2021 ONSC 4463
COURT FILE NO.: 134/13
DATE: 2021August 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Applicant
– and –
M.B, Mother
D.S., Father
Respondent
Counsel, for the Sarah Edwards
Self Represented Litigants
HEARD: May 18, 2021
JUDGMENT
the honourable Mr. Justice R. John Harper
Issues
[1] This is a Summary Judgment Motion brought by the Catholic Children’s Aid Society of Hamilton (the “Society”) with respect to the child B.C.S. born […], 2018.
[2] In their Status Review Application, the Society seeks an order that the child continues to be in need of protection and that he be placed in the extended care of the Society with no access to the parents for the purposes of adoption.
The Family Constellations
The mother M.B.
[3] Both M.B. and D.S. are the biological parents of the child B.C.S., who is the subject of these proceedings.
[4] The mother M.B has four (4) other children as follows:
a. M.B., born […], 2000;
b. K.B., born […], 2005;
c. D.L., born […], 2011; and
d. C.L., born […], 2014.
[5] M.B’s mother, D.M., was awarded custody of the three older children, M.B, K.B and D.L., on February 23, 2014. K.B. is now in the care of her biological father.
[6] The child C.L. is in the care and custody of his biological father.
The father D.S.
[7] The father D.S. has the following other children:
a. H.C.R.S., born […], 2010;
b. D.R.S., born […], 2011; and
c. P.C.A.S., born […], 2013.
[8] The above noted children of the father are the subject of a different Status Review Application. All three of these children are in the care of their biological mother, K-A.M.
[9] The father D.S. is charged with sexual assault and sexual interference of his daughter H.C.R.S. These criminal charges are unresolved and are expected to go to trial in June 2021. D.S. denies the charges.
Initial Protection Application
[10] The Society commenced its initial Protection Application respecting the child B.C.S. on April 10, 2019. The Society requested an order that B.C.S. be placed in the care of his father D.S., subject to the supervision of the Society, for six months based on the following concerns:
a. B.C.S. was a young and vulnerable child. Given his age, he was not visible in the community. He required a caregiver who could meet his present and ongoing needs.
b. There had been a high level of partner violence and conflict in M.B. and D.S.’s home and the children were being exposed to significant amounts of adult conflict/violence, arguing, and aggression. The children were at risk of experiencing emotional and physical harm due to that adult conflict. The parents failed to recognize the impact of their own behaviours and parenting style on the children.
c. D.S. had a long-standing history and pattern of domestic/partner violence in relationships. M.B. had also been involved in past partner relationships with domestic violence with the fathers of her children. M.B. had a pattern of making allegations of abuse by D.S. and then recanting those allegations. Both M.B. and D.S. deny they were in an abusive relationship that consisted of physical, verbal and emotional violence. At times, M.B. took the position that there was verbal abuse, however, she stated that she was the aggressor.
d. D.S. had a significant criminal history including convictions of assault (against former partners) and currently had charges of mischief.
e. M.B. had a long-standing history of mental health concerns and had not been addressing her current mental health symptoms. M.B. had acknowledged that she was angry.
f. The parents failed to implement and follow-through with good, consistent parenting strategies. They used inappropriate verbal and physical discipline strategies. There continued to be reports of physical discipline by D.S. toward his older children.
g. The parents had a limited positive support system.
h. There had been a lack of follow-through with recommended services.
i. D.S. continued to use/consume marijuana/cannabis on a regular basis and there was a concern he might do so while in a caregiving role.
Orders and findings made within these proceedings.
[11] On April 10, 2019, Lafreniere J. made a temporary order, without prejudice and on consent, that the child B.C.S. remain in the temporary care of his father D.S. on terms and conditions.
[12] On May 1, 2019, the mother M.B. sent a text message to the Society that she had cared for the child B.C.S. because D.S. was using crystal meth. She later recanted. D.S. was asked to do a urine screen and he initially refused but subsequently agreed. However, it was learned that D.S. had bought someone’s urine and used that for his drug screening test. D.S. admitted that he did this.
[13] The Society became aware that the mother M.B. had been present during an access visit with D.S.’s older children against the terms of an order of this court. On May 3, 2019, the Society obtained a warrant and brought the child B.C.S. to a place of safety.
