SUPERIOR COURT OF JUSTICE

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

45.-(8) 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.

85.-(3) A person who contravenes subsection 45(8) (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.

COURT FILE NO.: C-11-247 (St. Catharines)
DATE: 2014-12-15

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Children’s Aid Society of Niagara Region

Paul Heinen, for the Applicant

Applicant

• and -

C.T. and Z.R.

C.T., Respondent in Person
Z.R., Not Appearing

Respondents

HEARD: November 10th, 2014 (St. Catharines)

REASONS FOR JUDGMENT

LOFCHIK, J.

[1] These are Reasons further to my endorsement on the record of this matter on November 10, 2014.

[2] C.T. is the biological mother of the child N.L.T., born […], 2009.

[3] C.T. has named Z.R. as the biological father of N.L.T. C.T. and Z.R. reside separate and apart. Z.R. was noted in default in this proceeding on June 2, 2014.

[4] C.T. and Z.R. are also the parents of N.L.K.T., born […], 2012. This child is not the subject of this application. N.L.K.T. is currently in the care of the Society and resides in a foster home. The Society is seeking an order that N.L.K.T. be made a ward of the Crown, without access, for the purpose of adoption. This proceeding is currently before the Court.

[5] C.T. is also the parent of K.K.E.T., born […], 2014. C.T. has not named a biological father to this child. This child is not the subject of this application. The Society is seeking an order that this child be made a ward of the Crown with no access for the purpose of adoption. This proceeding is currently before the Court.

[6] The Society commenced a Child Protection Application when N.L.T. was initially in her parents’ care. On June 20, 2011, N.L.T. was found in need of protection pursuant to section 37(2)(b)(ii) of the Child and Family Services Act. A final order was made placing N.L.T. in the care of C.T. and Z.R., subject to the supervision of the Society for a period of six (6) months.

[7] On December 4, 2011, a further supervision order was made for a period of six (6) months to continue to assess the ability of the parents to comply with the necessary terms of the supervision order and to allow the parents time to address the continued protection concerns.

[8] On June 4, 2012, the Society brought forward a Status Review Application seeking a further period of Society supervision. However, on July 7, 2012, while six months pregnant with the child, N.L.K.T., C.T. was charged with assault with a weapon after cutting Z.R. on the shoulder with a knife. C.T. was arrested and placed in custody.

[9] On July 7, 2012, N.L.T. was removed from the care of Z.R. after he advised the Society that he could not care for the child and there were no other family members to provide kinship. The Court ordered that N.L.T. be placed in the temporary care and custody of the Society on July 11, 2012.

[10] On September 7, 2012, the Court ordered that N.L.T. be placed in the care of her paternal great aunt, J.B. and W.M., subject to the supervision of the Society for a period of six (6) months, with access to the parents to be arranged and supervised at the discretion of the Society.

[11] A further order was made on May 22, 2013, placing N.L.T. with J.B. and W.M., subject to the supervision of the Society for a period of twelve (12) months, with access to the parents to be arranged and supervised at the discretion of the Society. This is the order under review.

[12] The Society’s Status Review Application seeks an order that the child be placed in the custody of J.B. and W.M. pursuant to section 57.1 of the Child and Family Services Act. Access by C.T. and Z.R. shall be supervised by a supervised access facility, and arranged at the discretion of J.B. and W.M., with costs to be incurred by the respective visiting parent for this service.

[13] The Society has brought this Summary Judgment Motion seeking a determination that there is no genuine issue for trial regarding the Society’s application, and that the child be placed in the custody of J.B. and W.M.

[14] Since having been placed with kin, N.L.T. has been observed to make gains in her academics and behaviour. N.L.T. is now attending an increased school day and has had very favourable reports from teaching staff at Richmond Street Elementary School.

[15] N.L.T. has expressed a desire to continue living with J.B. and W.M.

[16] J.B. and W.M. have met all the needs of N.L.T. and are prepared to care for N.L.T on a long-term and permanent basis.

[17] N.L.K.T. was returned to the care of C.T. on December 16, 2013.

[18] A Child Protection Support Worker (“CPSW”) was assigned to C.T. to work on attachment strategies, behaviour management, and developing routines for the child.

[19] On January 9, 2014, C.T. advised the Society that she did not want to complete counseling through the Family Counseling Centre as she had been referred to a psychologist through her probation officer. C.T. advised that her first appointment was scheduled for February 5, 2014. However, C.T. did not follow through with attending her first scheduled appointment.

