CITATION: Children’s Aid Society of the County of Simcoe v. BD et al, 2015 ONSC 2402

BARRIE COURT FILE NO.: FC-09-751-06

DATE: 20150414

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of the County of Simcoe, Applicant

AND:

BD and SS, Respondents 1 and 2

AD and SD, Respondents 3 and 4

BEFORE: THE HON. MADAM JUSTICE R.A. WILDMAN

COUNSEL: M.F. Sirdevan, Counsel for the Applicant

M. Prost, Counsel for the Respondents, BD and SS

J. Winter, Counsel for the Respondents, AD and SD

HEARD: March 27, 2015

ENDORSEMENT

INTRODUCTION

[1] The Society’s full day summary judgment motion was heard on March 27, 2015 (Volume 9, Tab 28).

[2] The hearing relates to a status review application regarding two children, “T” (born […], 2005 – now age 9) and “B” (born […], 2010 – now almost 5).

[3] Respondent #1 (“BD”) is the mother of both children. Respondent #2 (“SS”) is the step-father of T and the biological father of B. [^1]

[4] Respondents #3 (“AD”) and #4 (“SD”) are the maternal grandparents of T and B and their current caregivers.

[5] T’s biological father (“PB”) has not seen her in years. He was served with this status review application on December 14, 2012, and has filed nothing in response. The day he was served, the Society worker says that he told her that he is not concerned with the relief requested in the status review application, and no one has heard from him since that date. He has had no contact with T for years and is not presenting any plan to have any involvement with her. PB is noted in default.

[6] The Society is asking that I make an order that T and B continue to be in need of protection. They also ask that I make a “deemed custody” order under s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [CFSA], placing them in the custody of their grandparents. Finally, they ask that I continue the current restraining order, which prohibits their parents from having any direct or indirect contact with the children.

[7] The parents are not opposing the custody order but feel they need to remain involved with their children, not only because it is in T and B’s best interests to have access with them, but also because the parents feel they need to monitor the care that is being provided by the grandparents.They say that the issue of whether they should be involved in T and B’s lives should not be determined on a motion, and requires a full hearing at a trial, with an opportunity to present oral evidence and cross-examine witnesses. They also feel that T, in particular, should have a voice in the decision about access because they think that she has suffered as a result of the loss of meaningful contact with her mother.

LITIGATION HISTORY

[8] This court file has expanded to seven banker’s boxes, as there are several children and there has been litigation about all of them.

[9] These parents have six children. The two who are the subject of today’s proceedings, T and B, live with their grandparents. The remaining four have been made Crown wards with no access for the purpose of adoption. The details of the various orders are:

(a) T and B were placed with their grandparents on a final basis, subject to Society supervision for 12 months, at the conclusion of a lengthy trial before Justice Gunsolus. The trial began in June of 2010 and proceeded for a 19 days, extending into September of 2010. Justice Gunsolus made a bifurcated decision, finding the children in need of protection but adjourning the disposition hearing until after the parents and grandparents completed a Parenting Capacity Assessment through the Child Advocacy and Assessment Program at McMaster University (the “CAAP assessment”).

The trial resumed for a further 12 days in November of 2011. At the conclusion of the trial, Justice Gunsolus delivered a very thorough oral decision. The transcript of his reasons is 90 pages long. His order, dated December 8, 2011 (“the Gunsolus order”), placed T and B in the care of their grandparents under a 12 month supervision order. Justice Gunsolus expressed “grave concerns” about whether or not the grandparents would be able to shield the children from conflict resulting from their mother’s involvement and issued a strong admonition to the grandparents that this was their “last chance”. He told them that there could be no contact between the children and their parents and he took the unusual step of issuing a restraining order against BD and SS, prohibiting them from having any direct or indirect contact with T and B.

(b) The next two children are “L” and “R”. They were also part of the trial before Justice Gunsolus, although R was born on […], 2011, which was during the period of adjournment, while the parties were completing the CAAP assessment. Justice Gunsolus’s December 8, 2011 order made L and R Crown wards, with no access, for the purpose of adoption.

(c) The parents appealed Justice Gunsolus’s order. However, they abandoned the appeal, following a motion before Justice Wood on April 19, 2012 related to the appeal, in which he found that none of the parents’ grounds of appeal would likely succeed.

(d) The next child, “A”, was born on […], 2012, two months after Gunsolus J. released his decision regarding the first four children. The Society brought a summary judgment motion, which was granted by Justice Olah on March 15, 2013. A was made a Crown ward, with no access, for the purpose of adoption.

(e) The parents also appealed the order regarding A. On April 7, 2014, the Court of Appeal dismissed the parents’ appeal.

