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.

CAS Niagara v. S., [CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): 2020 ONSC 5116

COURT FILE NO.: 490/13

DATE: 2020-08-27

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Children’s Aid Society of the Niagara Region

AND: S., Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Paul Heinen for the Applicant; Christopher Young for the Respondent; Claude Leduc for the children

HEARD: August 27, 2020 at Welland

ENDORSEMENT

[1] The Society moves for summary judgment in its Application under s.81 of the Child, Youth and Family Services Act, 2017. The Respondent is the mother of the two children in question. Their father has been noted in default.

[2] The Society wants an order for extended care of both children for adoption, with access to each other but no one else. The children, through their lawyer, support the Society’s position. The Respondent wants the children returned to her care, or in the alternative to the care of the couple who share her apartment. The husband of that couple has not had a police record check done because of the expense. The Respondent expects the Society to cover that cost, although she is working. Money has been a theme of her complaints with the Society. She has expressed frustration that they have done her out of her child tax benefit. She has just now also suggested a grown half-sister, H., as a possibility for placement.

[3] 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: LM v Children's Aid Society of the Region of Peel, 2019 ONCA 841, per Jamal J.A. at paragraph 52.

[4] The Respondent has a previous history with the Society involving excessive discipline and lack of ability to modulate her anger.

[5] Also, the children’s father, who was the stepfather of an older half-sister, committed a serious sexual assault on the half-sister in 2013. The Respondent did not support the child at the time but took the offender’s side. Only when he went to prison did the Society agree to return the children to the mother.

[6] The children in question in the present Application are N., now 11 and K., now 8. They were removed from their mother’s care on June 22, 2018 when the Respondent grabbed K. by the arm and threw her onto the ground. K. was examined and found to be covered in bruises and scratches. The Respondent deposes that K. is a tomboy and that she used to get marked up from childish misadventure. She is contradicted convincingly by Dr Baird at CAAP. Her marks were not the sort of injuries a child gets in normal play.

[7] The children were placed with their maternal grandparents. That placement broke down and the children were placed in the care of the Society in November 2018. A final order making the preliminary findings and the finding that the children were in need of protection was made on consent on December 4, 2018. The children were placed into the care of the Society for six months.

[8] In May of 2019 the Society brought this Application for status review, seeking extended care. The Respondent has not exercised much access since then. Her usual excuse was her work schedule. The Society set up access times on weekends at additional expense to itself, and the Respondent has missed the appointments. She also expects the Society to provide transportation for her grown daughter, the children’s half-sister, to exercise access.

[9] Since the apprehension the Respondent has not followed through on programming or shown any insight into the Society’s concerns. She has shown scant interest in the children as children. Tellingly, K. sent her mother and half-sister R. a letter with a small bracelet and neither one replied. When asked why not, the mother told the Society worker that she was too busy with work and R. was too busy with her typical teenage pursuits. Even then, neither one ever did reply.

[10] The children both have special needs related to their mental health. In two separate foster homes they are doing well. There was no single foster home that could deal with the children’s different needs adequately. Their needs are being managed and the foster parents are seeing to it that the children get to visit each other regularly. They are doing well in school, one with an IEP and one without. The children speak of their sister R., but not of H. or S.. They do not ask about their mother any more. The children’s lawyer supports the Society’s motion and asks that the children be given access to each other at least six times a year.

[11] It is submitted on behalf of the mother that there are four issues that require a trial:

A. whether the children should be returned to her care;

B. whether placement with the couple who share her house would be appropriate;

C. whether the children could be placed with their half-sister H.; and

D. if the answer to the above is in the negative, should the mother be given access.

[12] On the evidence before me it is inevitable that all four questions would be answered in the negative.

[13] These children cannot go home to their mother. She cannot control her temper and she is always angry. That is why she has a history with the Society that goes back before these two children were born. Ultimately, she physically abused K. over at least some period of time. She has done nothing to address her issues and has shown scant interest in the children over the last two years.

[14] The mother’s friend is not a suitable placement. There is no evidence from her before me. The Society investigated her and came to the following conclusions:

The children require a stable and permanent plan and the friend is starting her own new family and has a high needs infant. …

N. and K. both have high needs and the friend does not have knowledge of the needs nor the overall responsibilities of being a parent.

[15] The fact that she lives in the same house as the mother is also a disadvantage in the circumstances. The children do not need to be exposed to a cold, angry mother.

[16] The children do not know H. or have any meaningful relationship with her.

[17] The children have been in care for more than two years. They need permanence. The Society’s adoption team has a number of potential sets of adoptive parents. They will assess them for their ability to deal with the children’s particular needs. Adoption is the children’s only decent prospect for a safe childhood. Intervention through a court order is necessary to protect them in the future and nothing less intrusive than extended care will suffice.

[18] No one looking at the record would think that access to the mother is in the child’s best interest. They need to get over her and attach to their new family. She is a very self-centred person who would only interfere with this process for her own purposes. She has no idea what these children need, nor does she care.

[19] The only half-sibling the children have expressed attachment to is R.. Unfortunately, the feeling is not mutual.

[20] The children will not likely be adopted together. It is in their interest to have access to each other. They continue to value this, the only life-long stable relationship they have ever had.

[21] I order that the children be placed in the extended care of the Society. The only order for access I make is that the children shall have access to each other at least six times a year. For the purposes of s.105(5) of the Act, I specify that N. and K. are persons who have been granted a right of access and that N. and K. are persons with respect to whom access has been granted.

J.A. Ramsay J.

Date: 2020-08-27