COURT FILE NO.: FS-13-18857

DATE: 20140529

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: E.J., Appellant

A N D:

Catholic Children’s Aid Society of Toronto, Respondent

BEFORE: MESBUR J.

COUNSEL: Cherry Isaacs-Reynolds, for the Appellant, mother

Robin Vogl, for the Children’s Aid Society of Toronto

Carolyn Leach, for the children

HEARD: May 22, 2014

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.-(7) Order excluding media representatives or prohibiting publication –

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

Where the court is of the opinion that … publication of the report, …, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. – 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 or a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Idem: order re adult. – The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85. – (3) Idem – a person who contravenes subsection 45(8) or 76(11) (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.

E N D O R S E M E N T

[1] The appellant mother appeals from a summary judgment motion in the Ontario Court of Justice in which Paulseth J granted the Catholic Children’s Aid Society’s motion, and made the appellant’s three sons Crown Wards, subject to continued regular access with her. All three children have lived together in the same foster home for more than two years. They see their mother every weekend on both Saturday and Sunday, from 9 until 6.

[2] The children, who are now 15, 9 and 7, have been represented by counsel throughout. Their lawyer supported, and continues to support the outcome on the summary judgment motion, namely that the children be Crown Wards, with continued access with their mother.

[3] The mother appeals. She asks to have her boys returned to her care. Alternatively, she proposes the children be placed with members of her church community or that the matter proceed to trial in the Ontario Court of Justice.

[4] Mother’s notice of appeal alleges:

a) Lack of competence of counsel;

b) Lack of competence on the part of the Worker

c) Failure of the court to understand the “cultural complexity” and the background of the Respondent mother:

d) The court erring in “misinterpreting the evidence”;

e) The court erring in failing to take into consideration the linguistic issues of the mother, the “blatant racial overtones” of the psychological reports; the “bias and cultural insensitivity” of the children’s psychological report;

f) The court erred in “misinterpreting the evidence in terms of the social issues relating to the children”;

g) The court erred in “not complying with the legislation by permitting family or members of the community from having custody of the children”;

h) The court erred in failing to take into consideration “the lack of availability of services to deal with the issues confronted by the Respondent mother”; and

i) The court erred in “failing to take into consideration the Respondent mother’s medical condition and the fact that she is a refugee from Haiti and the cultural differences”.

[5] Although the mother raised the issue of competency of counsel in her notice of appeal, she tendered no evidence (or even argument) on this issue. This ground of appeal must fail.

[6] Similarly, the mother provided nothing to suggest the Worker lacked competence. Mother’s affidavits filed in response to the summary judgment motion say nothing at all about this issue.

[7] Mother suggests the motions judge failed to address a placement of the children in the community. The Society explored mother’s proposed kinship plan. It was wanting. The motions judge made no error in this regard.

[8] The motions judge correctly articulated the test for summary judgment on a motion for Crown Wardship. As she pointed out, rule 16 of the Family Law Rules is a mandatory rule, requiring the court to make a final order if it concludes there is no genuine issue requiring a trial of the claim.

[9] The motions judge made a thorough review of the law of summary judgment, and recognized both the onus on the Society, and that summary judgment motions need to proceed with caution. Once, however, the moving party satisfies its evidentiary burden, the onus shifts to the responding party to show a genuine issue for trial exists. As the rule provides, the responding party must put her “best foot forward”, and cannot rest on mere allegations or denials without setting out specific facts showing that there is a triable issue.

[10] The mother’s response to the summary judgment motion lacked any evidence to meet the overwhelming case presented by the Society. Without any compelling evidence from her, the outcome was a foregone conclusion. The mother was convicted of assaulting her children. She admitted to hitting them with a belt and pleaded guilty to assault charges against her. The motions judge recognized that the mother was remorseful, but that was no guarantee she would not do so again. The motions judge also recognized that the mother had taken steps to obtain parenting training to assist her in developing more appropriate discipline strategies with her children. Evidence of completing the courses, however, is not the same as evidence the mother has learned what was taught and can apply it properly in her relationship with her children.

[11] Importantly, however, the assault issue was not the only reason for the motions judge to conclude it was inevitable there would be a finding the children were in need of protection, and their best interests required they be made Crown Wards.

