Restriction on Publication

This is a case under the Child, Youth and Family Services Act, 2017 and is subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: 130/09 Date: 2018/08/15

Ontario Superior Court of Justice

In the Matter of the Child, Youth and Family Services Act, S.O. 2017, c.14, Schedule 1 And In the Matter of T.A.K. born 2009

Between:

The Children’s Aid Society of the Niagara Region Applicant/Moving Party – and – C.M.K. (Mother) Respondent/Responding Party

Counsel: Jason Farrer, Counsel for the Applicant/Moving Party Foluke A. Ololade, Counsel for the Respondent/Mother Linda A. McKenzie, Counsel for the Office of the Children’s Lawyer

Heard: July 20, 2018

Reasons for Judgment

Sheard J.

Introduction

[1] The Society has brought a motion for summary judgment pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99, seeking the dismissal of the Mother’s status review application. In that application, TAK’s mother (“the Mother” or “her Mother”) seeks the termination of the Crown ward status of the child, TAK, born 2009 (“TAK”), and an order that TAK be placed in her custody without conditions or, alternatively, subject to a supervision order. The Office of the Children’s Lawyer (the “OCL”) supports the Society’s motion and the Mother opposes it.

[2] Neither TAK’s biological father nor the person who at one time had acted as her father has participated in the immediate proceedings.

[3] The Mother has three children, all of whom were the subject of protection proceedings: TAK, and two sons TJK, born 2007, and WJK, born 2011.

[4] On consent, on this motion the Court made a finding that TAK is a First Nations person, not associated with any Band or Native community. This finding is consistent with the earlier evidence before the Court that the Mother was Mi’kmaq and that TAK had previously been found to be not Native but to have Native heritage but not Native status.

[5] In March 2009, TAK was placed in the temporary care and custody of her Mother subject to the supervision of the Society. On April 6, 2009, TAK was found in need of protection pursuant to s. 37 (2)(b)(i) of the Child and Family Services Act (the “CFSA”).

[6] For certain periods of time from and after July 2009, TAK and her brothers had been in the care of the Society. Society involvement ended in September 2011 and the children lived with the Mother until December 24, 2013 when all three were apprehended from the Mother by the Society.

[7] TAK has been in continuous foster care since her apprehension on December 24, 2013 and has lived with her current foster family since September 2014. On July 27, 2015, TJK and WJK were returned to the care of the Mother, with whom they have continued to reside. TAK remained in foster care and by consent order dated September 25, 2015, TAK was made a Crown ward (the “Order”).

[8] The Order prohibited access by TAK’s biological father and by certain named father figures but granted TAK access to her brothers “as arranged by the Society and supervised in its discretion.” TAK was also granted access to her Mother “as arranged by the Society and supervised in its discretion in accordance with [TAK’s] views and preferences and any recommendations/direction made by therapists/doctors/counsellors involved with [TAK].”

[9] On the recommendation of TAK’s psychiatrist, her access to the Mother was suspended in February 2015. TAK’s access to her Mother has not resumed, although TAK sees her two brothers on a regular basis. The Mother questions the factual basis upon which TAK’s psychiatrists and counsellors have based their opinions that TAK’s access to her Mother should be suspended.

[10] In part, the Mother blames the foster parents for inaccurately reporting to TAK’s psychiatrist that TAK’s behavioural problems were exacerbated by her access visits with her Mother. The Mother has also come to conclude that the foster mother has encouraged TAK to attribute her behavioural and emotional challenges to the Mother. The Mother also believes that TAK’s views and preferences to see her Mother are being ignored and/or that the foster mother is interfering with TAK’s reunification with her Mother and that the Society has allowed or encouraged TAK to become alienated from her Mother.

[11] The Mother asserts that she has worked very hard to turn around her life and to make the changes necessary to provide her with the skills to parent and provide a home for her children. The Mother points out that TJK and WJK have been living with her since September 2015, and are thriving in her care and that she has worked very hard to address and overcome her own challenges, most of which had their source in the Mother’s difficult and dysfunctional upbringing, which also included significant Society involvement.

[12] Viewed from the Mother’s lens, it is easy to understand her frustration: she has done all she can to make herself and her home ready for TAK but has not been allowed to see TAK since February 2015. Yet, despite all the changes she has made in her life, the Mother acknowledges that TAK is not ready to live with her. Mother believes the reason for this is that TAK is not receiving the proper reunification counselling and that the Society and the foster parents are focusing instead on TAK’s adoption by her foster family.

