This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45. -(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster– parent or a member of the child’s family.

46. -(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)( c ) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both

Court File and Parties

COURT FILE NO.: C1953/13 DATE: 2016-04-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Catholic Children’s Aid Society of Hamilton Ely-Anna Hidalgo-Simpson for the Applicant Applicants

- and -

M.S., R.M. and K.N. Frank Lanza for M.S. R.M. Self-Represented Joel Kerr for K.N. Respondents

HEARD: April 25, 2016

The Honourable Mr. Justice R. J. Mazza

Introduction

[1] This is a summary judgment motion brought by the Catholic Children’s Aid Society with respect to the child, P-J.S-M. born […], 2014.

[2] The mother, M.S., has filed no material and the father R.M., who is currently incarcerated, has been noted in default.

[3] The paternal grandmother, K.N., was recently added as a party to the proceeding by Justice Brown on or about February 26th, 2016.

[4] The Catholic Children’s Aid Society is seeking an order that the child be made a Crown ward without access and be placed in the care of the Catholic Children’s Aid Society.

[5] It is not disputed that neither the mother, the mother’s partner nor the biological father are defending the proceedings.

[6] However, Mr. Lanza on behalf of the mother submitted that the mother supports the paternal grandmother’s plan of care.

Submissions by Ms. Hidalgo-Simpson

[7] Ms. Hidalgo-Simpson submitted that the paternal grandmother has asked that this matter proceed to trial, but that she is not a suitable fit as a caregiver for the child. The Society has had two main concerns, namely, the paternal grandmother’s history with the Society indicates that she would not cooperate with the Society; and second, she would not be able to protect the child against the historical violent behaviour of the biological father, R.M., who is also her son.

[8] To begin with, in the Society’s factum in paragraph 42, R.M. was described as having “a history of confirmed confrontational, intimidating and threatening behaviour toward the Society, the court, police officers and his own mother”.

[9] The affidavit of Jessica Wright sworn March 10th, 2016, is rife with examples of R.M.’s behaviour including the following:

a) On December 14th, 2014 R.M. acted aggressively and shouted, “CCAS remember this face”, as the workers left M.S.’s residence.

b) On December 15th, 2014 while R.M. was in the courthouse, he was, “uncooperative and he was shouting and swearing at Society’s staff and court staff during the time that he was in court”. He was ultimately escorted out of the courthouse by security.

c) On January 21st, 2015 while attending for an access visit:

[ R.M. ] demanded that we bring the child to him. Ms. Dorion-Buxo advised [ R.M. ] that he needed to take five minutes to calm down and if he was able, they would bring the child. [ R.M. ] continued to escalate, stood up from his chair and began yelling and swearing ‘fuck off’ and using harsh language that was derogatory towards women such as ‘bitch’… [ R.M. ] left the visitor room and proceeded to yell and shout in the reception area and spat on the window of reception.

d) On November 16th, 2015 Ms. Wright for the Society attended court for the scheduled settlement conference. R.M. and his mother K.N. were present for the court date. R.M. was, “increasingly agitated and disruptive, he was yelling and swearing in the courtroom and was asked to leave. While leaving the courtroom, [ R.M. ] stated, ‘if you Crown ward my kid, you’re all fucked, the whole Society’s fucked. Jessica [Referring to Ms. Wright] you’re not going to make it.’”

[10] In addition to these examples, Ms. Hidalgo-Simpson went on to state that R.M. demonstrated examples of being denigrating to his mother.

[11] Referring to the affidavit of Jessica Wright, sworn March 10th, 2016, in the presence of his mother during the incident on January 21st, 2015 Ms. Wright made the following observations of R.M.:

a) R.M. acted in, “a violent, intimidating manner by swearing, yelling and pacing around the Society’s visiting room”.

b) He spat on the reception window in the presence of his mother.

c) While K.N. attempted to calm R.M. down, he swore and yelled back at her saying, “You can’t tell me what to do”.

d) K.N. made no reply and was observed “backing off”.

e) In addition, K.N. herself began yelling at the worker, Ms. Dorion-Buxo, demanding that R.N. see his daughter.

