ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C40/14
DATE: 2015-08-07
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
K.B. (mother)
And
M.W.K.J.W. (father)
Respondents
Kory Mikalski – Counsel for the Applicants
K.B. (mother) – Self-Represented
John Grant – Counsel for the father
HEARD: August 7, 2015
THE HONOURABLE MR. JUSTICE A. PAZARATZ
This is a summary judgment motion in relation to three children J.W., age four; M.W., age three, and S.W. who is almost two. Their parents are each 25 years old.
The motion was brought by the Children’s Aid Society of Hamilton (“the Society”) on June 17, 2015, seeking a final order without a trial, for the following relief:
a. A finding that all three children continue to be in need of protection
b. An order that all three children be made wards of the Crown and placed in the care of the Society.
c. An order that there be no access
d. Waiving the 10 day approval period for the draft order
e. Service on the mother and father to be by regular mail to their last known address
- The summary judgment motion is brought within a Status Review Application brought by the Society on December 12, 2014, in relation to the final order of Justice Chappel dated July 28, 2014. That order – pursuant to minutes of settlement signed by both parents when they were represented by counsel – included the following terms:
a. The children were found to be not of the Catholic Faith
b. They were found to have Aboriginal heritage and to be non-Indian and non-native within the meaning of the Child and Family Services Act
c. They were found to be in need of protection pursuant to s. 37(2)(L) of the Child and Family Services Act.
d. All three children were made Society wards for six months
e. Access to the parents was to be in the discretion of the Society and supervised in its discretion
Each parent retained separate counsel in relation to this Status Review Application – the same counsel they had when they consented to the July 28, 2014 order. Each parent filed an Answer.
But the father has now signed minutes of settlement consenting to all of the relief being requested by the Society. He no longer wishes to be involved with the Society or with the children, and he did not attend today’s motion.
The summary judgment motion relates to relief sought against the mother.
However the mother is no longer fully participating in these proceedings.
a. On April 17, 2015 her former solicitor brought a motion to be removed from the record.
b. On April 24, 2015 Justice Mazza granted that relief
c. On June 24, 2015 the now self-represented mother was present in court when Justice Mazza endorsed that the Society would be bringing a summary judgment motion. The Society’s materials were to be filed and served by June 26, 2015. The mother’s responding materials were to be served and filed by July 17, 2015. Reply and factums were to be exchanged by July 27, 2015.
d. The Society served and filed all of its materials on time. I have reviewed four lengthy affidavits filed by Society workers; as well as a factum and Book of Authorities filed by the Society.
e. The mother has filed no materials in response to the Summary Judgment Motion.
f. The mother had previously been advised this matter was on the current sittings. I am advised by this court’s trial co-ordinator that two separate telephone messages were left for the mother yesterday, advising that the matter would be heard at 10 a.m. today.
g. This morning the mother did not attend.
h. I was advised that this morning the Society worker telephoned the mother who indicated that she would not be coming to court because she had stomach flu.
i. I am further advised that when the Society worker asked the mother what her position would have been had she attended court today, the mother indicated she was still hopeful that her own mother would put forward a plan to care for the children.
j. However, the idea that either the maternal grandmother or the paternal great grandmother might come forward with a proposal to care for the children had previously been raised by the parents. Neither of those family members – and indeed no family members or other members of the community – have ever presented a plan to care for any of the children.
There is no reason for this motion not to proceed, and indeed it is in the best interests of each of these children that this matter should be finalized.
The children have been in care continuously since April 28, 2014 when they were apprehended. That’s approximately 15 months, which exceeds the amount of time children of these ages can remain in care pursuant to the Child & Family Services Act (“CFSA”).
The Society had been involved with the family since February 2014. Among the initial concerns:
a. Professionals had reported that the parents were failing to attend medical appointments for M.W. and S.W..
b. This was particularly troubling regarding S.W. because she had been born premature at 28 weeks and required extensive medical appointments and follow-up.
c. Between February 2014 and April 2014 the parents continued to miss important medical appointments and follow-up for the children.
d. On April 10, 2014 a doctor on the growth and development team at McMaster University Medical Center advised the Society that S.W. was responsive but showed early signs of neglect and appeared delayed due to a lack of attention rather than neurological issues. The mother denied that S.W. was missing medical appointments. She also denied concerns about S.W.’s development.
