Children and Family Services for York Region v. J.V. and N.B., 2017 ONSC 4770

CITATION: Children and Family Services for York Region v. J.V. and N.B., 2017 ONSC 4770

NEWMARKET COURT FILE NO.: FC-16-50877-00

DATE: 20170809

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN AND FAMILY SERVICES FOR YORK REGION Applicant

– and –

J.V. (T) and N.B. Respondents

COUNSEL:

Alison Moonsie-Mohan, for the Applicant

Olivia Holzaphel, for the Respondent Mother The Respondent Father, N.B Self Represented

HEARD: August 4, 2017

REASONS FOR DECISION

DOUGLAS J.

Overview

[1] These are my reasons for decision upon the motion of Children and Family Services for York Region (hereinafter “CFS”) for summary judgment, the motion being found at Volume 3, Tab 6 and the motion of the Respondent Father, N.B. found at Volume 3, Tab 5 of the continuing record.

[2] Upon the Society’s motion pursuant to Rule 16 of the Family Law Rules, it seeks the following orders on summary judgment:

(a) Statutory findings pursuant to s.47(2) of the Child and Family Services Act (hereinafter the “Act”) and follows:

(i) The children are J.J.B., born […], 2013 and J.I.B., born […], 2014;

(ii) The children are not Native and not Indian;

(iii) The children are not Catholic and not Jewish;

(iv) The children were apprehended from their parents’ care on May 12, 2016 in Peel Region;

(v) Mr. B. is a parent under the Act.

(b) The children are in need of protection pursuant to s. 37(2)(b)(i) and 37(2)(g) of the Act;

(c) Pursuant to s. 57(3) of the Act, the children shall be made wards of the Crown and placed in the care and custody of CFS.

(d) Pursuant to s. 58 of the Act, there shall be no access to the children.

[3] Pursuant to Mr. B.’s motion, he seeks the following relief:

(a) Termination of or changes to the orders of May 17, 2016 and September 16, 2016;

(b) An order for CFS to “comply with their internal review panel and conduct internal review of entire family file and update and correct their information”;

(c) An order that CFS “conduct joint investigation with police as per protocols and prescribed standards”;

(d) An order “giving direction including conditions and expectations of the court in order to have children returned”;

[4] Pursuant to the order of Justice Jarvis, dated July 21, 2016, the Respondent Mother was declared a “special party” within the meaning of Rule 2(1) of the Family Law Rules and accordingly the Public Guardian and Trustee (“PGT”) was appointed representative for her in this proceeding pursuant to Rule 4(3) of the Family Law Rules;

[5] Counsel for the PGT, Ms. Holzapfel, attended with the Mother upon these motions and took no formal position on behalf of the Respondent Mother. Notwithstanding this, I did receive submissions from the Respondent Mother, who has not filed any evidence in respect of the motions before me.

[6] It is clear the Respondent Mother opposes the relief sought by CFS and wishes the children returned to her care and that of Mr. B.

[7] I have considered the following affidavit evidence in relation to the motions before me:

(a) Affidavit of Carolina Zachemska, sworn May 11, 2016;

(b) Affidavit of Lidia Vieira, sworn May 16, 2016;

(c) Affidavit of Asida Alibegic, sworn June 20, 2017;

(d) Affidavit of Kathleen Bar, sworn June 22, 2017;

(e) Affidavit of Constance Hogan, sworn June 22, 2017;

(f) Affidavit of N.B., sworn June 3, 2016;

(g) Affidavit of N.B., sworn June 27, 2016;

(h) Affidavit of N.B., sworn April 12, 2017.

Background

[8] The Respondents have not filed any affidavits directly responding to the issues raised beyond factual background.

[9] Neither Respondent has filed any affidavit evidence directly responding to the issues raised by CFS on its motion for summary judgment. Only Mr. B. has filed any affidavits. I have reviewed those affidavits carefully and none of them references the children specifically in a meaningful way; instead, Mr. B.’s affidavits reference police reports predating the birth of either child, children other than the subject children, perceived wrongs to the Respondents by CFS and the police and the Peel Region Children’s Aid Society.

[10] The affidavit of April 12, 2017 filed by Mr. B. appears designed to support the relief requested upon his motion in addition to seeking an order for an assessment under s. 54 (if the court requires further assessment) although not specifically referenced in his notice of motion, rather than responding to the CFS motion for summary judgment which, at the time the affidavit was sworn, had not been served upon the Respondents.

