SUPERIOR COURT OF JUSTICE - ONTARIO
CITATION: Frontenac Children’s Aid Society v. R.G. 2015 ONSC 909
COURT FILE NO.: 655/11 Kingston
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of
RE: Frontenac Children’s Aid Society v. R.G. and G.G.
BEFORE: Justice Rick Leroy
COUNSEL: Ayana Hutchinson, Counsel for the Frontenac Children’s Aid Society
Peter McCullough, Counsel for the Respondent, R.G.
Stephen L. Zap, Counsel for the Respondent, G.G.
DATE HEARD: January 26, 2015 in Kingston
ENDORSEMENT ON MOTION
INTRODUCTION
[1] In this case, the mother’s love for her children, best of intentions, commitment to be as good as she can be for her children and willingness to try to learn better parenting skills postponed the inevitable. The process this far for this family has extended extensive resources targeting panoptic parental dysfunction that may be or appears to be immutable. This outcome was manifest in July 2013 when the re-integration initiative failed. If the outcome was not discernible then, it surely crystallized in May 2014 when the FCC assessment was released. That might have been the time to begin negotiations to establish openness expectations.
[2] It is never comfortable for a CAS worker to draw the line when the parents try so hard and are congenial in their dealings. Family, when it can be accommodated, is central to best interests of the children. The CAS file began in 1998. The legal proceedings have been not quite continuous. Notwithstanding good intention and extensive community resource, the mom remains oblivious to her children’s special needs on an array of domains, not by choice but by intellectual incapacity. She is unable to discern her profound incapacity to fill the role of primary parent and has resisted CAS overture for 16 years and counting.
[3] This is the Society’s motion for summary judgment under Rule16. The society seeks an order for Crown wardship, without access, for two children, namely DLG born […], 2003 – 11 and HEG born […], 2006 – 8. They are special needs children. DLH functions at the bottom of the 1st percentile, meets the diagnostic criteria for intellectual disability and is afflicted with ADHD. She will require support and supervision for the rest of her life. HEG has marginally higher function but requires the kind of permanence, security, stability and security required to resolve behavioural, emotional and academic deficits. She lacks the motor skill to brush her teeth. They have been in care since February 9, 2012 well beyond the time limits imposed in s. 70, even with extension. The disposition options do not include another period of Society wardship. The girls either become wards of the Crown or are returned home to the parent or another person with or without supervision.
[4] The burden is on the Society to establish there is no genuine issue requiring a trial. This equates to “no chance of success” and “plain and obvious that the action cannot succeed” – Prete v. Ontario 16 O.R. (3d) 161, 1993 CanLII 3386 (ON CA) leave to appeal to the S.C.C. refused, [1994] S.C.C. No. 46. The OCL supports the CAS.
[5] The mother concedes the children remain in need of protection. She argues that disposition is at large and to grant summary judgment, I need to be able to conclude cross-examination will not illuminate a path toward re-integration of the children in the mother‘s home.
[6] She argues in the alternative, that the Crown ward access issue, particularly in respect to sibling access options under the CFSA, is far from a given.
[7] The mother’s plan is limited to a return to her care. The father is not advancing a plan and supports the mother. In the alternative, she seeks a trial of the issue in relation to post Crown access.
[8] The parents separated on July 20, 2014 following the penultimate incident of domestic assault. He returned to the home on December 30, 2014 for the last assault. He is on probation and faces incarceration in respect to these charges.
[9] The threshold issue is whether the issue of whether the mother has the capacity to resume primary care of the girls requires a trial. The secondary issue is whether the access issue requires a trial.
CONCLUSION
[10] The Society motion for an order making the two girls wards of the Crown without access is granted. That result is inevitable, with or without trial. My summary of reasons is as follows.
FACTS
[11] The parents have four children of their own. The father has upwards of five others with various partners who are not involved in his life.
[12] This couple’s oldest child, KG was born […], 1996. The CAS opened their first file for this family in October 1998. The issues involved hygiene, cleanliness, neglect and an incident of excessive corporal discipline by the father. KG was placed with a maternal aunt for the third time in August 2002.
[13] The issues in the home over the ensuing years were chronic and involved hygiene; lack of knowledge and effectiveness in response to children’s needs; neglect of the needs of the children, inappropriate discipline and inability to follow through with positive parenting practices; insufficient supervision of the children; inappropriate living conditions – pet feces on kitchen floor and general filth; domestic abuse; inability to manage family finances. None of that is contested.
[14] The last child, GG was born […], 2011.
