COURT FILE NO.: 701/11 [Perth]
DATE: December 12, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
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
B E T W E E N:
Family and Children’s Services of Lanark, Leeds and Grenville
Nicola Edmundson, for the Family and Children’s Services of Lanark, Leeds and Grenville
Applicant
S. V.
J. W.
W. K.
Cameron Croxall, for S.V.
Respondents
HEARD: October 22, 2014
The Honourable Mr. Justice J. M. Johnston
J U D G M E N T
[1] Family & Children Services of Lanark, Leeds & Grenville (hereinafter referred to as the “Society”) commenced a Motion for Summary Judgment seeking an Order pursuant to Rule 16 of the Family Law Rules for a Final Order, without trial, namely, an Order that the six children, N.V, M.W., T.W., A.W., A.W., and E.W. be made wards of the Crown and placed in the care of the Society, without access to the parents.
[2] Mother, Ms. S.V., opposes the Motion and filed an Affidavit in support of her position. Mr. W. K. is the father of the eldest child and Mr. J.W. is father of the five remaining children. Both fathers were previously noted in default and did not participate in this Motion.
Background:
[3] Mother of all the children is Ms. S.V., born […], 1984. The children subject to these proceedings are: N.V., born […], 2002; M.W., born […], 2004; T.W., born […], 2005; A.W., born […], 2007 and her sister A.W., born […], 2009 and E.W., born […], 2010.
[4] The Application before the Court is a Status Review Application, seeking an Order for Crown Wardship of all six children. The Society is seeking an Order of no access. The Society’s plan is for the children to be adopted by one family, however if this is not possible, by groups of families, with ongoing access among the siblings.
[5] The Society has a long history with this family and children dating back to the first referral on December 30th, 2003. At that time, a “concerned citizen” called the Society in regard to mother and her then only son, N.V. Complaints included that the apartment in which mother and child lived was very dirty and smelled of cat urine and was strewn with empty beer bottles. There was also a concern regarding mother and her eviction from her apartment. The Society, at that time, provided ongoing support of child protection in an effort to mitigate concerns and assist mother as a parent. Contact between mother and the children and the Society continued through to this date. There have been a number of previous Court Orders pursuant to the Child and Family Services Act.
[6] A temporary Order was made by Justice Pedlar on October 13th, 2011. The children were apprehended pursuant to a Warrant on November 9th, 2011. In 2010/2011 the Society applied to the Court seeking an Order placing the children in the interim care and custody of the Society. A temporary Order was issued and on December 22nd, 2011, a final Order was granted; finding all six to be children in need of protection. The children were made wards of the Society for a period of four months. They were returned to Court by way of a Status Review on September 20th, 2012, a final Order was granted by Quigley, J. for a further six month’s Society Wardship. A further Status Review was initiated in January, 2013, and on January 17, 2013, a temporary Order was granted by myself, placing all children with their mother, Ms. S.V., subject to an interim Supervision Order. On March 7th, 2013, a final Order was granted, placing all six children with mother, subject to a Supervision Order by Robertson, J.
[7] A further Status Review was initiated September 5th, 2013, as a result the matter was returned to Court on September 26th, 2013, at which time a final Order was granted by Pedlar, J. The Order granted an additional six months of supervision, placing all six children with mother, Ms. S.V. Neither father participated in those proceedings.
[8] All six of the children were returned to care of the Society upon apprehension on January 25th, 2014, from their mother, Ms. S.V. A temporary Order was granted by Pedlar, J. on January 30th, 2014, placing the children in the interim care and custody of the Society, subject to supervised access to mother. Following a Settlement Conference, the matter was adjourned to a date and this Motion for Summary Judgment was set. Mother was granted a two-week adjournment in the initial return of the Motion for Summary Judgment, to permit her an opportunity to file a responding Affidavit.