(f) The final child, “O”, was born on […], 2013, two months after Justice Olah’s decision regarding A. Once again, the Society brought a summary judgment motion, which proceeded before me on October 1, 2 and 3 of 2014. I granted summary judgment on the statutory findings and the findings in need of protection but scheduled a trial regarding the appropriate disposition. I ruled that the parents had satisfied me that there was a genuine issue that required a trial about whether or not there was an order that could be made that was less intrusive than Crown wardship with no access for the purpose of adoption.

I was concerned that the parents and their counsel had been writing to the Society to determine what they needed to work on to be considered as caregivers for O, and had received no written response that BD could take to her counsellor. At that time, there was some evidence that BD was in counselling to try to address some of the issues about her that had been raised before Justice Gunsolus, but she was unsure about what to tell the counsellor about the Society’s current concerns.

The parents also had a critique of the CAAP assessment, which had been done by a well-respected local psychologist, Dr. Peter Marshall. He suggested that the methodology that the CAAP assessors had used was not sound and had been unfair to the parents. Dr. Marshall was prepared to reassess the parents’ Parenting Capacity Assessment very quickly, so that the parents would be ready for trial about six weeks after the summary judgment motion was concluded before me.

As the CAAP assessment had been relied upon by Justice Gunsolus in deciding that these parents could not resume care of their four children, I felt that they should have an opportunity to present their own assessment to the court before a final decision was made about their parenting abilities relating to the one remaining child, O.

(g) The trial regarding O was scheduled to proceed before Justice McGee on November 18, 2014. Unfortunately for the parents, Dr. Marshall’s assessment was not favourable to them. He concluded:

Ms. D and Mr. S are able to demonstrate many important parenting skills and are highly motivated to care for O. These skills were also demonstrated in my previous assessment when the parents were observed with A. However, numerous factors have been discussed in the current report that have the potential to undermine their ability to provide the care O needs on a consistent, long-term basis. I also conclude that the potential for change is low due to either the parents’ lack of insight or their unwillingness to acknowledge these factors and seek appropriate counselling and therapeutic services. I am not, therefore, supporting their parenting plan and recommend that the Court consider permanency planning for O.

(h) As a result, the parties entered into Minutes of Settlement on November 19, 2014, and Justice McGee made an order that O be made a Crown ward for the purposes of adoption. The parties included a comment in the consent endorsement form that was signed by Justice McGee, which read: “Parties have entered into an agreement providing for some level of ‘openness’ which need not form part of the Court’s endorsement or order, but which both parties are bound to follow”.

(i) The parents subsequently moved to set that order aside. Their motion was dismissed by Justice Olah on February 20, 2015, but she permitted the parents to bring an openness application within 30 days. That application is scheduled to be heard on April 17, 2015, and the Society’s adoption application for O is stayed until after the openness application is determined.

(j) Finally, the parents brought a motion before Justice Graham on February 2, 2015, requesting access to T and B; the appointment of the Children’s Lawyer (the “OCL”) for T and B regarding the access request; and for disclosure of T’s school records.

The access motion was adjourned to the hearing before me, so that I could make an order for access, if I refused the summary judgment motion.

Justice Graham ordered the production of the school records, “in part because the court is unable to envision potential harm to the children arising from such an order”.

Justice Graham refused the request for an OCL appointment, noting that “it would be a serious regressive step for the OCL to even mention the possibility of parental access to the children in the circumstances of this case”.

The Current Motion

[10] Unfortunately, with all the intervening litigation regarding the other children, the review of the supervision order relating to T and B has not been dealt with in a timely fashion. A Status Review was issued on December 4, 2012, claiming the relief requested in the summary judgment motion (custody to the grandparents, no access to the parents, and a restraining order against the parents). However, no one scheduled this matter for a hearing until March 27, 2015.

[11] The result is that T and B have been living with their grandparents for years now. T had shared a residence between the home of her parents and the home of her grandparents for several years prior to the judgment of Justice Gunsolus. B was apprehended at birth, so she has never lived anywhere other than with her grandparents or in foster care. Subject to some allegations by the parents that will be dealt with below, the children have had no contact with their parents since December 11, 2011, when Justice Gunsolus placed both girls in the care of their grandparents and ordered that the parents were not to contact the children, either directly or indirectly, under any circumstances.

[12] The question I have to determine is whether there is a genuine issue that needs to be determined at a trial regarding the parents’ claim that they should have access to their children. Alternatively, they suggest that there is an issue for trial regarding their claim that they need to remain involved to monitor the grandparents’ care of T and B.

