CAS and K., 2015 ONSC 6166

COURT FILE NO.: 3205/14

DATE: 2015-10-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA

Respondent

– and –

A.K.1

Appellant

Anthony Marrato, Counsel for the Applicant

T. Frederick Baxter, Counsel for the Respondent

HEARD: September 25, 2015

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

RASAIAH j.

reasons on appeal

OVERVIEW

[1] This is an appeal of the decision of the Honourable Justice R. Villeneuve of the Ontario Court of Justice. The decision was released on October 20, 2014.

[2] The Society had brought three motions for summary judgment pursuant to former Rule 16 of the Family Law Rules (“Rules”) requesting the following:

a) An order that the child “A.K.” born […], 2010, be made a ward of the Crown and be placed in the care of the Children’s Aid Society of Algoma.

b) An order that there be no access to the child A.K. and that all outstanding access orders for this child be terminated.

c) An order for a finding that the child “Z.K.”, born […], 2012 is a child in need of protection pursuant to section 37 (2) (b)(i) and (ii) of the Child and Family Services Act (“CFSA”).

d) An order that the child Z.K. be placed in the care and custody of the paternal aunt “W.R.”, subject to the supervision of Children’s Aid Society of Algoma, on terms and conditions set out in paragraph 2(a) through (o) of the motion found at Tab 10, volume 4, file 38-10, including access in favour of the appellant and the father “M.R”.

[3] Previously on July 11, 2011 the Court had made a finding that the child A.K. was a child in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act and further that this child be made a ward of the Children’s Aid Society of Algoma for a period of nine months with access to the mother in the Society’s discretion on terms and conditions approved by the Society.

[4] The decision of Justice Villeneuve resulted in orders that provided that:

1. the child “A.K.” be made a ward of the Crown and placed in the care of the Children’s Aid Society of Algoma;

2. all access orders to the child, A.K. be terminated; and

3. that the issue of placement of the child, “Z.K.” with the paternal aunt be adjourned to December 15, 2014 at 1 PM to be spoken to with the current placement of this child to continue.

[5] The appellant is the biological mother of both children. The sole respondent is the Children’s Aid Society of Algoma. The biological father of the child A.K. has never been identified. The biological father of the child Z.K. neither filed an appeal nor participated in this appeal.

BACKGROUND

The Children

[6] The child A.K. resided with the mother from birth until July 26, 2010. On July 26, 2010 this child was apprehended by the Children’s Aid Society of Algoma (“Society”). The Ontario Provincial Police requested the Society’s assistance in dealing with the appellant and this child after the appellant was reported to be at a McDonald’s restaurant drive-through in Elliot Lake Ontario, in her car passed out, with the child in a car seat in the rear of the vehicle. A hospital urine screen taken July 26, 2010 revealed that the appellant’s urine tested positive for marijuana, cocaine, benzo, Screen Ur and oxycodone. At the date of apprehension the appellant had been residing with her mother (“maternal grandmother”). This child has remained in the care of the Society since his apprehension July 26, 2010.

[7] From apprehension, the appellant had supervised access to the child A.K. There were periods however when the access was not regularly exercised either due to the appellant’s health, cancellations, and or the appellant attending for treatment. Due to the foregoing, there were some significant gaps in the exercise of access. Of the access periods that were exercised, some went well and some did not go well. After the child Z.K. was born, the access visits with the appellant included Z.K. as well. For the most part the mother was diligent in exercising her access. Generally speaking, the access was one three hour period once a week.

[8] The child Z.K. has never resided with the mother. He was apprehended at birth. Following initial interim without prejudice orders, on […], 2012, the Court made an order placing this child in the temporary care and custody of the Society with supervised access to both the appellant and Z.K.’s father. Of the access periods that were exercised, in respect of the appellant, some went well and some did not go well. For the most part the appellant was diligent in exercising her access.

[9] On December 15, 2014 Justice Villeneuve made an order for the placement of the child Z.K. with the paternal aunt as contemplated. This placement however broke down on or about January 2015 and this child returned to the temporary care and custody of the Society, where he remains. Although not yet served and/or filed, it is the Society’s intention to bring a motion for summary judgment for an order that Z.K. be made a ward of the Crown. The proceedings involving Z.K. are currently returnable October 25, 2015 in the Ontario Court of Justice at Elliot Lake. The hearing date for the said motion is not expected to be until early 2016. If the Society is not successful with its intended motion, a trial may then follow later into the future in 2016.

[10] The two children were being dealt with by way of two separate proceedings for the most part. The proceedings were joined together on or about April or May of 2014.

