CITATION: CAS v C.D., 2016 ONSC 6712
COURT FILE NO.: FC-13-1128-4
DATE: 2016/10/28
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 THE STATUS REVIEW APPLICATION FOR THE CROWN WARDSHIP OF J.D., BORN ON […], 2012 AND A PROTECTION APPLICATION FOR THE CROWN WARDSHIP OF J.B., BORN ON […], 2015.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
C.D.
Respondent
Tracy Engelking, for the Applicant
Stephen M. Pender, Counsel for the Respondent (Mother)
- and -
N.B.
Respondent
- and –
B.B.
Respondent
- and –
J.G.
Respondent
HEARD: September 18, 2016
REASONS FOR JUDGMENT
LABROSSE J.
Introduction
[1] The Children’s Aid Society of Ottawa (the “Society”) has brought a motion for summary judgment seeking orders that the Respondent mother’s youngest child, J.B., be found in need of protection pursuant to subsections 37(2)(b)(i) and (ii) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended (the “Act”) and that both J.D. and J.B. be made Crown Wards, with no access, for the purpose of adoption.
[2] At the start of the motion, the parties agreed that given the fact that the mother was not presenting a plan for the children, there should be an order that the child J.B. is a child in need of protection pursuant to subsections 37(2)(b)(i) and (ii) of the Act.
[3] The balance of the Society’s motion for summary judgment is opposed by both the mother and J.G. J.G. was added as a party by me on July 21, 2016. J.G. has presented a Plan of Care in his capacity as the long-term life-mate of T.D., the maternal grandmother. The mother supports J.G.’s plan whereby both children would be placed in his care, subject to a supervision order.
[4] The remaining issues for this Court to determine on the Society’s summary judgment motion are as follows:
(a) is there a triable issue for a disposition relating to the children other than Crown Wardship?
(b) if a Crown Wardship order is made, is there a triable issue over whether the mother should have access to the children?
Factual Background
[5] J.D. was born on […], 2012, and J.B. was born on […], 2015. C.D. is the biological mother for both children.
[6] J.D.’s biological father has been identified as N.B. who has not been involved in J.D.’s life. There is an order dispensing with service on N.B. in these proceedings.
[7] J.B.’s biological father has been identified as B.B. B.B. has not been involved in J.B.’s life. He was served with the Society’s application on March 30, 2016, and has not filed an Answer and Plan of Care. He is therefore noted in default.
[8] The applications before the Court are:
(1) in respect of J.D., a Status Review Application dated September 23, 2015 requesting an order of Crown Wardship for the purposes of adoption; and
(2) in respect of J.B., a Protection Application dated September 23, 2015 requesting an order of Crown Wardship for the purposes of adoption.
[9] The children were apprehended from the care of the Mother on September 19, 2015.
[10] J.D. had previously been in care from May 2013 to March 2015. J.D. was found to be a child in need of protection on August 9, 2013 and was made a ward of the Society for four months by Mackinnon J. A further order of five months for Society Wardship of J.D. was made by Mackinnon J. on January 27, 2014. On March 23, 2015, Polowin J. granted an order placing J.D. in the care and custody of the Mother for a period of 12 months, subject to a supervision order.
[11] The time limit for Society Wardship for both children has expired.
[12] The Mother is not presenting a plan to have the children returned to her care. She has been exercising access with the children and she submits that there is a genuine issue for trial respecting whether an Order for access between her and the children should issue.
[13] Mr. Green is presenting a plan for a permanent kinship placement for the children. He submits that there is a genuine issue for trial regarding whether the kinship placement would be a disposition option consistent with the children’s best interest and less disruptive than Crown Wardship.
Evidence
Society’s Evidence
[14] For the purposes of this Motion for Summary Judgment, the Society relies principally on the affidavits of Christina McNeill, Stephanie Beamish, Meghan Sutton and Heather Munro. The Society also relies upon the contradictions in J.G.’s various affidavits in highlighting the difficulties with J.G.’s Plan of Care. While I have considered the content of each of the affidavits before the Court, I will highlight some of the relevant portions of the evidence upon which the Society focusses its arguments.