The Test on a Summary Judgment Motion

[13] The purposes of the Child and Family Services Act, R.S.O. 1990, C. c.11, as am. [CFSA] are set out in s. 1. The primary purpose is to promote the best interests, protection and well being of children. As long as it is consistent with the best interests of the children, the court is to attempt to support the autonomy and integrity of a family. The court is also required to consider the least disruptive course of action that is available.

[14] Rule 16 of the Family Law Rules, O. Reg. 114/99 [Family Law Rules] provides that summary judgment is available in child protection cases. The court must determine if there is a genuine issue requiring a trial and, if not, make a final order accordingly.

[15] The order that I am being asked to make today is an extreme one. It will have the effect of terminating the relationship between these children and their parents. Given its severity, it is particularly important to be cautious about making the order without giving the parents the opportunity to participate in a trial.

[16] In determining whether or not there is a genuine issue requiring a trial, each party must “put their best foot forward”. The onus is on the Society to establish that they have a prima facie case for summary judgment. If they do so, the respondents then need to set out specific facts to establish that the decision cannot be made on a summary judgment motion, and that there is a need for trial.

[17] In Catholic Children’s Aid Society of Hamilton v. A. (M)[^2], Justice Chappell reviewed the conflicting authorities about whether a court hearing a summary judgment motion pursuant to Rule 16 is permitted to resolve credibility issues, draw inferences from the evidence or weigh the evidence, as would be allowed under recent amendments to Rule 20 of the Rules of Civil Procedure. She concluded that the expanded powers under the Civil Rules (Rule 20) do not apply to proceedings governed by the Family Law Rules (Rule 16). Justice Perkins reached the same decision in the case to which Mr. Prost referred me[^3].

[18] Given that this issue has recently been resolved by an amendment to the Family Law Rules, it is not necessary for me to enter into that debate. In determining the motion before me, there is no need to resolve credibility, draw inferences or weigh the conflicting evidence. I am prepared to assume that the facts alleged by the parents would be proven at trial.

[19] As Justice Chappell points out at paragraph 35 of her decision, a judge hearing a summary judgment motion under the Family Law Rules is still required to take a “good hard look” at the evidence[^4]. The court must assume that the information put forward by the responding party is the best they have to offer at that stage.[^5] There must be some arguable point based on the parents’ evidence that the parents face some better prospects than those that existed at the time of the Society’s initial involvement, and have developed some new ability as a parent.[^6] If the evidence advanced by the parents does not establish that their claim has a chance of success, the court should not schedule a trial.

Discussion

[20] In the case before me, the Society was historically involved with these parents because of suspected neglect in parenting (including T having initial difficulty with feeding and L suffering a spinal fracture to his leg 10 days after being returned to his parents’ care). The Soceity was concerned about domestic conflict and SS’s drinking, as a result of comments made by T when she was very young. The parents have explanations and I am not making any finding about the validity of these concerns. I mention them only to give context to what has followed.

[21] As mentioned, Justice Gunsolus heard extensive evidence about this family over the year-and-a-half that the trial was before him. In his initial decision, he found the children to be in need of protection “based upon the totality of the evidence, including, but not limited to BD’s past parenting and apparent lack of development of parenting skills, the ongoing adult conflict between her and her parents, BD’s unaddressed emotional and mental health issues, and SS’s inability to intercede”[^7].

[22] In his lengthy decision, Justice Gunsolus focused on BD’s acknowledged propensity for conflict, and her belief that it did not affect her children.[^8] He reviewed the CAAP assessment regarding T, which noted that T presented as anxious, which the assessors concluded would not be uncommon given the “physical abuse, emotional abuse (rejection and exposure to domestic violence), and neglect in the care of her family members.”[^9] The assessment concluded that T was at risk of developing mood disturbances, particularly anxiety, and stressed the need for her to live in “a stable, safe and consistent home environment free of conflict and violence.”[^10]

[23] Justice Gunsolus also found that SS did not have the capacity to parent. He noted that SS did not understand his children’s developmental needs and had not taken any parenting course to try to gain some insight. He had a history of domestic violence and substance abuse, and he had few personal supports. Justice Gunsolus found that SS “lacked veracity”. Perhaps most importantly, SS did not understand BD’s maltreatment of the children; he did not intercede when she lost her temper in front of the children; and he continued to believe that BD was not a threat to them.[^11] Justice Gunsolus commented that “he (SS) appears to have … a child-like belief that parenting is playing and, when the child or child’s mother becomes a problem, he is content to sit by quietly and let someone else pick up the pieces. He does not intercede.”[^12]

[24] The CAAP assessment team did not support an ongoing relationship for T with BD and SS. The assessor testifying at trial said that she had little concern about the effect on T of terminating all contact with BD and SS, as she felt that could be dealt with by professionals explaining the reasons to T and putting emotional supports in place.[^13]

[25] Justice Gunsolus noted that the assessors had no real protection concerns if the grandparents had T and B in their care, so long as BD was not part of the children’s lives.[^14] However, he noted that BD created “havoc” and “appears to live for the conflict and immerses everyone in that conflict.” He recalled the words of Justice Wood, who commented that, “Were B to be placed with the grandparents, BD will no doubt do everything in her power to undermine that placement.”[^15]

[26] In finding that T was in need of protection, Justice Gunsolus had the following comments:

I am doing so because of the ongoing conflict which she is embroiled in. That conflict is between her mother, BD, and her stepfather, SS; between BD and (the grandparents); and finally, of course, the conflict that goes on between B(D) and the Society.

