Court File and Parties
Citation: Family and Children’s Services of Frontenac, Lennox and Addington v. A.L. and M.N. and D.P., 2017 ONSC 4381
Kingston Court File No.: 30/16
Date: 2017-07-18
Superior Court of Justice - Ontario
Re: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant and A.L., M.N., and D.P. (in default), Respondents
Before: Mr. Justice Timothy Minnema
Counsel: Ms. Ayana Hutchinson, for the Applicant Society Ms. Elizabeth T. French, for Respondent A.L. Mr. Peter S. McCullough, for Respondent M.N. Vincent Ramsay, for the child C.P. Carolyn Shelley, for the children Z.P., J.L., and L.N.
Heard: April 12, 2017
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 children C.P. (male age 16), Z.P. (male age 14), J.L. (male age 13), and L.N. (female age 7). It is seeking Crown wardship pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”). The respondent father of the oldest three children Mr. D.P. is noted in default as he has not filed an answer. At the commencement of this hearing the remaining parties have by way of a Statement of Agreed Facts consented to Crown wardship with access for the oldest child C.P. I have made that order, and this decision therefore concerns the three youngest referred to collectively as “the children”.
[2] The respondent father of the youngest child and step-parent to the older three children Mr. M.N. (referred to as the “father”) is asking that the summary judgment motion be dismissed or, in the alternative, that the summary finding be made that the children are in continuing need of protection and the matter proceed to trial on the issue of disposition.
[3] The mother of all four children Ms. A.L. is asking that the motion be dismissed or, in the alternative, for a 6 month Society wardship order transitioning the three younger children into the care of herself and the father.
[4] The Office of the Children’s Lawyer (“OCL”) agrees with the Society’s position on Crown wardship, but seeks access orders to the parents and between all of the children including C.P. in the Society’s discretion. Ms. A.L. and Mr. M.N. (referred to together as “the parents”) indicate in the alternative that should there be an order for Crown wardship they support the making of the access orders.
Law re Summary Judgment
[5] There is no disagreement between the parties with respect to the law on a motion for summary judgment. The following is a brief summary as found in Rule 16 of the Family Court Rules, O. Reg. 114/99 (“Rules”) along with the steps set out in Hryniak v. Mauldin, 2014 SCC 7.
(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). There are two steps in this analysis.
(b) First, the judge should determine if there is a genuine issue requiring a trial considering only the evidence submitted by the parties (Hryniak at para. 66). The evidence requirements are set out in Rules 16(4), (4.1) and (5), and there are positive obligations on both the moving and responding party to set out specific facts supporting their positions.
(c) Second, if there appears to be a genuine issue requiring a trial following the above, the court should then determine whether there is genuine issue requiring a trial (Rule 16(6.1)) and if the need for a trial can be avoided (Hryniak para. 66) upon exercising the new fact-finding powers 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. There will be no genuine issue requiring a trial if the summary judgment process allows the court to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (Hryniak para.s 49 and 67).
(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)).
[6] A primary argument of both the parents is that a trial is required to test the veracity of the evidence of the Society. As noted in Children’s Aid Society of Hamilton v. A.M. and T.L., 2012 ONSC 6828 at paragraph 32, this argument is akin to the "mere allegation" or "denial" that is precluded by Rule 16(4.1). Such a submission in itself does not give rise to a genuine issue for trial: Children’s Aid Society of Toronto v. M.R. and A.A., 2016 ONCJ 215 at paragraph 35.
Factual Summary
[7] The mother is 38 years old and has admitted anxiety issues. The father is 41 years old. Neither had great childhoods, and neither completed high-school. The mother began a relationship with Mr. D.P. around age 18, and he was physically, emotionally, and sexually abusive. She left the relationship while pregnant with their third child. She subsequently met the father, Mr. M.N. and they had the youngest child together.
[8] The children were all apprehended on January 15, 2016. As noted this is a status review application. The previous 6 months Society wardship order was made on the basis of a Statement of Agreed Facts. The mother argues that, as a matter of law, the agreed facts are the only facts that the court can rely on relating to the time period prior to the last order. I am unaware of any such rule, but do rely significantly on those established facts.
