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 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 NO.: FC-18-CP119
DATE: 20190920
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF H.B.R., D.O.B.: […], 2018
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
C.R.
Respondent
Lois Boateng Amikah, for the Applicant
Vasu Naik, for the Respondent
HEARD: September 13, 2019
REASONS FOR decision
[1] The Children’s Aid Society of Ottawa (“the Society”) brings a summary judgment motion pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99 (“the rules”) seeking an order that the child, H.B.R., be placed in the Society’s extended care. The mother objects and seeks H.B.R.’s return to her care.
Background Facts
[2] C.R. is H.B.R.’s mother (“the mother”). She gave birth to H.B.R. on […], 2018. The man who is believed to be H.B.R.’s father, J. S., has denied his paternity and refused to undergo a paternity test or to participate in these proceedings. Therefore, for the purpose of s. 90(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”), H.B.R.’s father is unknown, and H.B.R.’s only parent is her mother. H.B.R. is not First Nations, Inuit or Métis. At the time of the commencement of these proceedings, she ordinarily resided in the city of Ottawa, in the province of Ontario.
[3] The Society became involved with the mother prenatally on March 25, 2018 after a referral was made to the Society’s after-hours service by a caller who did not wish to be identified. The caller reported concerns about the mother’s ability to care for a newborn given her significant developmental challenges and mental health difficulties. Concerns were also reported about the alleged father, who was very young and who was believed to have addictions issues, to be involved with the Society and to be residing at a John Howard Society residence in Ottawa.
[4] H.B.R. was brought to a place of safety immediately after her birth. On […], 2018, the mother consented to a temporary without prejudice order placing H.B.R. in the temporary care of the Society, with access at the discretion of the Society but subject to a minimum of two visits per week. H.B.R. has remained in the Society’s care, in the same foster family, since she was brought to a place of safety. At the time of this motion, she had been in the Society’s care for her entire life (326 days). Initially, her mother had access to her, supervised by the Society, twice per week. As of March 2019, her access was reduced to once per week because the frequency of the visits was too overwhelming for her, and she had missed many visits. Since her access was reduced to once per week, the mother’s attendance has been regular and consistent. H.B.R.’s maternal grandmother and aunt have also had ongoing access with H.B.R.
The Legal Framework
[5] Summary judgement motions are brought under Rule 16 of the Family Law Rules and guided by their content:
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[6] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. The judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the new fact-finding powers. If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the new-fact finding powers to decide if a trial is required.
[7] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on 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, at para. 49). The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that he/she can find the necessary facts and apply the relevant legal principles to resolve the dispute” (Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, para. 63).
[8] In a child protection context, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak’s principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).
[9] Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial, the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paras. 64 and 80).
[10] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the Society to show that there is no genuine issue requiring a trial (Children’s Aid Society of Hamilton v. M.N, 2007 CanLII 13503).
[11] Justice A. Pazaratz stated at paragraph 43 of Children’s Aid Society of the Niagara Region v. S.C., (2008), 2008 CanLII 52309 (ON SC), 61 R.F.L. (6th) 328 (Ont. Sup. Ct.): “no genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.”
Analysis
[12] The evidence presented to me in this summary judgement motion is mostly undisputed. As stated above, the mother faces significant medical and developmental challenges, and she struggles with various mental health issues. She has been involved with the Royal Ottawa Hospital, including the Flexible Assertive Community Treatment Team for Persons Dually Diagnosed (“the FACT-DD program”), and the Ottawa Carleton Association for Persons with Developmental Disabilities program (“the OCAPDD program”), for many years. In 2003, she was assessed by the Royal Ottawa Hospital’s Dual Diagnosis Consultation Outreach Team who concluded that the mother had a “moderate level of mental retardation” and that she “performs tasks of self-care and daily living equivalent to a seven-year-old or 13 years below her (then) chronological age.”
[13] The mother is also an outpatient with the Royal Ottawa Hospital and she is followed by a psychiatrist. She is taking numerous prescribed medications for diabetes, epilepsy, anxiety and assorted other mood disorders. It appears that her compliance with taking medication was not good, and as a result, the Royal Ottawa Hospital was delivering some of her medications daily and her intake was monitored to ensure that she actually took it.