The Appellant

[11] From July 2010 to 2011, the appellant made a number of attempts at treatment for substance abuse and detoxification with a number of relapses.

[12] From July 2010 the appellant had been hospitalized on a number of occasions due to substance use and/or mental health concerns.

[13] On November 13, 2011, while pregnant with the child Z.K., the mother was hospitalized on a Form One for suspected drug overdose involving Percocets and other painkillers. The appellant described this as an accidental overdose.

[14] On December 6, 2011 the appellant was hospitalized after another suspected overdose and attempted suicide. The appellant despite what is recorded as being reported to health personnel described this as something other than a real attempt to take her life. She described it as a “cry for help”.

[15] By way of a status review application dated January 27, 2012 the Society served notice that it intended to seek an order that the child A.K. be made a ward of the Crown and that all access of the appellant to the child be terminated.

[16] In April 2012 the appellant was diagnosed with mood disorder, poly-substance abuse, and borderline personality traits. This diagnosis was made by Dr. Koka.

[17] In April 2012 the appellant secured a two bedroom apartment for herself.

[18] June 22, 2012, the appellant had completed the Triple P Parenting course.

[19] On September 21, 2012 the mother was hospitalized as a result of a motor vehicle accident at which time she stated to accident personnel and the child protection worker, Carol Sonnenburg, that she had tried to kill herself by driving into a rock cut indicating that she would “rather die than deal with all this bull shit”. The appellant thereafter denied this accident as being a suicide attempt. She and the maternal grandmother (based on what her daughter told her) suggested the vehicle may have been tampered with.

[20] Pursuant to court order, made in July 2013, a parental capacity assessment of the appellant and the father of Z.K. was conducted by Dr. Bess Blackwell and completed September 30, 2013. Dr. Blackwell opined that the appellant was not capable of parenting the children and she was unable to recommend the appellant for this role.

[21] In the fall of 2013 the appellant started a course to be, a personal support worker through the Blind River satellite campus of Sault College of Applied Arts and Technology. Sometime in late 2013 and early 2014 through her course, the appellant completed a mental health first aid, two-day course; and a workshop on supportive approaches through innovative learning.

[22] Over the course of 2010 to 2013, the affidavits filed referred, from time to time, to the appellant as continuing to involve herself with people who were destabilizing influences in her life.

[23] On April 14, 2014, Dr. Gelmych prepared a psycho-vocational assessment report regarding the appellant. This was filed by the appellant for the summary judgment motions.

[24] Over the course of the proceeding the appellant underwent hair follicle testing completed by Motherisk Laboratory.

[25] The Society affidavit materials up to the end of May, 2014 (the Society’s last affidavit was sworn in this month) suggested various periods of stability with the appellant and various periods of instability. Substance abuse, mental health concerns and ability to manage and meet the needs of the children were the issues raised in the affidavits filed by the Society.

The Maternal Grandmother

[26] On the date of apprehension of A.K., June 26, 2010, the Society had made an attempt to contact the maternal grandmother without success.

[27] During the course of this matter between April and May of 2011, the Society had conducted a kinship assessment of the maternal grandmother. They found the maternal grandmother to be inappropriate based on their view that she lacked appreciation of the issues concerning the appellant’s mental health and addiction issues.

[28] The maternal grandmother had referred to the Society as the “Gestapo”.

[29] The evidence set out a history of conflict between the maternal grandmother and the appellant as disclosed by the appellant herself to child protection workers on more than one occasion, and to the parental capacity assessor, Dr. Bess Blackwell.

[30] The maternal grandmother was 74 years of age at the time of the summary judgment motions.

[31] The summary judgment motions were argued July 22, 2014.

THE LAW

[32] In my view, Justice Villeneuve correctly set out the applicable law: the test for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99, s. 37(2) (b) of the CFSA that addresses when a child is in need of protection, the options available to the court under s. 57(1) CFSA , the best interests of the child under s. 37(3) of the CFSA and the test for access to crown wards under s. 59(2.1) of the CFSA.

[33] On the issue of summary judgment, he set out the following:

[26] A party moving for summary judgment has the evidentiary burden of showing there is no genuine issue for trial. Once this burden is discharged, the responding party must prove that its defence has a real chance of success. Each party must put its best foot forward to establish whether or not there is an issue for trial. The court is entitled to assume that the record contains all the evidence that the parties would present at trial: Toronto-Dominion Bank v Hylton, 2012 ONCA, par.5.

