T.J. and T.E., 2018 ONSC 3483
KINGSTON COURT FILE NO.: 205/17
DATE: 20180604
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington
L. David Toupin, for the Applicant Society
Applicant
- and -
T.J. (mother) and T.E. (father) S.O. First Nation (In Default)
Stephen L. Zap for the Respondents T.J. and T.E.
Respondents
HEARD: June 1, 2018
Swartz J.
ENDORSEMENT ON MOTION FOR SUMMARY JUDGMENT
[1] This is a Summary Judgment Motion brought by the Society with regard to the child S.E. born in April 2017. The Society asks that the following orders be granted at Summary Judgment Motion with regard to their Status Review Application for the following relief:
- An order permitting this matter to proceed by way of a Summary Judgment Motion pursuant to Rule 16 of the Family Law Rules on the issues of:
a) Granting an order finding that the child S.E. continues to be a child in need of protection pursuant to s. 74(2)(b)(i) of the Child, Youth and Family Services Act, and
b) An order granted pursuant to s. 114(c), s. 101(1)3 and s. 105(5) and (6) of the Child, Youth and Family Services Act, placing the child S.E. in the extended care of the Society until the order is terminated or expires under section 123 of the Child, Youth and Family Services Act.
c) An order dispensing with approval of the order by any self-represented party.
d) Orders under the CYFSA in addition to those noted above relating to identification findings pursuant to s. 90(2)(b) of the CYFSA with regard to consideration of Indigenous, Métis, Inuk identification and band affiliation.
[2] At the return of this motion of the Society, counsel for the parents was present and the parties were paged. Neither parent appeared and counsel indicated that he did not have instruction from his clients, was unaware of their whereabouts and did confirm on the record that the parents were provided with the Society’s summary judgment materials on May 22, 2018 personally by their counsel. They have not filed any written response to this motion. There was no request for an adjournment.
[3] This motion was to start at 10 a.m. but the matter was not reached until 1:30 p.m. Counsel for the Respondents confirmed on the record that his clients had not been present all day. As a result the motion proceeded undefended today and with no submissions from parents’ counsel.
[4] Upon hearing submissions of counsel for the Society and upon review of the affidavit evidence and factum of the Society, an order shall go granting the Summary Judgment Motion as requested at tab 11 of the Continuing Record for reasons and in accordance with the law noted below.
Summary of Facts
[5] The child S.E. was born in April of 2017 and as such he is just over one year of age. He is a male child and does not have any religious affiliation. S.E. while eligible for membership with a local band, that band is not yet registered as a First Nation under the Indian Act but has applied for such designation. S.E. is identified as having indigenous heritage.
[6] The child’s indigenous heritage is through the Respondent father, Mr. E. who is not a member of the band. S.E.’s grandfather is a member of the band. The band has been served and noted in default. The band’s chief notified the Society that the band did not have a placement or have a care alternative for the child S.E. but did offer cultural support and education for the child through the foster parents. This offer of cultural support and education was relayed to the foster parents.
[7] The child S.E. was brought to a place of safety on the day of his birth. He was placed in a Society foster home after his discharge from the hospital on May 5, 2017 where he has remained to date. These foster parents have offered to adopt the child if he is placed in extended Society care.
[8] At the time of S.E.’s birth, he displayed drug withdrawal symptoms due to in utero exposure to illicit drugs. He was in respiratory distress following his birth and his breathing was supported through mechanical devices at the Intensive Care Unit. He was provided with morphine treatment for his withdrawal symptoms, prophylactic anti-viral medication and a fetal heart monitor. He required a nasogastric feeding tube due to this inability to feed orally after birth. These reasons contributed to the fact that his discharge from hospital was delayed until May 5, 2017.
[9] The foster parents had been provided with special training at the hospital prior to his discharge in order to be able to administer at home morphine so that he could be gradually weaned from his addiction. Great steps have been taken by the foster parents in order to ensure that S.E.’s particular needs have been met including attendance at many medical appointments.
[10] The child S.E.’s health and development have proceeded well and as of the date of this motion, the child remains in good health. The Society’s evidence shows there are no adequate kin placements available despite the Society’s best efforts to do so.
[11] The child S.E.’s mother is T.J. The child’s father and parent within the meaning of the CYFSA is the Respondent T.E. S.E. is Ms. J.’s first child and Mr. E.’s third child.
