C.P. v. Children’s Aid Society of Brant, 2016 ONSC 1806

CITATION: C.P. v. Children’s Aid Society of Brant, 2016 ONSC 1806

COURT FILE NO.: FS-15-13

DATE: 2016/03/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.P. Appellant

– and –

Children’s Aid Society of Brant o/a Brant Family Services Respondent

Dariusz Wroblewski, for the Appellant

Nicole Soucie, for the Respondent Society

Linda Henry, for the Child

HEARD: December, 21, 2015

the Honourable Justice R. JOhn Harper

Appeal Reasons

Issues

[1] This is an appeal of an Order of The Honourable Justice Edwards dated December 5, 2014. Justice Edwards granted summary judgment to the Children’s Aid Society. By his order of December 5, 2014, Edwards J. made the child T.B. a Crown ward with no access for the purposes of adoption.

[2] Both the Children’s Aid Society and the child’s lawyer seek an order dismissing the appeal.

Background

[3] C.P. is the mother of two children, namely J.G.L.B. born […], 2008 and T.B., born, […], 2013.

[4] J.B. is the father of both children. However, pleadings were noted closed against him and he neither participated in the trial nor this appeal.

[5] The child J.G.L.B. was not the subject of this appeal. A previous order was made placing the child J.G.L.B. in the care of his paternal grandmother and step-grandfather subject to the Society’s supervision.

[6] The child T.B. was apprehended by the Society from the mother’s care on October 13, 2013. The child has been in the care of the Society since his apprehension.

Circumstances at the Time of the Summary Judgment Motion

[7] The child T.B. was found in need of protection on July 7, 2014. There was an agreed upon statement of facts filed at the time.

[8] The Society brought a summary judgment motion that was originally returnable on August 13, 2014. That motion was adjourned to allow the mother to obtain new counsel. When the matter returned to court in September 2014 the court set out time lines for the filing of material by all parties for the summary judgment hearing.

[9] The mother did not file any material as directed by the court. She attended at the summary judgment hearing on December 5, 2014 and requested an adjournment in order that she could complete certain programs and counselling that she had enrolled in so that she would be in a position to provide some positive reports to the court on the return of the motion. Justice Edwards declined to order an adjournment and the summary judgment motion proceeded.

Factual Background

[10] The agreed statement of facts and un-contradicted evidence of the Society workers that was before Justice Edwards at the hearing of the summary judgment motion revealed a long a chronic history on the part of the mother with substance abuse and criminal behaviour. Her substance abuse included her drug of choice, cocaine, opiates, oxycodone, and fentanyl.

[11] She had made efforts in the past to attempt to engage in drug counselling. However, those efforts did not result in her controlling her addiction. Her child T.B. was born with serious withdrawal from cocaine and other drugs. The hospital staff commented that this was one of the most severe cases of withdrawal they had seen with respect to a newborn child. The agreed statement of facts included a statement that the child’s skin was breaking down due to the amount of drugs in his system.

[12] Despite her child being apprehended and the Society setting out a plan to the mother that included programs and counselling to deal with her addiction, the mother continued to use and abuse drugs. Test results of the mother were positive for such drugs as cocaine, fentanyl, opiates and oxycodone throughout the months of April, May, June, July and August 2014.

The Mother’s Position at the Summary Judgement Hearing

[13] The mother did not dispute any of the above facts. Her counsel wanted an adjournment to allow the mother more time to show that she could remain sober for a lengthy period of time and that she has successfully engaged in counselling and other programs. Her counsel admitted to Justice Edwards, at the hearing, that his client was dragging her feet initially but she finally decided to turn her life around and she finally understands what she needs to do to accomplish this. Her counsel submitted to Justice Edwards and to me at this appeal that she is fully committed now to do what she needs to do.

The Grounds for Appeal

[14] The material grounds for appeal argued by the mother were:

a. Motions judge erred in law by not allowing the mother an adjournment of the summary judgment motion in order to be in a position to complete counselling and other programs;

b. Motions judge did not give proper consideration to all of the factors set out in section 57 of the Child and Family Services Act with respect to the best interest of the child;

c. Motions judge erred in fact and in law by not considering a less interventionist order to Crown wardship;

d. Motions judge did not consider all of the evidence presented by the mother at the summary judgment hearing;

e. Motions judge erred by not considering the lack of efforts of the Society in providing assistance to the mother.