[12] According to Ms. Wright, “ [ K.N. ] was not able to deescalate [ R.N. ] in any way”.

[13] In addition, she exacerbated the situation by shouting at Society staff.

[14] Ms. Hidalgo-Simpson went on to say that although K.N. eventually identified the father’s behaviour as being inappropriate and what she referred to as “wildly excessive”, K.N. had been well aware of R.M.’s behaviour long before the child had been apprehended. She was further aware of his violent criminal history.

[15] On several occasions when K.N. attended the Society offices, Ms. Hidalgo-Simpson submitted and it is set out in the affidavit of Jessica Wright, that K.N. took the position that her son’s behaviour was such that he did not pose a risk and that she could manage him. She repeated her position on February 17th, 2015 during a meeting regarding her proposal for kinship of the child. On another occasion on May 22nd, 2015 she indicated that, “she wanted to support her son and understood how he could be so angry”.

[16] Furthermore, during the meeting on November 11th, 2015 when K.N. was reminded of her son’s criminal record, her response to Ms. Wright was that R.M. had, “ never killed anyone or beaten anyone to a pulp”.

[17] Ms. Hidalgo-Simpson further submitted that although she recognized that K.N. had ultimately accepted her son’s behaviour as being inappropriate, the Society’s concern, again, as set out in Ms. Wright’s affidavit at paragraph 16 is that: “This ‘no contact’ between [ K.N. ] and [ R.M. ] is short lived.”

[18] Also concerning, Ms. Hidalgo-Simpson submitted, was K.N.’s observation at paragraph 26 of her own affidavit that: “In the future [ R.M. and M.S. ] may be able to play a role with respect to [ her ] granddaughter”.

[19] As Ms. Hidalgo-Simpson submitted, the Society wishes to achieve: “permanency, security and safety for [ P-J.R-N. ] ”

[20] Regarding K.N.’s decision to present herself as an alternative caregiver thereby requesting that she be assessed as a kin to the child, the Society’s decision not to assess her was due to her, “supposed affiliation with [ R.M. ] ”. Given the fact that they are mother and son and K.N. has frequently supported R.M. in the past, there is no assurance that should she be allowed to be a caregiver for the child, the child would be protected.

[21] Furthermore, during a kinship screen meeting, R.M. continued his aggressive and threatening behaviour and the Society concluded that K.N. lacked insight into her son’s abusive and impulsive temper. She had no understanding and concern for the risk associated with her son’s behaviour. Given the disrespect that she has also shown the Society workers, it would be difficult to work with her.

[22] Ms. Hidalgo-Simpson went on to say that in her view, K.N.’s plan of care was vague and did not address any safety issues regarding the child and R.M., nor did it include any specific plan that would shield the child from R.M.’s behaviour in the future, particularly since he, in fact, had abducted the child during an access visit and has now been incarcerated on the charge of kidnapping.

Submissions by Mr. Kerr

[23] In his client’s affidavit on March 4th, 2016 she swore that she’s a lifelong resident of Hamilton at 57 years of age.

[24] Mr. Kerr submitted that his client has had access to the child consistently and has been at every court appearance.

[25] On several occasions, Mr. Kerr submitted, she has presented herself as a kin replacement for the child but the Society has rejected that proposal without actually performing an assessment.

[26] He submitted that the Society took the position that she was an apologist for her son and that she could not control her son’s behaviour, thereby placing the child at risk.

[27] Mr. Kerr also submitted that he has not always been a criminal. His criminal record, which began in 2005, and is attached as Exhibit “B” to the affidavit of Jessica Wright sworn January 26th, 2016, is void of any convictions after 2011. Moreover, Mr. Kerr submitted R.M. does not have a child protection history.

[28] Mr. Kerr further submitted it is understandable that upon apprehension of the child, the paternal grandmother was upset and as a mother, would naturally defend allegations against her son.

[29] However, she recognized that his behaviour in and out of court became so outrageous that K.N. came to the conclusion that she could no longer support her son and decided to present her own plan of care. However, the Society rejected that proposed plan of care which necessitated K.N. successfully bringing a motion to be added as a party pursuant to the order of Justice Brown dated February 26th, 2016.

