Children’s Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378

COURT FILE NO.: FC-05-2839

DATE: 20150526

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Children’s Aid Society of Ottawa, Applicant

AND

K.A. and E.T., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Judith Hupe, for the Applicant

Cedric Y.L. Nahum, for the Respondent K.A.

Sheldon Cherner, for the child D.A.

HEARD: April 24, 2015

ENDORSEMENT

Nature of the Case/Positions/Issues

[1] This is the applicant Society’s motion for summary judgment on its status review application with respect to the child D.A., age 10. It is seeking Crown wardship with access to the parents in its discretion pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”). The respondent father E.T. did not attend, but has indicated in writing that he consents. The Office of the Children’s Lawyer (“OCL”) agrees with the request for Crown wardship, but not with the access. The mother opposes the motion and asks the court to make a further order for Society wardship instead.

[2] The issues, then, can be summarized by the following questions: should summary judgment for Crown wardship be granted; if not, should six months Society wardship be granted; if either Crown wardship or society wardship is granted, should summary judgment also be granted on the access?

Law – Summary Judgment

[3] While there has been some uncertainty in the past whether the test for summary judgment from the 2010 amendments to the Rules of Civil Procedure (R.R.O. 1990, Reg. 194) apply to the Family Court Rules, (O. Reg. 114/99 (“Rules”)), that was not an issue on this motion. Both parties directed me without comment to the expanded test in their factums. The Family Court Rules were amended to include that test just weeks after this motion was heard.

[4] For the approach on a motion for summary judgment, the rules along with the principles from Hryniak v. Mauldin, 2014 SCC 7 at paragraphs 66 to 68 indicate the following:

(a) “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly” - Rule 16(6).

(b) If there appears to be a genuine issue requiring a trial, the court shall determine if the need for a trial can be avoided by using the new powers (which are now set out in Rules 16(6.1) and (6.2)). These involve weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided they do not run contrary to the interests of justice.

(c) There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure.

(d) If after the above analysis there is a genuine issue requiring a trial, the court still has discretionary powers to give directions, specify the issues, identify which facts are not in dispute, and to impose conditions (Rule 16(9)).

Factual Summary

[5] The child D.A. was born on […], 2004. Soon afterwards, the mother moved with him from Nunavut to Ottawa to escape domestic abuse. The mother had difficulty caring for the child and he went into the Society’s care for four months in 2005 under a Temporary Care Agreement. After the child was returned, he was apprehended on October 17, 2005, as the mother was having difficulty with her mental health. He remained in care under a Society wardship order until returned on May 11, 2006 pursuant to a supervision order. That order was terminated in September of 2007.

[6] The Society closed its file in February of 2008 as there were no ongoing protection concerns. It was reopened in March of 2009 following a report of possible sexual abuse of D.A. by the mother’s father. That allegation does not appear to have been verified. The child was apprehended from the paternal grandfather who was babysitting him, but returned to his mother immediately once she was located. She appeared to be doing well.

[7] There were some concerns about the mother drinking in early 2011. On January 20, 2011, D.A. is alleged to have disclosed to the “school” (no specific person is named) that his mother “drank a lot”. The allegation, clearly hearsay, was properly followed up by the child protection worker but D.A. did not report alcohol use by his mother to her. The worker also reported that on January 20, 2011, the school’s Principal stated that “she smelled alcohol on Ms. A. before Christmas.” It is not clear if this was one time and there is no context. I cannot assess the reliability of this out of court statement without more. I note that the mother was working four hours per week at the Ottawa Inuit Children’s Centre (“OICC”) as an Inuktitut teacher around that time, she had D.A. in programming there, and she was going to Tungasuvvigat Inuit when additional support was needed.

[8] While there were concerns about drug and alcohol use by the mother afterwards, to the end of 2013, these were based on a number of anonymous calls. In the midst of those allegations, in November of 2012, a worker from the OICC indicated that she saw D.A. every day, did not have concerns regarding his care, and that the mother had always been appropriate and never smelled of alcohol. The Society acknowledges that the allegations from that period were not verified due to a lack of evidence.

[9] In December of 2013 the Society received an anonymous report from a professional in the community that the mother was consuming alcohol on a daily basis in front of the child. While initially denied, the mother soon admitted that she had been consuming alcohol and marijuana while in a caregiving role. She explained that this was a new problem, directly related to the death of her father in November of 2013, which is not inconsistent with the above history. She agreed to stop, and OICC support workers and a friend agreed to check up on her regularly. However, the child was apprehended on January 12, 2014, and has remained in care ever since. The mother while intoxicated punched the child in the head and in a separate incident pinched his penis while he was sleeping causing him to awake in pain. These events were confirmed by the mother and child. Prior to the apprehension the child had been in his mother’s care since May 11, 2006, or for approximately 7 ½ years.