[27] Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about the child's future. See Jewish Family and Child Service of Toronto v. R.A. and J.G. (2001), 102 A.C.W.S. (3d) 554, 20 L.W.C.D. 251, [2001] O.J. No. 47,2001 CarswellOnt 73 (Ont. S.C.); affirming Jewish Family and Child Service of Toronto v. R.A. and J.G., 2000 22546 (ON CJ), 2000 22546, [2000] O.J. No. 6045, 2000 CarswellOnt 5169 (Ont. C.J.).

[28] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. See Children's Aid Society of Toronto v. K.T. and C.W., 2000 20578 (ON CJ), 2000 20578, 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 CarswellOnt 4827 (Ont. C.J.).

[29] ...The court must rely on and assess the sufficiency of evidence adduced in the affidavit materials submitted on the motion: Children’s Aid Society of Niagra Region v. S.J.W., S.W., M.B. and J.W., 20011 ONSC 5842.

[31] The test for granting summary judgment is met when the moving party establishes that there is no genuine issue of material fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreement about a fact that a party is required to prove constitutes disagreement about a material fact. See Children's Aid Society of Toronto v. K.T. and C.W., supra; and Children's Aid Society of Waterloo Region v. T.L.H. and D.S.C., 2005 ONCJ 194, 139 A.C.W.S. (3d) 1028, [2005] O.J. No. 2371, 2005 CarswellOnt 8104 (Ont. C.J.).

[32] As Justice Alex Pazaratz stated at paragraph [43] of Children's Aid Society of Niagara Region v. S.C. and B.M., 2008 52309 (ON SC), 2008 52309, 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008 CarswellOnt 5929 (Ont. Fam. Ct.): "no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant”.

[34] A child’s need for permanency planning with 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 cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent’s evidence that the parent faces some better prospects than those that existed at the time of the Society’s removal of the child from their care and has developed some new ability to parent: Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.)

[35] Various courts have highlighted the importance of additional considerations in summary judgment motions brought in the context of child protection cases. These include the nature of the evidence on the motion, if any mandatory time frames involved, the intrusiveness of the order sought, the statutory criteria involved, if any, and particularly how material are the facts in issues to the case. In addition, the analysis must be undertaken under the umbrella of the paramount purpose of the CFSA, which is to promote the best interests, protection and well-being of the children.

[36] The standard of appellate review of a summary judgment order is set out in SN-D v. Children's Aid Society of Ottawa, 2012 ONSC 1888,2012 ONSC 1888 (Div. Ct.), at par. 14:

In Catholic Children's Aid Society of Toronto v. Y.K., [2007] O.J. No. 3080 (S.C.), aff'd 2008 ONCA 27, [2008] O.J. No. 137, the Superior Court of Justice addressed the standard of review on an appeal of a summary judgment made under the Family Law Rules, O. Reg. 114/99, s. 16. In summary:

The standard of review on an appeal of a summary judgment order is correctness, as most issues arising out of a summary judgment hearing are errors in law. Where an error in fact is alleged, the standard of review is less deferential than palpable and overriding error but more deferential than correctness as the judge's decision is entitled to due respect.

[37] In SN-D v. Children's Aid Society of Ottawa, supra, the Divisional Court added that in cases involving child custody, considerable deference must be given to the decision.

[38] On questions of mixed fact and law, the palpable and overriding error standard applies unless there is an extricable error of law: Housen v. Nikaisen, 2002 SCC 33, Archer v. Archer, 2005 CarswellOnt 1515 (Ont. C. A.) Catholic Children’s Aid Society of Hamilton v. R. (C.), 2009 34047 (ON SCDC), 2009 CarswellOnt 3850 (Ont. Div. Ct.)

[39] Justice Goodman in Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., 2015 ONSC 2496 wrote at paragraph 19:

The determination of whether there is a genuine issue requiring a trial is a legal issue. Where the appellate court determines that the motion judge correctly applied the legal test for determining whether to grant summary judgment, any factual determinations by the motion judge in deciding the motion will attract a review on the deferential standard of palpable and overriding error.

The final question raised by the appellant is whether the motions judge failed to properly apply the “best interests of the child” criteria. The test for considering the best interests of the child is set out in CFSA s. 37(3). Section 57 sets out the considerations for the court in making an order of disposition once a court has determined that the child is in need of protection. In oral argument, it was conceded that the child is in need of protection. The issue is whether the order is appropriate to address those concerns in the absence of a full hearing.­­

[40] While a judge in the first instance may not have referred specifically to all of the evidence before him on an issue, they are not required to do so: Children’s Aid Society of Hamilton v. E.M. (Ontario Superior Court-Divisional Court) 2010 ONSC 6421, [2010] 280 O.A.C. 184

The Issues as framed by the Appellant

Issue One: Did Justice Villeneuve err in failing to find that the appellant’s recovery from substance abuse and stabilization of mental health had reached a point where her fitness to parent was now a triable issue?

