Simcoe Muskoka Child, Youth and Family Services v. C.L., 2016 ONSC 7198

CITATION: Simcoe Muskoka Child, Youth and Family Services v. C.L., 2016 ONSC 7198

BARRIE COURT FILE NO.: FC-14-527-00

DATE: 20161121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SIMCOE MUSKOKA CHILD, YOUTH AND FAMILY SERVICES

Applicant

– and –

C.L.

Respondent

Michael F. Sirdevan, Counsel for the Applicant

Pamela M. Krause, Counsel for the Respondent

HEARD: November 16, 2016

REASONS FOR DECISION

JARVIS J.

Part One - Introduction

[1] The Children's Aid Society of the County of Simcoe (“the Society”) has brought a motion for summary judgment seeking orders that the child G.R.-L born […], 2008 and the child D.L. born […], 2011 (“the children”) be found in need of protection pursuant to sections 37 (2) (b) (i) and (ii) and sections 37 (2) (b) (g.1) of the Child and Family Services Act (the “Act”) and be made crown wards, with no access for the purpose of adoption. Those subsections read as follows:

37 (2) (b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm.

[2] The respondent C.L. is the mother of the children. Each child has a different father. Each of them was noted in default by Charney J. on August 7, 2015.

[3] The issues for this court to determine are as follows:

(a) is there a genuine issue requiring a trial that the children are in need of protection?;

(b) if not, is there a genuine issue requiring a trial for a disposition for the children other than crown wardship?; and

(c) if a crown wardship order is made, is there a genuine issue requiring a trial as to whether one or both parents should have access to the children?

[4] The court read and relied on the following documents:

(a) the affidavits of Peggy McGee, a Child Protection Worker, sworn April 17, 2014; February 11, 2015; May 3, 2016 and November 15, 2016;

(b) the affidavit of the mother sworn November 11, 2016;

(c) the affidavit of Bernie Joachim, a legal advocate/counsellor employed by the shelter where the mother has resided since November 4, 2016; and,

(d) the plans of care of the mother and Society.

[5] With the exception of a note describing observations made during an access visit by the mother in August 2014 and about which the Society’s evidence is contextually and more broadly informative, it is noteworthy that in her affidavit the mother does not dispute any of the history about her circumstances or the children’s care before April 2015. Her evidence mostly focussed on her rehabilitation and plans for the children residing with her since then.

[6] At the commencement of argument, counsel for the Society and mother confirmed the mother's consent to a finding that the children were in need of protection as alleged.

Part Two – Procedural and Background History

[7] The following facts are not in dispute:

(a) the mother was born […], 1980 and is 36 years old;

(b) the mother has given birth to five children and is pregnant with a sixth child. In August 2006, the Peel Children’s Aid Society started a Child Protection Application, the outcome of which resulted in the custody of the two oldest children (now 13 and 10 years old) being granted to the maternal grandmother with whom the children have remained to date;

(c) the children, G.R.-L. and D.L. were residing with their mother when they were apprehended by the Society on April 14, 2014. They have remained in care since then;

(d) the Society started a Child Protection Application on April 17, 2014. The application requested that the children be made Society wards for a period of six months and that access be supervised;

(e) on January 15, 2015 the Society amended its Application to request that the children be made Crown Wards with no access;

(f) the Society advised the court on August 7, 2015 that it intended to move for summary judgment. Shortly afterwards an Order was made discharging the mother’s then solicitor of record;

(g) on […], 2015 the mother gave birth to her fifth child who was apprehended at birth by the Peel Children’s Aid Society. The child has remained in foster care since then; and

(h) a date for hearing this motion was originally scheduled for September 2016. Further Society disclosure and the mother’s retainer of counsel, who needed to review that disclosure, resulted in the motion being rescheduled for the November trial sittings of this court.

Part Three – Motion Evidence

[8] The Society’s involvement with the mother and her children G.R.-L and D.L. began in early 2011with reports about the mother’s inability to care for G.R.-L. This involvement intensified after D.L.’s birth in […], 2011. Subsequent reports to the Society by concerned support persons and acquaintances of the mother indicated a pattern of inappropriate physical discipline of the children, drug abuse, transience, presentations suggestive of mental health disorders and neglect of the children, all of which escalated and coalesced in the weeks leading up to the children’s apprehension on April 14, 2014.