The Issue:
[9] The question to be answered on this Motion is whether there is a genuine issue requiring a trial. This is a Status Review Application, a finding that all six children are in need of protection has already been made. The only issue for trial/or this Motion is what is in the best interests of each of the six children? Should they be returned to the care of their mother from whom they were apprehended on January 25th, 2014, or should they be made Crown Wards? If the children are to be Crown Wards, should it be with or without access?
The Position of the Parties:
[10] The Society argues that it has established a prima facie case that, the six children continue to be in need of protection and it is in the best interests of each child to be made a Crown Ward. Further the Society argues that there should be an Order of no access , to facilitate adoption.
[11] Mother’s position is that there are triable issues and those issues must result in this Motion being denied. Oral submissions of counsel for mother outlined the following triable issues from her perspective:
(1) much of the Society’s evidence is hearsay and not sufficient to meet the heavy onus required by the Society;
(2) she may well have ability to raise the two eldest children, even if the Court is satisfied the four youngest children ought to be made Crown Wards;
(3) she has made significant improvements since the children have been in care in January, 2014 and these improvements, at the very least, necessitate a trial to determine the children’s best interests. She argues that she has made improvements in two areas:
(a) mother has entered into a new relationship with her current partner. Mother describes this as a long term relationship with a stable partner;
(b) mother now has a supervisory job with more responsibilities and, while mother has always worked, this new supervisory position is a significant change and shows that she is stable, hardworking and capable of succeeding.
(4) mother argues that, while the Society has shown that the children each suffer various areas of concern, there is no evidence that this is as a result of mother’s actions or inactions. This alone is a triable issue.
[12] Counsel also argues that the Society relies upon evidence outlined in its Affidavit material as a whole and attempts to apply the evidence to all children. Mother argues that the best interests of each child must be reviewed and the evidence presented by the Society on this Motion falls short on each child.
Evidence Adduced on the Motion:
[13] The history of mother’s involvement with the Society and the difficulties she encountered over the years is relevant as background information. Further, the findings that each child was a child in need of protection in the past is relevant to the current finding. The Society introduced Affidavit evidence outlining the historical issues mother faced in parenting. These issues included her own drug abuse and the drug abuse by Mr. W., father of the five younger children. Further, the relationship between mother and Mr. W. has been difficult through its history and plagued with domestic violence. The record reveals that mother exposed the children to ongoing domestic disputes and violence and, on different occasions, the children witnessed assault upon their mother by Mr. W.
[14] Historic child protection concerns include repeated moves from residence to residence, difficulty meeting the children’s basic needs, including food, clothing and age appropriate routines. The living conditions in which the children were raised were at times deplorable.
[15] From the time of the children’s return to mother after foster care in January, 2013 they continued to live in her care, to the date of apprehension, September 25th, 2013. The child protection worker assigned to the family, Ms. Zeeman, visited the family home a minimum of twice per month. Ms. Zeeman states that the home on such visits “demonstrated acceptable housekeeping standards”. However, the worker noted that occasionally there were signs of mother “slipping back into old habits”.
[16] On November 18th, 2013, the Society received a telephone call from the Property Manager of mother in the home that mother was renting for herself and the children in Smiths Falls, Ontario. The Manager, Ms. Neil, reported that conditions of the home were deplorable, feces were everywhere and Ms. Neil was shocked at the poor conditions. At that time, mother and the children left the apartment due to the fact that she was in arrears of rent.
[17] At the time of apprehension, mother and the children had moved to Ottawa and were staying with the sister of Ms. S.V. On January 25th, 2014, all six children were apprehended from a townhouse in Ottawa where mother and her sister were living. It was noted at the time of apprehension by workers that the living conditions were “deplorable”. The children were apprehended because mother and her sister were arrested on an evening that they went out. The caregiver with whom the children were left was deemed to not be appropriate. The criminal charges stemming from that incident apparently remain outstanding, although mother was released from custody the day after her arrest.
[18] Currently the two youngest children are placed in a foster home together. The two middle children, A. and T. also are living together. These children were able to return to the same foster home that they had lived in prior to return to mother’s care in January, 2013. The two eldest children, N. and M. are living in a separate foster home together. N. and M. also were able to return to the same foster home they resided in for the first apprehension.
