CAS Niagara v. M.T., CITATION: 2019 ONSC 6842
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.
AVIS
Il s'agit d'un cas en vertu de la Loi de 2017 sur les services à l'enfance, à la jeunesse et à la famille et sous réserve des paragraphes 87(8) et 87(9) de la Loi. Ces paragraphes et le paragraphe 142(3) de la Loi de 2017 sur l'enfance, la jeunesse et les services, qui traitent des conséquences de la non-conformité, se lisent comme suit:
87(8) Interdiction : identification d’un enfant — Nul ne doit publier, ni rendre publics des renseignements ayant pour effet d’identifier un enfant qui témoigne, qui participe à une audience ou qui fait l’objet d’une instance, ou un parent ou un parent de famille d’accueil de cet enfant ou un membre de la famille de cet enfant.
(9) Interdiction : identification d’une personne accusée — Le tribunal peut rendre une ordonnance interdisant la publication de renseignements ayant pour effet d’identifier une personne accusée d’une infraction à la présente partie.
142(3) Infraction : publication — Quiconque contrevient au paragraphe 87(8) ou 134(11) (publication de renseignements identificatoires) ou à une ordonnance de non-publication rendue en vertu de l’alinéa 87(7) c) ou du paragraphe 87(9) et l’administrateur, le dirigeant ou l’employé d’une personne morale qui autorise ou permet cette contravention ou y participe sont coupables d’une infraction et passibles, sur déclaration de culpabilité, d’une amende d’au plus 10 000 $ et d’un emprisonnement d’au plus trois ans, ou d’une seule de ces peines.
CAS Niagara v. M.T., CITATION: 2019 ONSC 6842
COURT FILE NO.: FO195/18
DATE: 2019-11-27
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Children’s Aid Society of Niagara Region, Applicant
AND: M.T., M.M., J.B. and D.B., Respondents
BEFORE: Mr Justice Ramsay
COUNSEL: Ciara McCaffrey for the Applicant; M.T. in person; Edwin Paget for M.M.; Ashley Gibson for the child E.
HEARD: November 26, 2019 at Welland
ENDORSEMENT
[1] The Respondent M.T. is the mother of two children: A. born in 2010 and E. born in 2017. In the present Application, a final order has been made under s.102 of the Child, Youth and Family Services Act giving custody of A. to the Respondent J.B., a previous partner of M.T. with access to M.T. in J.B.’s discretion. A.’s father, D.B., has not participated.
[2] The Respondent M.M. is the father of E. and a little boy born in 2015. A final order was made in 2017 under the predecessor legislation making the boy a ward of the Crown without access for the purpose of adoption.
[3] Today’s proceedings involve E., a little girl just turned 4, whose mother is M.M. and father is M.T. The Society moves for summary judgment granting an order placing E. in the Society’s extended care without access for the purpose of adoption. E. was found to be in need of protection on October 4, 2019.
[4] Both of E.’s parents, M.T. and M.M., oppose the motion. M.T.’s plan of care would have the child returned to her, on terms if necessary, with no access by M.M. M.M.’s plan would have the child reside with M.M.’s mother and her partner, on such terms as the court deems necessary, including a term that he move out of his parents’ residence.
[5] E. has been in care for 18 months. She and A. were removed in May 2018. The Society had been working with the parents since 2017. By May 2018, the parents had not used any resources to help with the conflict in their relationship, the father’s mental instability and drug use and the mother’s inability to recognize the manifest protection concerns.
[6] The Respondent father had significant domestic violence issues with his previous partner, the mother of his son. On learning about the new relationship with M.T. in 2017, and that she had a child (A.), the Society spoke to M.T. and M.M. about its concerns. At that point, M.M. had started but discontinued the Caring Dads programme. He was in trouble with the law for assaulting someone “who was trying to sleep with my baby mama.” The daughter A. told the worker in private that M.M. and M.T. argued a lot. M.T. did not seem concerned.
[7] M.T. did not attend a suggested subsequent meeting. A. told her school principal that her mother and M.M. were arguing all the time and M.M. knocked over a table. She was happy to be at school.
[8] By October of 2017 M.M. had relapsed into drug use and was on methadone. M.M. was showing signs of controlling behaviour. The Society worker explained this phenomenon to M.T. but she did not agree.
[9] E. was born in November 2017. The parents took care of her with the paternal grandmother’s help. The couple asked the grandmother to move out in by January of 2018.
[10] In January 2018 M.T. got into an argument with M.M. over his asking an intravenous drug user friend to stay in the apartment. According to M.T., M.M. spat at M.T. and she broke a plate over his head while he was holding E. M.M.’s version is that he was high on crystal meth and M.T. was drunk and he does not remember the rest. M.T. left.
[11] After the separation M.M. threatened M.T., as he admitted to the worker, although he said he did not mean it, which the worker and the police accepted.
