This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) 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.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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 NO.: 449/10
DATE: 2018/01/30
SUPERIOR COURT OF JUSTICE (FAMILY COURT) - ONTARIO
RE: The Children’s Aid Society of the Niagara Region, Applicant
AND:
R.C. and M.C., Respondents
BEFORE: The Honourable Mr. Justice Robert B. Reid
COUNSEL: C. Etherden, Counsel, for the Applicant
Respondent R.C. self-represented
R. Adams, Counsel, for T.C.
HEARD: January 29, 2018
ENDORSEMENT
[1] The applicant, Children's Aid Society of the Niagara Region (the “Society”), seeks a final order terminating the Crown wardship order dated March 12, 2013 with respect to the child, T.C., born […], 2004 and a final order that the child be placed in the custody of her current foster parents, R.M. and P.M. The Society also seeks a term in the final order that the respondents R.C. and M.C. have no access to the child but that the child have access to her siblings as arranged by her foster parents, taking into consideration the child’s wishes.
[2] The matter proceeded as a summary judgment motion.
[3] The request of the Society is supported by the foster parents, who have consented to it, and by counsel for the child.
[4] The child’s father, M.C. was noted in default and did not attend.
[5] The request of the Society was not opposed by the child’s mother, the respondent R.C., except to the extent that she wished to have an order permitting access by her to the child.
[6] On the morning of the hearing, R.C.’s legal counsel was removed from the record at his request. The summary judgment motion proceeded with R.C. self-represented, and R.C. gave viva voce evidence.
Background facts:
[7] The child was made a Crown ward with access to her siblings and no access to her parents on March 12, 2013 following a trial. The child’s last visit with her mother was almost five years ago on April 8, 2013.
[8] The child has consistently indicated that it is her wish not to have access to her parents. She does desire to be placed in the custody of her foster parents although she is reluctant to be part of an adoption proceeding with them based, apparently, on a failed adoption attempt with other individuals in the past. The foster parents are open to the potential for adoption.
[9] The child has resided with the foster parents for more than two years, and is part of a loving and supportive household.
[10] The respondents are also parents of five other daughters ranging from 25 to 13 ½ years of age. The child who is the subject of these proceedings and her twin sister are the youngest of the siblings.
[11] The respondent father was charged with sexual offences regarding at least one of the children, which charges led to the children being found in need of protection in November, 2010. He was sentenced on January 31, 2011 to nine years’ imprisonment.
[12] The respondent father is currently serving his sentence in a halfway house in Sudbury Ontario and the respondent mother has relocated to Sudbury but denies that she and her husband have re-established a relationship.
[13] The respondent mother gave evidence to the effect that she believes it is in the best interest of the child that the respondent be allowed access visits. Her position was based in part on the fact that she is the child’s mother and that therefore there is a presumed bond between them. As well, she felt that she could help the child know her roots, as relates to the First Nations heritage of the child’s father.
[14] The respondent mother also noted that she has an ongoing positive relationship with one of her daughters, currently aged 16 years, who lives in Kitchener. The two visit together approximately once per month.
Legal principles:
[15] Rule 16 of the Family Law Rules permits a party to bring a summary judgment motion for a final order without a trial in child protection proceedings.
[16] Where there is no genuine issue requiring a trial, a final order may be made following a summary judgment motion.
[17] In this case, I agree with counsel for the Society that there is no genuine issue requiring a trial to be found in the sole issue in dispute, namely the proposed term of the final custody order that R.C. have no access to the child. This is clearly a case where a summary judgment motion is an efficient and timely alternative to a trial. There is no reason to expect that a trial is necessary to bring out further evidence on the issue.
[18] The Society brought this application for status review as to the order of March 12, 2013 regarding the child pursuant to section 65.1 of the Child and Family Services Act. The court has jurisdiction under section 65.2(1)(b) of the Act, if it is in the child’s best interests, to order that custody be granted to one or more persons, including a foster parent, with the consent of the person or persons. Further, under section 65.2(3), any previous order for Crown wardship is terminated if an order under section 65.2(1)(b) is made.
[19] I am satisfied that the provisions of section 59 of the Act apply to this case by virtue of section 65.2(5). Under section 59(2.1), the court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child’s future opportunities for adoption.
