Family and Children’s Services of Frontenac, Lennox and Addington v. J.G and B.D.W., 2016 ONSC 7001

KINGSTON COURT FILE NO.: 378/15

DATE: 2016/10/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant

and

J.G and B.D.W., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Mr. David Toupin as agent for Ms. Deborah H. Souder, for the Applicant Society

Mr. Stephen Zap, for Respondent J.G.

HEARD: October 7, 2016

ENDORSEMENT

Nature of the Case/Positions

[1] This is the applicant Society’s motion for summary judgment on its status review application with respect to the female children S.L.E.W. and L.A.K.W. ages 4 and 1 respectively. It is seeking Crown wardship without access pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”). The respondent father B.D.W. did not participate. He was noted in default on May 12, 2016, and has not had any contact with his children since June of 2015. The mother J.G. opposes the motion.

Law – Summary Judgment

[2] For the general approach on a motion for summary judgment, Rule 16 of to the Family Court Rules, (O. Reg. 114/99 (“Rules”) along with the principles from Hryniak v. Mauldin, 2014 SCC 7 at paragraphs 66 to 68 indicate the following:

(a) “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly” - Rule 16(6).

(b) If there appears to be a genuine issue requiring a trial, the court shall determine if the need for a trial can be avoided by using the new powers (which are now set out in Rules 16(6.1) and (6.2)). These involve weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided they do not run contrary to the interests of justice.

(c) There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure.

(d) If after the above analysis there is a genuine issue requiring a trial, the court still has discretionary powers to give directions, specify the issues, identify which facts are not in dispute, and to impose conditions (Rule 16(9)).

Factual Summary

[3] On May 7, 2015, the mother was hospitalized in the psychiatric department. She placed the children with her brother. On June 22, 2015, she entered into a Temporary Care Agreement with the Society and the children were placed in its care. When that agreement was nearing its end, the Society brought this application. The children were ordered into its temporary care and custody on August 22, 2015. Upon being released from the hospital the mother continued to struggle significantly with her mental health. There was another hospital admission from August 17 to 28, 2015. Psychiatric assessments were conducted although no clear diagnosis is identified.

[4] Since then the Society’s concerns related to the mother continue to be her unstable mental health and also, and related to it, substance abuse. The Society has attempted to assist arranging or providing many services for and to the mother. There is no issue about the type and number of services. The issue is whether she had been diligent in attending and whether there has been improvement that can be sustained to the extent that the children can be safely placed back in her care over the long term as the permanent plan.

[5] There was little success early on. For the period from December 2015 to the latter part of February 2016, the mother admitted incidents of substance abuse, and, not coincidentally, the evidence of the Society workers and other service providers for that time period was generally that she was not stable or doing well. The mother in her answer recognized these past mental health issues. I am not going to particularize this now somewhat dated evidence. Suffice it to say that as a result of those difficulties when the Society brought its Status Review Application in March of 2016 it had cause to seek Crown Wardship.

[6] What is important is that afterwards there seemed to be some real positive progress by the mother. The counsellor from “Motherwise” at Addiction & Mental Health Services (”AMHS”) in a letter dated March 30, 2016 indicated that “[a]s of today I can report that … [J.] has substantially improved from the time I started working with her.” On March 31, 2016, the mother’s family doctor noted an overall improvement in the mother’s functioning in that she “has been taking her medication as prescribed (for her psychiatric illness) and has been off alcohol and street drugs”. The Counsellor/Individual Support Worker from Kingston Community Health Services (“KCHC”) in a letter dated April 6, 2016 stated that the mother was in a twelve week program (called Roots & Wings) that began on March 2, 2016 and that she “has been in attendance every week at this point.” The mother had been doing drug screens with her family doctor. Although they were as she chose -- in the sense that they were not random or regular -- five screens in the time period from February 24 to April 26, 2016 came back negative. The supervised access had expanded to five visits a week, three in the mother’s home. It was all looking pretty solid. Then, very tragically, it crumbled.