[12] The evidence was overwhelming that the mother lacks both the intellectual capability and insight to meet her children’s significant special needs. The motions judge found “there is ample evidence, really uncontradicted, about each of the boy’s special needs … they are needs that have to be met. They were very clearly not identified by the mother.” While the appellant now suggests the children are not at risk, and she has addressed all the protection concerns the Society has, this is not borne out by the evidence, either before the motions judge or the fresh evidence filed on the appeal.

[13] The appellant suggests the parenting capacity assessment was deficient in that the assessor failed to take into consideration her cultural background and heritage, and this had an impact on the assessment. As the children’s lawyer rightly points out, the issue here is not whether the assessment was flawed; it is whether the motions judge erred.

[14] The mother had the opportunity to raise these issues and present evidence on the summary judgment motion. She could have cross-examined the assessor to determine whether in fact he was biased and not culturally sensitive. She did not. She adduced no evidence at all to support her position. She failed to meet her burden of putting her best foot forward to respond to the evidence on the summary judgment motion.

[15] Nevertheless, the motions judge dealt squarely with the issues mother raised (and raises) regarding her language and comprehension issues. She dealt specifically with the children’s cultural background, specifically their language and their Haitian culture. She noted the Society “is proposing continued meaningful contact between the boys and their mother so as to maintain … Mother’s very rich culture and maybe the richness of her language … French will always be available to them and that will always be an asset that they will have, because they have embraced with the Creole language, the French language.”

[16] As to the mother’s complaint about the assessor’s evaluation of her limited intellectual capacity, the motions judge recognized mother’s concern about not knowing the meaning of some of the words the assessor used. She properly concluded, however, that “looking at some other assessor is not going to change that and that is why the outcome of this matter does not require a trial any further than the contested hearing we have had today.” In this regard, it is telling to note that on the motion, mother’s affidavit in response says at paragraph 25: “Although my assessment was conducted with the help of an interpreter, I must admit that I could not understand all the words spoken to me, even when they were translated to me. I am not saying the translation was inaccurate … often I would not understand the meaning of the words themselves.” In her affidavit, the mother attributes this inability to both her low educational level and her pain due to the absence of her children.

[17] She does not, however, address the assessor’s findings, at page 6 of the report, in which he says:

Because of Ms. J’s lack of proficiency in English, an interpreter assisted in completing all of the interviewing and testing during the PCA. The relatively limited amount of information provided by Ms. J (compared with most PCA clients) did not appear to reflect a language issue, as the examiner tried to ask via the interpreter for elaboration on her initial answers to various questions but was often met with similarly brief responses to these follow-up attempts.

[18] Or, at page 9 where he says, in relation to interpreting the intelligence test results:

As mentioned previously, because of Ms. J’s lack of proficiency in English, an interpreter assisted in competing all of the tests during the PCA. For the intelligence test, several modifications and accommodations were made to ensure that language per se was not responsible for her results.

… she has extreme difficulty in managing most aspects of her everyday life on her own. This is due to the aforementioned deficits in areas of cognitive functioning … She also has very poor general knowledge and extremely limited awareness of or concern for social norms that help one live harmoniously amongst others within North American society … she is extremely impaired in her ability to attend to her environment … she did very poorly on a test of abstract and flexible thinking …equally poorly on language-based subtests as she did on tasks that are supposed to be “non-verbal” and “culture free”, thus her results were not likely due to her limited English. …

[19] The assessment report makes it clear the assessor was alive to the possibility the mother’s poor performance might be due in part to her lack of education. He notes, however, on page 9:

Nevertheless, some of the tasks are quite basic and have been shown to be understandable by people from a wide variety of cultural, ethnic and educational backgrounds … It would therefore seem that her overall poor performance on the WAIS-IV is a reasonable indicator of her ability to function in her daily life, as would be the case with, for instance, a native-born Canadian – notwithstanding the preceding caveats.

[20] The assessors’ report sets out clearly and cogently the mother’s limitations. While the mother suggests the report is “racist” and the society insisted on “imposing Western Eurocentric culture on a Haitian family”, she proffered no evidence of this on the summary judgment motion.

[21] On this appeal, the mother questions how a Children’s Aid Society can “judge someone from another culture”. First, Societies are obliged to protect all children, from whatever cultures they come. In Toronto’s multi-cultural society, those cultures are many and varied. Second, this argument suggests the Society’s role was to judge the mother. The role of the society is to protect the children.