A review of the evidence from the finding stage of this hearing in relation to past parenting, and of course during this disposition stage, confirms that T has experienced physical abuse at the hands of her mother, and emotional abuse at the hands of her mother and stepfather, given the domestic violence that occurs between them and Mr. S’s apparent rejection of her in favour of her younger siblings. She is also caught up in the conflict between her parents and grandparents and the Society.

I agree with the CAAP’s opinion that the nature of T’s relationship with BD and Mr. S is such that her emotional wellbeing is in jeopardy, let alone being at risk of physical harm. Given T’s age and stage of development, it would appear that her relationship with her grandparents is important to her and will need to be preserved in some way. It is to be noted that the assessors do not support an ongoing relationship between T and B and T and S, unless it can be structured so as to not jeopardize T’s opportunity for permanency in a stable, safe, and consistent home environment, free of conflict and violence.[^16]

[27] Ultimately, Justice Gunsolus concluded:

There is no question that ongoing exposure of these children to BD and SS will undermine their wellbeing as set out in the assessment provided by CAAP in this matter.

To that end, T and B are to be placed with their grandparents, A and SD, subject to a 12-month supervision order. I am satisfied that this intervention through a court order is necessary to protect these children from BD and SS and is indeed the least disruptive alternative available to the court.[^17]

[28] He concluded with the following warning to the grandparents:

Given what I have said, I want to direct some comments now to A and SD, because I want you, A and S, to understand that I am giving you this last chance to provide for T and B’s care and to bring them stability, security and, above all, permanency.

Because of T’s age, her special relationship with you, and the length of time you have actually cared for her, I think it would be wrong to take her away from you, which would be indeed taking her away from the only stability she has ever known in her life, albeit I think we all have to acknowledge it has been imperfect.

I do note that since July of this year, she seems to have settled and she is probably doing the best she ever has in school.

In relation to B, you have proven that you are capable of parenting her. As I have said, my decision in relation to B was the most challenging. As you will recall, the assessors felt the same way, and of course, they recommended that she be made a Crown ward without access.

But I also noted that the assessors could point to no reason why you as grandparents could not successfully raise T and B. There is a huge risk in giving you their care. S, you are a cause for concern to the court. I hope you understand what was meant when the assessors said that. Their concern is that you will not be able to stand up to B and you will not be able to assume the parenting role for these children which, you have to understand, is for the rest of your life.

… I must ask myself, as Doctor (N) asked, “Is this really doable?” or … “Are we just creating an experiment?”

I will tell you that given your breach of my order of the 24th of September[^18], and given the fact that you apparently have never been able to control B(D), I harbour grave concerns about what we are doing today. But I am also aware of the following:

(i) The court has never made an order to the extent of a restraining order against B and S.

(ii) The court has never made an absolute ban from B and S having any contact watsoever with T and B.

(iii) The assessors could not say, absent them, that you could not parent these children.

Mrs. D, you told the court that you love these children and that you just want to raise them, and I believe you. But you’ve got to understand this is not the second chance, this is the last chance.

It means that you are choosing T and B, their wellbeing, absolutely over your daughter, B(D). You will be assuming the parental role once and for all in relation to T and B. I believe you will need, at minimum, the next 12 months in order to establish your parental authority over them. And again, you’ve got to understand that this is for your lifetime. The care and control of these children can never revert to B and S, and I hope you understand that. You have told me you will comply with this court’s order, and I believe that you will do your best.

I cannot tell you to have no contact whatsoever with B(D), but you have to understand that there can be no contact between T and B (the child), and B(D) and SS, period. You have to understand that travelling in a motor vehicle with a couple of rows of seats between parents and children doesn’t cut it.

You have told me that your conflict with B(D) has always been present and you don’t know how to stop it. So today, we are going to try to give you the tools so you can stop it, and you are going to have to use these tools to protect these children. Failure is not an option this time for T and B.[^19]

The Position of the CAS

[29] The Society says that the grandparents have done a “reasonably good job of parenting T and B”. They have investigated the parents’ allegation, which will be dealt with below, that there has been ongoing contact between the parents and T, despite Justice Gunsolus’s restraining order, and the Society is satisfied that the parents are, to put it charitably, “confused”.

