Court File and Parties

COURT FILE NO.: 572/03 DATE: 2019/04/23 ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT

BETWEEN:

CHILDREN’S AID SOCIETY OF NIAGARA Applicant – and – T.A., and J.D. Respondents

COUNSEL: S. Tut, counsel for the Applicant W. Brooks, counsel for T.A. J.D. in default, not appearing C. Leduc, counsel for the children

HEARD: April 17, 2019

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.

R. Reid J.

Decision on Summary Judgment

[1] The Children’s Aid Society of Niagara (the “Society”) brought this summary judgment motion within a status review application in relation to the children, G.D. and J.D. who are eight-year-old twins.

[2] T.A. is the mother of the children. She was represented by counsel and, in September, 2018 filed a Plan of Care. However, no responding material was filed on the motion despite the order of Justice Lococo dated February 6, 2019 which extended the time for doing so to February 20, 2019. She did not attend at the hearing of the motion. The father is J.D. He did not participate and was previously noted in default. The children were represented by counsel from the Office of the Children’s Lawyer.

[3] The Society sought a final order placing the children in the Extended Care and Custody of the Society without access for the purpose of adoption.

Background

[4] T.A. and J.D. reside separate and apart. The children have not had contact with J.D. for many years.

[5] T.A. has five other children who are not in her care, two of whom have been adopted.

[6] T.A. has had extensive contact with the Society as a child and as a caregiver. In general, Society concerns relate to T.A.’s transience, involvement in relationships where domestic violence occurs, mental health, parenting capacity, parenting skill, and drug and alcohol addiction.

[7] The Society’s current involvement began in September 2015 on a referral from the Niagara Regional Police Service relating to difficulties experienced by T.A. with her former boyfriend. On November 14, 2016, a temporary without prejudice supervision order was made where the children remained with T.A. That order was terminated in May 2017 when T.A. ended the relationship with her former partner.

[8] Society involvement was recommenced in late July 2017 on the basis that the children’s needs were apparently not being met by T.A. at the time. A Society worker observed drug-related paraphernalia in the basement of T.A.’s premises although T.A. denied any drug involvement, as well as other evidence of lack of care for the children. They were deemed to be at immediate risk and were removed from T.A.’s care. The apprehension was pursuant to a protection application which was begun August 4, 2017.

[9] On March 5, 2018, following a hearing, the children were found to be in need of protection and the children were made Society Wards for a period of six months with access to T.A. That is the order which is currently under review.

Position of the Society

[10] The Society alleges:

a. that the children are at risk of physical harm based on the use of illegal substances by T.A.; b. that the children are at risk of being left at home alone by T.A. or with unfamiliar individuals; c. that T.A. is unable to maintain the condition of her home to a proper standard for the children; d. that the children are at risk of physical neglect as to their hygiene if left in the care of T.A.; and e. that there is no known kin placement available.

[11] The Society submits that T.A. has no clear plan of care and has not taken any steps to alleviate Society concerns. She has not had access to the children since September 2017. She has not been cooperative in dealing with the Society as to developing a plan to address protection concerns, nor did she participate in any services or planning with Society workers. There is no evidence that she has proper accommodation for the children.

[12] The Society submits that the best interest of the children will be served by the permanency to be established by placement with an adoptive family.

Position of the Office of the Children’s Lawyer

[13] Counsel from the Office of the Children’s Lawyer supports the position of the Society.

The Issues

[14] The questions to be determined by this court are as follows:

a. Is the matter suitable to resolution by summary judgment? b. If so, has the Society established that it is in the children’s best interest to be placed in the extended care and custody of the Society, without access, for the purpose of adoption?

The Law

[15] In considering an application such as this one, Justice Pazaratz in Catholic Children’s Aid Society of Hamilton v. B.L.S., 2014 ONSC 5513, at para. 83 summarized the law as follows:

This is a Status Review Application pursuant to section 64 of the Act.

a. In a Status Review Hearing the original order is presumed to be correct. This is not a re-hearing of a previous order made. b. The court must first determine whether the child continues to be in need of protection and as a consequence requires a court order for his or her protection. c. The court must consider the degree to which the risk concerns that formed the basis for the original order still exist. The need for continued protection may arise from the existence or absence of circumstances that triggered the original order for protection; or from circumstances which have arisen since then. (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 (S.C.C.)) d. Secondly, the court must consider the best interests of the child. e. The analysis must be conducted from the child’s perspective.

[16] Although he was dealing with the predecessor legislation, section 115 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. C.14, Sched. 1 (the “Act”) contains the same legislative provisions.

[17] The overarching consideration is a determination of the best interest of the children pursuant to the paramount purpose of the Act, set out in s-s. 1(1) which is to promote the best interest, protection and well-being of children.

[18] This court recognizes the need, identified in s-s. 1(2) of the Act, to consider the least disruptive course of action that is available and is appropriate in the particular case to help children, consistent with the children’s best interests. In doing so, the court must consider the options set out in s-s. 101(1) of the Act.

[19] Similarly, the court must consider another purpose of the Act, set out in cl. 1(3)(iii) which is to recognize that the children’s services should be provided in a manner that provides early assessment, planning and decision-making to achieve permanent plans for children when doing so is consistent with their best interests, protection and well-being.