[41] The appellant states that at the time of the hearing of the summary judgment motions she “was in the zone for acceptable parenting” and that accordingly there was a triable issue. She states that:

(a) there was evidence of significant stability credited to her by the Society;

(b) her drug tests were negative for any drugs that could not otherwise be explained by her prescription medications;

(c) her borderline personality disorder was controlled by medication;

(d) her substance abuse was in remission according to Dr. Koka;

(e) she had achieved housing stability;

(f) she had started a course to be a PSW; and

(g) she was doing better in terms of her emotional health.

[42] The Society states that the evidence did not establish that the appellant had recovered to a point where her fitness to parent was a triable issue, and that there was overwhelming evidence of struggles and varying health over the span of four years.

[43] I do not find that Justice Villeneuve erred.

[44] Justice Villeneuve examined the appellant’s progress. In paragraphs 68 through 75 of his decision he made specific note of the appellant’s wish to be able to care for both of her children in her home and that her love for both children was unchallenged. He made note of the appellant having exhibited some periods of parental stability. He acknowledged her preparation for access visits, the baptism that she planned and organized, and that she was currently enrolled in the parental support worker program. He acknowledged that it appeared at that particular time that she was successfully meeting the requirements of that program.

[45] Justice Villeneuve also considered the report of Dr. Blackwell, the vocational assessment of Dr. Gelmych, the observations of counsellor Cheryl Meawasige, and the ongoing incidences of telephone calls and/or voice messages between the appellant and the Society wherein the mother is speaking or acting in a manner that suggested her health was not stable. Looking at the appeal record, the calls and voice messages occurred well into the latter part of 2013, well over three-and-a-half years from the initial apprehension of her first child.

[46] Justice Villeneuve had before him and considered the fact that there were times when the appellant’s access went well but in between there would be times where she would engage in strange and erratic behaviour with the children. Justice Villeneuve was completely aware of the fact that the appellant at times was completely appropriate with the children but at other times was seriously unable to cope with them.

[47] The appeal record indicated that the appellant was noted as not addressing negative behaviours of the children and would spend significant time interacting with one child as opposed to both at access visits. She appeared tired during many access visits. The supervised access workers had to assist often in addressing behaviours of the children that the appellant was not addressing. This continued into 2014.

[48] The appeal record indicated that while the Society was concerned with substance abuse and mental health stability, they were also concerned about the appellant’s ability to manage and meet the needs of the children. She was not addressing negative behaviours or even recognizing them. Her care for the children during access was suggested to be inconsistent and at times, the appellant expressed complete frustration; needed assistance and/or intervention of the worker; and seemed very exhausted and tired at the end of her visits. On May 18, 2014, after the baptism, the appellant had to be reminded about the child Z.K.’s lactose intolerance as she was going to give the child cake. On May 20, 2014, the appellant appeared tired during the visit.

[49] At the time of the summary judgment motions hearing, the child A.K had been in care for approximately 50 months, far beyond the statutory time as set out by the Act. The child Z.K. had been in care for approximately 30 months also exceeding the statutory time limits as set out by the Act.

[50] The appellant referred the Court to the affidavit of Chantal Pelletier sworn August 9, 2013, Tab 41 of the Appeal Record. In paragraph 22, Ms. Pelletier speaks of a demonstration by the appellant of significant stability with her mental health. This argument ignores two things in my view. First, the Society had acknowledged periods of stability which Justice Villeneuve acknowledged; some being significant, but never a period prolonged enough to demonstrate that concerns on their part should be alleviated. Second, a review of the appeal record indicates that shortly after the swearing of the worker’s August 9, 2013 affidavit, on August 19, 2013, the appellant broke a cycle of perception of stability with five voice mail messages she left on that date for the said worker as outlined in her affidavit sworn November 22, 2013, located at Tab 42, paragraphs 5 through 8. The worker describes the appellant at times in these messages as being very difficult to understand; mumbling; screaming; not making sense in what she was trying to say; breathing heavily and speaking very quickly.

[51] The appellant referred the Court to the affidavit of Chantal Pelletier sworn November 22, 2013 and paragraph 79 at page 443 of the Appeal Record. This paragraph again speaks of a significant period of stability as at this date. However, again, a review of the appeal record indicates that after this particular statement was made, Dr. Blackwell’s report was received December 17, 2013. The report revealed concerns. Dr. Blackwell details continued denials and minimizations regarding her past and health by the appellant. Dr. Blackwell stated that the appellant presented as thought disordered and with Narcissistic Personality Disorder. Concerns of non-compliance were raised by the appellant’s failure to answer questions regarding the taking of her prescription.

