CITATION: Children’s Aid Society of Ottawa v. N., 2016 ONSC 1202

COURT FILE NO.: FC-14-114-2

DATE: 2016/02/19

ONTARIO

SUPERIOR COURT OF JUSTICE

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 L.N. (DOB […], 2007), S.N. (DOB […], 2009) and N.N. (DOB […], 2013)

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

D.N. (Respondent Mother)

A.N. (Respondent Father)

Respondents

Lara Malashenko, for the Applicant

Diana Aoun, for the Respondent Mother

Jason Gilbert, for the Respondent Father

HEARD: February 3, 2016 (at Ottawa)

REASONS ON SUMMARY JUDGMENT MOTION

M. LINHARES DE SOUSA J.

INTRODUCTION

[1] The Children’s Aid Society of Ottawa (the “Society”) brings this motion for summary judgment pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99. It seeks an order granting that the three children, who are the subject of the Status Review Application before the Court, namely, L.N. (DOB […], 2007), S.N. (DOB […], 2009) and N.N. (DOB […], 2013) be declared wards of the Crown for the purpose of adoption. The Society’s plan is that the three children be adopted by a kin family, a maternal aunt, O.N. with whom the children have been living, together with their maternal grandmother, since June 27, 2014.

THE PARTIES AND THEIR POSITION

[2] The Society argues that the evidence it presents on this motion demonstrates that there is no genuine issue requiring a trial and that the Court is able to conclude on the motion material that the order which it seeks is in the best interests of the three children. They also argue that there should not be an order for access to the mother of the children, D.N., because the relationship between the mother and the children is neither beneficial nor meaningful.

[3] The father of the children, A.N., supports the Society in its summary judgment motion. He has not presented his own plan of care for the children. Mr. N. continues to deal with his addictions issues and is also facing some outstanding criminal proceedings. It is conceded that he, himself, is not in a position to care for the children at this time.

[4] The mother of the children, D.N., contests the Society’s motion. She has presented a plan of care in the Status Review Application, requesting that the children be returned to her care. It is her position that the evidence as a whole demonstrates that there is a genuine issue for trial and that the best interests of the children lie with their being returned to her care. She requests that the summary judgment motion be dismissed and that the matter proceed to a trial.

[5] In the event that summary judgment is granted, she seeks an order for continuing access between herself and the children.

THE LAW CONCERNING SUMMARY JUDGMENT

[6] The law dealing with summary judgment motions was not contested by the parties.

[7] This summary judgment motion is brought pursuant to Rule 16 of the Family Law Rules (“FLR”) which applies to child protection cases such as the Status Review Application before the Court.

[8] The test for determining what decision the Court is to make on a Status Review Application is that which is in the best interests of the children (s. 65 of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. [“CFSA”]). The factors which the Court is to consider when deciding the best interests of children can be found in s. 37(3) of the CFSA.

[9] Rule 16(6) of the FLR and jurisprudence decided under that Rule mandates that where there is “no genuine issue requiring a trial”, the Court shall grant a summary judgment. (See also Children’s Aid Society of Ottawa v. M.C., 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373. Furthermore, the “genuine issue” referred to in this mandate must relate to a material fact or facts. It is not just every mere factual conflict that will preclude the granting of a summary judgment.

[10] In a recent decision of the Supreme Court of Canada, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Court gave further directions to trial Courts as to how they should proceed when faced with a summary judgment application. In that decision, the Supreme Court confirmed that a full-fledged trial is not required for all cases. Summary judgment can be a proportionate, more expeditious and less expensive means to achieve an equally just result. There will be no genuine issue requiring a trial on a summary judgment motion when the judge is able to reach a fair and just determination on the merits of the case. In those cases, the judge will be able to make the necessary findings of facts and apply the appropriate law to the facts to reach a just decision.

[11] While the decision of Hryniak, was decided in a non-child protection civil matter, there is no question that the principles enunciated in that decision by the Supreme Court have been applied numerous times to child protection cases. (See Children’s Aid Society of Ottawa v. R.N.T., 2014 ONSC 916).

