This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster– parent or a member of the child’s family.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both
CITATION: CCAS Hamilton v. B. W.-B. and F.M. and S.B., 2015 ONSC 4707
COURT FILE NO.: C-25/14
DATE: 2015-08-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Mona Anis for the Applicants
Applicants
- and -
B.W.-B., F.M. and S.B.
Robert Murdoch for B.W.-B.
Sam Garcea for F.M.
Jennifer Swan for S.B.
Respondents
HEARD: June 26, 2015
The Honourable Mr. Justice R. J. Mazza
Submissions by Ms. Anis
[1] Ms. Anis submitted the matter before the court is a summary judgment motion with respect to the child A.W.M., born on […], 2014. The child has been in care since birth. The parents are B.W.-B., the mother, who is 17 years of age and is represented by Mr. Murdoch through the Office of the Children’s Lawyer, and F.M., the biological father. Ms. Anis, acting as agent for Mr. Garcea, solicitor for F.M., stated that Mr. Garcea took no position, as his client had been noted in default.
[2] On July 21, A.W.M. was found to be in need of protection, the grounds being risk of physical harm and a finding under subsection (l) by which the child was found to be neglected.
[3] In view of the finding, Ms. Anis submitted, the only issue to be determined under Section 57 of the Child and Family Services Act is the disposition, which takes into consideration the best interests tests set out in that section.
[4] On behalf of the Society, Ms. Anis submitted that there is no genuine issue for trial and that the best interests of the child require the court to make an order of Crown Wardship without access.
[5] Ms. Anis then made reference to recent amendments to Rule 16 and submitted that judges are now able to weigh the evidence and make credibility findings pursuant to Rule 16 (6.1).
[6] In support of that position she made reference to the Supreme Court of Canada case Hryniak v Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87.
[7] In turning to the evidence, Ms. Anis submitted that the mother’s plan prior to the child’s birth was to parent the child with F.M., and from the time he was identified as the father at the child’s birth he continued to be involved with the child until April of 2015.
[8] Although there appeared to be a violent relationship between the parents, Ms. Anis submitted they appeared to have misled the Society by deemphasizing the violence.
[9] The mother had described the couple as “inseparable” and that the relationship between her and the father was “stronger than ever”. In short, the mother said, the couples counselling was successful.
[10] Over that period of time the mother minimized the conflict between her and the father, and in any event blaming the conflict on others.
[11] According to the mother, if in fact there was any loud yelling it was the result of stress caused by the Society’s involvement.
[12] As well, Ms. Anis submitted, the mother also indicated that another reason for the volatile relationship between herself and the father was the father’s mother. However, since they had moved into their apartment and away “from the pressures of living in [E.M.’s] home” they have had “no blow ups whatsoever”.
[13] Ms. Anis further submitted that at Tab 2, Volume 4 at “Exhibit B” of the mother’s affidavit Mr. Murdoch provided the Society with a letter. The letter went on to say that the relationship between B.W-B. and F.M. had been relatively peaceful since the last summer of August, 2014; that they had participated in counselling; and there appeared to be only minor trust issues between the parties, which the letter indicated were easily addressed in counselling.
[14] Referring then to Tab 2, Paragraph 8 of the worker’s affidavit, this lack of physical violence was also expressed by the mother to the worker.
[15] Ms. Anis submitted the Society had been receiving the message that there was no problem between the parties. However, Ms. Anis reiterated, that the Society still was not satisfied that the child should be returned to the parents care because they had not made enough progress. This was even before they learned of the peaceful relationship which had been ongoing.
[16] Based on the information presented to the Society by the mother, the Society decided to work with that plan. Accordingly, there was as second Society Wardship order made in January of 2015 which provided access to be expanded to assess and pursue the plan put forward by the mother.
[17] Ms. Anis did, however, state that prior to the incident being discovered, access had been expanded to 23 hours per week. The Society maintained its position that the parents had not made enough progress to have the child returned to their care and made their position known to Mr. Murdoch by a letter, which is found at “Exhibit C”, Tab 2, Volume 4.
