COURT FILE NO.: FC135/19
DATE: 2020/10/02
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.
COURT FILE NO.: FC135/19
DATE: 2020/10/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the Niagara Region
Paul Heinen, for the Applicant
Applicant
- and -
A.D. K.T.
Edwin Paget for the Respondent, A.D. Self represented
Respondents
HEARD BY TELECONFERENCE at Welland, Ontario: September 14, 2020
The Honourable Justice M.A. Kril
REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION
The Order Sought:
[1] The Children’s Aid Society of the Niagara Region (hereafter “the Society”) has brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules.
[2] The Society seeks an order pursuant to s.74 (2)(b)(i) of the Child, Youth and Family Services Act (“CYFSA”) finding the child in need of protection on the basis that there is a risk that she is likely to suffer physical harm inflicted by the person having charge of her or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child.
[3] The Society seeks an order placing the child in its extended care pursuant to s.101(1) of the CYFSA for the purposes of adoption.
[4] It asks that the court make no order for access in accordance with s. 105(5) and (6) of the CYFSA.
Positions of the Parties:
[5] The Respondent father has filed a signed Consent to the order being sought by the Society.
[6] The Respondent mother has not filed Answers to either the original or amended Applications. She did not file responding material to the within motion for summary judgment. She did attend the virtual hearing and made oral submissions. She did not propose that the child be returned to her care.
Order Made:
[7] For reasons which follow this court finds as follows:
The child’s name and date of birth are: (redacted);
The child is not a First Nations, Inuk or Metis child; and
The child was brought to a place of safety on June 20, 2019 at the City of Niagara Falls, Ontario.
[8] This court finds that the child is a child in need of protection pursuant to section 74(2)(b)(i) of the CYFSA.
[9] This court orders that the child shall be placed in the extended care of the Society for the purposes of adoption, without access.
The Facts:
[10] The Respondents to this motion are A.D. and K.T. Mr. D. and Ms. T. are the biological parents of the child (redacted) who is the subject of this proceeding. The parents are not residing together at this time.
[11] This protection application was commenced on June 25, 2019 and the child was placed in the care of the Society. She has now been in care for over 470 days.
[12] Both Respondents have a history of involvement with the Society with respect to their children from prior relationships.
[13] Mr. D’s two children from a prior relationship, (redacted), were taken into care and are now in the custody of their maternal aunt. Mr. D. has access. The verified protection concerns with respect to these children were chronic neglect, marginal parenting, suspected drug use and adult conflict. The extent of the neglect and lack of supervision of the children was extreme. Their living conditions were deplorable. No positive improvement was noted with the parents over time and services were not completed. The children’s placement with the maternal aunt was made on consent.
[14] The Society was involved with Ms. T. on several occasions between 2009 and 2014 with respect to her son (redacted). Protection concerns were limited parenting skills, drug use and lack of stable housing. Ms. T. was working voluntarily with the Society when her son passed away from sudden infant death due to epilepsy.
[15] The Society became involved with the Respondents with respect to their parenting of the child in December of 2018. The police responded to a domestic disturbance call. The Respondents were arguing over the child. The Respondent mother alleged that the Respondent father had been physically and sexually abusive of her on a number of occasions. She wished to leave the relationship and to take the child with her. The Respondent father denied the abuse allegations. He refused to permit the child to leave alleging that the mother was a drug user, often absent and that he was the child’s primary caregiver. The Respondent mother left the home and contacted the Society.
[16] The Society attempted to safety plan with the parents advising that they were not to be together during access to the child unless supervised by a third party. The parties were not compliant with the safety plan and it became evident over time that there were numerous instances when the parents were together when the child was present. On at least one of these occasions the Respondent father’s older children were present and confirmed that they had been witness to adult conflict.
[17] The Respondent father was charged with assault on the Respondent mother and her friend in December of 2019. There is currently a no contact order in place. The matter is still before the court. Despite this history, the Respondent mother submitted at the hearing that there remained the potential for the parties to reconcile so that they could be a family once again.
[18] Once the Society became involved it was determined that the child was seriously behind in her vaccination schedule. Although this was communicated to the Respondent father and the concern raised on several occasions it was many more months before the Respondent had made the necessary arrangements and the child was back on schedule.