[12] Nonetheless, because of profound interests at stake in a child protection matter, particularly where the order requested of the Court is one for Crown Wardship, the Court, in matters of this kind ought to proceed cautiously and ensure complete fairness to the parties with the best interests of the children in mind. (See Children’s Aid Society of Ottawa v. C.M.). All of the evidence, a full evidentiary record, must be considered properly, with a “good hard look” at the evidence on the motion. (See Children’s Aid Society of Ottawa v. M.C. and B. (F.) v. G. (S.) (2001), 2001 CanLII 28231 (ON SC), 199 D.L.R. (4th) 554, 2001 CarswellOnt 1413.

[13] In summary judgment motions the court, in the course of its careful evidentiary examination, has enhanced fact-finding powers as a result of a recent amendment made to Rule 16, found in Rule 16(16.1) of the FLR. This Rule amendment cleared up any uncertainty which had arisen in some recent case law as to whether such enhanced fact-finding powers were available to the Court in child protection summary judgment motions. The Court may on the summary motion material, weigh the evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence in deciding whether there was a genuine issue for trial. (See Rule 16(16.1).

[14] Where the moving party presents a “prima facie’ case for summary judgment pursuant to Rule 16 of the FLR, the onus lies on the responding party to provide evidence to rebut the moving party’s case. (See Children’s Aid Society of Ottawa v. M.C.). To present mere allegations or denials of the moving party’s pleadings is not sufficient to rebut the moving party’s “prima facie” case. Rather, they must provide evidence, specific facts showing that there is a genuine issue for trial. (See Children`s Aid Society of Ottawa v. B.C., 2010 CarswellOnt 9899 (S.C.J.) and Steine v. Steine, 2010 ONSC 4289, 2010 CarswellOnt 5739; and Children’s Aid Society of Hamilton v. M.A., 2007 CarswellOnt 3977 and Children’s Aid Society of Ottawa v. C.A.

[15] More specifically, in cases of this kind, and always keeping in mind the paramount and other purposes enunciated in the CFSA, the decision of whether or not there is a genuine issue for trial will necessarily have to consider and include the nature of the evidence, the reasonableness of any potential plan, the review of the likelihood of success of the parties, the statutory time frames and the statutory imperative to ensure timely permanency planning for the children. (See Childrens Aid Society of Algoma v. P.L., 2002 CarswellOnt 2484; B.(F.) v. G.(S.), and Childrens Aid Society of Ottawa v. C.M.

RELEVANT FACTUAL BACKGROUND

[16] From the totality of the evidence presented on the summary judgment motion, this Court is able to have a comprehensive knowledge and understanding of the facts of this Court. The relevant facts are as follows.

Facts Leading to the Apprehension of the children

[17] The three children were apprehended from the care of their parents on January 20, 2014. They remained in foster care until June 27, 2014, a period of almost five months. At that time, after a comprehensive kinship assessment was completed and approved, the three children were placed in the care of Ms. A. and O.N., the paternal grandmother and aunt of the children, where they have remained since that time, a period of approximately a little under two years.

[18] Ms. D.N. is also the mother of two older children, A.K. (19 years old) and K.K. (17 years old). A. is now an adult and lives with her partner and has children of her own. K., who lived with his mother and stepfather at the time of the children’s apprehension, went to live with his biological father in Nova Scotia.

[19] Prior to the current involvement of the Society with this family, there had been previous involvements of the Society involving all of Ms. D.N.’s children dating back to 2001 (involving a previous partner of Ms. D.N.), 2009 (involving Mr. N. and conflict with A.) and 2011 (domestic violence and substance abuse in the N. home involving Ms. D.N. and Mr. N. but also concerns regarding A.’s own drug use, absenteeism from school and sexual assault).

[20] After their apprehension, the three children in this case became the subject of two consent final orders. The first was granted on June 26, 2014, placing L., S. and N. in the care of their paternal grandmother, Ms. A., and paternal aunt, Ms. O.N. by way of a supervision order. On January 22, 2015, on a Status Review Application, the Society sought an extension of the supervision order to the paternal aunt and grandmother. That application was granted on consent of both parents and remains the existing order.

Amendment of Status Review Application to Crown Wardship and Kinship Plan

[21] On April 16, 2015, the Society amended its Status Review Application seeking an order of Crown Wardship for the three children with the purpose of adoption by the paternal aunt, Ms. O.N. Ms. O.N. was, at that time, presenting a permanent adoption plan for the three children. After an assessment process in June 2015, the permanency plan of the paternal aunt was completed and approved by the Society. This remains the plan of care of the Society.