[14] On May 7, 2019, the Society amended its Protection Application requesting an order that the child be placed in the interim care of the Society for six months due to the following concerns:
a. B.C.S. was a young and vulnerable child and because of his young age, he did not have his own voice to provide us with his views and preferences and was not very visible in the community. He was at a high risk of being harmed if left in either of his parents’ care. B.C.S. required a caregiver that was able to meet his present and ongoing needs. The Society took the position that neither parent could meet his needs and keep him safe. The parents continued to demonstrate high risk behaviours and were not providing the Society with reliable, truthful and consistent information. Neither parent demonstrated that they could work cooperatively with the Society.
b. The parents had not complied with the terms of the existing supervision order as follows:
i. D.S. had allowed M.B. to be around his children in contravention of the terms of a court order. M.B.’s mental health and anger issues were very concerning and given the conflict in the relationship between D.S. and M.B., it would be very concerning if she and D.S. were together with children in their care.
ii. D.S. had admitted to using marijuana while in a caregiving role and there was a concern that he was also using other substances, such as fentanyl. D.S. admitted to taking a “pill” from a friend to treat his tooth ache. The home recently smelled of marijuana smoke and D.S. admitted to using in the home.
i) On May 4, 2019, there was an incident between M. B. and D.S that involved the police. D.S. was charged with assault with a weapon.
ii) There had been a high level of partner violence and conflict in M.B. and D.S.’s home and the children were being exposed to significant amounts of adult conflict/violence, arguing, and aggression and they were at risk of experiencing emotional and physical harm due to this adult conflict. The parents failed to recognize the impact of their own behaviours and parenting style on the children. There had been approximately seven police reports regarding that partner violence and conflict.
c. D.S. had a longstanding history and pattern of domestic/partner violence in relationships. M.B. had also been involved in past partner relationships with domestic violence with the fathers of her children. Despite M.B. making allegations of abuse against D.S., she had recanted her statements shortly after. D.S. had denied all forms of physical violence towards M.B. Both had confirmed there had been verbal conflict between them.
d. D.S. had a significant criminal history including convictions of assault (against partners) and had charges of mischief in 2019.
e. M.B. had a long-standing history of mental health concerns and had not been addressing her current mental health symptoms by taking her medication regularly and only recently attended one counselling session. M.B. had acknowledged that she was angry and that she just recently started taking her medication again (April 2019).
f. The parents failed to implement and follow through with good, consistent parenting strategies. They used inappropriate verbal and physical discipline strategies. There continued to be reports of physical discipline by D.S. toward his older children. An investigation concluded in April 2019 regarding the reported physical discipline.
g. The parents had a limited positive support system.
h. There had been a lack of follow-through with recommended services.
[15] On May 7, 2019, a place of safety hearing was held. The mother M.B. was present. The father D.S. did not attend. On this date, Brown J. made a temporary order that the child B.C.S. be placed in the temporary care of the Society. Access to the parents was to be at the Society’s discretion and supervised at the Society’s discretion. He has remained in care since that date.
[16] On August 12, 2019, Bale J. made a final order, pursuant to Final Minutes of Settlement filed, that the child B.C.S. be placed in the interim care of the Society care for a period of six months. Access between the child and the parents was to be at the discretion of the Society and supervised at the discretion of the Society.
[17] Bale J. also found the child B.C.S. to be a child in need of protection pursuant to ss. 74(2)(b)(i), (ii) and (h) of the Child Youth and Family Services Act.
[18] Bale J. also found that the child B.C.S. is a child of the Roman Catholic faith, is not a First Nations, Inuk or Metis child.
[19] On February 5, 2020, Brown J. gave the parents an extension of time to file their Answer and Plan of Care until February 28, 2020. M.B. did not file an Answer. On March 22, 2021, Brown J. gave the mother a further extension of time to file an Answer and Plan of Care until March 31, 2021. M.B. never filed any materials. Although she was present with D.S. for the virtual hearing, she was allowed to observe but not to participate.
[20] The child has been in the care of the Society since May 7, 2019. The statutory timeline for a child under five years of age is 12 months. B.C.S. has been in care for a period in excess of 24 months.
The Summary Judgment Motion Hearing
[21] The Society’s Summary Judgment Motion was dated April 1, 2021. It was set to be heard on May 18, 2021. The father had been represented by counsel throughout these proceedings until the start of the Summary Judgment motion hearing. The father had not filed any responding affidavits to the voluminous affidavit material filed by the Society by the time the hearing commenced.
