WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and 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.: FC-16-1018 DATE: 20181102

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – Y.E. C.L. Respondent

Counsel: T. MacDougall, for the Applicant Y.E., Mother, Self-represented K.L. Robins, for the Respondent Father, C.L.

HEARD: October 9, 2018 (at Ottawa)

Reasons for Summary Judgment

KANE j.

[1] This protection proceeding is in regards to I.E. who was born on […], 2015 and is therefore on the eve of his third birthday. The parties are the mother and father of the child who is of the Islam faith and does not have Native status.

[2] The Society on September 18, 2018 filed this motion for summary judgment as to the following issues:

(a) determination that the child is in need of protection pursuant to ss. 74(2)(b)(i), (ii) and 74(2)(g) of the Child Family Services Act (the “Act”);

(b) for an order granting custody of the child pursuant to s. 102(1) of the Act to the father C.L.; and

(c) for an order that the mother Y.E. is to have supervised access:

(i) at a recognized supervised access center; or

(ii) while in the presence of a third adult proposed by the mother who is acceptable to the father.

[3] The Society served numerous affidavits with supporting exhibits on this motion for summary judgment citing historical events regarding the parties, the child and their current status. Those exhibits include numerous medical assessments as well as medical and police reports.

[4] The mother filed nothing in response to this motion and left the courtroom shortly after commencement of the applicant’s argument.

[5] The father and his counsel were in attendance during argument of this motion together with members of his family. The father supported the summary judgment and relief sought by the Society.

[6] The court at the conclusion of argument today granted the Society’s motion for summary judgment granting the above three heads of relief with these reasons to follow.

Background

[7] The Society in May 2016 brought a protection application that the child be made its ward for 6 months. The plan was to have the child cared for by the maternal grandmother and aunt with frequent access to the parents.

[8] A temporary without prejudice order to that effect was granted in September 2016. Parental access was conditional upon the father abstaining from drugs and alcohol while in a caregiving role and the mother participating in an addiction treatment program and her abstention from the use of drugs and alcohol in the presence of the child.

[9] A temporary order was granted on August 15, 2017 expanding the terms of access. The child at the time was residing with his maternal aunt and grandmother. The father’s access was to be every second weekend from Friday afternoon until Monday morning and every Wednesday evening. The mother’s access included 3 overnight visits per week at the shelter where she lived or at her mother’s and sister’s home. Access conditions as to each parent included a prohibition against consumption of alcohol or non-medically prescribed drugs.

[10] The maternal grandmother and aunt advised they could no longer care for the child after October 30, 2017. A care and custody hearing was scheduled for October 10, 2017. It did not proceed because the mother did not serve any materials.

[11] The Society amended its application on October 13, 2017 in seeking an order that the child be placed in the custody of the father with supervised access to the mother.

[12] The Society on October 19, 2017 sought a temporary without prejudice order to place the child in the care and custody of the father despite the fact that he then faced the prospect of a custodial sentence in November 2017 for conviction of a charge of drug trafficking. The Society was satisfied that the paternal grandparents were suitable interim caregivers. The court held that the child could not be placed in the temporary care of the mother given the allegations as to her addictions and related mental health issues.

[13] The court on October 19, 2017 made a without prejudice order granting temporary care and custody of the child to the father with conditions and under the supervision of the Society pending disposition of the application. The mother’s right of access reverted to the discretion of the Society. The conditions prohibited the father’s consumption of non-prescribed drugs and alcohol while in a caregiving role.

[14] The court made a further temporary without prejudice order on January 4, 2018 placing the child in the care and custody of his father under Society supervision pending disposition of the application with a prohibition that the father not consume non-prescribed drugs or alcohol while in the caregiving role. The mother was granted a right of access at the discretion of the Society with conditions which included a similar alcohol and non-prescribed drug prohibition while in a caregiving role and the requirement that the mother participate in programs requested by the Society as to parenting and drug and alcohol treatment.

[15] The Society as stated on September 18, 2018 filed the present motion for summary judgment seeking a finding that the child is in need of protection and placing the child in the custody of her father with supervised access to the mother.

Mother’s Health

[16] The evidence filed including health and police records indicate the mother suffers from a lengthy serious addiction to alcohol with accompanying mental health issues.