[30] There were some remarks by T in her interview that were concerning. She said that she was “not allowed” to talk to the worker. The worker reported that T told her,

…if she is bad that her papa (the grandfather) will tell her that if she does not stop I will come and take her away. T said that her papa said that foster parents are bad and will punch you in the face. T said that her papa also said that if she went into foster care she and B would be separated.

[31] The grandparents have been spoken to about this, and cautioned that this is not an appropriate form of discipline. If I grant the requested custody order, the Society has agreed to meet with T and B periodically, to ensure that there are no ongoing issues regarding inappropriate comments or discipline by the grandparents.

[32] I wish to reinforce the Society’s message that these comments, if they were actually made, are shockingly inappropriate, particularly for a child who suffers from anxiety and needs the reassurance of a stable placement. However, this one comment is not going to affect the outcome of these proceedings. It would not, in and of itself, be sufficient to justify removing T from her grandparents care. The solution is, as the Society proposes, for them to meet regularly with T and her caregivers, to ensure that supports are in place for T, and discussions take place with the grandfather, to ensure that nothing like this happens again.

[33] The Society outlines the continued problems created by BD, which supports their ongoing concern that she will undermine the children’s placement and create conflict, unless the restraining order remains in place to prohibit contact. The problems include:

(i) BD questioning T’s weight and asking the worker to investigate.

(ii) Suspicions that BD is making repeated telephone calls to the grandparents and the Society, and hanging up when they are answered. The worker notes that when she stopped answering the “unknown number” calls that resulted in “hang-ups”, she then received a lengthy message from BD on her personal cell phone.

(iii) BD having a shouting match with her aunt in a Midland shopping mall.

(iv) BD accusing the grandfather of subjecting T to pornography.

(v) BD questioning T’s change of schools and the grandparents change in residence, and (inaccurately) accusing them of failing to inform the worker.

(vi) BD accusing the grandparents of leaving T and B in the care of her cousin, who is known to the Society.

(vii) BD denigrating the Rainbows program that the grandparents had enrolled T in, saying that “all they do is colour”.

(viii) BD demanding copies of T’s counselling records (while refusing to provide anything regarding her own counselling).

(ix) BD sending the grandparents so many texts in one day (August 1, 2014) that they had to change their phone number. The texts included comments about how BD’s lawyer had told them that T would be coming home to them (BD and SS).

(x) BD leaving voicemails for the Society worker accusing the grandparents of not caring for T properly, and accusing the grandparents of lying in their affidavits and to the worker.

The Position of the Grandparents

[34] The grandparents say they have taken Justice Gunsolus’s admonitions to heart. They have not allowed their daughter (BD) or SS to have any contact with T and B. They have responded in detail to the allegations that the restraining order has been breached by continued contact between the children with BD and SS. They have specific and detailed comments about the whereabouts of the children on each of the alleged dates to show there has been no breach of the order. They admit that they attended a church supper with the children in December of 2013, but they immediately left when they discovered that BD and SS were there. There was no direct contact on that occasion.

[35] They have reviewed the photographs and texts that BD and SS have provided, and confirmed that the ones of which they have knowledge predate Justice Gunsolus’s order. They admit that they, themselves, have had some limited text communication with BD, but deny that T has been involved.

[36] The grandparents also point out that they have done a number of things to assist T, in particular, to overcome her difficult past. These include:

(i) Enrolling her in the Rainbows Program at the church (for children dealing with loss), and allowing her to go to a second 8-week session, when she enjoyed the first so much.

(ii) Attending with her at a monthly program through the Simcoe Community Services Program at the Early Years Centre for “Grandparents Parenting Again”. This program also allowed T to have one-on-one time with a counsellor.

(iii) Enrolling her in a one week Barrie Police Services “Junior Constable Camp”, where she obtained a Certificate of Achievement, and which they say helped her with her fear of authority.

(iv) Having her attend four weekend camps for girls age 7 to 17 through Camp Winston, where she does arts and crafts, woodworking, cooking, baking, nature programming, group games, sports, campfires, canoeing, boating and swimming.

(v) Keeping her on a waiting list for counselling through Newpath for a year-and-a-half. The initial two appointments have now taken place, and T has access to six to eight sessions in total with a private therapist.

[37] In addition, T participates in team sports through her local church group each Saturday morning, and attends Sunday school each week. She was initially enrolled in Brownies, and has now progressed to Girl Guides. B is now old enough to attend Sparks and is about to be enrolled.

[38] The grandparents say that the children are attending all their necessary medical and dental appointments.