[10] The mother had supports in place to address the Society’s concerns, being counselling for anger management, a drug and alcohol assessment, and grief counselling. She was also involved with services through the native community. An 8-week out-patient treatment program was chosen by her to address her addiction, and was completed at the end of June 2014. The recommendations were that she continue to work with counselling, recovery groups, and the Women Healing Circles.

[11] On August 13, 2014, the child was found to be in need of protection and a three-month Society wardship order was made. The mother had made admissions of drinking prior to that date. While that order appears to have been made at a settlement conference, I was unable to locate any statement of agreed facts. The mother undertook to abstain from the consumption of alcohol, but continued to struggle. Shortly afterwards she was charged with assault of a woman, and alcohol appears to have been involved. In November of 2014 she pled guilty to simple assault on D.A. regarding the incidents around the time of apprehension, and was granted a conditional discharge with two years’ probation.

[12] At the time of this hearing the mother acknowledged the bulk of the post-November 2013 difficulties, but claimed to having been sober for the past two months. The Society’s evidence had a number of examples of the mother leaving voice mail messages for the worker with slurred speech although, consistent with the mother’s evidence, the last one appears to have been on February 24, 2015, approximately two months before this hearing. The mother was charged with assault again on a woman on April 1, 2015. The mother disputes the charge. All that is before the court is a police General Occurrence report. Alcohol does not appear to have been involved.

[13] The Society has arranged access visits for the mother with the child twice per week. The visits are supervised in the Inuit community and although it has been spotty at times, the Society concedes that she has been attending on a fairly regular basis and that it goes well for the most part. It appears that only two visits were missed this year, on February 17 and March 3, 2015, and both times the mother cancelled in advance indicating that she was sick. The child enjoys the visits and would like them to continue as they are. The Society advises that if Crown wardship is granted, its intention is to reduce the access to prepare the child for adoption.

[14] While the mother is adept at connecting with services, follow-through has been inconsistent. I find that the evidence supports the child protection worker’s summary that leading up to this hearing the mother had not been working on her aftercare treatment plan, had not been following up with the programs agreed on, was avoiding the Society’s workers, and was refusing to allow the worker into her home. I make particular note of the fact that on January 27, 2015, the mother’s counselor from Rideauwood Addiction and Family Services indicated that she would recommend that Ms. A. attend a residential treatment program. However there has been no follow-up by the mother; indeed since then consistency with addictions counselling has been lacking. The mother acknowledges these shortfalls, but has committed generally on this motion to re-engage. There is no suggestion that the numerous service providers have given up on her, and it appears they remain available to assist.

Should Summary Judgment for Crown Wardship be Granted?

[15] The parties concede that the test on the Society’s status review application is what disposition is in D.A.’s best interests, providing he is found to be in continuing need of protection. There is no issue for trial that the child is in continuing need of protection. Even the mother, in not seeking an immediate return of the child but proposing a further Society wardship order, is presuming such a finding. So the narrow question is whether there is a genuine issue requiring a trial that an order for Crown wardship is in the child’s best interests.

[16] The circumstances the court is required to consider when making a determination in the child’s best interests are set out in s. 37(3). The ones at issue on this motion relate to some very basic objectives of the legislation. On one hand, the Society and the OCL are focused on the delay in the disposition of the case and the need for permanency planning for the child as soon as possible: see subsections 37(3) 5, 8, and 10, and one of the purposes of the Act found at subsection 1(2)3(iii). On the other hand, the mother is focused on the child’s emotional ties to her and their Inuit cultural background (s. 37(3) 2 and 6), and on the purpose of the Act to ensure that services are provided to support the family unit (see subsections 1(2)1 and 57(2) and (3)). All these noted purposes and circumstances have to be considered in the context of the paramount purpose of the Act, being the promotion of the best interests, protection, and well being of D.A. (s. 1(1)). Along those lines, I adopt the following passage from Children’s Aid Society of Toronto v. R.H., 2000 3158 (Ont.C.J.) at para. 16:

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 chance 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. See Children's Aid Society of Kingston and Frontenac County v. J.G. and D.B. (1997), 1997 17031 (ON SC), 73 A.C.W.S. (3d) 82, [1997] O.J. No. 3205, 1997 CarswellOnt 2830 (Ont. Fam. Ct.), per Justice Cheryl J. Robertson.