[7] For the twelve week Roots & Wings program noted, the mother had attended every one of the first 8 sessions but then suddenly after April 20, 2016 she stopped going. In early May 2016, the doctor’s office reported the mother was without her prescription medication. The new worker for the mother at the Motherwise program advised that she had missed three out of five appointments. On May 20, 2016, a worker at the Society walked to the daycare with the mother to retrieve the children for an access visit at the Society’s office. She noted that the mother appeared to under the influence of a substance. The children’s daycare supervisor made the same observation. After getting the children, the worker and the mother returned to the Society’s office for the scheduled access supervised by a different worker. She too noticed that the mother appeared to be “spaced out”. When confronted, the mother admitted she had used crystal meth “a few days ago”. She said she almost had a nervous breakdown again and was low on food for herself. The Society assisted her in obtaining food. In a subsequent interview the mother stated that her drug use was over the weekend of May 14, 2016. Subsequently on May 25, 2016 a drug screen tested positive for continued usage, this time of amphetamine. On May 30, 2016, the mother missed a Plan of Care meeting for the children. Another new worker had been assigned at the Motherwise program, and on June 13, 2016, she observed the mother to be disorganized and scattered. On June 20, 2016, the mother missed a scheduled dental appointment for the children. The mother had been readmitted into the twelve week Roots & Wings program that she had stopped attending back in April. However, she was asked to withdraw on July 13, 2016, after attending five of the eight sessions. This was based on poor attendance and lack of readiness for the group content and expectations. The Counsellor/Individual Support Worker’s letter dated September 12, 2016, noted that “[t]he facilitators agreed that it was not beneficial for …[J.] or the group, for her to remain while she was in a period of stress and instability.”

[8] There is no real dispute in the evidence about these facts or the mother’s noted difficulties during that time. In the midst of all that instability, on June 17, 2016, the Society brought this motion for summary judgment. The mother decided herself, to her credit, that she needed to attend a residential drug and alcohol treatment program. The Motherwise counsellor helped her with the enrollment, and the intake for Hope Place Centres in Milton, Ontario, was completed. The Society paid for the registration fee and transportation.

[9] A comment here about the unfortunate timing of this program. Such treatment is intense; the participant lives the program. This one was to last 30 or 33 straight days. The worker expressed concerns to the mother prior to her attendance about her ability to get ready for the program on short notice, and suggested deferring to the next session. For whatever reason, possibly the threat of this looming motion, the mother insisted on going right away. It is hard to know what would have happened had she engaged with such treatment back in the early spring when her mental health appeared to be stable. However, unfortunately the worker’s concern was prophetic. The mother was not ready. She was discharged from the treatment program on August 18, 2016, after only four days. By a letter from the Motherwise counsellor found in the mother’s own evidence, the state of her mental health was too much of a concern, her behavior was bizarre and inappropriate at times and disruptive in the group settings, and the opinion of the psychiatrist who did an assessment during her stay was that her behavior was not related to withdrawal symptoms, with the inference being that it was her mental health.

[10] The early discharge from the treatment program was only five weeks prior to this motion. Since then the mother has re-enrolled in full-time school hoping to graduate from high-school later this year. This is positive but there is no evidence about her progress or attendance. She continues to meet with her counsellor at the Motherwise program who attended this hearing as a support. I note that the mother had met with this counsellor and her predecessors throughout her difficulties. On September 15, 2016, the mother attended a ‘Making Corrections’ group through AMHS on Anger & Assertiveness. Her brother has submitted an affidavit dating September 29, 2016, indicating that he will support her, and that he feels his sister “is seeing things a lot more clearly now”. He said he believes his sister is ready to care for her daughters but somewhat inconsistently that “she will need support through the transition.” While indicating that the mother’s choices in the past have put her children in harm’s way, he added that he has witnessed “a lot of positive changes in recent months”. He does not specify what those changes were, and the evidence is undisputed that the mother in fact had difficulties functioning in those months. The mother has also recently connected with a mental health counsellor at KCHC and had an initial session on September 21, 2016, with the next one scheduled for October 4, 2016. There are no drug screens in evidence since the failed residential treatment.

[11] The mother’s lawyer wrote to the mother’s family doctor seeking his comments on her commitment to sobriety and her parenting abilities. His letter in evidence was dated September 27, 2016. He noted that the mother has ‘no showed’ for appointments with him on a number of occasions making such an assessment somewhat difficult. He listed the steps the mother had taken recently as outlined above, and indicated that she has been referred back to her psychiatrist “for medical optimization given some continued anxiety and agitation.” He concluded that “[o]verall she appears to be very motivated to make positive changes in her life and obtain custody of her children.”