[19] The Affidavit of Mary Beth Zeeman details the difficulties each of the six children faced at the time they were taken back into foster care on January 25th, 2014.
A.W.
[20] A.W. resides with her sibling, E.W. When A.W. came into care, she was urinating her clothes during the day and wetting her bed at night. A.W. was very anxious and demonstrated very poor social skills, finding it difficult to make friends at school. The foster parents stated that A.W. would constantly request food and then eat until she felt ill. This is a condition that has been noted in some of the other children upon their return to foster care.
[21] A.W. did not appear to understand basic safety rules and had no understanding of road safety and would run wildly onto the road and had no concept of danger of cars. Further, when A.W. came into care, she would to any adult who paid her attention and did not appear to discriminate between adults she knew and those that she did not.
[22] On February 18th, 2014, the worker spoke with Ms. Thane, principal of the school A.W. attends. A concern was expressed over A.W.’s overall development. She was noted to be behind her peers in all early learning skills and social skills. However, since being in care, A.W. completed the school year in June, 2014, with some success. Since coming into care, A.W. is developing age appropriate social skills and is beginning to comply with daily school routines. The Society has enrolled A.W. in a daycare program three days a week to allow her to continue to build on skills and to ensure a daily routine similar to a school day.
[23] The child E.W. is the youngest of six children and was noted to demonstrate behaviours of a much younger child or toddler. When E.W. first came into care, she was behind in toilet training and sometimes defecated in her bed at night. Like her sister, E.W. was noted to have delayed social skills and often bites other children and finds it difficult to play with children her own age. E.W. constantly requests food and appears anxious about not having enough food to eat and will eat food off the ground.
[24] E.W. was diagnosed with genetic cataracts in December, 2012, and is required to wear glasses on a daily basis. After E.W. came into care in January, 2014, the Society contacted an eye specialist in Kingston. The child had eye surgery in June and July, 2014, to remove both cataracts and now has implants. E.W.’s eye sight has shown significant improvement since these two surgeries. E.W. continues to require follow-up and close monitoring to ensure the best possible outcome. E.W. has started in school in the J.K. program. The transition to school has been noted as difficult although E.W. is now noted as making some gains.
[25] Both of the two youngest children, E.W. and A.W., look forward to weekly visits with their mother and siblings.
A.W. and T.W.
[26] A.W. resides with her sister, T. Upon coming into care for the second time, A.W. was struggling with bed wetting at night but over the last few months this has improved according to the Society worker. A.W. was reported as having difficulties with her peers on the school bus which resulted in three written reports for inappropriate behavior on the bus.
[27] The school noted that A.W. is behind in some basic academic skills, but appears to be a capable student. The school made similar findings in relation to T.W. Both of these girls were noted to have lags in schooling coupled with the daily routine of school and meeting grade level math and reading skills. Both A.W. and T.W. have been registered in the Kumon Program, which will aid them in these areas of learning.
[28] Since returning to foster care, both A.W. and T.W. have settled into their new school and are eating and sleeping well. Neither of these middle children requests to contact their mother by telephone. On June 23rd, 2013, the Society worker, Ms. Lynk, met with T.W. and with the child spoke of the night of apprehension in January, 2013. She stated the people her mother left her with were “probably not the best people to be left with”.
[29] The foster parents have noted that T. and A. appears indifferent about visits with their mother and have not demonstrated any signs of distress or separation anxiety at the end of visits. T. and A. are always happy and look forward to seeing their siblings.
The Eldest Two Children:
[30] N. and M. now reside together in the same foster home they lived previously in 2012. The foster parents noted that both children were “very anxious about food” when they arrived back into their home and seemed to want to eat all the time. This problem has dissipated since returning to care, over time. The eldest child, N., was noted to have experienced trouble wetting the bed upon coming back into care for the first month he resided with them. With some stability this has become less of an issue. According to the Affidavit of Ms. Zeeman, prior to returning to care, N. and M. demonstrated behavious of being parentified and needing to care for their younger siblings. During access visits, N. is observed to continue to demonstrate adult like behavior, caring and looking out for his younger sisters.
