” Further Dr. Rowe stated that mother “sees herself as misunderstood, unappreciated and demeaned by others” (page 12 of the FCC Assessment). Mother has provided an explanation as to her non-attendance for access. Her explanation may or may not be accepted by the Trial Judge in light of Dr. Rowe’s findings. Further, the ability to follow through on access is but one of many factors the Court will consider when determining the best interests of this child. Nonetheless, I find there is enough of an issue to require a trial.
[25] On the positive side, Dr. Rowe states that mother has not been identified as having “substantially limited caregiving skills, she seems to have been able to demonstrate the basic skills required to adequately address the needs of an infant. In observation, her basic caregiving was rated as quite good…it is also noted that her interactions with S. would likely facilitate language development.” Further Dr. Rowe states that mother has engaged in appropriate activities with her daughter and is able to provide proper encouragement. Dr. Rowe found that the mother and child interacted well together and that mother paid sufficient attention to the child and was able to redirect, when necessary. “No evidence of insecure or disoriented attachment for S. to her mother was evident. Ms. A. has always expressed an unconditional love for her child and enthusiasm about parenting” (page 8 to the top of page 9 of FCC Assessment).
[26] Mother has shown an inability to seemingly place the well-being of her own children above her own superficial needs. Dr. Rowe indicates that mother fails to recognize the potential negative impact of her decisions on her children. Mother has a poor history of accessing services to assist her in the past.
[27] This case, like many child welfare cases, will involve an assessment by the Trial Judge of mother’s ability to manage the identified child risk and parenting risk factors. To that end, Dr. Rowe stated, “addressing core need areas such as community supports, relationships, stressors, lifestyle, temperament and attachment have the potential to decrease risk estimates substantially in six months to a year’s time.” Dr. Rowe’s view is that, given the track record of mother, it is unlikely for this to occur. A Trial Judge may or may not agree with this finding on the totality of the evidence, however, a trial is necessary to come to this final conclusion.
Conclusion:
[28] For the foregoing reasons, the Society’s Motion for Summary Judgment is granted in part. The child, S.W., is found to be a child in need of protection on the grounds sought by the Society. However, a trial is ordered as to the Society’s requested relief of “Crown Wardship without access”.
[29] On consent, the timelines for the Society to file a Trial Record is extended to March 17, 2014. Mother shall be given an opportunity to file her material to March 26, 2014.
[30] Father, Mr. W., did not participate in this Motion for Summary Judgment. Father has not followed through on access since September, 2013. Father did not participate in the Family Court Clinic Assessment. Accordingly, there is no genuine issue requiring a Trial as it relates to the Answer filed by father. Accordingly, the only issue for Trial will be a finding as to the best interests of S.W. and the Plan proposed by mother.
The Honourable Mr. Justice J. M. Johnston
RELEASED: March 14 , 2014
COURT FILE NO.: 55/09
DATE: March 14, 2014
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of
RE: FAMILY AND CHILDREN’S SERVICES OF FRONTENAC, LENNOX AND ADDINGTON v. J. L. A. and K. C. W.
BEFORE: The Honourable Mr. Justice J. M. Johnston
COUNSEL: L. David Toupin, for the Applicant
Duty Counsel for J. L.A.
RULING ON SUMMARY JUDGMENT MOTION
The Honourable Mr. Justice J. M. Johnston
RELEASED: March 14, 2014