[22] It is not contested that when the children were apprehended in January of 2014, neither parent was able to care for the children. The protection concerns at that time were longstanding concerns and which had brought the Society to be involved with Ms. D.N.’s children in 2001, 2009 and 2011. The protection concerns were substance abuse by both parents, including hard drugs such as crack cocaine and including the admitted daily use of marijuana on the part of the mother and the fact that Mr. N. was in an “excited delirium” having been consuming marijuana since the early morning of the day the children were apprehended; domestic violence between the two parents as well as other violent incidents involving individuals, all while the children were in the home; multiple police occurrences and criminal behaviour on the part of Ms. D.N. resulting in criminal charges, fraud, break and enter, theft and destruction of property. There was also a concern about Ms. N.’s mental health.

[23] At the time of the apprehension, the Society reports, that although interviewed, none of the three children reported any child protection concerns.

[24] Ms. E.S-L. Ms. N.’s mother, who affirmed in her affidavit dated December 2011, that she lived with the family since 2003 and had an integral role in the children’s lives and was involved in their day-to-day care, affirmed that she never witnessed the children being abused. Ms. S-L was, however, concerned that the parental fighting might negatively affect the children. Ms. S-L appears to have been well aware of the parents’ abuse of drugs and alcohol. From the evidence it is clear, despite the reports of the children upon their apprehension, these children witnessed serious adult conflict in their home, not only between their parents but also with other individuals who were permitted to enter the home.

[25] By way of their consent orders of June 26, 2014, and January 22, 2015, whereby the parents agreed to have the paternal grandmother and aunt care for the children, the parents acknowledged that the children were in need of protection based on the grounds of the parents’ failure to adequately, care for or provide for, supervise or protect the children, or they demonstrated a pattern of neglect in providing for, caring for or supervising or protecting their children and that there was a risk that the children would suffer emotional harm from the conduct of the parents.

[26] It is acknowledged that Ms. N. admitted in her affidavit dated December 11, 2015, that at the time of those two orders, it was in the best interests of the children to remain in the care of their maternal grandmother and aunt and that she could not properly parent her children because of her “recreational drug use”, instability and her “undiagnosed mental health issues”. Ms. N. stated in her Answer and Plan of care dated December 2014, that she was essentially doing everything she could do to deal with her problems and wanted to “be there for the children in the future.” This was almost one year after the children had been apprehended.

First year after the Apprehension

[27] It would appear from the evidence that for the first six months, approximately, after the apprehension of the children, Ms. N. continued to abuse drugs, remain unstable and had to face a number of criminal charges. She missed visits with the Society case workers. The Society workers who had contact with Ms. N. report that she remained evasive and uncooperative. Ms. N. completed random urine drug screen in February of 2014 with positive results for THC and cocaine and was prohibited from breast feeding N. any longer. At this time, although given generous access time to the children, Ms. N.’s access to the children was erratic and at times had to be cutback because of her many absences, late arrivals or early terminations.

[28] From the evidence it appears to be a period of time when Ms. N. during her meetings with the Society case worker acknowledged that she needed help and services regarding her addiction and mental health, expressed intentions to contact the services, such as the Ottawa Addictions and Access and Referral Services, Amethyst House and NA groups. However, Ms. N. does not appear to have consistently followed through with these verbalized intentions at that time. Various services were recommended to Ms. N. from January to June 2014, by the Society case worker. While Ms. N. may have made initial contact with some services at this time, there is no evidence that she consistently followed through with any of them. Ms. N.’s consents, which would have permitted the Society to verify Ms. N.’s declared intentions to pursue and follow through with the needed services were never received. These consents were only received by the Society as late as August of 2015.

[29] Ms. N. herself indicates in her Affidavit of December 11, 2015, that in the spring and summer following the apprehension of the children she continued her drug use including hard drugs, which was also verified by positive drug tests, and was unstable. She indicates that she was not aware then of her mental health issues.

[30] In June of 2014 Ms. N. was voluntarily admitted to the Queensway Carleton Hospital but was discharged after a short period of time as that hospital did not have the appropriate program regarding addictions services which Ms. N. apparently needed. Ms. N. was referred to the Royal Ottawa Hospital’s Concurrent Disorders Program.

