COURT FILE NO.: FC-14-2335 DATE: 2016/05/06 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 ZS ([…], 2014)

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – T.S. (Incarcerated) Respondent Father – and – A. A. Respondent Mother

Counsel: Jane McCalla, for the Applicant Douglas Baum, for the Respondent T.S. Achille Kabongo, for the Respondent A. A.

HEARD: March 31, 2016

REASONS FOR Decision

On motion for summary judgment

R. Smith J.

[1] The Children’s Aid Society of Ottawa (the “Society”) has brought a motion for summary judgment seeking an order of Crown Wardship for the child, ZS, born […], 2014, for the purpose of adoption.

[2] The Society submits that there is no genuine issue requiring a trial and the summary judgment process provides a judge with the evidence required to fully and justly adjudicate the dispute as set out in Hryniak v. Mauldin, 2014 SCC 7.

[3] The mother submits that she has raised a genuine issue for trial namely whether or not it is in the best interests of her child that the mother be given another chance to show that she is able to adequately parent ZS.

1. Is there a genuine issue requiring a trial?

Legal Test

[4] Rule 16 of the Family Law Rules, O. Reg. 114/99 (the “FLR”) states that “the Court may make a final order where there is no genuine issue requiring a trial”. Rule 16 has recently been amended to include Rule 16(6.1) which reads as follows:

Powers

In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[5] In Children’s Aid Society of Ottawa v. M.C., 2003 CarswellOnt 9373 Justice Linhares de Sousa held that the Court must proceed cautiously in a motion for summary judgment and ensure absolute fairness to the parties. In the same case, Linhares de Sousa J. held that the general principles from the Hryniak v. Mauldin, 2014 SCC 7 decision from the Supreme Court of Canada should be applied in child protection cases.

[6] In Hryniak, at para. 66, the Supreme Court of Canada stated that there will be no genuine issue requiring a trial if the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and it is a timely, affordable and proportionate procedure.

[7] In the Children’s Aid Society of Toronto v. H. (R.) (2000), O.J. 5853, the Court held that the respondent is obliged to provide a full evidentiary record and put his or her best foot forward in the responding material. The responding party faced with a prima facie case for summary judgment must provide evidence of specific facts showing that there is a genuine issue for trial. A party cannot rest on the denial and must put his or her best foot forward.

[8] In the Children’s Aid Society of Algoma v. P. (L.), Del Frate J. stated that the appropriate test includes a review of the likelihood of success of the respondent in a summary judgment motion, keeping in mind that the best interest of the child and the delay factor would be paramount in arriving at any decision at any level.

[9] In B. (F) v. G. (S.), 2001 CarswellOnt 1413, the Court stated that the nature of the evidence, the reasonableness of any potential plans, and the statutory timeframes are all relevant to whether or not there is a genuine issue requiring a trial.

[10] In Steine v. Steine, 2010 ONSC 4289, at para. 54, 2010 CarswellOnt 5739, the Court stated:

Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.

[11] In the Children’s Aid Society of Ottawa v. M.C., at para. 32, the Court stated that 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.

[12] Section 1(1) of the Child and Family Services Act, R.S.O. 1990 c. C.11 (“CFSA”) states that the paramount purpose of the Act is to promote the best interest, protection and wellbeing of children.

[13] Other purposes defined at s. 1(2) of the CFSA:

…so long as they are consistent with the best interests, protection and wellbeing of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
3. To recognize that children’s services should be provided in a manner that, i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,…

[14] The factors that are to be considered when considering the best interest of the child are set out in s. 37(3) of the CFSA from 1-12:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

ISSUE #1 - Is ZS a Child in Need of Protection?

[15] The status review application before the Court seeks a Crown wardship order for the child ZS who was born on […], 2014. ZS has been in care since shortly after his birth.

[16] The mother, AA, contests the Society’s application and seeks the return of ZS to her care. She plans to reside in the kinship of AN. The father, TS, also contests the Society’s application and supports the mother’s plan of care.

[17] In November of 2014, a kinship assessment of a family friend, HN was completed and approved. The plan called for the mother to also reside in HN’s home. An integration plan was attempted in December 2015 and January of 2016 but was not successful. The trial was originally scheduled for December 7, 2015 and was adjourned to allow the integration plan to proceed.

[18] The father is currently incarcerated.

[19] On October 21, 2014, Justice James granted the Society a temporary care and custody order for the child, ZS, with access to the parents and the paternal grandmother at the Society’s discretion. The child was one and a half months old at the time.

[20] On March 3, 2015, Justice Blishen found that the child was in need of protection and a final order of two months Society wardship was granted on consent. The Society was ordered to continue the kinship assessment of the maternal grandparents’ home during this period.