[9] There has been past Children’s Aid Society (“CAS”) involvement with the family. The concerns around the apprehension were for the most part illegal drug use by the parents, inappropriate and physical discipline of the children, lack of follow-through with recommended services, poor parenting decisions and lack of supervision, and neglect. Regarding services, there was minimal addressing of the children’s special needs; the 16-year-old has learning disabilities, the 13-year-old has autism and ADHD, and the 7-year-old has marked anxiety issues. Poor parenting decisions included the father providing the oldest child with pornographic magazines in Grade 6. There have been disclosures of the father allowing children to try marijuana, and of violence between the children while in the care of their parents, in particular the oldest child on the younger ones. The children have reported the family dog being given marijuana and acting funny, but the father insists it was unintentional and that the dog picked it up from the floor.
[10] A section 54 assessment by the Family Court Clinic was ordered and the March 1, 2017 report of David Spendlove is in evidence (the Family Court Clinic Assessment or “FCCA”). He recommends that the children remain in care and become Crown wards, and notes the importance of access and the maintenance of various relationships. The parents challenge the report in the sense that questions that were asked of the Clinic were not specifically answered. However, in my view this is a matter of format rather than content, as the parenting issues were fully canvassed.
[11] The two youngest children are in the same foster home, and the oldest two are each in their own foster homes. The access between the parents and the children has had a number of variations since the apprehension, and many of the changes were made at the direct request of the parents. The current schedule has the parents seeing the two oldest children every Monday in the community, the third oldest every other Thursday, and the youngest every other Friday on the opposite week. There is also one visit a month with all the children. All access continues to be supervised by the Society.
Issues and Analysis: Should Summary Judgment for Crown Wardship Be Granted?
[12] The parties agree that the test on the Society’s status review application is what disposition is in the children’s best interests, provided they are found to be in continuing need of protection. There is no dispute about my making that latter finding.
[13] As the mother’s counsel has succinctly pointed out, one of the purposes of the Act in s. 1(2) is to recognize that the least disruptive course of action should be considered. Therefore other available dispositions need to be assessed. I agree with her submission generally that if there is a realistic possibility of a result at trial other than Crown wardship then there is a genuine issue requiring a trial. The question would become whether the new fact-finding powers of the summary judgment process would allow the court to fairly and justly adjudicate the dispute in a timely, affordable and appropriate procedure.
[14] As to other possible dispositions, per section 65 of the Act the court is limited to the orders available under section 57 and 57.1. In the context of this case neither parent is suggesting that the children would be returned without conditions, nor is there evidence of a kin plan. The options, then, in addition to Crown wardship, are either a supervision order to the parents (s. 57(1)1) or, given that the children are all over 6 years of age and been in care for approximately one and a half years, a period of Society wardship (s. 57(1)2 and s. 70(1)). As noted above, the mother requested that Society wardship be granted on this motion as her alternative position. Either wardship disposition would require a decision on access.
[15] The circumstances the court is required to consider when determining which disposition would be in the children’s best interests are set out in s. 37(3). I have examined them and note the ones arising from the evidence and submissions that I consider relevant.
Plans
[16] 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.
[17] Although represented by separate legal counsel, the parents have essentially the same plan. They are asking that the children be returned to their combined care and indicate that they will cooperate with the Society, obtain services for themselves, and care for the children within a loving family including looking after their needs with required services.
[18] The Society’s plan is for Crown wardship. While it indicates that adoption will be explored, it believes that the children are currently appropriately matched with foster parents who are meeting their needs. The OCL supports this position.
[19] If Crown wardship is granted the existing access orders would automatically terminate and the Society’s position is that the parents cannot meet the test for further access (addressed below). The Society points to s. 59(4) which says that it may still permit contact or communication if it believes it is in the children’s best interests. Its intent is to continue contact between the children, although continued contact with the parents is vague. The OCL did not prepare a formal plan but as noted it seeks an access order between the siblings and between the children and their parents, and is opposed to the Society in that regard.
[20] In comparing the two plans, the Society’s plan is essentially the status quo at least regarding placements, and indeed the evidence supports that the children are thriving in their respective homes. The two youngest children in particular with their special needs have made and continue to make improvements since the apprehension. The parents’ plan is to now to do what they were unsuccessful in doing before the apprehensions. They have also been unable since then to demonstrate consistent improvements through access visits and services. Although there is recent commitment to services, accessing these was poor prior to the apprehension and have been sporadic until now. The FCCA identifies impediments personal to the individual parents that makes their progress difficult. In my view it is obvious that there are serious questions about whether they can carry out their plan.
Needs, Care and Development
[21] I have considered the children’s level of development and their physical, mental and emotional needs, and the appropriate care or treatment to meet those needs (subsections 37(3)1 and 2).