[30] Mr. Kerr further submitted that his client being added as a party is of significance, particularly since the criteria for being added includes:

a) Being in the best interests of the child;

b) Adding a party will not delay the process;

c) Adding a party must be necessary to determine the issues; and

d) The party to be added is capable of putting forward a plan of care that is in the child’s best interest.

Mr. Kerr submitted that Justice Brown’s order confirmed that K.N. had met all of the criteria.

[31] Turning to s. 57(4) of the Child and Family Services Act, Mr. Kerr further submitted that prior to its decision to request that the court make an order for Crown wardship with no access, the Society must look to its obligations under that section. However, Mr. Kerr submitted in this case, in spite of the fact that K.N. had presented a plan which included providing a proper home for the child, arranging specific schools for the child to attend; specific activities in which the child eventually would have become involved and childcare arrangements when the paternal grandmother is at work, the Society failed in its duty under that section to conduct a kin assessment.

[32] Furthermore, given the paternal grandmother’s acknowledgment of her son’s inappropriate behaviour, there is nothing to suggest that she would not comply with a court order to insulate the child from any contact with her father and to establish effective safety procedures. However, Mr. Kerr submitted the Society has failed to even consider what she would do if, in fact, her son appeared on her doorstep.

[33] Mr. Lanza submitted on behalf of his client the mother, that she is in support of the paternal grandmother’s plan of care and that she should be allowed to present this plan through her evidence at a trial.

Analysis and Conclusion

[34] In the case of the Children’s Aid Society of Toronto v. R.H., [2000] O.J. No. 5853, in any motion for summary judgment in a child protection proceeding, “t he genuineness of an issue must arise through something more than a heartfelt expression of a parent’s desire to resume care of the child.”

[35] In the case before me, Mr. Kerr would have this court accept that the paternal grandmother being added party to this proceeding represents “better prospects for this child than what existed when the child was apprehended.” [Supra]

[36] I accept that by adding K.N. as a party, Justice Brown was satisfied that she had met the necessary criteria.

[37] However, as I see it, generally, when the court adds a party to a proceeding, the court has permitted that party to have the same rights as all other parties, which includes any legal and evidentiary obligations arising from the proceeding. But this does not mean that the mere adding of a party provides that particular party with any additional advantage over any other party. It simply means that the party was added because the court was of the opinion that at the motion, he/she presented persuasive evidence to have that party’s position further considered at any future proceeding arising out of the main action.

[38] In the case before me, K.N. being added as a party, did not in way diminish her onus of convincing the court that evidence which she has presented raised a genuine issue requiring a trial.

[39] Mr. Kerr has submitted that the court has an obligation under s. 57(4) of the Child and Family Services Act, to consider whether “ to place the child with a relative, neighbour or any other member of the child’s community or extended family… with that relative’s or other person’s consent .” However, in my opinion, this section does not compel the Society to conduct a kin assessment on every relative or other person who comes forward no matter that relative or other person’s background or circumstances.

[40] In my opinion, kin assessments fall within the exclusive purview of the Society and the court relies on the Society’s expertise to determine when it is and when it is not appropriate to conduct such a kin assessment. It is only when the court is of the opinion that the Society has either shirked that duty or has been unreasonable in its position to not conduct a kin assessment that the court may intervene.

[41] Barring any evidence to the contrary, I find it is reasonable to assume that in its decision as to whether or not to conduct any kin assessment, the Society has, in fact, informed itself of the background of that particular relative or other person and has reviewed that relative or other person’s plan of care.

[42] In the case before me, I find the Society had four justifiable reasons for deciding to not conduct the kin assessment.

[43] First, a few of the Society workers had experienced the violent and aggressive behaviour of the biological father and in some cases were the actual subject of that behaviour. The case of Ms. Wright, the Society worker, comes to mind. R.M. was belligerent towards her, denigrating and calling her names.