[31] The foster parents report that M. has been having difficult after visits with his mother and siblings, such as staying on task and staying asleep at night.
[32] On April 10, 2014, the Society worker, Ms. Zeeman, met privately with the child, M. W. M. reported that she wanted her grandmother to talk to her father to say that she might want to see him but she does not want him to hurt her mother again. She also stated that her mother had made bad choices and this is why her siblings are in care. M. stated that one night her mother left her and her sibling and ended up drinking and stole a truck. M. also stated that her mother and father had “dirty” movies and she did not like knowing about these things.
[33] In late June, 2014, the child M. stated to the foster mother, “please don’t send me back there, I don’t want to go”. This was in reference to the child believing that her belongings were being packed up and that she was being returned to her mother’s residence.
[34] On July 3rd, 2014, the foster parents spoke with the Society worker, Ms. Jen Fry, in regard to the most recent access visit. The children N. and M. reported that they were distressed about learning that their mother had a new boyfriend and, in fact, were introduced to him. The eldest child, in particular, was observed to be most anxious and concerned about his mother’s wellbeing.
[35] Since they have been in care, N. and M. have spoken with their paternal grandmother on the telephone twice a month and visit with their paternal grandmother in the summer. In addition, they visit weekly with their mother and siblings.
Evidence of S.V.:
[36] Ms. S.V. filed a very short Affidavit in which she states: “I acknowledge that there have been some incidents in the children’s past which would raise concerns regarding choices I have made in relation to parenting. However, the fact remains that no proven psychological or other harm, has come to her children. There are no clinical or other reliable third party evidence to support any claim to the contrary”.
[37] S.V. states that she is employed by Shopper’s Drug Mart in Ottawa and has a position of responsibility and that she is being trained for a promotion to Assistant Store Manager.
[38] Ms. S.V. states that she is currently residing with “my long term partner” in an apartment which we have held for a “significant period of time”. She states that she has known this partner since she was a young age and now shares a romantic relationship.
[39] There is evidence that mother has exercised weekly supervised visitation with the children and has acted appropriately during all visits. There is no evidence as to whether Ms. S.V. has taken any steps to receive counselling to ensure she does not experience a drug relapse . Further no evidence was adduced to show that mother has addressed any of her issues that previously resulted in the children being taken into care. No Affidavit has been filed by S.V.’s new partner.
The Law:
[40] Rule 16 of the Family Law Rules provides that a Motion for Summary Judgment may be made in a Child Protection case. The responding party may not rest on mere denials or allegations but must set forward the specific facts showing that there is a genuine issue requiring a trial. Rule 16(6) of the Family Law Rules provides that, if there is no genuine issue that requires a trial of a claim or defence, the Court shall make a final order accordingly. Before granting Summary Judgment, the Court must review the entire evidence with a “good hard look” to evaluate the nature and strength of the Applicant’s case. (CAS of Regional Municipality of Waterloo v. T.L.H. 2005 ONCJ 194, [2005] O.J. No. 2371 (OCJ) McSorley para.5). The case for granting a Summary Judgment is not whether it is “the clearest of cases”, rather whether there is an issue of fact requiring a trial for its resolution (R.A. v. Jewish Family and Child Services [2001] O.J. No. 47 (SCJ) Lane, J. para. 23).
[41] In an analysis on a Motion for Summary Judgment, the Court is required to determine whether the moving party has met its onus. The Society must prove the non-existence of a genuine issue requiring a trial. The best interest of the children remain paramount in this analysis; however, Courts have cautioned that the jurisdiction to grant Summary Judgment is to be exercised with extreme caution: Catholic Children’s Aid Society at Metropolitan Toronto v. O.(LM), 1996 139 DLR (4th) 534 at para. 79.
