The Children’s Aid Society v. R. S., 2018 ONSC 956

COURT FILE NO.: 83-17AP

DATE: 20180208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN

Applicant / Respondent on Appeal

– and –

R. S.

Respondent / Appellant

Sarah J. Bujold, for the Applicant / Respondent on Appeal

Barbara Burton, for the Respondent / Appellant.

HEARD: February 1, 2018

r. d. gordon, r.s.j.

Overview

[1] On July 19, 2017, Justice Kukurin granted summary judgment in favour of the Children’s Aid Society of the Districts of Sudbury and Manitoulin (the Respondent herein). His decision resulted in the child J.S. being made a crown ward, with no right of access for the mother R.S. (the Appellant herein).

[2] The Appellant appeals the decision of the motion judge and seeks an order placing the child in her care under the supervision of the Respondent for a period of one year. In the alternative, she seeks an order that she be granted access to the child, supervised by a family member.

Background

[3] The Appellant is currently 40 years of age and is the biological mother of four children. Her youngest child, J.S., who was born on [...], 2015, is the subject matter of these proceedings.

[4] The Appellants two oldest children were apprehended by the Respondent at an early age and placed permanently with their maternal grandparents. The Appellant’s third child was apprehended at birth, later made a crown ward with no access, and was adopted by a paternal family member.

[5] J.S. was also apprehended at birth and has remained in the care of the Respondent since.

[6] On July 31, 2015 Justice Humphrey granted an interim and without prejudice order placing J.S. in the care of the Respondent, with the Appellant having access as agreed upon by the parties and supervised by the Respondent or its designate. The Appellant’s access has remained supervised throughout the proceedings.

[7] On February 6, 2016, Justice Keast ordered that the Appellant undergo a Parenting Capacity Assessment by Dr. Patricia Ross. This resulted in a Parenting Capacity Assessment Report dated April 29, 2016 in which Dr. Ross concluded that there would be a serious risk of neglectful, and potentially harmful, parenting if J.S. were to be placed in the care of R.S.

[8] On July 19, 2017, the Respondent brought its motion for summary judgment. Justice Kukurin made a finding that the child J.S. is in need of protection and determined that the child be made a crown ward without access.

[9] Despite an unhappy childhood, the Appellant obtained her high school diploma and has completed 18 months of college. Although not currently employed, she has worked at various jobs including at McDonald’s Restaurant, Tim Horton’s, the Omega Call Centre, as a crossing guard, as a server at a Holiday Inn and as a chambermaid at various hotels. Although she did, at one time, have an alcohol abuse issue, she attended a treatment program in 2002 and has not relapsed since.

[10] She is single and either cannot or will not reveal the identity of J.S.’s father.

[11] She has made significant efforts to improve her lot in life and to gain the skills necessary to care for her daughter. In addition to self-improvement programs, she has completed courses dealing with the Power of Positive Parenting, Raising Resilient Children, and Raising Confident Competent Children. Although her access to J.S. has been supervised and restricted to a few hours per week, her attendance has been regular and she has demonstrated a significant commitment to her.

[12] As noted above, the finding of the motion judge that J.S. was a child in need of protection is not contested by the Appellant. Given that finding, there are three options available to a court: return the child to the Appellant under the supervision of the Respondent, make the child a crown ward with access to the Appellant or make the child a crown ward without access.

[13] The Respondent was seeking crown wardship without access. The issue before Justice Kukurin was whether there was any genuine issue requiring a trial. He determined there was not and granted the motion.

The Decision of the Motion Judge

[14] There is no suggestion by the Appellant that the motion judge made any error of law in his analysis of this case. He appropriately identified the applicable legal principles at play in child protection proceedings such as these and fairly summarized the summary judgment procedure, including the test to be met and the onus on the parties. He specifically recognized that Rule 16 (6.1) required him to consider the evidence provided by the parties and provided him authority to weigh the evidence, evaluate credibility and draw reasonable inferences from the evidence.

[15] He concluded that no trial was necessary on the issue of whether the child was in need of protection. He found that there was a risk that the child was likely to suffer harm if placed in her mother’s care, citing the following eight factors:

The historical evidence, dated though it may be, and frail though it may be, by virtue of being hearsay in nature, of the mother’s track record with her three other children, in particular her parenting of them;
The fact that the mother has virtually no relationship with her older children even though they were apparently raised locally and with extended family;
The mother’s now twice tested level of cognitive functioning which is very concerning if she were to be a full time mother;
The mother’s continued problems controlling her personality problems with others, which even in the context of access was so problematic that her own mother asked to have her access removed from her home. This was re-iterated by society access supervisors with whom the mother often came into conflict. This evidence was not so much hearsay as first hand.
The mother has no history of successfully parenting a child for any significant length of time;
The mother is a single mother, without a partner to share the load of homemaking and child care, with limited financial resources, and no solid prospects that her circumstances will change for the better any time soon;
The parenting capacity recommendations which did not advocate her having care of her child unsupervised;
Her inability to work within the confines of a supervision order with the society or even with other service providers.

