CITATION: C.A.S. v. S.L., 2017 ONSC 5688
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF D.L. (D.O.B. 10 October, 2002) & N.L. (D.O.B. 6 July, 2004) & J.L-T. (D.O.B. 11 December, 2013) C.L-T. (D.O.B. 26 April, 2015)
Debora Scholey, for the Children, D.L. and N.L.
BETWEEN:
The Children’s Aid Society of Ottawa Applicant
– and –
S.L. S.T. T.L. Respondents
Juliet Kim, for the Applicant
Erica Tanny, for the Respondent, S.L. Kristin Robins for the Respondent, S.T. Whereabouts unknown and noted in default
HEARD at Ottawa: Sept 12 & 13, 2017
ENDORSEMENT ON SUMMARY JUDGEMENT MOTION
LINHARES DE SOUSA J.
INTRODUCTION AND FACTUAL BACKGROUND
1The Children's Aid Society of Ottawa (“the Society”) brings a summary judgment motion with respect to the following four children, who are the subject matter of a protection application commenced on January 13, 2017:
D.L., born on […], 2002, now 14 years old,
N.L., born on […], 2004, now 13 years old,
J.L-T., born on […], 2013, now 3 years old, and
C.L-T, born on […], now 2 years old
2The mother of the children is S.L.
3The father of the children C.L-T and J.L-T is S.T. The father of D.L. and N.L. is T.L. T.L. does not have access to the children. Service on him of these proceedings was dispensed with as all reasonable efforts were made to serve him and he has been noted in default.
4Based on S.L.’s affidavit, dated 4 April, 2017, the children D.L. and N.L. are Roman Catholic and the children J.L-T and C.L-T are Lutheran.
5The child C.L-T was apprehended from his mother’s care on March 3, 2017, placed in foster care and has remained in a specialized foster home where his foster parents received training in meeting his complex medical needs. C.L-T spent a good part of his first year of life hospitalized before being discharged into the care of his mother assisted by the CHEO at home hospice program and CCAC assistance. Since C.L-T’s discharge from CHEO he has had to be hospitalized approximately 9 to 10 times due to his ongoing medical issues.
6The child J.L-T was apprehended by warrant and placed in the care of his father, S.T. on March 3, 2017. He remains in the care and custody of S.T. under a temporary supervision order to S.T. who lives in his mother’s home.
7After the final separation of his parents at the end of 2016, J.L-T had been the subject of family law litigation between S.L. and S.T. Prior to J.L-T’s apprehension his care was shared by S.L and S.T on an alternating weekly basis.
8The children D.L. and N.L. were apprehended from S.L.’s care in May 2017 at her request. N.L. was placed in foster care and remains in such care.
9D.L. was also placed in a foster home which quickly broke down because of his challenging behavior. He is currently in a structured group home.
POSITION OF THE PARTIES
10By way of this summary judgment motion the Society seeks the following orders:
(1) A finding of birth, parentage and religion for all 4 children.
(2) A finding that all 4 children are children in need of protection pursuant to sections 37(2)(b)(i)(risk of physical harm/failure to adequately care for, supervise or protect the child) and 37(2)(g)(risk of emotional harm)
(3) With respect to the child, C. L-T an order for Crown Wardship.
(4) With respect to the child, J.L-T, a legal custody order to S.T. pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 with access to S.L. supervised at S.T.’s discretion.
(5) With respect to the children, D.L and N.L. the Society seeks an order of Society Wardship for a period of 6 months with access to S.L. to be at the Society’s discretion, in accordance with the children’s wishes and best interests.
11With respect to the children C.L-T and J. L-T, S.T. supports the Society application and summary judgment motion before the court. He concedes that given the complex needs of the child C.L-T he is not able to provide parenting for that child. It is his position that based on all of the material before the court, there is “no genuine issue requiring a trial of a claim or defence”, in this matter and that the court ought to grant the orders sought by the Society. S.T. takes no position regarding the children D.L. and N.L.