[31] Ms. N. was finally admitted to the Royal Ottawa Hospital at the end of August 2014. Her stay at the Royal Ottawa included a number of crisis interventions, drug screens and a full psychiatric assessment. Ms. N. upon her admission to the Royal Ottawa specifically refused to release the results of her drug screens to the Society. Upon the completion of her psychiatric assessment, Ms. N. was diagnosed with Post Traumatic Stress Disorder as well as Borderline Personality Disorder.

[32] In September of 2014, Ms. N. was discharged from the Royal Ottawa. She very much wanted to be admitted immediately to the Detox Unit and then the Meadow Creek drug rehabilitation program but was not permitted to do so without further assessment from Dr. Schnair who would be treating her at Meadow Creek.

[33] During this period of time when Ms. N. was not in hospital, she began to live with her mother, Ms. S-L., whom she saw as a support to helping her keep her sobriety. Their residence is a four bedroom subsidized house, could and can accommodate the children. Ms. N. currently lives with her mother and intends to continue to live with her mother, which forms part of her plan to care for the children if they are returned to her care.

[34] Sometime in the spring of 2014, the Society became aware that Ms. N. had also commenced a relationship with an individual, M.D., who has himself had contact with the Society regarding his own children. To the Society’s knowledge Mr. D. also has a history of drug use and has been incarcerated for drug trafficking.

[35] The evidence at this trial reveals very little about the ongoing relationship between Ms. N. and Mr. D. He does not form an integral and active part of Ms. N.’s plan of care for the children. She has informed the Society, at times, that she is no longer seeing Mr. D. when the Society case worker had evidence to the contrary. Ms. N. acknowledges in her affidavit of December 11, 2015 that she is in a relationship with M.D. but that she did not tell the Society the truth about this because she was “scared and fearful”. She does not really explain why this is.

Second year after the Apprehension

[36] As far as Ms. N.’s drug abuse, things began noticeably to change for the better in the early months of 2015. The children at that point had been subject to a child protection order since January of 2014 and had been in the care of their paternal grandmother and aunt for a little over seven months.

[37] On February 9, 2015, after a number of mandatory pre-admission sessions, Ms. N. commenced a detox stabilization program at the ROH. On February 26, 2015 Ms. N. moved to the Meadow Creek Program. The evidence supports the conclusion that Ms. N.’s participation in the Meadow Creek Program was a success. Reports to the Society from that Program were that Ms. N. was engaged. During her time there, she was given passes to be out in the community to spend time with her family and upon return urine drug screens were undertaken. It is Ms. N.’s evidence that the last time she used drugs was marijuana in February 2015 and nothing since then. There is nothing to contradict this evidence. In fact, a series of drug tests, undertaken voluntarily by Ms. N. at Recovery Ottawa on November 19, 2015, December 4, 2015, and December 7, 2015, were all negative.

[38] On March 24, 2015, Ms. N. was discharged from the Meadow Creek Program and resumed living with her mother. An out-patient after care program was arranged for her to follow. She attended the aftercare program at the Royal Ottawa for eight weeks.

[39] In July of 2015, Ms. N. dealt with her outstanding criminal charges by pleading guilty to mischief, prowl at night and possess of stolen property. She received a six months conditional discharge. One of the conditions was community service which she completed at the St. Joe’s Women’s Centre. By mid-September she had completed ten hours of such service. At the time of the hearing of the motion Ms. N. did not have any outstanding charges.

[40] Ms. N. has continued to see Dr. Schnair regularly at the Royal Ottawa Hospital. She appears to remain stable, compliant with her treatment and taking all of her prescribed medication.

[41] Ms. N. affirmed that she attends Narcotics Anonymous meetings in the community.

[42] On January 28, 2016, Ms. N. attended and participated in a one day parenting course entitled “Effective Parenting through Positive Discipline.”

[43] Ms. N. has sought out and registered in some personal counselling programs, such as a program called “Women’s working with emotions”. This enrollment was confirmed by a letter signed by Dre. Isabelle Ares of the Substance Use and Concurrent disorders Program at the Royal Ottawa Mental Health Centre. This program commenced on January 7, 2016, and as at the time of the hearing of the motion, Ms. N. had attended this program.

