SUPERIOR COURT OF JUSTICE - ONTARIO

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.: C-724/10

DATE: 2015-11-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s Aid Society of Hamilton, Applicant

AND:

S.B. and J.H., Respondents

BEFORE: The Honourable Mr. Justice R. J. Mazza

COUNSEL: Martha Tweedie for the Applicant

S.B., not in attendance

Sam Garcea for J.H.

HEARD: November 25, 2015

ENDORSEMENT

[1] This is an application brought by the Children’s Aid Society for summary judgment with respect to the child, N.H.

[2] The Society is seeking two orders. Firstly, that the child, N.H., be found in need of protection in accordance with Section 37 (2)(b)(ii) and 37 (2)(g) of the Child and Family Services Act; that the court find N.H. is non-Catholic, non-Native, and non-Indian; and an order that the child be made a ward of the Crown with no access to the child.

Background

[3] The mother of the child is S.B., born […], 1992, and the biological is J.H., born […], 1988. The mother has three other children, all of whom are not in her care.

[4] The child, K.S., was apprehended from the mother on April 15, 2010, and subsequent to a motion for summary judgment brought by the Society on July 3, 2012, she was placed in the custody of her paternal grandmother.

[5] The child, A.B.-H., was brought into care at birth pursuant to a Temporary Care Agreement. Then on August 9, 2012, as a result of a decision following a summary judgment motion brought by the Society, A.B.-H. was made a Crown ward without access.

[6] The child J.H. Jr. was born on […], 2012, and he was apprehended at birth and was returned to the parents’ care under a Supervision Order on February 13, 2013, but was re-apprehended on March 31, 2014.

[7] On October 14, 2014, the Society brought a further summary judgment motion. On October 17, 2014, J.H. Jr. was made a Crown ward without access.

[8] Regarding the child, N.H., who is the subject of these proceedings, the mother and father continue to demonstrate their parenting inefficiencies, which have been consistent since the apprehension of the oldest child, K.S., back in 2010.

[9] The lack of parenting skills aside, both parents have had a history of drug use with the mother relapsing recently; using methamphetamine with the father.

[10] Although the father admitted that he had an addiction to drug use and would seek treatment to address his substance abuse issues, although he initially contacted a drug treatment centre as recently as June 2015, he took no further steps to enter into a rehabilitation program.

[11] The mother continuously advised the family services worker that she had every intention to address her substance abuse, but took no further meaningful steps.

[12] In August 2015, both parents were arrested by the police after being found in possession of stolen property and crystal methamphetamine.

[13] As well, there is a significant history of domestic violence between the parents, which has never been resolved.

[14] The parents have also shown a lack of cooperation with the Society. They have not engaged in any meaningful or productive conversation with the worker. And they continued to minimize the Society’s concerns that they are unwilling to work with the Society.

[15] Moreover, they have demonstrated a pattern of poor attendance at scheduled access visits after N.H. was apprehended in March of 2015. Aside from consistent visits for the first two months, thereafter, visits became sporadic so that by July 2015 they had cancelled five visits and failed to attend two visits without notice. After each parent attended one more visit, the father on September 16, 2015, and the mother on September 28, 2015, they have not had any further visits.

[16] In addition to the above summary provided by Ms. Tweedie on behalf of the Society, Ms. Tweedie further submitted that there are no alternative placements for the child.

[17] Therefore, Ms. Tweedie is asking the court for an order of Crown wardship with no access.

No submissions By Either Parent

[18] The maternal grandmother, J.L., briefly testified that her daughter is currently incarcerated in Vanier Institute on charges of possession of an illicit drug, stolen property over $1,000.00, and assault.

[19] The mother was unable to arrange for a surety; she did not attend the hearing, nor was she represented.

[20] The father was represented by Mr. Garcea, who advised the court that he is unaware of the whereabouts of his client, who is currently eluding capture by the police. Therefore, Mr. Garcea was unable to obtain instructions, which prevented him from preparing a factum or making submissions on the substantive issues.

Analysis and Conclusion

[21] On a motion for summary judgment, the onus is on the moving party to move the non-existence of a genuine issue for trial. The factors in assessing whether the Society has met its obligation of showing that no genuine issue for trial exists has been well established in the various case law. In Children’s Aid Society of Oxford (County) v J(J) [203] 2208 (Ont. S.C.J.) Heeney J. stated as follows:

As to what constitutes “no genuine issue for trial”, the Ontario Court of Appeal has equated that phrase with “no chance of success” plain and obvious that the action cannot succeed. In the case of Catholic Children’s Aid Society Metropolitan Toronto v (LM) 139 D.L.R. (4th), Chapnik J. stated that it is appropriate to grant summary judgment “when the outcome is a foregone conclusion.” As stated in the case of the Children’s Aid Society of Simcoe (County) v S(C) [2001] O.J. No. 4915 (Ont. S.C.J.), in summary, the court stated that no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.

[22] Summary judgment is a tool to control a child’s time in litigation and allow for a permanent home for the child within a time frame that is sensitive to the child’s needs. In child protection proceedings, the genuineness of an issue must rise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernible from the parents’ evidence that she faces some better prospect 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 (Children’s Aid Society of Toronto v R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853).

[23] In the matter before me, given that I saw on the previous two summary judgments with respect to the other children, the parents have continued to fail to address the substance abuse issues, the serious issues of domestic violence, and have now become extensively involved with criminal activity, with the mother being currently incarcerated and unable to arrange a surety, and the father eluding the police.

[24] Therefore, after careful review of the affidavit material and in my consideration of Ms. Tweedie’s submissions and the legislation, I find that the evidence before this court demonstrates that the child will not face any better prospect if the matter went to trial.

[25] Based on the evidence before me, I find there is virtually no likelihood that the parents will improve satisfactorily, if at all, in the very near future.

[26] In the case of Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853, the court stated as follows:

“Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent’s [right] to correct parenting inadequacies must be balanced with a child’s right to appropriate development within a realistic time frame, if damage to the child is to be minimized.”

[27] Further, in the case of Worthington v. Worthington 2000 22469 (ON SC), 13 RFL (5th) 220:

“It is impossible for the respondent to overcome…many years of destructive ways with an 11th-hour reformation…no matter how sincere [their] intentions.”

[28] Therefore, based on my review of the evidence and in my consideration of counsel’s submissions, I find there is no genuine issue for trial and if the matter were to proceed to trial, the inevitable result would be an order for Crown Wardship with no access. Therefore, the motion for summary judgment is granted. There will be a finding of protection under Sections 37 (2)(b)(i) and 37 (2)(g); the child is found to be non-Native and non-eligible for Native or Indian status and non-Catholic.

[29] The child shall be made a ward of the Crown and placed in the care of the Society.

[30] With respect to the issue of access, Subsection 59 (2.1) of the Child and Family Services Act creates a presumption against access where the child is a Crown ward:

“Access: Crown ward

• [The] court shall not make or vary an access order made under Section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for adoption.”

[31] The parents seeking ongoing access must prove that the access was meaningful and beneficial to the child. The onus is not on the Society to prove that the child is adoptable. The onus is on the parent to prove that an order for ongoing access will not impair the child’s chances for adoption.

[32] Applying these standards to the case before me, on the totality of evidence, I find that any access between the child and the parents would not be meaningful and beneficial, and in fact would impair the child’s future opportunities for adoption. Accordingly, there will be an order for no access.

Mazza, J.

Date: November 26, 2015