[19] On June 20, 2019 the Society worker attended at the Respondent’s home unannounced. She found the house to be dirty. There was very little food in the home. She could see evidence that safe sleep practices were not being observed. She cautioned the father about continuing to smoke in the apartment. The father acknowledged that he had used drugs the day before after dropping the child off at daycare. He said that he was feeling overwhelmed and was having difficulty coping. The child was taken to a place of safety later that day.
[20] The Respondent mother openly acknowledged her ongoing substance abuse (cocaine and crystal meth) to a number of the Society’s workers. The Respondent mother was observed with open sores and scabs on her face, arms, legs and abdomen by Society staff when she attended at the Society’s office for access visits. On one occasion she apparently left drug paraphernalia in the Society bathroom after an access visit. A child found the box and turned it in to her worker along with bus tickets. The Society retains records of the bus tickets that they issue and are able to match the tickets up with the holder. The Respondent mother later confirmed that she had lost her drug kit but thought that she had done so on a city bus. The Respondent mother’s physical presentation at the virtual hearing was concerning. She openly acknowledged in her remarks to the court that she continues to use drugs and named Fentanyl specifically. She did not propose that the child be returned to her care and acknowledged that she was not in a position to parent her at this time.
[21] The Respondent father generally denied regular substance abuse when questioned by Society workers. He provided a urine sample at the Society’s request. The sample tested positive for amphetamines and cannabinoids. The Respondent father denied using crystal meth but said that he had been exposed to it when he entered a room in which the Respondent mother was using. Although he did provide a couple of clean urine tests to the Society he then refused to participate in further random testing. He subsequently did confirm his use of drugs to Society workers shortly before the child was taken into care. He also confirmed at the virtual hearing that he had recently used drugs.
[22] Both parents’ access visits at the Society were supervised. The Respondent father fell asleep at an unsupervised visit which resulted in previously unsupervised visits becoming supervised.
[23] The Respondent mother missed and was late for many scheduled access visits. Her behaviour when she did attend was often concerning. She was observed falling asleep during visits, slurring her words, losing her balance easily, failing to engage with the child, engaging inappropriately, leaving the child unsupervised (once on the playground outside), spending her visit texting and phoning others rather than focusing on the child, sliding off of a couch and stumbling with the child in her arms. She sometimes showed up clearly under the influence of some substance resulting in the visit being cancelled.
[24] There is no evidence that the Respondent mother has participated in any type of drug rehabilitation programming or counseling despite Society referrals. The Respondent father’s efforts are extremely limited. He has apparently only recently attended three therapy sessions through the Caring Dad’s program.
[25] Despite the child now being in care for well over one year, the Respondent mother is yet to secure stable housing.
[26] Since being taken to a place of safety, the child has been in three different placements. The foster home that she has been in since January of this year is not able to provide her with permanency. She is described as a beautiful, sweet and loving toddler that connects easily with others. She is healthy and generally meeting her milestones but is experiencing some delays with speech and language.
The Law:
Summary Judgment:
[27] Rule 16 of the Family Law Rules permits a party to bring a motion for summary judgment for a final order without a trial on all or part of any claim made once the Respondent has served an Answer or the time for serving an Answer has expired (see Rule 16(1) of the Family Law Rules). Rule 16(2) expressly permits the bringing of a summary judgment motion in child protection cases.
[28] The moving party bears the burden of proof to lead evidence that shows that there is no genuine issue requiring a trial (see Rule 16(4)). In turn, the responding party cannot rest on mere allegations or denials but must lead evidence showing that there is a genuine issue for trial (see Rule 14(4.1)). If there is no genuine issue requiring a trial, the Rules provide that the court shall make an order accordingly (see Rule 16(6)).
[29] To succeed on a summary judgment motion, an applicant must prove there is no genuine issue requiring a trial on a balance of probabilities. “No genuine issue for trial” has been equated with “no chance of success”, “when the outcome is a foregone conclusion”, “plain and obvious that the action cannot succeed” and “where there is no realistic possibility of an outcome other than that sought by the applicant.” (See Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 71 citing Children’s Aid Society of Toronto v. W. (C.J.), 2017 ONCJ 212 (Ont. C.J.), at paras. 66-67)
[30] 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 (See Hyrniak v. Mauldin, 2014 SCC 7 (S.C.C.) at paragraph 49).