[13] The Society recognizes the Mother’s hard work in an effort to provide a safe and loving home for her children. The Society is also very much alive to concerns about the foster mother’s influence on TAK: it is mentioned in the Society worker’s notes, along with a suggestion that it be addressed in TAK’s counselling.

[14] In response to the Mother’s criticism that after TAK was made a Crown ward there was a focus on permanency planning, the Society points to s. 112 of the Child, Youth and Family Services Act, 2017, which mandates the Society to “make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through” an adoption or a custody order under s. 116, which includes an order granting custody to a foster parent.

Law on Summary Judgment Motions

[15] Rule 16 of the Family Law Rules governs motions for summary judgment. Rule 16(5) states that if there is no genuine issue requiring a trial, the court shall make a final order accordingly. In determining whether a genuine issue requiring a trial exists, r. 16(6.1) permits the court to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

[16] To succeed on a summary judgment motion, the moving party must prove on a balance of probabilities that there is no genuine issue requiring a trial. The Supreme Court of Canada has held that there will be no genuine issue requiring a trial “when the judge is able to reach a fair and just determination on the merits of a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (Hryniak v. Mauldin, 2014 SCC 7, at para. 49)”

[17] Other courts have equated “no genuine issue for trial” with "no chance of success" and that it is "plain and obvious that the action cannot succeed" or “when the outcome is a foregone conclusion” (J.C.J.-R. v. Children's Aid Society of Oxford County at para. 8); or a case in which “there is no realistic possibility of an outcome other than that sought by the applicant.” (Children’s Aid Society of the Niagara Region v. S.C, [2008] O.J. No. 3969 (SCJ), at para. 43) (“CAS Niagara v. S.C.”)

[18] The burden is on the moving party to satisfy the court that there is “no genuine issue of material fact that requires a trial for its resolution” (emphasis added) (CAS Niagara v. S.C., at para 40). Once the moving party makes a prima facie case, the onus shifts to the responding party, who must then provide evidence of specific facts showing that there is a genuine issue for trial, that their case “has a real chance of success”. (Windsor-Essex Children’s Aid Society v. L.V., 2013 ONCJ 569, at para 25)

[19] “If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without the delay associated with the trial and the resulting prolongation of the state of uncertainty about” a child’s future. (Windsor-Essex Children’s Aid Society v. L.V., at para 23, citing with approval from Jewish Family and Child Service of Toronto v. A.(R.))

[20] The respondent must put his/her best foot forward, and cannot rest on mere allegations or denials. (Rule 16(4.1) of the Family Law Rules; Children's Aid Society of Hamilton v. K.F., 2014 ONSC 576, at para. 37)

[21] The court must consider the full evidentiary record, and is entitled to assume that the record contains all the evidence that the parties would present at trial. (Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5)

[22] Courts must be cautious in granting summary judgment in child protection cases, since the stakes for the family are high, and granting summary judgment deprives the parent of the procedural safeguards of a trial. (C.R. v. Children's Aid Society of the District of Thunder Bay, 2013 ONSC 1357)

[23] Despite the need to exercise caution in child protection cases, the court must bear in mind that it is not in a child's best interests for a parent to use the legal process to "buy time" to develop an ability to parent. Children need permanency planning in a timeframe sensitive to their individual needs. In child protection proceedings, the genuineness of an issue must arise from something more than a parent's heartfelt expression of his/her desire to resume care of the child. (Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.), at para. 18)

Application of Summary Judgment Principles

[24] I have carefully reviewed the record before me in its entirety. I conclude that the summary judgment procedure is appropriate here and that I am able to reach a fair and just determination on the merits. Based only on the evidence before me, and without using the new fact-finding powers in subrules 20.04(2.1) and (2.2), I conclude that there are no genuine issues requiring a trial. There are no issues of credibility that require a trial.

[25] I have considered, but do not agree, that the Mother’s evidence shows that the expert reports that led to the suspension of TAK’s access to her Mother were flawed. Moreover, the evidence concerning TAK’s current emotional and psychological state is unchallenged and comes from those who have had regular and focused dealings with TAK since the Order was made.

