INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Court File and Parties

COURT FILE NO.: 357/15 DATE: March 30, 2016 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Family and Children’s Services of Lanark, Leeds and Grenville Applicant

– and –

K.A. and M.G. Respondents

COUNSEL: Nicola Edmundson, for the Applicant Mark Fendley, for the Respondent, K.A. Cameron Croxall for the Respondent, M.G.

HEARD: January 14, 2016 (at Perth, ON)

Endorsement on Motion for Summary Judgment

Quigley, J.

[1] This is a Motion for Summary Judgment by the Applicant, Family and Children’s Services of Lanark, Leeds and Grenville (herein “the Society). The Respondents, K.A. (herein “the mother”) and M.G. (herein “the father”) oppose the motion.

[2] The Society is seeking a finding that the children, T.A. (born […], 2012) and W.G. (born […], 2013) are children in need of protection and that an Order of Crown Wardship is in the children’s best interests.

[3] The mother has filed an amended Answer seeking the return of the children to her and in the alternative, placement of the children with her brother, A.A. She has filed an affidavit in this motion which can be found at Tab 21 of Continuing Record. A.P., a friend of the mother, has filed an affidavit that can be found at Tab 22 of the Continuing Record in which she supports the mother in the return of the children to her. A.P. states that the mother can succeed as a parent and she has in the past seen her interacting with the boys as her “first priority”.

[4] The father has filed an amended Answer seeking placement of the children with him, “as the biological father”, and in the alternative, with his mother, T.G. He has served an affidavit in response to this Motion for Summary Judgment, which can be found at Tab 20 of the Continuing Record.

[5] The father in his affidavit questioned the paternity of the children. He claims that he conceded on the issue of paternity in order to continue his participation in this matter. Prior to the commencement of this motion, all of the parties provided DNA samples for the purpose of testing for paternity of the father.

[6] The mother now claims in her affidavit that the father of the child, W.G., is K.H, who has stated to her that he has no interest in being involved in the said child. The mother further confirms that the respondent, M.G., is the father of T.A.

[7] This summary judgment motion, which was to be heard on January 14th, was adjourned to February 3rd at the request of counsel for the mother. At the commencement of the adjournment, counsel for the mother and father requested a further adjournment to await the results of the DNA testing.

[8] The applicant opposed this adjournment. I rejected the respondents’ motions to adjourn on the basis on the fact that these children have been in care for over a year. I cannot see how the outcome of the paternity testing could in any way influence the decision with respect to these two respondents and, accordingly, the motion proceeded.

[9] The child protection concerns for this family are domestic violence, neglect and state of the home.

[10] The Society has been involved intermittently since May 2012, when the mother was pregnant with her first child, with the file remaining open continually since September 11, 2013.

[11] There have been a number of reports from police and other sources about the level of conflict between the mother and the father with incidents occurring in the presence of the children and which resulted in police intervention.

[12] The father has had criminal convictions and has been on probation with the requirement that he not be permitted in the mother’s home or around her person.

[13] There have been ongoing concerns about the state of the home with the parents being able to address the state of the home at times. There have also been concerns about the child, T.A., being out of the home unsupervised with the parents not being aware that he had left the home.

Affidavits of Marion Ratzinger dated January 14, 2015 & September 3, 2015

[14] The Society has alleged that the parents have not followed through on recommended community resources.

Affidavits of Marion Ratzinger dated January 14, 2015 & September 3, 2015 Affidavit of Judy Porter sworn January 8, 2016 Affidavit of Kristin Harriet sworn January 8, 2016

[15] The children were both apprehended without a warrant on Saturday, January 10, 2015, following a referral from Smiths Falls Police. Police had attended the home in response to a 911 call and an incident of domestic conflict. The father was under a no contact order through his probation order. He later turned himself in to police.

Affidavit of Marion Ratzinger dated January 14, 2015

[16] The state of the home was unhygienic and dirty with garbage and belongings strewn around. Police reported fecal matter to be on the walls of T.A.'s bedroom and on the floor elsewhere in the home; drug paraphernalia were present. Police and the after-hours worker reported that the smell of the home was overwhelming.

Affidavit of Marion Ratzinger dated January 14, 2015

[17] The Society has alleged that there have been ongoing incidents of domestic violence between the parents, who appear to have little hindsight into the effect this has been having on the children.