[14] The mother significantly struggles around her own self-care. Her personal hygiene was continuously a concern during her supervised visits with H.B.R.; her hair was observed to be unkept and unwashed during visits, and a strong body odor could be noticed during many visits and would often linger in the visit room, as well as the access area, for periods of time following her departure. This continued to be an issue despite Society staff’s ongoing interventions and discussions with the mother about this. Access was interrupted on two occasions in the past 10 months because of the mother having head lice and her apartment being infested with bedbugs. Precautions were required during access visits to ensure that H.B.R., staff and other children were not contaminated.
[15] As early as March 2002, the mother’s parents became her legal guardians for personal care and finances. With the assistance of the FACT-DD program, the mother was able to secure subsidized housing which was conditional upon her agreeing to work with them by seeing them at least three times per week and keeping her unit clean and free of people. A few days before the hearing of this motion, the mother had finally agreed to move into an assisted living facility, something that had been recommended to her for many years, but she had refused to consider until now.
[16] The mother has been working with the OCAPDD for approximately 20 years. This organization provides support to persons with developmental disabilities in every aspect of life whether seeking work opportunities, securing living arrangements or dealing with day-to-day tasks. Throughout her involvement with this organization, the mother has been working with the same worker, namely, Mr. Daniel Roy. Mr. Roy has been supporting the mother with all aspects of her daily living and has been in attendance for several meetings between the mother and Mrs. Kristin Moir, the mother’s child protection worker. Mr. Roy has expressed concerns about the safety and well-being of H.B.R. should she be in the care of the mother, particularly with regards to the mother’s overall capacity to parent an infant given her struggles to care for her own basic needs independently. Mr. Roy also expressed concerns around the mother’s relationship with various partners and her involvement with police services which, in his view, would place H.B.R. at risk of harm if left in the care of her mother.
[17] The mother has had at least three interactions with the Ottawa Police Services in 2019 alone. During the weekend of May 17, the police attended at the mother’s home for reasons unknown to me and the mother was found to be highly agitated and threatening police officers with scissors which required them to draw their weapons on her. They attended during the weekend of May 10 in response to an incident of domestic violence between the mother and her then partner. Police services also attended at the mother’s home on various occasions in 2018 with regards to disturbances at her apartment due to the people that she allowed in.
[18] The mother’s ability to care for her infant child has been the subject of detailed evidence from the two child and youth counsellors who have been responsible to supervise her access with H.B.R. Mr. Pitre, in particular, was the mother’s primary child and youth counsellor and access supervisor from the moment H.B.R. came into the Society’s care until July 2019.
[19] It is important to highlight the many strengths shown by the mother during her supervised visits with H.B.R., which were reported by Mr. Pitre. When attending her visits, the mother normally arrived early and appeared eager to see her daughter. She displayed affection, was verbally engaging and handled her daughter with care. After the mother’s visits were reduced from two visits per week to one visit per week in March 2019, the mother’s attendance was very consistent, and she rarely missed one.
[20] Mr. Pitre reported that because of the mother’s limitations, he had adopted a very hands-on approach throughout his involvement with her, focusing on teaching, role modelling and support. During teachings and role modelling, as well as during meetings, he has attempted to simplify his language and the terms he used as much as possible to try to help the mother understand and learn better. She was provided with laminated step-by-step sheets with pictures to refer to during her visits with H.B.R., explaining and reminding her of how to change a diaper, how to understand H.B.R.’s cues and what to do when certain situations occurred. Mr. Pitre reported that the mother had been very open-minded and receptive to the teachings offered to her during access.
[21] However, despite this hands-on assistance, the mother has continued to significantly struggle with basic parenting skills, such as diaper changes, dressing H.B.R. or reading and responding to her cues (crying, fussing etc.). She has been unable to change H.B.R.’s diaper without assistance, except on three occasions, and when she did, she has required an excessive amount of time to complete the change. Although the items required to prepare H.B.R.’s bottle are sent premeasured, the mother has struggled with properly mixing and preparing the bottles and has forgotten how to do this at times even after having previously accomplished this task in past visits. She has been unable to consistently judge the appropriate temperature for the bottles. She has struggled with burping H.B.R. during and after her bottle and she continues to require direction around where to pat on H.B.R.’s back and how hard to pat. She has struggled with remaining focused on the task when feeding H.B.R. her bottle and was observed to be easily distracted during feeding, failing to notice when the nipple was no longer placed properly in H.B.R.’s mouth. She has been unable to learn how to properly and securely put H.B.R. in her car seat, and how to use the car seat appropriately. The mother has also demonstrated a general inability to be appropriately responsive to H.B.R.’s cues and cries.