[44] Ms. N. has also been involved with “Voicefound”, a survivor-led organization providing services to survivor-victims of certain crimes, since October 2015 and has made contact with the Ottawa Coalition to End Human Trafficking.

[45] Ms. N. has expressed her intentions to pursue other programs, which had not yet commenced as of the date of the hearing. There is an Anger Management course provided by the Family Services Ottawa which begins in March of 2016. It was also the evidence of Ms. N. that she has learned of other voluntary after-care meetings at the Royal Ottawa Hospital which she intends to attend.

Access

[46] From the evidence one may conclude that for approximately the first year after the apprehension access between Ms. N. and her children remained problematic. Nonetheless, reports about the early period of access visits between Ms. N. and her children following the apprehension were positive. The foster mother of the children reported that the children were always happy to visit with their mother, spoke affectionately about her and missed her.

[47] It has already been mentioned that while Ms. N. was given generous access in the beginning and continued to ask for more access, her access had to be cut back because of her many absences, late arrivals and early terminations. In January 2015, Ms. N. was required to have a one hour check, prior to her visits, if the visit was to take place. Arranged phone access between Ms. N. and her children were not followed through by Ms. N.

[48] In the summer of 2015, after Ms. N. was unsuccessful on a motion in her attempts to prevent the trip, the kin family took the children on a family trip to Egypt. The children were absent from June 9, 2015 to August 11, 2015 and Skype communication was arranged to be had between Ms. N. and the children. Ms. N. did not follow through on this communication with the children even though they expected it. Ms. N. indicates she had difficulty connecting but does not appear to have done anything about it the whole time the children were away.

[49] Ms. N.’s interactions with the children during the access with her children were also problematic.

[50] The access supervisors reported that Ms. N. struggled with age appropriate conversation with the children and raised topics that should have been the subject of adult conversation and between adults only, and this as late as January 2015. On a visit in July 2014 a visit was ended early because Ms. N., to the observation of the supervisor appeared high on drugs, admitted to using drugs, slurred her speech, fell asleep during the visit and was non-compliant and aggressive with staff. Ms. N. struggled to control and have structure to the access visits and found dividing her time amongst the children difficult. She seemed to have trouble understanding that her youngest child could not tolerate sugary snacks without becoming sick.

[51] The Society case worker reports that since the early part of 2015, the reliability and quality of the access Ms. N. has enjoyed with her children has changed for the better, particularly after Ms. N. began to deal with her addiction and mental health issues and began to demonstrate some stability in her life.

[52] Since March 2015, the Society reports that Ms. N.’s visits with the children have become more regular and reliable to the point where her check-in time has been reduced. She is able to display affection to the children and organize activities. The snacks she now brings are healthier.

[53] Ms. N. has continued to have the right to have telephone contact with the children but this access has remained sporadic.

[54] More recently, strains from access with their mother have been observed by the two older children, L. and S. L. has been observed to demonstrate a marked disinterest in interacting with her mother during the supervised access. L. and S. have demonstrated a reluctance to attend access visits with their mother and are content to have the visits take place at the Society buildings rather than have them take place out in the community where the children have expressed a concern for safety.

[55] In the early months of 2014, allegations arose against Ms. N., concerning her physical discipline of L., as a result of certain reports made by L. to the kin family. Some of these allegations were confirmed by Mr. N. but he could not confirm some of the most serious allegations of physical abuse by Ms. N. against L.

[56] Ms. N. denies these allegations and takes the position that they are fabrications made up by the kin family, in particular the children’s paternal aunt, against her and for her own purpose in view of the fact that the paternal aunt has put forward a permanent plan for the adoption of the children. Ms. N. was not able to provide any evidence that would support her position that these allegations were fabricated and that L. was made to report them by the kin family.

[57] The Society investigated the allegations and through that investigation takes the position that L.’s disclosures were verified. Police were informed but did not pursue the matter any further.

The Children in Kin Care of the Paternal Aunt and Grandmother

[58] When the children were first apprehended the paternal aunt and grandmother came forward almost immediately with their offer to care for the children. When this did not happen immediately, relations between the kin family and the Society were strained. Relations between Ms. N. and the kin family have also been strained.

