ONTARIO

SUPERIOR COURT OF JUSTICE

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.

COURT FILE NO.: C954/08

DATE: 2015/08/17

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton
Applicant

– and –

R.M. and N.M.
Respondents

Sarah Edwards, for the Applicant

Samuel Garcea for R.M.
James Brown for N.M.

HEARD: April 15, 2015

THe Honourable madam justice Deborah L. Chappel

reasons for judgment

PART I: INTRODUCTION

[1] These are my Reasons for Judgment in connection with a summary judgment motion which the Applicant Catholic Children’s Aid Society of Hamilton (“the Society”) brought in the context of a Status Review Protection application respecting the child G.M., born […], 2010. The Respondent R.M. is the child’s mother, and N.M. is the child’s father. The mother filed an Answer and Plan of Care in this proceeding in which she requested an order granting her custody of G.M. pursuant to section 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “CFSA”). The Society supports the mother’s request for custody of the child. Both the Society and R.M. also seek an order for no access to the father N.M. and a restraining order against N.M. in relation to both R.M. and G.M. The Respondent N.M. requested that the summary judgment motion be dismissed. He seeks an order remitting this matter to a full trial. His position is that G.M. should be placed in his care and custody.

[2] The issues to be determined in this case are as follows:

1. Is there a genuine issue requiring a trial as to whether G.M. continues to be in need of protection?
2. If G.M. continues to be in need of protection, is there a genuine issue requiring a trial regarding the placement and access terms that are in G.M.’s best interests?
3. Is a trial required in order to determine whether a restraining order should issue against N.M.?

[3] For the reasons that follow, I conclude that there is no genuine issue requiring a trial on any of these issues, and that orders should issue as requested by the Society and R.M.

PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[4] I make the findings of fact set out below respecting the family background and the history of the court proceedings in this matter based on the evidence adduced on this motion.

[5] The Society has a history of involvement with the mother dating from 2008. It became involved with R.M. following the birth of her first child, J.M., on March 9, 2008. R.M. placed J.M. in care pursuant to a Temporary Care Agreement from May 9, 2008 until May 14, 2008, as she was suffering from post-partum depression and required time to resolve issues in her relationship with the child’s father. J.M. was returned to her care when the Temporary Care Agreement expired, but R.M. subsequently indicated that she wished to place the child for adoption. J.M. was made a Crown ward without access for the purposes of adoption on November 3, 2008.

[6] The child G.M. was born on […], 2010. The Society became involved with R.M. again after receiving a report from the Toronto Children’s Aid Society on June 11, 2010 detailing concerns about domestic conflict between R.M. and N.M. The Society apprehended G.M. on June 21, 2010 based on the following concerns:

1. R.M. reported serious, regular domestic violence by N.M., including numerous incidents of hitting and kicking her. She indicated that this abuse sometimes occurred when she was holding the baby G.M.
2. R.M.’s family members corroborated the allegations of domestic abuse, noting that R.M. had shown up at family functions with black eyes in the past.
3. Although the Society had taken R.M. and G.M. to a shelter for safety, R.M. had left the shelter to resume cohabitation with N.M. on June 19, 2010.
4. N.M. did not engage with Society workers to address the protection concerns.

[7] The Society commenced a Protection Application respecting G.M. on June 25, 2010, requesting an order for Society wardship. Brown, J. granted a temporary order on that date providing for G.M. to remain in care, with access to the parents in the discretion of the Society and supervised in its discretion. The Protection Application was eventually resolved on November 1, 2010, when Lafrenière, J. made an order placing G.M. with both parents subject to Society supervision for six months. One of the terms of this order was that the parents were to report any further incidents of domestic violence to the Society.

[8] The Society commenced an early Status Review application respecting G.M. on March 23, 2011, requesting a six month supervision order with the mother R.M. only. This request was precipitated by a further incident of domestic violence by N.M. against the mother in mid-March, 2011. R.M. was pregnant with the couple’s daughter, S.M., at the time. R.M. reported that N.M. had assaulted her a number of other times since the supervision order had been granted. When police attended the home during this incident, N.M. also assaulted a police officer. N.M. was arrested for assault against the mother and the police officer. He was subsequently convicted of two counts of assault against R.M. and one count of assault against a police officer on April 7, 2011. On the first appearance of the Status Review application on March 23, 2011, Lafrenière, J. made a temporary order providing for G.M. to remain in the care of the mother R.M., with access to N.M. in the discretion of the Society and supervised in its discretion. She also granted a temporary order restraining N.M. from having any contact with R.M. or the child, and prohibiting him from attending within 500 meters of the mother or the child.

