INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
CITATION: CAS v. A.G, 2015 ONSC 1514
ST. CATHARINES COURT FILE NO.: 638/11
DATE: 2015/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION
Ciara McCaffrey, for the Applicant
Applicant
- and -
A.G,
C.G.,
M.R.O.,
F.S.
Wayne N. Brooks, for the Respondent A.G
Edward F. Kravcik, for the Respondent C.G.
Ronald Adams, for the Children
Respondents
HEARD: March 5, 2015
The Honourable Mr. Justice R.J. Harper
Issues
[1] This is a summary judgment motion brought by the Society within a Status Review Application with respect to 2 children, namely P.G. born […], 2006 (almost 9 years of age) and H.G. born […], 2010 (now 4 years of age).
[2] The Society is seeking an order pursuant to the Child and Family Services Act s. 57.1 granting custody of the children to the maternal grandfather, F.S. and his life partner C.T.
[3] The Society further seeks an order for access to the maternal grandmother, C.G., and the biological mother, A.G., such access to be supervised by the Society.
Background
Family Constellation
[4] A.G. is the biological mother of three children, T.G, H.G. and H.L.G.
[5] H.L.G. is not the subject matter of these proceedings. She was made a Crown ward with no access for the purposes of adoption by the order of Justice MacPherson on February 3, 2014.
[6] The identity of the biological father of P.G. is unknown. The court found that there is no male person who qualifies as a parent to P.G. on June 6, 2006.
[7] The mother, A.G., named M.R.O. as the father of H.G. He has never participated in any of the proceedings despite being served.
[8] C.G. is the maternal grandmother and F.S. is the maternal grandfather.
[9] C.T. is the life partner of F.S.
Litigation Chronology
[10] P.G. was apprehended on June 1, 2006 from the care of his mother A.G.
[11] He was placed in the care of his maternal grandmother C.G. and maternal grandfather F.S. on November 30, 2006. They obtained an order for joint custody of P.G. on January 22, 2008.
[12] The child H.G. was born in […] of 2010. Both children P.G. and H.G were apprehended on March 28, 2012. They were placed in the care of the Society on a temporary basis on April 2, 2012.
[13] On October 4, 2012, there was an order for a parenting capacity assessment pursuant to s. 54 of the CFSA with respect to the maternal grandmother C.G.
[14] On February 14, 2013, P.G. and H.G. were found in need of protection. On June 20, 2013 P.G. and H.G. were placed in the temporary care of the maternal grandfather and his life partner T.S. subject to supervision of the Society with access at the Society’s discretion.
[15] In July 2013, there was a two week trial before Justice MacPherson with respect to the Child Protection Application regarding the children, P.G. and H.G.
[16] On February 3, 2014, Justice MacPherson issued her 37 page reasons for judgment. She ordered P.G. and H.G. to be placed with the maternal grandfather, F.S, and his life partner for a period of 6 months, subject to the supervision of the Society with access to the maternal grandmother and mother at the discretion of the Society.
[17] The issue before me is whether or not there is a genuine issue for a trial. It is not appropriate to review any of the findings of Justice MacPherson that she made as recently as February 3, 2014. Her thorough reasons set out in detail all of the concerns relating to the parenting ability of the mother and the maternal grandmother.
[18] Justice MacPherson expressed concerns for the parenting ability of the maternal grandmother. Her extremely low IQ was a factor in her inability to take the necessary steps in order to place herself in a position to parent any children. At para. 173 of her judgment, Justice MacPherson referred to one of the more significant statements of the assessor:
When asked about clinical interventions for the concerns set out in his report, Dr. Amitay confirmed that ordinarily some form of therapy or counseling might be recommended. However, he stated that Ms. C.G. did not seem amenable to any short or long term insight-oriented treatment such as psychodynamic therapy. As he explained, given her level of insecurity and level of intellectual functioning, any counselling or therapy that required her to understand or acknowledge her limitations or to discuss her past so as to gain insight into how that impacts on how she reacts today in certain situations, was too anxiety provoking for her.
Dr. Amitay explained that at best, she might be able to handle supportive therapy such as cognitive behavioural therapy as it is usually far less anxiety provoking. But for it to be effective, a person still needs to be able to make a connection between experiences and thoughts and emotional reactions and behaviours. There was no evidence that Ms. C.G. could make that connection. He used as an example that even after the mistake had been made with the medication, she could not appreciate that the concern was due to her lack of judgment and her failure to react quickly to the situation. Instead, she became defensive in stating that it was not a 7 hour delay to get P.G. to the hospital, but a much shorter time period. As Dr. Amitay commented, this event was too painful a reminder of how she is not worthy as a person. As such, any therapy that would require her to recognize and accept her limitations would be too overwhelming for her.
Dr. Amitay noted that even if Ms. C.G. was willing to try this type of therapy, it usually takes a long time to see any meaningful change and based on her personality/psychological profile, he would expect it to take at least two to three years to make such improvement, if any at all.