[39] B is now attending Junior Kindergarten. Prior to that, she attended daycare, as requested by the Society. T is in Grade 4 and her report cards show that she has very few lates or absences. She has an Individual Education Plan (IEP) and gets assistance from a special education teacher. She is doing relatively well, although she struggles in Science and Technology.

[40] In summary, the grandparents say the children are doing very well. The family relocated to Barrie from Midland over a year ago, in part to reduce the opportunities for accidental contact with BD and SS in the community. The grandparents have shown their commitment to T and B, and to heeding Justice Gunsolus’s warning about eliminating contact between the children and their parents.

[41] They support the Society’s position that an order be made placing T and B in their custody, and agree that it will be necessary to retain the restraining order in order to avoid continued attempts by BD to interfere with the children. They agree to the Society continuing to be involved through periodic monitoring and meeting with the children.

The Parents’ Position

[42] First, it is important to note that SS does not take any position separate from BD. It is clear from the material filed that “the parents’ position” is really that of BD. There is conflicting evidence about how much SS is drinking, so for the purposes of this decision, I will assume that his current alcohol consumption is nil or minimal. However, other than that, SS has done nothing to try to improve his parenting skills. There is no indication that he now acknowledges the threat that BD’s difficulties with conflict present, and there is no evidence to indicate that he is in any better position to intercede and try to control her. Although Dr. Marshall noted some “controlling” behaviour by SS was observed during his PCA, discussions with SS indicated that his “control” related to concerns about BD revealing information that might compromise the assessment, rather than SS intervening because he recognized defects in BD’s parenting. I am satisfied that nothing has changed from the time of Justice Gunsolus’s order regarding the dynamics between the parents.

[43] I will therefore focus on BD. What has she done since Justice Gunsolus’s order? Is there anything that would create a triable issue regarding her claim that it is now in the children’s best interests to have her involved in their lives, or to fashion an order that would permit her to continue to question the grandparents’ care of them.

[44] Clearly, one of Justice Gunsolus’s chief concerns was BD’s propensity for conflict and the devastating effect that had on everyone around her, including the children. Has she addressed that?

[45] It is reassuring that the parents have had an updated Parenting Capacity Assessment since the trial before Justice Gunsolus. The author was a psychologist of their own choice, whose critique of the CAAP assessment indicated an awareness of the need to conduct the assessment in a manner that was scrupulously fair to the parents. Although the assessment related primarily to O, the youngest child of BD and SS, the comments about their parenting ability are obviously relevant to the motion before me.

[46] Dr. Marshall’s PCA confirmed:

(BD’s personality profile) indicates areas of difficulty that are consistent with reports that she has been resistant and, at times antagonistic, in the way she relates to service providers. … adults with her profile can appear to be cooperative and compliant but are actually resistant or alternate between ‘friendly cooperation and resentful distrust’.[^20]

[47] Dr. Marshall also noted:

The most relevant finding from the current assessment is that (BD’s)personality difficulties would render it unlikely that she could establish an effective working relationship with service providers, particularly those involved in matters relating to the care of her children.[^21]

[48] As noted previously, Dr. Marshall concluded that neither parent had the capacity to parent O and stated:

I also conclude that the potential for change is low due to either the parents’ lack of insight or their unwillingness to acknowledge these factors and seek appropriate counselling and therapeutic services.[^22]

[49] BD points out that she has engaged in some counselling with a social worker. However, the counselling was not extensive and her primary focus appears to have been talking about the stress she was, understandably, experiencing as a result of her children being removed from her care. The counselling notes verify that she did not do any meaningful work to address Justice Gunsolus’s concern about her unproductive, conflictual nature. For example, when asked about her goals for counselling, BD shared a secondary goal that “in the past she has used her mouth as a way to release anger. She no longer noted this as a concern.”[^23] The counsellor notes that BD “appeared to feel that the work had been done on (her) goals already” and “she did not appear to understand why CAS was involved in her life and their concerns for her children.”[^24]

[50] Most telling are BD’s continued efforts to make trouble for the grandparents. These efforts, which are outlined in paragraph 33 above, clearly demonstrate that BD is not prepared to support her parents in their efforts to raise these children and provide them with a secure, stable childhood. Her concerns are not raised in a productive way, and are clearly intended to undermine, rather than assist, the grandparents in their parenting of T and B. The fact that BD sent so many texts in one day that the grandparents had to change their number, and the fact that at least one of those texts contained a threat that T would be coming to live with BD, satisfies me that BD has gained absolutely no insight into how problematic her approach to problems is, and certainly has done nothing to improve her conflict resolution skills.