[20] On January 17, 2014, C.T. informed Family Service Worker Cortney Mossman that she did not want to be involved with Infant and Child Developmental Services Niagara (“ICDS”) for the child N.L.K.T. The Society strongly recommended that C.T. continue with this service for at least a few months and advised C.T. that this would not be a repetition of services offered by the CPSW, Ms. Woods. C.T. eventually terminated her involvement with ICDS without ever meeting the ICDS staff.

[21] On February 12, 2014, Ms. Mossman attended C.T.’s home for a scheduled home visit. N.L.K.T. was observed seated in a high chair. C.T. commented that N.L.K.T. had been seated in the chair for one hour already and he was “staying there until he finished eating.”

[22] At this same home visit, Ms. Mossman noted pieces of cantaloupe which were too big for a child of N.L.K.T.’s age. C.T. had provided these pieces to N.L.K.T. C.T. stated that she wanted the child to “learn to chew” and also commented that she wanted N.L.K.T. to soon learn to eat with a fork. Ms. Mossman and the CPSW Ms. Woods discussed with C.T. that N.L.K.T. was quite young to learn these things just yet. N.L.K.T. was observed to choke on one piece of cantaloupe, though then passed this piece of food and swallowed it.

[23] C.T. referred to N.L.K.T. as “lazy” and “stubborn” when C.T. tried to teach him how to do things on his own.

[24] At this home visit, Ms. Mossman also observed a small oval shaped bruise on N.L.K.T.’s forehead. When questioned, C.T. stated that N.L.K.T. sustained the bruise from “rocking” forwards and hitting his head. C.T. also attributed a small oval bruise on N.L.K.T.’s mid-back to his rocking.

[25] On February 13, 2014, Family Service Workers Ms. Mossman, Amanda Burley and Theresa McAdam attended C.T.’s home with the Niagara Regional Police to remove N.L.K.T. from C.T.’s care. During the removal, Society workers observed that women’s foundation make-up was unevenly spread over N.L.K.T.’s face, inside his nose and on his lips. Bruising could be observed underneath the makeup. C.T. claimed that she had put make-up on N.L.K.T. because she did not want people to look at him when she was out in public as she would feel embarrassed.

[26] Ms. Mossman observed swelling to N.L.K.T.’s left cheek; severe bruising to N.L.K.T.’s forehead; a scratch down N.L.K.T.’s left cheek; his upper lip appeared swollen and had dried blood on it; and his right ankle was severely swollen.

[27] An appointment for N.L.K.T. was scheduled with Dr. Anee Niec of the Child Advocacy and Assessment Program (“CAAP”) at the McMaster Children’s Hospital. Referrals were also made to the Child Advocacy Centre and subsequently the Niagara Regional Police Child Abuse Unit.

[28] N.L.K.T. attended McMaster Children’s Hospital that same day on February 13, 2014 for his CAAP assessment. Dr. Niec described the child as having significant suspicious injuries, which were not typical for a child this age, and he presented as a “battered child.”

[29] On February 26, 2014, C.T. was arrested and charged with aggravated assault against the child N.L.K.T., failure to provide the necessities of life and breach of her current probation order. C.T. spent several weeks in custody until June 3, 2014 when she was released pending sentence on a Recognizance of Bail after pleading guilty to the charge of aggravated assault.

[30] The Society is of the position that C.T.’s access with N.L.T. should take place within a supervised access facility, as a result of concerns the kinship providers and the child N.L.T. have expressed with regard to C.T.’s previous access, and the physical harm C.T. has inflicted upon her child N.L.K.T.

[31] N.L.T. has expressed concern to W.M. and J.B. regarding her access with C.T. N.L.T. has told the kinship providers that she does not like access with C.T. as C.T. “yells” at her and the visits are “not fun.” The child has told the kinship providers that she is told to “keep secrets” by C.T. about “seeing daddy” during her access visits with C.T. N.L.T. has also told W.M. that “you left me there too long” when he attends C.T.’s home to pick up the child from access.

[32] C.T. has also expressed to the Society that she has had difficulty managing the child during access visits. C.T. described an access visit that took place on January 30, 2014 as “brutal.” C.T. stated that she attended the Pen Centre with N.L.K.T. and the child and she would now always use a “leash” when bringing the child in public.

[33] Concerns have also been expressed by C.T. about her ability to co-operate with the kinship providers. C.T. has advised Ms. Mossman that she wants to “confront” the kinship providers and to pierce the child’s ears without speaking to the kinship providers first. C.T. has also advised that she wanted to pursue a restraining order against W.M.

[34] C.T. has not had access with N.L.T. since the child N.L.K.T. was removed from her care on February 13, 2014. While C.T. did inquire about access with N.L.T. upon her release from custody in June 2014, her Recognizance of Bail precluded her from contact or communication directly or indirectly with N.L.T.