[15] The CAS has been active in the family under the aegis of legal proceedings continuously since December 2011. The Society intruded to the extent of a temporary supervision order on December 8, 2011. The primary terms included conditions in relation to maintaining a clean home, free of domestic violence.
[16] Mr. G assaulted Mrs. G after she intervened in a dispute between Mr. G and the oldest child, KG, age 13 at the time, in early January 2012. The CAS amended its application from supervision to Society wardship for the three youngest and supervision for KG placed with her maternal aunt.
[17] The three youngest children were apprehended on February 9, 2012. KG, the oldest, was returned to the maternal aunt who obtained a custody order in December 2012. The apprehension was confirmed and the FCC assessment was ordered by Justice Linhares De Sousa, following a care and custody hearing on May 14, 2012.
[18] GG was made a Crown ward without access for purposes of adoption on June 20, 2013, on consent. GG resides with his adoptive parents. In the meantime, HEG was placed with the same foster parents. These parents declared their interest in and are approved to adopt HEG as well, but will not engage if there is a Court order for access or directed openness.
[19] The motivated parents enrolled in community resource programs targeting positive parenting practices, literacy, cleanliness practices, hygiene practices, play skills and budgeting.
[20] While that was happening, the girls did well in foster care. HEG demonstrated some learning capacity.
[21] The objective at the time was to re-integrate DLK and HEG into the home with supports in place. They began an experimental incremental process designed to transition home. In retrospection, their aspiration was chimera.
[22] Access to DLG and HEG was increased to unsupervised overnights, three weekly, beginning May 7, 2013. The impact on the children’s function was immediate across multiple domains. The school observed that the girls were tired, their clothing was unclean, they attended with inadequate lunches and there was an immediate deterioration in their function in the school setting. HEG’s circumstance is that she is afflicted with impulsivity, inattention and hyperactivity. Her symptoms exacerbated. The CAS workers observed a commensurate deterioration in home maintenance. Over the experimental period, household hygiene and cleanliness declined again below community standards.
[23] A common thread from collateral sources is that the parents seemed oblivious to the emotional, social, mental health and behavioral needs of their children.
[24] The mom was unable to apply positive parenting practices. Neither parent was able to maintain beneficial disciplinary practice, strategies to respond to the special needs of the children, including their developmental, emotional or behavioral needs.
[25] The theme of the CAS/OCL argument is the DLG and HEG have above average needs and below average parents. That is reinforced by the FCC assessment delivered May 5, 2014, page 13.
“Perhaps the most important feature to consider when evaluation parenting capacity are the needs of the children themselves. All four of the G children were identified at various times as having special needs. DLG was diagnosed as having developmental delay and ADHD. HEG struggles academically and was placed in a special classroom environment to deal with emotional and behavioral issues. GG was showing early signs of global development delays. As such, both Mr. and Mrs. G are expected to demonstrate more advanced parenting advocacy and care skills than would normally be expected in order to properly care for all of the children. Without advanced parenting skills there is an increased risk of more maladaptive development pathway for the children.”
[26] Mrs. G was raised in an impoverished environment and often neglected. As a child, she was unattached to her parents. She was socially marginalized through school. She was referred to children’s mental health services at a young age for both learning and speech-related concerns. She reported verbal and physical abuse perpetrated by Mr. G on multiple (5 or more incidents of physical assault) occasions through their relationship. She struggles with depression.
[27] The assessors observed that Mrs. G was aware of the special needs of her children and tried to implement strategies recommended by the Society and understood the reasoning. She responds to prompting. She is unable to implement strategies or adapt them independently.
[28] There are positives. Mrs. G recognizes that some of her parenting criticisms were fair. She has capacity for empathy. She feels remorse for past mistakes. She loves her children and they her. Her motivation to improve parenting skills appeared intrinsic. Her treatment amenability was assessed as high. Barriers to achievement were seen as intellectual functioning and lack of social support. Those are effectively immutable.
[29] DLG has positive attachments with her parents. She is developmentally delayed and has ADHD with behavioural and academic difficulties. She strives for attention. Her significant global delays require specialized and individualized supports throughout her lifetime.
[30] HEG had a positive attachment to her parents, which may have been eroded over the last year by placement with GG in the adoptive foster home. The more current reports suggest she has committed to life there and is less patient with the chaos involved in contact with parents and DLG. She is special needs and requires intense supervision.