12With respect to all four of the children S.L. contests both the Society’s protection application and summary judgment motion before the court. She takes the position that there is a genuine issue requiring a trial with respect to the question of whether any of the children are children in need of protection which she contests.
13However, and alternatively, if the court were to find that there is no genuine issue requiring a trial on the question of whether the 4 children can be found to be in need of protection, then S.L. takes the position that there is a genuine issue requiring a trial with respect to the question of what is the disposition that is in each child’s best interests.
14S.L. submits that she has presented evidence that raises a genuine issue for trial that returning C.L-T, N.L. and D.L. back to her full-time care over time and by way of a period of reintegration would be in their best interests.
15S.L. further submits that in the event that the children are found to be in need of protection, the disposition proposed by the Society for D.L. and N.L. of 6 months Society Wardship is too long. S.L. argues that she has raised a genuine issue for trial that, in the event that the children are found to be in need of protection, a 3 months Society Wardship would be in their best interests. Furthermore, she argues, given her current situation S.L. would also need a period of reintegration for the return of the child C.L-T into her full-time care.
16With respect to the child J.L-T, S.L. submits that she has presented evidence that raises a genuine issue for trial that it would not be in J.L-T’s best interest to be in the sole custody of his father, S.T. It is her submission that returning J.L-T to the joint care of both herself and S.T., on a rotating weekly basis, as existed prior to J.L-T’s apprehension, would be in his best interests. S.L. also argues that it would not be in J.L-T’s best interests to have that child’s access to her determined in the discretion of S.T.
JURISPRUDENCE ON SUMMARY JUDGMENT MOTIONS
17The jurisprudence governing the granting of summary judgment motions in child protection matters is not disputed. Both S.L.’s counsel and Society counsel have correctly stated the law in their respective facta and I also rely on the caselaw found in their facta. In brief, the recently amended Rule 16 of the Family Law Rules makes clear that in cases of this kind the court is mandated to make a final order where there is “no genuine issue requiring a trial” relating to a material fact or facts. All of the evidence must be examined (“a full evidentiary record” and it must be a “good hard” examination. In doing this, the Court has the ability to weigh evidence, evaluate the credibility of deponents and draw reasonable inferences to determine and weed out those cases where no genuine issue requiring a trial exists. Where the moving party presents a prima facie case for summary judgment, the responding party must provide evidence to rebut the case. Such responding evidence cannot rest on mere allegations or denials of the moving party’s evidence, but must set out evidence proving specific facts to show that there is a genuine issue for trial.
18In cases of this kind, involving the protection of children, the appropriate examination of the evidence also entails considering the nature of the evidence, the reasonableness of any potential plan, the statutory time frames, the best interests of the children and the delay factors so as to arrive at a final decision. In the final analysis the question that this court must ask and answer is: can a full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
IS THERE A GENUINE ISSUE REQUIRING A TRIAL THAT THE CHILDREN C.L-T, J. L-T, N.L. AND D.L. ARE CHILDREN IN NEED OF PROTECTION?
19Based on the voluminous affidavit evidence in this matter presented by all parties, the Society has made out a prima facie case that all 4 children are in need of protection. This prima facie case has not been rebutted by the evidence of S.L.
20The Society has established on the evidence the existence of multiple genuine protection concerns relating to S.L.’s care of all four of her children which has put those children at risk of their physical safety as well as their emotional safety. Furthermore, the evidence establishes clearly that all 4 children have experienced little home and family stability during their short lives contributing to the reason for the recent apprehension of all 4 children and continues to be a pattern in S.L.’s care of the children to the present day. Yet another residence move and plan of care was presented by the mother on the second day of this motion.
21While more consideration must be given to S.L.’s more recent parenting of her children, S.L.’s pattern of past parenting cannot be totally ignored. The Society’s first contact with S.L. and her children dates back to 2002, the year of D.L.’s birth. The protection concerns at that time were drug consumption on the part of S.L. and her then partner, T.L. and domestic violence between the couple. These protection concerns were revived again with a police report reporting violence between S.L. and a different former partner (not T.L.) in 2006. The Society closed its file at that time as S.L. appeared to be caring well for her two children, D.L. and N.L., and she had no intention of reconciling with her former partner. Even by that time S.L. and her two children had experienced a number of house moves and continued to experience a number of house moves after that time.