[17] While there has to be an opportunity to rehabilitate a parent to resume care of a child, clearly waiting too long runs counter to the child’s need for a permanent and stable placement. Section 70 therefore establishes an outside time limit for seeking a permanent plan:

70. (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

• (a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

• (b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

(2.1) The period referred to in subsection (1) shall include any previous periods that the child was in a society's care and custody as a society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society's care and custody.

(4) Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

[18] In R.H. noted above, Crown wardship was granted where the child had been in care his whole life and was over two years old at the time of the summary judgment motion. He was well beyond the section 70 timeline. However, at the time of this hearing, in view of subsection 70(2.1), the child D.A. had been in care for just over fifteen months, leaving over eight months to run on the section 70(1)(b) timeline.

[19] Regarding shorter periods, the Society here relies on Children’s Aid Society of Ottawa v. C.(S.), 2003 67754 (ON SC), 2003 CarswellOnt 9373 (S.C.J.). The child was apprehended at birth. Four and a half months later the Society brought a successful summary judgment motion for Crown wardship. While the mother contested the motion, she had long-standing difficulties with drug addiction and domestic violence “spanning a decade”, and, as a result, none of her three previous children were in her care. Her third child had been made a Crown ward without access after a trial where the court noted that the mother and father had “squandered 10 months of assistance by the authorities”. The mother had not in any way raised a question about her drug rehabilitation, and had not even started to address her problem in a substantial way. The court noted that while the Act allowed for 12 months before making a decision on Crown wardship, that did not mean that the court had to wait the full period. There was no evidence that the mother’s situation may change in the remaining time, even if a s. 70(4) six month extension was granted.

[20] I adopt the principles from that decision. While the “realistic time frame” noted in R.H. cannot be longer than the outside time limit of section 70, it can be shorter where there is no reasonable prospect of the parent making progress or of a willingness to do so. Further in that regard, there needs to be some evidence that the situation may change in the following months, versus a bald statement of intentions. The genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child (per Children’s Aid Society of Hamilton v. H.(S.), [2005] O.J. No. 5114 (Ont. S.C.J.) at para. 22), or, in this case, more than a heartfelt expression of a parent’s desire to do what is necessary to resume care of the child.

[21] I note, however, that the facts in this case are quite different than in C.(S.). The child there was a baby, only months old. The mother had had already missed one third of the available access visits. She had no notable relationship with the child. Here D.A. is 10 years old and lived with his mother essentially uninterrupted for 7 ½ years prior to the apprehension. The access is fairly consistent and goes well. In C.(S.) the mother had a serious drug problem that has affected her ability to parent, and she had struggled with those issues for a decade losing custody of three previous children as a result. Here, there is evidence that Ms. A.’s difficulty with alcohol has substantially arisen over the last two years. Further, her evidence is that she has remained sober over the past two months, which is not contradicted. She has shown a commitment to achieving sobriety. Unlike the mother in C.(S.), she has some history of connecting and working with services, although not consistently.

[22] In my view it is too early to give up on Ms. A. She has positives that she brings to the child, particularly related to his culture and heritage, and they have a long relationship. Her commitment to addressing her issues appears to me to be something more than just a heartfelt expression. In my view there is a genuine issue for trial as to whether Crown wardship versus Society wardship would be in D.A.’s best interests.

[23] Having said that, I took particular note of the fact that the attempts to address the addictions issue have not included the residential treatment program recommended. I am troubled that I have not heard the mother embracing that specific proposal. While she has shown commitment to remaining clean and sober, the evidence suggests that it will be very difficult without such a program. Time is quickly running out for her to resume a parenting role.

Society Wardship/Access

[24] As noted, the mother has asked me to make an order for six months Society wardship intimating, in reference to the new powers under the summary judgment test, that it would avoid the need for a trial. However, there is no notice of motion. The other parties have not consented to me considering that as a disposition. In my view, I am not in a position to justly and fairly adjudicate that issue.

[25] The Society sought a final order that access be in its discretion, intending to reduce it, while the OCL and mother sought a continuation of the present regime. Given the disposition on the main motion, this issue no longer needs to be decided.

Disposition

[26] I make the finding that the child D.A. is in continuing need of protection. The balance of the summary judgment motion is dismissed. The application is adjourned to a list day to be set by the trial coordinator, to be spoken to at that time. The existing order continues. This is not an

appropriate case for costs.

Mr. Justice Timothy Minnema

Released: May 26, 2015