[35] C.T. has presented a plan that the Child remain in the care and custody of J.B. and W.M., subject to Society supervision, until she can reunify with her children.

[36] The Society has concerns regarding this plan as it does not provide stability or permanency for N.L.T. The Society is of the position that N.L.T. cannot be returned to C.T.’s care and would benefit greatly from permanency being secured with the current kinship providers. The Society has concerns about C.T.’s ability to parent, including C.T.’s substance abuse issues, her inability to use skills and information regarding age appropriate expectations, her criminal charge of aggravated assault against the child N.L.K.T and the physical harm she inflicted upon N.L.K.T.; her resistance to services and her inability to work cooperatively with the Society.

[37] The Society’s plan of care dated March 18, 2014 is filed in the Continuing Record, Volume 8, tab 11.

[38] N.L.T. has been in the care of J.B. and W.M. since September 7, 2012, in excess of two years. N.L.T. requires stability and permanency and her needs appear to have been met by the current kinship providers.

[39] Z.R. has no relationship currently with N.L.T. To the Society’s knowledge, Z.R. has not had authorized access to N.L.T. since the spring of 2013. Z.R. has not completed any of the Society recommended services and has disengaged with the Society.

[40] Rule 16 allows a party to bring a motion for summary judgment for a final order without a trial on all or part of any claim after the respondent has served an answer or after the time for serving an answer has expired.

[41] This Rule specifically allows such a motion in child protection proceedings.

[42] The court is mandated to make a final order on a motion for summary judgment where there is no genuine issue requiring a trial.

[43] The first step a court must take prior to determining the motion for summary judgment is to review the entire evidentiary record. The court then determines whether, in that evidence, there are specific facts to support a triable issue in any of the determinations required to be made by the court as part of the summary judgment. Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., 2000 22902 (ON CJ), [2000] O.J. No. 4880 (Ont. C.J.) p. 8.

[44] The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial; the fact must be material. Children’s Aid Society of Toronto v. K.T., 2000 20578 (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.) pp. 5, 6.

[45] In determining whether a genuine issue exists, the court must also consider the strict time lines governing the child protection procedure under the Child and Family Services Act and also the best interests of the child. In arriving at such a decision, the court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible. Children’s Aid Society of Algoma v. L.P., [2002] O.J. No. 2895 (Ont. Sup. C.J.) p. 4. Children’s Aid Society of Regional Municipality of Waterloo v. R.S., p. 8 (supra).

[46] 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 the County of Simcoe v. C.S., [2001] O.J. No. 4915 (Ont. Sup. C.J.) p. 2.

[47] In opposing a motion for summary judgment, the respondent is obliged to provide a full evidentiary record and put his or her best foot forward in the material. The genuineness of the issue for trial must arise from something more than a heartfelt expression of desire to be given an opportunity to parent. Children’s Aid Society of the County of Simcoe v. C.S., p. 3 (supra).

[48] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific fact showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment. Family Law Rules, Rule 16 (4.1). Children’s Aid Society of Toronto v. K.T., p. 5 (supra). Children’s Aid Society of Toronto v. M.A. 2002 53975 (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.) p. 6. R.A. v. Jewish Family and Child Service [2001] O.J. No. 47 (Ont. Sup. C.J.) p. 6.

[49] The court may weigh evidence, evaluate the credibility of deponents and draw reasonable inferences when hearing a motion for summary judgment. Children’s Aid Society of Ottawa v. C.B. 2010 ONSC 6961, [2010] O.J. No. 5644 at paras. 37-41.

[50] The paramount purpose of the Child and Family Services Act is to promote the best interests, protection and well-being of children. Child and Family Services Act, R.S.O. 1990, c. C11 as amended, s. 1(1).

[51] Where a child is the subject of an order for Society supervision or Society wardship, the Society having care, custody or supervision of the child must apply for a review of the child’s status. Child and Family Services Act, ss. 64(1), 64(2).

[52] Where an application for review of status is made, the court may, in the child’s best interests, vary or terminate the original order or make a further order under section 57. Child and Family Services Act, s. 65(1).

[53] A court may make one of four orders under section 57: a supervision order placing the child with a parent or another person; society wardship; Crown wardship; consecutive orders of society wardship and supervision. Child and Family Services Act, s. 57(1).

[54] A court may also make an order under section 57.1 granting custody of the child to one or more persons, if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child’s best interest. Child and Family Services Act, s. 57.1.