Affidavits of Marion Ratzinger dated January 14, 2015 & September 3, 2015 Affidavit of Judy Porter sworn January 8, 2016 Affidavit of Kristin Harriet sworn January 8, 2016

[18] The Society also alleges that the mother has been difficult to engage and at times has refused to cooperate with the Society.

Affidavits of Marion Ratzinger dated January 14, 2015 & September 3, 2015 Affidavit of Judy Porter sworn January 8, 2016 Affidavit of Kristin Harriet sworn January 8, 2016

[19] The father has been charged with assault and initially a non-contact order was in place. Once that order was changed the conflict continued. Neither the mother nor the father abided by the criminal no-contact order.

Affidavits of Marion Ratzinger dated January 14, 2015 & September 3, 2015

[20] There are concerns about the overall care the children received. On many occasions the home has been disorganized and dirty. The night of the apprehension the home environment was reported to be unacceptable and unsafe for children to live in.

Affidavits of Marion Ratzinger dated January 14, 2015 & September 3, 2015

[21] The children have remained in care since their apprehension from their mother's care on January 10, 2015. During the twelve months that the children, aged three and two years, have been in care no progress has been made by the parents.

Affidavit of Marion Ratzinger dated September 3, 2015 Affidavit of Judy Porter sworn January 8, 2016 Affidavit of Kristin Harriet sworn January 8, 2016

[22] The mother has not been attending access visits with her children on a regular basis, in fact she has missed more visits than she has attended. When missing visits was discussed with her, including the effect upon the children of attending and expecting to see her when she does not show up, she said that she would attend the next visit. She cancelled that visit. The Society alleges that she only attended four out of ten visits in December 2015. The visits which are of two hours’ duration are not supervised by the Rose Garden staff and the mother has difficulty managing the children’s behaviours.

Affidavit of Marion Ratzinger dated September 3, 2015 Affidavit of Judy Porter sworn January 8, 2016 Affidavit of Kristin Harriet sworn January 8, 2016

[23] In this motion, the mother claims that she only missed four of nine visits and that in fact one of the visits was cancelled by the Society’s worker. I find as a fact that the respondent mother did miss five of the nine visits and that the alleged visit that was cancelled by the Society was only cancelled after the mother’s failure to attend for the visit.

[24] The mother has not attended or sought out counselling for herself in a timely way as recommended.

Affidavit of Judy Porter dated January 8, 2016

[25] The mother does not have a residence of her own at this time and has no home for the boys. She stays with friends.

Affidavit of Judy Porter dated January 8, 2016

[26] The parents have not attended couple counselling. Their relationship has been on and off.

Affidavit of Judy Porter dated January 8, 2016

[27] The father has not attended access visits on a regular basis and has not seen the children since the end of April, 2015. He has advised that he has missed access due to being in jail and working away from home (with a carnival). He has not met with the workers and not taken any initiative to address outstanding issues. It is not clear what his plan is in terms of caring for the children.

Affidavit of Marion Ratzinger dated September 3, 2015 Affidavit of Judy Porter sworn January 8, 2016 Affidavit of Kristin Harriet sworn January 8, 2016

[28] A kin option was proposed for a family member who moved to southern Ontario; the agency in that jurisdiction conducted a kin assessment and she was not approved.

Affidavit of Kristin Harriet dated January 8, 2015

[29] The father's mother, T.G., was in court with him on an appearance prior to the amendment of the Protection Application and was suggested as a kin placement. The Society has attempted unsuccessfully to follow up with her and she has not contacted the agency despite indicating that she would do so. Neither she nor the father has followed through on this plan.

Affidavit of Kristin Harriet dated January 8, 2015

[30] The respondent father now claims that T.G. had not received the registered letters which he had signed for.

[31] The mother proposed a possible plan with her brother. He was not aware of a plan being put forward in his name. The Society contacted her brother who was not aware that the mother had put his name forward. He advised that he was not allowed to care for his own children. He agreed to meet with the worker but was not present at the address which he had provided when the worker attended and has not responded to or been in contact with the worker since that time.

Affidavit of Kristin Harriet dated January 8, 2015

[32] The Society alleges that the children are in need to protection and it is in their best interests to be made wards of the Crown and placed in the care of the Society. The plan is to place them in an adoptive home that is able to provide for them on a permanent basis.