[9] The parents’ daughter S.M. was born on […], 2011. S.M. was apprehended at birth because R.M. had expressed a wish to place the child for adoption. The Society commenced a Protection Application respecting S.M. on June 9, 2011, requesting an order for six months Society wardship. As of that time, the father did not have a well formulated plan for the care of the child. His access with G.M. remained supervised due to the concerns regarding his negative behaviour and history of serious abuse towards the mother. He had not yet addressed any of the Society’s concerns regarding his emotional instability. Furthermore, there were concerns regarding N.M.’s history of refusing to engage meaningfully with Society staff to address protection concerns. N.M. and R.M. did not have family or community supports to provide them with consistent and ongoing assistance with the children. On June 9, 2011, Lafrenière, J. made a temporary order providing for S.M. to remain in the care of the Society, with access to the parents in the discretion of the Society and supervised in the Society’s discretion.

[10] N.M. underwent a mental health assessment by Dr. Abraham and Dr. Fazzari at the request of the Society in July 2011. The assessment results indicated the following:

1. N.M. suffers moderate deficits in overall development of general intelligence, verbal intellect and visual/spatial ability. He falls within the low average range with respect to recall of visual and visual/spatial information.
2. Test results relating to N.M.’s verbal memory suggested that he would experience moderate difficulties in learning and recall of verbal material.
3. The assessors diagnosed N.M. as having overall borderline intellectual functioning.
4. The results of the personality testing indicated that N.M. tends to be emotionally distant, unaffectionate and un-empathetic. These qualities will cause him to have serious difficulties in interpersonal relationships.
5. N.M. did not appear to be suffering from a mental health condition or personality disorder. However, the assessors had concerns respecting his language difficulties, decisions pertaining to meaningful relationships, decisions relating to employment and his ability to manage his anger.

[11] Based on the above-noted findings, Dr. Abraham and Dr. Fazzari recommended that N.M. continue to participate in anger management, and that he be assessed by a neurologist and/or a speech language pathologist having regard for his apparent difficulties with communication.

[12] On August 29, 2011, the Protection Applications respecting G.M. and S.M. were resolved on a final basis. The child S.M. was made a Society ward for six months, with access to the parents in the discretion of the Society and supervised in the Society’s discretion. An order was also made providing for G.M. to remain in the mother’s care subject to Society supervision for six months. The terms of the supervision order respecting G.M. required the father N.M. to continue to attend the PAR domestic violence program offered through Catholic Family Services, refrain from being violent towards R.M. and follow the recommendations of Dr. Fazzari and Dr. Abraham.

(Full judgment text continues exactly as in the source with the same wording and paragraph numbering through paragraph [90], concluding with:)

[90] On the basis of the foregoing, final orders shall issue as follows:

Order #1:

1. The child G.M. continues to be in need of protection.
2. The supervision order dated November 14, 2013 is terminated.
3. The style of cause in the Status Review application herein is amended to show the Respondent R.M. as Applicant and the Respondent N.M. as Respondent.

Order #2:

1. The Applicant R.M. shall have sole custody of the child G.M., born […], 2010 (“the child”) pursuant to section 57.1(1) of the Child and Family Services Act.
2. The child shall reside with the Applicant.
3. The Respondent N.M. shall have no access to the child, with the exception of one goodbye visit to be arranged by the Society.
4. The Catholic Children’s Aid Society of Hamilton shall be served with any originating proceeding and supporting materials to vary this order.

Order #3: Restraining Order

A restraining order shall issue as follows:

1. The Respondent N.M. is restrained from:

a) annoying, molesting, harassing, contacting or communicating directly or indirectly with R.M. and G.M., with the exception of one goodbye visit between N.M. and G.M. to be arranged by the Catholic Children’s Aid Society of Hamilton; and/or
b) coming within 100 meters of R.M.’s residence known to N.M., R.M.’s place of employment known to N.M., or G.M.’s place of school or recreational activities known to N.M.

2. This restraining order is effective immediately and shall remain in effect until the court orders that it is terminated or changed.
3. A copy of this restraining order shall be served immediately on N.M. by personal service.

The Honourable Madam Justice Deborah L. Chappel

Released: August 17, 2015

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton

Applicants

-and –

R.M. and N.M.

Respondents

REASONS FOR JUDGMENT

The Honourable Madam Justice Deborah L. Chappel

Released: August 17, 2015