[18] However, Ms. Anis stated, in April of 2015, as result of a physical altercation after which both parents were charged with assault one against the other, the mother confessed that there had been an abusive relationship all along. So while the mother was asking for increased access, she was in the middle of an abusive relationship which she had not disclosed to the Society, which consisted of the father’s significantly inappropriate behaviour and his neglect of the child, all of which the mother kept from the Society until after the incident.
[19] Specifically Paragraph 6 refers to the father’s regression as the result of pornography, compelling him to masturbate in front of the child when the mother wasn’t present. The mother also disclosed that she became very concerned about what she called F.M.’s “deteriorating treatment” of the child during access, when he would often yell at A.W.M. and tell him to shut up.
[20] Ms. Anis stated that the mother further disclosed that the altercation was the result of the father discovering that she was texting J.M. The mother, having ended the relationship with F.M., moved in with J.M. two weeks later.
[21] As for the relationship the mother has now commenced with J.M., it is the resumption of a relationship which the two of them began in 2013.
[22] Historically the affidavit evidence shows that on or about November 13, when the mother was 15 and J.M. was 23, a worker visited J.M.’s residence while he was still residing with his wife, following up on an allegation by the mother that J.M. and his wife were smoking pot, J.M. referred to the mother as being psychotic at that time.
[23] Ms. Anis further submitted that the Society went to J.M.’s home on May 13, 2015, and was advised that he works full time at Pizza Hut; is 26 years of age; has a basement apartment in which he is now living with the mother; and has the support of family. Given the history of this relationship, Ms. Anis suggested that there was likely instability in the future.
[24] In conclusion with respect to the mother’s request for her child being returned to her care, Ms. Anis submitted that there is also no plan to protect the child; and there is no evidence of child focus.
[25] Turning to the grandmother’s plan, i.e., S.B., Ms. Anis stated although the parenting capacity assessment of 2009 is a significant factor, it is by no means the only basis for the Society’s motion.
[26] To begin with, S.B. is now caring for four children who are 6, 9, 11 and 14, respectively.
[27] As well, Ms. Anis submitted, there is a concern over neglect of the children’s needs and the misuse of prescription drugs. S.B. has been on a voluntary methadone treatment program since 2013. Accordingly, Ms. Anis submitted, the Society has a concern over adding a 15-month-old fifth child under S.B.’s care, and asked the court if it’s in the child’s best interests to place this child in the home of a marginal parent already parenting four other children.
[28] Ms. Anis reminded the court that in the parenting capacity assessment of 2009 the assessor concluded that S.B. required assistance from her husband to raise the children.
[29] Consequently, Ms. Anis submitted, there is a significant risk that S.B. will be overwhelmed, which would mean the child would likely be brought back into care, which in turn would have a devastating effect on the child.
[30] As for S.B.’s plan of care, Ms. Anis submitted that it can be really be reduced to two reasons: one, she’s parenting four children with no open file and, two, she is the grandmother. Therefore, she is in a position to step up and help her daughter.
[31] As well as being on methadone treatment, there is a history of unstable housing. Ms. Anis reminds the court that S.B. has also a history of neglecting her own children, who were out of her care for two years. Ms. Anis further submitted that the evidence strongly suggests that there will be a breakdown.
[32] The court has an obligation to find the most permanent placement for the child in order to avoid the strong risk of a breakdown in referring to the care by either the mother or the grandmother.
[33] As for the issue of access, again the court must be satisfied the access would be beneficial, meaningful and will not interfere with the child’s opportunity to become adopted. It is the Society’s position that the mother or the grandmother have not established that access should continue.
Submissions by Mr. Murdoch
[34] Mr. Murdoch opened his submissions by reminding the court of its powers under Rule 16, and that the onus is on the moving party to satisfy the court that there is no genuine issue for trial.
[35] In making reference to Rule 16 (6.1) of the Family Law Rules, he noted the court’s expanded powers, which includes the court’s discretion, in the interest of justice to weigh the evidence; evaluate the credibility of an opponent; and draw any reasonable inference from the evidence.
[36] As for the court’s discretion to grant a motion on a summary judgment, the court should exercise its discretion cautiously and only in “the clearest of cases”.