22The next involvement with the Society was in 2014 and 2015. At that time S.L. continued to care for her two children D.L. and N.L. and she and S.T. were cohabiting and had become the co-parents of the child J.L-T. There were a number of separations and reconciliations between S.T. and S.L. S.T. cared for the child J.L-T during some of these separations.
23The Society’s involvement at that time revived some historical protection concerns, namely continued drug use by both S.T. and S.L., which was admitted by both of them, domestic conflict and appropriate supervision for all of the children. The family continued to experience a number of house moves as a result of evictions and lived for a time in a shelter.
24By the time C.L-T was born prematurely in […] of 2015, S.T. and S.L. had reconciled again but finally separated in October of 2016. Shortly after S.T. and S.L. separated, S.L. began cohabiting with yet another partner, Mr. M. At that time as well, S.L. became the sole caregiver of the child C.L-T and his special and complex medical needs.
25On October 23, 2016, in attempting to get some belongings from S.L.’s home, S.T. got into a physical altercation with S.L. and police had to be called. S.T. is now facing some criminal charges as a result of that altercation, set for trial in March, 2018.
26It was S.T.’s evidence that upon leaving his relationship with S.L. he was increasingly concerned about her drug use, her erratic and violent behavior towards him and her rough treatment of the children and her association with Mr. M. who to his knowledge had a history of assault against previous partners and was a drug addict. S.T. reported his concerns to the Society.
27S.L. was also reporting to the Society her concerns about S.T.’s drug use as well as his giving the child Dustin marijuana and his mistreatment of the children. S.L. also blames S.T. for his lack of financial assistance which led to the eviction of the family from their home.
28Because of his concerns S.T. sought legal advice and decided to keep the child J.L-T in his care. This precipitated family law proceedings that ended in a consent order with both of them sharing custody of J.L-T on a week-on, week-off basis.
C.L-T
29With respect to the child C.L-T, he spent the first 8 months of his life in the hospital because of his complex medical circumstances. He required 24 hours a day medical care with a need to frequently suction his tracheotomy and the administering of oxygen overnight. S.T. did not agree to be trained to care for the child C.L-T and so S.L. was trained and became the only person in the home who could tend to C.L-T’s needs. While C.L-T was in the hospital in the first year of his life, S.L. visited him consistently. The evidence showed that the CHEO social worker, Ms. Addy, was reporting to the Society that they never questioned S.L.’s ability to care for C.L-T during this first admission. S.L. was visiting C.L-T, providing for him and learning all of his medical needs. Nonetheless, Ms. Addy was worried about her being able to cope with the onerous responsibilities of C.L-T’s care.
30The evidence shows that the situation began to change, and alarmingly so, once the child C.L-T was discharged into the care of his mother, S.L.
31Since his initial discharge, C.L-T had to be admitted some 11 times due to ongoing medical issues. S.L. did not consistently visit with C.L-T during these many hospitalizations without any credible explanation on the part of S.L.. Ms. Addy observed some concerning patterns emerging with respect to S.L.’s absence from visiting C.L-T when he was hospitalized or her routinely delaying C.L-T’s discharge from the hospital.
32While S.L. denies it, there were reports from several objective professional sources that S.L. failed to properly meet C.L-T’s medical needs such as providing the necessary medication and oxygen when required or ensuring he obtained required inoculations. The evidence also shows that S.L. failed to ensure that the older children also received the necessary inoculations being requested by the children’s schools. S.L. failed to pick C.L-T up at the pre-arranged times.
33In addition to this there were a number of reports from the night nurses or PSWs who assisted S.L. with the care of C.L-T at night in her home about S.L.’s lack of presence in the home to care for her children at night or when their shift was ending, and reliance on minors or other unnamed individuals to care for C.L-T.
