ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-03-314

DATE: 20150929

BETWEEN:

SIMCOE MUSKOKA CHILD, YOUTH AND FAMILY SERVICES

Applicant

– and –

L.P.

Respondent

J. Wallace, for the Applicant

Self-Represented, for the Respondent

HEARD: September 28, 2015

ENDORSEMENT

WARNING

This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8)

76(11)

85(3)

PROHIBITION: IDENTIFYING CHILDREN – 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.

PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

OFFENCES – A person who contravenes subsection 45(8) or 76(11) (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.

SUTHERLAND J.

[1] The Respondent L.P. (“Respondent or Mother”) brings a motion requesting leave to bring a status review of a final order of Justice Wildman dated August 16, 2013 flowing from a twenty-nine day trial. The Mother wishes to bring a status review to allow her to obtain access to the child, A.S.P., born March 31, 2001. Wildman J. in her decision made A.S.P. a crown ward without access.

[2] The Applicant has also brought a motion to dismiss the motion of the Respondent seeking leave to bring a status review application.

Brief Background

[3] A.S.P is presently fourteen years of age. He has been in society care for approximately three and one-half years. After the final order of Justice Wildman dated August 16, 2013, the Respondent has had no access to A.S.P.

[4] On May 19, 2015 the Respondent commenced an application for status review for ward or former crown ward.

[5] On July 9, 2015, this matter came before the court. At that time, the court pointed out the fact that the application for status review brought by the Respondent does not comply with s. 65.1(5) of the Child and Family Services Act (CFSA). The fact A.S.P has been in foster care for approximately three years, leave to bring that application is required. Further, on that date, the status review application was withdrawn by the Respondent and leave was granted to her to bring a motion in Barrie seeking leave to bring a status review application. This is set out in the endorsement of Wood, J. dated July 9, 2015.

[6] The applicant has put forth affidavit material that since the order of Wildman, J., A.S.P has been improving. As Ms. Ellen Cowden deposes in her affidavit of September 22, 2015 at para. 9:

Ms. D. (the foster mother of A) reported to Ms. Gray (the child and care worker for A) that A’s behaviours are “night and day” compared to when he had access with Ms. P. A does not display anger like he used to. Ms. D. advised me directly that A has no more physically aggressive behaviours and she has not had to use any “holds” in years. Ms. D. described A to me as a “young man”.

[7] In contrast, the Respondent states at para. 11 of her affidavit sworn August 19, 2015:

I humbly request of the courts the ability to work with the therapists (assisting A) learning the techniques implemented. Any training, assessment and counselling that I may require with the Children’s Aid Society assistance and direction along with any other facilities that are available for me, with the goal of helping A to achieve adulthood un-impeded by his past, a bright young individual.

[8] The Respondent also has not provided any evidence that she is attending any therapist or psychotherapy on a consistent basis to deal with her issues and particularly, her issues that resulted in A.S.P. being made a crown ward in August, 2013.

Wildman J.’s Findings of Facts

[9] Wildman J. in her decision of August 16, 2013, makes findings of facts following the twenty-nine day trial which are pertinent with respect to the motion brought by the Respondent. These findings of facts include:

(a) The Respondent Ms. P. displays no understanding or willingness to work with the Applicant to search for any answers to A.S.P.’s challenges.

(b) The Respondent displayed no insight into A.S.P.’s difficulties or how the Respondent may have contributed to them.

(c) A.S.P. cannot be returned safely to the Respondent’s care. He acts out physically and the Respondent cannot manage him, physically, if nothing else. A.S.P. is too much for his mother to handle.

(d) A.S.P. requires an insightful, sensitive caregiver who appreciates his special needs and can work with his various therapists and medical professionals to assist him.

(e) That the evidence overwhelmingly established that the Respondent cannot or will not be able to meet A.S.P.’s therapeutic needs.

Law

[10] The onus is on the Respondent to convince this court on a balance of probabilities that leave should be given to allow her to commence an application for status review for crown ward. The test for the court to utilize to determine whether leave should be granted pursuant to s. 65.1(5) of the CFSA has been set out in a number of cases.[^1] In reviewing the decisions, I agree with the statement put forth by Baker, J. that:

In assessing merits of the application, the court must have regard to the relevant legislative principles. The first and most significant of these is the paramount purpose of the Child and Family Services Act, which is to promote the best interests, protection and well-being of children.[^2]

[11] At the end of the day, the court must determine on the request for leave that the moving parent has credible and weighty evidence that is sufficient to warrant this court granting leave to issue a status review application. In reviewing the best interests, protection, and well-being of the child, does the evidence warrant a hearing on the merits. Courts are to weigh the circumstances flowing up to the leave application brought by the moving parent along with the secure placement of the child with his or her foster family.

Analysis

[12] In reviewing the affidavits of the Respondent and hearing submissions directly from the Respondent, I am not convinced that it is in the best interest of A.S.P. to grant leave to the Respondent to commence a status review application, as she has requested.

[13] In reviewing the decision of Justice Wildman and the affidavit and hearing submissions of the Respondent, it seems to me that the Respondent has still not taken into consideration the best interests of A.S.P. She is solely fixated on her best interests that is, that she wishes to have access to A.S.P. She is not insightful and has not considered what her conduct and introduction into A.S.P.’s life will have on A.S.P.

[14] Furthermore, from the evidence it is clear that the Respondent is still not cooperative and does not fully appreciate the effect her behaviour had on A.S.P. She has not indicated by any evidence that she is attending any type of therapy or psychotherapy dealing with her issues as found by Wildman, J. She has not indicated in the evidence that she has taken any steps to change her mindset or change her behaviour to better herself as a parent for the best interests of A.S.P. It is clear from the submissions of the Respondent, that this motion for leave to bring a status review application is what she wants. She has not considered or taken any positive steps whatsoever to acknowledge that her mindset and behaviour has to change for the best interests of A.S.P.

[15] Accordingly, I do not find that it would be in A.S.P’s physical, mental and emotional interest or positively affect A.S.P.’s development if the motion brought by the Respondent for leave is granted.

Disposition

[16] Accordingly, I do not grant the Respondent leave to bring an application for status review of crown wardship and thus, the Respondent’s motion is dismissed.

[17] The Applicant has brought a motion to dismiss the Respondent’s motion for leave and that relief is granted for reasons stated above.

[18] I make no order as to costs.

Sutherland J.

Released: September 29, 2015

[^1]: Durham Children’s Aid Society v. J-A.S., 2009 80106; Children’s Aid Society of Brant v. A.C., 2015 ONCJ 436; and Children’s Aid Society of Haldimand and Norfolk v. J.A.M.-F., 2011 ONCJ (SCJ).

[^2]: Children’s Aid Society in the County of Brant v. A.C. and C. and S., supra para. 11.