[21] The father, TS, was admitted into the Society’s care at his mother’s request on August 11, 2010 as she could no longer control his behaviour. The father was no longer taking his medication for ADHD, was verbally and physically aggressive to his siblings, punching holes in the walls and was controlling his mother. He subsequently became a Crown ward and is now receiving continued care and support for youths through the Society. The father has spent most of his teen years at the William Haye Centre and has had numerous incidents of self-harming and has been suicidal. The father has been diagnosed with ADHD, possibly mild autistic disorder, depression, anxiety, conduct disorder and cluster B personality features, and borderline anti-sociality/social personality traits were also noted.

[22] Between September 21, 2014 and October 13, 2014, the Society learned of three incidents involving disputes and violence between the father and mother, with two of the incidents involving police intervention.

[23] When the Society worker informed the family that the baby would have to come into care temporarily, the mother came after her and had to be restrained by the father.

Events after apprehension

• November 14, 2014 – a child protection worker scheduled a meeting with the parents at the Society. The worker had to separate the parents and meet with them individually because of the conflict between them. The parents were involved in a domestic conflict a few days previously requiring police intervention. The mother reported breaking the father’s video games and the father advised that they were being evicted at the end of November due to the screaming and making holes in the walls.
• January 22, 2015 – the society received a police report involving the mother and the father. Police attended at the paternal grandmother’s residence for an alleged suicidal female, namely the mother. The police officer noted that the residence was in complete disarray with clothes and other items covering the floor as well as raw chicken left out on the kitchen counter.
• The parents continued to argue during access visits.
• The parents started an infant stimulation program on December 5, 2014.
• On February 3, 2015, the parents were discharged from the infant stimulation program due to their frequent absences. The parents attended four out of the eleven sessions.
• In February and March 2015, the parents also began attending a program for couples’ counselling, parenting, and anger management at the Bethany Hope Centre.
• On March 24, 2015, the father advised that the mother was living at her parents’ house and he was living at his parents’ home.
• On April 27, 2015, the plan to place the child with the maternal grandparents was not approved and was withdrawn and is no longer before the Court.
• The mother and father missed many visits; including the visit on July 10, 2015. The father explained that he had been kicked out of his mother’s home and that was the reason they left to go to Arnprior to be with his friend. This was the reason he had missed the visits during the previous weeks. The mother also mentioned that she was also with the father during this time causing her to miss all of her visits with her son.
• August 17, 2015, the mother missed a meeting with the Society worker and her pathways worker.
• August 18, 2015, the Society received a police report indicating that the TS and AA were arguing near an OC Transpo terminal
• August 19, 2015, the father’s sister advised that the mother had been living with the father at his sister’s house for about a month and they often fought with each other and had verbal arguments.
• September 10, 2015, a worker met the parents. The father stated that he was homeless and sleeping in parks and the mother reported that she had been staying with the father.
• September, 2015 – the father was charged as a result of a serious assault on an OC Transpo bus and remains incarcerated on this charge.
• September 28, 2015 – The mother missed the meetings and she did not advise the worker that she would not be attending.
• October 9, 2015 – the mother advised the worker that she had not been coming to access visits with her child because she was sick.
• In November 2015, the Society assessed a kinship plan proposed with the mother. The plan required that the mother move in and live with NA who would help assist her to parent ZS. NA works full time outside of her home and sometimes has evening commitments in the Muslim community. As a result, NA would not be able to attend ZS’s medical appointments nor would she be able to provide support and guidance during the day while she is at work. The mother moved in with NA in mid-November 2015 and a plan was developed for the integration of ZS into her home with the mother.
• December 4, 2015 – the access supervisor met with the mother and agreed that access would increase to three times per week; one visit occurring in the kinship home, and that the following week, all of the visits would be moved to the kinship home. For the third week, a fourth visit would be added. The Society also proposed adding more time to each visit and including visits where the mother would need to feed ZS. Prior to the increased length of visits, they discussed that the mother would need to be trained on how to feed the child through the use of a feeding tube inserted into ZS’s stomach. ZS is mainly fed through the Mic-Key.
• December 17, 2015 – a worker attended at the home of NA for a scheduled visit. Upon their arrival, they were greeted by NA who advised that the mother was at her parents’ house and would not be attending the meeting.
• December 17, 2015 – the mother met with the worker at the Society. The worker advised the mother that she was to attend all medical appointments with ZS and the foster parents to ensure that she was aware of ZS’s medical needs. They also discussed adding sleepovers before the next court date.The mother advised that the father had been sentenced to 12 months in jail and he would be released by June or July 2016.
• December 30, 2015 – The mother was not present for the visit. NA advised that the mother had gone shopping at the Bayshore Shopping Centre.
• Commencing January 3, 2016, visits were increase to four times per week. Arrangements were made to teach the mother how to feed her child through the Mic-Key, as well as for her to attend all of his specialist appointments.
• January 11, 2016 – an email was sent by the worker to all parties involved (including HN) detailing the access visits as well as the medical appointments for ZS in the upcoming weeks. A calendar for January 2016 was enclosed with the dates for visits and for medical appointments.
• January 13, 2016 – the mother did not attend the medical appointment, nor did she attend her access visit following the appointment, which was to include a training session on how to feed the child. The mother called and stated that she couldn’t attend because she had a family emergency.
• January 14, 2016 – The mother missed her son’s medical appointment and access visit.
• January 15, 2016 – the mother did not attend her access visit. At that point, the Society put all visits on hold after the mother had missed three days of appointments and visits.
• January 19, 2016 – the mother called the worker. She explained that her sister had punched her in the face and she had marks and that this was why she missed her access visits with her child in the middle of the reintegration plan. The mother had also not been residing with NA as previously planned. The mother explained that she was staying half the time at her mother’s home and half the time at her friend’s house.
• After the failure of the reintegration plan, the Society decided to move for Crown wardship because this was their third attempt to increase access where the mother had not complied with the access plan and then left without anyone knowing her whereabouts. She had missed crucial and important medical appointments regarding the child’s health and care, she had not been residing with NA for over a week and the Society remained concerned about her ability to meet the child’s high medical needs.
• January 20, 2016 – the mother did not attend the physiotherapy appointment.
• January 26, 2016 – the mother was late for a meeting by approximately one hour. The mother indicated that she had not been living at NA’s home since January 12, 2016. She stated that there was no television at NA’s home and it was boring for her. The mother also stated that she had continued contact with the father and visited him at the jail as she wanted to help him. The mother proposed to move back to NA’s home to proceed with the integration plan. The worker and the mother agreed to resume access visits at the Society.
• The mother has missed her visits at the Pathway Program for some time.
• March 10, 2016 – the worker advised that the mother was doing well and she would be open to giving her another chance at access visits. The access visits between the child and the mother have gone well. The mother remains child focused and is able to read the child’s cues and attends to them appropriately. The worker also stated that, from her observations of the parents, that it is clear that they love and care for the child a great deal.