[12] A temporary order without prejudice was made for care and custody to the Society on April 20, 2017 with regard to S.E. Some identification findings were also made on that date. The Court directed the Society to investigate the possible indigenous status of the child.
[13] On May 25, 2017, the Court granted an extension of time for the parents to file their Answer and Plan of Care.
[14] A final order granted by Justice Minnema on July 6, 2017 at the settlement conference and found the child to be in need of protection pursuant to what was then s.37(2)(b)(i) of the Child and Family Services Act. He was made a ward of the Society for a period of six months. Identification findings were made in accordance with that legislation at the time. This was a consent order.
[15] On November 14, 2017, the Society issued their Status Review Application wherein they requested a final order making S.E. a ward of the Crown with no order as to access.
[16] At the return date of December 21, 2017, this Court granted an extension of time for the parents to file their Answer and Plan of Care and a settlement conference date was set for February 16, 2018.
[17] On February 16, 2018, a settlement conference was held and a trial scheduling endorsement conference was completed on March 29, 2018.
[18] This case was scheduled for trial at the Assignment Court on April 6, 2018 and is set for trial for six days commencing July 16, 2018 and ending on July 23, 2018.
[19] There is a trial management conference set for June 14, 2018 at 2 p.m.
[20] At the first appearance of this motion for summary judgment on May 10, 2018, the matter was set for argument on June 1, 2018 for two and a half hours. A litigation schedule was set. The Respondents’ affidavits were to be filed by May 22, 2018 with the Society’s reply to be filed by May 25, 2018 and facta by May 30, 2018. No materials were served and filed by the Respondents despite the litigation schedule and assistance of their counsel.
[21] As noted above, S.E. was born addicted to drugs. At the time of his birth, the Respondent Ms. J. tested positive for methamphetamines, opioids, cannabis, despite denying while in labour she used drugs. She tested positive for crystal methamphetamines and opioids in the month proceeding S.E.’s birth. There is evidence that the Respondent mother Ms. J. continued to use opioids right up until the day before S.E.’s birth. Many appointments were missed. There is evidence before me from various medical practitioners for Ms. J. including medical staff attempting to assist in her methadone treatment.
[22] Mr. E. appeared at the hospital on the date of S.E.’s birth and appeared to be under the influence of drugs or some other substance and confirming that he had used morphine in proceeding days and had been “kicked out” of the methadone program a few months ago for missing appointments.
[23] The Society communicated with the Respondents on the day of S.E.’s birth and the days following in an attempt to encourage the parents to actively engage in programming to address their substance abuse. The parents agreed to complete random drug screens. Supervised access visits were agreed and set up three times per week for one hour in anticipated of S.E.’s discharge from the hospital. It was made clear to the parents that they were not to be under the influence of any drugs during any of those visits.
[24] There is evidence of information that the parents have struggled with drugs on a long-term basis. In addition, both parents struggle with mental health issues, have trouble attending on time at access visits with the Society and in general continue to struggle to improve their situation so that they might provide care for S.E. Multiple drug screens have come back over the last year confirming their ongoing use of illicit substances including amphetamines, opiates, THC metabolite and benzodiazepines.
[25] There is a criminal history with regard to Mr. E.. As of May of 2017, there were multiple breaches of his conditions of probation following his release from custody.
[26] During the period from the apprehension of S.E. to the Status Review Application, Mr. E. was incarcerated twice as a result of an arrest for theft and arrest with regard to driving a vehicle with registration that did not match the VIN number.
[27] Attendance by the parents at Street Health to address their methadone treatment program have continued to be inconsistent.
[28] As late as December of 2017, Ms. J. and Mr. E. have been aggressive, obstinate and difficult to interact with in the course of arranging their visits with S.E. One or both of them on a number of occasions have been sleepy, tired or appear to be under the influence. These concerns continue to the date of the Summary Judgment Motion.
[29] In their Answer and Plan of Care Ms. J. and Mr. E. requested the return of the child to their care subject to a 12 month supervision order. Despite this claim in their Answer, they have not filed any responding material to this Motion for Summary Judgment. No progress has been made by them to address the original protection concerns.