[20] The Act provides, at s-s. 74(3), that the court must consider a variety of factors in determining the best interests of children. In this case, the provisions of cl. (c)(i) and (c)(ii) are of particular importance, namely the children’s physical, mental and emotional needs, the appropriate care or treatment to meet those needs and the children’s physical, mental and emotional level of development. As well, given the order sought by the Society, the provisions of cl. 74(3)(v) are also important, namely the importance for the children’s development of a positive relationship with a parent and a secure place as a member of a family. Further, in cls. 74(3)(viii) and (ix), the court is mandated to consider the merits of a plan for the children’s care proposed by the Society, including a proposal that the children be placed for adoption or adopted, compared with the merits of the children remaining with or returning to a parent as well as the effects on the children of delay in the disposition of the case. Obviously, this court must consider all of the factors set out in s. 74 in coming to a conclusion as to the children’s best interests.

Is the matter suitable to resolution by summary judgment?

[21] Rule 16(6) of the Family Law Rules, O. Reg. 114/99 provides for a final order on summary judgment by motion if there is no genuine issue requiring a trial. Subrule 16(2) specifically provides that a motion may be made in a child protection case.

[22] In compliance with the rules, the Society served and filed five affidavits setting out specific facts in support of its position that there is no genuine issue requiring a trial.

[23] According to subrule 16(4.1) the responding party may not rest on mere allegations or denials but must set out in the affidavit specific facts showing that there is a genuine issue for trial. As noted, no affidavit material was filed by T.A. nor did she appear or instruct counsel to make any representations at the hearing of the motion.

[24] The Plan of Care filed by T.A. dated September 7, 2018 did not propose a return of the children to her or that they be entrusted to the custody of anyone else. Rather, it attempted to provide excuses for certain actions on her part or circumstances that the Society found objectionable. In the Plan of Care, T.A. simply asked that the six-month temporary care and custody order dated March 5, 2018 be extended for a further six months to allow T.A. the opportunity to secure more secure housing. She also asked for access during that extension. As I have noted, no updating information was received from T.A. about any of the protection concerns raised by the Society including the availability of proper housing and no access was exercised by T.A. despite access having been provided for in the March 5, 2018 order.

[25] Based on the facts to which I have referred, the absence of evidence from T.A. and the evidence contained in the affidavits filed by the Society, I have determined that this is a proper case for summary judgment in that there is no genuine issue requiring a trial. There are really no facts about which oral evidence is required in order to make a proper determination. All the facts necessary for this court to make a fair and meaningful decision are available in the affidavits filed. As such, the Society has met its onus of satisfying the court that there is no genuine issue requiring a trial.

Is it in the children’s best interest to be placed in the extended care and custody of the Society, without access, for the purpose of adoption?

[26] The March 5, 2018 order of Society Wardship for six months relied on the same protection concerns that are listed above, setting out the Society’s position.

[27] Based on the sworn affidavits filed, all those concerns continue to apply. There have been no changes which ameliorate them. For example, T.A. has not interacted in any significant way with the Society. She is not taking any course of action to deal with apparent mental health issues that resulted in verbally aggressive outbursts in front of the children. She has not engaged in any parenting or counseling programs. She has denied substance abuse despite evidence to the contrary. She has taken no steps to minimize issues around her ability to care for the children or her premises and there is no evidence of secure and appropriate housing being available for the children. She has not demonstrated her commitment to the children by exercising access to them on even a single occasion since September 2017, which is a period of about 20 months.

[28] In contrast to the lack of progress by T.A., the children appear to have made substantial gains in their development while in foster care. Developmental concerns have been evident regarding G.D., as noted by both her foster parents and school staff. Medical opinion suggests the lack of proper parenting on the part of T.A. as an underlying cause but also notes improvements. As to J.D., he demonstrates no ongoing medical or developmental concerns and has benefited from an in-home tutor as to certain educational deficits. The children have expressed concerns about when they are going to be adopted and moved to a permanent home.

[29] The assigned adoption worker opines that the children need permanence and stability which would be offered through adoption and that terminating the possibility of access would help the children open up to new parenting relationships. A significant number of potential adoptive families are known to the Society. Conversely, a continuing access order would significantly limit the pool of potential adoptive families.

[30] This court recognizes that the order requested by the Society is the most intrusive one possible on an existing family relationship. It will permanently sever any ties between T.A. and the children, and send the children in the direction of a new, permanent relationship with adoptive parents.

[31] In this case, based on the protection concerns raised by the Society to which I have referred, the actions of T.A., and the circumstances of the children both at and following apprehension in August 2017, I have no doubt that a less intrusive order than that requested by the Society is inappropriate when considering the best interest of the children.

[32] I see no evidence from T.A. to the effect that the possibility of her continuing to exercise access would be in the best interest of the children in that it would be meaningful and beneficial to them. I accept the evidence of the adoption worker that an order including the possibility of access would impair the ability of the children to be placed with an appropriate adoptive family. As such, T.A. has not satisfied her onus of demonstrating that access would be in the best interest of the children.

[33] Leaving aside the duration of prior Society involvements, T.A. has had at least the time since apprehension on April 3, 2017 to take steps in response to the Society’s protection concerns. She has failed to do so. There is no reason to think that the situation will change if more time is permitted.

[34] I agree with the Society that, in keeping with the provisions of s-s. 74(3) of the Act, the best interest of the children will be satisfied by making an order that will allow permanency through Extended Society Care without access for the purpose of adoption. There will be an order accordingly.

Reid J. Released: April 23, 2019