[42] The responding party must put their best foot forward. This is not to say that the burden has shifted to the parents to show that there is a triable issue, simply that, if they are responding to the Motion, they must put forward their best evidence.
[43] Justice Keats in Children’s Aid Society at Sudbury and Manitoulin v. T.S. 2011 ONCJ 745, [2011] O.J. No. 5883 at para. 12 stated that the genuineness of an issue for trial must arise for something more than a heartfelt expression of the parent’s desire to resume care of a child. The parental position cannot be based on conjecture or speculation as to better prospects in the future. The evidence must be based on the here and now and be in existence at the time of the Motion. The same is true with respect to decisions made by Motion’s Judges, they cannot be based on speculation that better evidence will emerge if the party has one last chance to follow the direction provided by the Court.
[44] The nature of the evidence, the reasonableness of potential plans and the statutory timeframes are all relevant to whether or not there is a genuine issue for trial. The proper consideration of “a full evidentiary record” is necessary for a “good hard look” at the evidence on the Motion: B. (F.) v. G. (S.) [2001] Carswell ONT 1413 at para. 19 and Children’s Aid Society of Ottawa v. M.C. [2003] Carswell ONT 9373 (ONSC).
[45] Without evidence of a “triable issue” regarding the best interest of the child, those best interest themselves call for resolution without the delay that would be associated with a trial and the resulting prolongation of the state of uncertainty about the children’s future: R.A. v. Jewish Family and Child Service [2001] O.J. No. 47 SC. The test for granting Summary Judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. (See Children’s Aid Society of Toronto v. K.T. and C.W. [2000] A.C.W.S. (3d) 944 and Children’s Aid Society of Waterloo Region v. TLH and DC 2005 ONCJ 194, [2005] 139 ACWS (3d) 1028.)
[46] Justice Pazaratz stated at paragraph 43 of Children’s Aid Society of Niagara Region v. S.C. and B.M., [2008] 61 R.F.L. (6th) 328 (ONT Fam Ct): “No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the Applicant”.
Analysis:
[47] I now turn to an analysis of this Motion in light of the law and the facts. All six children have been in care for approximately fourteen months including their first apprehension and now since their apprehension on January 25th, 2014. Two of the six children are under the age of 6 years and, accordingly, the only option in relation to the younger children is either granting the request for Crown Wardship or return of the children to their mother. The remaining four children are over the age of 6 and, accordingly, there is no statutory imperative for a final decision. Nonetheless, the Court must determine what is in the best interests of each of the six children.
[48] I am satisfied, based on the admissions of the mother, the findings of fact in earlier cases by way of Agreed Statement of Fact that mother has presented with a number of issues that gave and continue to give rise to Child Protection concerns for each child in her care, including:
(1) Historic drug use:
Mother had a significant drug abuse problem. It appears mother has taken steps to obtain sobriety, but there is no current evidence that she has engaged in drug relapse prevention program. People with drug abuse histories do not usually simple quit using and never have issues again. Time and again people with drug backgrounds such as mother, relapse. For this reason it is crucial for her sobriety that mother actively engage in ‘after care’ programs.
(2) Poor decision making and inappropriate partners:
Ms. S.V. acknowledges that she has made poor decisions in the past. In fact, these poor decisions continued on January 24th/25th, 2014, resulting in the most recent apprehension. Ms. V. has repeatedly exposed the children to domestic violence. At least four of the children witnessed Mr. W. assault their mother. On April 22nd, 2013, Mr. W. was charged with break, enter, assault and choking as a result of an incident wherein he broke into Ms. V.’s home, kicked in the door, grabbed Ms. V. by her hair and dragged her around the home, pinned her on the couch and choked her. Mr. W. caused property damage at the house. Mr. W. plead guilty to the charges and was released from custody on August 11th, 2013. The three youngest children witnessed the assault on that occasion.