[31] The psychological test results cited at pages 15 – 19 of the assessment are consistent with observed behaviour. The Synthesis portion of the assessment concludes it is clear that Mrs. G has basic parenting knowledge and skills. Her ability to monitor and supervise as well as utilize parenting resources and consistently apply learned advanced skill remains highly suspect. Her parenting capacity is short of the needs of her children.
[32] In a motion for summary judgment, the responding party is expected to respond with full force and effect. Mrs. G’s affidavit at tab 10, Volume III is her effort at raising triable issues.
[33] The test for granting summary judgment is met when the moving party satisfies the Court there is no genuine issue of material fact requiring trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact or question of credibility must be material. (Children’s aid Society of Toronto v. T.K., 2000 CanLII 20578 (ON CJ), [2000] O.J. No. 4736) – The Catholic Children’s Aid Society of Hamilton v. L.H. and P.M. 2008 CanLII 59556 – Pazaratz J.
[34] The resolution of corollary issues does not require a trial.
[35] Her disputes are corollary. I reviewed the affidavit in search of a material fact in issue and none rose up. The one factor requiring comment is the submission to the point that Mrs. G went into a swoon after the latest domestic assault and the separation thereby aggravating the various housekeeping, budgeting and perception deficits. The submission is that she is in recovery and if she can delay to trial this summer her presentation will be significantly improved.
[36] That disregards the last 16 years of CAS intervention, the reasons for it, the experiences and her own psychological and intellectual limitations. The more recent CAS affidavits depict the same chronic multi-domain protection issues. Mrs. G does not raise issues regarding the core protection grounds. That the girls remain in need of protection is not contested. They cannot safely go home. Plans are in place to secure approved adoption homes for the girls and to prolong this sustains their litigation drift.
[37] Mrs. G has no chance of success on the Crown wardship issue.
Access Issue
[38] The CAS and OCL advocate for an order without access. The parents’ position is that, at the very least, this is a material issue requiring a trial.
[39] The commencement point is s. 59.(2.1) of the CFSA which provides that:
Access: Crown Ward
(2.1) A 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, 2006 c.5, s. 17(2).
[40] This constraint applies to access to the child and child’s access to a person referred to in s. 58.
[41] In this case, HEG’s proposed adoptive parents have said they will not proceed with the adoption fettered by an access or openness order. They agree to facilitate access between the children so long as they observe it be in her best interests. They are reluctant to facilitate physical access to Mrs. G and will not do so for Mr. G.
[42] HEG has declared her bond to the adoptive parents and GG. They are her functional psychological parents now. She is said to thrive in their home. While an order for sibling access may not legally obstruct an adoption (G.(A.), Re 2009 CarswellOnt 4001), on the facts presented and not challenged, it will effectively sunder this apparently favourable adoption. Even a cursory look at the court file raises the specter of interminable litigation on the details. That cannot be in her best interests. The adoption offers permanency and security.
[43] A kin adoptive placement has been confirmed for DLG. These parents are of the same perspective as HEG’s adoptive parents on the issue of sibling and parental access, although the prospects for voluntary physical access with Mrs. G are more positive.
[44] The only information is that KG, notwithstanding her recent affidavit, is not attached to her siblings, nor they to her. There were two perfunctory contacts over the last year. At this time, she is her parents’ vicarious surrogate in the access context.
[45] Adoptions for these two profoundly special needs children is a most favourable outcome. An order for access to or for the child on the facts jeopardizes their adoption plans and accordingly cannot issue.
Obiter
[46] This is not news to counsel on the file. This is a beginning for these girls. The voluntary openness continuum can range between the exchanging of non-identifying information through a third party, to arrangements for face-to-face contact and many implementations of openness in between. Openness should always be considered when permanency plans are being discussed for a child or youth. What is best for the youth will evolve as time passes. I urge counsel to help with the crafting of a reasonable voluntary set of expectations. The educational component for the parents includes recognition of the premise they are not the legal parents of the girls and their role is to support the placements and, if they succeed, everyone benefits.
Justice Rick Leroy
RELEASED: February 9, 2015
2015 ONSC 909
COURT FILE NO.: 655-11 Kingston
SUPERIOR COURT OF JUSTICE - ONTARIO
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of
RE: Frontenac Children’s Aid Society v. R.G. and G.G.
BEFORE: Justice Rick Leroy
COUNSEL: Ayana Hutchinson, Counsel for the Frontenac Children’s Aid Society
Peter S. McCullough, Counsel for the Respondent, R.G.
Stephen L. Zap, Counsel for the Respondent G.G.
ENDORSEMENT ON MOTION
Justice Rick Leroy
RELEASED: February 9, 2015