[19] Justice MacPherson considered the parenting capacity assessment of Dr. Oren Amitay and she had no hesitation in accepting the assessor’s opinions and her recommendations. She found at para. 190 of her reasons:
…I would agree with Dr. Amitay in his conclusion that (C.G) is not likely to consistently demonstrate the kind of judgment on her own that might alleviate some of the longstanding concerns by FACS.
It is clear from Dr. Amitay’s reports, given C.G.’s intellectual and emotional deficits, she lacks the ability to take learned parenting information and apply it to be able to properly and safely provide for the day-to-day care of the grandchildren.
One area of parenting that the grandmother was unable to grasp was that of setting appropriate boundaries for the children. There were multiple examples of this.
The court heard evidence from Dr. Chauhan and Jessica Kline with regard to the observed “out of control” behavior of P.G. while in the care of the grandmother. While both of the grandmother’s friends (T.M. and A.B.) denied observing such behavior by P.G., I put no weight on their evidence about this, as it was clear that they would deny any suggestion that the grandmother could not parent him.
[20] At para. 158 and 159 of her reasons, Justice MacPherson stated:
I found Dr. Amitay to be a straight forward witness who was able to explain both his testing and the conclusions reached in a manner that was easy to understand and follow. Dr. Amitay’s evidence was very helpful and his findings were consistent with the evidence presented to the court and behaviours observed during the trial. Based on the evidence as to the methodology adopted and followed in completing the PCA, I have no difficulty in finding that Dr. Amitay holds no particular bias and I accept his evidence without hesitation.
In his conclusions, Dr. Amitay noted that despite Ms. G.’s persistent and admirable attempts to do everything she could to have her grandchildren placed in her care, “she does not seem able on her own to meet their needs now and in the long-term or to provide them with a secure and stable environment on a consistent and permanent basis”. As he highlighted repeatedly throughout his report, he commended Ms. G. for her ongoing efforts and participation in multiple services and programs to address the child protection concerns. He also stressed that there was no doubt that she greatly loves her grandchildren nor was there any doubt about her commitment and devotion to her grandchildren as well as to her own children, A. and T.
[21] C.G.’s counsel conceded that his client did not complete the therapy that the assessor recommended on this fundamental issue. This was essential for the maternal grandmother to even meet the outside possibility of placing in her a position to be able to parent. There is no dispute that the maternal grandmother and the mother love these children. Nevertheless, no one takes issue that these children continue to be in need of protection relative to the care and contact between the mother and grandmother.
[22] I find that the children are not in need of protection if they continue in the care of the maternal grandfather, F.S., and his life partner C.T. Both children have been in their custody since the temporary order was made on June 20, 2013. In that approximate 20 month period, the children have thrived.
[23] Justice MacPherson made the following disposition:
The Society wardship order of December 19, 2011 is terminated.
The child, H., shall be made a ward of the Crown and shall be placed in the care of the Children’s Aid Society of Niagara.
There shall be no access to the child.
The children, P.G. and H.G., shall be placed in the care and custody of F.S. and C.T., subject to the supervision of the Children’s Aid Society on the terms as set out in the Plan of Care.
C.G. and A.G. shall have reasonable access to the children, P.G. and H.G., supervised in the discretion of the Society.
[24] The biological mother did not file a factum or book of authorities for this motion for summary judgment.
[25] She supported the position of her mother, C.G. She submitted that the children should be returned to her mother and that the access with her should be increased. Neither the mother nor her mother provided the court with any evidence that would allow me to conclude that anything has changed since the order of Justice MacPherson.
[26] Counsel for the mother and the maternal grandmother both submitted that on a summary judgment motion I should give little weight to the hearsay evidence that is replete in the affidavits advanced by the Society in support of this motion. They argue that the maternal grandfather and his life partner were present in court and they are parties. However, neither F.S. nor C.T. filed any affidavits in support of the motion.
[27] I find that there is sufficient first-hand evidence of the Society worker who was in charge of the file. She investigated the concerns that had been expressed by the maternal grandmother that were made after the judgment of Justice MacPherson. She interviewed all of the parties and she had first-hand observations of the children and their interaction with all of the parenting figures.
[28] I find that on the basis of the evidence of the Society worker, the children are doing very well in the care of F.S. and C.T. They are doing well in all aspects of their development. The child P.G. has expressed a wish to spend more time with his maternal grandmother. Counsel for the child stated his wishes. He submitted, however, that the child is expressing his wishes in somewhat of a “parentified manner”. The child does not want to hurt his grandmother and feels he needs to be there for her. The child is presently receiving counseling for this issue.
The Law and Analysis
[29] 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.
[30] 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.
[31] 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.
[32] 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.
[33] 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.
[34] In considering a motion for summary judgment, the first step is to review the entire evidentiary record, to determine 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. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (R.), 2000 22902 (ON CJ), [2000] O.J. No. 4880 (O.C.J.) (page 8)). The court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial. (Children's Aid Society of Waterloo (Regional Municipality) v. S. (T.), 1999 14252 (ON CJ), 1999 14252, (1999), [1999] O.J. No. 5561, 1999 CarswellOnt 4859 (O.C.J.)).