[30] Mr. E. indicated in his Answer and Plan of Care that he was serving a sentence on a criminal matter requiring 54 days of incarceration which commenced on November 2, 2017 and was expected to end on December 28, 2017.
[31] On November 28, 2017, the parents were asked for random urine samples. The Respondent Ms. J. did so and her screen was positive for cocaine, marijuana, opiates/morphine, amphetamines, methamphetamines, oxycodone and fentanyl. Mr. E. provided water as a sample and the screen was not conducted. When questioned about it, Mr. E. denied it was water but then said he would attend Street Health the next day. The screener of the sample from Street Health noted that Ms. J.’s screen at that time was high for fentanyl.
[32] In January of 2018 the parents’ supervised access visits were put on hold as a result of their lack of attendance, concern with regard to ongoing drug use including high levels of fentanyl and the risk that this might pose to the child in their contact with him of any even residual or small amounts of fentanyl. They were informed that their visits were being reduced and that access would occur one day per week for two hours effective January 24, 2018. By that point the evidence was clear that the parties were consistently failing to attend scheduled visits, there were significant protection concerns, they continued in their use of illicit drugs and were not engaging in any community support services. They were not making substantial efforts to attend their visits with S.E. There have been a number of visits since late January 2018 but many have been missed. Often the parents are late or do not appear.
[33] Following this January 18, 2018 meeting the parties failed to attend a pre-arranged meeting with the Society of February 27, 2018. The parties were late for and then as a result, missed their scheduled visit with S.E. on February 28, 2018. The last correspondence sent by the Society worker to the parents on April 16, 2018 was returned by the postal service to the Society with an indication that the parents were no longer residing at the address that the Society had on file for them.
[34] Approximately 25 visits with S.E. have been missed since the Status Review Application commenced.
[35] While there have been some attempts by Ms. J. to attend community programs, particularly at Thrive, there is evidence that the Thrive program has not had contact with Ms. J. since she stopped attending access at the playgroup in December of 2017 despite a recent scheduled appointment that she did not attend at.
[36] Correspondence in evidence from the file from Street Health notes that as of March 15, 2018, Mr. E. had been on and off the methadone a number of times and has never achieved stability for very long. Mr. E.’s last urine screen was taken on March 6, 2018 and was positive for opiates, cocaine and methamphetamines. As of April 24, 2018, there is evidence from Street Health that Ms. J.’s most recent urine screen indicated that she is pregnant.
Statement of Law
[37] The test for summary judgment under Rule 16 of the Family Court Rules is whether there is a genuine issue requiring a trial of a claim or a defence. In this case, there is no responding material from the parents and as a result the facts alleged in the Society’s affidavit and motion are undisputed.
[38] The Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7 sets out the process to be followed in Summary Judgment Motions. It is first to be determined whether there is a genuine issue that requires a trial based only on the evidence before the judge without using any of the new fact finding powers provided under subsection 16(6)(1). There will be no genuine issue for trial if the judge can reach a fair and just determination on the Summary Judgment Motion in a way that is timely, affordable and proportionate.
[39] A genuine issue of fact is one where the result of the proceeding turns on its existence or non-existence (Children’s Aid Society of Toronto v. O.G., 2015 ONCJ 125).
[40] If there appears to be a genuine issue requiring a trial based on the evidence before the Court, the Court should then determine if the need for a trial can be avoided by using the powers set out in subsection 16(6)(1). These powers involve the weighing of evidence, evaluating credibility, drawing inferences and possibly receiving oral evidence on the motion.
[41] This is a discretionary use of these powers provided that they do not run contrary to the interest of justice.
[42] In determining whether there is a genuine issue of fact, the Court must consider the evidence submitted by the parties. The moving party (the Society in this case) must serve affidavit evidence showing there is no genuine issue for trial. The responding party may not rest on mere allegations or denials but must serve an affidavit setting out facts showing there is a genuine issue for trial. I refer herein to Children’s Aid Society of Ottawa v. C.(S.), 2003 CanLII 67754 (ON SC), 2003 CarswellOnt 9373 and Rule 16(4)(1).
[43] In this case there is no responding material of any kind from the parents and they have chosen not to attend today or provide instructions to their counsel. They have simply disappeared. They have not attended in any significant way to the ongoing protection concerns.