[37] Mr. Murdoch then focused his submissions on why this child should be returned to the mother’s care, thereby establishing a genuine issue for trial.
[38] In expanding on what he considered to be his client’s maternal qualities, he referred to Paragraph 51 of his factum, which referenced Paragraphs 46 to 54 of the affidavit of Carol Konjek of the Society sworn on March 20, 2015, in which she appeared to not have any concerns with respect to the mother and the father’s basic care of the child.
[39] In summarizing those strengths, Mr. Konjek described the following positive steps taken by the mother and father:
a) They were working with the Family Resources Unit;
b) They completed the Beyond Basics Program;
c) They participated in additional programs such as the Suzuki Music Group and the Kiwanis Boys and Girls Club;
d) They attended prenatal care on a regular basis;
e) They accessed counselling through Urban Care;
f) They appear to have abstained from substance and alcohol abuse;
g) The father is in receipt of interim disability support and receives financial assistance;
h) There have been no reports of physical violence between the parties since August 2014;
i) They appear to be well supported by their respective families.
[40] In response to my observation that although the mother appeared to be addressing the child’s basic needs, nevertheless she has been under the watchful eye of the Society in a semi-supervised setting, Mr. Murdoch indicated that in any event the long-term plan of the Society was to return the child to the mother’s care. This was apparent in the Society’s decision to increase access from 6 hours to 23 hours until the altercation on April 21, 2015.
[41] In describing that incident of violence, Mr. Murdoch submitted that when his client struck the father on the forehead it was in response to his threats to her that he would arrange to have the child taken away from her and never allow her to see the child again. This in fact, Mr. Murdoch submitted, was the mother’s worst fear. The father retaliated by threatening the mother with a knife. However, the child was not present during the incident.
[42] Prior to that incident, Mr. Murdoch submitted, the parties appeared to have enjoyed a period of time of a relatively peaceful relationship. This time of peace appeared to be the result of the parties being ejected from the father’s mother’s home.
[43] However, subsequent to the incident of violence, his client disclosed that, at first, the father appeared to be on his best behaviour while in the presence of Society workers, but when the parties were alone, he appeared to be not interested in actually raising the child.
[44] She further disclosed that he continued to demonstrate inappropriate behaviour by his continued use of pornography and his neglect of A.W.M., exemplified by his admission to the Society that at times he would lay him down for a sleep without changing his diaper.
[45] Although Mr. Murdoch submitted the mother did not advise the Society about these aberrations by the father until after the incident of April 21, 2015, it was because she felt she was being placed in an awkward position.
[46] To elaborate, referring to Paragraphs 16 through to 22 of his factum, he submitted that her decision to stay with the father in spite of his inappropriate behaviour was the fact that she was a young parent; the CCAS did not extend its faith in her as a parent; and the father threatened to do everything in his power to make sure the child was a Crown Ward with no access to her. Consequently she felt trapped and feared losing her child.
[47] Mr. Murdoch further submitted that since the parties have separated there is no more violence in his client’s life. With respect to her own parenting, the Society has complimented her on her parenting; the child has a strong bond with her, calling her “mama”; the conflict between her and F.M. is now terminated; she is now able to raise the child in a peaceful and loving environment; and she is therefore prepared to give A.W.M. a permanent home.
[48] Moreover, the mother’s current circumstances have changed dramatically for the better. She has now become involved with J.M., an individual with whom she had a previous relationship and who has experience as a father and who has been responsible for raising a child with disabilities.
[49] To elaborate, Mr. Murdoch referred to the affidavit of his client dated June 10, 2015, and specifically Paragraphs 39 through to 52 at Tab 20. Beginning at Paragraph 39 she describes her relationship with J.M., having known him for a three-year period and that they have never exchanged harsh words. She reminds the court that her relationship with the father was greatly contrasted with her relationship with J.M.; it would be in A.W.M.’s best interests to know J.M. as his father.
[50] Moreover, J.M.’s parents are prepared to provide the parties with furniture in a two-bedroom apartment and transportation when necessary. As well, the family doctors and health care providers are in place.
[51] He also suggested the Society had put his client in a very difficult situation.