34S.L. denies this and has said that the night nursing services she received were unreliable and demonstrated an animus towards her. Her plan of care for C.L-T is to engage another agency to give her the nursing assistance she needs and to which she is entitled from CCAC. Nonetheless, I cannot find on the evidence that S.L. has sufficiently rebutted these serious facts about her care of C.L-T and the lifestyle she was leading (going out until the early hours of the morning and entertaining friends in her garage all night) which was undermining the intensive and complex care C.L-T required and put him at risk.
35In early January of 2017, when confronted with these mounting concerns S.L.’s response to the Society was that she would not let the night nurses in to her home again and in her upset invited the Society to take care of the child C.L-T, which they subsequently did.
36Since coming into care C.L-T was placed at Roger’s House because of the nature of his medical needs. Shortly after this foster parents, with some experience in caring for children who are medically fragile, were found. The foster parents attended at Roger’s House to bond with the child and to receive training on how to meet his daily medical needs.
37Since coming into the care of the Society, C.L-T is progressing well in his foster home where he continues to remain. In fact, C.L-T is thriving in his current foster home in both areas of verbal skills and motor skills, the building of relationships and the management of food consumption. There have been few hospitalizations since his apprehension.
38S.L. acknowledges C.L-T’s positive development since his apprehension. S.L. has been able to visit C.L-T in his foster home and when she visits her interactions with C.L-T are appropriate. The evidence shows, however, that S.L. has missed a notable number of visits with C.L-T that were available to her without any convincing explanation for many of them.
39Shortly after C.L-T’s apprehension S.L. had yet another house move and was cohabiting with another male partner C. P.
40The evidence of the Society also shows that in early January 2017, S.L. admitted to the Society that she was using marijuana on a daily basis and had used speed three weeks prior. This was consistent with evidence given by S.T. There is also strong evidence to conclude that both S.T. and S.L. may have been facilitating the child D.L.’s access to marijuana.
41In her affidavit material S.L. denies that she uses marijuana regularly and did not use heroin or cocaine. In April, 2017 S.L. was deposing that she had not used marijuana for several months.
42What cannot be disputed is that S.L. was asked to take some drug tests in late 2016 and in February 2017 and failed to take some of the requested drug tests. In February of 2017 S.L. was tested for drugs 4 times close in time. The results of these were negative except for the one taken on February 24, 2017 when she tested positive for “amphetamines”. S.L. denies this and wishes to challenge the testing. This challenge was commenced but not followed through by S.L. and her counsel by providing the necessary consents to complete this challenge. What remains on the record is a positive test for amphetamines. This fact plus the following facts led to concerns about S.L.’s ability to properly care for J.L-T during the half time she had J.L-T in her care and custody.
J.L-T
43With respect to the child J.L-T, the Society made the decision to apprehend J.L-T in March of 2017 and gave the care of that child to S.T. on a full-time basis under their supervision. The evidence supports the conclusion that this decision was made by the Society following its investigation of a police report about a physical altercation that took place between S.L. and C.P., her then partner, in a moving car after the couple had done some drinking on February 24, 2017. Despite S.L.’s denial, there is strong evidence to conclude that the child J.L-T was present during this altercation and that the older two children were also made aware of it by their mother’s upset. From these facts, it is fair to conclude that S.L. has not been able to protect the three older children from incidents of domestic violence involving herself and her current partner. Shortly after the apprehension of J.L-T, S.L. indicated to the Society that she would be separating from C. P.
44While S.L. maintained that S.T. would exclude her from J.L-T’s life if he had care of the child on a full-time basis, this in fact has not happened since J.L-T went into the full-time care of his father. S.T., with the help of his mother, has ensured that S.L. is able to exercise all of the access to J.L-T to which she is entitled (at the Society’s discretion, a minimum of twice per week). S.T.’s mother has assisted with this access because S.T. cannot have any contact with S.L. because of the outstanding criminal charges. S.T.’s mother is committed to continuing to assist with access to J.L-T by his mother.
45In fact it is S.L. who has missed a notable number of visits with J.L-T without any satisfactory explanation, so much so that the Society sought a reduction of the mother’s access to J.L-T. S.T. has provided evidence that when visits with his mother are missed by S.L. it is hard on the child.