[52] Dr. Blackwell opined that the appellant was not capable of parenting the children and she was unable to recommend her for this role. She did not believe that the appellant was capable of developing such capacity in the foreseeable future. She reported the appellant as lacking in essential parenting skills; unable to create structure, routine; or be consistent in her responses to either child. By the end of a 1.5 hours access visit, Dr. Blackwell’s view was that the appellant appeared exhausted and emotionally spent. The appellant’s attachment to either child appeared impoverished. Dr. Blackwell noted that the Society records referred to times the appellant does better and presents as relatively more stable in her mental health. There were however patterns of inconsistency in access and continued struggle in both management and interaction with the children.

[53] Accordingly there was sufficient evidence before Justice Villeneuve referencing the appellant’s inability to sustain prolonged stability in respect of either (a) drug use and/or her mental health; and (b) ability to manage the children and interact with the children. The time periods fell before, after and in between periods of noted stable mental health of the appellant, from 2010 to 2014. In addition there were hospital records and other medical records demonstrating difficulties falling before, after and in between periods of stable mental health of the appellant.

[54] Justice Villeneuve read the report of Dr. Koka dated July 20, 2014. In addition to what the appellant asserts as positive aspects, Dr. Koka as at July 20, 2014 indicated that the mother continued to suffer from a mood disorder which requires medication for an indefinite period of time. He reported the mother’s concentration as variable, that her memory has been poor, and that her affect appeared to be mildly depressed. His report was based on the self-report of the appellant. His report did not address whether or not the appellant was in a position to parent.

Issue Two: Did Justice Villeneuve err in asking himself the wrong question—whether on the evidence before him it appeared possible that the mother could ever parent, as opposed to whether there was a triable issue as to whether she could parent?

[55] The appellant acknowledges that Justice Villeneuve uses language in his decision which suggests that he did consider whether there was a triable issue. She states however that he used the report of Dr. Blackwell extensively and evidence of the workers without questioning their value and limitations and without asking himself if there was more to be learned given the years the case had gone on and the changes she claims occurred in herself during that period. The appellant claims that Justice Villeneuve simply makes his own assessment and fails to consider whether the evidence he had was enough.

[56] I am not of the view that Justice Villeneuve failed to examine and/or ask himself as to whether or not there was a triable issue or failed to consider whether the evidence he had was enough.

[57] This issue overlaps with issue one above. The analysis above on issue one equally applies to this issue, which outlines the body of evidence he considered. The appeal record was three volumes.

[58] In addition, in paragraph 57 of his decision, Justice Villeneuve considered the issue of a child’s need for permanency planning within a timeframe sensitive to a child’s needs. It is clear from reading his decision that he contemplated that a Crown wardship order was the most profound order that a court can make and that to take someone’s children from them as a power that a judge must exercise only with the highest degree of caution and only on the basis of compelling evidence and only after careful examination of possible alternative remedies.

[59] Second, in deciding the matter and the motion, Justice Villeneuve was required to examine the plan of the appellant. In examining the plan, the ability of the appellant to parent was a relevant and proper consideration.

Issue Three: Did Justice Villenueve err by placing too much weight on the report of Dr. Blackwell dated September 30, 2013?

[60] The appellant states:

(a) that this report was referred to extensively by Justice Villeneuve;

(b) that 10 months had gone by since Dr. Blackwell saw the appellant which weakens the weight of the report; and

(c) that parenting assessments are made based on observations and test results representing a narrow slice of time in the life of the person tested.

[61] Firstly, in my view, Justice Villeneuve did not place “too much weight” on Dr. Blackwell’s report. He did make many references to it, but it is clear that he balanced his review of this report with many other pieces of evidence filed.

[62] Justice Villeneuve considered the evidence of the extensive dealings that the appellant had with child protection workers, medical doctors and various supervised access workers since the apprehension of her first child. He specifically refers to same in paragraph 79 of his decision. Justice Villeneuve found observations compatible with Dr. Blackwell’s report.

[63] Justice Villeneuve goes outside of Dr. Blackwell’s report and considers the observations of the counsellor Cheryl Meawasige which makes references to similar if not the same observations made by Dr. Blackwell.