[16] When dealing with the disposition sought by the Respondent, the judge found as follows:

The finding of the child to be in need of protection, particularly the reason for the need of protection, precludes the placement of the child with the mother. The society cannot supervise the mother 24 hours per day and there is no other supervisor in sight. The mother proposes to live alone with the child and she is the source of the risk of potential harm. More importantly, if the child were to be placed with the mother, it would be with a supervision order with conditions. The mother is unable to abide by conditions and would constantly argue with anyone trying to exert any controls on her. Supervision is not workable with this mother.

[17] In the circumstances, he determined that there was no genuine issue relating to the Respondent’s request for crown wardship.

[18] He then turned to the issue of access and recognized that once an order for crown wardship is made the onus shifts to the person seeking access to prove on a balance of probabilities that: (1) the relationship between her and the child is meaningful to the child; (2) the relationship between her and the child is beneficial to the child; and (3) access will not impair the child’s future opportunities for a permanent or stable placement. If the person seeking access is able to establish all three of these requisites, the court may then go on to consider whether an access order would be in the best interests of the child.

[19] The motion judge determined there was no genuine issue raised by the Appellant on the issue of access. He found that her evidence relative to access being meaningful to the child was lacking, that her evidence relative to access being beneficial to the child was lacking, and her evidence relating to the impact of access on the child’s future opportunities was lacking. In particular he held that:

This is not a situation where this mother and this child have ever had a mother and child relationship outside of access visits. The visits are short and not always incident free. And the child obviously has formed other relationships that are by far much more meaningful and beneficial to her than is her relationship with her mother.

[20] He determined that there was no genuine issue regarding access that would require a trial.

The Standard of Review

[21] In Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held that absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. The court held that when a motion judge exercises his or her new fact-finding powers under Rule 20.09(2.1) and determines whether or not there is a genuine issue requiring a trial, he/she is determining a question of mixed fact and law. Provided there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error.

[22] Although that finding was made in the context of a summary judgment motion under the Rules of Civil Procedure, I see no reason to apply a different standard to such a motion brought under the Family Law Rules.

[23] Given the Appellant’s concession that the motion judge made no legal error, for her to succeed I must be persuaded that he made a palpable and overriding error in reaching his decision.

Analysis

[24] The Appellant identified three discreet issues with respect to the decision made by Justice Kukurin. I will address them in turn.

Issue #1 – Failure to Properly Assess the Ability and Skills of the Appellant to Parent Her Daughter

[25] The findings of the motion judge are entitled to deference. It is clear that he considered the evidence of the Appellant concerning the self-improvement courses and parenting courses taken by her, however, he found that despite the completion of these programs, the Appellant had not overcome her tendency to insist that she is right and that others are wrong. He found that she will do what she wants, even though the rest of the world may disagree with her. His findings were firmly rooted in the evidence that was before him, and particularly in the Parenting Capacity Assessment of Dr. Ross.

[26] The Appellant submits that the judge failed to accord sufficient weight to those portions of Dr. Ross’s report that noted her ability to learn if taught in the proper manner, and her ability to take direction if given in a fashion appropriate to her intellectual and behavioural limitations. In my view, this argument of appeal misses the point. It is clear that the Appellant has significant intellectual deficits (her overall intellectual abilities are within the ‘extremely low range’, below the 1^st percentile) and that she can be expected to have difficulty learning. However, as stated by Dr. Ross, even when she is appropriately taught and has learned what is being offered, she will have “difficulties generalizing the information she has learned to real-life situations in a problem solving manner”. She has limited reasoning abilities and limited judgment. Of particular importance are the conclusions reached by Dr. Ross in her report:

Although the psychological understanding of R gained within this assessment was limited overall, there are specific characteristics of particular importance to assess her capacity to safely and effectively parent J. In addition to a very limited insight into her needs and the consequences of her intellectual deficits, R would have much difficulty accepting any limitations she did identify. Although she would require much assistance and support to function maximally, she has strong needs to find her own way of doing things and does not like to follow conventional methods. R’s uniqueness is important to her. In addition, standing up for her rights is also important for R. She strives to be assertive and enjoys challenging and debating ideas.