[52] He reminded the court of the affidavit of Carol Konjek dated May 28, 2015, in which it appeared that the mother had two choices: to visit her other child, M.B., at Grace Haven or remain in her home and have access increased with A.W.M.
[53] B.W.-B. indicated she wanted to go to Grace Haven, and the father indicated he wanted no more to do with the children and was willing to give up his rights. Because of this, if the mother decided to go to Grace Haven she would not be in a position to care for the child, A.W.M.
[54] In conclusion, he made reference to a series of allegations made by F.M. after the parties’ separation, which are contained in Paragraph 29 of the affidavit of Carol Konjek dated May 28, 2015, which is at Tab 14 of Volume 4. Mr. Murdoch submitted it is hearsay evidence coming from an unreliable source whose relationship with the mother ended on very poor terms.
Submissions by Jennifer Swan on behalf of the maternal grandmother
[55] In referring to Paragraph 45 of Ms. Konjek’s affidavit of May 28, 2015, Ms. Swan submitted that the Society gave basically four reasons why the maternal grandmother should not be considered as a proper kin assessment. They were as follows:
a) Her neglect of the children and domestic violence;
b) Her lengthy history of substance use;
c) Her extensive and recent child welfare involvement;
d) And lastly, it was a short time since her file was closed.
[56] She submitted that those issues could be adequately addressed.
[57] Under the heading of neglect of the children, Ms. Swan addressed a number of issues beginning with the children’s absences from school. Ms. Swan submitted there is no evidence to suggest how often the children were absent from school. In fact, she submitted, over the three-year period between the beginning of November 2012 when the Society opened the file on the maternal grandmother through to April of 2015, when the file was closed the Society simply made a blanket statement, but there were no specifics as to how often the children were absent from school.
[58] To counter that allegation, Ms. Swan made reference to her client’s affidavit of June 15, 2015, particularly “Exhibit D” being the Society’s general summary, which included several specific summaries to the period of April of 2015 when the Society closed its file. Ms. Swan submitted at least as of November 20, 2012, that the children’s attendance at school appeared to be satisfactory. In referring to the second page of the Society’s summary (check the location), the second last paragraph reads as follows: “The children have attended 48 out of 52 days so far this year with 6 to 8 late arrivals on the file”.
[59] However, at the end of the summary when the file was closed, at Page 11 and 12 of that summary report between February and April of 2015, it states that “the children are frequently late, but regularly attend.” And although Ms. Swan submitted that further reference was made to the children depending on J.B. to make sure they attend school, it did not appear to be a serious enough concern for the Society to not close its file.
[60] Moreover, Ms. Swan submitted, other than that reference to the children’s attendance at school, there does not appear to be any other place in the summary that would suggest that the issue had been raised ever again over that three-year period.
[61] As well, Paragraph 42 of Ms. Konjek’s affidavit seems to dilute the concern over school attendance. Ms. Swan submitted that the paragraph indicates that although the children were late for school, their attendance showed improvement. The Society did not have any additional “child protection concerns” and “[S.B.] was demonstrating a willingness ability to meet her children’s needs”.
[62] This alone, Ms. Swan submitted, is a triable issue. There is no evidence as, for example, how often the Society met with the school authorities.
[63] Ms. Swan further submitted that subsequent to the parent capacity assessment report the children were in fact returned to S.B.’s care sometime in 2009, and that they have been in her care for the last six years.
[64] Moreover, there are no specific references to the maternal grandmother’s neglect of the children’s needs between the period of 2012 and 2015. For example, there is no reference to the children not being fed, cleaned, or not taken to doctor or dentist appointments. She does remind the court that the Society did open the file in 2012 as a result of B.W.-B.’s absence at school or that she might be pregnant.
[65] At Paragraph 41 of Ms. Konjek’s affidavit, it seems to be inconsistent with the Society’s concerns. Ms. Konjek’s affidavit indicated that during its involvement between 2012 to 2015, it appears when S.B.’s relationship ended with J.B., the children’s biological father, “she worked hard to meet her children’s needs as a single parent”. This is contrary to the Society’s argument that she has neglected to meet the children’s needs.