[15] When J.D. first came into care in May of 2013, the Society had concerns about the mother’s ability to adequately provide for the basic needs of then eight-month old J.D. There were concerns that the mother had not provided an accurate account of the baby’s feeding schedule and J.D. was nutritionally deprived and not receiving enough daily calories. During this time, the maternal grandmother had also been a secondary caregiver and it was concerning that she too did not see the need for increased nutrition and was not concerned about the baby’s weight loss.
[16] J.D. returned to the mother’s care under a supervision order. The Society contends that the mother failed to comply with 10 of the 13 conditions which were imposed as part of the supervision order.
[17] Following J.B.’s birth on […], 2015, the situation became more difficult for the mother to manage and the child protection concerns were heightened with the increased needs of the two children in the home.
[18] The children were apprehended from the mother’s care on September 19, 2015. At the time of the apprehension, there were numerous concerns whether J.D.’s nutritional needs were being met while in the care of the mother. In addition there were concerns of neglect by J.B.’s mother as a result of her failure to promptly obtain required medication.
[19] At the time of J.D.’s initial apprehension, the mother and J.D. were residing in the maternal grandmother’s home. Concerns were raised by the Society as to the maternal grandmother’s inability to address the Society’s protection concerns.
[20] The Society’s child protection worker observed the state of the mother’s home to be substandard while the children were in her care in August and September 2015.
[21] The child protection concerns relating to the mother are a general lack of parenting capacity and a failure to respond to the children’s needs. The mother has been observed failing to respond to the children’s cries and demands, failing to change J.B.’s diaper and feed him, failing to attend to J.B., failing to respond to J.D.’s hunger and thirst, failing to properly supervise J.D. and generally failing to pay attention to the needs of the two children.
[22] The Society contends that it has made numerous attempts to engage the mother and to have her access services, all of which had been unsuccessful.
[23] With respect to access, the Society contends that the mother has attended access with the children on a semi-regular basis. Since February 24, 2016 the mother has found it difficult to attend access consistently. Overall since the date of the apprehension, the mother has missed over 50% of her access visits.
[24] During access visits numerous concerns are noted such as the mother’s failure to take J.D. to the bathroom or change her diaper, failing to support J.B.’s neck, failing to properly supervise both children, failure to pay attention to J.B. and failure to provide him with stimulation.
[25] On April 29, 2016, the child protection worker completed a preliminary assessment of the maternal grandmother and J.G.. It is the Society’s evidence that in so doing the worker reviewed the questions contained in a full comprehensive assessment.
[26] With respect to the plan of care of J.G., the Society has chosen not to do a complete assessment of the plan for the following reasons:
(a) J.D. was initially apprehended from the maternal grandmother’s home due to a failure to thrive while the maternal grandmother was in the position of a secondary caregiver;
(b) the maternal grandmother did not appear to understand or agree that her son would present a risk to the children, due to his alleged gang involvement and stolen property (including weapons);
(c) the maternal grandmother has an extensive child protection history from when she was residing in Nova Scotia as well as with the Society in Ottawa. While in her care, the mother became a Crown Ward in 2008. Also, during the grandmother’s involvement with the Society in Ottawa, she has not been willing to cooperate with the workers or adhere to the conditions in the supervision order;
(d) the maternal grandmother did not adhere to the safety plan when J.B. was born when she was supposed to be the alternative caregiver for J.D.;
(e) the maternal grandmother and her partner J.G., are not currently residing together and they do not always present as agreeing on all parenting approaches. The Society was concerned with their ability to care for the children and withstand the stresses of parenting two young children;
(f) the maternal grandmother minimized her drinking and stated that she did not consume alcohol although during the visit on April 29, 2016 there were several empty beer and liquor bottles on the counter. While J.G. states that he does not consume alcohol he admitted to using marijuana to relax although he would not do so while in a caregiving role; and
(g) the Society noted concerns with the ability of the maternal grandmother and J.G. being able to properly supervise J.B. as on a few occasions J.B. has found objects that he could choke on and has tried to put them in his mouth while under their supervision.