[17] Past events negatively causing the mother’s current inability to care for the child include the following:

(a) was taken to hospital by police in December 2004 following an altercation with her mother in an intoxicated state and was threatening suicide;

(b) commenced an outpatient treatment program at the Royal Ottawa Hospital (“ROH”) in March 2005 which recommended she continue to participate in that clinic and A.A. and N.A. programs for her current use of alcohol and marijuana;

(c) the mother sought assistance at the emergency department in June 2008 and reported she did consume 20 ounces of alcohol the night before;

(d) the mother was charged with assault of the father in November 2007;

(e) police were called in November 2008 due to the mother threatening suicide;

(f) the mother attended the acute stabilization unit at the ROH between December 23, 2008 and January 21, 2009 and was then admitted into the substance abuse and concurrent disorders program from which she was discharged on February 18, 2009;

(g) she was charged in December 2009 with assault of the father;

(h) she attended the emergency department at a local hospital on July 27, 2011 reporting depression, having been caught for drinking and driving but refused participation in a detoxification program;

(i) the mother on November 18 and 19, 2011 was apprehended by police for driving under the influence and attempting to defraud a taxi driver;

(j) she suffered a panic attack in November 2011, was taken to the emergency department by paramedics and acknowledged daily alcohol consumption to the point of intoxication;

(k) she was brought in an aggressive state to the emergency department later in November 2011 after having consumed alcohol, reported she was just over 2 months pregnant and was caught shoplifting;

(l) the ROH conducted an assessment of the mother on January 12, 2012. The mother reported she was deteriorating mentally with frequent panic episodes, was anxious all the time, had difficulty sleeping and required help. The report indicates she had serious alcohol dependency during the previous 7 years;

(m) she was admitted into hospital due to alcohol intoxication on May 5, 2012 at which time she was very agitated, incoherent and incontinent;

(n) she was brought to the hospital by paramedics on May 23, 2012 after she had been found stumbling at a shopping mall. The diagnosis was alcohol abuse;

(o) she was admitted into the acute stabilization unit at the ROH on May 30, 2012 but thereupon left the hospital and appeared to have consumed alcohol;

(p) she was brought to a hospital by paramedics in an intoxicated state on June 1, in an agitated state on June 5 and in an intoxicated state on June 6, 2012 whereupon she was released with the intention that she would participate in a regional detoxification center;

(q) the mother on April 16, 2012 breached her recognizance and was intoxicated with alcohol;

(r) police were summoned to assist ambulance attendants on June 6, 2012 caring for the mother who reported she had been drinking alcohol the previous evening and had bruises to her eyes, a broken nose and a large bruise on her chest;

(s) she was a patient in the acute stabilization unit at the ROH and an associated addiction treatment program between July 4 and August 30, 2012. The then diagnosis was alcohol dependency and generalized anxiety disorder;

(t) police attended and took the mother to hospital on November 29, 2014 as she had reportedly been vomiting all night and then became violent;

(u) police attended the mother’s residence due to an argument between these parents about the mother’s then consumption of alcohol despite then being pregnant;

(v) paramedics attended her residence on December 24, 2014 at which time she was very agitated, admitted to having consumed a lot of alcohol, reported she was then pregnant and refused treatment;

(w) she at the time of the child’s birth on October 14, 2015 tested positive for cocaine;

(x) the father was charged with assault of the mother in March 2017;

(y) she attended an emergency department on July 14, 2017 in an agitated state, refused to answer questions posed by medical staff and thereupon departed;

(z) she was taken to hospital by paramedics on October 6, 2017 from a park bench she had been laying on in a non-responsive condition beside a bottle of alcohol and her prescription medication;

(aa) she was taken by ambulance in a distressed state to the emergency department on November 5, 2017. Her family reported her consumption of alcohol during the preceding 10 days and her threatening suicide. She attributed the source of her current anxiety as the then contested custody litigation;

(bb) she was brought to the emergency department on November 6 and 7, 2017 expressing her need of assistance. Medical staff on November 6 believed she had recently consumed alcohol. She was released for admission into a withdrawal management program but refused to attend. Family members found her naked and lying in her own urine on November 7. She was very aggressive towards medical staff on November 7, 2017;

(cc) police are summoned on November 8 and 11, 2017 due to the mother’s then highly agitated state;

(dd) she while in an intoxicated state fell in a parking lot on November 16, 2017 and was arrested that date for assault of a young person on a public bus;

(ee) she while intoxicated refused to pay her taxi fare on December 18, 2017;

(ff) the mother on December 22, 2017 was intoxicated and refused to pay her purchase of food in a restaurant;

(gg) she contacted paramedics on July 7, 2018 and then attended the emergency department where she expressed feeling “at the brink of death”;

(hh) the access supervisor reported she detected the smell of stale alcohol and mouthwash from the mother during an access visit on June 19, 2018;

(ii) the access visit with the mother in her home supervised by a Society worker in July 2018 did not go well with the mother raising her voice at and resenting the presence of the worker in her home, as a result of which access resumed at the Society facilities; and

(jj) the mother by September 2018 had not presented the Society with alternate individuals who could replace the Society’s role in supervising the mother’s access with the child.