[11] The Respondents have filed no evidence after being served with the CFS motion for summary judgment. No adjournment is sought to facilitate the production of responding evidence.

[12] The Respondents are therefore not in a strong position to dispute the evidence filed by CFS in support of its motion for summary judgment.

[13] The Respondents are the natural parents of the children. At the time CFS launched this application in May of 2016, the parents resided in Pefferlaw; however, CFS has no concrete information as to the parents’ current place of residence.

[14] CFS had no previous history with this family although the family did have history with Peel Region Children’s Aid Society commencing in November of 2008 pertaining to the Respondent Mother’s older children.

[15] Peel Region Children’s Aid Society was also involved with the parents regarding the subject children due to concerns for the mother’s mental health as he had been “formed” under the Mental Health Act in November, 2014.

[16] CFS involvement started on April 8, 2016 following a referral from the Social Assistance Coordinator at Ontario Works.

[17] On April 11, 2016, the intake and assessment worker went to the parents’ residence to investigate the referral but was unable to commence an investigation as Mr. B. refused to cooperate, Ms. V. would not engage with the worker and Mr. B. would not allow the worker to explain why she was at his home. The worker was not permitted to interview or interact with the children.

[18] In light of the parents’ refusal to cooperate with the CFS intake investigation, CFS launched this protection application so that the investigation could proceed pursuant to a court order.

[19] On May 12, 2016, Rogers J. made a temporary, without prejudice supervision order that permitted CFS access to the home and to the children.

[20] Thereafter the intake worker approached the parents in an attempt to make an appointment to attend the home to see the children; however, the parents demonstrated very erratic and concerning behaviours that raised the worker’s concern for their mental health and risks to the children. The parents would not agree to meet with the worker.

[21] A warrant was then obtained for the children’s apprehension and with the assistance of Peel Region Children’s Aid Society, the children were apprehended and brought into care on May 12, 2016.

[22] Despite attempts to engage with the parents in order to arrange access to the children since their apprehension, the parents have failed to respond and have not exercised access to the children in the last 14 months.

[23] On April 25, 2017, Josef Budziak attended court with the parents and advised that he would like to be considered as a plan for the children’s placement. On May 24, 2017, the parents and Mr. Budziak met with the CFS Director of Services and Family Services Supervisor and the parents agreed to commence working with the Family Services worker and for Mr. Budziak to meet with the Family Services worker to commence the kinship assessment; however, the parents failed to follow through and to date, Mr. Budziak has not met with the Family Services worker.

[24] Despite the CFS attempts to engage with the parents, the parents have refused to meet with the Family Services worker or to engage in the alternate dispute resolution process to address any of the issues or concerns.

[25] The children are complex and have complex needs.

[26] When the children were first apprehended, J.I.B. (who was 22 months old) had no verbal skills, she wandered aimlessly with a blank stare on her face most of the time, she walked on her toes and she had rotten teeth. J.I.B. poked herself in the eye constantly, head-banged, rocked, pinched herself and shut her own fingers in cupboards purposely, and then screamed.

[27] J.J.B.’s speech was garbled and she was difficult to understand. She could not speak in full sentences as she should have been able to do and she did not respond to questions asked of her. J.J.B. had temper tantrums that involved throwing herself on the floor on her back repeatedly. J.J.B. was not toilet trained.

[28] The children threw their food on the floor and then ate it off the floor.

[29] The children both appeared developmentally delayed and they did not interact with each other at all. The foster mother had to teach J.I.B. how to hug.

[30] The August 3, 2016 Suspected Children Abuse and Neglect Clinic consultation indicated that there were multiple areas of developmental delay and impairment for both children. No cause could be ascertained for the children’s difficulties as a result of the limited information that existed about the children’s earlier life; however, it did not appear that the children had learned how to contain their emotions, to self-regulate or to socialize. It was noted that both J.I.B. and J.J.B had shown significant improvement in their socio-emotional and behavioural functioning since being placed in foster care but that they continued to exhibit several areas where they had significant and extensive needs. It was recommended that in order for the children to continue to improve they needed to be in an environment that was stable, predictable, structured, offered a high level of supervision and was nurturing.