46Since being in the care of his father, the Society has continued to supervise S.T. J.L-T is reported to be doing well and having adjusted well to being in the full-time care of his father. This is consistent with the evidence presented by S.T. concerning his care of J.L-T; that J.L-T has started kindergarten; that he is involved with other children in his community and is involved in a number of sports and activities that he loves; that he has a regular family doctor; and that he is up to date on all of his immunizations; that J.L-T is happy and content in his care.
47Nor has the Society had any concern about S.T.’s care of J.L-T. S.T. has cooperated fully with the Society and allowed them access to J.L-T when requested. When complaints have arisen from S.L. about certain reports from the children about negative comments made by S.T. against S.L., S.T. has responded positively to ensuring this does not happen. While living as a couple, S.T. and S.L. were clearly not able to reconcile their differences which at times became physical. Nonetheless, S.T. has proven himself to be a good and appropriate sole parent to J.L-T.
48S.T. takes the position that he would not deny S.L. access to J.L-T but believes it is in J.L-T’s best interests to have that access continue to be supervised until S.L. can show she has made the necessary changes in her lifestyle. It is S.T.’s intention to submit an application to the Supervised Access Centre to apply once the protection proceedings have been terminated.
D.L. AND N.L.
49The evidence showed that despite S.L.’s stated intention to separate from C. P. in March of 2017, he continued to visit her home regularly. There was yet another police report on another physical altercation between S.L. and C. P. on March 28, 2017. While S.L. assured the Society that neither D.L. nor N.L. were present during this altercation, given her previous lack of candor about J.L-T’s presence during the previous physical altercation between S.L. and C. P., this court has reason to doubt S.L.’s credibility on this point. I must conclude that S.L. has continued to expose her children to incidents of domestic violence in her home.
50Following this incident S.L., according to the evidence of the Society, shared with the Society her increasing emotional and mental health difficulties (depression).
51There were also disturbing reports, which was not denied by S.L., from the older two children’s schools. Both D.L. and N.L. were missing a substantial number of days from school. Their respective school records confirm this. S.L. expressed to the Society that the child D.L. may be out of control, engaging in the consumption of marijuana and needed counseling. There is not any evidence to show that, even in the light of this expressed knowledge, S.L. herself had sought out any independent, or through the school, counseling or other assistance for her son D.L. Clearly, S.L. was not meeting the emotional needs of D.L.
52The evidence shows that D.L. was also engaging in violent behavior at school which resulted in expulsions and may have resulted in criminal proceedings. According to the Society their understanding is that D.L. may be currently facing a criminal assault charge resulting from an event at his school prior to his apprehension. S.L. did not appear to have any knowledge of the status of these proceedings or even if they existed. Her position was there is no evidence of this before the court.
53At the end of May 2017, S.L. acknowledged to the Society the following: that D.L. was abusive towards her and became physical with her when she was arguing with N.L.; that both D.L. and N.L. refused to go to school; that she was facing yet another house move; that she believed D.L. is depressed and she feared he might hurt himself, and; that she could not provide the children with the care they needed. S.L. asked the Society to take into their care both N.L. and D.L. As a result both children were apprehended by the Society and placed in the same foster home.
54The evidence shows that the foster care placement for the child D.L. broke down very quickly because of his out of control behavior similar to that experienced by his mother before her request for the children’s apprehension.
55With respect to the child N.L., once her brother D.L. left the foster home her first foster home broke down as well.
56Once placed in her second foster home, N.L. began to respond positively to the routines and activities of her new home and foster mother. N.L. continues to do well in a structured environment. Her attendance at school is good.
57The evidence showed that what continues to be a source of emotional difficulty for N.L., frequently manifesting itself in some form of difficult behavior on her part, is when anticipated visits by her mother or brother, D.L. are missed by them not showing up. N.L. has continued to communicate with her mother by telephone. When visits do take place between N.L. and her mother, the visits are positive and affectionate to the observation of the C.Y.C. S.L. has acted appropriately and redirected conversations when necessary with one or two exceptional visits during which S.L. became belligerent with the access supervisor.