Issues to be decided

[26] The parties do not agree on the issues to be decided. The Society and the OCL identify two issues:

(1) Has the Society established a prima facie case that it is in TAK’s best interests that the status review application be dismissed with the result that TAK remains in the extended care of the Society on the same terms as set out in the Order? (2) If so, has the Mother presented any evidence of specific facts showing there is a genuine issue for trial on any of the issues?

[27] The Mother identifies four issues:

(1) Are there issues in dispute that require a trial in relation to the Mother’s claim for access? (2) Is TAK’s willingness, unwillingness or indecisive views and preferences respecting access to her Mother a material fact in dispute that raises a genuine issue for trial? (3) Is the Society’s “consistent and systematic efforts not to facilitate access” to TAK a material fact in dispute which raises a genuine issue for trial? (4) Is the Mother’s demonstrated change in circumstance not a genuine issue for trial on any of the issues?

[28] I see the second and third issues identified by the Mother as factors that the Court ought to consider when determining whether the Society has established a prima facie case that the Order ought to remain in place.

Issue one: Has the Society established a prima facie case that the Mother’s status review application should be dismissed and the Order remain unchanged?

[29] The evidence put forward by the Society includes the affidavits of Jennifer Accursi, child protection worker, dated March 22, 2017 and June 21, 2018. Those affidavits attach the report of Dr. Oren Amitay, dated April 21, 2015, who completed a parenting capacity assessment of the Mother; two reports from Dr. Oleg Savenkov, dated December 22, 2014 and February 18, 2015; the psychological report of Dr. Simon Williams, dated March 23, 2015, respecting TAK; a report from Nicole Franklin, dated May 17, 2018, TAK’s counsellor between March and May 2018; and a letter from John McLachlan, supervisor at the Family Counselling Centre, (undated), received by Accursi on June 21, 2018.

[30] Quite apart from the fact that the Order was made on consent, the opinions contained in the expert reports of Drs. Amitay, Savenkov, and Williams, support the making of the Order. It is abundantly clear, from all the evidence put forth by the Society, that TAK suffered significant trauma when she was living with the Mother and that her behaviours appear to flow from that trauma. TAK has been diagnosed with PTSD and anxiety and, based on the expert reports, has received counselling as well as medication to help her deal with the trauma she has suffered. It appears to have been a consistently held view of these experts that TAK would benefit from a stable home environment and that contact with the Mother was difficult for TAK.

[31] In his March 23, 2015 report, Dr. Williams, Ph.D., C. Psych. recommended against trauma-based therapy and against participation in the Pathstone program known as STOP (TAK’s lack of participation in this program is a point of criticism by the Mother). He recommends simply that TAK be provided with “a long a period of time in a stable, loving, predictable environment free from trauma, chaired by caregivers who are patient, and sensitive to her needs. She needs a break from revisiting her traumatic experiences; thus, interaction with her mother… should not take place.” Dr. Williams further states that it is important for the Mother to recognize “the degree to which her access visits … have traumatized TAK … and will undoubtedly continue to do so for a long period of time.” He states further that Mother may benefit from counselling/therapy “to help her understand that TAK’s not wanting to visit with her is not due to personal hatred toward her; rather, this is due to the distressing thoughts and feelings that such visits engender in her, that are outside of her control.”

[32] Pausing briefly here, I note that the Society’s evidence from those who have been caring for and treating TAK is that TAK’s views about seeing or contacting her Mother have not changed. The OCL, whose counsel has met with TAK, also confirms TAK’s clear and consistent view that she is not ready to resume access to her Mother.

[33] In his report, Dr. Amitay offered what could be seen as criticism of the assessments conducted of TAK. In particular, he expressed a view that the assessments lacked the kind of testing that might have better explained why the psychologist concluded that seeing her Mother triggered traumatic responses in TAK. Notwithstanding those criticisms, Dr. Amitay identified that the Mother lacked sufficient insight into a number of identified issues and that it would be premature to return all three children to her care. He contemplated that it might be possible for the Mother to care for only one or two of her three children. That is in fact what has happened. Finally, after having raised concerns that the assessments were flawed and that it was possible that one or more of the foster parents said or did something that could have contributed to TAK’s concerning behaviours associated with visits with her Mother, Dr. Amitay acknowledged that none of his statements were intended to impugn Dr. Williams, the foster parents, or any of the children’s supports in any way but were presented as “speculative comments for consideration, in order to possibly help account for what seems to be a disparity between the family’s apparent history and the severity of the two oldest children’s reactions following a mostly positive or neutral visits with their mother.”