[24] Following the March 3, 2015 court date, the Society offered additional time for visits to the mother as she was presenting a plan of care in her parent’s home but again the mother missed a number of visits.

• The child was hospitalized for several weeks at CHEO in April of 2015.
• The parents attended the offered visits in May of 2015 at the hospital.
• The mother attended her visits in June of 2015. The father cancelled two of his visits during that time.
• In July of 2015, the parents attended five out of the ten visits offered by the Society.
• The parents missed a number of visits in August of 2015; the parents attended five out of the ten visits offered to them.
• In September of 2015, the mother attended three out of the sixteen visits that were scheduled for her. The father did not attend any visits in September 2015. The mother also missed medical appointments in September 2015.
• In October of 2015, the mother attended only one visit with her child. The visits were put on hold due to lack of attendance.
• In November of 2015, the mother resumed her access visits and attended most of her visits and missed only two visits with her son.
• In December of 2015, the mother attended most of her access visits as well as the medical appointments. She missed the December 30, 2015 visit as she went shopping at the Bayshore Shopping Mall.
• In January 2016, the mother attended only four visits with her son and missed all medical appointments with her son that had been scheduled.
• In February 2016, the mother attended two out of the six visits arranged for her with her son.

[25] The child has special medical needs and has required a specialist to address and correct his head shape, physiotherapy to address his torticollis, a respirologist to address and monitor his wheezing, a dietician to help with the integration of solids, an occupational therapist, a community care and access nurse, a pediatrician to monitor his progress and general health and a dermatologist for his eczema.

[26] The child continues to be fed through the Mic-Key and this is his main feeding method which can take between 45-60 minutes each time he feeds. The child was unable to eat through his mouth from the age of six and half months to 11 months. The child still needs a lot of work to learn how to eat.

[27] The parents had stopped attending programs for couples counselling at Bethany Hope Centre in April of 2015; however, the mother has recently indicated in February 2016 that she has resumed attending the program at Bethany Hope.

[28] The reintegration period was short due to the mother’s non-attendance at access visits at NA’s home where she was supposed to be residing.