[22] The mother’s counsel also raised a number of arguments about Black culture, although mother proffered no evidence of this at the summary judgment motion. She also questioned why the family was not served by agencies such as “Tropicana” or the “Jamaican Canadian Society”. Again, there was no evidence before the motions judge about these agencies, or how they might have assisted mother in addressing the overwhelming protection concerns the Society identified.

[23] Mother’s counsel also suggests it was “incumbent” on the motions judge to inquire about the competency of the services the Society provided to this family. That argument clearly misinterprets the role of the motions judge. It was incumbent on mother’s counsel to put her best foot forward on the summary judgment motion. The motions judge must assume that all parties have put forward all the evidence they could. Not only did mother fail to put forward any evidence to support her contention the Society failed to provide “culturally competent” services to her, she has failed to put forward any fresh evidence on this appeal to do so.

[24] The motions judge also recognized that the children’s views and preferences were important as well. The children, through their counsel, were very clear in their wish to remain in foster care, residing together, while maintaining a relationship with their mother. The Society has no plans to place the children for adoption. The plan is for the children to remain in foster care, with the same foster parents. These foster parents have the necessary skill and knowledge to address the boys’ special needs appropriately. The Society also plans to keep the boys together. The Society’s plan, therefore, meets the children’s expressed views and preferences.

[25] The Society’s case for summary judgment was overwhelming. The mother failed to answer that case in any meaningful way. The motions judge carefully reviewed the evidence before her, properly articulated the legal test, and came to the correct conclusion that the Society’s motion for summary judgment must be granted.

[26] The remaining question is whether the fresh evidence each party has provided would change that outcome.

Fresh evidence:

[27] Both the Society and the appellant tendered fresh evidence to update the court on the situation since the court heard the summary judgment motion. The fresh evidence the Society has produced confirms the children continue to do extremely well in their foster home. They are happy and well-adjusted. Their foster parents have the necessary skills to support the children’s significant special needs.

[28] The Children’s Lawyer also confirms that since the motion, their clients continue to express a clear wish to remain in their foster home, to continue to live together, and to continue to see their mother regularly as they do now, all day Saturday and all day Sunday every weekend. The boys are now 15, 9 and 7. They have been in the same foster home for more than two years. They see their mother every weekend. The children still clearly express to their counsel they want the current arrangement to continue. The want to remain together. The eldest, in particular, wants to finish high school while living in his foster home. He feels it is best for him to stay in their foster home. There is no question, however, the boys love their mother. She is important to them, and they want to continue their contact with her. The Society’s fresh evidence confirms the outcome of the summary judgment motion.

[29] The appellant’s fresh evidence focuses on two things. First, she has produced a list of names of members of her church who, she says, will provide support to her if the children are returned to her care. There is no affidavit from any one of them. There is no evidence any of them is aware of, or has the capability of addressing, the children’s significant special needs. While I have no doubt the appellant’s church provides significant emotional support to her, I am not persuaded this list gives the court any evidence of new circumstances to support a different outcome than the one reached by the motions judge. The list of supportive friends does not equate to an alternate kinship placement for these children. The list of supportive friends does not equate to a new plan.

[30] Second, the appellant has provided a letter dated February 26, 2014 from a Doctor Eugenia Pearson, who describes herself as a qualified educator, independent researcher, member of various professional bodies and a “Social Science (Policy) Social Work practitioner”. Her letter describes the appellant as “emotionally traumatized and mystified” by the protection process. She says the appellant has numerous supports from qualified community members and social services. As a result, she says the Society “should immediately announce complete halt to those children and return them to their mother…”

[31] There is no CV attached to Dr. Pearson’s letter. She has not provided the court with an affidavit. It is completely unclear what evidence or facts she considered to come to her opinion. There is no evidence she had the opportunity to consider the materials filed on the summary judgment motion. Dr. Pearson attended court on the appeal, as a “support person” for the appellant. She is not tendered as an expert of any kind. I give her letter little or no weight, and conclude the mother’s fresh evidence is insufficient to support anything other than the conclusion the motions judge reached.

Conclusion:

[32] For all these reasons the appeal is dismissed.

MESBUR J.

Released: 20140529