[31] There were concerns of neglect as the children’s OHIP continuing records for both girls obtained in June 2016 showed that neither child had seen a doctor to be vaccinated since birth. J.I.B also needed dental surgery for extensive dental decay.

[32] J.J.B had had no medical treatment since August 12, 2013 when she would have been four months old and J.I.B. had had no medical treatment since September 11, 2014 when she would have been one month old.

[33] Dr. Shouldice, after reviewing testing results for J.I.B., determined that it would be appropriate to focus on testing for Autism.

[34] Dr. Hunt at Grandview Children’s Centre felt that some of J.J.B’s features were consistent with Fetal Alcohol Spectrum Disorder but there’s been no such diagnosis due to a lack of confirmed history of alcohol ingestion in pregnancy.

[35] J.I.B. had an assessment at Grandview Children’s Centre and her scores strongly indicate a diagnosis of Autism Spectrum Disorder.

[36] J.J.B. was identified as having a significant expressive and receptive language delay. She was also identified as having delays with fine motor skills, and possibly some early academic challenges with letter identification. She was diagnosed with a mild developmental delay with specific challenges related to language delay. Behavioural challenges were also identified.

[37] Both girls would need highly skilled caregivers given their high needs.

The Legal Context

[38] The rule governing motions for summary judgment is Rule 16 of the Family Law Rules. It provides that 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. The rule also applies to child protection cases.

[39] The court is mandated to make a final order on a motion for summary judgment where there is no genuine issue requiring a trial.

[40] 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 that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(a) Weighing the evidence;

(b) Evaluating the credibility of a deponent;

(c) Drawing any reasonable inference from the evidence.

[41] The court must first review the entire evidence to evaluate the nature and strength of the Applicant’s case to determine if there is a basis in that evidence for the final order sought. If the court determines whether, in that evidence, there are specific facts to support a triable issue in any of the determinations required to be made by the court as part of the summary judgment (see Children’s Aid Society of the Regional Municipality of Waterloo v. R.S., 2000 CanLII 22902 (ON CJ), [2000] OJ No. 4880 (ONT SCJ).

[42] On a motion for summary judgment, the court should first determine if there is a genuine issue requiring trial based only on the evidence before the court, without using the new fact finding powers. If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the new powers (see Hryniak v. Mauldine 2014 SCC 7).

[43] The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material facts that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material (see Children’s Aid Society of Toronto v. S.A. and O.E.A. 2013 ONCJ 367).

[44] In determining whether a genuine issue exists, the court must consider the strict guidelines governing the child protection procedure under the Act and also the best interest of the child. In arriving at such a decision, the court must give paramount consideration to the best interests test which would include, among other factors, as certain a future as possible (see Children’s Aid Society of Algoma v. L.P. [2002[OJ No. 2895 (ONT SCJ).

[45] No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the Applicant (see Children’s Aid Society of the County of Simcoe v. C.S., [2001] OJ No. 4915 (ONT SCJ).

[46] A party cannot rest on a denial and must put his or her best foot forward. The responding party, faced with a prima facia case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment (see R.A. v. Jewish Family and Child Services, [2001] OJ No. 47 (ONT SCJ) and Catholic Children’s Aid Society of Toronto v. G.O. 2014, ONCJ 523).

[47] A child is in need of protection where 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 failure to adequately care for, provide for, supervise or protect the child (see s. 37(2)(b)(i) of the Act).

[48] A child is in need of protection where 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 pattern of neglect in caring for, providing for, supervising or protecting the child (see s. 37(2)(b)(ii) of the Act).

[49] A child is in need of protection where there is a risk that the child is likely to suffer emotional harm of the kind described in s. 37(2)(f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child (see s.37(2)(g) of the Act).

[50] There are two stages to a protection application. The court must first determine whether a child is in need of protection pursuant to s. 37(2) of the Act. If the protection issue is proven, the court must then determine the appropriate disposition order under s. 57.

[51] Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under s. 57.1 in the child’s best interest:

(a) A supervision order placing the child with a parent or another person;

(b) Society wardship;

(c) Crown wardship;

(d) Consecutive orders of Society wardship and supervision.

[52] The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child’s desires, which the Act contemplates as well (see Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1994 CanLII 83 (SCC), [1994] 2 SCR 165).