- Apprehension occurred as a result of the following:
a. On April 28, 2014 a doctor reported to the Society that S.W. had a bruise on her left lower jaw with a small hematoma.
b. The doctor was concerned because of the size of the bruise and because it did not correlate with the father’s explanation that S.W. had been scratching herself.
c. That same day, the father refused to allow a society worker to access the parents’ home to assess the safety of the children.
d. The father also refused the police access into the home. As a result, police officers had to forcefully push their way into the home.
e. The home was observed to be cluttered, unsafe, and hazardous. Society workers observed garbage, old food, dirty clothes, dirty diapers, and a strong foul odour throughout the second level of the home.
f. The children and their clothes were observed to be extremely dirty.
g. S.W. had a large bruise on her cheek.
h. M.W. had a severe diaper rash.
As a result of the parents’ lack of cooperation; the hazardous state of the home; and S.W.’s unexplained injury, the children were apprehended from the parents care that same day and placed in the care of the Society.
Investigations were launched by the Child Advocacy and Assessment Program (“CAAP”) and the Child Abuse Branch (“CAB”) of the Hamilton Police Service.
In June 2014 CAAP reported the following in relation to S.W.’s injuries:
a. She had a large, swollen bruise covering most of her left cheek.
b. Despite thorough assessment, no medical cause for this bruising was found.
c. There was no possible way S.W. could have caused the bruising on her face. Pinching could not have left such a mark.
d. A significant crushing/impacting externally applied force must have been applied to her left cheek to cause the degree of injury.
e. No plausible accidental mechanism of injury had been described by the parents.
f. The injury to S.W.’s cheek was highly suspicious for significant inflicted trauma.
g. S.W. underwent an MRI which revealed that she also had a very small and localized subdural hemorrhage.
h. There was no medical cause to explain the presence of the intracranial bleeding that was found.
i. The intracranial bleeding that was found was completely unrelated to the older, resolved bleeding deeper down in the brain associated with her prematurity and which was identified separately on the MRI.
j. There was no accidental trauma to explain the subdural hemorrhage.
k. The simultaneous presence of unexplained bleeding into the skin of S.W.’s left cheek and into the space between her skull and her brain on the left side of her head was very concerning.
l. The absence of a medical or accidental explanation for the child’s bruising or subdural hemorrhage makes the findings highly suspicious for being the result of inflicted head trauma.
- In June 2014 CAAP reported the following in relation to M.W.:
a. She was found to have profound gross motor and language delays
b. The degree to which constitutional and environmental factors had contributed could not be specifically determined.
c. M.W. was in need of immediate and intensive services.
- That same month CAAP reported the following in relation to J.W.:
a. He had made spectacular gains with respect to his social development during the five weeks following apprehension.
b. His speech had improved significantly after coming into care.
c. But he still had profound expressive and receptive language impairment.
Following the CAB investigation, both parents were charged with neglect of the children under the CFSA. They have also been charged with two counts of criminal negligence and two counts of failing to provide the necessities of life under the Criminal Code. These charges remain outstanding.
The very detailed Society materials set out a compelling narrative in relation to the request for summary judgment:
a. Over the past year the parents have failed to demonstrate that they are motivated or committed to working toward the children’s return to their care.
b. The Society has repeatedly told the parents they were expected to attend the children’s medical appointments and access visits, but for the most part they have failed to do so.
c. Despite verbal and written reminders, between July 2014 and April 2015 the parents (individually or jointly) only attended 5 out of approximately 34 medical appointments regarding the children. The last appointment the parents attended was on February 9, 2015.
d. The parents’ attendance for supervised twice-weekly access visits has been very inconsistent. Their access has been placed on hold both voluntarily by the parents and by the Society due to their non-attendance. There have been large gaps in access. They have not attended access since January 2015. Access was placed “on hold” in March 2015. On April 13, 2015 the father advised the Society he would not be attending any further visits with the children. In April 2015 the mother advised the Society she was unsure whether she wanted her access to be reinstated. Neither parent has requested any resumption of access.