[22] At the outset of the hearing, his counsel Nicole Matthews asked to be removed as the solicitor of record for D.S. She stated that despite numerous attempts to contact her client she was not able to. She became concerned that he would have no material before the court and as result she put together a hastily prepared Factum that she served on the Society and filed with the court. Ms. Matthews stated that she was not aware that her client D.S. had been released from jail one week earlier and that despite his release, he had not made any effort to contact her in order to file any material and prepare for the hearing.
[23] D.S. claimed that it was Ms. Matthews who was at fault and stated that she made no efforts to contact him while he was in jail. I found that the solicitor and client relationship had clearly broken down and allowed Ms. Matthews to be removed from the record. D.S. had ample opportunity to contact her after being released from jail one week before this matter was to be heard and he made no effort to do so. He was aware of the fact that he had not filed any responding material and he again took no initiative to do so.
[24] In addition, the Society served and filed requests to admit in these proceedings months ago and received no response from the parents. All the facts set out in the requests to admit are deemed admissions that I will consider on this motion.
[25] Despite D.S. having no responding material before the court, I allowed him to make submissions that amounted to general and rambling denials of the Society’s evidence that proceeded in excess of one hour.
[26] The Society filed 12 affidavits from various workers, business records that included multiple police occurrence reports of the domestic violence attendances, and the criminal record of D.S. that spanned from 1999 to the present.
[27] One of the Society’s affidavits from the main worker on the case was approximately 730 paragraphs in length with multiple pages of attached exhibits.
Overview of the uncontradicted material evidence and admissions
Concerns related to the parents.
Mental health issues and lack of compliance and follow through.
[28] The mother M.B. has a long history of mental health issues that include major mood disorder, anger issues and anxiety. As a child she was diagnosed with an acquired brain injury after a fall and as a result, her use of one of her arms is limited.
[29] In July 2020 she stopped taking her medications without consulting her doctor. She now feels that she does not need any medication and she is supported in this view by the father of the child, D.S.
[30] The mother has shown little ability to follow through with community and health supports for her mental health issues and this poses a serious risk to the child. The father D.S. is seeking a return of the child to him and he and the mother intend to co-parent the child.
The father, D.S.
Lengthy criminal record and reported incidents of domestic violence
[31] D.S.’s criminal record started in 1994 and spanned most of his adult life.
[32] He was convicted of many offences that were violent in nature. They include convictions for assaults, threats, and harassment. He also has multiple convictions for failure to comply with terms of recognizance and terms of probation.
[33] D.S. has had three long term relationships and all of them included multiple incidences in which he was violent towards his partners.
[34] The Children’s Aid Society has been involved with him over the years with his various children. The consistent theme of the Society’s involvement has been domestic violence and D.S.’s inability to control his anger.
[35] I find that D.S. has no insight into his challenges with anger and rage. He minimizes his role in most incidences that were reported to the police. Nevertheless, his anger and rages continue. An example of this is D.S.’s claim that although he was charged in 2019 with assault with a weapon and mischief, he was not the one who was at fault.
[36] D.S. claimed that it was his wife, M.B. that came after her cousin and his girlfriend with a knife and a hatchet. He claimed that the child was not present during this altercation. He also told the Society worker that he kicked his cousin and girlfriend out of their home. He also told the worker that they attacked his wife and he responded by throwing rocks at them and one of the rocks broke his mother’s window. This matter was resolved by him pleading guilty to mischief and entering into a diversion program that he did complete.
[37] D.S. did not admit to any involvement in domestic violence. He stated that he would not admit to anything that he was not charged with. He blamed others for all of the occurrences that the police had to attend at his various residences with various partners.
[38] After the child B.C.S. was apprehended by the Society, M.B. sent a text message to the Society worker. It reads as follows:
You just ruined our family you fuck. I hope you are happy and I hope you can fucking live with yourself. You ripped our son out the only parents he knew. I will have you fired you fuck. You are a child abductor no protector. You fill be fired. I promise. I ABSOLUTELY HATE YOU.
[39] On May 4, 2019, D.S. and the mother M.B. argued late into the night. In the early morning hours they went to McDonalds. The argument escalated to the point that D.S. threw a cup of coffee at his wife’s face. She was not burned in the incident. He was charged with assault.
D.S.s involvement with illicit drugs.
[40] The child who is the subject of these proceedings was apprehended due to the report by the mother that D.S. was taking methamphetamines. She later recanted her disclosure. At first D.S. resorted to a serious misrepresentation to the Society by paying to use someone else’s urine in order to pass a drug test. He later admitted to both taking the methamphetamines and to the use of someone else’s urine in order to deceive the Society.
