INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION
PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
COURT FILE NO.: 124/12
DATE: 2015/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION
Kelly Barker, for the Applicant
Applicant
- and -
J.G.
C.M.1
J.W.
C.M.2
D.G.
Edwin W. Paget, for J.G.
Edward F. Kravcik, for C.M.1 and C.M.2
Claude F. Leduc, for the children
D.G., self-represented
Respondents
HEARD: July 2, 2015
The Honourable Mr. Justice J.R. Henderson
[1] This is a summary judgment motion brought by the Children’s Aid Society of the Niagara Region (“CAS”) on a status review application pursuant to s. 64 of the Child and Family Services Act (“CFSA”).
[2] The two children, E.1 and V., are currently 10 and 4 years old, respectively. They were initially apprehended by the CAS from their home in February 2012. At that time, the children were living with their mother, J.G. (“J.G.”), and C.M.1 (“M.”), who is the natural father of V. and a de facto father of E.1.
[3] On July 4, 2012, the two children were placed in the care of their maternal great aunt and uncle, E.2 and R.C. (“the C.”), and the children have remained in their care to date.
[4] On November 18, 2013, there was a finding by this court that the children were in need of protection. A final order was made on April 14, 2014 that the children were to remain in the care of the C. for six months with supervision by the CAS and access in the discretion of the CAS. That order is the subject of this status review.
THE POSITION OF THE PARTIES
[5] In this motion the CAS requests a final order pursuant to s. 57.1 of the CFSA granting custody of the children to the C.; the C. consent to that order as required by the legislation. M. and his mother, C.M.2, support the position taken by the CAS. The Office of the Children’s Lawyer, on behalf of the children, also supports the CAS position.
[6] J.G. has delivered a Plan of Care in which J.G. requests that the children be placed with her subject to CAS supervision, or, in the alternative, that J.G. be granted custody of the children.
[7] J.G.’s mother, D.G. (“D.G”), has also delivered a Plan of Care in which D.G supports J.G. ’s Plan of Care. In the alternative, D.G asks that custody of the children be granted to D.G.
[8] Both J.G. and D.G submit that there are genuine issues that require a trial and they both oppose the CAS motion for summary judgment.
THE LAW
[9] I accept that a status review requires a two-part analysis. First, the court must consider whether the children continue to be in need of protection. Second, if the children continue to be in need of protection, the court must determine the appropriate order to be made in consideration of the best interests of the children. See the case of Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. (1994), 1994 CanLII 83 (SCC), 2 S.C.R. 165.
[10] Because this is a motion for summary judgment brought pursuant to Rule 16(6) of the Family Law Rules, this court should only grant judgment where there is “no genuine issue requiring a trial”. That phrase has been interpreted to mean that “there is no realistic possibility of an outcome other than that as sought by the applicant” or “when the outcome is a foregone conclusion.” See the case of Children’s Aid Society of the Niagara Region v. S.C., 2008 CanLII 52309 (ON SC), 61 RFL (6th) 328 at para. 43.
ANALYSIS
[11] In a status review application, the court should not re-try the initial protection application. The protection order that was made is set in time and is presumed to be a proper order.
[12] In the present case, I find that the CAS workers had been actively involved with J.G. and M.1 and these two children from approximately August 2011 until the apprehension of the children in February 2012. During that time there were significant concerns regarding the cleanliness of the children’s home; the hygiene of the children; the safety of the children; and the emotional well-being of the children. There was evidence of angry outbursts in front of the children and evidence that J.G. did not have the intellectual ability to properly care for the children.
[13] J.G. has deposed that many of these problems arose from the fact that J.G. and M.1 were in a troubled abusive relationship. I note that in September 2012 J.G. separated from M.C.M.1, and in June 2013 she moved into her mother’s home where she continues to reside.
[14] After the children were apprehended in 2012, D.G presented a Plan of Care for the children to live in her home. D.G. ’s Plan of Care was rejected at that time because of D.G’s previous involvement with the Children’s Aid Society of Hamilton; because of D.G’s health problems that affected her mobility; and because of allegations by J.G. that D.G failed to protect her from sexual abuse at the hands of a relative.