Affidavit of Marion Ratzinger dated September 3, 2015 Affidavit of Judy Porter sworn January 8, 2016 Affidavit of Kristin Harriet sworn January 8, 2016

Law of Summary Judgment Motion

[33] To succeed on a summary judgment motion, the applicant must prove on a balance of probabilities that there is no genuine issue requiring a trial. "No genuine issue for trial" has been equated with "no chance of success" and "plain and obvious that the action cannot succeed": Children's Aid Society of Oxford (County) v. J. (J.), 2003 CanLII 2388 (Ont. S.C.) at para. 8. Other courts have held that there is no genuine issue for trial when the “outcome is a foregone conclusion” or when there is “no realistic possibility of an outcome other than that as sought by the applicant”: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.,) 1996 CanLII 7271 (Ont. S.C.) at para. 80; Children’s Aid Society of the Niagara Region v. S.C., 2008 CanLII 52309 (ON SC), 61 R.F.L. (6th) 328 (Ont. S.C.) at para. 43. Rule 16 is mandatory; if the court concludes that there is no genuine issue requiring a trial of a claim or defence, the court must make a final order accordingly.

[34] The burden is on the applicant to set out evidence of specific facts showing that there is no genuine issue requiring a trial. However, once the applicant makes a prima facie case, an evidentiary onus shifts to the respondent. The respondent must then point to evidence of specific facts showing that there is a genuine issue for trial: Children’s Aid Society of Northumberland v. K.S., 2012 ONSC 6847, 32 R.F.L. (7th) 87 (Div. Ct.) at para. 28. The respondent must put his/her best foot forward, and cannot rest on mere allegations or denials: Rule 16(4.1) of the Family Law Rules; Children’s Aid Society of Hamilton v. K.F., 2014 ONSC 576 at para. 37.

[35] The court must consider the full evidentiary record, and 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 614 at para. 5. The evidence tendered must be evidence that would be admissible at trial: Children’s Aid Society of Hamilton v. M.N., 2007 CanLII 13503 (Ont. S.C.) at para. 30.

[36] Hearsay evidence can only be admitted when it meets the criteria of necessity and reliability: Children’s Aid Society of Hamilton v. M.N., 2007 CanLII 13503 (Ont. S.C.) at para. 30. The court is entitled to draw an adverse inference against a party whose evidence is not based on the personal knowledge of the person swearing the affidavit: Rule 16(5).

[37] The court is not to assess credibility, draw inferences from conflicting affidavits, or weigh the evidence. However, the court can and should examine the evidence to decide whether it meets the threshold test of reliability: Children’s Aid Society of Hamilton v. K.F., 2014 ONSC 576 at para. 34.

[38] Courts must be cautious in granting summary judgment in child protection cases, since the stakes for the family are high, and granting summary judgment deprives the parent of the procedural safeguards of a trial: C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357.

[39] Despite the need to exercise caution in child protection cases, the court must bear in mind that it is not in a child’s best interests for a parent to use the legal process to “buy time” to develop an ability to parent. Children need permanency planning in a timeframe sensitive to their individual needs. In child protection proceedings, the genuineness of an issue must arise from something more than a parent’s heartfelt expression of his/her desire to resume care of the child: Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont. C.J.) at para. 18.

[40] In the case at bar, I find that the mother’s plan to return the children to her under a Society supervision order, is nothing more than an attempt to buy time for her to develop as a parent. Surely this is not a plan that is in the best interests of these children. The fact that she has failed to exercise reasonable access to the children is further evidence that her skill level as a parent falls far short of what these children require.

Issues

[41] The court must determine if there is a genuine issue for trial with respect to: (1) whether the children are in need of protection, and, (2) the disposition if the court is satisfied that the children are in need of protection.

[42] The Society is seeking a finding that the children are in need of protection, pursuant to s. 37(2)) of the CFSA. At the outset of these proceedings both counsel for the respondents conceded the issue that the children were in need of protection at the time of the apprehension and still remain so. However, both respondents are opposing the disposition of Crown wardship being sought by the Society.

[43] Once the finding that the children are in need of protection has been made, the court must determine what available disposition is in the children’s best interests. Section 37(3) of the CFSA sets out some of the factors that the court can consider in determining what disposition is in the best interests of the children. This list is non-exhaustive, and the court can consider any other circumstance it deems relevant. The factors laid out in s. 37(3) are:

• The children’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
• The children’s physical, mental and emotional level of development;
• The children’s cultural background;
• The religious faith, if any, in which the children are being raised;
• The importance for the children’s development of a positive relationship with a parent and a secure place as a member of a family;
• The children’s relationships and emotional ties to a parent, sibling, relative, other member of a child’s extended family or member of the child’s community;
• The importance of continuity in the children’s care and the possible effect on the children of disruption of that continuity;
• The merits of a plan for the children’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the children remaining with or returning to a parent;
• The children’s views and wishes, if they can be reasonably ascertained;
• The effects on the children of delay in the disposition of the case;
• The risk that the children may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent;
• The degree of risk, if any, that justified the finding that the children is in need of protection; and
• Any other relevant circumstance.