[27] The Society further relies upon contradictions in the various affidavits of J.G. to maintain their position that his Plan of Care is not in the children’s best interest. The Society focuses on the following:
(a) it is unclear as to what J.G.’s status is within the maternal grandmother’s family. At times his affidavits suggest that he is closely involved, with the maternal grandmother and her children, and at other times he distances himself from the family following his receipt of the disclosure and knowledge of the various protection concerns;
(b) while the Society notes the existence of a somewhat long-standing relationship between the maternal grandmother and J.G., concerns are raised with his role with the mother’s family leading up to the two apprehensions.
(c) J.G.’s is also unclear with respect to his knowledge of the conditions in the mother’s home at the time of the childrens’ apprehension. One of his affidavits suggests that he had no concerns with the mother in a caregiving role and that he had seen her at her residence. In a subsequent affidavit, he states that he never attended the mother’s home.
(d) While he initially stated that he had no concerns with the mother while in a caregiving role, he then takes the position after the receipt of disclosure that he now believes that the mother has some serious psychological issues.
(e) He should have been well aware of the condition of the grandmother’s home when the mother had to leave her home in order to have J.D. returned to her.
(f) J.G. recognizes that the maternal grandmother and her family embarked on a universally combative and uncooperative approach with the Society. However, the maternal grandmother continues to be a large part of J.G.’s Plan of Care.
[28] The evidence of the foster mother is also relied upon by the Society to highlight the condition in which the children were in at the times they came into care. These would have been times when the children would have at least partially been around J.G. and there are inconsistencies between his observations and those of the foster mother.
Evidence of J.G.
[29] J.G. filed four affidavits in these proceedings. They are dated July 14, 2016, July 18, 2016, August 25, 2016 and September 12, 2016.
[30] In commenting on the concerns raised by the Society, J.G. responds as follows:
(a) when J.D. was first apprehended from the maternal grandmother’s residence, he stresses that the maternal grandmother was not the primary caregiver and states that the maternal grandmother was living at his residence most nights;
(b) he states that the maternal grandmother’s son may have made wrong choices but he is not a violent offender, as no criminal record and engages in no criminal behavior;
(c) he concedes that the maternal grandmother has a child protection history however in the nine years during which he’s been in a relationship with her he has not seen cause for concern;
(d) J.G. is not concerned with the issue of stability of his relationship with the maternal grandmother. However he states that should they have a falling out he is firmly committed to raising the children and to continue to allow them access to the extended birth family;
(e) J.G. acknowledges that the maternal grandmother drinks but he says it is a consistent but moderate consumption;
(f) he denies that during access visits he does not properly supervise J.B.
[31] J.G.’s evidence is that he has appropriate accommodations for the children, in an apartment that he has resided in for over a decade. It is a two-bedroom apartment, and he acknowledges that he will need to move his office into the main living area in order to accommodate the children.
[32] He has explored daycares, schools, community supports and resources available in his neighbourhood. He states he is able to work from home and is therefore in a position to care for both children on a full-time basis until the children can commence daycare.
[33] He has a family doctor who he will arrange to follow the children and although he is not aware of any special needs of the children, he will ensure they receive any support or services that they may require. He also has a driver’s license and a vehicle.
[34] J.G.’s plan of care lists a number of people from whom J.G. will receive supports however no affidavit evidence was provided by these individuals. The maternal grandmother is listed as giving primary assistance to J.G. during the daytime.
The Law
[35] With the amendments to the Family Law Rules, O. Reg. 114/99 (the “FLR”) in 2015, the law relating to motions for summary judgment within child protection proceedings has become well-established. Particularly, the recent decision of Parfett J. in Children’s Aid Society of Ottawa v. S.K. 2015 ONSC 4623 provides a thorough review of the existing statutory framework including the amendments to the FLR, the principles surrounding motions for summary judgment which are derived from the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 and the applicability of those principles to child protection cases.
[36] I do not propose to restate that summary of the applicable law and for the purposes of this endorsement, I adopt the legislative framework, general principles and applicability of those principles to family law and in particular child protection matters as set out in pages 14 to 20 of Parfett J.’s decision in CAS v. S.K.