[31] The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[32] Hyrniak outlined a two-step process for reaching a fair and just determination on the merits:
(a) First, the motions judge should take a liberal approach only on the evidence before her, without using the new fact-finding powers under the second part of this test. If the summary judgment process provides the motions judge with the evidence required to justly determine the motion, it will be held that there is no genuine issue requiring a trial; and
(b) Second, if there appears to be a genuine issue requiring a trial, the motions judge is entitled, at her discretion, to weigh evidence, evaluate credibility, and draw reasonable inferences, in order to determine if the need for a trial can be avoided by using these new tools to come to a fair and just result (See Philion v. Philion, 2015 ONSC 4255).
[33] Courts have stressed the need to take an exceptionally cautious approach in granting summary judgment in child protection proceedings. The court must consider the objectives of the CYFSA including the best interests of the child (See Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at paras. 64 and 80).
[34] This cautious approach is informed by the serious interests at stake and the Charter rights of vulnerable children and litigants (See L.M. v. Peel Children’s Aid Society, 2019 ONCA 841 at paras. 50 to 52). Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well (See Kawartha at para 66 citing New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.) at para 76.
[35] Courts must be especially mindful of the reality and material circumstances of those subject to child protection proceedings. The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system. Judicial assistance must be provided to self-represented litigants (See Kawartha at paras. 68 and 80).
[36] The court has an obligation to carefully assess the evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (See Kawartha at para. 78)
[37] The absence or deficiency of responding material is not sufficient to grant summary judgment by default. The court must still ensure that the evidence submitted by the party seeking summary judgment is sufficiently comprehensive and persuasive to ensure that the court can do justice to the resolution of the issue; and to ensure that the best interests of the child are advanced (See Simpson v. Cuff, 2019 ONSC 2856).
Finding that Child is in Need of Protection:
[38] The paramount purpose of the CYFSA is stated as follows: to promote the best interests, protection and well-being of children (see CYFSA s.1(1)).
[39] A Society may apply to the court for a determination that a child is in need of protection (see s. 81(1) of the CYFSA).
[40] Prior to determining whether a child is in need of protection, the court shall determine the child’s name and age, whether the child is a First Nations, Inuk or Metis child and the location from which the child was brought to a place of safety before the hearing (see s.90(2) of the CYFSA).
[41] S.74(2)(b)(i) of the CYFSA provides that a child is in need of protection where there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s failure to adequately care for, provide for, supervise or protect the child.
[42] The Society bears the onus, on a balance of probabilities to establish that the child is at risk of harm. The risk of harm must be likely and not speculative.
[43] The court may consider the past conduct of a person toward any child if that person may care for or have access to a child who is the subject of the proceeding (See s.93(1)(a) of the CYFSA).
[44] There is a substantial body of jurisprudence that stands for the proposition that where a parent is abusing drugs the child is at risk (See Children’s Aid Society of Simcoe County v. T.W. ,2012 ONSC 3635 at para. 112).
Disposition:
[45] Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make an order under section 102 or an order for supervision, interim Society care, extended Society care or consecutive orders of interim Society care and supervision in the child’s best interests (See s. 101(1) of the CYFSA).
[46] S.74(3) of the CYFSA provides a list of criteria that shall be considered by the court when making an order or determination in a child’s best interests.
[47] Prior to making an order under s.101 the court shall consider the Society’s written plan of care for the child (see s.100 of the CYFSA).
[48] In determining which order to make under s.101(1) the court shall consider what efforts the Society has made to assist the child before intervention (See s. 101 (2)), to consider less intrusive alternatives that would adequately protect the child (s.101(3)) and to look at community placements before deciding to place a child in care (s.101(4)).
[49] An order placing a child in the extended care of the Society is the most profound order that a court can make. To take someone’s children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies (See Catholic Children’s Aid Society of Hamilton-Wentworth v. G. (J.) (1997) 23 R.F.L. 4th 79).