[66] Paragraph 64 of her client’s affidavit, the client admitted meeting with the parent analyst and counselling program as recommended by the Society; met with the counsellor on two occasions and was finally told counselling was no longer needed to help her parent the children.
[67] With respect to the concern over S.B. having unstable housing, the evidence in support of unstable housing is vague over the three-year period. Again at “Exhibit D”, Ms. Swan submitted it reads at Page 11/12 “that [S.B.] and the children have moved to a new home. There are no protection concerns about the new home. [S.B.] advises it is a Hamilton Housing home and that it is a safer environment and a better neighbourhood. She has advised she and the children are happy with the move...” Ms. Swan submitted there is very little information, if any, to indicate there was any long-term concern with respect to S.B.’s housing.
[68] Regarding the Society’s concern about S.B.’s substance abuse, Ms. Swan referred to Tab 20 of her client’s affidavit and “Exhibit A”, a letter from her doctor of May 21, 2015. The letter indicated that S.B. was under his care since 2013, has made significant progress in handling stress and her recovery is solid. She has committed to attend all her appointments to continue her total recovery. She has also made significant progress in handling stress.
[69] With respect to whether she can take care of a fifth child in her care, Ms. Swan submitted that she successfully managed five children in her care, one of them being an infant.
[70] And although the parenting capacity report suggested she can only manage the children with a partner, she has been able to manage the children on her own since her separation in October of 2013.
[71] As well, at Tab 17 S.B. set out in her plan of care the various services available in the community to which she is able to access. For example, in her plan of care she has already sought out the daycare provider for A.W.M. Moreover, S.B. is a stay-at-home mom; the youngest child is 6, the oldest is 14. These children go to school. Her past history with the CCAS has made her more aware of the services available to her in the community.
[72] As for the issue of domestic violence between her daughter and F.M. and whether or not this is an indicator of her not having any insight, again she referred the court to “Exhibit D” at Tab 20, Page 11 of 12 pages of the Society’s summary. At Page 11 and 12 she appeared to have demonstrated insight with respect to B.W.-B. and F.M. and “wants to do everything she can to support her daughter”. Any information she may not have had was the result of her not knowing the full extent of the domestic violence until she was added as a party on June 3, 2015. As well, her daughter was guarded.
[73] With respect to the Society’s allegation that S.B. was to blame for the delay in closing the file, in the affidavit of Michelle Marshman, a worker for the Society, sworn June 22, 2015, Ms. Marshman stated at Paragraphs 12 through to 16 that the Society had carriage of this file and that the Society was responsible for all stages of the closing and S.B. simply had to wait for them to respond to her.
[74] Moreover, S.B. has worked with the Society in the past; that there are not four children with high needs, but in fact there are only two. Only two of the children had educational assessments recently, and there was no diagnosis that they had special needs. B.W.-B. has moved out of the home. As for J.B., he has left S.B. with the children. He is homeless and on the street.
[75] So in summary, Ms. Swan submitted, there are a number of trialable issues. In her submissions the Society’s evidence does not meet the test. More evidence needs to be presented to the court. Ms. Swan’s client has sworn an affidavit and has addressed every issue the Society has alleged gave them concerns.
Reply by Ms. Anis
[76] In reply regarding Mr. Murdoch’s submissions that the mother met the basic needs of the child, Ms. Anis submitted it is not about whether or not the mother can meet the child’s instrumental needs, it’s whether or not she’s able to parent the child in the sense that she has the ability to protect the child from conflictual relationships and is able to put the child first.
[77] As for the allegations made by the father, which Mr. Murdoch argued amounted to hearsay, Ms. Anis submitted that the Society is not relying on that information in support of their motion.
[78] Further, although Ms. Anis submitted that the Society had the intention of reintegrating the child with the mother, that reintegration plan was valid until the violent incident which took place on or about April 21, 2015.
[79] As for whether the mother’s relationship with J.M. is stable, Ms. Anis submitted that firstly it was a relationship that began when the mother was 15 years of age and he was 23. The mother then entered into another relationship with another individual, which was filled with violence and jealousy. Almost immediately after ending that relationship, the mother impulsively returned to the relationship with J.M., and therefore this impulsive decision of the mother should raise the question as to whether or not the child should be returned to an unstable relationship in an unstable environment.