[37] The jurisprudence in the area of summary judgment motions provides that the Court should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the Court’s new fact-finding powers. If there appears to be a genuine issue requiring a trial based on the record before the court, the Court should then determine if the need for trial can be avoided by using the new powers. These powers involved the weighing of evidence, evaluating credibility, drawing inferences and possibly receiving oral evidence on the motion: see Hryniak at para 66.
[38] It should be noted that it is also necessary to consider Rule 2 of the FLR to ensure that cases are dealt with justly by ensuring that the procedure is fair to all parties, saves time and expense and that the cases are dealt with in ways that are appropriate to its importance and complexity. In a situation such as this one, where children have been in care well beyond the statutory limits, a motion for summary judgment is a tool that can be used to provide permanence to a child, where appropriate.
[39] As J.D. has already been found to be a child in need of protection and that there is consent to such a finding with respect to J.B., the Court need only focus on the issues of disposition and access.
[40] The Court’s disposition options in this case are set out in subsection 57 (1) of the Act. This subsection allows the Court who has found a child in need of protection to make an order for a Supervision Order, Society Wardship or Crown Wardship. As the statutory period to order Society Wardship has expired, the Court’s options are to make a Supervision Order or an Order for Crown Wardship.
[41] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:
a. Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child’s best interests and include them in the order. If not, determine whether the disposition that is in the child’s best interests is Society Wardship or Crown Wardship. (Section 57.)
b. If a Society Wardship order would be in the child’s best interests, but the maximum time for Society Wardship under section 70(1) has expired, determine whether an extension under section 70 (4) is available and is in the child’s best interests. If so, extend the time and make a Society Wardship order. If not, make an order for Crown Wardship.
c. If a Society Wardship order is made, determine whether an access order is in the child’s best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child’s best interests (s 58.)
[42] Subsection 57 (2) of the Act requires the Court to determine what efforts the Society or another agency or person made to assist the children before intervention under Part III of the Act. I need not spend significant time on this question. The evidence in the affidavit material sets out significant efforts to support the mother both before and after the Society’s intervention under Part III of the Act.
[43] Subsection 57 (3) of the Act requires that the Court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. As the mother is not presenting a plan for the children, this section does not apply in these circumstances.
[44] Subsection 57 (4) of the Act requires the Court to look at community placements, including family members, before deciding to place a child in care. Here, the Court’s consideration of J.G.’s plan meets this requirement.
[45] In determining the appropriate disposition, the Court must decide what is in the children’s best interests. The Court has considered the criteria set out in subsection 37 (3) of the Act in making this determination. This subsection reads as follows:
Best interests of child
37.(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:
the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
the child’s physical, mental and emotional level of development;
the child’s cultural background;
the religious faith, if any, in which the child is being raised;
the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;
the child’s relationships by blood or through an adoption order;
the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;
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;
the child’s views and wishes, if they can be reasonably ascertained;
the effects on the child of delay in the disposition of the case;
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;
the degree of risk, if any, that justified the finding that the child is in need of protection;
any other relevant circumstance.
[46] Our courts have also set out a number of guiding principles for the assessment of the best interests of the children and motions for summary judgment. I have been guided by the following:
(a) A Crown Wardship order is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children’s Aid Society of Hamilton- Wentworth v. G. (J) (1997) 23 R.F.L. 4th 79 (SCJ- Family Branch).
(b) In determining the best interests of the children, the Court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the children’s perspective: see: Catholic Children’s Aid Society of Metropolitan Toronto v. C.M. [1994] 2 S.C.R. 165 (S.C.C.).
(c) Where a trial will not produce any more evidence with respect to any material issue in a case that is not already available to the Court at the summary judgement stage, the Court should deal with the disposition and avoid the need for a trial: see Children’s Aid Society of Algoma v. N.C and M.D., 2012 ONCJ 352 at para 9.
(d) In determining whether or not there is a triable issue, the Court should not be asked to speculate as to possible evidence or elaboration. The Court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits: see Catholic Children’s Aid Society v. A.G-F. and J.L., 2016 ONCJ 511 at para 34.
(e) The genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernible from the parent’s evidence that the child faces some better prospect that what existed at the time of the apprehension: see CCAS v. A.G-F. and J.L. at para 37.