[50] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from the perspective of the child’s needs and should be child-focused (See Children’s Aid Society of Toronto v. D.S. 2009 60090 (Ont. S.C.J.).
[51] A child’s need for permanency planning within a timeframe sensitive to that child’s needs demands that the legal process not be used as a strategy to “buy” a parent time to develop an ability to parent. There must be evidence that the parents have better prospects now than those that existed at the time the child was taken to a place of safety (See Children’s Aid Society of Toronto v. R.H. 2000 3158 (ON CJ), [2000] O.J. No. 5853 (Ont. C.J.).
Access:
[52] Where a court makes an order placing a child in the extended care of a Society the court shall not make an order for access unless the court is satisfied that such an order would be in the best interests of the child (see s.105(5) of the CYFSA).
[53] In considering whether an order for access would be in the child’s best interest, the court shall consider whether the relationship between the parent and the child is beneficial and meaningful to the child and whether the ordered access will impair the child’s future opportunities for adoption (see s.105(6) of the CYFSA).
[54] The onus is not on the party requesting access to demonstrate that the relationship is beneficial and meaningful and will not impair the opportunities for adoption. Rather, the court is to undertake a best interest analysis (See Kawartha at para. 49).
Application of the Law to the Facts:
[55] I have reviewed the Affidavit evidence filed by the Society and considered the submissions of counsel. I am able to make the necessary findings of fact and apply them to the law without the need to move to the second stage of the Hyrniak analysis. My doing so will result in a more expeditious means by which the child may be offered the permanency and stability that are in her best interest. I find that on the facts before me there is no realistic possibility of an outcome other than that sought by the Society. There is no genuine issue for trial.
[56] The Society filed substantial affidavit material which supports my finding that the Respondent mother has a serious drug problem and that the child would be at substantial risk in her care. The Respondent mother’s conduct at supervised access visits leaves no doubt that she is not able to put the needs of a child ahead of her own need to do drugs. The Respondent mother has not participated in any of the programming recommended to her by the Society.
[57] Although the mother chose not to file any responding material in the proceeding or to the motion for summary judgment, she did attend the virtual hearing of the motion. At that hearing, she openly acknowledged that she could not parent the child and that she continued to use drugs. Her drug problem has worsened since this proceeding commenced as she acknowledged that she is now using Fentanyl. At no time did she propose that the child be placed back in her care with supervision or otherwise.
[58] The Respondent mother did submit that the child be placed with the Respondent father. She emphasized that he had stable housing and was “clean”. She held out the possibility of reconciliation and that they could be a family again.
[59] The Respondent mother’s proposals were not reasonable in the face of the evidence. For one thing, the Respondent father had consented to the order the Society was seeking. Secondly, he himself acknowledged in the hearing that he had recently used drugs which he characterized as a “mistake”. The evidence is that the parties’ previous relationship was volatile. The Respondent mother alleged that the Respondent father had confined her using duct tape, assaulted her in front of the children and sexually assaulted her. Although the Society had recommended couples counseling for the parties, they did not engage in any. There is at present a no contact order between the parties and the Respondent father is facing two charges of assault, one against the Respondent mother. Any possibility of the parties’ reconciliation would only serve to increase the risk to the child by exposing her to further adult conflict.
[60] Even without his consent, the Society’s evidence regarding protection concerns with respect to the Respondent father would have been overwhelming. The Respondent father has openly acknowledged drug use to a Society worker as well as at the hearing of this motion. There was evidence of neglect during the time that the child was in the Respondent father’s care and before she was taken to a place of safety. There was little food in the house, the house was dirty and safe sleep was not being practiced. Despite repeated inquiries by the Society, it took the father many months to finally get the child caught up with her vaccination schedule. There is evidence that the father engaged in adult conflict in the presence of all of his children. The conditions that existed in his home before his eldest children were removed and the extent of neglect and lack of supervision were alarming. Despite the child’s having been in care for well over a year, the Respondent father has only just recently begun to attend one of the programs recommended to him by the Society.
[61] The Society filed the Respondent father’s affidavit in response to the motion before he determined to consent to the relief sought. The affidavit was skeletal and did not depose to any facts that would lead a court to consider that the outcome of a trial was anything but a foregone conclusion.