[34] I conclude that Dr. Amitay’s report does not support a change in the Order and, as noted above, was delivered five months before the Mother consented to the Order.

[35] The Society has produced its workers’ notes and appears to have been utterly transparent in the counselling that has been offered to TAK and in communicating and disclosing to the Mother the opinions of those counsellors and medical experts. The counsellors are consistent that TAK is not ready to write a letter to her Mother and that she has been seen to “shut down” when asked about her Mother.

[36] Both the Society’s witnesses and the OCL confirm that TAK has been clear and consistent in expressing her view that she wants to remain with her foster family and wishes to be adopted by her foster family. TAK has also been clear and consistent in expressing the view that she does not want to see her Mother now, although she is prepared to consider doing so in the future.

[37] I find that the evidence put forth by the Society establishes a prima facie case that the Order should remain in place. I am satisfied that the Society and the counsellors are well aware of the potential risk of influence by TAK’s foster family on TAK’s views of her Mother. Despite that, there appears to be a factual and medical basis to support the approach being taken by TAK’s counsellors and treating physicians to not force TAK to see her Mother.

[38] I can give no weight to the Mother’s criticisms of the opinions set out in these reports, which are made years after she consented to the Order, whose terms incorporate, to some degree, the recommendations of these same experts. Moreover, I reject the Mother’s specific assertions that, because she did not observe certain behaviours in TAK, those behaviours could not have been caused while TAK was in her care: the evidence and the experts lead to the inescapable conclusion that the behaviours and emotions with which TAK struggles today had their source in the trauma she experienced as an infant and very young child when she was in the care of her Mother.

Issue Two: If the Society has established a prima facie case, has the Mother presented any evidence of specific facts showing there is a genuine issue for trial on any of the issues?

[39] As the Society has established a prima facie case, the onus shifts to the Mother to present evidence to show that there is a genuine issue for trial.

Test to be Applied on Status Review Application

[40] On a status review application, the court must consider the best interests of the child (s. 116 CYFSA). Section 74(3) sets out what the Court must consider when determining the child’s best interests:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’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,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[41] With respect to the first factor, the evidence is overwhelming that TAK does not wish to have access to her Mother and wishes to remain with her foster family and to be adopted by that family. Again, the importance of TAK’s views and preferences was recognized by the Mother who consented to the Order, which makes specific reference to TAK’s views and preferences.

[42] With respect to the second factor, the evidence shows that the Society and the foster family have ensured that TAK has regular opportunities to engage with appropriate cultural resources in recognition of her Native heritage.

[43] With respect to the factors under s. 74(3)(c), the evidence shows that the Society and TAK’s foster family have ensured that TAK and her caregivers have been engaged in appropriate treatment and training to meet TAK’s mental and emotional needs. TAK’s behaviours have been challenging and she has benefitted from the affection, attention, and energy given by those who have cared for and overseen TAK’s care since her apprehension in 2013.

[44] Based on the evidence before me, I have no doubt that in the almost four years she has lived with them, TAK has developed positive relationships with her foster parents and with her foster sibling, an adult child who lives at home and who has also been devoted to TAK. While it may be difficult for the Mother to accept that she has not been able to act in a caregiving role, she might find joy and acceptance from knowing that TAK has been provided with continuity of care in a stable and loving home.

[45] With respect to factors (ix) and (x), I would echo the comments of Justice Pazaratz who summarized the applicable jurisprudence applicable in child protection proceedings. Among those, I would emphasize that the Court must recognize the statutory imperative to ensure that the commencement of permanency planning is done in a timely fashion and to deal with cases justly. Those principles are particularly important in this case given that TAK has been in care since December 2013. If all the time TAK has spent in care is added together, TAK has spent well over half of her life in care. She is entitled to an end to this litigation and to a permanent home.

[46] Notwithstanding my findings and determination of this motion, much credit must be given to the Mother for the efforts that she has made to overcome her many challenges, which have allowed her to provide a home for two of her three children. While those changes cannot undo the harm suffered by TAK, they may well leave open the door for a future relationship with TAK.

Disposition

[47] For the reasons set out above, summary judgment is granted and the Mother’s status review application is hereby dismissed.

Justice L. Sheard Released: August 15, 2018