[59] Visits between the kin family and the children began gradually and increased overtime. With the consent of both parents, the children went to live with the kin family on June 27, 2014 and have remained there since. At that time both parents recognized that the kin family was able and willing to care for the children appropriately.

[60] That decision was clearly in the children’s best interests. There is no question, on the evidence, that all three children have settled in well with the kin family and are thriving in the structure and routine of the kin family. The schooling of the two older children is stable and progressing well. All three children are involved in sports and community activities. The observation of the Society worker of the children in the kinship home is that they are healthy and happy. The kin family has been able to provide the children with all of their needs, emotionally and physically.

[61] They have ensured that the children have continued to see their parents, despite the continued problematic behaviour of their parents since the apprehension. They have arranged for the two older children, L. and S. to see a counsellor to help them with their emotional life in view of what the children have experienced while in the care of their parents and after their apprehension.

[62] According to the Society, to the extent that it may be determined, through discussions with the children and others who have the opportunity to care for the children and observe them, the children are content to remain in the continuing care of their maternal grandmother and aunt.

[63] The kin family is agreeable to openness, namely to continuing visits between the children and both parents and encourage it as long as it is in the best interests of the children; as long as the parents are sober and do not place the children in any emotional or physical risk.

[64] Ms. N. recognizes that the children have a good relationship with the kin family with whom they live. She further states that if she were to have care of the children she would continue to facilitate a meaningful relationship with the kin family and the children’s father. Ms. N., however, does not believe that the kin family would do the same for her, her family or other children. She is convinced that the kin family has demonstrated their intent to alienate the children from her. Ms. N. has not provided any evidence to support this declaration.

APPLICATION OF THE FACTS TO THE LAW AND DISPOSITION

[65] The question for this Court is to determine, on all of the evidence presented, whether there is a genuine issue at trial to decide which of the two competing plans of care before the Court would be in the best interests of the children, L., S. and N.

[66] Ms. N. argues that the return of the children to her care, the biological parent, is the least disruptive alternative for the children, in their best interests and consistent with the purposes of the CFSA. She submits that, while her personal difficulties, challenges and her cohabitation with Mr. N., prevented her from parenting the children and necessitated the apprehension of the children in 2014, since that time she has, made substantial and sufficient progress with those difficulties to be able to care for her children, under a Supervision order if the Court deems it necessary. In light of that fact, Ms. N. argues that she ought to be given a real chance to demonstrate her ability to care for the children. Counsel for Ms. N. argues all of this evidence provided by the mother relating to the history of the case, her rehabilitation and her plan of care since the apprehension raises an issue for trial.

[67] The Society recognizes the substantial progress Ms. N. has made since the apprehension of the children two years ago, particularly with respect to her drug addiction and mental health issue which will continue to be an ongoing personal challenge for her in her parenting of the children. However, they argue that the evidence also shows a number of fault lines relating to Ms. N.’s capacity to parent the children as well as to cooperate with the Society under a Supervision Order.

[68] The Society argues that the relatively recent personal gains made by Ms. N. have taken a long time to happen. The children have been out of her care for a little over two years. During this period that children have thrived in the care of the kin family, and in the structures and the routine that family has been able to give them. They are happy and healthy. The Society argues that its plan of care for the children would be no disruption to their current life where it can be proven that they are doing well.

[69] According to the Society the evidence shows that there are still justified concerns about the sustainability of Ms. N.’s rehabilitation over a prolonged period of time, her recent and limited access to services such as parenting courses and personal counselling, her lack of follow-through with those services, until very recently and her dishonesty about her pursuit of those services over the last two years. The Society also points to the mother’s not being forthright with the Society concerning the true nature of her relationship with Mr. D. which is an unknown in her personal circumstances. The Society also points to the mother’s lack of follow-through in her communication with the children and the problems that continue to plague the access visits between Ms. N. and the two older children. The Society submits that all of these facts raises the possibility in the risk of failure in the mother’s plan of care which if granted would jeopardize their permanency planning and would be contrary to the best interests of the children.

[70] The evidence presented on the motion is sufficiently complete for the Court to consider the following relevant circumstances, as the Court is mandated to do under s. 37(3) of the CFSA and come to a fair and just conclusion as to what plan of care would be in the children’s best interests on the facts of this case.