[53] The court is prohibited from making an order for Society wardship if that order would result in a child being a Society ward for a period exceeding 12 months if the child is less than six years of age on the day that the court makes the order (see s. 70(1)(a) of the Act).

[54] The court may extend the time limits under s. 70(1) by a period not exceeding six months if it is in the child’s best interest to do so (see s. 70(4) of the Act).

[55] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered by a child’s needs and perspective. The time consideration, like all considerations in child protection matters, should be child focused (see Catholic Children’s Aid Society of Toronto v. G.O. supra).

[56] 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 they face some better prospects than what existed at the time of a Society’s removal of the child from their care and that the parents have developed some new ability as parents (see Catholic Children’s Aid Society of Toronto v. G.O. supra).

[57] The cornerstone of the Act insofar as Crown wardship is concerned, is to provide the child with permanence and stability (see Children’s Aid Society of Toronto v. M.A., 2002 CanLII 53975 (ON CJ), [2002] OJ No. 2371).

[58] The Act creates a presumption against access for Crown wards. The onus is on the party asking for the access to meet the test for access, and the 2011 amendments to the Act have not altered the high burden to overturn the presumption against access for a Crown ward (see s. 59(2) of the Act and Children’s Aid Society of Toronto v. A.G. 2015, ONSC 6638 and Children’s Aid Society of Niagara v. J.C., 2007 CanLII 8919 (ON SCDC), [2007] OJ No. 1058).

[59] The court is prohibited from making an access order with respect to a Crown ward unless the evidence demonstrates that the relationship between the person and the child is “beneficial and meaningful) and the ordered access will not impair the child’s future opportunities for adoption (see s. 59(2.1) of the Act and Children’s Aid Society of Niagara v. J.C. supra and Children’s Aid Society of Toronto v. M.A. supra).

[60] The onus is on the person requesting access to provide evidence with respect to both these requirements. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable (see Children’s Aid Society of Niagara v. J.C. supra).

[61] 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 the parent and child, that is not enough. It must be significantly advantageous to the child (see Children’s Aid Society of Toronto v. A.G. supra).

[62] In the context of a motion for summary judgment, and with respect to access after Crown wardship, if there is no genuine issue requiring a trial on whether the relationship is meaningful and beneficial to the children, the analysis must end. The motion judge does not have the discretion to go on to consider whether there is a genuine issue requiring a trial on the issue of adoptability. Whether there is no genuine issue regarding the meaningful and beneficial relationship, the disposition must be Crown wardship with no order for access (see Children’s Aid Society of Toronto v. A.G. supra).

Analysis

[63] CFS submits as follows:

(a) Regarding the finding that the children are in need of protection, it is clear from the children’s medical records that they experienced significant neglect while in their parents’ care. The children had no medical care, they had not been vaccinated and J.I.B. had extensive dental decay.

(b) The children’s functioning on apprehension also demonstrated that the children’s emotional, social and developmental needs have been neglected. It is also strongly suspected that J.J.B. has FASD given her facial features, her delays and the fact that her mother had a history of drinking.

(c) The fact that the children were able to make considerable gains with the support of skilled caregivers and services is testament to the scope of the neglect. There are no triable issues regarding a finding that the children are in need of protection.

(d) Regarding disposition, it is in the children’s best interest to be made wards of the Crown with no access for the purpose of adoption. J.I.B. has a diagnosis of Autism and has demonstrated significant global delays. J.J.B. is believed to have FASD and she has extensive delays as well. J.J.B., who is four years old, has not seen her parents in 14 months. J.I.B., who will be three in […], likewise has not seen her parents in 14 months. During that time, the children have been able to benefit from medical care that they so urgently need as well the collateral services to address their developmental needs. They had also had the benefit of highly skilled caregivers such that they have been able to stabilize and make gains.

(e) Even after 14 months, the concerns for the parents still exist. The parents’ conduct to date continues to raise concerns for their mental health. The fact that they have chosen not to exercise any access or even to inquire as to their children’s functioning and wellbeing raises concern about their attachment to the children and their understanding of their children’s emotional needs.

(f) The parents have refused to work with CFS or to address any of the concerns. CFS has no information as to what the children’s experience of being parented by their biological parents other than what can be discerned from their functioning on coming into care and their functioning after being in care for 14 months.