[29] Based on the evidence of the numerous missed visits by the parents and especially the missed visits for the child’s medical appointments, the missed visits at the kinship placement during the reintegration plan, the special medical needs of the child, as well as the constant arguing between the parents, I find that the child is in need of protection.

Timelines

[30] The child has been in care for almost 18 months. The child is outside the timeline of 12 months to establish permanency and the 6 months extension will have expired at approximately this date.

ISSUE #2 - Best Interests of the Child

[31] I find that that it is not in the best interest of the child to be returned to the mother’s care for the following reasons:

(a) The child has been in care of the Society for 18 months, which exceeds the statutory timelines; (b) Permanency and planning for the child at such a young age is of utmost importance for the child; (c) The recent reintegration attempt was unsuccessful where the mother was not living at the kinship home as planned and she did not attend many of the scheduled visits or medical appointments that were scheduled for her and the child; (d) The mother is not capable of caring for the child at the present time as she has still never fed her child; and (e) The mother has not attended many of the child’s medical appointments and did not attend the many visits during the reintegration plan which demonstrates an inability or a lack of interest in parenting this child.

[32] Section 57(1) of the Child and Family Services Act states as follows:

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:

58. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

[33] I am satisfied that the child is in need of protection for the reasons previously given and that intervention through a court order is necessary to protect the child in the future. I find that a supervision order to the mother in the kinship plan at NA’s residence would not be in the best interest of the child as the father is incarcerated and the mother is not capable and has not shown the ability to attend to the most basic needs of her child; namely, the mother does not know how to feed the child through the special feeding device. The mother has also demonstrated that she is not able to meet the child’s physical or emotional needs as she has missed many visits as set out in the Society’s material, including during the reintegration attempt and has failed to attend many of the child’s medical appointments and therefore, she would not ensure that the child’s physical, mental and emotional development could occur. I find that given the lack of progress that has been made by the mother and also the father during the period that the child has been in care, which has lasted for approximately 18 months, which is outside the time limits set for permanency planning set out in the CFSA and that it would be in the best interest of the child to allow him to establish a positive permanent relationship with a parent in a secure place as a member of a family.

[34] The mother initially submitted that the Society’s evidence that she had missed the access visits and medical appointments as outlined in the worker’s affidavits was not true and that this was a genuine issue requiring a trial. However, she did not provide any evidence to support having attended such visits. I find that the mother’s submission, unsupported by any affidavit evidence and/or any collateral evidence is simply not believable. I find that the Society’s evidence with notes and details of dates and excuses given or the lack thereof by the mother, to be believable. I rely on the Society’s evidence and find that the mother’s evidence is a bare denial which is not sufficient to meet her onus of showing that there is a genuine issue requiring a trial.

[35] The mother also submitted in the alternative that if she did miss the access visits and medical appointments as outlined in the Society’s affidavits, that she missed the visits because the Society failed to advise her of the dates and times of the scheduled visits and medical appointments. I find this submission is a bald denial of the fact that she was advised of the visit dates and times. In particular, the mother missed many of the visits that were set up where she was supposed to be living at the kinship placement at NA’s home and she was not there for the visits that had been agreed upon. The Society has provided, at Tab 5 of the continuing record of its materials, the calendar setting out dates and times of the medical appointments and the visits that were to have occurred during the attempted reintegration of the child at the kinship placement during January of 2016. I find that the mother’s submission that she was not advised to be unbelievable especially when the calendar of January 2016 with the visits was emailed to the kinship placement, NA, on January 11, 2016 and the affidavit evidence of the workers outlining the visits planned for the reintegration attempt during December of 2015 and January 2016.

[36] Ultimately, the mother’s submission is that she should be given a further chance. NA has indicated that she is prepared to offer the same kin placement plan, as previously attempted, for a second time. I find that this is not in the best interest of the child to proceed with a second reintegration attempt at a kin placement because the child has been in care of the Society for 18 months and the 12 month timeline has passed and the 6 month permitted extension has also passed. It is too late to take a new chance given the mother’s history of non-attendance at many visits and also missing very important medical appointments, especially during the recent reintegration attempt which occurred after the 12 month time limit had passed.

Disposition

[37] For the above reasons, I find that it is in the child’s best interest to ensure that the appropriate care is available to meet the child’s physical, mental and emotional development; to allow the child to develop a positive permanent relationship with a parent in a secure place, as a member of a family. Given the importance of continuity in the child’s care, it is in the best interest of the child that he be placed for adoption rather than taking a chance of returning the child to a kinship placement on a supervision order, as the time lines have expired.

[38] The child ZS is ordered to be made a ward of the Crown and shall be placed in the care of the Society for adoption.

Justice Robert J. Smith

Released: May 06, 2016