Lack of compliance with directions of the Society and the terms of the temporary order
[41] I find that the best indicator of the future in D.S.’s case is the constant themes of his past. Not only has the domestic violence repeated itself right up until this trial, but so too has D.S.’s lack of compliance with the orders of the court and the reasonable directions of the Society.
[42] When the child was placed with him under the supervision of the Society and subject to certain terms, he was not to allowed to have the mother around the child due to her mental health and anger issues and the constant conflict between the mother and the father. He did not comply with this order. The mother was in the home with the child on multiple occasions. This was corroborated by D.S.’s older children who were also present when the mother was there.
[43] D.S. also used marijuana while in a care giving role contrary to the provisions of the temporary order of the court.
No supports
[44] D.S. has no community or family supports. Kinship placements were investigated and there were no family members who would or could present a plan for the child.
[45] D.S. has not cooperated with the Society. He does not feel that he has any challenges that he has to meet.
The continuing relationship of the parents.
[46] Despite their conflict, D.S. and M.B. are still in a relationship. It is a relationship that all too often spirals into verbal, emotional and physical violence. This is a cycle that has not been broken and I do not have any confidence that it can be broken.
[47] For such a cycle to be broken, there must be insight into the problem, and in this case, there is none. I find that the child cannot wait for D.S. to put himself in a position to parent.
Summary Judgment
[48] The following is a summary of the legal issues related to the granting of summary judgment.
[49] Rule 16(6) of the Family Law Rules, O. Reg. 114/99, provides for a final order on summary judgment by motion if there is no genuine issue requiring a trial. Rule 16(2) specifically provides that a motion may be made in a child protection case.
[50] In support of their motion, the Society served and filed 12 [L1] affidavits setting out specific facts in support of its position that there is no genuine issue requiring a trial.
[51] According r. 16(4.1), the responding party may not rest on mere allegations or denials but must set out in the affidavit specific facts showing that there is a genuine issue for trial. As noted earlier in these reasons, no affidavit material was filed by D.S. Despite not providing any material, he was allowed to make representations to the court. His representations were replete with mere general denials of the allegations and assertions by him that others were to blame.
[52] In addition, D.S. is deemed to admit all of the facts set out in the Society’s Request to Admit. Some of the material admissions are as follows:
a. D.S. was married to S.S. and they had a daughter M.S. born […], 1994. D.S. and S.S. separated in 2009. From 1999 through to and including 2010, S.S. and D.S. were involved with the CAS of Hamilton due to domestic violence between them. D.S. was arrested for assaulting S.S. on four occasions during this time.
b. On September 12, 2004, D.S. pushed slapped and punched S.S. The CAS verified the physical abuse.
c. On May 11, 2005, D.S. was arrested and charged with breaching conditions of no contact with S.S. This contact became known as a result of a domestic violence incident between the two of them.
d. On April 20, 2009, D.S was charged with assault against S.S. He pled guilty on June 10, 2010.
e. On August 6, 2009, D.S., while on probation, assaulted S.S. by grabbing her neck, twisting her head and threatening to break her neck. D.S. was arrested and sent back to jail. He took no responsibility for his actions.
f. D.S. entered into a relationship with another woman, E.M. They had three children. The CAS was involved with D.S. and E.M. from May 2010 through to and including the present. Most of the CAS involvement was due to domestic violence incidents.
g. The Society’s protection application of May 29, 2013, included concerns for D.S.’s extensive criminal history and record and his failure to abide by court orders, terms of probation, and recognizance. D.S. was noted to have anger management issues that needed to be addressed. He also struggled with anxiety issues that needed to be addressed.
h. On Mary 27, 2014, D.S. was once again charged with assaulting E.M.
i. The incidents of domestic violence continued to be a constant concern throughout the whole relationship between D.S. and E.M.
[53] The children of the relationship between E.M. and D.S. are the subject of a different protection application presently before the court.
[54] D.S. did not refute the above noted admissions of extensive concerns relating to intimate partner violence. As related above, he simply made a general denial and blamed others for the incidents that resulted in his charges and convictions.
[55] I have already related the multiple domestic violence incidents that occurred between D.S. and M.B. I find that the child remains in need of protection pursuant to ss. 74(2)(b)(i) and (ii).