58Telephone access between N.L. and D.L. have been observed to be emotionally upsetting for N.L.
59With respect to the child D.L., his belligerent and aggressive behavior led to the decision to place him in a group home. Of all the 4 children D.L. has done the least well in the care of the Society. While appearing to settle in at the beginning, Dustin maintained his refusal to attend school, to engage in pro-social structured activities and was AWOL a number of times. In the summer of 2017 he was charged with assault relating to a prior incident at his school and is now facing that process. In addition to this, D.L. caused property damage at the group home and is now facing criminal charges relating to property damage and possession of drugs. He at times made suicidal statements and had to be on a special watch.
60The group home staff also found evidence of D.L’s continued consumption of drugs and alcohol. D.L. was also refusing to cooperate with any kind of supervised access with his mother and maintained that he would see his mother when he wanted to do so. Such visits have taken place between S.L. and D.L.. D.L. also missed planned visits with his siblings, such as a planned visit for N.L.’s birthday.
61In August of 2017, D.L. accused one of the male workers in his group home of sexually assaulting him and ran away from the group home, one of many AWOLs. With S.L.’s assistance, he was eventually found, brought to St. Mary’s home and subsequently placed in in another group home with a very strict routine where he currently resides. Because of all of this upset, the Society’s care of D.L. has been focused on stabilizing his living situation. Any other objectives that both the Society and his mother wants such as a return to some kind of structured education, emotional help counseling and counseling for drug consumption has not yet been able to commence. Needless to say, D.L. had not been cooperative with any of these efforts.
62The affidavit of Angela Dean on behalf of the Society dated 6 September 2017 appeared to be more promising. It indicates that for the moment, D.L. appears to have settled into his current group home and appears to be cooperating to return back to his formal schooling.
63S.L. does not deny that she asked that N.L. and D.L. to be placed in the Society’s care by way of a voluntary placement. Her evidence was that she did this because of D.L.’s behavior. This falls short of fully explaining why she asked the Society to take both D.L. and N.L. Nonetheless, she is to be commended in realizing that she could not parent her children.
64I am persuaded on the evidence, which I conclude provides a complete record, that at the time of the respective apprehensions of all 4 children, they were in need of protection as argued by the Society. This was because of the pattern of parenting provided by S.L. including multiple housing moves, multiple partners ultimately resulting in exposing the children to domestic violence and a life style which was interfering with her ability to meet the intense medical needs C.L-T, as well as assuring routine and the schooling of her two older children. She recognized that D.L. needed assistance and that there might have been a mental health issue, with his expressing self-harm ideas, as well as an issue of drug consumption but she did not pursue any professional assistance for this child.
SINCE THE APPREHENSIONS
65An issue to consider is whether the children today continue to be in need of protection? I must conclude, on all the evidence, in the affirmative. S.L.’s life style has not substantially changed.
66Since all children have been in the care of the Society S.L. has continued to have a number of housing moves and other partners, one of whom (P., sometime around June, 2017) has accompanied her to the visits with D.L. and N.L. from time to time. The record of access S.L. has demonstrated with all of the children is troubling and appears to demonstrate that her life is still unstable and unpredictable. The Society’s evidence is that communication with S.L. remains problematic. She does not return her calls in a timely manner. S.L. does not deny this.
67No one can question S.L.’s love for all of her children.
68When S.L. responded to the motion for summary judgment (affidavit dated 31 August, 2017 para. 50) , her proposed and actual living arrangement was to live in the home of some family friends. On the second day of argument on this motion, S.L. through her counsel and a filed affidavit, advised the court that her accommodation arrangement was to change once again that very day (See affidavit of S.L., dated 13 September 2017). No explanation for the move was given to the court.
69S.L.’s evidence in her affidavit at para. 6. states her current plan:
“D.E., who has been like a father to my two eldest children has offered for the children and I to stay with him, and pay him rent. He has two bedrooms which are unoccupied, which used to be my children’s rooms. I will use ODSP to pay rent.”