I accept the uncontradicted evidence of its workers that the Society has made significant and repeated efforts to maintain contact with the parents and assist the family -- but that both parents have been uncooperative and unresponsive.
All of the children are doing well in their foster placement but they have special needs and they will each require ongoing involvement with professionals and services:
a. J.W.’s language skills have developed steadily since coming into care, but he is still receiving speech and language therapy.
b. M.W. was assessed as delayed in her speech and language, and is receiving speech therapy. When she came into care she appeared to lack muscle strength, co-ordination and control. She is receiving occupational therapy and physiotherapy. Her gross motor skills have developed quite well.
c. S.W. is still being followed medically in relation to her premature birth. She will be required to attend follow-up appointments for audiology, neurosurgery, and growth and development.
The children require permanency in a safe, secure and loving home with caregivers who are able and willing to meet their individual special needs.
There are no alternative caregivers who have presented a plan to care for the children.
As stated, this is a motion for summary judgment brought pursuant to Rule 16 of the Family Law Rules. The Society has filed very detailed materials pursuant to Rule 16(4) in support of its contention that there is no genuine issue requiring a trial.
Rule 16(4.1) requires that a responding party must set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party has an obligation to “put their best foot forward”; to present as much evidence as they have, to satisfy the court that a trial is necessary.
As noted, despite the fact that the mother was present in court on June 24, 2015 when Justice Mazza endorsed that she would have to file her affidavit by July 17, 2015 and her factum by July 27, 2015 – she has never filed any materials in response to the summary judgment motion.
In the absence of any responding materials or factual dispute, it is not necessary for me to consider the court’s broadened powers arising from recent amendments to Rule 16.
I am persuaded by the Society’s evidence, and I find that there is no genuine issue for trial in relation to any of the relief sought by the Society.
I am satisfied that each of these children continues to be in need of protection. They are young and vulnerable. They had all experienced deficits or harm while in the care of the parents. They have each made significant progress in foster care, with minimal involvement or participation by the parents. They require stability, permanence, and consistent love and attention.
There is no possibility that any of these children could be returned to the care of either of these parents – even under supervision – without exposing the children to significant risk of injury, neglect, or other harm. Each parent lacks the skills, insight and commitment to care for even one child – let alone three – in the foreseeable future.
Of the alternatives available pursuant to section 57(1), Crown Wardship is the only realistic and safe option -- particularly bearing in mind that all of these children have already been in care longer than the amount of time permissible under section 70.
I have considered the best interests of the children, as set out in section 37(3).
I have taken a child-centered approach, reflecting the paramount purpose of the legislation as set out in section 1(1).
I am satisfied that the Society has made reasonable efforts to assist the family. No other community placements appear to be available. No less disruptive option exists.
Having determined that summary judgment should be granted in relation to Crown wardship, I also find that there is no genuine issue for trial in relation to access.
Once there is an order for Crown wardship, the focus of the Act is to establish a permanent and stable placement for the child. The Society has an obligation pursuant to section 63.1 of the CFSA to make all reasonable efforts to assist a child who is made a Crown ward to develop a positive, secure and enduring relationship within a family through one of the following:
a. An adoption.
b. A custody order under section 65.2(1).
c. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.
- There is a presumption against access where a child has been made a Crown ward. Section 59(2.1) provides that a court shall not make or vary an access order with respect to a Crown ward unless the court is satisfied that:
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption.
The onus is on the parent to satisfy both parts of this conjunctive test. The father consents to a no access order. The mother has not filed any materials to address either aspect of the s. 59(2.1) test. Based on the evidence before me, I am unable to find that the mother’s access to any of these children is beneficial and meaningful.
Final Order:
a. The children J.W., M.W. and S.W. are all found to be still in need of protection.
b. The children J.W., M.W. and S.W. are each made wards of the Crown and placed in the care of the CAS of Hamilton.
c. There shall be no access to any of the children.
d. Approval of the order is dispensed with.
e. Service of this order on the mother and the father shall be by regular mail to their last known address: (deleted).
Pazaratz, J
Released: August 7, 2015
COURT FILE NO.: C40/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of Hamilton
Applicants
And
K.B. (mother)
And
M.W.K.J.W. (father)
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: August 7, 2015