Crown Wardship

[44] A Crown wardship order is the most intrusive order that the court can make in child protection proceedings. The court should only grant Crown wardship with the highest degree of caution, and only on the basis of compelling evidence, after a careful examination of alternative remedies: Catholic Children’s Aid Society of Hamilton v. M.A., 2012 ONSC 267 at para. 21.

Crown Wardship + No Access

[45] Section 59(2.1) of the CFSA establishes a presumption against access if the child is made a Crown ward. The person seeking access has the burden of proving, on a balance of probabilities,

• That the relationship between the person and the child is beneficial and meaningful to the child; and
• That the ordered access will not impair the child’s future opportunities for adoption.

Position of the mother

[46] The mother is seeking an order that the children be returned to her care under a supervision order.

[47] The mother acknowledges the current difficulty with this plan as she has no permanent residence of her own. However, she claims that she is taking steps to obtain suitable housing that would permit the children to reside with her.

[48] The mother claims that many of her difficulties are as a result of a toxic relationship between her and the father and that once he is out of her life permanently that she can parent these children.

[49] The mother does acknowledge that an attempted reconciliation between her and the father in December 2015 failed. She says now they are not a couple and do not plan to be a couple.

[50] The mother explains her missed access visits with having no car and on at least one visit was missed because it was raining. It is to be noted that the access visits were all to be taking place at the Rose Garden in Smiths Falls. At all relevant times, the mother has resided in Smiths Falls.

[51] The mother’s submissions can be summed up in three areas: (1) that she is presenting to the Court with an improved plan whereby she can care for the children; (2) whether the Society can locate a perspective adoptive home for these children. If they cannot provide such a home, the mother’s position is that the children will be left in the same position that she was as a child where she was bounced around to over a dozen adoptive homes. The mother claims that she only recently has developed a relationship with her biological mother; (3) a Crown wardship without access to the biological mother is not in the best interests of the children.

Position of the father

[52] The main allegation by the father on this motion is that the Society did not take reasonable steps for a kin placement with his mother, T.G., and as a result this motion must fail.

[53] The respondent father is making no serious claim in this motion that he in any way could be a suitable caregiver for these children.

Analysis and Decision

[54] This motion deals with two vulnerable young children.

[55] The father has made no efforts to be a parent to these children and has abandoned any efforts to exercise access since their apprehension. His explanation that he was incarcerated for a period of time may explain some of the lack of access to the children but it in no way has given him a free pass on his failure to step up as a parent.

[56] The mother’s actions speak louder than her words. She has put her own needs ahead of the children’s needs at every turn in these proceedings.

[57] The mother’s pathetic explanation as to why she missed visits with the children over the past year and, particularly, in the month of December do not add up to a parent who is interested in the welfare of her children.

[58] We have a situation where both respondents have failed to protect these children from neglect, emotional harm and a sanitary and hygienic home and the mother is now before the court saying that she will do better in the future. The future is now. The best interests of these children can clearly on be satisfied with a Crown wardship order that is being sought by the applicant.

[59] I find that there is no genuine issue for trial and despite the numerous efforts by the Society to offer assistance to the mother have been rejected.

[60] With respect to access the statute clearly states that the person seeking access has to under Section 57 has to satisfy the court that the access would be of the best interests of the children. No such evidence was presented to the court that the provisions of Section 57 have been satisfied.

[61] Therefore, an order will go for Crown wardship without access, as follows:

Pursuant to Rule 16 of the Family Law Rules an order for summary judgment for a final order without a trial for the relief set out in the Amended Child Protection Application issued September 3, 2015, namely an order as follows:

(1) The children, T.A. (born […], 2012) and W.G. (born […], 2013), are found to be children in need of protection pursuant to s. 37(2)(b)(i)&(ii) and s.37(2)(g) of the Child and Family Services Act.

(2) The children, T.A. (born […], 2012) and W.G. (born […], 2013), shall be made wards of the Crown and placed in the care of Family and Children's Services of Lanark, Leeds and Grenville.

[62] Final order to go accordingly.

The Honourable Mr. Justice M. J. Quigley Released: March 30, 2016