[20] As to the issue of the child’s best interests, the court must consider the non-exhaustive list of criteria set out in section 37(3) of the Act which include the importance for the child’s development of a positive relationship with a person and a secure place as a member of a family; the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; the child’s relationships and emotional ties to a parent; the child’s wishes and views; and the effects on the child of delay in the disposition of the case.
Discussion and Conclusion:
[21] Based on the affidavit evidence filed on behalf of the Society, the consent of the foster parents, the agreement of R.C., and the position taken by the lawyer for the child, I have no hesitation in making a final order that the child be placed in the custody of her current foster parents, R.M. and P.M. She appears to be thriving there and the permanence of the order is in her best interest. That order represents stability and may in due course lead to adoption. It is consistent with her wishes. The order would continue a situation that has been in place for about two years.
[22] Likewise, I am satisfied that there should be no order as to access between the child and her father, M.C. There has been no contact for a lengthy period of time. His criminal convictions suggest that any contact would be potentially dangerous and not in the child’s best interest. No party disputes that disposition.
[23] It appears that the child does have ongoing positive relationships with various siblings. She wishes to continue those relationships. They represent a connection between the child and her family without any threat to her physical, mental or emotional needs. Once again, no one disputes an order to the effect that she have access to all her siblings, namely A.C., S.C., K.C., M.C., and J.C., as arranged by her foster parents and taking into consideration her wishes.
[24] In the one area of dispute, that is, whether there should be an order of no access by the respondent mother, R.C., to the child, the question is: is it in the child’s best interest that she have contact with her natural mother?
[25] I have considered the evidence and submissions of the respondent R.C. Given that the cultural heritage connection is through the child’s father, I am not satisfied that that is a significant factor in favour of an order that the mother have access. Likewise, the simple fact of the blood relation between the child and her mother does not translate into access being in the child’s best interest.
[26] The relationship that R.C. has with one of her six daughters is commendable. However, it is not possible to conclude that simply because one child has a relationship with R.C., an access order would result in a beneficial and meaningful relationship between T.C. and R.C. The ages of the children are different. The daughter in Kitchener resides in a group home, rather than with a family. There was no information about any other aspect of the daughter’s situation or prior relationship with R.C. that would lead to a conclusion that access with her indicates the likelihood of a beneficial and meaningful relationship with T.C.
[27] By contrast, there are several significant factors which support the making of a no access order. They include the clear wishes of the child and the fact that there has been no contact between the child and her mother for almost five years. There is no basis for considering that some contact between the mother and the child will foster the child’s physical, mental and emotional needs and such conduct may be disruptive to the child’s security in her positive relationship with her foster parents. No doubt the establishment of some form of access regime after a period of almost five years in the life of a 14 ½-year-old would be disruptive. The child herself appears to have no emotional attachment to her mother. An access order might impede any future adoption possibilities.
[28] As a result, I conclude that it is appropriate to make it a term of the final order that the respondent R.C. have no access to the child. There is no evidence that the relationship between R.C. and T.C. is or will be beneficial and meaningful to the child, and thus it is not in her best interest for an access order to be made.
[29] I note, as did counsel for the Society in his submissions, that no access order at this point does not finally conclude the matter. It may be that in the future, the child herself will wish to establish a relationship with her mother, and she is free to do so. The fact that she may well have an ongoing relationship with some or all of her siblings, at least one of whom is in contact with their mother, may assist her if and when the opportunity for a relationship presents itself. Likewise, the respondent R.C. may choose, at some point in the future, to bring a court application for an access order. I note, however, that as the child increases in age, it is more likely that any access arrangement would need to be made with the support of the child.
[30] Therefore, there will be a final order that the child, T.C., shall be placed in the custody of R.M. and P.M. and that the March 12, 2013 Crown wardship order as regards T.C. be terminated. A term of the final order will be that the respondents R.C. and M.C. will have no access to T.C. but that T.C. will have access to her siblings, A.C., S.C., K.C., M.C., and J.C., as arranged by R.M. and P.M. and taking into consideration T.C.’s wishes.
Reid J.
Date: January 30, 2018