ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C120/12
DATE: 2014-07-04
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 45 (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,
[1] . . .
[2] (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 of 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.
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
C.S. (mother)
And
J.J. M. (father of K.)
Respondents
Miriam Bergart, Counsel for the Society
Not in Attendance
Noted in Default
Kathryn Junger – Counsel for the Office of the Children’s Lawyer
HEARD: June 30, 2014
THE HONOURABLE MR. JUSTICE PAZARATZ
This was a summary judgment motion brought by the Children’s Aid Society of Hamilton (“the Society”) in relation to two boys K.S., age eight, and B.S. age six. They have been in care since January 2012.
Findings have already been made that the children are non-native, non-Indian and not of the Catholic faith. The Society now seeks:
a. A finding that the children are in need of protection pursuant to sections 37(2)(b)(ii) and (g) of the Child and Family Services Act (“the Act”).
b. Both children to be made wards of the Crown, without access.
The Society’s request is not opposed by counsel for the boys appointed through the Office of the Children’s Lawyer (“OCL”). Ms. Junger candidly acknowledged that while K.S. in particular would have hoped for a different outcome, in reality there are no options available other than as proposed by the Society.
The Society filed extensive affidavit materials in support of its motion including a copy of a September 26, 2013 Parenting Capacity Assessment (“PCA”) prepared by clinical psychologist Dr. Dan Ashbourne. The PCA related to these two boys as well as another of the mother’s children.
The mother C.S. filed no materials in response to the summary judgment motion, despite having been personally served with the Society’s motion. She did not attend the hearing of the motion. She also failed to attend a Trial Management Conference on June 2, 2014. The matter is currently scheduled for trial during the sittings of September 1, 2014.
The mother C.S. is 29 years old. She has two other children ages 13 and four who are permanently not in her custody.
K.S.’s father J.J.M. has already been noted in default.
In relation to B.S., no male person qualifies as a parent within the meaning of the Act.
The Society’s position is compelling:
a. The mother has had continuous involvement with both the Hamilton and Waterloo Societies since 2005.
b. There are multiple ongoing concerns about the mother including transience; unsafe and unsanitary living conditions; lack of finances; lack of supports; failure to follow through or cooperate with services and Society workers; mental health issues; and her overall lack of stability.
c. When the children were in the mother’s care, she struggled to provide for their basic necessities such as food.
d. The mother also failed to address their developmental delays and behavioural issues.
e. There were concerns about the children’s exposure to domestic violence between the mother and her former partner.
f. K.S. and B.S. have not been in the mother’s care for nearly 2.5 years. During this time the mother has been unable to maintain a clean, sanitary and stable home. She was evicted from her home as recently as March 2014, at which time she moved to Kitchener where she currently resides.
g. The mother’s access with the children is currently on hold as a result of her non-attendance at visits. She last exercised access in February 2014 and has missed two scheduled meetings with the Society to discuss reinstating access. The mother does not take any responsibility for missing visits and places the blame on the Society.
h. Dr. Ashbourne’s September 2013 PCA concluded that both boys should be viewed as “special needs” children who require a stable, secure, loving home with skilled caregivers.
i. Dr. Ashbourne concluded the mother’s overall intellectual functioning was an area of strength for her, as well as her daily functioning abilities. He also observed that the mother loved the children and they loved her. However, Dr. Ashbourne did not agree with the mother’s claim that she had “improved the organization, cleanliness and preparedness of her home for the children”. Dr. Ashbourne found that “the results of this assessment do not provide sufficient evidence to suggest that the mother can provide such a secure, stable home (as required by the children and given their special needs) at this time”.
j. Dr. Ashbourne also noted the mother would “minimize the significance of events and to down play their implications” when challenged regarding the children’s experience witnessing violence between the mother and her previous partner.
k. Dr. Ashbourne reported that the mother struggled with problem solving.
l. The PCA stated the mother’s test results “pointed to possibly a moderately severe mental health disorder, with potentially Bipolar Disorder (manic, severe, without psychotic features)”.
m. The mother had also acknowledged “struggles with her moods, anxiety and organized thinking process”.
n. The PCA also found that the mother had a “high probability of having a substance dependence disorder”, although the mother stated she had significantly reduced her use of substances during the previous six to 12 months.
o. The mother’s mental health continues to be a concern due to her own reports to the Society. The mother has advised the Society that she has been diagnosed with Obsessive Compulsive Disorder (“OCD”) and Anxiety, but she is not interested in counselling and is not consistently taking her prescribed medications. In March 2014 the mother advised the Society her medication had been changed because her anxiety had been escalated.
p. When K.S. and B.S. were brought into care in January 2012 they both displayed delays in their academic and social development, as well as behavioural issues. Both children had obvious speech delays and K.S. had anxiety issues and was still not toilet training at five years old.
q. Since January 2012 both boys have made significant improvement with their delays and behaviours, although they still have substantial needs.
r. But B.S.’s behavioural problems have escalated over time, most notably when visits with the mother were increased in November 2013 to three hours at a time. He was observed by the foster parents to scream, yell, throw food and physical hurt family pets (cats and dogs) by kicking them.
s. The mother’s failure to attend access since February 19, 2014 has impacted negatively on the children. In early April 2014 B.S.’s foster home reported that his behaviour had worsened in the home and at school, and he had become physically aggressive and more defiant.
t. On May 6, 2014 Dr. Chrystella Calvert reported that B.S. suffered from severe ADHD and attachment issues and that his behaviour had dramatically destabilized. Dr. Calvert stated that “B.S. clearly identifies severe emotional distress due to mom ‘not visiting because she’s too busy’.” Dr. Calvert further stated that B.S. would benefit from trauma counselling and attachment therapy.
u. The children require a stable, secure home with committed caregivers who will ensure their special needs are met.
v. The mother has had ample time to address the protection concerns and make the changes necessary in her life to have the children returned to her care. However, she has failed to do so.
w. There have been no plans of care put forth by any members of the children’s family or community.
x. As a result the Society submits there is no less intrusive alternative available other than to make the children Crown wards without access.
