NEWMARKET
COURT FILE NO.: FC-12-41486-00
DATE: 20151020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children and Family Services for York Region
Applicant
– and –
C.L. Respondent
– and –
O.C. and A.C. Respondents
Alison Moonsie-Mohan, Counsel for the Applicant
Respondents – Self-represented
Sue Paterson, OCL
HEARD: September 1, 2015
REASONS FOR DECISION ON A SUMMARY JUDGMENT MOTION
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published
JARVIS J.:
[1] The Society has brought a Motion pursuant to Rule 16 of the Family Law Rules dealing with the child, J.L., born […], 2003. In particular, the Society is seeking an Order pursuant to section 57.1 of the CFSA that J.L. be placed in the care and custody of her father O.C. and her step-mother A.C. The child’s mother, C.L., opposes the Order sought. Although properly served with notice of this Motion, C.L. did not appear although she filed several affidavits setting out her position. O.C., the child’s father and A.C. his wife did not appear either but both he and A.C. filed affidavits in support of the Society’s position. The child was represented by the OCL.
Background
[2] On August 30, 2012, Nelson J. made an Order authorizing the apprehension of J.L. from her mother’s custody. The Society alleged that the child’s well-being was at risk as a result of C.L’s failure to adequately care for, provide for, supervise or protect the child and a pattern of neglect of the child in all these respects too. Despite plans being developed afterwards, including J.L. actually being returned to her mother’s care under the Society’s supervision in late 2012/early 2013, J.L. was re-apprehended by the Society on January 9, 2013 and soon thereafter placed in the temporary care of her father and A.C. his partner on January 14, 2013. On February 7, 2013 Nelson J. confirmed J.L.’s residency with her father on terms and conditions that also dealt with access by C.L. and her extended family. That Order was never appealed and has remained in full force and effect since then.
[3] On April 23, 2014 the Society amended its Application to allege that, pursuant to section 37 (2) (g), in addition to its original concerns, J.L. was likely to suffer emotional harm or delayed development as a result of what the Society alleged was C.L.’s dysfunctional parenting behaviour.
[4] A.C. was made a party to the proceedings on April 24, 2014.
[5] On June 19, 2014, and based on the written consent of all the parties, an Order was made by Kaufman J. finding J.L. to be a child in need of protection.
Law
[6] Rule 16 of the Family Law Rules permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant to this case:
When Available
16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
Evidence Required
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial.
Evidence of Responding Party
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
Evidence Not From Personal Knowledge
(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
No Issue for Trial
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[7] In determining whether a final Order should be made, the court must be mindful of the following guiding principles:
(a) The onus is on the Society to show that there is no genuine issue for trial;
(b) Once the moving party has discharged the evidentiary burden of showing there is no genuine issue for trial, the responding party must provide satisfactory evidence that there is no genuine issue of material fact requiring a trial for its resolution. Bald allegations, blanket denials or self-serving affidavits unsupported by specific facts are insufficient;
(c) Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. Speculation about possible evidence or outcomes is not a sufficient response to a summary judgment Motion.
[8] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the society’s removal of the child from her care and has developed some new ability as a parent.
Evidence
[9] In considering the parties’ positions, the following documents have been principally relied upon:
(a) The affidavits of Shannon Gingras, an Intake Worker employed by the Society and the worker assigned in 2012 with carriage of the file, her affidavits being sworn August 29, 2012 and two affidavits sworn September 4, 2012;
(b) The affidavits of Lisa Bourque-Rego, a Family Services Worker employed by the Society and who succeeded Ms. Gingras in having carriage of the file, her affidavits being sworn January 1 and 29, 2013;
(c) The affidavit of O.C., J.L.’s father, sworn January 29, 2013 (although it appears that this affidavit is really an affidavit by A.C.);
(d) The affidavits of C.L., J.L.’s mother, sworn January 31, 2013, March 20, 2013 and more recently sworn July 21, 2015;
(e) Affidavits of Erin Satoor, a Child Protection Worker employed as a Family Services Worker by the Society, and the worker presently assigned carriage of the file, those affidavits being sworn November 21 and 25, 2014 and June 12, 2015;
(f) Psychological Report of Dr. Peter Marshall dated March 12, 2015;
(g) Affidavit of A.C., sworn September 1, 2015.
[10] Also considered was a Parenting Capacity Assessment (“PCA”) of Dr. Peter Marshall dated December 12, 2013.