[22] In her affidavit in response to the Society’s motion for summary judgement, the mother expresses the view that the Society has never given her a chance to parent H.B.R. She says that she has taken many steps to address the concerns raised by the Society. For instance, she moved into a new home as of March 5, 2019 and she was able to maintain a clean home for the most part. While there were bedbugs in that home as well, she quickly took steps to have the home sprayed. She does not use drugs, despite the Society’s allegations to the contrary, and she is no longer in a relationship with any of the former partners with whom she had conflictual and unhealthy relationships. She says she is doing her best to maintain a good personal hygiene, to build social connections and to use the visual aids provided by society workers to cue herself. She is working cooperatively with her many institutional and non-institutional supports, and she can also count on the support of her extended family to assist her when required.
[23] While the above is not disputed by the Society, and while I have no doubt that the mother loves H.B.R. dearly, the evidence overwhelmingly demonstrates that the mother has not been able to acquire the basic parenting skills necessary to care for an infant. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child. There must be an arguable notion discernable from the parent’s evidence that she faces some better prospects than what existed at the time of the Society’s removal of the child from her care and has developed some new ability as a parent (Children’s Aid Society of Toronto v. R.H. 2000 CanLII 3158. Regrettably, I find that the mother has not demonstrated any improvement in her ability to care for H.B.R. from the moment she was placed in the Society’s care.
[24] In addition to the above, it is important to note that H.B.R. is a child with significant special needs. In June 2019, she was diagnosed with Atrial Spetrial Defecto, meaning that there are two holes on her heart which will require surgery at around three or four years of age. She was also diagnosed with Right Ventricular Dilatation which requires further examination and inquiry, and Dysplastic Pulmonar Valve which is a deformed, thick and fused valve which also requires further examination and monitoring. Her cardiologist advised that these cardiac issues could cause a hard time with sucking, discoloration of her feet and mouth, which could turn blue, lethargy and deep breathing issues. At the time of the motion, it was noted that H.B.R. had only gained 2.5 pounds since April 24, 2019, despite being on a high calorie diet.
[25] In July 2019, H.B.R. was brought to the doctor for her nine-month checkup and was medically diagnosed with “failure to thrive” given her very low weight as she had not gained adequate weight since her six-month checkup. Her lack of weight gain was not easily explained as she is eating well, seems hungry, and keeps down both bottle and solid foods. The doctor reported that while further exploration was needed, the lack of weight gain was likely to do with H.B.R.’s cardiac condition. It was noted by H.B.R.’s doctor that her prematurity and low weight at birth could have masked these developmental lags. Currently, H.B.R. is ten months old and is not standing on her own, pulling up on her own, or sitting on her own. The doctor indicated that this gross motor delay could be a part of Arscogg Scott Syndrome, for which H.B.R. underwent genetic testing on July 5, 2019. The results have not yet been received.
[26] H.B.R. is, therefore, a child with many complicated medical needs. She requires a caregiver who is attentive, organized, able to follow through on all her specialist appointments and recommendations for treatment and able to watch for signs of any delays or impacts her condition may have on her health and well-being. The mother, who has continuously struggled with meeting H.B.R.’s very basic needs during her one hour per week visits, is clearly unable to meet H.B.R.’s special medical and developmental needs.
[27] The undisputed evidence before me makes it clear that the mother is unable to care independently for H.B.R., or to meet her physical, medical and other needs. Even with significant support and assistance, the mother’s ability to care for H.B.R. is minimal.
[28] Based on the evidence before me, I find that H.B.R. is a child in need of protection pursuant to s. 74(2)(b)(i) and (ii) of the CYFSA, and that she is at risk of physical harm if she is returned to her mother’s care. I find that I am able to reach this conclusion based on the evidence before me without the need for a trial, and without the need to use the new-fact finding powers set out in Rule 16.