[55] When making a determination as to the best interests of the child, the court shall consider the non-exhaustive list of criteria at section 37(3) of the Act. Circumstances to be considered include: the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; the child’s physical, mental and emotional level of development; the importance for the child’s development of a positive relationship with a person and a secure place as a member of the family; the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent; the child’s wishes and views; the effects on the child of delay in the disposition of the case; the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. Child and Family Services Act, s. 37(3).

[56] A court shall, before making an order under section 57, consider the Society’s written plan for the child. Child and Family Services Act, s. 56.

[57] Past parenting evidence is admissible in a proceeding under the Child and Family Services Act. Child and Family Services Act, s. 50(1)(a).

[58] The court may, in the child’s best interests, when making an order under Part III of the Act, make, vary, or terminate an order respecting a person’s access to the child, or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate. Child and Family Services Act, s. 58(1).

[59] At the opening of today’s hearing C.T. requested an adjournment as she had not retained counsel. The request was refused based upon the endorsement of Henderson J., made October 30, 2014, the date upon which this matter was originally scheduled to proceed. At that time Justice Henderson ordered that the matter be adjourned to today and that the matter be heard peremptory against C.T. regardless of whether she has a lawyer. I find it is in the best interests of this child that this matter not be delayed any further. C.T. made no submissions at the hearing of this matter.

ANALYSIS

[60] As of October 27, 2014, N.L.T. had been in the care of the Society for a total of 62 days. Since September 7, 2012, N.L.T. has been in the kinship care of J.B. and W.M., which is in excess of two years. Therefore all of the options under section 57 are available to the Court at this time. It is the Society’s position that an order pursuant to section 57.1 of the Act granting custody to J.B and W.M. would be in the best interests of N.L.T. and provide her with stability and permanency.

[61] C.T. has not had access with N.L.T. since the child N.L.K.T. was removed from her care on February 13, 2014.

[62] Regarding the father Z.R., he has not presented a plan, has not maintained a relationship with N.L.T. nor with the Society. There is no genuine issue for trial regarding return to the father, as he has not participated in this proceeding or presented a plan.

[63] Regarding C.T.’s plan to have the child remain in the care of J.B. and W.M. pursuant to Society supervision until she is ready to resume care, C.T. has had in excess of two years to demonstrate stability, parenting ability and complete services. During a short period of time that the child N.L.K.T. was returned to C.T.’s care from December 16, 2013 to February 13, 2014, C.T. inflicted significant injuries upon him and he has been assessed as a “battered” baby by Dr. Niec of the Child Advocacy and Assessment Program at McMaster Hospital. C.T. has pled guilty to aggravated assault against the child N.L.K.T. and is currently subject to a Recognizance of Bail pending sentence.

[64] An eventual return of N.L.T. to C.T.’s care would also expose her to significant risk of harm.

[65] N.L.T. is a young child who requires supervision, a safe environment and a caring adult who can address her day to day needs. C.T. has been unable to address the child protection concerns. There is no genuine issue for trial. N.L.T. requires permanency and stability and cannot await for a time when C.T. may be ready to have the child placed in her care full-time, with or without assistance and support.

[66] There is no genuine issue for trial regarding C.T.’s plan.

[67] The Society’s plan of care provides the Court with a plan that addresses the child’s best interests without further delay in providing her permanency.

[68] C.T. and Z.R. shall be allowed access supervised by a supervised access centre/facility, arranged at the discretion of J.B. and W.M. with costs to be incurred by the respective visiting parent for this service. Any amount of unsupervised access must be currently viewed as creating a potential for risk of significant harm to N.L.T.

[69] Likewise, due to the non-participation of Z.R. in this proceeding and his disengagement with the Society, the Society has not been able to assess his wellbeing or ability to act appropriately during access with N.L.T. Any amount of unsupervised access must be currently viewed as creating the potential risk of harm to N.L.T.

[70] In the result, an order is to issue that N.L.T., born […], 2009, shall be placed in the custody of J.B. and W.M. pursuant to section 57.1 of the Child and Family Services Act. It is further ordered that this order shall be deemed to be an order under section 28 of the Children’s Law Reform Act.

[71] Further order to issue that access to the child by C.T. and Z.R. shall be supervised by a supervised access facility and arranged at the discretion of J.B. and W.M. with costs to be incurred by the respective visiting parent for this service. This order shall be deemed to be an order under section 28 of the Children’s Law Reform Act.

Lofchik, J.

Released: December 15 , 2014

COURT FILE NO.: C-11-247 (St. Catharines)
DATE: 2014-12-15

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Children’s Aid Society of Niagara Region

Applicant

• and –

C.T. and Z.R.

Respondents

REASONS FOR JUDGMENT

TRL:co

Released: December 15, 2014