[64] He also considered Dr. Gelmych’s 2014 vocational assessment and the similarities to findings of Dr. Blackwell. Dr. Gelmych found the appellant’s verbal comprehension skills to fall at the lower end of the average range; perceptual reasoning skills to fall at the upper end of the low average range; working memory to be much poorer; the appellant to be falling in the borderline cognitively impaired range while her ability to quickly and accurately process visually presented material (processing speed) fell below the first percentile indicating significant difficulty. He stated “this pattern of strengths and weaknesses indicates that she struggles with attention and concentration particularly when information is presented quickly in a visual format”. He felt with accommodation she should be able to be successful in her current PSW program. He did not assess ability to parent nor did he have any information concerning Society involvement with the appellant when he completed this assessment.

[65] Justice Villeneuve was clearly considering the sufficiency of all of the evidence as he was required to do.

[66] Secondly, while ten months had passed from the completion of Dr. Blackwell’s report, in reviewing this report, in my view, this report was not weakened by this fact.

[67] In my view, Dr. Blackwell’s report did not represent or merely capture a narrow slice of time in the lives of the persons tested. Psychological assessment of the appellant was completed on September 3, 2013, clinical interview of the appellant was completed on September 6, 2013 (she reports having given the appellant twice the normal time for this interview); and psychological assessment tests were completed by the appellant on September 18, 2013. A number of tests were administered in respect of cognition, reading, adaptive living skills, personality and symptoms of psychological distress, and parenting tests. In addition, she recorded having reviewed the Court Filed documents from February 8, 2012 to July 10, 2013. She also listened to 3 phone messages left by the Mother on the office phone of child protection worker Carol Sonnenburg. She interviewed the supervised access worker and child protection workers Carol Sonnenburg and Chantal Pelletier. Dr. Blackwell received history spanning many years from the appellant herself, from medical records, and from Court materials.

[68] Many of the concerns outlined in Dr. Blackwell’s report regarding the appellant’s relationships, ability to manage and interact with the children were reflected in observations of access up to May of 2014.

[69] Again, Dr. Gelmych administered some similar tests in 2014, a few months before the hearing of the summary judgment motions and the results for those tests were very similar.

[70] No expert opinion was filed to contradict the opinions set out in Dr. Blackwell’s report. It appears from the materials filed that the appellant contemplated a critique but no such critique was filed.

Issue Four: Did Justice Villenueve err in failing to attach weight to the report of the psychiatrist Dr. Koka dated July 20, 2014 and accept as part of the evidence on the motion before him?

[71] It is difficult to find that Justice Villeneuve did not attach weight to or consider the report of Dr. Koka dated July 20, 2014 when it is acknowledged by the appellant that Justice Villeneuve indicated that he read the report and that after having done so indicated that he would not have altered his decision; finding its weight to be insufficient to change his decision.

[72] I have reviewed Dr. Koka’s report which was filed in the Appeal Record. While I agree it would have been preferable for Justice Villeneuve to provide some further explanation for this finding, after having reviewed the report, there is support for his finding that its weight was insufficient. Accordingly, in my view, this lack of fulsome explanation does not rise to reversible error.

[73] Dr. Koka indicates that the mother continues to suffer from a mood disorder which requires medication for an indefinite period of time. He further reports the mother’s concentration as variable; that her memory has been poor; and that her affect appeared to be mildly depressed. His report was based on the self-report of the appellant. There is a history of the appellant minimizing and denying issues in her reporting. His report does not address whether or not the appellant was in a position to parent.

Issue Five: Did Justice Villeneuve’s assessment of the maternal grandmother as a potential kinship caregiver amount to a miscarriage of justice?

[74] The appellant claims that Justice Villeneuve:

(a) simply followed the Society’s kinship assessment;

(b) did not consider the “proven track record” of the maternal grandmother as a successful parent;

(c) made a weak inference that the hostility of the maternal grandmother towards the Society meant that she would fail to supervise as instructed;

(d) in not accepting the maternal grandmother’s undertakings he made a credibility finding outside of his role;

(e) wrongly inferred the maternal grandmother as unfit on unproven facts that she was aware or could have been aware of the appellant’s impaired state leading up to the apprehension in 2010;

(f) failed to recognize the appellant had her own residence from the maternal grandmother; and

(g) failed to recognize the maternal grandmother as a transitional caregiver.

[75] It is clear that Justice Villeneuve assessed the maternal grandmother and considered her in paragraphs 58 to 62 and paragraphs 105 to 109 of his decision.

[76] The appeal record has more than sufficient evidence to support his findings.

[77] The appellant advised Dr. Blackwell (page 468 of the appeal record) that the maternal grandmother suffered depression and anxiety for most of her life…that the maternal grandmother had mood swings that would erupt in unpredictable rages which were scary, extreme and frightening to the appellant as a child.