70The evidence shows that S.L.’s plan of care involving living with the children in D.E.’s home is a revived kinship plan dating back to April, 2017. S.L.’s intention at that time was that she and D.E. were going to work on their relationship and attend counseling to see if there was a possibility of reconciling. The evidence shows that subsequent to the Society commencing a kinship assessment of D.E. and his home, both D.E. and S.L. informed the Society not to proceed further and S.L. severed all contact between herself and D.E. and D.E. and the children. It is not clear from the evidence when D.E. last had contact with the children. It is not clear from the evidence what has changed to justify, in the best interests of the children, the revival of this plan and that it is now a viable one.
71With respect to addressing her parenting challenges, S.L. provides evidence that she has registered for a parenting program at the Ottawa Family Services, “Parenting with Confidence”, a course that is to commence only in mid-November, 2017 and to finish in February of 2018. S.L. is also receiving treatment for anxiety.
72In her more recent affidavit (13 September, 2017, S.L. advised of her efforts to connect and receive the services of the Elizabeth Fry Society but has not yet participated in their programming. It was the Society’s evidence that sometime in August of 2017 S.L. visited the Elizabeth Fry Society but had no plans to return given the type of people who frequent around there and that she feared for her safety.
THE WISHES AND PREFERENCE OF D.L. AND N.L.
73Ms. Scholey of the Office of the Children’s Lawyer represented the interests of D.L. and N.L. on this motion. It is very clear that both D.L. and N.L. wish to return home to the care of their mother. Ms. Scholey submits that a Supervision Order to the mother, addressing the protection concerns, such as stable housing, no male person living in the mother’s home, counseling and schooling for D.L. may best meet the children’s best interests and also permit them to go home to the care of their mother. Ms. Scholey further argued that the revived plan that D.E. be involved with S.L. and her children may indeed be a true change of circumstance in the life of S.L. justifying a supervision order to S.L.
74Regarding the native or aboriginal status of S.L.’s children, S.L. in one of her later affidavits reveals that she has First Nations Heritage as do her children because S.L. believes that her mother was Algonquin Metis and that her father was from a different First Nation Band. S.L. indicates that she is in the process (as of August, 2017) of registering through Wabano. I have considered this factor throughout my deliberations on this motion, not only from the point of view of the children but also from the point of view of the aboriginal community that may be involved, once S.L. identifies the relevant community. It has not in any way changed the conclusion below. S.L. is encouraged to pursue these efforts because of the additional resources it may open up to her as a parent and to her children. One fact is clear, that the children to date have not been exposed by their mother to any aboriginal community.
FINAL DISPOSITIONS AND WHETHER ON THE EVIDENCE THERE IS A GENUINE ISSUE REQUIRING A TRIAL?
75The evidence as a whole does not convince this court that since the apprehension of her children, S.L. has in any substantial and sustained way addressed the circumstances in her life which put her children at risk and in need of protection. Her housing continues to be in flux as this motion was argued. Her partnering also appears to continue to be in flux. Given the long history during which the Society has been involved with her family, her efforts to deal with parenting deficiencies and patterns of instability are relatively recent and untried. Communication and cooperation with the Society continues to be an issue. There are still many questions about her mental health and drug consumption and they continue to be un-clarified issues. Her access record, particularly as it pertains to C.L-T, J.L-T and N.L., has been problematic.
THE CHILD C.L-T
76The child C.L-T is a fragile, special needs infant. The evidence shows that despite his challenges, with appropriate and dedicated parenting he can thrive and is thriving. Prior to his apprehension the evidence clearly establishes that S.L. was not meeting his needs. The evidence is equally clear that it is not evident that S.L. will be in a position in the near future to meet those needs in a sustainable and predictable way. Given the other unstable aspects of her life the evidence does not support the conclusion that her proposed plan for C.L-T is a viable one and in his best interests. In considering the factors enunciated in s. 37(3) I must conclude that on the evidence before this court there is no genuine issue requiring a trial that it would be in C.L-T’s best interests to make him a Crown Ward. This very special needs child requires permanency planning to continue to thrive. This conclusion is clear and unequivocal on the evidence. With respect to the child C.L-T the Society motion is granted.