[44] Courts are to be very cautious in granting summary judgment in child protection matters as the effects of the orders flowing from child protection matters are so serious. The granting of a summary judgment deprives a party of their full day in court at a trial and the procedural safeguards that the cross-examination of witnesses, for example, before a judge would provide at trial. I reference the C.R. v. Children’s Aid Society of the District of Thunder Bay, 2013 ONSC 1357 case.
[45] If there is no genuine issue requiring a trial, the Court shall make a final order accordingly (Rule 16(6)).
[46] In this case I find that there is no genuine issue requiring a trial. The record in this matter is complete. I am able to reach a fair and just determination on this Motion for Summary Judgment. There is no dispute as to the necessary findings of fact required in this case. And in applying the law to the facts of this case, I find that it is a proportionate, more expeditious and less expensive means to achieve a result than a full trial. Interpreting the Rules of Summary Judgment broadly as called for in the Hryniak case favouring proportionality and fair access to the affordable, timely and just adjudication of claims is key in this case.
[47] On the evidence before me, which is voluminous, I find that there is no genuine issue of fact that requires a trial. A trial is not necessary to assess the evidence. A final order is appropriate and in fact necessary for S.E.’s best interest. He is young and the plan for him is to place him for adoption with the family with whom he has resided since shortly after birth.
[48] The test applicable under the CYFSA, in particular Section 114, varies from the test found under Section 101 of the CYFSA in that the test at status review is not to be a reassessment or appeal of the previous order. The child’s best interests is the question to be addressed and may take precedence over parental interest and wishes.
[49] In this case, it is absolutely essential for S.E. that a final order be made. A trial is not necessary. The evidence more than supports the request of the Society for an order which gives S.E. finality, long-term consistency and stability.
[50] I have reviewed the best interest factors to be considered under the CYFSA and find that the Society has a plan in place that is consistent with long-term stability and the needs of the child. Delay is not something that will serve S.E. in any way and he remains at consistent risk of suffering harm through being returned to the care of his parents or in fact, removed from foster care. The degree of risk that justified the initial finding of protection remains unchanged.
[51] The Society has made efforts to contact S.E.’s community and to attempt to preserve his cultural identity in connection to his First Nations, Inuk or Métis heritage. Those efforts continue and the foster family have been given information with which to continue those efforts.
[52] The child’s physical, mental and emotional needs, level of development and the positive relationship that he has with his foster family and with whom he is a secure member of their family remains and are consistently served and addressed by way of the order requested by the Society. A disruption to the child at this point would be detrimental to him and would not serve his best interest. It is essential to S.E. that long-term planning be given significant priority and his best interests are served in that regard.
[53] The preample to the new CYFSA has not changed the paramount purpose of the Act and consideration of the best interest of the child within the meaning of that Act. The order requested by the Society in my view fits with the key goals of the CYFSA and the best interests of S.E. by way of a placement in extended Society care for the purpose of adoption.
[54] As to the issue of access while the child is in extended care, the parents have made no plans, have filed no evidence or appeared today in order to assert any claim that they might want to make with regard to continuing contact. They have not met the burden of showing that there is in existence, a meaningful and beneficial relationship between them and the child that is meaningful and beneficial to S.E. The case of Children's Aid Society of Toronto v. M.A.2, 2006 CanLII 1671 (ON SC) notes that even if instances of access are generally enjoyable for the child, the Court may consider whether the beneficial aspects of visits outweigh the child’s need for continuity of care, safety and consistency and a secure placement as a member of a stable family.
[55] I find that the evidence before me raises ongoing, consistent concerns that the parents contact with S.E. of any kind poses too much risk for S.E. and that this would impair his stable and solid development.
[56] S.E. can no longer wait for his parents to develop the skills to parent him and commit to his care.
[57] For the reasons noted above the Society’s motion is granted. I find that it is in the interest of justice to determine this matter summarily and that this is consistent with S.E.’s best interest.
Madam Justice D. Swartz
Released: June 4, 2018
T.J. and T.E., 2018 ONSC 3483
KINGSTON COURT FILE NO.: 205/17
DATE: 20180604
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Family and Children’s Services of Frontenac, Lennox and Addington
Applicant
– and –
T.J. and T.E.
Respondents
ENDORSEMENT ON MOTION FOR summary judgment
Swartz J.
Released: June 4, 2018