Analysis
Genuine Issues Without Fact Finding Powers
[47] I commence by assessing J.G.’s Plan of Care without using the fact finding powers which have been included in Rule 16(6.1).
[48] The main features of the Plan of Care presented by J.G. are the following:
(a) J.G. presents his plan solely in his name. He proposes to reside with the children in a two-bedroom apartment that he has resided in since 2005. He has converted the living room into a work space/bedroom and the children will have their own room. He plans to find a three-bedroom residence in the future;
(b) the maternal grandmother will be there with him several nights per week as she shares time at his residence and her own with her children;
(c) he has proposed where the children will attend daycare and school. He has identified support services within his community;
(d) J.G. identifies various individuals who will provide him with support. He includes his daughter who resides in Montreal, his niece who lives in proximity to his residence and other friends. He also proposed the maternal aunt who works as a children’s caretaker;
(e) with respect to primary day-to-day assistance, he proposes the maternal grandmother, T.C. with the maternal aunt;
(f) J.G. states that he is an award winning media specialist and indicates that he is being installed as the Artist in Residence for York University’s Virtual Reality Lab which will allow him to work from home;
(g) his plan will allow for the children to be kept in the orbit of their birth-family and avoid removing the children from the life of their mother.
[49] There is clearly conflicting evidence between the evidence of J.G. and the affidavits filed by the Society. However, at this stage of the process I am not to weigh these contradictions. In considering J.G.’s Plan of Care, there is no doubt that his plan raises issues for trial. The question remains if those issues are genuine.
[50] I make the following observations which flow from my review of J.G.’s Plan of Care and his affidavits:
(a) the Plan of Care demonstrates that J.G. will require the assistance of others in the provision of care to the children. He relies on his daughter who resides in Montreal, the maternal aunt who works full-time, a number of friends and the maternal grandmother. No evidence has been provided as to the availability of these various individuals to assist and how they can act as support persons;
(b) J.G.’s current accommodations are not set up for two children to reside with him in his apartment. He is proposing to have the two children live in the bedrooms and he will reside in the living room while also using it as an office;
(c) the maternal grandmother will continue to have an active presence in the lives of the children by being principally responsible for support during the day and she will obviously play a role in the evening as she resides at J.G. residence several nights a week;
(d) the plan presented by J.G. proposes to keep the children closely involved with the mother’s family. The maternal grandmother will be caring for the children during the day, he will be supported by the maternal aunt and the mother is to have regular supervised visits with the children;
(e) J.G. does not agree with the Society’s concerns over the maternal grandmother’s involvement in the allegations neglect and abuse. He also disputes the history of drug and alcohol abuse. Unless he was provided with more compelling arguments, he is of the view that she should have full access to these children.
[51] At this point I must focus on if there is a genuine issue for trial regarding whether the kinship placement with J.G. would be a disposition option consistent with the children’s best interests and less disruptive than Crown Wardship.
[52] I am reminded by the guidance of our Court in stating that the genuineness of an issue must arise from something more than a heartfelt expression of J.G. to parent these children.
[53] Having considered J.G.’s Plan of Care and his four affidavits, I can only conclude that the plan put forward by J.G. is simply a continuation of the situation which has existed while the children were with their mother. He proposes to keep them within the care of most of the people who failed to care for them since the time of the initial apprehension of J.D.
[54] I conclude that there is no genuine issue raised by J.G.’s Plan of Care for the following reasons:
(a) I am of the view that the proposal to have the maternal grandmother exercise primary day-to-day care of the children is not in the children’s best interest. It is also proposed that she would be in a caregiving role several nights a week when she resides at J.G.’s residence. The maternal grandmother was residing with J.D. and the mother when J.D. was initially apprehended. She was actively involved with the children at various times when the children have been found by the Society to be neglected;
(b) J.G.’s plan of care is vague about who will care for the children and what role the various people will have in their care;
(c) J.G.’s Plan of Care proposes frequent supervised access with the mother. The Society’s affidavits easily allow me to conclude that the mother has been unable to care for these children and that she has neglected them. Although J.G. does not define what he means by “frequent supervised access”, I am unable to conclude that ongoing frequent access with the mother, even if supervised, is in the children’s best interest;
(d) J.G.’s evidence acknowledges that the mother and maternal grandmother have been “universally combative and uncooperative” and that they have been “rude and contentious” with the Society. However, he states that his plan will allow for the children to be kept in the mother’s life with the maternal grandmother having a primary role in the day-to-day care of the children as a “significant member of his support team”. How can a supervision order to J.G. have any chance of success?