[78] The kinship assessment screening reported that the maternal grandmother told the Society that she raised her daughter differently from her other four children. She let a number of things go with her as she grew up. Accordingly, the evidence supports a history of taking little control in respect of the appellant since she was a child.

[79] The maternal grandmother’s affidavit of July 17, 2014 was before Justice Villeneuve. She challenged the Society’s assessment of her. She acknowledged her age as being a consideration for the court, and in return suggested that she had other children who would step in and help. No evidence confirming this extra help or option was filed for the motion. These individuals resided in Toronto at the time.

[80] The appeal record contained a letter dated April 8, 2013 written by the maternal grandmother which she attached to her affidavit of July 17, 2014. In this letter she talked about how she knew about the appellant’s drug use and how she could not control the situation. The appellant wouldn’t listen to her and she (the maternal grandmother) began to give up. On page 764 of the appeal record it appears that her view of her daughter’s drug use was that “she was not using that heavily” and she was supportive of her daughter not going to a treatment facility the Society was recommending…that ”she had enough support from her true friends to stop”.

[81] The maternal grandmother repeatedly stated to the Society that her daughter was an excellent mother; did not require supervision; and that her daughter did not have an issue with addictions.

[82] In addition to referring to the Society as the “Gestapo”, the maternal grandmother continued two years later from the initial kinship assessment, to demonstrate a negative attitude towards the Society. In the said letter she poses questions…”In order to save children does the Children’s Aid Society mentally and emotionally kill the mother and the grandmother and destroy families? How can this be allowed to continue?” She goes on about the Society destroying lives. This negative attitude continued in July of 2013, as set out by the details of the meeting the Society had with the maternal grandmother at Tab 40, paragraph 4, Volume 2 of the Appeal Record.

[83] Based on all of the foregoing, accordingly, I do not agree:

(a) that Justice Villeneuve simply followed the Society’s kinship assessment;

(b) that the maternal grandmother established a “proven record” as a successful parent;

(c) that the evidence of hostility of the maternal grandmother towards the Society was so weak that it could not translate to concern that she would fail to supervise as instructed;

(d) that in not accepting the maternal grandmother’s plan that he made a credibility finding;

(e) that Justice Villeneuve wrongly inferred that the maternal grandmother was aware of the appellant’s impaired state leading up to the apprehension in 2010;

(f) that he failed to recognize the appellant had her own residence from the maternal grandmother; and

(g) that he failed to recognize the maternal grandmother as a transitional caregiver.

Issue Six: Did Justice Villeneuve err in failing to consider whether there was a triable issue to be found in the question of the mother’s fitness to parent one child as opposed to two?

[84] The appellant suggests that her ability to manage the care of one child at her access visits was never seriously in doubt and that the appellant was closer to the child A.K. than to Z.K. The appellant claims her ability to care just for A.K. was not adverted to and that it was far from clear and certainly not a foregone conclusion that the mother could not succeed in parenting at least one of her children given her progress.

[85] At the appeal, the appellant made it clear that her argument was in respect of the child A.K.

[86] The appeal record and decision indicate that the appellant’s plan presented at the summary judgment motion hearing was to have both children reside with her either alone or with the support of the maternal grandmother. She did not present a plan whereby she would have the care of one child. The maternal grandmother’s affidavit spoke to being able to care for A.K.

[87] It is my view in reading his decision that Justice Villeneuve considered the children separately in his analysis of their best interests; their respective relationships with the appellant and their futures.

[88] In respect of this particular child A.K. and looking at paragraph 76 of his decision he stated exactly what the appellant says he did not. The last sentence of paragraph 76 of the decision says “the court has the dispositional choices of returning the child to the mother under supervision order or making him a Crown ward”.

[89] Further, in context, while the appellant was not making an argument in respect of Z.K on this appeal, Justice Villeneuve, in effect by the disposition concerning Z.K., left the door open for the possibility of the appellant one day parenting one child. Z.K. was placed under a supervision order, which would have been subject to a status review application, at which the appellant would have had further opportunity and the Court would have been required to consider her plan of care on the hearing of that application (and/or summary judgment depending on how the Society elected to proceed).

[90] I do not agree that the issue of the appellant’s ability to parent one child was never in doubt. The ability to manage A.K. was in fact an issue in the access visits up to the date of the hearing of the summary judgment motions. Many times the appellant was not able or chose not to address negative behaviours of A.K. It is true that the appellant had some good access visits with A.K., but not all visits were good visits.