[44] Second, the Society was aware that the paternal grandmother is the biological father’s mother. On several occasions she defended his behaviour to the Society workers; and as well, she was also observed to have backed down from his aggressive behaviour towards her at the Society offices. It is only very recently that she, in fact, stated in her affidavit that his behaviour was inappropriate and that she intended to distance herself from him.

[45] Third, the Society had the opportunity of reviewing the paternal grandmother’s plan of care. I agree with Ms. Hidalgo-Simpson’s submissions that there was nothing in that document that would suggest that the paternal grandmother had a viable plan which she intended to put into place and which would protect the infant against her biological father should he one day appear at the front door.

[46] Instead, the plan of care contained standard information including: the school which the child would attend; the activities in which the child would eventually become involved; support of family and friends (none of whom she named); and arranging daycare when the paternal grandmother was at work.

[47] Often, in the past, a plan of care of this nature has been acceptable to the Society. However, in this case, the paternal grandmother, knowing full-well of the biological father’s frequent, belligerent and intimidating outbursts on several occasions, failed to address any plan of safety for the child in that plan of care document. The lack of such a plan has been noticeable by its absence. Even if the paternal grandmother had satisfactorily addressed the other criteria in the plan of care, there is still the very large issue of R.M.’s behaviour which is constant and very likely unchanging.

[48] After all, this is a man who on one occasion had already abducted the child during an access visit at the Society offices. There is no telling what he might do to obtain access to his daughter once he has been released.

[49] Moreover, I find there is no other evidence presented by K.N. to persuade this court that she would be able to manage her son’s behaviour if he confronted her while she was caring for the child.

[50] Since R.M.’s behaviour can only be described as belligerent, intimidating, aggressive and unrelenting, I find that as long as he knows his own mother is caring for his child, he will likely be persistent in his efforts to attempt to see the child thereby continuously placing the child at risk or causing a readmission of the child into the Society’s care.

[51] The Society’s fourth and final consideration was the paternal grandmother’s well established pattern of not being cooperative with the Society personnel. This gives the court an added concern that the friction demonstrated between the paternal grandmother and the Society would make her an unlikely candidate to cooperate with any terms of supervision the Society would wish to impose upon her.

[52] Although there is no doubt that the paternal grandmother loves her grandchild, I find that she cannot, on a permanent basis, provide the child with a safe environment.

[53] In the case of Catholic Children’s Aid Society of Hamilton v. B.L.S., G.K.J., G.J.D. [2014] O.J. No. 4422 at paragraph 79, it is stated: “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.”

[54] I find the paternal grandmother has failed to meet that onus.

[55] Therefore, on the evidence before me, I find there is no genuine issue requiring a trial.

[56] As for whether there should be any access, Justice Aiken, in the case of the Children’s Aid Society of Niagara Region v. J.C., [2007] O.J. No. 1058, that the meaning of beneficial under s. 59(2)(c) of the Child and Family Services Act has the following meaning:

“Beneficial has been held to mean advantageous. Meaningful under the quote has been held to mean significant. A person seeking access must prove that her relationship with the child brings a significant, positive change to the child…” Moreover, it is stated in the Children’s Aid Society of Ottawa-Carlton v. C.(A.) [2007] O.J. No. 1322, the access has to be “beneficial and meaningful from the child’s perspective.”

[57] In the case before me, the child is 15 months old, was apprehended at birth and therefore has never been in the care of the paternal grandmother. In the circumstances, given the limited time the paternal grandmother has spent with the child in a controlled setting, I find that the relationship would not be so beneficial and meaningful as to require it to be nurtured in the future.

[58] Further, given that the permanency planning for the child is of paramount importance, I find that any access between the child, the paternal grandmother, M.S., R.M. and S.W., would in my opinion, as quoted in s. 59(2.1) of the Child and Family Services Act “ impair the child’s future opportunities for adoption.”

[59] Accordingly, there will be an order for Crown wardship with no access.

Mazza, J.

Released: April 29, 2016

COURT FILE NO.: C1953/13 DATE: 2016-04-29 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Catholic Children’s Aid Society of Hamilton Applicants

• and - M.S., R.M. and K.N. Respondents REASONS FOR JUDGMENT Mazza, J. Released: April 29, 2016