[11] The affidavits of Ms. Gingras, Ms. Bourque-Rego and Ms. Satoor along with Dr. Marshall’s PCA and Psychological Report, supplemented by the affidavits of J.L.’s parents and A.C., provided the continuing narrative from the date of the child’s apprehension from her mother’s care on January 9, 2013 to the present. The merits of the opposing party’s plans for the child were also addressed. Having reviewed the evidentiary record and considering the parties’ submissions, it is my view that the relief sought by the Society is in this child’s best interests. She has blossomed since her apprehension into a child whom all now involved with her describe as articulate, intelligent, resourceful and demonstrating leadership skills.
[12] The following evidence was especially determinative of the Society’s Motion:
(a) The child had witnessed a great deal of domestic violence between her parents before they had separated, the child afterwards residing with her mother;
(b) The Society had a lengthy history of involvement with the mother. Its current concerns related to C.L.’s ability to parent, her drug use, domestic violence, possible criminal involvement and her inability to control her anger. In fact, in early November 2014, C.L. was arrested on charges relating to trafficking her Hydromorphine medication;
(c) C.L. had been diagnosed as Bipolar when she was 11 years old but had not taken any medication for her mental health since she was 15 years old. She took medication for pain management as she suffered from chronic pain due to Fibromyalgia and slipped discs. When the Society’s Motion was argued, C.L. was taking a low dose of Methadone for pain management;
(d) C.L. became associated with C.B. with whom a child was born, and who was later apprehended by the Society. C.B. had what the Society described was “a very alarming criminal record”, he was noted as being a “high risk offender” with issues of aggression and anger. He also had an extensive child welfare involvement and a history of domestic violence with all of the women who had become involved with him. Dr. Marshall’s PCA assessed C.B.’s domestic violence risk in the highest category;
(e) O.C. and C.L. had a history of domestic violence, and in late 2011 until mid-2012 O.C. and J.L. had no contact. He and A.C. were married during the course of these proceedings;
(f) At the time of her apprehension J.L. was functioning below her chronological age in all domains. With certain limited exceptions, Dr. Marshall confirmed this concern in his late December 2013 PCA;
(g) J.L. was described as expressing considerable anxiety about adults responding to her needs. She was initially ambivalent about living with her father;
(h) The PCA recommended that the child remain residing with her father and A.C.;
(i) The Society endeavoured to facilitate access between the child and her mother. As of January 13, 2014, a year after the child being placed in her father’s care, C.L. had missed 14 of 71 visits scheduled and been late for 33 visits. In late 2013 workers recorded the child’s increasing anxiety, that it was steadily worsening after visits with her mother;
(j) A review of the entire evidentiary record discloses an escalating level of conflict involving C.L.’s interactions with virtually every person involved in these proceedings. This was impacting J.L.;
(k) After she failed to attend another scheduled visit in late February 2014 C.L., in a series of expletive-filled text messages with the worker, declared that she wanted nothing more to do with the Society or J.L. Access was suspended until the Society heard from a lawyer for C.L. Efforts were made anyway to arrange regular contact by C.L. with the child;
(l) Shortly afterwards, a Family Intervention Worker was assigned to work with the father and A.C. to assist them in dealing with J.L.’s attitude about living with them and not with her mother;
(m) By late Spring 2014, J.L. was presenting as adjusting better to living with her father;
(n) A Legal Aid Mediation was held on June 12, 2014, and an interim Consent was made that was later incorporated into a court Order. That Consent adjourned a forthcoming trial of the Society’s Application, continued J.L.’s residency with her father and step-mother and set a number of conditions, and expectations, dealing with C.L.’s access, and her conduct. It is undisputed that C.L. breached every term of the Order;
(o) In late August 2014, C.L. was hospitalized after a SWAT team descended on her apartment, and stolen property was discovered. She was charged;
(p) Contrary to the Society’s direction, C.L. attended J.L.’s residence with her father and step-mother and later reported to York Regional Police that A.C. had threatened her. The police declined to proceed, and then recommended that A.C. and her husband obtain a restraining Order against C.L.;
(q) J.L.’s Psychological Assessment was commenced in late September 2014 and, as already noted, concluded in early March 2015. Several areas of Dr. Marshall’s Report merit attention. Reporting that J.L. presented “as a very personable, warm and articulate girl…adept at communicating what she thinks and how she feels” Dr. Marshall inferred that “the issue of being safe was particularly important for her” and that J.L. was grateful when told that no recommendation would be made that J.L. return to live with her mother;
(r) Dr. Marshall also reported,
There is every indication that J.L. is making a successful transition to her father’s and stepmother’s home. There appears to have been a major shift in the way she perceives her father; I was also struck by the extent to which both Ms. And Mr. C (sic) communicated their support and affection when talking about J.L.’s becoming part of their home. I do not see a need to recommend any external services to strengthen the family at the present time. Rather, I see J.L. as needing continuity with respect to her day-to-day family life, which will allow her to gain an increasing sense of security and belonging.