[80] As for Mr. Murdoch’s submissions that the source of conflict disappeared when F.M. moved out of their residence, Ms. Anis submitted that the same argument was made when the mother and father moved out of F.M.’s mother’s residence. The evidence shows that the conflict was not precipitated by the father’s mother inasmuch as it continued when the parties resided with each other.
[81] Regarding Ms. Swan’s submissions, Ms. Anis submitted that Ms. Swan failed to provide the court with any documentation regarding, for example, the children’s school attendance, and relied only on the information summary provided by the Society. Furthermore, it is not up to the Society to provide the court with information as to the grandmother’s unstable housing or the children’s lack of attendance at school.
[82] Regarding the ongoing case summary, the document does not make reference to anything which took place over that three-year period, but the summary does provide information that the eldest child continued to be responsible for the children’s continuous attendance at school.
[83] As for the oldest child, the mother appears to still have difficulty with that child; her behaviour is difficult to manage. And the summary indicates that the children who are 6, 9, 11 and 14 remain guarded and closed.
[84] Ms. Anis further submitted that Ms. Swan’s submission that S.B. already has five children in her care is not accurate. The only time she had five children under her care was when she was parenting with her husband, whom the assessor in the parenting capacity assessment identified as the stronger parent whose presence was essential for the reintegration plan to take place. Accordingly, the children would not likely have been returned to the parents had the parties been separated.
[85] In summary, Ms. Anis submitted, we have four children who are in the community who go to school and are articulate, which is dramatically different from a baby who is 15 months old who is unable to talk and is completely vulnerable and dependent on the caregiver for its young livelihood.
[86] Given the fact the child has now been in care for 15 months and given the limitations under Section 70, Ms. Anis submitted that the only order the court should make in the circumstances is an order for Crown Wardship with no access.
Reply by Mr. Murdoch
[87] In reply Mr. Murdoch submitted that should the court decide there was no trialable issue with respect to his client, he supported the submissions made by Ms. Swan on behalf of her client. He submitted that in fact she has indeed presented a trialable issue for this court to consider.
Analysis and Conclusion
[88] In determining whether to grant the motion on a summary judgment, the court has a duty to review the evidence presented by both parties. The evidence presented should be the evidence which the parties intend to call at trial. The evidence should be in affidavit form, but following the recent amendment of Rule 16, specifically Rule 16 (6.1), the court has the discretion to call viva voce evidence if it deems it appropriate.
[89] The moving party on any summary judgment must satisfy the court that there is no genuine issue for trial. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material: (Children’s Aid Society of Toronto v T. (K.) 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736 (O.C.J.).)
[90] A genuine issue for trial requires that there be some connection between a determination of that triable issue and the outcome of the trial. If the determination of the issue will have no bearing on the outcome of the trial, it is not a genuine issue for trial.
[91] In determining whether a Society has met its obligation of showing that there exists no genuine issue for trial, Mr. Justice Heeney in the case of Children’s Aid Society of Oxford (County) v J. (J.) 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208 (S.C.J.) stated:
“As to what constitutes “no genuine issue for trial, the Ontario Court of Appeal has equated that phrase with no chance of success”, and “plain and obvious that the action cannot success” (Prete v Ontario 1993 CanLII 3386 (ON CA), 16 O.R. (3d) 161, leave to appeal to SCC refused [1994] S.C.C.A. No. 46, 110 D.L.R. [4th] vi.”
[92] As Justice Chapnick stated, the outcome “is a foregone conclusion” (Catholic Children’s Aid Society of Metropolitan Toronto v O. (L.M.) 1996 CanLII 7271 (ON SC), 139 D.L.R. 4th 534).
[93] The responding party faced with a prima facie case for summary judgment must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials or self-serving affidavits and not supported by specific facts showing that there is a genuine issue for trial must be insufficient and defeat a claim for summary judgment (Children’s Aid Society of Metropolitan Toronto v A. (M.) 2002 CanLII 53975 (ON CJ), [2002] O.J. No. 2371 (O.C.J.).
[94] Case law has indicated that the responding party has the obligation to put “their best foot forward”.