I make the following findings:
[62] The child’s full name is: (redacted) and she will turn three years old on (redacted).
[63] The child is not a First Nations, Inuk or Metis child.
[64] The child was brought to a place of safety on June 20, 2019 from the care of her father at Niagara Falls, Ontario.
[65] The child is a child in need of protection and is at risk of suffering physical harm resulting from either or both of the Respondents’ failure to adequately care for, provide for, supervise or protect her.
[66] I am cognizant of the statutory time lines in the CYFSA and the fact that the child has already been in care for well over a year. There is no suggestion that either of the Respondents will make sufficient progress in the near future to be able to provide her with care, with or without supervision. The Respondent mother’s situation has worsened. The Respondent father has not made anywhere close to adequate attempts to remedy the protection concerns. Neither party’s prospects are any better now than when she was taken into care. The child cannot wait while her parents deal with their many issues.
[67] I have reviewed the Society’s Plan of Care and the efforts that were made in the past to protect the child while in the care of the Respondents. The Society attempted to safety plan due to the concerns about the child’s exposure to domestic violence. The parties failed to cooperate and the child was exposed to yet another incident. The Society provided a venue for access and ultimately needed to provide supervision for that access. The Society recommended programming and services for the parties. Given the evidence with respect to drug use, I do not see any possibility of protecting the child from the likely risk of harm by a supervision order. The time lines have already been exceeded in this case and in any event there is no suggestion of improvement any time soon.
[68] The Society invited each Respondent to propose family members or members of the community that could potentially provide a less intrusive alternative to care. The Respondent father proposed the maternal aunt of his two elder children. She has since confirmed to the Society that she is unable to provide a place for the child. There is no evidence before me of any less intrusive alternatives that would adequately protect the child.
[69] The child.’s best interests are served by an order that will provide her with a safe and stable home where she can benefit from parents that are able to focus their love and attention on her. There is no reasonable possibility that her biological parents will be in a position to provide her with that at any time in the foreseeable future. Her best interest is in developing positive parental relationships and a secure place as a member of a family. She has already been in care too long. She deserves the opportunity to start to bond to parents now that will be there for her for the long term. I find that an order placing the child in the extended care of the Society for the purposes of adoption is in her best interest.
[70] In order to make an order for access in favour of either of the Respondents I must be satisfied that such an order would be in the child’s best interest. The child is too young for her views and wishes to be ascertained. Given the history, she has not had an opportunity to develop strong emotional bonds to either of the Respondents. She was taken into care when she was only about 20 months old. By that point, she had not been living with her mother for six months and saw her irregularly. She has not had a significant amount of contact with either of the Respondents since she has been in care. She has had video contact only since the pandemic began. There is no evidence before me that the child is emotionally attached or bonded to either parent at the present time. There is no reasonable possibility of the child being returned to the care of either of her parents and the society proposes that she be placed for adoption.
[71] In determining whether access would be in the child’s best interest I must also consider whether the relationship between either of the Respondents and the child is beneficial and meaningful to her and whether the ordered access will impair her future opportunities for adoption. I am not to consider whether the relationship is beneficial and meaningful to either of the parents. I am sure that the mother and father see their relationship with their daughter as both beneficial and meaningful. However, this decision is about the child.
[72] I am cognizant that it will be an extraordinary case when an order for extended care with no access is made on a summary judgment motion. However, I am unable to conclude that the child’s relationship with either of her biological parents is beneficial and meaningful to her. This is particularly so when I consider that beneficial has been held to mean advantageous and meaningful to mean significant. An order for no access will facilitate the child’s ability to focus on bonding with her new family thereby promoting her long-term stability.
[73] The evidence of the adoption worker was that an order for access would narrow the pool of adoptive families available for the child.. On balance, I find that an order for no access is in keeping with the child’s best interests.
Kril, J.
Released: October 2, 2020
COURT FILE NO.: FC135/19
DATE: 2020/10/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the Niagara Region
Applicant
- and –
A.D. and K.T.
Respondents
REASONS FOR DECISION ON SUMMARY JUDGMENT MOTION
Kril, J.
Released: October 2, 2020