[71] With respect to s. 37(3) 1 and 2 of the CFSA, the kin family has shown itself to provide appropriate care and to be able to meet all of the children’s physical, mental and emotional needs. They have introduced structure, routine and stability to the children’s lives where they are thriving. The kin family have sought out counselling for the children to assist them with their difficult experiences while in the care of their parents. The kin family is prepared to continue to meet the children’s physical, mental and emotional needs.

[72] Ms. N.’s ability to meet the children’s physical, mental and emotional needs will be dependent on the sustainability of her sobriety and continued management of her mental health issues. The progress she has made on these two challenges is to her credit. However, almost two years have passed since the children were apprehended, and Ms. N.’s progress in her efforts to deal with her personal issues, have begun only recently.

[73] Ms. N. has not been in a care giving role for her children for over two years and prior to that she demonstrated a pattern of neglect of her children. She continues to need guidance and assistance with her parenting skills. The services she has sought out for this are recent and limited.

[74] The stability, routine and structure of the home she could provide the children are uncertain on the evidence and one has only her past parenting record to assess that fact. She continues to struggle with dividing and managing her time amongst the children during her access with the children. Her mother, who will live with her as part of her plan, has helped care for the children in the past. Nonetheless, Ms. S-L was present in the children’s home in the past when the children witnessed serious parental conflict and appears to have been aware of her daughter’s serious addiction problems. Information about other individuals who may be part of Ms. N.’s life and frequent her home such as Mr. M.D., is unknown.

[75] With respect to s. 37(3) 3, either plan of care will be a continuation of the children’s cultural background with which the children are familiar.

[76] With respect to s. 37(3) 5 and 6 after experiencing the pattern of neglect in their parent’s care before being apprehended, these children were in need of a positive relationship with a parent and a secure place as a member of a family in order to develop appropriately. Over the last two years they have been given that by their kin family. While a period of adjustment was required when visits with the kin family with the children first began, the children clearly now have a positive relationship with the kin family, as recognized by the mother. The children, as a sibling unit, are thriving in the care of the kin family and clearly have only deepened their emotional ties to this side of their family. Given the young age of N. when she came into care, her paternal grandmother and aunt have been her effective caregivers for most of her life. The Society’s plan of care will continue this as well as be able to give the children the permanency that comes with an adoption. The mother’s plan of care will be a disruption of this stability in the children’s lives with a plan that has yet to be proven as permanent.

[77] Ms. N. and her mother question the kin family’s desire and willingness to continue the contact the children have with their mother and father and other extended family. Nonetheless, the kin family has continued to respect the access regime between the children and their parents, making them available for access, as determined and supervised by the Society. There is no evidence that they have not followed the direction of the Society with respect to the access regime of the children nor that they have favoured visits by Mr. N. over that of Ms. N. It is Ms. N. who has had an unsatisfactory record of attendance at access in the early part of the period of apprehension and who still does not take advantage of all of her opportunities to communicate with the children by telephone.

[78] The kin family has been willing to discuss an “openness” arrangement with the mother if the children were to be adopted by the kin family but Ms. N. has not wanted to discuss this with them.

[79] It is a fact that the children since coming into care and living with the paternal kin family have had very little contact with Ms. N.’s extended family and other children. The evidence showed that Ms. S-L has been able to join her daughter during some of the access visits. Ms. S-L recognizes that the ties between the children and their mother’s side of the family have been “strained”. Their older half-brother now lives in Nova Scotia with his father. Their older half- sister now has her own children. The focus of access has clearly been the visits and relationship between the mother and the children.

[80] With respect to s. 37(3) 7, these children experienced substantial disruption in their care as well as the separation from both their mother and father, at the time of the apprehension which was necessary for their protection. They are thriving in the continuity of care they have received over the last two years, a not unsubstantial period, from their kin family. The importance of this for the children continuing to thrive is obvious. The Society’s plan will assure that continuity. The mother’s plan of care which still carries with it many uncertainties about its sustainability, will introduce another disruption to the continuity of care for the children. Given the fact that their mother and father are permanently separated the mother’s plan will still not return these children to their original family unit.