[12] There is no dispute that the mother loves her children very much. Despite all her difficulties, she has made a real effort to attend her access visits. While a number have been missed, she has consistently attended the bulk of them, showing a real commitment, indeed even attending many times when she probably shouldn’t have, such as the May 20, 2016 example noted above. I will comment on the access further below. Another example of the tenaciousness and resolve of the mother has been her ability to maintain stable accommodations throughout her difficulties, and to foster a positive relationship with her landlord. As her counsel correctly pointed out, often intransience goes hand-in-hand with persons suffering from mental health and substance abuse issues.

Should Summary Judgment for Crown Wardship be Granted?

[13] The parties concede that the test on the Society’s status review application is what disposition is S.L.E.W. and L.A.K.W.’s best interests, providing they are found to be in continuing need of protection. The parties agreed that there is no issue regarding my making that latter finding.

[14] As to possible dispositions, per section 65 of the Act, the court is limited to the orders available under section 57. In the context of this case the mother is not suggesting that the children be returned without conditions, and there is no evidence of a kin plan despite thorough investigation by the Society. The options at trial, then, are either a supervision order to the mother (s. 57(1)1) or Crown wardship (s. 59(1)3). As the children have been in care since June 22, 2015, the court could also make a short society wardship order limited to about two and a half months pursuant to s. 70(4), but only if it would be in the children’s best interests.

[15] So the narrow initial question is whether there is a genuine issue requiring a trial that an order for Crown wardship would be in the children’s best interests, versus a placement with the mother under supervisory conditions after two and a half months of society wardship.

[16] The circumstances the court is required to consider when making a determination in the child’s best interests are set out in s. 37(3). These were barely addressed by the parties in their factums and argument. I have examined them and note those that I consider relevant.

Plans

[17] Not only does subsection 37(3)8 indicate that the court can consider the merits of the plans of each party, section 56 and subsection 53(1)(b) require it.

[18] The mother’s plan is dated April 15, 2016. In a nutshell, although it is over five months old, it remains current in the sense that, adopting the ‘snakes and ladders’ vernacular, she is back to square one. The Status Review Application triggered a good plan that the mother sustained up until April of this year with improved mental health and engagement with services. However, from April to August of this year all progress has been lost and the mother is really back where she started when the application was served, namely connecting with services and with her brother indicating his support.

[19] For the same reasons, the Society is also still with its original plan, Crown wardship. Section 63.1 directs the Society to make all reasonable efforts to assist a child who is a Crown ward to develop an enduring relationship within a family, and this includes an adoption. The specific plan is adoption of the girls with their current foster parents. S.L.E.W. was placed with them in June of 2015, and L.A.K.W. in August of 2015. The evidence indicates that they are doing well in that home.

[20] In comparing the two, in my view that it is obvious at this point that there are serious questions about whether the mother can carry out her plan. She first has to stabilize her own mental health and behavior. It is not for lack of trying, but unfortunately there is no evidence that this will occur in a consistent and sustained fashion in short order. The Society’s plan, on the other hand, has allowed the children to meet their developmental milestones in a safe and secure environment for over a year. There was evidence of S.L.E.W having some developmental delays when she came into care, namely her speech and toilet training, which were addressed and are no longer concerns.

Needs and Care

[21] As to the children’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs (subsection 37(3)1), I note that while struggling with her own needs and treatment, the mother has not been available to meet the children’s needs. Her access remains supervised, and at times it is a challenge for her. There is no evidence that would give a court confidence that she will be able to meet the children’s needs in the foreseeable future. Her supports – and there are many – have been trying to assist throughout with no sustained success. It is fanciful to suggest that she can now, or in the next few months, adequately care for the children.

Positive Relationships and Security

[22] I have considered the importance for the children’s development of a positive relationship with a parent and a secure place as a member of a family (subsection 37(3)5). The tragedy here is that while the mother loves her children and has worked hard to have them returned to her care, her mental health and related substance abuse issues have prevented that. By default, the foster parents have provided the relationship security for the children for the last year and then some. While the mother through regular access has maintained a relationship with the older child, the youngest child is now a year and nine months old has only ever lived with the mother for the first four months as a newborn. The reports from the access visits suggest that the mother struggles to develop a relationship with L.A.K.W., with her focus in access being more on the older child.