[9] After the children were apprehended and a child protection proceeding started, the mother did not attend scheduled access, cancelled access, or when she did attend was often late. When access was exercised, the mother appeared less interested in the children than dealing with her personal issues. She was observed to be often distracted. This pattern continued into 2015. Therapeutic access was started in late 2014 but stopped after April 29, 2015, the date of the mother’s last attendance. Observations made before then are consistent with the mother being inattentive to the children’s needs, erratic behaviour and use of inappropriate language. Access was suspended after June 6, 2015 because the mother was failing to appear for her access and was struggling with mental health issues which were not being treated. Society efforts to engage the mother and provide guidance, counselling and related parenting services were unsuccessful. From June 6 to August 7, 2015 the Society had not heard from the mother but, on the latter date, learned from a social worker attached to the Central North Correctional Centre that the mother was incarcerated and pregnant. The charges for which the mother was incarcerated included drug charges (the exact details of which are not specified) and obstruction of a peace officer in two adjacent jurisdictions.

[10] The May 3, 2016 affidavit of Ms. McGee, the Child Protection Worker having involvement with the family since October 2013, indicated that the children had done extremely well living in the same foster home since their apprehension, forming strong bonds with the foster family. Her November 15, 2016 affidavit indicated that the foster parents wished to present a permanent plan for the children.

[11] Subject to the qualification referenced in paragraph [5] above, the mother chose not to challenge any of this evidence, acknowledging too her abuse of drugs before April 2015.

Part Four – Legal Considerations for Summary Judgment

[12] The Society brings this motion pursuant to Rule 16 of the Family Law Rules. Those provisions of the Rule relevant to this motion are the following:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

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

POWERS

(6.1) 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.

[13] The following guiding principles are relevant to deciding a summary judgment motion:

(a) on a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show that there is no genuine issue requiring a trial: Children’s Aid Society of Hamilton v. M.N. 2007 13503 (ON SC), [2007] O.J. No. 1526 (SCJ);

(b) courts should be very cautious in granting summary judgment in child protection cases since the stakes for the family are so high and the granting of summary judgment deprives the parent of his or her day in court and the procedural safeguard of cross-examination of witnesses before a judge: C.R. v Children’s Aid Society, 2013 ONSC 1357;

(c) a party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial: Children’s Aid Society of Toronto v. K.T. 2000 20578 (ON CJ), 2000 O.J. No. 4736 (Ont. C.J.);

(d) speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion: Children’s Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842;

(e) a child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, 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 discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the Society’s removal of the child from her care and has developed some new ability as a parent: Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.); and

(f) the summary judgment procedure to be followed is composed of two steps. The court must first decide whether there is a genuine issue for trial relying solely on the evidence before it. If there is such an issue the court may then consider the expanded discretionary powers set out in subrule 16 (6.1) involving the weighing of evidence, evaluating credibility and drawing such inferences as are reasonable from the evidence.

Part Five – Analysis

[14] Section 57 of the Act sets out the disposition alternatives available to the court where a child is found in need of protection. Given that the children have been in the Society's care for over 31 months, a period in excess of the statutory maximum prescribed by section 70 of the Act, the only dispositions open to the court are returning the children to the care of their mother or another person, subject to Society’s supervision, or crown wardship. Even if this court should order the latter, the effect of which is to terminate any access by the mother, the issue then raised by her is whether access may still be ordered. In Children's Aid Society of Haldimand and Norfolk v. B. H. and K. T., 2016 ONCJ 642, Sherwood J. framed the issue as follows:

“If a child is made a Crown, subsection 59 (2.1) prevents the court from making an access order unless the court is satisfied that the relationship between the person to have access and the child is beneficial and meaningful to the child, and the ordered access will not impair the child's future opportunities for adoption (emphasis added). Accordingly, subsection 59 (2.1) creates a presumption against access, shifting the onus to the parent to show that an access order would be meaningful and beneficial to the child and that it would not impair the child's future opportunities for adoption. This rebuttable presumption is conjunctive and accordingly the parent must rebut both elements. If the parent cannot discharge that burden then the court must not make an access order.”

[15] Has the Society made its case that there is no genuine issue for a trial? Despite the mother's evidence about her rehabilitation efforts, this court finds that the Society has satisfied the procedural and evidentiary onus on it that a trial would lead to no other conclusion than crown wardship for these reasons:

(a) the unchallenged history of the mother's involvement with four different Children's Aid Societies on 15 different occasions since 2007. Concerns have included caregiver capacity, drug use, inability to protect (domestic violence), transience and inappropriate physical child discipline;

(b) the mother's transience. Between 2012 and this motion, a period of slightly more than four years, the mother has resided in 13 different places. She is currently living in a short-term shelter for abused women and children while awaiting acceptance to a second stage, staff supportive, housing, itself limited upon acceptance to a one year residency;

(c) the inconsistency of the mother’s access with the children. Therapeutic access with the children between July 2014 and May 2015 was discontinued as a result of the mother’s sporadic attendance. The mother has not exercised access since April 2015 with the exception of a visit on June 20, 2016;

(d) a reason given by the Society (among many others) for the children and its’ wardship request is the mother's inability to adequately care for, and her historical neglect of, the children. A fifth child was born after G.L.-R and D.L. were apprehended, and that child too was apprehended by the Society. The mother is pregnant with a sixth child. Her confidence that with “the necessary supports” she can take care of all four of her children is not only unrealistic but also disingenuous; and

(e) the children need permanence. Even if the mother was not pregnant, her late steps at rehabilitation are not of sufficient assurance or duration that a trial outcome other than crown warship would be the result. Her pregnancy only compounds the potential safety risks to the children.