[22] Of the four children, all but the second oldest have special needs. The needs of the oldest are now being addressed within the Crown wardship order just made. The two youngest have the most marked difficulties, and require a high level of specialized parenting. There are serious doubts about the parents’ ability to meet those needs. The development and behaviour of all the children has markedly improved since they have been in foster care. Also their physical needs have been better met. Hygiene has improved. The youngest had persistent urinary tract infections that ended upon her being apprehended.
Positive Relationships and Security
[23] I have considered the importance for the children’s development of a positive relationship with a “parent” (which as correctly pointed out by the mother’s counsel does not include a foster parent) and a secure place as a member of a family (subsection 37(3)5 and 37(1)).
[24] For the first aspect, the evidence points to the children having positive relationships with their parents. However, the Society is only prepared to concede that the relationships are meaningful to the children.
[25] For the second aspect, the children have not been in a secure place as a member of the parents’ family for some time. The stable placements since the apprehension have been provided by their various foster homes. The evidence and admissions around the apprehension indicate that security from consistent, proper, and attentive parenting, meeting all the children’s needs was lacking. The mother is noted in the FCCA as admitting that they had tried but were overwhelmed with everything involved.
Emotional Ties
[26] I have 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). Other than the parents and between the children themselves, there is no evidence of any other adults or children in the mother’s and father’s world who have relationships with the children other than the maternal grandparents who have had positive visits. Given the ages of the children, the emotional ties with their parents are strong. It has been noted that the father’s ties to the youngest child, his daughter and only biological child, appears to be stronger than to the other children. The ties are such that the OCL supports continuing access to maintain them.
Continuity of Care
[27] I have considered the importance of continuity in the children’s care and the possible effect on the children of disruption of that continuity (subsection 37(1)7). The mother’s counsel points out that the Society does not have adoption plans for these children, and that general foster care comes with the risk of children being moved and has fewer certainties. However, there is no evidence of pending moves. The children are, relative to their pre-apprehension functioning, showing marked improvement over the past year and a half. To disrupt that level of positive continuity the court would need to be confident that the parents were presenting a viable permanent, safe, and stable plan.
Children’s Views
[28] I have considered the children’s views and wishes (subsection 37(2)9). As noted the oldest child at age 16 has been made a Crown ward. Per the Statement of Agreed Facts filed supporting that order, he indicated that he did not wish to return to the care of his parents. His access to them is at the Society’s discretion in accordance with his wishes.
[29] Z.P. the second oldest child is 14 years of age and has fewer behavioural or developmental concerns than any of his siblings. He also wishes to remain in foster care on a permanent basis with access to his parents and siblings. J.L. is 13, but his disabilities are such that he cannot verbally express his views and preferences. The youngest child L.N. is now 7. Notwithstanding her young age, she has indicated a consistent, strong and independent preference that she does not wish to reside with her parents, but is content with her current access.
Delay
[30] I have considered the effects on the children of delay in the disposition of the case (subsection 37(3)10).
[31] 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. The Act at section 70 allows for 24 months before making a decision on Crown wardship, but that does not mean the court has to exhaust the full period: Children’s Aid Society of Ottawa v. C.(S.), 2003 CarswellOnt 9373 (S.C.J.). I adopt the following passage from Children’s Aid Society of Toronto v. R.H. 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), 73 A.C.W.S. (3d) 82, [1997] O.J. No. 3205, 1997 CarswellOnt 2830 (Ont. Fam. Ct.), per Justice Cheryl J. Robertson.
[32] The parents argue that there is time still available for Society wardship. However, that alone does not translate into a genuine issue requiring a trial. It must be weighed along with all the other factors, including the parents’ ability to change per the history to date and as assessed in the FCCA, the children’s wishes, and section 1(2) of the Act which recognizes the importance of early planning and decision making. The parents here have squandered the better part of 17 months of assistance by the authorities and service providers during the course of these court proceedings. They are only just now starting to attempt to address their problems in a substantial way, and success is speculative at best.
[33] It has been noted that a child's need for permanency planning within a timeframe sensitive to that child's needs demands that legal processes not be used as a strategy to ‘buy’ a parent time to develop an ability to parent: Children’s Aid Society of Toronto v. R.H., [2000] O.J. 5853 (O.C.J.). The parents must, at this hearing, present facts showing that there is a genuine issue for trial (Rule 16(4.1)). On a summary judgment motion in Children’s Aid Society of London and Middlesex v. L.A., [1999] O.J. No. 5839 (Ont. Gen. Div. – Family Court), the Court found no merit in the submission that the triable issue that required a full hearing was the mother’s possible reformation and her future ability to act as a parent. The discussion under the following heading also touches on how change in the parents is unlikely to happen.