[95] In arriving at my decision, I have reviewed the affidavit evidence and particularly the references made to various paragraphs and exhibits attached to those affidavits, and I have considered the parties’ submissions.
[96] First regarding the evidence pertaining to the mother, although it is true the Society has made some positive observations of the mother and the father as referred to by Mr. Murdoch, I find that those observations cannot be overshadowed by the Society’s discovery of the true relationship between the mother and father, which became evident on April 21, 2015.
[97] Although the incident of violence which resulted in assault charges being laid against both parents, further revelations made by the mother with respect to the father’s behaviour towards the child are very serious, revealing an individual who is not only violent, but has admitted to being neglectful of the child and has not denied his abhorrent sexual behaviour in the child’s presence.
[98] What is most concerning about this kind of behaviour is that the mother failed to advise the Society from the outset of her discovery of this behaviour, thereby placing the child at risk of physical, if not, also emotional harm.
[99] The mother’s observations came only after separation of the parties and the father’s threats to use his best efforts to make certain she would never see her child again. This behaviour as demonstrated by the mother can only be described as irresponsible, and certainly not behaviour that would reflect her intention to act in the child’s best interests.
[100] It appears, therefore, that although she had advised her lawyer that things had been relatively peaceful between her and the father as of August 2014, the facts showed otherwise. This gives the court a great deal of concern as to her lack of understanding in ensuring the child was well protected.
[101] As for her new relationship with J.M., this gives the court very little comfort. First, I question the judgment of J.M., who at the age of 23 had a relationship with a 15 year old. A fifteen year old whom he advised the Society worker was psychotic. Yet two years later his attitude towards the mother dramatically took an about face without explanation.
[102] Although he may have had some experience in raising his own child, this does not lead the court to conclude that he is able to help raise a child with this very young mother in what I feel, will be for the child, an uncertain environment.
[103] Given that the court must be concerned about providing this child with a permanency plan, the court cannot place the child in the care of two people who may or may not have a stable relationship, given the already unfavourable history of that relationship until now.
[104] As well, given what I find to be the mother’s inability to protect the child when required, this court cannot conclude if the relationship between her and J.M. terminated, that she would be able to care for the child as a single mother on a permanent basis.
[105] Accordingly with respect to the mother, I find the child would not be properly cared for; that if the matter with respect to the mother were to go to trial, the foregone conclusion would be Crown Wardship with no access.
[106] As for the maternal grandmother as a possible caregiver, I have reviewed the material very carefully. I note that the maternal grandmother has made great strides in improving herself and that she appears committed to overcoming her drug habit and using her best efforts to raise her other children.
[107] However, I also note that her file was opened in November of 2012 and closed in 2015. The case summary provided by the summary in “Exhibit D” to the maternal grandmother’s affidavit suggests that shortly after the file was opened there were significant problems with B.W.-B. regarding her pregnancy and her failure to attend school; B.W.-B.’s conflict with the maternal grandmother; B.W.-B.’s conflict with her own father; friction between B.W.-B.’s grandmother and the maternal grandmother and her husband; conflict between B.W.-B. and the paternal grandfather; and the efforts to provide B.W.-B. with some stability through her grandmother. The summary then jumps to February of 2015 through to April of 2015 after which the file was closed.
[108] Although the latter part of the summary for that period of time appears to set out some positive observations by the worker with respect to the maternal grandmother, I have no information other than the fact, for reasons unknown, that the file remained open for a three-year period.
[109] I also notice although there appeared to be improvement within the family dynamics, the summary also referred to the fact that the oldest son, J.B., has been estranged from the family; no news as to his whereabouts for the last few months; and that the maternal grandmother can assume “that he is continuing to misuse substances”. It was J.B., as I understand it and according to the summary, who had been responsible for making certain the children attended school.
[110] I further note from the summary that the maternal grandmother has agreed to “the safety plan that J.B. cannot have unsupervised contact with the children and [the mother] cannot live in the family home”.
[111] I further note in the summary that “the children remain very guarded and closed and already report that [S.B.] is their primary caregiver”. And although “the children have not reported any protection concerns”, it also noted that the mother is not allowed to live with the maternal grandmother, and the oldest son cannot have unsupervised access with the children until he is “sober and completed his substance program”.