(g) It is in these girls’ best interests to be placed with caregivers who can meet their long term needs. To date, the parents have demonstrated that they have no insight and no understanding of basic child care needs. There are also no viable alternative kinship placements for the children.

(h) These girls have been in care longer than anticipated by legislation. It is in their best interests that permanency planning be pursued.

(i) The parents have chosen not to see their children in 14 months; hence, access is not an issue.

[64] As indicated above, the Respondent Mother has been declared a special party and through the PGT takes no position with respect to the relief sought by CFS. Having said that, the Mother did directly communicate to the court her desire to have the children returned to her care.

[65] Mr. B. did file affidavit material but as indicated above it did not directly respond to the CFS motion.

[66] With respect to the relief sought by Mr. B., I find that it would be contrary to the best interests of the children to terminate or vary the temporary orders of the court pending a trial and that such relief is unsupported by the evidence before me.

[67] With respect to Mr. B.’s request that I order that CFS “comply with their internal review panel and conduct internal review of entire family file and update and correct their information” I have no jurisdiction to grant this relief; similarly, I have no jurisdiction to grant the relief at paragraph 4 of Mr. B.’s notice of motion.

[68] With respect to item 5 of Mr. B.’s notice of motion, I take this in tandem with his request as referred to in his affidavit of April 12, 2017 for a s. 54 assessment. These children have been in care since May, 2016 without access by their parents. There has been no expression of interest by the parents in pursuit of access. There have been no inquiries by the parents as to the children’s circumstances. I have no evidence of any steps taken by the parents to address the concerns raised by CFS in its motion materials.

[69] The evidence is concerning regarding the condition of the children at the time of apprehension. I have no evidentiary basis for the conclusion that the parents’ parenting abilities have improved since apprehension. I have no basis to conclude that the children’s prospects in the care of the Respondents have improved since apprehension.

[70] The timelines contemplated by the Act have been exceeded. These children need permanency planning and stability.

[71] In the circumstances, I have no hesitation in concluding that there is no genuine issue requiring a trial in respect of establishing whether the children are in need of protection. The evidence, summarized in part above and uncontradicted by the Respondents, supports the conclusion that the children are in need of protection pursuant to s. 37(2)(b)(i), s. 37(2)(b)(ii) and s. 37(2)(g) of the Act.

[72] Similarly, as to disposition, I conclude that there is no genuine issue requiring a trial. The parents have exercised no access to the children for 14 months. They have expressed no interest in exercising access to the children during that time. They have not contacted the Society to inquire as to the wellbeing of the children. There appears to be no evidence to support the argument that there is a strong bond or attachment between the Respondents and the children.

[73] The children are faring much better in care than they appeared to be faring under the care of the Respondents.

[74] The CFS evidence establishes a strong prima facie case, both as to whether the children are in need of protection and as to disposition. As a result, the burden shifts to the Respondents to satisfy me that there is a genuine issue requiring a trial. They have failed to do so.

[75] I am entitled to presume that the parties have all put their best case forward on a motion for summary judgment. As indicated above, the Respondents’ evidence largely ignored not only the issues but, most importantly, the children. If this is the Respondents’ best case, it falls well short of satisfying me that there is a genuine issue requiring a trial.

[76] In my view, on the evidence before me, there is no realistic possibility of a result other than that sought by CFS in its notice of motion.

CONCLUSION AND ORDER

[77] For the foregoing reasons, Mr. B.’s motion is dismissed and the CFS motion is granted as follows:

(a) There shall be statutory findings pursuant to s. 47(2) of the Act as follows:

(i) The children are J.J.B., born […], 2013 and J.I.B., born […], 2014;

(ii) The children are not Native and not Indian;

(iii) The children are not Catholic, and not Jewish;

(iv) The children were apprehended from their parents’ care on May 12, 2016 in Peel Region;

(v) The Respondent N.B. is a parent under the Act.

(b) The children are in need of protection pursuant to s. 37(2)(b)(i) and 37(2)(g) of the Act;

(c) Pursuant to s. 57(3) of the Act, the children shall be made wards of the Crown and placed in the care and custody of Children and Family Services for York Region;

(d) Pursuant to s. 58 of the Act, there shall be no access to the children.

DOUGLAS J.

Released: August 9, 2017