[51] Perhaps most breathtaking is the submission by BD that she has been breaching Justice Gunsolus’s restraining order and having ongoing contact with T. Somehow, she suggests that this justifies a trial to see if that contact should continue.

[52] My first comment is that the evidence proffered by the parents about ongoing contact does not have the “ring of truth”. For example, they have attached several photographs of T and B with their mother, swearing under oath that they were all taken since Justice Gunsolus’s order in December 2011. The grandparents deny any ongoing contact and both they and the Society point out that several of the photographs are included in the “farewell” scrapbook that was prepared in December of 2011, when Justice Gunsolus terminated contact. I accept the evidence of the Society that it can be determined from the furniture that the picture of B is taken at the Society office during an access visit (which has not happened since December of 2011). It seems highly unlikely that the table is so similar to the table at the grandparents’ home, as BD and allege, that the picture will establish that they exercised access at the grandparents’ after Justice Gunsolus’s order, rather than at the Society’s office before the order was made.

[53] The worker confirms that she has been in touch with the children every four to six weeks since Justice Gunsolus’s order. Neither of the children have said anything about contact with their parents. B was interviewed, following the mother’s allegation that the restraining order had been breached with the consent of the grandparents, and she doesn’t even know who her mother is. T denies seeing her mother, other than one time at a parade. It is acknowledged by the grandparents that they saw BD at the Santa Claus parade in December of 2011, which was just before Justice Gunsolus’s decision. In any event, T says that her grandparents tried to move away from BD and SS, although BD and SS followed them.

[54] The texts that have been produced do not establish any ongoing communication between T and her mother. Most of the texts are between the grandparents and BD, which is not prohibited by the restraining order. Only one purports to be from T, and it simply reads, “love you mommy, it’s T”. It is dated June 17, 2012. Assuming, for the sake of argument, that it was actually sent by T, it hardly establishes an ongoing relationship nor does it establish that it would be in T’s best interests to have an ongoing relationship with her mother.

[55] I accept, again for the purpose of argument, that T loves her mother. I accept that she had difficulty adjusting to the loss of her mother in her life. However, the grandparents have gone to considerable lengths to assist her to settle into a childhood that does not include her mother, and it appears that she is doing better and beginning to heal. To reintroduce her mother into her life now, with no evidence that her mother is a different person than she was at the time of Justice Gunsolus’s decision, would be cruel. It would be like reopening a wound that T and the grandparents have been trying hard to help heal. It would clearly not be in T’s best interests.

[56] I have considerable difficulty accepting the veracity of the evidence provided by the parents about ongoing contact. However, bearing in mind the concerns about assessing credibility on a summary judgment motion, I will assume for the time being that what they have set out in their affidavit would be proven at trial.

[57] At best, it supports a conclusion that there has been some extremely minimal contact between T, and possibly B, with their parents. It does not establish that ongoing contact would be in the children’s best interests. Given the lack of insight and change on behalf of the parents, there is no chance that a court would place these children in their care.

[58] Despite the failings in the grandparents’ care, they are, as the Society says, doing a “reasonably good job”. The biggest threat to a successful outcome for these children continues to be the concern that BD will interfere and undermine the progress that the grandparents are trying to make with the children. That threat is clearly as great today as it was in 2011. Perhaps it is even greater, if the evidence about breaches of the restraining order proffered by the parents is believed. BD is admitting that she cannot be controlled, even by a court order.

[59] BD may be either lying or mistaken about the contact with T. If so, T, B and their grandparents have had to go through an upsetting and unnecessary investigation as a result of BD’s allegations. The inevitable conclusion of such a scenario is that even more stringent controls need to be put into place to ensure this does not happen again. It is clearly not in the best interests of T (and B) to allow further intrusions of this sort.

[60] Alternatively, it is possible that BD is telling the truth. If so, the inevitable conclusion is still that even more stringent controls need to be put into place to ensure this does not happen again. The evidence is as clear today as it was in December of 2011, when Justice Gunsolus made his decision. BD is not prepared to support her parents’ care of T and B. She creates conflict, havoc and stress for everyone involved, including her children. She is not prepared to put their need for stability and peace ahead of her own need to be involved in their lives. She seems to continue to want to be engaged in a power struggle with her parents about their care of the children. It is not in T and B’s best interests to allow this to happen again.

[61] There is no issue for trial. The result of a trial can clearly be determined on the evidence before me. The summary judgment motion is granted.

Decision

[62] T’s biological father, PB, is noted in default for failing to respond to the status review application.

[63] T and B are found to be in continuing need of protection. The findings made by Justice Gunsolus on December 11, 2011, continue to be valid. They are at considerable risk of emotional, and possibly physical, harm should they have any contact whatsoever with their parents.