[35] 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. A party cannot rest on a denial and must put his or her best foot forward. (Children's Aid Society of Metropolitan Toronto v. A. (M.), 2002 53975 (ON CJ), [2002] O.J. No. 2371 (O.C.J.) (page 6)); (Jewish Family & Child Service v. A. (R.), [2001] O.J. No. 47 (S.C.J.)).
[36] 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 Toronto v. H. (R.), 2000 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.)).
[37] In determining whether a genuine issue exists, the court must also consider the strict timelines governing the child protection procedure under the CFSA. 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. P. (L.), [2002] O.J. No. 2895 (S.C.J.) (page 4)).
[38] In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children's Aid Society of Ottawa v. C. (S.), 2003 67754 (ON SC), 2003 CarswellOnt 9373 (S.C.J.)).
[39] Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with a child 's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. (Children's Aid Society of Toronto v. R.H., 2000 3158 (ON CJ), [2000] O.J. No. 5853).
[40] The court must assume that a responding parent has "put their best foot forward" in their responding material and that this is the most they have to offer at that stage. "The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?" (Kawartha-Haliburton Children's Aid Society v. W.M., 2003 2441 (ON SC), [2003] O.J. No. 3903).
[41] I find that there is no genuine issue for trial with respect to the custody issue in this matter. All of the concerns that were expressed by Justice McPherson on February 3, 2014 in her reason remain today. The only difference is that there has been a further year and one moth that these children have been in the care and custody of F.S and C.T. they are doing very well and I have no evidence before me that would allow me to consider changing this status quo. It is in the best interest of the children to be in the custody of F.S and C.T.
[42] The Child and Family Services Act s. 57.1 reads as follows:
Custody order
57.1 (1) Subject to subsection (6), 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 interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2006, c. 5, s. 14.
Deemed to be order under Children’s Law Reform Act
(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act. 2006, c. 5, s. 14.
[43] I make the custody order to F.S. and to C.T. (whom I made a party at the outset of this motion), pursuant to the above section 57.1.
Access
[44] The issue of access to C.G. and the mother A.G. is slightly more complicated. Once I make a custody order pursuant to s. 57.1, that section deems that custody order to be made pursuant to the Children’s Law Reform Act s. 28. I find that the present access with the mother and the maternal grandmother should continue in the children’s best interest. However, I also find that it is necessary to continue the supervision of that access with the Society.
[45] The present access order allows for access in the discretion of the Society. According to that order, C.G. and A.G. have been getting unsupervised but monitored access by the Society every Tuesday and Thursday from 4:15 pm until 6:15 pm and on Saturdays from 10 am until 6 pm. This access has been going well. The child P.G. wants the access to be expanded. The Society looked into expansion of the access. However, due to the opinions expressed in the PAC by Dr. Amitay that were accepted by Justice MacPherson, the Society wanted to have C.G. present a support person who could be assessed as to appropriateness and undergo the criminal record and other background checks in order to assist with any overnight access. This has not yet taken place due to the delays occasioned by the person designated as the potential support person by C.G. As a result, there is presently no support person in place and the access cannot be expanded at this time.
[46] On the evidence before me, I find that access is beneficial and meaningful to the children and in their best interest and it should continue. I also feel that the Society should continue to supervise and monitor such access in order to ensure the safety and wellbeing of these children. I do not feel that there is a genuine issue for trial on the access issue. As with the issue of custody, I find there is no evidence that allows me to conclude that it is in the best interest of the children to change the access scheme. I am not able to expand the access due to the delay in getting a support person in place.
[47] I feel it is in the best interests of the children to give them a sense of permanency and stability by making the custody order I have and making an access order that will allow the existing access to remain subject to supervision of the Society. I am of the view that that can be accomplished by making an order pursuant to the Children’s Law Reform Act s. 34. That section reads as follows:
Supervision of custody or access
- (1) Where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person, a children’s aid society or other body. R.S.O. 1990, c. C.12, s. 34 (1).
Consent to act
(2) A court shall not direct a person, a children’s aid society or other body to supervise custody or access as mentioned in subsection (1) unless the person, society or body has consented to act as supervisor. R.S.O. 1990, c. C.12, s. 34 (2).
[48] The Society consents to such a supervisory role. I therefore make an order that the access of every Tuesday and Thursday and Saturday presently in place shall continue and that the Society shall supervise such access at their discretion. This access may be expanded, if a proper support person is put into place, to overnight access one night every second week. The matter of access shall be subject to a review in 6 months in order to determine whether there should be continued involvement of the Society and whether the frequency of such access continues to be in the children’s best interest.
Harper J.
Released: March 9, 2015
CITATION: CAS v. A.G, 2015 ONSC 1514
ST. CATHARINES COURT FILE NO.: 638/11
DATE: 2015/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION
Applicant
- and -
A.G,
C.G.,
M.R.O.,
F.S.
Respondents
REASONS FOR JUDGMENT
Harper J.
Released: March 9, 2015