Apparently Mr. W. is wanted on an outstanding warrant for breach of probation. Ms. V. is apparently in a new relationship with a new partner. I do not accept her description that this is a ‘long term, stable relationship’. This individual may be someone she has known for a long period of time, however, she was involved with Mr. W. until sometime in 2013. The eldest child, N., became very upset in the summer of 2014 when he learned of the new relationship. I am satisfied that N. is all too aware of his mother’s poor decision making when it comes to men and the risks that she has exposed her children to as a result of these poor decisions. Notwithstanding she is required to “put her best foot forward”, Ms. V. has not provided an Affidavit from her new partner, nor is there any detailed information as to this individual. The Court is completely unaware whether this individual is a good or bad influence and has no information as to whether he is supportive of Ms. V.’s plan to have her six children returned to her care.
(3) Housing Conditions:
The Society records indicate that Ms. V. and her children have moved at least thirteen times in the last ten years. According to the Affidavit of Ms. Zeeman, at times these moved were completely without preparation and planning and, as a result, the children had to leave behind many of their personal belongings. In fact, on the date of apprehension on January 25th, 2014, the family was residing in temporary conditions and the children were not able to bring any of their clothing or personal belongings. Ms. V. did not have a home for her children at the time of apprehension, other than her sister’s residence.
There has been an ongoing issue over the past ten years whether mother is able to provide a safe and stable home environment. I agree with the characterization by Ms. Zeeman in her Affidavit that “the children generally lived in a home that was deplorable, including garbage and household items spread on the floor throughout the home, total lack of home organization. Often times there was dirty laundry piled throughout the home, and no proper sheets or bedding on the children’s beds”. Counsel for mother argues that much of the evidence as it relates to the household conditions is hearsay. I disagree. The initial referrals from community sources, including the Sheriff’s office, are hearsay. However, those referrals were investigated by the Society and found to be substantiated. In fact, the findings are part of the grounds of previous Court Orders as it relates to the children being found in need of protection and finding that the children ought to be placed in Society care.
While it appears that the children were returned to mother’s care in January, 2013, Ms. V. was able to keep the home in a sufficient state to not warrant further intervention. However, it was noted that there were lapses from time to time. On the date of the most recent apprehension, the housing conditions were again found to be significantly lacking. The Court is mindful that there is a significant distinction between homes that are cluttered and at times dirty versus a home that presents child protection issues. I am satisfied that on an ongoing basis the living conditions of the children were not simply the result of a messy home, rather a chronic problem by Ms. V.
(4) Failure to comprehend the seriousness of the issues:
Ms. V. has over the course of time failed to truly appreciate the magnitude of the Child Protection concerns and issues related to her ability to parent the children. Lack of insight is demonstrated in her own Affidavit wherein she deposes that there is no evidence that the children’s behaviours noted upon their second apprehension were related to her actions. Mother is unable to see that her inability to provide a stable home, moving from place to place, exposing the children to domestic violence, exposing the children in the past to her own drug abuse issues manifest themselves in the type of behaviours that were exhibited when the children were brought back into care. I am satisfied on the evidence of the Society that each child has exhibited significant behaviours that are a direct result of mother’s failure to provide an adequate and stable home environment. The child N. had trouble wetting the bed upon apprehension, A.W. urinated in her clothes during the day and wet her bed at night. E.W. was behind in toilet training and social skills. The middle child, A.W., also experienced bed wetting upon returning to foster care. A number of the children experienced issues with respect to gorging themselves on food. In short, each of the behaviours exhibited by each of the six children are entirely consistent with the inability of mother to provide proper care for each of the six children.
[49] Mother experienced a short ability to meet the needs of the children to return to her care in January, 2013. It is, however, clear that on an ongoing basis mother is unable to do so.
[50] I find that the Society has established a prima facie case that it is in the best interests of each of the six children that they be made Crown Wards. Each child has experienced chronic lack of care and lack of a stable home environment. While I have no doubt that mother loves each and every one of her six children that is not sufficient. Mother states that she has changed and that she can now parent one or more of the children. Specifically, mother’s counsel argues that she may be able to parent the eldest two children.