[64] T and B are placed in the care and custody of their grandparents, AD and SD, under s. 57.1 of the Child and Family Services Act. Pursuant to the authority in s. 57.1(2), and on consent of the grandparents and the Society, the Society is to maintain an open file and provide ongoing support to the children and grandparents as necessary. They are to continue to meet with the children periodically to monitor their situation. The meetings should take place a minimum of three times a year, but may be more frequent if either the Society or the grandparents request. The children are to be made available for announced and unannounced visits and interviews by the Society worker, both at home and at school. As part of their monitoring and assistance, the Society is to continue to be involved with any community supports and agencies with which the children may be involved, and they shall have the right to speak to any service providers, without the need to obtain a formal written consent.

[65] The Restraining Order issued by Justice Gunsolus shall continue but it is to be expanded to provide that neither parent is to initiate contact with the grandparents, directly or indirectly. It is recommended that the grandparents also do not contact the parents but, should they do so, the parents may reply to the contact by the grandparents. They shall be limited to one reply for each contact that has been made by the grandparents, which shall occur within 24 hours of the contact having been made. The contact should be in the same method of communication as the contact was made by the grandparents. For example, if the grandparents send a text, the parents must respond by text. BD and SS are not to come within 200 metres of the children at any time, and it is the responsibility of BD and SS to leave if they encounter the children at an event or in the community.

[66] I am also concerned about the parents’ ongoing attempts to undermine the grandparents’ care by contacting the Society with unfounded complaints. I do not think that I can prohibit anyone from contacting the Society, if there is a true protection concern, but I wish to make it clear that such contact has to be extremely rare. The parents are not to contact the Society regarding T and B, except through counsel. It is my hope that counsel will be able to intercede to ensure that unnecessary communication is not sent. Should the parents no longer have counsel, they may contact the Society about T and B only in writing, and only regarding a child protection concern that cannot be brought to the Society’s attention by someone else. For example, if they hear from “someone” that T may have lost or gained weight, BD and SS should tell that “someone” to report it to the Society, if they have concerns. They should not take it upon themselves to continue to report trivial and unfounded complaints to the Society, which do not raise protection concerns, and are designed to undermine, rather than support, the grandparents’ care of T and B. If BD or SS do have cause to contact the Society, they should do so in writing, and should wait for a response prior to initiating any further contact. The days of repeated and disruptive phone calls have to end.

[67] Regarding the claim for access by the parents, it is dismissed. There is no evidence that would support a finding that it is in the best interests of either child to have any contact whatsoever with BD or SS. There will be an order that the parents are to have no access to the children.

WILDMAN J.

Date: April 14, 2015

[^1]: For ease of reference, I will refer to BD and SS as the “parents” in this decision, recognizing that SS is not the biological father of T but has lived with and cared for her and is considered her parent within the meaning of the CFSA.

[^2]: 2012 ONSC 267.

[^3]: Starr v. Gordon, 2010 ONSC 4167, 2010 CarswellOnt 5508.

[^4]: Children’s Aid Society of Stormont, Dundas & Glengarry (United Counties) v. V. (M.), 2010 ONSC 4256; Children’s Aid Society of Ottawa v. B. (C.), 2010 ONSC 6961, [2010] O.J. No. 5644.

[^5]: Kawartha-Haliburton Children’s Aid Society v. M. (W.), 2003 CanLII 2441 (ON SC), [2003] O.J. No. 3903 (Ont. S.C.).

[^6]: Children’s Aid Society of Toronto v. H. (C.), 2004 ONCJ 224, 2004 CarswellOnt 4076 (Ont. C. J.); Children’s Aid Society of Haldimand-Norfolk v. T. (S.L.), 2011 ONSC 4990, 2011 CarswellOnt 8480.

[^7]: Reasons for Judgment of Justice D.S. Gunsolus, December 8, 2011, page 6.

[^8]: Ibid at 28.

[^9]: Ibid at 44.

[^10]: Ibid at 45.

[^11]: Ibid at 71.

[^12]: Ibid at 68.

[^13]: Ibid at 46.

[^14]: Ibid at 51.

[^15]: Ibid at 24.

[^16]: Ibid at 63.

[^17]: Ibid at 84.

[^18]: The grandparents had breached a previous order prohibiting contact between the children and their mother by allowing them to travel in the same car.

[^19]: Supra, page 89.

[^20]: Dr. Marshall Parenting Capacity Assessment, page 26 – Continuing Record, Volume 9, Tab 29, Exhibit E, page 217.

[^21]: Ibid, page 219.

[^22]: Ibid, page 220.

[^23]: Counselling notes - Continuing Record, Volume 9, Tab 29, Exhibit K, page 401.

[^24]: Ibid, page 403.