(e) J.G.’s employment status raises questions that in my view his Plan of Care and his affidavits fail to properly address. He describes himself as an award winning media specialist and media producer. He describes in some affidavits that he is being installed in a position with York University and then in his September 12, 2016 affidavit, he states that he is still waiting to find out about the grant and that he has applied for legal aid for legal representation. With the exception of a small inheritance, there is no clear evidence that J.G. is able to support the children;
(f) the proposed living arrangements with J.G., a 60 year old man residing in the living room (with the maternal grandmother several nights a week) with a four year old girl and one year old boy are not in my view proper living arrangements for young children;
(g) my review of J.G.’s Plan of Care and his four affidavits leads me to conclude that the Plan of Care is a proposal to have the children reside with him in his apartment and to essentially remain with and frequent contact with those people who neglected to care for them prior to the two apprehensions and led to the children being in need of protection. J.G.’s proposed plan fails to provide any substance which would allow the Court to conclude that the children will avoid being subjected to the same sub-standard care and neglect as is reflected in the affidavits of the Society.
[55] J.G.’s Plan of Care fails to raise a genuine issue that a kinship placement with J.G. would be a disposition option consistent with the children’s best interest.
Use of Fact Finding Powers
[56] While I have concluded that I do not need to use the fact finding powers under Rule 16(6.1) to conclude that the Plan of Care proposed by J.G. does not raise a genuine issue that merits a trial, the use of these powers reinforces the Court’s findings that there is no genuine issue for trial.
[57] The affidavits provided by J.G. contain several contradictions which leave the Court in serious doubt about motives behind his Plan of Care.
[58] The affidavits of July 14, 2016 and July 18, 2016, sworn to support his application for party status, demonstrate a concerted effort by J.G. to show himself as a member of the family. He refers to frequent contact with the mother and frequent and regular attendance at the maternal grandmother’s residence. After receiving party status and the disclosure of the Society’s evidence, his Plan of Care and Affidavit of August 25, 2016 demonstrate an effort to distance himself from the mother and the negative evidence surrounding the maternal grandmother.
[59] The main issue of concern is that he is unable to clarify how he would have had regular contact over the years with the maternal grandmother and her family and not become aware of the state of care of these children. In particular, his July 14, 2016 affidavit suggests that he was seeing the maternal grandmother once weekly at her home. He would therefore have seen J.D. once weekly just prior to her apprehension. J.G. should have seen the condition in which J.D. was in and the environment in which she lived when she was first apprehended from the care of the mother.
[60] There is also an important contradiction in J.G.’s evidence on the issue of the maternal grandmother’s drinking. In his affidavit dated July 18, 2016, J.G. states that he has never seen her consume more than one beer at a time on any particular occasion. Conversely, in his August 25, 2016 affidavit, he states that she has “consistent but moderate consumption”. The reason given for the presence of alcohol in his apartment in his July 14, 2016 affidavit is simply not believable. Further, in his July 18, 2016, he states that he does not consume alcohol. In his August 25, 2016 affidavit, he states “I drink so rarely that most people think I am a non drinker”.
[61] In the July 14, 2016 affidavit, J.G. states that he had concerns with the mother’s apartment and that it was “messy”. In his August 25, 2016 affidavit he states that he was never invited into her home.
[62] In the end, I conclude from weighing J.G.’s affidavits with the affidavits of the Society that J.G. has tailored his evidence to suit his purposes and as such, I am unable to rely on his evidence. This is reinforced by the submissions made by J.G. during the motion when confronted with the various contradictions in his affidavits. He stated that the affidavits were written by his former lawyer and he distanced himself from the contradictions. How then can the Court rely on anything he has put forward if he does not adopt the content of his sworn evidence and blames his former lawyer to explain the inconsistencies in his evidence?