Risk of Harm and the Degree of Risk
[34] 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).
[35] The Society’s main argument, supported by the FCCA and the OCL, is that there are numerous examples establishing that the parents lack insight into what is needed to properly raise these children and to protect them from harm. There are many examples of statements by the parents of still not knowing why the children were apprehended or what the protection concerns were or are. There is a tendency to blame others for the children being removed, such as the oldest child or the Society workers, and a failure to see any neglect or mistreatment of the children. While there might be some factual disagreements, even when that evidence is discounted in favour of the parents their parenting abilities and insights are lacking. As one example, the children themselves have disclosed that the father has allowed them to smoke marijuana and that it was administered to the dog. The first part is denied by the father, and he provided a different account related to the dog. However, even accepting only his evidence, it is still clear that there was marijuana use while caring for and in front of the children, and of it being so loosely and readily available in the home that it could be eaten by the dog. These are still concerns. As noted by the FCCA assessor, children look up to adults and their parents as role models. Overall it is not difficult to see how neglect occurred or how shortcomings in the necessary minimal level of care occurred when one parent was regularly using marijuana and the other was feeling overwhelmed with the task of parenting.
Conclusion re Disposition
[36] I have considered whether the concerns of the Society could be addressed by supervisory conditions (subsections 57(1)4, 57(3), and 53(1)(d)(ii)). As the underlying issues relate to functioning and insight, I am not convinced that the court can craft conditions that will now protect the children. I note that even the present minimal access still requires supervision after one and a half years. I see no genuine issue here.
[37] When deciding which of the possible dispositions to order, as noted the court is required to ask what efforts the Society or another agency or person has made to assist the child before intervention under Part III of the Act. Pre-apprehension services to the parents and subsequent efforts are always relevant and important considerations in a child protection case. Pursuant to s. 57(2) the assistance need not come only from the Society but includes other agencies and persons, and I would add that the parents, represented by counsel, have some obligation themselves to seek out timely services that they feel are necessary. In this case the availability of services is well-documented in the Society’s factum and in the FCCA, and the parents have not made it an issue. Available services include Enhanced Support workers, and the parents have had access to various counsellors. The Society’s concern of lack of insight impacts the value of services. As one example, the father took parenting and anger management programs. However, he did not feel that he needed them. The Society acknowledges that more recently the parents have engaged in services and are attending scheduled appointments. With the general lack of insight into the issues it is difficult to find any realistic prospect of commitment and improvement when little has been accomplished over the past one and a half years. I see no genuine issue here.
[38] The mother has argued that it is open for the court to find that there is a genuine issue for trial as to whether one or more of the children could be returned. However, there is little evidence that the parents could manage the special needs of either of the two youngest children, and the remaining child at 14 years old is opposed to being placed back into their care.
[39] I have weighed the best interest factors and in my view the current plan of the parents of acquiring an ability to follow through with services that improve parenting is speculative and unconvincing with no realistic chance of success. There has been no sustained progress on the core issues that could bring them to where they could be full-time parents and meet the very complex needs of particularly the two youngest children. I find that there is no genuine issue requiring a trial that Crown wardship is in the children’s best interests.
Access
[40] 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 parents to prove each of the following on a balance of probabilities: that the relationship between them and each child is meaningful to the child; that the relationship between them and the child is beneficial to the child; and that the ordered access will not impair the child’s future opportunities for adoption: Children’s Aid Society of the Niagara Region v. C.(J.), [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 presumptions have been accurately described as a “gateway” in the sense that only if rebutted can the analysis move on to the next step of considering whether of what access would be in the children’s best interests pursuant to subsection 58(1): see Children’s Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 at paragraph 30.
[41] All the parties conceded that the new summary judgment powers identified in paragraph 5(c) above would allow me to adjudicate this issue at this time.
[42] There are two aspects with respect to access. The first is sibling access as sought by the OCL and supported by the parents. The Society purports to draw a distinction between an order of Crown wardship “without access”, which it sought in its formal Notice of Motion, and a Crown wardship order that is “silent as to access”, its position at the hearing. In my view there is no practical distinction. A Crown wardship order without the granting of access means, by operation of sections 59(2) and (2.1), that there is no access order. The Society is therefore opposing the sibling access requested.
