WARNING
This case is governed by the Child, Youth and Family Services Act, 2017 which provides:
87 (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.
142 (3) 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.: FC152/19 DATE: 2020-08-11
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Children’s Aid Society of Niagara Region, Applicant AND: M.P., Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Ciara McCaffrey for the Applicant; Edwin W. Paget for the Respondent
HEARD: August 10, 2020 at Welland
ENDORSEMENT
[1] The Society moves for summary judgment on its Application under s.81 of the Child, Youth and Family Services Act, 2017 for an order placing the child in extended care without access. I made the preliminary findings required by s.90(2) of the Act séance tenante. They are recorded in a separate endorsement. The child is not a First Nations, Inuk or Metis person.
[2] The Respondent is the child’s mother. I have no information about the identity of the child’s father. The mother’s boyfriend proved not to be the father after DNA testing was conducted. On November 15, 2019 Gregson J. found on consent that no person meets the definition of father under s. 74(1) of the Act.
[3] The child’s mother has two older children, now 16 and 13 years old. They were removed from her care twice, the first time for failure to comply with her methadone treatment, domestic conflict, her inadequate response to her partner’s drug abuse and insufficient supervision of the children, and the second time because she was in prison. In 2017 the mother’s sister and brother-in-law were given custody of them under the predecessor of s.102 of the Act.
[4] In May of 2019 the Society received information from the mother’s cousin that the mother was pregnant. The Society attempted unsuccessfully to locate and communicate with the mother to arrange pre-natal planning. The mother admits that she used cocaine before learning, at five months, that she was pregnant. She also admits that she avoided pre-natal care because she feared that the child would be removed from her.
[5] On June 14, 2019 the mother was taken to St Catharines General Hospital by ambulance because she was in early labour. On June 17 the mother was still 2 cm dilated, but labour had not progressed. The mother checked out of the hospital against medical advice. On June 18 the mother spoke to the Society worker by telephone and advised that she had to stay home to give her dog medicine for upcoming surgery. She declined to meet the worker that day but said she would meet her at the hospital the next day. The worker tried to contact her unsuccessfully until June 20 and then put out an alert to all Ontario hospitals.
[6] On June 21, 2019 the mother gave birth by Caesarian section to the child, who weighed 4 lb 7 oz and appeared to be of 33 weeks gestational age. The child was removed to a place of safety under warrant and subsequently placed temporarily into the care of the Society.
[7] Shortly after the child’s birth the mother told the Society that her present residence is not suitable because of neighbours who use drugs and because of the presence of black mould. Since then she has not allowed the worker to see her residence. In her affidavit of July 14, 2020, she said that she will have to move out on June 30, 2020 (two weeks before the affidavit was sworn), so it is not clear where she lives. Neither the Society nor her lawyer knows where she is living.
[8] The mother has not taken advantage of any services offered by the Society since the proceedings began.
[9] The Society spoke to the mother about her drug use on July 2, 2019. She admitted that she had used drugs and said that her mother did not know and would be disappointed in her.
[10] On September 10, 2019 the mother told the Society worker that she did not think that addiction services were necessary. She said she only used occasionally.
[11] The mother’s attendance at access visits became infrequent in October 2019. In her affidavit, she blames others for all of her missed visits, but I think it an implausible coincidence that she had all these different problems for all these different reasons. In March 2020 the mother made both of her scheduled visits, but she nodded off during both of them. She explains that this was because she was tired. During the March 12 visit the mother fell asleep feeding the child. Her cousin was brought into the room to assist. The mother fell asleep while talking to her cousin. She fell asleep a third time while bouncing the child on her lap. Her level of sleepiness was not consistent with mere tiredness.
[12] Thereafter access was virtual because of the pandemic. The mother did not follow through, so the Society kept her apprised of the child’s progress with photographs.
[13] There are advertisements on line that advertise the mother’s services as an escort. The mother says that she is not doing that sort of work. She thinks the heroin addict upstairs must be posting the ads and that he must have got pictures of her by stealing her phone. I find that implausible. Taking this unlikely explanation with the existence of the advertisements and the absence of any known father for the child, I infer that the mother is working in the sex trade.
[14] On January 6, 2020 the mother told the Society worker that she had broken up with her partner because he was using heroin. On January 16, 2020 the police were involved when the partner assaulted the mother.
[15] The Society’s plan is to place the child for adoption. The mother’s plan is to take care of the child herself. No kinship plans have been presented.
[16] Rule 16(1) of the Family Law Rules provides that after the respondent has served an answer or the time for serving an answer has passed, a party may make a motion for summary judgment for a final order without a trial. Such a motion may be made in a child protection case: Rule 16(2). If there is no genuine issue requiring a trial, the court shall make a final order accordingly: Rule 16(6).