[63] I can only conclude that J.G.’s Plan of Care does not raise a genuine issue for trial.
Society’s Plan of Care
[64] Although the mother is not presenting a plan for the children and I have determined that there is no triable issue surrounding the Plan of Care presented by J.G., I am still required, as part of any disposition, to determine what is in the children’s best interest.
[65] I have reviewed the Plan of Care filed by the Society which sets out the challenges that the mother has had with respect to her care of the children and how a disposition of Crown Wardship is the only available option for these children. I am also satisfied that the Society’s Plan of Care proposes to take in consideration the children’s heritage, traditions and cultural identity.
[66] When considering the factors set out in section 37(3) of the Act, the plan for adoption clearly meets the children’s needs. There is no evidence to support a finding that the children should remain with the mother or her family or that it would be important for the child’s development to maintain a positive relationship with the mother or the members of her family. It is clearly in the children’s best interest that they be placed with the Society as Crown Wards for the purposes of adoption.
Access
[67] Once a disposition of Crown Wardship is made, the statute provides for a presumption against access to the mother. The applicable criteria is found at subsection 59(2.1) of the Act which states:
Access: Crown ward
(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 the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption. 2006, c. 5, s. 17 (2).
[68] The Courts have clearly established that the onus to rebut the presumption against access to a Crown Ward is on the person seeking access: see Children’s Aid Society of Toronto v. D.P. 2005 34560.
[69] Further, our Courts have said that the issue is not whether the parent views the relationship with the child as beneficial and meaningful. The Court must examine the quality of the relationship from the child’s perspective: see Catholic Children’s Aid Society of Hamilton v. L.S. 2011 ONSC 5850.
[70] The meaning of the phrase “beneficial and meaningful” was examined by Justice Quinn in Children’s Aid Society of the Niagara Region v. M.J. 2004 2667 where he stated:
[45] What is a “beneficial and meaningful” relationship in s. 59(2)(a)? Using standard dictionary sources, a “beneficial” relationship is one that is “advantageous.” A “meaningful” relationship is one that is “significant.” Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child.
[46] I read s. 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a futurerelationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.
[47] Even if the relationship is beneficial and meaningful, as a final precaution I think that there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.
[71] While the Society notes from the mother’s visits suggest that at times, she is able to somewhat care for the children, her inability to present a plan for their care and the significant number of missed access visits is indicative that the mother has been unable to prioritize her access with the children.
[72] Further, the affidavits of Ms. Beamish and Ms. McNeil demonstrate that there is no important bond between the mother and the children. The Mother has not engaged in the offered services, she has a general lack of parenting capacity and that she fails to respond to the children’s needs. There is no genuine issue for trial regarding the mother’s access. It is simply not beneficial and meaningful to the children.
[73] As the mother does not meet the first part of the analysis, there is no need to consider the issue of delaying an adoption. No order for access will be made.
Conclusion
[74] For the reasons set out above, I order the following:
(a) the Society’s motion for summary judgment is granted given that there is no genuine issue for trial;
(b) that J.B.’s father, B.B. is noted in default;
(c) J.B. is found to be in need of protection pursuant to subsections 37(2)(b)(i) and (ii) of the Act;
(d) J.D. and J.B. will be made Crown Wards without access, for the purposes of adoption and place in the care and custody of the Society.
[75] I would like to thank counsel and J.G. for their able presentations while trying to deal with a difficult matter.
Justice Marc R. Labrosse
Released: October 28, 2016
CITATION: CAS v C.D., 2016 ONSC 6712
COURT FILE NO.: FC-13-1128-4
DATE: 2016/10/28
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF THE STATUS REVIEW APPLICATION FOR THE CROWN WARDSHIP OF J.D., BORN […], 2012 AND A PROTECTION APPLICATION FOR THE CROWN WARDSHIP OF J.B., BORN ON […], 2015.
BETWEEN:
THE CHILDREN`S AID SOCIETY OF OTTAWA
- AND –
C.D.
- AND –
N.B.
- AND –
B.B.
- AND –
J.G.
REASONS FOR JUDGMENT
Labrosse J.
Released: October 28, 2016