Disposition
[56] In Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682, the Ontario Court of Appeal set out the test for when a child should be placed in extended care of the Society, commencing at para. 5:
[5] The test for whether a child should be placed in extended society care under the CYFSA involves two broad inquiries: (1) whether the child is “in need of protection”; and (2) whether placement of the child in extended society care is “in the child’s best interests” and the court is “satisfied that intervention through a court order is necessary to protect the child in the future”: CYFSA, s. 101(1).
[6] The court determines whether a child is “in need of protection” by applying the criteria in s. 74(2), which include, for example, the risk that the child is likely to suffer physical harm from a parent’s failure or pattern of neglect to adequately care for, provide for, supervise, or protect the child (ss. 74(2)(b)(i) and (ii)); whether the child has suffered emotional harm from a parent’s actions, including potentially from exposure to domestic violence (s. 74(2)(h)); and whether the child has been sexually abused or sexually exploited by a parent (s. 74(2)(c)).
[7] The court determines whether an order for extended society care is in the “child’s best interests” by applying the criteria in s. 74(3) of the CYFSA, which include, for example, the child’s views and wishes (s. 74(3)(a)); the importance of preserving the child’s cultural identity and connection to the community in the case of an FNIM child (s. 74(3)(b)); and other relevant circumstances of the case (s. 74(3)(c)), including the risk of harm to the child if the child is returned to or allowed to remain in the care of a parent (s. 74(3)(c)(x)) and the degree of risk that justified the finding that the child is in need of protection (s. 74(3)(c)(xi)).
[57] In this case, this child has already been in care for over 24 months. The father D.S. is the only one who filed an Answer in these proceedings. Pleadings were noted closed on the mother. She did not participate in the hearing.
[58] In the father’s plan of care, he sought an order that the child be placed in his custody or in his care subject to supervision. His plan stated that he was going to live alone. The evidence against the mother was uncontested and overwhelming. She had mental health challenges that included major mood disorders, anxiety, depression and a lack of ability to manage her anger. She was noncompliant with her mediation. She could not protect her child and continued to expose her child to domestic violence.
[59] Despite the father claiming that he was going to live alone, the mother has been ever-present, and I find that she will continue to reside with the father. They do not appear to be able to separate from each other for any prolonged period of time.
[60] The father has no insight into his ever-present anger issues. He has no insight into how his child’s exposure to domestic violence represents a real risk of physical and emotional harm.
[61] The only legal option for the court is to place the child with the father with or without supervision or to place the child in the extended care of the Society. For the reasons that I have set out above, placing the child with the father, on the evidence before me, is not an option. I find that there is no genuine issue requiring a trial and summary judgment will issue placing he child in the extended care of the Society.
Permanency Plan
[62] The child is nearly three years old. He came into care on May 3, 2019. He has been in the continuous care of the Society for over two years. The evidence shows that the child is happy and well settled. He has been meeting all of his developmental milestones and has been well cared for in his foster placement.
[63] I agree with the position of the Society that this child needs a stable and secure future with a family who is committed to adopting him.
[64] Permanency planning for this child is essential to his best interests.
[65] The child has had access to both parents supervised by the Society in their offices and largely conducted in a virtual setting. Although it is clear from the evidence that these parents love the child, the access has been largely uneventful. The parents are only able to perform instrumental parenting tasks.
[66] The only consideration that I have with respect to whether there should be access when a child is placed in the extended care of the Society for the purpose of adoption is whether that is in the best interest of the child.
[67] The evidence of the Society is that the child is adoptable. However, the pool of adoption parents would decrease if they are made aware of these parents’ challenges. Both parents have engaged in chronic domestic violence. D.S. not only has a lengthy history of participation in violent crimes, but he is also dishonest in material ways. The largest example is his paying for someone else’s urine in order to deceive the Society and eventually the court with respect to his drug use.
[68] Both parents have mental health issues that they are not dealing with. Their issues exacerbate the tendency to resort to physically and emotionally abusive conduct.
[69] D.S. has demonstrated over many years that he has difficulty complying with court orders.
[70] Since I find that permanency planning is the most essential element of what is in the best interest of the child, I cannot limit the potential success of the permanency plan by limiting the potential pool of adoptive parents who would not expose themselves to parents with such a chaotic history and propensity for violent acts.
[71] I find that summary judgment should issue granting extended care of the child to the Society for the purpose of adoption, with no access to the parents.
The Honourable R. J. Harper
Released: August 17, 2021
[L1]