[12] By February 2018 M.M. was telling the Society that he was overwhelmed. He was also making paranoid utterances.
[13] M.T. confirms ongoing abuse in her affidavit. But in March 2018 she was staying overnight with M.M. The drug screen in March 2018 showed that M.M. was positive for methadone and benzodiazepines.
[14] In May 2018 M.M. became belligerent with the Society’s staff. They could no longer work with the family. They removed E. and A. A. went to live with her father. E. went into care.
[15] I find the history of the litigation instructive. The Respondents M.T. and M.M. got back together. They had separated again by July of 2018. In October 2018 the parents were together. Both parents’ exercise of access became inconsistent to the point that visits were suspended in January 2019. They finally separated in March 2019. In August of 2019 M.T. told the Society that she would pursue programmes that would help her to become capable of fulfilling her responsibilities as a mother, but she did not. In the summer of 2019, the father spent a few months in prison.
[16] The father did not exercise access again until September 2019. The mother did not exercise access again until October 2019. The father suggested a placement of E. with his parents. He and his parents missed three scheduled meetings with the Society to consider such a placement and did not re-schedule. One of the meetings was missed because of a death in the family. The others need not have been missed, or could have been rescheduled, if the father and his parents had made a reasonable effort to do so.
[17] The Society brought the present motion returnable October 10, 2019, by which time the mother had been noted in default. The motion was adjourned at the request of the parents and the mother’s notation in default was later set aside with the Society’s consent.
Summary judgment
[18] The Court of Appeal sets out the proper approach to summary judgment in child proceedings in Kawartha-Haliburton Children's Aid Society v M.W., 2019 ONCA 316, para. 80. The relevant portions for present purposes are as follows:
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 caution and apply the objectives of the CYFSA including the best interests of the child.
The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
[19] The cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context. As set out in Hryniak, "[t]here 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." But the test must still be applied in context and sensitive to the particularly high stakes and Charter rights of parents and children implicated in child protection cases: L.M. v Children's Aid Society of the Region of Peel, 2019 ONCA 841. See also CAS Niagara v. B.P., 2018 ONSC 4371 (Pazaratz J.).
Extended care
[20] The father’s plan of care recognizes that he cannot take care of this child. His plan calls for his parents, in their early ‘60s, to raise the child, with him out of the house if necessary. The suitability of his parents is unknown because they did not submit to the Society’s process for approval. All I know is that M.M.’s upbringing was unsuccessful. At 30 he is still dependent and unaccomplished.
[21] The mother’s plan of care sounds ideal on its face. She will work full-time, and with the help of friends and her mother will spend as much time as she can with the child and love her and so on. But the plan does not withstand scrutiny in the context of all the evidence. First, it is too late. Instead of making use of the resources suggested to her by the Society to learn how to protect her children from an abusive and drug addicted father or father figure, the mother spent the first year of these proceedings trying to maintain her relationship with him. During this time, she did not bother to visit the child for the better part of a year. Meanwhile the child grew another year older. The Respondent mother had no time for her daughter when the child needed her. Now that she is alone, she wants her to resume the relationship. She says that she will submit to Society supervision, but for two years she has done what she could to avoid accountability. It is not hard to see from the mother’s own words that her motivation is to satisfy her own needs. When I look at the mother’s plan of care and affidavit together with all the evidence, the plan looks like a childish fantasy.
[22] In the mean time, the child has grown. The child needs a stable upbringing. She has learned love, trust and attachment while in care. She needs to grieve the impending loss of her foster parents and re-attach to adoptive parents. She most emphatically does not need to go back to a mother who has twice demonstrated her inability to raise a healthy and safe child.
[23] There is no genuine issue that requires a trial. The evidence before me, without resort to the additional powers conferred by Rule 16, establishes that it is in the child’s best interest to make an order for extended care without access for adoption. Less disruptive alternatives are not realistically available.
Access
[24] Access by M.M. or M.T. would not be in the child’s best interest. In the circumstances that I have outlined, there is no significant benefit to the child in resuming her relationship with her parents. At the same time, according to the evidence, it would reduce the pool of available adoptive parents. So not only would it not be advantageous, it would be disadvantageous.
[25] E. through counsel for the Office of the Children’s Lawyer asks that access be granted to her half-sister, A. A.’s custodial parent, J.B., agrees, as does the Society.
Order
[26] I order under s. 101 of the Child, Youth and Family Services Act that E., a child in need of protection, be placed in extended society care for the purpose of adoption, without access by either of her parents. A. shall have access to the child in the discretion of the Society and, during A.’s minority, under the supervision of A.’s custodial parent. I specify under s. 104(7) of the Act that A. is a person who has been granted access and that E. is a person with respect to whom access has been granted.
[27] There will be no order as to costs.
J.A. Ramsay J.
Date: 2019-11-27