[112] My reason for making such observations is that it appears the maternal grandmother has a monumental responsibility to her four other children. Moreover, the family constellation has within it children who appear to be dealing with issues which have not been disclosed.
[113] As well, the maternal grandmother just recently began seeing the child in the last six weeks and the child has never been in her care.
[114] In making a decision on a motion for summary judgment, the court must also take into consideration the best interests of the child under Section 37, subsection (3) of the Child and Family Services Act. This section reads as follows:
BEST INTERESTS of CHILD – Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care of treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationship and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
The importance of that continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[115] In my consideration of the criteria, although the facts may not pertain to each and every one of the criteria, they do apply significantly to some of them.
[116] To begin with, given that the child has been in care for 15 months, and according to the maternal grandmother’s affidavit, has had limited access to her, namely 2 hours a week since the beginning of May, 2015, it cannot be said that there has been compelling evidence of a positive relationship and strong emotional ties between the maternal grandmother and the child which would ensure the child’s secure place as a member of the family.
[117] Although I have the maternal grandmother’s affidavit which explains her efforts to improve her own circumstances and that of her children, another significant piece of objective evidence is the parenting capacity assessment of 2009. Although it may be argued that the assessment is dated, nevertheless I find it is significant objective expert evidence, which I have reviewed and considered.
[118] I am also concerned about the possible disruption that may be caused to the child’s development and security upon J.B.’s return home, if and when that happens. I am also concerned about the maternal grandmother’s obligation to supervise visits by the mother and the energy she will require to parent her four children, which may be ultimately at the expense of this child.
[119] Accordingly, I find the child could likely suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of the maternal grandmother. The risk to the child’s well-being is too great.
[120] In the case of Kawartha-Haliburton CAS v W.M. 2003 CanLII 2441 (ON SC), [2003] O.J. No. 3903 and the case for the proposition that the court must assume that a responding parent has “put their best foot forward” in the responding material and that is the most they have to offer at this 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 parents will succeed”.
[121] In the case of A.W.M., he has already been in care for 15 months, which is a reasonable enough period of time to leave this child in limbo without a reasonable certainty that the maternal grandmother will have the ability to care for him in such a matter that will ensure him permanency.
[122] Moreover, the children are not to be used as therapeutic tools by their parents. “The needs and desires of access parents are secondary to the best interests of the children” [Worthington v Worthington 2000 CanLII 22469 (ON SC), 13 R.F.L. (5th) 220 [2000] O.J. No. 4853].
[123] In the case before me in the circumstances that I have described, I find that the child at best would be an experiment or a therapeutic tool to be placed in this untried and therefore uncertain environment. I am not satisfied that the evidence presented to me suggests that such a genuine issue for trial exists, and that the consequence is more likely to be the damaging effect on the child through a delay in the disposition of the case.
[124] Although I appreciate that the maternal grandmother has made her best efforts to raise the four children under her roof, I am not satisfied that placing the child under her care will provide this child with the permanency and security to which he is entitled.
[125] As for whether there should be any access, the test is whether continued access is beneficial and meaningful from the child’s perspective (Children’s Aid Society of Ottawa-Carlton v C. (A.) [2007] O.J. No. 1322). As well, in addition to Section 59 (2.1) requiring access to be beneficial and meaningful, it must also “not impair the child’s future opportunities for adoption”.
[126] I find in the case before me that any continued access between the child and either the mother or the maternal grandmother would likely impair the child’s future opportunities for adoption.
[127] Accordingly, since I find that there is no genuine issue for trial on the evidence presented either by the mother or the maternal grandmother, there will be an order for Crown Wardship with no access.
Mazza, J.
Released: August 7, 2015
CITATION: CCAS Hamilton v. B. W.-B. and F.M. and S.B., 2015 ONSC 4707
COURT FILE NO.: C-25/14
DATE: 2015-08-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Applicants
- and -
B.W.-B., F.M. and S.B.
Respondents
REASONS FOR JUDGMENT
Mazza, J.
Released: August 7, 2015