[29] Similarly, there is no genuine issue requiring a trial to allow me to determine which disposition order is in H.B.R.’s best interests. The mother is H.B.R.’s only parent. The uncontested evidence before me makes it clear that she cannot be safely returned to her mother’s care, not even under a supervision order. Despite the Society’s efforts to locate potential caregivers amongst the mother’s family members and community, no one has come forward to propose a plan of care for this baby. The child has been in the care of the Society for 326 days (as of the date of hearing of this motion), and the statutory timelines set out in the CYFSA have almost been reached. H.B.R.’s need for permanency and stability requires finality in her plan of care. There is simply no possibility that the mother would be able to overcome her significant challenges and to acquire the necessary parenting skills that she needs to care for this young child in the near future, if ever. The only other available option, other than the return of the child to her mother, is an order for extended society care. Not only is this the only available option, I find that the evidence before me overwhelmingly establishes that such an order is in H.B.R.’s best interests, and I find that there is no genuine issue requiring a trial to allow me to come to a conclusion in this regard.
[30] H.B.R. has been in the same foster home since coming into the care of the Society and is described as a content and happy infant. H.B.R.’s foster family is presenting a plan to adopt her if an order for extended society care is granted. According to Ms. Cunningham, the adoption worker employed by the Society, this plan is assessed as a primary option in order to maintain continuity of care for H.B.R. and to avoid attachment disruptions. Should this plan not be successful, it was determined that there were currently three waiting adoptive families who could meet H.B.R.’s very special needs.
Access
[31] The foster family supports H.B.R.’s family connection to the maternal grandmother on a consistent and regular basis. The maternal grandmother has been invited and attended the foster family’s cottage with H.B.R., and the foster family has attended important events involving the maternal grandmother. Both have continued to meet on a weekly basis in the foster family’s home and in the community. It is my understanding that the foster family is prepared to enter into an openness agreement with the mother.
[32] It is not disputed that access between H.B.R. and her mother should be allowed to continue if an order for extended society care is made. What is disputed is the form it should take and the frequency of the visits.
[33] When the court makes an order for extended society care, any order for access with respect to the child is terminated (s. 105(4) of the Act). Subsection 105(5) sets out that in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court may not order access unless it is satisfied that the order would be in the child’s best interests. Subsection 105(6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interest of the child in extended society care. These are:
a) whether the relationship is beneficial and meaningful to the child, and;
b) if the court considers it relevant, whether the ordered access will impair the child’s future opportunities for adoption.
[34] In determining whether access is in the best interests of H.B.R., I am required to look at the factors set out in s. 74(3).
[35] It is difficult, given H.B.R.’s age, to determine whether access to her mother is meaningful and beneficial to her. The evidence suggests that there is a bond between H.B.R. and her mother and maintaining a connection to her only birth parent, so long as it does not interfere with an adoption placement, should be promoted. However, whether or not access will be beneficial to H.B.R. will largely depend on the mother’s emotional response to this decision.
[36] The court must also consider whether ordered access will impair the children’s future opportunities for adoption. The case law has recognized that persons who hold certain attributes may be more likely to impair a child’s opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child when a parent holds a right of access (Children’s Aid Society of Toronto v. A.F., 2015 ONCJ 678).
[37] In light of my decision and given the mother’s developmental delays and mental health challenges, her reaction and behavior in future access visits with H.B.R. may prove difficult (or not). The mother has a history of aggression and can be difficult to deal with. This has played a role in the mother’s family members’ decision not to present a plan to care for H.B.R. These attributes may threaten the security and success of an adoption placement. The mother’s ability to accept a reduced role in H.B.R.’s life may also result in an inability for her to support and foster H.B.R.’s relationship with her adoptive family as she grows up.
[38] For those reasons, I find that it would not be in H.B.R.’s best interests to impose strict parameters around her access to her mother. In my view, access should be left at the discretion of the Society who will be able to make decisions in H.B.R.’s best interests with the input of the foster parents and the professionals who are working with H.B.R. and supporting her. For those same reasons, I find that H.B.R. should be the access holder for the purpose of s. 105(7)(a) of the Act, and the mother should be the recipient of access for the purposes of s. 105(7)(b) of the Act.
Madam Justice Julie Audet
Released: September 20, 2019
COURT FILE NO.: FC-18-CP119
DATE: 20190920
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF H.B.R., D.O.B.: […], 2018
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
C.R.
Respondent
REASONS FOR decision
Audet J.
Released: September 20, 2019