(s) C.L. refused to meet with Ms. Satoor to discuss Dr. Marshall’s Report. Her affidavit filed in opposition to the Society’s Motion referenced (so it would appear) the earlier PCA Report dealing with her relationship with C.B., and its ending (untrue as it transpired);
(t) Paragraphs 124 and 125 of Ms. Satoor’s affidavit are revealing and state the following,
I have been seeing J.L. privately on a monthly basis when I take her out to lunch. Over the past months I have seen an incredible shift in J.L. She has gone from being anxious, quiet, moody, explosive, withdrawn and angry to being stable. She now presents as being excited to share new things that are happening in her life, she regularly tells me very positive stores about her interactions with her father. She talks about all the wonderful changes that he has made. They (sic) eat dinner together as a family, they hang out at the mall, bike ride, they play basket ball together.
J.L.’s performance at school has also greatly improved. According to her teacher, she is doing better than ever and J.L. has even been able to attain As. This has contributed tremendously to her self-esteem. J.L. continues to be supported through her IEP at school where she is well liked and she does not struggle socially.
(u) J.L.’s report cards dated November 11, 2014 and February 17, 2015 were filed as exhibits to A.C.’s affidavit. They confirmed J.L.’s steady academic and social achievements and that, despite a learning disability, she demonstrated excellence in independent work and peer collaboration. Her nascent leadership skills were noted;
(v) C.L.’s affidavit proposes an no plan for J.L., nor does it give any reason why the plan proposed by the Society is not in J.L.’s best interests.
[13] I agree with the Society that J.L. needs permanency. And with the OCL, who described J.L. as “a pleasure”, as a child who identified strongly with her father and step-mother and who wanted to remain living with them. Considerable challenges were experienced by J.L.’s father and A.C. in dealing with J.L., her mother, and the Society (successfully in my view), and their commitment to J.L. is commendable. This was also recognized by Dr. Marshall. While J.L. indicated that she is prepared to have some relationship with C.L. and her extended family, it is demonstrably clear that C.L. is either unable, or refuses, to commit to a process that will foster or maintain a relationship that promotes J.L.’s best interests. The most recent affidavit filed by C.L. in response to the Society’s Motion, replete with self-serving statements, accusations and bald assertions, shows little insight about J.L. and even less about what is best for her.
Disposition
[14] Accordingly, and for the reasons set out above, an Order shall issue as follows:
Pursuant to section 57.1 of the Child and Family Services Act, the child, J.L., born […], 2003, shall be placed in the care and custody of her father, O.C. and her step-mother, A.C.
Ms. C.L. shall communicate with J.L. by letter and e-mails by sending such communication to Mr. O.C and Ms. A.C. who shall ensure that the communication is appropriate before providing them to J.L. Correspondence from J.L. to her mother by e-mail and letter shall occur in the same manner.
Ms. C.L. shall meet with the Society worker(s), she shall fully participate in re-integration therapy and she shall follow the recommendations of the re-integration therapist.
When Ms. C.L. can demonstrate that she is abstinent; that her mental and emotional health is stable; that she is not involved in any criminal activity and she can engage in a positive and non-competitive way; that she can be supportive of J.L.’s placement with her father and step-mother, insight into how important it is to J.L.’s emotional health that she is positive of J.L.’s placement, then access may take place at a supervised access centre on a day and time to be agreed upon by the parties. Ms. C.L. shall pay the cost of the access centre. This shall be reviewed after a successful six (6) month period.
Any access to C.L.’s extended family members shall meet the above criteria in paragraph 3.
Any changes to this Order for custody and access shall be sought by motion on fourteen days notice to the Society.
Justice D.A. Jarvis
Released: October 20, 2015