The Law and Analysis

No granting an adjournment

[15] Whether or not an adjournment should be granted is an exercise in judicial discretion. An appellate court should only interfere with an exercise of discretion in circumstances where the hearing judge did not consider all of the relevant considerations.

i. In my view the mother did not comply with the pre-trial directions. She did not file any reply material prior to the summary judgment motion. She showed up at the hearing with no evidence to respond to the Society’s evidence. She had already been granted an adjournment to retain counsel and once counsel was retained her counsel agreed to the time lines for filing and to the dates set for the hearing. This resulted in a further three month delay in the process. At no time, until the start of the summary judgment hearing, did the mother claim she needed more time.

ii. The motions judge considered the length of time the child had been in care. The time limits for a child of this age (at the time of trial approximately 15 months old) had been exceeded. There was no evidence to demonstrate that an adjournment longer than 30 days would have consented to by the parties and the person caring for he child. Nor was there evidence that it would be in the best interest of the child. CFSA s. 51(1).

iii. The mother’s drug addiction had been an issue before the court for years before the child T.B. was born. The undisputed evidence was that her drug issues heightened when the child was born and for months thereafter. A further delay may have provided yet another opportunity to the mother to do what she needed to do but at the expense of the child.

[16] I reject this ground for appeal.

Remaining Grounds for Appeal

[17] I find that the remaining grounds for appeal have no merit. There was ample evidence that the mother had not addressed the very serious issues she needed to address within a time line that considers the welfare of this child. The evidence alluded to above, relative to the seriousness of the drug withdrawal and addiction that the child was born with set the foundation on which to measure and gains by the mother. Instead of putting her child first, she sadly chose to remain in the capture and downward spiral of cocaine and other mind altering drugs.

[18] Parents cannot merely articulate that “I am now ready and committed to do whatever it takes to get my child back”. Children cannot wait in limbo for such an epiphany to happen. The articulation by the mother, in this case, must also be viewed with the long history of drug dependency on her part and previous unsuccessful attempts to solve her substance abuse issues. All of that evidence was before Justice Edwards.

[19] Timelines with respect to children who are in care are set out in the CFSA for a definite reason. Very young children cannot stay in a state of uncertainty. It is not in their best interest. There comes a time when attempts to assist the parent must give way to permanency planning for the child.

[20] I reviewed the very similar legal considerations in the case of CAS v. K.R., 2014 ONSC 5982. This decision was upheld by the Divisional Court. (K.R. v CAS, 2015 ONSC 3769. In the Summary Judgment Motion at paragraph 26, I cited Pazaratz J. in the Children’s Aid Society of Hamilton v. A.M. and T.L. 2012 ONSC 6828 commencing at para. 68:

Summary judgment is a tool to control a child’s drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child's needs. The legal process should not be used to "buy" a parent time to develop the ability to parent. (Children’s Aid Society of Toronto v. H. (R.), 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.), paragraph 15). In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children’s Aid Society of Ottawa v. C. (S.), reflex, 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 (S.C.J.)).

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. (Children's Aid Society of Toronto v. R.H., 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853).

The court must assume that a responding parent has "put their best foot forward" in their responding material and that this is the most they have to offer at that stage. "The question becomes, how long is it reasonable to leave the children on hold and in limbo while it is determined whether another attempt to change the behaviour of the parent(s) will succeed?" (Kawartha-Haliburton Children's Aid Society v. W.M., 2003 CanLII 2441 (ON SC), [2003] O.J. No. 3903).

It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. (Worthington v. Worthington 2000 CanLII 22469 (ON SC), 13 R.F.L. (5th) 220; [2000] O.J. No. 4853).

While a parent's desire to "have their day in court" is understandable, delay — particularly needless delay, as contemplated by Rule 16 — must be considered from the child’s perspective. (Children’s Aid Society of Hamilton v. S.P., reflex, [2008] O.J. No. 4608 (S.C.J.)).

In all cases, the court must consider the primary objective of the Family Law Rules, set out in Rule 2.

[21] I find that Justice Edward followed all of the above considerations and I dismiss the Appeal with no costs.

Harper, J.

Released: March 11, 2016