[81] With respect to s. 37(3) 8, both plans of care have merits. Both plans will have the children remain with their biological family and kin. The mother’s plan will provide the children a return to a biological parent who cared for them at birth. It is not forgotten that one of the purposes of the CFSA is to provide the least disruptive alternative and to support the autonomy and integrity of the family unit. The mother’s plan is however, dependent on Ms. N. maintaining her sobriety, managing her mental health issue and taking on relationships that are not problematic for herself and the children. Furthermore, the mother’s plan will not be the family unit the children have known prior to their apprehension because Mr. and Ms. N. no longer and will no longer cohabit.

[82] The Society’s plan, while it provides for care by extended family member, rather than a biological parent, includes the adoption of the children by their paternal aunt and all of the permanency that an adoption entails. The Society’s plan of care, in addition to including the permanency of an adoption, also includes the positive continuity of care the children have been enjoying since their apprehension.

[83] With respect to s. 37(3) 9, there is evidence to indicate that the two older children are happy with the care of their paternal aunt and grandmother and are content to remain in their care. N.’s age is still very young for any such conclusion relating to her views and wishes. N. appears to enjoy visits with her mother and does not demonstrate the same problematic behaviour towards her mother as her two older siblings, as observed by the access supervisors.

[84] With respect to s. 37(3) 10, given the statutory time lines relating to permanency planning for children the ages of the three N. children delaying a final decision for the permanent care of these children is not in their best interests. The length of time it has taken Ms. N. to deal with her personal issues to get to a point to be able to realistically present her plan of care cannot be forgotten. It has been time at the expense of the uncertainty in the life of these children.

[85] With respect to s. 37(3) 11 and 12, the sustainability of the mother’s efforts at rehabilitation is relatively recent and is still an uncertainty on the evidence. In the result, it is clear that the mother’s plan of care carries with it a substantial risk of future breakdown justifying the finding that the children are in need of protection. Another disruption in the care of these children is not in their best interests.

[86] The Society’s plan of care does not have the same risks for the children. The adoption of the children by their paternal aunt does not preclude the possibility of the kin family arriving at an “openness” agreement with both parents relating to the continuity of visits between the children and both of their parents, in a manner that is in the best interests of the children. One cannot take issue with the fact that continued visits with their parents should only take place if it is in the best interests of the children. In fact, the kin family has demonstrated a willingness to engage in discussions about ongoing visits with the biological parents even after the children are adopted.

[87] In considering the totality of evidence in light of the factors enumerated in s. 37(3) of the CFSA, the paramount and other purposes of the CFSA, as well as the statutory timelines for permanency planning of children under that legislation, I come to the conclusion that there is no genuine issue for trial as to what is in the best interests of the children in this case and that a summary judgment ought to be granted ordering that the children be made Crown wards with a view to their adoption by their paternal aunt. It is ordered therefore that the three children be made Crown wards with a view to their adoption by their paternal aunt, O.N.

ACCESS AND CROWN WARDSHIP

[88] Is there an issue for trial concerning the question of continuing access with the children by Ms. N.?

[89] Pursuant to ss. 58 and 59 of the CFSA, the Court is to make an order for access to a Crown Ward if it 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

[90] The evidence presented on the motion indicates that the three children clearly have meaningful relationship with their mother. They know her as their biological mother. They have been affected emotionally by her presences at the visits as well as her absences and her failures to telephone or Skype. This has been demonstrated in L.’s behaviour towards her mother during the visits.

[91] N., the youngest child is excited to see her mother during the access and appears to enjoy her visits. For N. there is some benefit to the visits.

[92] On the evidence there is a question of the benefits the two older children are currently receiving from visits with their mother. L. and S. have been presenting problematic behaviour towards their mother during the access. Both of these older children are demonstrating some hesitation in attending visits with their mother. Behaviour is problematic before and after the visits.

[93] Access on these facts ought not to be able to impair the adoption and permanency planning for these three children as a sibling unit. They need the permanency and certainty which their adoption by their paternal aunt can give them.

[94] I am satisfied that a prima facie case has been made out and has not been rebutted that there ought not to be an access order in favour of Ms. N. I am satisfied on the evidence that the paternal aunt, who will be adopting these children, will deal with the children’s continuing contact with both of their biological parents in the best interests of the children. It should be left to the kin family and the two parents to reach an “openness” agreement for the continued visits with both parents.

M. Linhares de Sousa J.

Released: February 19, 2016