BRACEBRIDGE

COURT FILE NO.: FC-13-34-00

DATE: 20150917

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SIMCOE MUSKOKA CHILD, YOUTH AND FAMILY SERVICES, Applicant

AND:

K.V., B.B. AND R.I., Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: L. Doughty, for the Applicant

T. Cowie, for the Respondent K.V.

U. Domazar, Duty Counsel, for the Respondent B.B.

Respondent R.I. not appearing

HEARD: July 17, 2015

ENDORSEMENT

Introduction

[1] K.V. is the mother of two children, E.I. who was born on […], 2007 and G.V-B. who was born on […], 2012. Those children were removed from her care in January, 2013. At the time of the hearing of the motion E.I. had been the Society’s care for approximately one year and eleven months; prior to coming into care E.I. had resided for some time with his paternal grandmother and later the paternal grandfather and spouse. When the motion was argued, G.V-B. had been in Society care for approximately two years, four months.

[2] Although K.V. suffered severe challenges as to substance abuse and unsafe relationships, she went to residential rehabilitation and made significant progress for almost a year before using on one occasion during contact with her abusive former partner. She says she has not used or had contact with her former spouse since. The issue therefore raised in this motion for summary judgment is whether that slip is sufficient to permit summary judgment for Crown wardship without access, considering the fact that the children have both been in care for a significant period of time, well outside the timelines set out by s. 70 of the Child and Family Services Act[1] (the “CFSA”).

[3] The original motion was for a finding that the children were in need of protection and that they be made crown wards without access to the parents for the purposes of adoption. In fact, on June 6, 2013, G.V-B. was found on consent to be a child in need of protection pursuant to s. 37(2)(b) and (g) of the CFSA. At the argument of the motion, all parties agreed to a finding that E.I. was in need of protection under s. 37(2)(b) and (f) of the CFSA. The only issue in this summary judgement motion was therefore disposition.

[4] R.I. is the father of E.I. and B.B. the father of G.V-B. Both were previously noted in default. However by order of Wood, J. made on consent on June 11, 2015, B.B. was given the right to serve and file an answer which he apparently did several days prior to that date. B.B. was represented by duty counsel at argument and filed an affidavit in response to the motion for summary judgment. K.V. has been represented by counsel throughout and also filed responding materials.

[5] For the reasons set out below I have determined the following:

a. There shall be an order to go as requested in paragraphs 1 and 2 and 8 and 9 of the Notice of Motion at tab 5 of Vol. 2 of the Continuing Record;

b. E.I. shall be found to be in need of protection pursuant to s. 37(2)(b) and (f) of the CLRA;

c. Otherwise, the motion for summary judgment is dismissed subject to the issues at trial to be limited to those set out below.

Background Facts

[6] I had mentioned above that the children have been in care for period of time well in excess of the limits set out the CFSA. This is largely due to the fact that the Society has had some reason for optimism that the children, or at least G.V-B. could be returned to the care of K.V. This is because, prior to May 9, 2015, K.V. has had significant success in maintaining her sobriety, in maintaining consistent contact with her children and finally in extricating herself from her abusive relationship with B.B. The facts support the contention that the Society has been cognizant of its duty to return the child or children to the care of the person who had care and control immediately prior to the children’s apprehension and that they had worked with K.V. to that purpose: see s. 57(3) of the CFSA.

[7] It is to be noted as well that on January 31, 2013, when both G.V-B. and E.I. were apprehended, the child was in the care of both K.V. and B.B. Although B.B. would theoretically have had a right to claim return of the both children under s. 57(3) noted above, he has chosen not to do so in his Answer. He made no claims whatsoever concerning E.I. It is B.B.’s position that the G.V-B. should either be placed with his mother, K.V. or alternatively remain in the care of the Society subject to access in his favour. B.B. did not make a claim for or set out facts which would support return of G.V-B. to his care.

[8] Accordingly the focus of this matter for both in the Society and this Court lies in whether these children or either of them can be returned to the care of K.V. with or without Society supervision, which, other than Crown wardship, is the only remedy now available in this proceeding: see s. 70 of the CFSA.

[9] K.V. has been challenged on a number of levels and the Society has been involved in her life since 2007. K.V.’s challenges include her poor choice of partners as well as her drug use. Her drugs of choice appear to be crack cocaine as well as opiates such as OxyContin and fentanyl.