[51] In her Affidavit, Ms. V. states that she resides with her new partner in a one bedroom apartment and would be required to look for alternate accommodation. There is no evidence that she is able to do so. In fact, her track record shows that she is unable to maintain a consistent residence. Further, while she is able to maintain a clean house where she and her partner are residing, she has demonstrated an inability to maintain a safe and clean home when caring for children.
[52] It would be mere speculation to determine that mother will be able to provide a safe and stable home for one or more of these children in the future. There is no evidence from mother as to what steps she has taken to ensure that she has now acquired the skills and ability to provide care, where in the past she has been unable to do so. Sadly, the past of Ms. V. is a very strong predictor of what would likely occur in the future.
[53] I find the Society, therefore, has made a prima facie case establishing the children shall be made Crown Wards. The onus at all times remains upon the Society. There is no evidence from Ms. V. to convince me that there is a triable issue. There is no evidence from her that her new relationship would in any way improve her ability to provide care for the children. Similarly, there is no evidence that her new employment as Assistant Manager would in any way impact upon her ability to provide child care. To her credit, mother does appear to be hard working. The issue for trial, however, is whether it is in the best interests of one or more of the children to be returned to her care. The fact that she is becoming an Assistant Manager of Shopper’s Drug Mart does not in any way assist the trier of fact.
[54] There is no evidence that mother would be capable of providing care for the two older children. In fact, it is clear from the evidence that the two oldest children have suffered most from the neglect of mother.
[55] In final analysis, after a “good hard look at the evidence”, I conclude that there is no realistic possibility of an outcome other than that sought by the Society as it relates to Crown Wardship.
Should there be an Order for access?
[56] I am satisfied that mother has regularly exercised weekly supervised access with the children. I am further satisfied that mother has acted appropriately during such visits and often she is accompanied by her own mother. It appears by and large the children enjoy visits with mother.
[57] The Society has examined extended family and their ability to care for the children. There are no options of placement with extended family at this point in time.
[58] It will be difficult to place all six children in adoption in the same home. However, it does seem feasible that there are adoption opportunities for groups of the children. Currently the six children reside in three separate foster homes, the two youngest living together, the two middle living together and the two oldest are together. It is a trite law to say that it is in the best interests of the children to have stability now. An Order of access would impair the ability of the Society to obtain adoption homes for the children.
[59] It is not sufficient that a child enjoys visits with his/her parent or that there are some positive aspects to the visits. The relationship as it exists at the time of the analysis is the operative point of consideration and not the potential of future benefit to the children. (See Children’s Aid Society of Niagara Region v. M.J., [2004] O.J. No. 2872 (OSC).
[60] Section 59(2, 2.1) provides that where a child is made a Crown Ward, the onus shifts to the party seeking access to show that any access would be “beneficial and meaningful to the child and that such access would not impair the child’s future opportunities for adoption”. The phrase “impair the child’s future opportunities for adoption” means more than improving the child’s opportunity to actually be adopted; it also applies to an undue delay in the child being adopted. The parent must demonstrate that access will not “diminish, reduce, jeopardize or interfere with the child’s future opportunities for adoption”. (See Catholic Children’s Aid Society of Toronto v. M. and J.P. (2012) Court File No. C51951/10 OCJ Toronto North Family Court, unreported Sherr, J.)
[61] I am, therefore, satisfied under all of the circumstances that, while mother has nice visits with her children, it is not in the children’s best interests that there be an Order of Crown Wardship with access. Accordingly, the Motion for Summary Judgment is granted and each of the six children is to be made Wards of the Crown with no access to either mother or either of the fathers, Mr. J.W. and Mr. W.K.
The Honourable Mr. Justice J. Johnston
RELEASED: December 12, 2014
COURT FILE NO.: 701/11 [Perth]
DATE: December 12, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
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
B E T W E E N:
Family and Children’s Services of Lanark, Leeds and Grenville
Applicant
- and –
S.V., J.W. and W.K.
Respondents
REASONS FOR JUDGMENT
Johnston, J.
Released: December 12, 2014