THE LAW
Rule 16 of the Family Law Rules allows a party to bring a motion for summary judgment after the respondent has served an Answer or after the time for serving an Answer has expired.
Rule 16(2) specifically allows for summary judgment in child protection proceedings. The rule does not preclude such a motion in cases in which the Society requests Crown wardship.
Pursuant to Rule 16(4) the Society is obligated to serve an affidavit, or provide other evidence, that sets out specific facts to convince the court that there is no genuine issue that requires a trial.
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.
Rule 16(6) sets out that the test is whether there is a genuine issue requiring a trial of a claim or defence. The rule is mandatory. If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.
"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(1996), 1996 7271 (ON SC), 139 D.L.R. (4th) 534 (Ont. S.C.J.)); when the "outcome is a foregone conclusion" (Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.) (Ont. Gen. Div.)). To put it another way, no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.(Children's Aid Society of Niagara Region v. C. (S.), 2008 52309 (ON SC), 2008 CarswellOnt 5929, [2008] W.D.F.L. 5026 (Ont. S.C.J.)).
As stated, the Society has filed voluminous, detailed affidavit materials in support of its request for summary judgment. The mother has filed no materials, nor has she attended court to make submissions or participate in the hearing.
Where a child has been apprehended by a Society, the Society is required to commence an application under section 40(1) of the Act.
There are two stages to a protection application. The court must first determine whether the child is in need of protection pursuant to section 37(2).
The unchallenged Society materials clearly establish that both of these children are in need of protection pursuant to pursuant to sections 37(2)(b)(ii) and (g) of the Act.
Section 57(1) sets out the options available and relevant considerations once a child is found to be in need of protection.
K.S. and B.S. have been in the continuous care of the Society for 29 months, which is beyond the time limit permitted under s. 70 of the Act. This limits the real options available pursuant to section 57(1):
a. Return the children to the care of the mother, with or without supervision.
b. Crown wardship.
I have considered the relevant factors in determining the best interests of a child, as set out in section 37(3) of the Act.
In applying the best interests criteria set out in section 37(3), I have attempted to maintain a child-centered focus, reflecting the paramount purpose of the CFSA as set out in section 1.
I am satisfied that the Society had adequately addressed the balance of s. 57:
a. Reasonable efforts have been made to assist the children and the mother (s.57 (2)).
b. Less disruptive alternatives have been considered. (s.57(3)) No alternative other than proposed by the Society could adequately protect these children.
c. Community placements have been considered. (s. 57(4)) None are available.
I am satisfied that returning either or both of these boys to the mother would not be safe or appropriate. The mother’s personal situation continues to be unstable. Her mental health issues remain unresolved. While she loves the children she appears to have no insight into their needs – and no ability to meet those needs.
Returning either or both children to the mother under a supervision order would not be a realistic or safe option. No amount of supervision could safeguard these children if they were individually or jointly placed in the mother’s care. The mother has clearly demonstrated she cannot be entrusted to cooperate with the Society or abide by court imposed terms of supervision.
I am satisfied that the only realistic and appropriate disposition for both of these children is Crown wardship.
Once there is an order for Crown wardship, the focus of the Act is to establish a permanent and stable placement for the child. The Society has an obligation pursuant to section 63.1 of the CFSA 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.
Access is dealt with in sections 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.
Section 141.1 of the Act now allows Societies to place Crown wards with an access order for adoption.
But section 59(2.1) still applies, and creates a presumption against access where the child is a Crown Ward. The section says a court shall not make or vary an access order with respect to a Crown ward 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.
The mother has filed no evidence to address either element of the conjunctive rebuttable presumption under s.59 (2.1). I accept the Society’s submission that there shall be no access.
A separate issue has arisen in relation to sibling access – both between K.S. and B.S., and also involving their four year old sister (who has been permanently placed with her paternal grandmother).
OCL counsel expressed the strong view that sibling contact (involving all three children) should be maintained, both pending any adoptive placement, and if possible, even thereafter.
The Society consented to sibling access provisions pending adoption being included in the final order. I agree with Society counsel that specific sibling access provisions relating to the selection of an adoptive placement would be inappropriate.
However, Society counsel also made it clear that the Society is committing itself to making its best efforts to find an adoptive placement which is prepared to facilitate ongoing sibling contact.
I am satisfied that there is no genuine issue for trial in relation to any of the above noted issues, and that the Society motion for summary judgment should be granted.
THE ORDER
The children K.S. born […], 2006 and B.S. born […], 2008 are found in need of protection pursuant to sections 37(2)(b)(ii) and 37(2)(g) of the Child and Family Services Act.
The children K.S. born […], 2006 and B.S. born […], 2008 are made wards of the Crown and placed in the care of the Children’s Aid Society of Hamilton.
There shall be no access to the children K.S. born […], 2006 and B.S. born […], 2008.
Until an adoptive home is identified for one or both of the children K.S. born […], 2006 and B.S. born […], 2008, the Children’s Aid Society of Hamilton shall facilitate sibling access.
The matter is removed from the trial sittings of September 1, 2014.
The 10 day approval period for the draft Order shall be waived and no approval is necessary.
The Order shall be served on the mother C.S. by regular mail to her last known address.
Pazaratz, J.
Released: July 4, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
And
C.S. (mother)
And
J.J. M. (father)
REASONS FOR JUDGMENT
Mr. Justice A. Pazaratz
Released: July 4, 2014