[43] The OCL submits there is also no question that the relationships between the children are meaningful and beneficial to them. As noted above there seems to be no contest on the first part of that test, namely that the relationships are meaningful. As to their benefit, the OCL points to the FCCA’s recognition of the importance of the bond and to the importance of the children being in positions to provide some support to each other later in their lives. As to the third presumptive hurdle, there was little said at the hearing or in the facta about whether sibling access will impair the children’s future opportunities for adoption. There is no evidence that the access would create delays or impede the process of identifying potential adoptive placements, a process that has not yet started. Further, in the context of the 2011 amendments, access is no longer a legal impediment to placing a child for adoption (see sections 143 and 141.1.1). In my view the presumption against access is rebutted in all respects for access between the children. As to the last step of assessing what access order would be in the children’s best interests, there was no dispute. As requested by the OCL, for each child there shall be access in the discretion of the Society that mirrors paragraphs 4 and 5 of the Statement of Agreed Facts for the oldest child.
[44] The second aspect to the access between the children and the parents. The comments above with respect to whether the relationships are meaningful to the children (which again is not contested) or will not impair their future opportunities for adoption, apply. Regarding the latter, I add that there is no evidence establishing that the parents would disrupt placements or be uncooperative. The more difficult part of the analysis, therefore, is the remaining question of whether the relationships are beneficial.
[45] Regarding the second oldest Z.P., at age 14 he wants the access to continue, and per the FCCA it is important to him. The OCL supports access continuing in the Society’s discretion subject to his wishes which are reflected by the existing schedule. The mother’s counsel points to his age, the length of time he has been with his parents, and that when the Society has given him the discretion for attending visits he chooses to go. I have considered the detriment to the child of ending such a relationship: Catholic Children’s Aid Society of Toronto v. C.C., 2015 ONCJ 334 at paragraph 138. In my view the evidence supports a beneficial relationship and the presumption against access is therefore rebutted. There is enough evidence before me and indeed an understanding between the parties as to what order would be in his best interests. The access to his parents shall be in the Society’s discretion and in accordance with his wishes, mirroring the wording of paragraph 3 of the Statement of Agreed Facts for the oldest child.
[46] Regarding the two youngest children, much of the evidence relating to the benefit of that relationship comes from the access visits. Both positive aspects and concerning aspects have been noted. The parents engage with the children. For J.L. with his many needs and challenges, the attention and the participation in activities appears to be valuable. However, he becomes aggressive and agitated before, during and after visits. For L.N., there is clear affection both ways during access. She wishes to continue with the current access and enjoys seeing her parents and doing activities with them. However, she has soiling behaviours which increase in the days surrounding the access. The FCCA did not weigh the pros and cons although the OCL in considering them still supports the children having a right of access to their parents. The mother’s counsel again points to the children’s ages (13 and 7) noting, in line with the C.C. decision, that there is a risk to ending relationships that are so longstanding.
[47] While the positives have to be assessed against the negatives, overall the relationships appear to have advantages and in my view there is enough evidence of a benefit to rebut the presumption. As to the next step, namely deciding what access order if any would be in the children’s best interests, the Society’s position is that if access is granted it should be in its discretion. The OCL took the similar position; that the children have a right of access to their parents upon a schedule to be determined in the discretion of the Society. The parents, while advocating for an access order generally in the event of a Crown wardship disposition, did not address how it should be framed in the sense of duration, frequency, or management. In my view fairness dictates that I receive further submissions on this issue as part of the appropriate procedure, in the event the parties cannot agree.
Decision
[48] While uncontested, I find that Z.P., J.L, and L.N. continue to be in need of protection. Those children are hereby made Crown wards. Final access orders between the children and between Z.P. and his parents to go as set out above. Regarding access as it relates to the parents and J.L. and L.N., the parties shall provide written submissions within 15 days. Each party is also permitted to make a brief reply three days after receiving the other’s submissions. In the alternative to written submissions, if the parties all agree a short hearing for oral submissions can be scheduled. This remaining issue might still be dealt with summarily or by an order under Rule 16(6.2), but if a trial is needed the Trial Scheduling Conference set for July 28, 2017 is hereby adjourned to October 20, 2017 at 10 a.m. The parties may bring the matter forward on a child protection list day if they come to an agreement.
[49] With the statutory rebuttable presumption addressed, in my view I have the authority to make an interim order pending the remaining issue being finalized. The access between the parents and the two youngest children shall continue per the status quo (in the discretion of the Society per the existing schedule) until further order.
[50] This is not an appropriate case for costs.
Mr. Justice Timothy Minnema
Released: July 18, 2017