[10] The drug use and poor choice of partners are parallel paths resulting in the parties being in court regarding both children.

[11] A useful outline of the history of this matter and the Society involvement in this matter are set out summaries of both the facts and of Society services provided to the parties found in paragraphs 10 and 11 respectively of the Society’s Factum. For the purposes of this motion I have attached those summaries as a schedule to this endorsement. I note that both of these summaries appear to be supported by the evidence and that neither summary is contradicted by any of the Respondents’ material filed in opposition to this motion.

[12] E.I. was born on […], 2007. At that time, K.V. and R.I. were living together. Within six months of E.I.’s birth, there were reports to the police of domestic violence within the household with E.I. present. At that time R.I. was living in the household with K.V. The first referral to the Society was on April 12, 2007 in respect of domestic violence and drug use by K.V. and R.I.

[13] There were a number of subsequent domestic violence and drug use incidents. In December 2009 E.I. was placed in the Society care under a voluntary service agreement based upon referrals to the Society that R.I. hurt E.I., leaving scratches and bruises. In April 2010 E.I. was returned to K.V.’s care and by the summer of 2010 K.V. was in a relationship with B.B.

[14] It appears that the Society had serious concerns about B.B. In 2010 soon after the Society became aware of the relationship K.V. agreed to sign a voluntary service agreement preventing B.B. from being present in the home. However by November 2010 there was an incident involving R.I. who assaulted both B.B. and K.V. E.I. witnessed that incident.

[15] By August 2011 B.B. had returned to reside with K.V. On […], 2012 G.V-B. was born. By August 2012 B.B. was asked by the Society to leave the home and a second voluntary service agreement was entered into addressing protection concerns. The reason for the voluntary service agreement was approximately four domestic incidents which occurred between B.B. and K.V. subsequent to G.V-B.’s birth. Again E.I. was present for most if not all of those occurrences.

[16] Apparently B.B. did not leave the home. By January 2013 K.V. moved into a women’s shelter. On January 31, 2013 K.V. and B.B. had an altercation in the presence of the children. Later on, K.V. returned to the home and overdosed on fentanyl. She was removed by paramedics in the presence of E.I. E.I. was placed with his paternal grandmother, S.I. after K.V.’s drug overdose. G.V-B. was taken into Society care and on February 5, 2013 a temporary order was made on consent placing G.V-B. in the Society’s care with supervised access to each parent for one and one-half hours per week. Since that date G.V-B. has remained in Society care subject to access in K.V.’s and B.B.’s favour.

[17] Unfortunately this was not the end of K.V.’s misadventures. A domestic incident occurred on May 2013 between herself and B.B. By the summer of 2013 K.V. advised the Society worker that she was involved in an ongoing criminal matter involving a drug purchase. Between October 24 and December 17, 2013 K.V. exercised no access whatsoever to G.V-B.

[18] E.I.’s stint with his paternal grandmother’s home ended in July 2013. On August 27, 2013 after E.I. had been in the care of the paternal grandfather for a number of weeks, he came into Society care. E.I. has remained in Society care since then.

[19] According to the worker’s affidavit, between December 2013 and June 2014 K.V. attended at the Nipissing Detoxification and Treatment Centre and was there for 21 days. She was subsequently admitted to Dilico Adult Residential Treatment Centre in Thunder Bay for a period of eight weeks. She later enrolled in a supervised treatment program through the Ontario Addiction Treatment Centres (OATC) and, up to May 9, 2015, appears to have maintained her sobriety since that time.

[20] By the period between June and December 2014, according to the worker, K.V. “appeared to me to have gained insight and accepted some responsibility in terms of her choices of failing to protect her children from this exposure domestic violence (sic) and her relationship to B.B.”[2] She began to have unsupervised access to G.V-B. and by December 2014 the Society was offering “generous periods of unsupervised access with G.V-B.”[3] including overnight visits. She appeared to be keeping her distance from B.B. who continued to have supervised visits. B.B. was living in Huntsville while K.V. was living in Bracebridge. According to the worker B.B. continued to use marijuana and was “fixated on re-establishing contact with K.V.”[4] He eventually made this happen.

[...continued exactly as in the source text...]

McDERMOT J.

Date: September 17, 2015