Emotional Ties

[23] I have also considered the children’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 (subsection 37(3)6). Unfortunately, other than the mother as mentioned above, there is no evidence other adults or children in the mother’s and father’s world have a relationship with S.L.E.W. and L.A.K.W. I note that when the mother was hospitalized initially she placed the children with her brother who cared for them for about a month and a half before they went into the Society’s care. There has been some contact since. However, when he filed an affidavit in indicating his support for the mother he did not mention a relationship with the children.

Continuity of Care

[24] I have considered the importance of continuity in the children’s care and the possible effect on the child of disruption of that continuity (subsection 37(1)7). By the start of trial S.L.E.W. had been in the care of the foster family for a year and three months and L.A.K.W. for a year and one month. In the case of L.A.K.W. given her age, it is really the only home that she has known. To disrupt that continuity the court would need to be confident of the mother’s long term stability as a permanent plan, and in my view that evidence is lacking.

Delay

[25] I have considered effects on the children of delay in the disposition of the case (subsection 37(3)10).

[26] The mother argues that she needs the opportunity to have a trial so that she can present viva voce evidence. However, the law is clear that the mother must, at this hearing, present facts showing that there is a genuine issue for trial (Rule 16(4.1). Indeed, upon full review of the record I find that there is little evidence in dispute. Generally, the mother does not deny her past difficulties as set out by the Society workers and the service providers. The Society in turn does not dispute the steps the mother has taken throughout, and particularly in the month since the failed treatment program. The mother’s position in effect is that she needs more time to take another run at becoming stable, and wants to have the time between now and a trial to prove herself.

[27] While there has to be an opportunity to rehabilitate a parent to resume care of a child, clearly waiting too long runs counter to the child’s need for a permanent and stable placement. Section 70 therefore establishes an outside time limit for seeking a permanent plan. As both children are under the age of six, we are well beyond the twelve months allowed in subsection 70(1)(a), and evidence that it would be in the children’s best interests to extend the time a further two and a half months as permitted by subsection 70(4) is lacking. Even with a Crown wardship application looming and many services available to support the mother, she has suffered another significant set-back in her progress, making her future prospects for sustained success very uncertain.

[28] I adopt the following passage from Children’s Aid Society of Toronto v. R.H., 2000 CanLII 3158 (Ont.C.J.) at para. 16:

Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's chance to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. See Children's Aid Society of Kingston and Frontenac County v. J.G. and D.B. (1997), 1997 CanLII 17031 (ON SC), 73 A.C.W.S. (3d) 82, [1997] O.J. No. 3205, 1997 CarswellOnt 2830 (Ont. Fam. Ct.), per Justice Cheryl J. Robertson.

[29] I have considered the most recent letter from the mother’s doctor and her brother’s affidavit of support. While they speak to the mother’s continued commitment and motivation, they fall short of being evidence that the situation for the mother and therefore the children will change in the following months. 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 (per Children’s Aid Society of Hamilton v. H.(S.), [2005] O.J. No. 5114 (Ont. S.C.J.) at para. 22), or, in this case, more than a heartfelt expression of a parent’s desire to make another attempt to do what is necessary to resume care of the children.

Risk of Harm and the Degree of Risk

[30] I have considered the risk that the children may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent (subsection 37(3)11). I have also considered the degree of risk that justified the finding that the children were in need of protection (subsection 37(3)12).

[31] The only risk I see in this case is in returning the children to the care of the mother when there is no evidence that she will be able to care for them over the long term. Disrupting their current stable placement for one with no reasonable prospect of becoming stable and permanent would be a huge risk to their best interests, protection, and well-being, and therefore in my view contrary to the paramount purpose of the legislation (subsection 1(1)).

[32] Having said that, I have considered whether the concerns of the Society could be addressed by supervisory conditions (s. 53(1)(d)(ii)). No specific terms have been proposed by the mother, and for good reason. The court cannot order away mental health problems or solve them. There are no terms I could craft that would alleviate the risk of harm. This is not a case of risk where the mother is making conscious choices that fail to put her children first. With her mental health challenges, the ability to make good choices and sustain them has been taken away from her. Although I am only focused only on the children’s best interests in my deliberations, I see the tragedy from the mother’s perspective of the children being taken away from her as a result of circumstances that in some respects are beyond her control.