THE CHILD J.L-T
77With respect to the child J.L-T, that child is doing well in his father’s care. S.T. is not a perfect parent but he has shown himself capable of appropriately parenting J.L-T, when conflict between S.L. and himself is eliminated, as it has been since the Society moved to have J.L-T in his full time care under their supervision. Returning to the previous regime of shared parenting between S.T. and S.L., as S.L. requests is not viable and would surely revive historical conflicts. It would also disrupt the progress J.L-T has made in his father’s care.
78I am not persuaded on the evidence that S.T., if left to his own devices would attempt to cut out of J.L-T’s life contact to his mother. In fact, it has been S.L. who has exercised less access to J. L-T than has been offered.
79For that reason I must conclude that there is no genuine issue requiring a trial that S.T. have the sole legal custody of J.L-T, pursuant to s. 57.1 of the CFSA with, for the moment, supervised access and supervised exchanges to his mother at minimum, for the time being, of once per week. I would hope that the Society would assist with the supervision of J.L-T’s access to his mother, until a more permanent arrangement can be made. With respect to the child J.L-T, the Society motion is granted.
THE CHILDREN D.L. AND N.L.
80With respect to the two older children, D.L. and N.L., for the reasons which I have already given, I am not persuaded that S.L. has rebutted the Society’s prima facie case that she is presently able to parent these two children. Consequently, on the evidence as a whole, there is no genuine issue requiring a trial that returning these two children immediately to the care of their mother would not be in their best interests. S.L. has yet to show, in a sustained way, that she can provide both of these children stability of housing and appropriate parenting that meets their needs. This is especially so in the case of D.L. who is demonstrating both emotional and behavioral chaos in his life putting him at serious physical and emotional risk. Considering the factors enunciated in s. 37(3), I find it to be in the best interests of N.L. that she remain in Society care for a period of time so that she may continue in the gains she has demonstrated since being apprehended.
81There is no question that D.L.’s progress in Society care has not been as great and remains problematic, although his last placement shows some promise that he may at least cooperate on returning to his formal schooling. D.L. clearly requires counseling on an immediate basis, recognizing, of course, that given his age, without his cooperation this may not be able to happen in any effective way.
82More importantly, S.L. requires time to demonstrate that her latest and rather “last minute” plan of bringing D.E., once again, into her life and that of the two older children is a viable and sustainable plan. S.L. also requires time to address her parenting issues and personal issues and to show that drug consumption is not an ongoing issue in her life by way of drug tests, if necessary.
83Based on all of this I conclude that there is no genuine issue requiring a trial. It is in the best interests of both D.L. and N.L. that they remain in the care of the Society for a period of 6 months. The long history of involvement of the Society with this family convinces me that that is the appropriate period of time. If lesser time is required then a status review application can be brought at any time in the best interests of the children. Furthermore, a 6 month Society Wardship order does not prevent an earlier re-integration period by way of extended access. Access to their mother should continue at the discretion of the Society, in their best interests and in accordance with their wishes. With respect to the children D.L. and N.L. the Society motion is granted. Access between all of the siblings should continue as long as it is in their best interests and does not interfere with permanency planning for C.L-T.
Madam Justice Maria Linhares de Sousa
Date: September 28, 2017
CITATION: C.A.S. v. S.L., 2017 ONSC 5688
COURT FILE NO.: FC-17-55
DATE: 2017/09/28
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF D.L. (D.O.B. 10 October, 2002) & N.L. (D.O.B. 6 July, 2004) & J.L-T. (D.O.B. 11 December, 2013) C.L-T. (D.O.B. 26 April, 2015)
BETWEEN:
The Children’s Aid Society of Ottawa, Applicant
AND
S.L. S.T. T.L. Respondents
ENDORSEMENT
LINHARES DE SOUSA J.
Released: September 28, 2017