[91] Further, even if my view of how he considered each child is wrong, the issues identified by Justice Villeneuve in respect of the appellant’s ability to parent would have existed in respect of parenting one child versus parenting two children because a number of his concerns were mental health, behaviour, and personality based.

[92] The appellant under this ground argued that the return of one child, namely A.K., if not to the appellant alone, could have included a consideration of the maternal grandmother as part of a transitional disposition.

[93] While Justice Villeneuve does not set out comments on the option of involving the maternal grandmother as a transitional caregiver for solely A.K., it was clear he considered her.

[94] Even if Justice Villeneuve did not apply his mind to this option as is suggested, this does not rise to the level of reversible error. As with the appellant’s ability to parent, the issues and concerns that Justice Villeneuve identified in respect of the maternal grandmother would have existed in an analysis of the return of one child as it would have in the analysis of the return of both with the maternal grandmother.

[95] The maternal grandmother was in fact 74 years old at the time of the hearing of the summary judgment motions.

[96] The maternal grandmother had an inability to cope with the appellant’s behavioural issues. The appellant and the maternal grandmother had a history of not getting along. The appellant herself described in detailed this fact to Dr. Blackwell. The appellant as of late 2013 blamed the maternal grandmother for failing to recognize that she was involving herself in improper relationships back when she was a teenager and essentially blamed the maternal grandmother for failing to set her on the right path to avoid her history of drug abuse and unstable relationships. The maternal grandmother failed to recognize the issues her daughter had and/or was facing.

[97] The maternal grandmother was aware of the appellant’s drug use at the time of the apprehension in 2010. The maternal grandmother minimized the appellant’s drug use, mental health issues, overdoses and/or incidences that could have been viewed as suicide attempts. She expressed to the Society that she didn’t believe that the appellant’s access needed to be supervised.

[98] The maternal grandmother presented with an attitude on more than one occasion to the Society that caused them serious concern in respect of her ability to work with them in the best interests of the protection of the children. She referred to the Society as the “Gestapo”.

[99] The maternal grandmother had attended very few of the appellant’s access visits. The maternal grandmother did not have any significant relationship with A.K. despite the opportunity to do so over the years.

Issue Seven: The appellant states that the decision appealed from was based in part on drug tests carried out by a laboratory, namely Motherisk Laboratory, whose results have since been invalidated or placed in doubt.

[100] In paragraph 42 of his decision Justice Villeneuve points out that “the readings as indicated by Motherisk could be attributable to regular use of prescription medication in prescribed dosages”. In paragraph 74 of his decision he states “the most recent drug test in March 2014 cannot conclusively conclude that the presence of certain opiates is not attributable to regular prescribed use of narcotics”. In my view, these are not statements that suggest that his decision was “based in part” on these tests. Even if the reference to the tests could be interpreted as forming some basis for his decision, the references in my view reflect findings in the appellant’s favour; and by the wording he used, the tests were given little to no weight by him on the inquiry related to ongoing substance abuse concerns.

Issue Eight: There are ongoing proceedings in the Ontario Court of Justice at Elliot Lake dealing with one of the two siblings who are subject of the appeal which may bring about a result for that sibling which is contrary to the decision being asked for on this appeal.

[101] This was an issue raised by the appellant’s motion for adjournment of the hearing of this appeal. I did not grant the request for adjournment on this ground. I further do not find this a bar to hearing the appeal. As stated at the hearing of the said motion, the Rules, legislation and the timelines set by them have a purpose, namely that child protection matters be dealt with in a timely manner, in the best interests of the children involved, and that the children are not left lingering. Given the significant length of time these children have been in care, it was appropriate and in their best interests to proceed with the hearing of the appeal. Further, the appellant acknowledged that for the most part the two children had been dealt with separately and/or as going down separate paths for their care. It was further acknowledged that it could take some time before the proceeding involving Z.K. would or could be resolved by the Court, namely well into 2016.

CONCLUSION

[102] A review of the appeal record indicates that the findings and conclusions reached by Justice Villeneuve were well founded and supported by the evidence before him on the motions. He delivered adequate reasoned reasons for his decision. He correctly applied the test for summary judgment under rule 16 of the Family Law Rules, O. Reg. 114/99, s. 37(2) (b) of the CFSA that addresses when a child is in need of protection, the options available to the court under s. 57(1) CFSA, the best interests of the child under s. 37(3) of the CFSA and the test for access to Crown wards under s. 59(2.1) of the CFSA. His decision is entitled to deference.

ORDER

[103] The appeal is dismissed.

Rasaiah J.

Released: October 16, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA

• and -

A.K.1

REASONS ON APPEAL

Rasaiah J.

Released: October 16, 2015