[17] The powers of the court given by Rule 16 (6.1) and (6.2) are governed by the same principles as their counterpart in Rule 20 of the Rules of Civil Procedure. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits. This will be the case when the process allows the judge to make the necessary findings of fact; allows the judge to apply the law to the facts; and is a proportionate, more expeditious and less expensive means to achieve a just result.
[18] When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. Similarly, a process that does not give a judge confidence in his or her conclusions can never be the proportionate way to resolve a dispute: Hryniak v. Mauldin, 2015 SCC 7.
[19] In child protection cases, it is consistent with justice and the best interests of children to exercise this jurisdiction with caution: Kawartha-Haliburton Children's Aid Society v MW, 2019 ONCA 316. In LM v Children's Aid Society of the Region of Peel, 2019 ONCA 841, Jamal J.A. said:
49 This court in Kawartha, at para. 80, summarized the approach to summary judgment in child protection proceedings 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.
- The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.
50 Kawartha clearly recognized that summary judgment may be appropriate in the child protection context. Respectfully, I therefore do not agree with the Manitoba Court of Appeal's recent comment that, "[i]mplicit in Kawartha-Haliburton is the view, expressed as a caution, that even with a proper initial assessment, the summary judgment process cannot ensure a fair and just determination in a prompt and proportionate manner": Dakota Ojibway Child and Family Services v. MBH, 2019 MBCA 91, at para. 146. Instead, 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.
51 In my view, both provinces' appellate courts agree that, as the Manitoba court also stated in that case, "[w]hile summary judgment is available for child protection proceedings, it is not appropriate in all cases": para. 155. Thus, in some child protection cases, summary judgment can ensure a fair and just determination in a prompt and proportionate manner, while in other cases it cannot do so. Each case must be decided based on the issues and evidence presented. As noted in Hryniak, at para. 59: "[w]hat is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure."
52 Moreover, the summary judgment test applied in child protection cases remains the same as in other cases. As set out in Hryniak, at para. 49: "[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.
[20] The evidence that I have summarized in this endorsement is drawn from the affidavits of the Society workers and the mother, all of whom have first-hand knowledge. I have not relied on hearsay statements about the mother’s conduct from her cousin and neighbours, all of which the mother denies. I consider the reports of nurses as to the mother’s comings and goings at the hospital and the procedures that took place to be credible and trustworthy. They are documented by professionals and are not controversial in any event. I also consider the observations of the workers and what they say the mother actually did and said. In some instances, I reject the mother’s explanations for undisputed underlying facts and draw my own inferences.
[21] The following facts are not in dispute or are proven on the existing record:
- The mother has a history of inadequate care of her older children;
- The mother used drugs when she was pregnant, knowing at least that she could be pregnant, and she did not seek pre-natal care in order to defeat the child protection process. She left the hospital against medical advice when she was in labour several weeks early;
- The mother has a history of drug abuse and admits recent, if infrequent, use of cocaine but is not undertaking any treatment or programmes.
- As recently as March, the mother showed symptoms of drowsiness that in context are highly suggestive of drug use.
- The mother did not prioritize access from October 2019 to March 2020. In March 2020 she showed signs of drug use.
- The mother’s accommodations are unsuitable for raising a child.
- The mother is likely involved in the sex trade in a fashion that imparts risk to her safety.
[22] In these circumstances there is no genuine issue that requires a trial. I do not need to decide whether the cousin’s and neighbours’ serious allegations are true or not. Based only on the basic objective facts and some inferences that are readily drawn therefrom it is obvious that this mother cannot provide this child’s minimum needs for a safe and happy upbringing. She is not even that interested. She has had a year to make some obvious changes or at least take advantage of some free services, and she has not done so. The child is in need of protection because there is a risk that he is likely to suffer physical harm resulting from his mother’s failure to care for him adequately and her pattern of neglect in caring for him within the meaning of s.72(2)(b) of the Act. No order less intrusive than the one sought would adequately protect him. That order will terminate the mother’s access: s.105(4). I cannot make an order for access unless I am satisfied that it would be in the child’s best interest: s.105(5). Both factors set out in s.105(6) need to be considered.
[23] This child has been in interim care for a little more than a year, which is his whole life. He has had little contact with his mother and none with his half-siblings. He needs a permanent home. According to the adoption worker’s evidence, he has very good prospects of being adopted. He is generally healthy, albeit with a few developmental delays due to exposure to drugs in utero. He needs to bond to adoptive parents without interference. Nothing in the evidence gives reason to think that access by her would be of any benefit to him or would hold any meaning. Nothing else in the evidence suggests that access would be in the child’s best interest. I am not satisfied that access by the mother would be in the child’s best interest. Au contraire.
[24] Summary judgment is given to the Applicant. The child is placed in the extended care of the Society, with no order for access by any person.
J.A. Ramsay J. Date: 2020-08-11