[16] What then of the Society's plan to place the children for adoption? In support of that plan, the Society set out its reasons, those including the mother’s housing instability, her personal care challenges and her extensive reliance on community supports. Not without some reason of her own, the mother has argued that the Society, having concluded that crown wardship without access was the only acceptable outcome, failed after April 2015 to discharge its statutory duty pursuant to section 15 (3) (c) of the Act to “provide, guidance, counselling and other services” to the mother and to fairly consider the positive steps taken by her to address, and remedy, the Society's concerns. Unlike the evidence underpinning this court’s crown wardship decision, the evidence whether the mother's relationship between the children and her is meaningful and beneficial to them is far less clear as is whether an access order would impair the children's future opportunities for adoption. Even taking into account the court’s expanded discretionary powers under section 16 (6.1) of the Rules, this issue requires a hearing. Some reasons for this include:

(a) on May 2, 2016 a bio-psycho-social assessment interview was conducted through the Addiction Program of the University Health Network-Toronto Western Hospital, which led to an in-house Psychiatric Assessment that provisionally diagnosed post-traumatic stress disorder and Cluster B personality traits (i.e. problems with impulse control and regulating emotions). Insight and judgment were noted as good and the assessment’s authors recommended treatment which the mother said that she was following. This evidence was not disclosed to the Society until the eve of this motion;

(b) G.R.-L. and D.L. (almost 9 and 5 ½ years old respectively) have an attachment with their mother and know, and have spent time with, their older siblings in the care of the maternal grandmother;

(c) the Society acknowledges that the mother has shown a level of commitment to making positive changes in her life to gain stability but not sufficient to satisfy its protection concerns, especially in circumstances where the mother’s plan is to unite, and care for (with extensive support) her four youngest children (the sixth not yet born); and

(d) it was not until the mother delivered her affidavit, shortly before this motion was argued, that the Society in its November 15, 2016 affidavit suggested that the foster parents were considering a permanency plan for the children.

[17] While there may well be other considerations about the desirability of access in the face of a crown wardship order, the foregoing are sufficient reason for caution to be exercised before a more robust evidentiary case is made out.

Part Six – Disposition

[18] When this summary judgment motion was scheduled, the endorsement made at the Trial Management Conference provided that if the motion was dismissed or certain issues were ordered to trial then that trial would proceed during these sittings. In light of that endorsement, and in accordance with Rules 16 (6.1) and (16.9), the following Orders are made and directions given.

[19] It is ordered that:

1. The Society's motion for summary judgment is granted in part.

2. The child G.R.-L born […], 2008 is a child in need of protection pursuant to sections 37 (2) (b) (i) and (ii) and sections 37 (2) (b) (g.1) of the Child and Family Services Act.

3. That the child D.L. born […], 2011 is a child in need of protection pursuant to sections 37 (2) (b) (i) and (ii) and sections 37 (2) (b) (g.1) of the Child and Family Services Act.

4. The child G.R.-L is non-Native and non-Catholic.

5. The child D.L. is non-Native and non-Catholic.

6. That the child G.R.-L born […], 2008 be made a ward of the crown and placed in the care of the Simcoe Muskoka Child, Youth and Family Services.

7. That the child D.L. born […], 2011 be made a ward of the crown and placed in the care of the Simcoe Muskoka Child, Youth and Family Services.

[20] There shall be a trial on the issue of the mother’s access, that to proceed forthwith:

(a) subject to submissions by counsel at the commencement of trial, this court sees little need for the trial to deal with historical evidence prior to April 1, 2015. The main focus of the trial will be with respect to what has occurred since then;

(b) the mother shall proceed first. She has the onus of satisfying the court that access will be meaningful and beneficial to the children and that, if ordered, access would not impair the children's opportunities for adoption; and

(c) the Society shall lead evidence about the opportunities for adoption of the children. This should include the Society’s plans.

[21] A trial scheduling teleconference shall be arranged by the trial coordinator to be convened forthwith.

Justice D.A. Jarvis

Date: November 21, 2016