[18] The mother missed numerous scheduled supervised access visits with the child and was late for 22 visits she attended.

[19] The Society states it lacks confirmation from the mother’s health care providers ensuring the mother’s mental health has sufficiently improved to enable her to care for the child or to have unsupervised access.

[20] The above evidence clearly indicates without the need of a trial that the care and custody of the child cannot now be awarded to the mother and that her current access with the child should remain supervised.

The Father

[21] The Father was arrested for possession of drugs for the purposes of trafficking in April 2016. The Society obtained two drug screens in July 2016 indicating that cocaine was detected inside the father’s body.

[22] The father was sentenced to nine months incarceration for trafficking in cocaine. He commenced serving a sentence on February 8, 2018, was released on early parole at the end of July 2018 and will remain on parole until November 2018. He received a conditional discharge with respect to an assault charge against the mother which requires that he complete the New Directions Program. The father faces a third charge for resisting arrest upon being stopped by police in January 2018.

[23] The father attended a three-week drug relapse prevention counseling program and is about to commence a 12-week stabilization program.

[24] The child has weekend visits with his paternal grandmother, her partner and the paternal aunt on regular basis as well as biweekly visits with the maternal aunt.

[25] The paternal grandfather was visiting the child with his father daily and then moved into the home during the period of the father’s incarceration. The paternal grandfather took the child camping for 10 days in the summer of 2018 and continues to attend his son’s home daily during the week to provide care for the child while his father is at work.

[26] The Society is of the opinion that the child’s needs are currently being met while in the care and custody of the father, particularly given the involvement of the paternal grandfather, paternal uncle, paternal grandmother and her partner as well as the paternal aunt.

[27] The Society is of the view that the father is taking appropriate steps to address his previous substance abuse and the resulting criminal involvement in relation thereto.

[28] There is no contrary evidence as to the above position of the Society and the current level of care of the child he and his family are providing.

Legal Analysis

[29] Rule 16 of the Family Law Rules states that a final order shall be made whereupon review of the evidence finds there is no genuine issue requiring a trial. The mother has presented no evidence as to why a trial is required.

[30] In determining whether summary judgment should be granted, the court under Rule 16 must consider the timelines that govern child protection proceedings as well as s. 1 of the Child and Family Services Act which provides that the paramount purpose of that legislation is to promote the best interests, protection and well-being of children: Catholic Children’s Aid Society of Toronto v. ADM and AM, 2016 ONCJ 742, para. 56. The mother has not had the custody and care of the child since mid-2016.

[31] There is no issue requiring a trial if the undisputed evidence leads to an inevitable outcome and it is obvious that the mother’s opposition to the order sought cannot currently be successful: Children’s Aid Society of Ottawa v. TRN, 2014 ONSC 916, para. 8 and Catholic Children’s Aid Society of Toronto v ADM and AM, para. 44.

[32] A responding party is required to present evidence to rebut a prima facie case presented by the moving party for summary judgment: Children’s Aid Society of Ottawa v. CS, [2003] OJ 6307 para. 11. The mother has presented no evidence to rebut the Society’s prima facie case in support of the relief requested.

[33] The granting of summary judgment in a child protection case is not limited or granted only in the clearest of cases: Children’s Aid Society of Waterloo v. TS, [1999] O.J. 5561, para. 5.

Conclusion

[34] The court based on the above analysis grants summary judgment as follows:

(a) the child is in need of protection pursuant to ss. 74(2)(b)(i), (ii) and 74(2)(g) of the Act;

(b) custody of the child is granted to the father pursuant to s. 102(1) of the Act; and

(c) the mother is to have supervised access with the child:

(i) at a recognized supervised access center; or

(ii) during the presence of a third adult proposed by the mother who is acceptable to the father.

Mr. Justice Paul Kane

Released: November 2, 2018

Footer Information

COURT FILE NO.: FC-16-1018 DATE: 20181102

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: The Children’s Aid Society of Ottawa Applicant – and – Y.E. C.L. Respondent

REASONS FOR SUMMARY JUDGMENT Kane J.

Released: November 2, 2018