CAS v C.A.M.D. & D.M.T.N., 2016 ONSC 2826

Court File and Parties

Court File No.: 979/14 Date: 2016-04-27 Ontario Superior Court of Justice

Between: THE CHILDREN’S AID SOCIETY OF LONDON & MIDDLESEX, Applicant – and – C.A.M.D. and D.M.T.N., Respondents

Counsel: Ben Leschied, Counsel for the Applicant Elisabeth Lella, Counsel for the Respondent C.A.M.D. Christina Ninham, Counsel for the Respondent D.M.T.N.

Heard: April 15, 2016 at London

Introduction

1The Children’s Aid Society of London and Middlesex (the Society) brings this motion for summary judgment pursuant to Rule 16 of the Family Law Rules, seeking an order of Crown wardship for the child M.J.D-N. (F), born on [...], 2014, with the order requested silent as to access.

2The respondents C.A.M.D. and D.M.T.N. are the child’s mother and father. Presently, the father D.M.T.N. is incarcerated with the mother experiencing some mental health issue and is at either Victoria Hospital, Child and Adolescent Unit, or alternatively at Craigwood Youth Services, in Alisa Craig.

3The father now concurs with the position of the Society while the mother through her counsel opposes both the summary judgment application and the Crown wardship without access and desires a six month wardship with access to the mother.

4For reasons that follow, I find that there is no triable issue and I would allow the relief sought by the Society.

Background

5Both father and mother were themselves wards of the Society and have extensive histories with the Society. In light of the position of the father, I will focus both this background and analysis primarily on the mother of the child.

6The child M. was apprehended from the hospital following her birth and has remained in Society’s care since that time.

7Both parents are presently 17 years of age. The mother C.A.M.D. has been involved regularly with drug use, has significant mental health issues, is both ADHD and ODD. She has self-harmed on a number of occasions and has made threats to injure or kill many individuals. In addition, at times the mother, C.A.M.D. did not take her mental health medication, breached probationary orders, failed to follow through with programmes recommended by the Society, and did not attend certain supervised visits with her daughter.

8As indicated, the mother has an ongoing drug problem and has failed with respect to addiction treatment. She has admitted to using marijuana, cocaine and recently crystal methamphedamine. She has also been charged with a number of criminal offences. Although there is some disagreement with respect to the parents visits with the child M., the mother has only seen her daughter once since June 15th, 2015.

9Supervised access to the child M. has been sporadic by both parents. The foster parents do plan to adopt M. and in these uncertain realities faced by the mother, no plan of care can reasonably be put forward by the mother. The chaos experienced by the mother over the past year and four months is a continued pattern of poor choices.

Analysis

10The first issue is whether the criteria in Rule 16 are applicable on the facts before me? The Court of Appeal in Combined Air Mechanical Services v. Flesch summarized the principles as follows:

a) Genuine issue for trial means not spurious. The requirements of the rule are met if there is no issue of fact that requires a trial for its resolution; b) The moving party bears the burden to satisfy the court that the requirements of the rule have been met; c) The court’s function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists; d) The summary judgment court must take a “hard look at the merits”. Parties to the motion must “put their best foot forward” in their evidence on the motion, rather than waiting for trial (now codified in 16(4.1)) in relation to a responding party; e) The genuine issue must relate to material facts.

11Furthermore, with respect to child protection proceedings, there are additional considerations such as time lines, the nature of the evidence, the intrusiveness of the order sought, the statutory criteria, and how material are the facts in issue to the case. Finally, an umbrella consideration under the CFSA is “to promote the best interests, protection and well-being of children”.

12Candidly, although there is a wish that is expressed by the mother to continue access to her daughter with the implementation of a 6 month wardship, there are no material facts in dispute and as stated, no real plan. The affidavits of Sarah Tuszinski dated November 16th, 2015 and a more recent affidavit dated March 15th, 2016 clearly outline the numerous problems experienced by this mother as she attempts to wrestle mental health issues, criminal sanctions, and drug problems.

13With respect to whether the child was in need of protection pursuant to s. 37(2)(b)(i) of the CFSA, there was and is clear and uncontradicted evidence that the child M.D.J.-N. was in need of protection. More importantly, the least intrusive order pursuant to s. 57(1) of the same Act consistent with M.D.J.-N.’s best interest, is Crown wardship.

14Additionally, pursuant to s. 47(2) of the CFSA, I make the following statutory findings:

a) The child’s name and age is M.D.J.-N. (F) born [...], 2014; b) No evidence has been given of the child’s faith; c) The child is not a native person. d) The child was apprehended at birth in London and brought into Society’s care on [...], 2014.

15Section 58 of the CFSA deal with the question of access. Section 59 of the same Act, however, contain the following significant provisions as follows:

(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this part with respect to the child is terminated. (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 child is beneficial and meaningful to the child; and b) the ordered access will not impair the child’s future opportunities for adoption.

16Pursuant to this section of the CFSA, there is a presumption against access where a child is made a Crown ward. Only when satisfied on a balance of probabilities that the conditions under subsection (a) and (b) have been met can access considered.

17The first condition Under subsection (a) is that the “relationship between the person and the child is beneficial and meaningful to the child” and the second requirement is that the person seeking access must demonstrate “that the ordered access will not impair the child’s future opportunities for adoption.”

18Those conditions are conjunctive and there is absolutely no evidence before the court that the mother has demonstrated that she is capable of satisfying either condition.

19Beneficial has been judicially considered to be “advantageous” and that meaningful has been determined to mean “significant”. With some reticence and reluctance, there is absolutely no evidence before me that comes anywhere near this statutory presumption as it relates to the mother, C.A.M.D.

20I accept the clear evidence before me that this protection proceeding was necessary and that over 16 months have elapsed since M.D.J.-N.’s birth. I also am informed that the foster parents intend to adopt this little girl.

Final Order

For reasons aforementioned:

1. The child M.D.J.-N. born [...], 2014 is found to be in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act;
2. The child M.D.J.-N. born [...], 2014 is made a ward of the Crown and placed in the care of the Children’s Aid Society of London and Middlesex.

The Honourable Mr. Justice John A. Desotti