Conclusion re Disposition

[33] The mother’s re-engagement with services when they have recently failed to sustain progress is not enough to raise a genuine issue for trial. Nor is her wish to change. Her present commitment, while sincere, is not timely enough for the return of these children. The risk that she will be unable to meet the children’s needs on an ongoing basis is insurmountable. The mother’s evidence and admissions alone, and in particular her exhibits, make the case that she has not been able to manage her mental health issues and is therefore unable to provide a permanent and stable home for her children. There is nothing to suggest that she can parent without the likelihood of relapse. There is even little in the way of evidence to show that she has managed to reach a level of stability presently in view of her poor functioning only weeks ago. Given all the above, I find that there is no genuine issue for trial that an order other than Crown wardship is in S.L.E.W. and L.A.K.W.’s best interests.

Access

[34] Upon the children being made Crown wards, the existing interim access order automatically terminates (subsection 59(2)). There is a statutory rebuttable presumption against the court making any further access order (subsection 59(2.1)). To rebut this presumption the onus rests on the mother to prove each of the following on a balance of probabilities: that the relationship between her and each child is meaningful to the child; that the relationship between her and each child is beneficial to the child; and that the ordered access will not impair each child’s future opportunities for adoption: Children’s Aid Society of the Niagara Region v. C.(J.), 2007 CanLII 8919 (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.) at para. 23. For the first two parts of the test found in subsection 59(2)(a), it is the relationship -- as distinct from the access itself -- that must be both meaningful and beneficial: T.L.K. v. Children’s Aid Society of Haldimand Norfolk, 2015 ONSC 5665. As observed in Children’s Aid Society of Toronto v. S.A. and O.E.A., 2013 ONCJ 737 at paragraphs 104 and 114, this is an extremely difficult and high onus. The presumption has been accurately described as a “gateway” in the sense that only if it is rebutted can the analysis move on to the next step of considering whether access would be in the children’s best interests pursuant to subsections 58(1) and 37(3): see Children’s Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 at paragraph 30.

[35] So the next question is whether there is a genuine issue for trial that the mother can satisfy all three of these tests. I received limited submissions from the parties on this issue. Except for the mother stating that children have a strong bond and attachment with her, she has presented no evidence to rebut the presumption. The only evidence about her relationship with the children over the last year comes from the observations from the supervised access visits. The difficulty for the mother in access generally, as in all aspects of her functioning, is her mental health. When she was struggling and abusing substances, the access did not go well. As such, despite reasonably consistent attendance, there was inconsistency in the visits themselves. Sometimes they went very well, and the mother was organized, stable and energetic. Other times they went poorly, and she was unfocussed and disorganized, leading to a lack of appropriate attention to the children and requiring prompts by the supervising workers to address the children’s needs and safety. While the mother was obviously a physical presence in the access visits she attended, from the children’s perspective she was not a consistent emotional and relationship presence.

[36] I accept that there is evidence that the relationship the mother has with the children is meaningful to them. Her statement about a strong bond and attachment was not disputed. S.L.E.W. was in her care for the first three years of her young life. For the period in the spring of this year when the mother was doing well, both children were happy and excited to see her.

[37] There is no evidence, however, that the relationship is beneficial to the children to the extent of it being significantly advantageous. Even where the access is appropriate with no concerns identified, which is far from this case, that is not enough to meet the test: Catholic Children’s Aid Society of Toronto v. L.S. and W.B., 2011 ONSC 5850 at paragraphs 414 to 417. The visits have remained supervised for over a year because of the mother’s instability, and when she did attend her functioning including how she related to the children was inconsistent.

[38] I therefore find that the relationship is not beneficial. Per the decision making process set out in Children’s Aid Society of Toronto v. T.L. and E.B, supra, at paragraph 25, there is therefore no need for me to continue to the next step and consider whether the access would impair the children’s future opportunities for adoption. However, I will make a brief comment on this last requirement (subsection 59(2.1)(b)). Again the mother led no evidence to satisfy that test. The children are in a home that will adopt them. The mother has not indicated what if any access she would be seeking and, more importantly, she failed to address whether or how she could support the adoption plan given her mental health issues.

[39] For the reasons noted, I find that there is no genuine issue for trial that the mother can overcome the presumption against access.

Decision

[40] On consent, I make the finding that the children S.L.E.W. and L.A.K.W. are in continuing need of protection. Not on consent, the children are hereby made Crown wards. There shall be no order as to access. This is not an appropriate case for costs.

Mr. Justice Timothy Minnema

Released: October 20, 2016