These characteristics would compound, rather than mitigate, the effects she would already incur in parenting because of her intellectual deficits and weakly developed problem solving skills. As has been seen both historically and in the present, R would not be highly responsive towards the help and advice provided by others. She will be quick to feel criticized and unfairly treated when people offer help and support; strives to do things her own way; and would typically react with animosity and resistance when assistance is provided.

Overall, R’s capacity to safely and effectively parent J and to provide a healthy, stable and consistent environment is assessed to be seriously impoverished. This opinion is consistent with the opinion expressed by Dr. Nash in her 2002 assessment of R and her older three children. This is also consistent with R’s very limited progress in gaining parenting skills, such as through the support of the Clinically Managed Access program.

Importantly, it is believed that R has made gains since this previous assessment, particularly in terms of managing her anger. Unfortunately, her intellectual weaknesses will impede her ability to accurately analyze situations and effectively implement her new skills and ways of thinking, which will substantially limit the translation of these gains into her everyday life.

It is believed that R is attached to her daughter and is motivated to provide her with adequate care. She has shown a good level of commitment to access and towards providing for her daughter independently.

However, the gains she has made and the positive aspects to her love and commitment do not outweigh the concerns that her severe intellectual limitations present. There would be a serious risk of neglectful, and potentially harmful, parenting if J were placed in the care of R.

[27] The Appellant also takes issue with the motion judge finding that she has virtually no relationship with her older children. She points to evidence before the judge that she has maintained contact with her two oldest children and that one of them had attended a conference with her, and accompanied her on one visit with J.S. I am not certain this limited evidence is necessarily at odds with the finding made by the judge. In any event, it would not be an overriding error such as would affect the outcome of this case.

[28] The Appellant further takes issue with the judge’s finding that her personality problems were so problematic that her own mother asked to have access removed from her home. She says that the judge failed to consider that the request to change access was made because of the history of abuse and tumult within that home. In my view, this finding of the judge was a finding of fact available to him on the evidence before him on the motion and is entitled to deference.

Issue #2 – The Judge Erred in the Weight given to the Appellant being a single mother with limited financial resources

[29] This ground of appeal must fail.

[30] The trial judge did list among the factors weighing in favour of a finding that the child was in need of protection, that: “ The mother is a single mother, without a partner to share the load of homemaking and child care, with limited financial resources, and no solid prospects that her circumstances will change for the better any time soon.”

[31] However, this was a factor pertinent to the judge’s finding that the child was in need of protection – a finding that is not contested in these proceedings. There is no indication that it played a role in the ultimate disposition of the motion by the judge. Even if it did, it is clear that it was but one of many factors considered by him. The manner in which he weighed the various factors and came to his conclusion is entitled to deference.

Issue #3 – Access to the Child Post Crown Ward

[32] The Appellant submits that the judge erred by considering the Appellant’s limited access of four hours per week, when this was the access schedule arranged by the Respondent and was not of the Appellant’s making. In my view, this argument misses the point. The issue before the judge was whether future access would be meaningful and beneficial for the child. In making this assessment it was appropriate for him to consider what access had been taking place in the past and what sort of relationship had come to exist between the mother and child. Why the access was as limited as it was and whether the Appellant was or was not content with that access was not the issue.

[33] The Appellant also submits that the judge erred in finding there was little evidence that the child was attached to her mother or that the mother had bonded with the child, particularly given his finding that the Appellant loves her child very much and has shown a commitment to her since she was born. I disagree. In the context of access, and whether future access will be meaningful and beneficial for the child, whether the mother feels a bond towards the child is of little consequence. It is whether there is evidence of the child’s bond to the mother that is of interest. This is what the judge was referring to. This is what he found to be lacking. This finding of fact is entitled to deference.

Other Grounds of Appeal

[34] The Appellant’s factum identified other grounds of appeal in Part II of her factum entitled “Overview”. However there was no subsequent argument addressed to those grounds, and they were not addressed at the hearing of the appeal. In the circumstances, they amount to bare allegation that cannot effectively ground this appeal.

Conclusion

[35] This is a most unfortunate situation for the Appellant.

[36] Clearly she loves her daughter and is committed to her. She has done most everything within her control to gain the skills necessary to care for her daughter. However, due to her engrained personality traits and her limited intellect what she has done is just not enough. Despite her very best efforts, supervision of her by a family member or the Respondent would be inadequate to protect the child. The best interests of J.S. require that she remain a ward of the crown and that there be no access.

[37] The appeal is dismissed.

R. D. GORDON, R.S.J.

Released: February 8, 2018