[15] The C. ’Plan of Care was supported by the CAS in 2012 because the CAS believed that the C. understood the child protection concerns; because the C. provided a stable permanent home; and because they were willing to foster a positive relationship between the children and their relatives on both sides of the family.
[16] The evidence is clear that the children have flourished in the three years that they have lived with the C.. Both children are healthy and happy. E.1 is progressing in school with some tutoring assistance. In general, the children’s lives have been stable and secure since they have been in the C.' home.
[17] Further, the wishes of the children were conveyed to the court by the Office of the Children’s Lawyer. E.1 is very clear that she wishes to continue to reside in the C.'C.’ home with the C.. She is also very clear that she loves her mother and wishes to have a strong relationship with her mother. For her part, V. adopts E.1’s wishes to remain in the C.’ home.
[18] Still further, despite some disagreements, I accept that the C. have encouraged the relationship that the children have with J.G., D.G, and M.. J.G. has had access to the children every Tuesday evening and weekend access on one weekend per month from Friday to Sunday. That weekend access is usually exercised in D.G’s home, but occasionally it has occurred in the C.’ house. Thus, on some weekends the C. have permitted J.G. to live with them for the purpose of exercising access.
[19] M. has also exercised access to both children, usually at his mother’s home. Recently, E.1 has chosen not to attend access visits with M.C.M.1.
[20] I find that the C. have done everything that could have been expected of them over the past three years. They have provided stability for the children, and they have attempted to resolve all of the child protection concerns. Moreover, they have encouraged the relationships between the children and the children’s extended family.
[21] Regarding J.G. ’s Plan of Care, I find that J.G. has taken some steps to improve her ability to parent. She has attended counselling programs both in group and in one-on-one sessions. She has also arranged for E.1 to attend counselling.
[22] I also find that J.G. has been a good access parent. J.G. has generally exercised all of the access that has been available to her, although I accept that there were times when J.G. was late in arriving and late in leaving the access visits. J.G. also takes E.1 to her tutoring sessions on Tuesday nights, and takes E.1 for her medical appointments.
[23] That being said, there still remain outstanding issues as to J.G.’s ability to care for the children as a custodial or primary care parent. The issues of hygiene and parental capacity have not yet been resolved. Moreover, J.G.’s Plan of Care is based upon J.G. moving out of D.G’s house and obtaining her own residence, something that has not yet occurred.
[24] Regarding D.G.’s Plan of Care, I have many questions that relate to the reasons that D.G. ’s Plan of Care was rejected in 2012. In a summary judgment motion all parties are required to put forward their best case, but in the present motion I have no evidence at all from D.G. Thus, I am uncertain as to the true nature of the relationship between J.G. and D.G, and I am uncertain as to D.G’s ability to parent. Further, I note that E.1 has complained that when she has access at D.G’s home, D.G controls the environment to the extent that E.1 feels that she does not have enough time alone with her mother.
[25] Ultimately, this court must make an order that is in the best interests of the children. In the present case, the best interests of the children strongly favour a custody order to the C. because of the stability and care that the C. can provide to the children; because the children have flourished in the C.' care; because of the security that the C. provide for the children; because the children have expressed a wish to continue to live with the C.; and because the C. have attempted to foster the relationships between the children and their extended family.
[26] Therefore, I find that there is no realistic possibility of an outcome other than a custodial order in favour of the C..
[27] The remaining issue of access, however, is more difficult. All parties agree that J.G., D.G, and M. should continue to have meaningful access, but there have been certain disagreements that have led to ongoing access issues. For these reasons, I will not grant summary judgment for access to be arranged in the discretion of the C.. J.G., D.G, and M.C.M.1 will continue to have access to the children, but the amount and nature of that access are triable issues.
CONCLUSION
[28] For these reasons, on this summary judgment motion, I make the following order:
(i) There will be a final order granting custody of E.1 and V. to E.2 and R.C. pursuant to s. 57.1 of the CFSA;
(ii) The issue of access to the children by J.G., D.G., and C.M.1 will proceed to trial.
Henderson J.
Released: July 3, 2015
COURT FILE NO.: 124/12
DATE: 2015/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION
Applicant
- and -
J.G.
C.M.1
J.W.C.M.2
D.G.
Respondent
REASONS FOR JUDGMENT
Henderson J.
Released: July 3, 2015