Court File and Parties

COURT FILE NO.: FC-22-00000302-0000 DATE: 2024-05-21 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN: The Children’s Aid Society of the Niagara Region Applicant – and – M.H. Respondent

Counsel: C. Clark, for the Applicant W. Brooks, for the Respondent

HEARD: May 14, 2024

Restriction on Publication

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 Family 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.

THE HONOURABLE JUSTICE J. R. HENDERSON

Decision on Summary Judgment Motion

Introduction

[1] This is a summary judgment motion brought by the Children’s Aid Society of the Niagara Region (the “Society”) pursuant to rule 16 of the Family Law Rules, O. Reg. 114/99.

[2] The Society requests that I make the preliminary findings required by s.90(2) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “Act”), and that I find that the child, N.E.H., born [...], 2021, is a child in need of protection pursuant to s.74(2)(b) and (h) of the Act. Further, the Society requests that I make a final order placing N.E.H. in the extended care of the Society with access to her mother, M.H. (“the mother”), as detailed in the Society’s material.

[3] The mother contests the Society’s requests on the grounds that there are genuine issues for trial. The mother contends that N.E.H. is not a child in need of protection, and further submits that, if N.E.H. is found to be a child in need of protection, there is a genuine issue as to whether N.E.H. should be placed in the extended care of the Society or returned to the mother’s care on terms that would provide the mother with parental supports. Therefore, the mother asks that this action proceed to trial.

The Facts

[4] The mother was born on [...], 1997. When she was a young child, the mother was removed from the care of her mother, K.D., by the Society. The mother was made a Crown Ward in 2006, initially without access. K.D. is the maternal grandmother of the child, N.E.H.

[5] The mother has been diagnosed with fetal alcohol spectrum disorder (“FASD”), which has caused the mother to suffer from intellectual and functional deficits for her entire life. These deficits have contributed to her difficulties parenting N.E.H.

[6] After N.E.H. was born in [...], 2021, N.E.H. and the mother lived with K.D. in the Regional Municipality of Niagara. The Society has been continuously involved with the mother and N.E.H. since October 2021.

[7] The initial concerns of the Society included the state of the home environment, the intellectual capacity of the mother to parent a child, and the family conflict within the home.

[8] Regarding the home environment, there were 26 home visits between October 2021 and June 2022 during which the home was observed by Society workers to be unclean, unhygienic, and in a state of disarray. Animal feces, food, chemicals, and garbage were observed throughout the residence. There were also concerns about cockroaches and other bugs.

[9] Regarding the intellectual capacity of the mother to properly parent N.E.H., I accept that the mother has deficits with respect to her working memory, organizational skills, and the retention of information. These deficits make it difficult for the mother to understand the needs of the child, to remember the proper ways to care for the child, and to carry out her parental duties. To assist the mother, the Society has recommended that she participate in certain parenting and therapeutic programs.

[10] Society workers submit that, in their view, the mother has not followed through with recommended programming. The Society gave the mother a list of expectations on May 6, 2022, which the Society submits was not fulfilled by the mother. This process of providing the mother with a list of expectations was repeated by the Society on at least two subsequent occasions in 2023 and early 2024, with limited success.

[11] I find that during the course of the Society’s involvement, the mother has not readily participated in all of the recommended programming. However, I find that the mother has remained motivated to be a good parent and has generally tried to co-operate with the Society. Further, although some meetings with the Society were missed for various reasons, the mother generally met on a regular basis with Society workers and has been co-operative with them.

[12] The concern about family conflict arises out of the fact that the mother and K.D. have a high-conflict relationship. There have been disputes between them that on occasion required police intervention. Moreover, I accept that K.D. has regularly contacted the Society to express her concerns about the mother’s parental ability. It is the mother’s position that many of the concerns expressed by K.D. were fabricated.

[13] The mother has attempted to move out of K.D.’s residence on at least a few occasions. She has been on a waiting list for assisted housing in Niagara since approximately December 2020. In March 2022, she briefly moved to the municipality of Chatham-Kent, but she returned to K.D.’s residence within approximately one month.

[14] In mid-June 2022, there was another conflict or dispute between the mother and K.D. for which police were called. At approximately the same time, K.D. made another report to the Society about her concerns regarding the mother’s ability to care for N.E.H.

[15] As a result of the June conflict between the mother and K.D., and K.D.’s reports to the Society, the Society brought N.E.H. to a place of safety on June 21, 2022. N.E.H. has been in the temporary care of the Society since that date.

[16] In approximately January 2023, the mother moved out of K.D.’s residence and moved to Cambridge, Ontario where she now lives with a roommate.

[17] After N.E.H. was brought to a place of safety, the Society continued to attempt to assist the mother by recommending parenting and counselling programs. The evidence shows that the mother has not participated in all of those programs, and that any participation by the mother in the recommended programs has been spotty and inconsistent.

[18] I find that the changes in the mother’s residence may have affected her ability to participate in programming. I also find that she attended six out of ten sessions of a program called “Trusting Loving Connections”, but she chose not to attend the final four sessions. I further find that the mother has recently engaged in DBT therapy and some counselling that was recommended by her psychologist, and that she started counselling with Porchlight in February 2024.

[19] The mother has attended many access visits with N.E.H. since N.E.H. was brought to a place of safety. On occasion, the mother has missed access visits because of illness and for other reasons, but generally I accept that the mother has been motivated to have access with N.E.H., and that N.E.H. and the mother have a good relationship. It should be noted that the mother now regularly travels from Cambridge to Niagara in order to exercise access with N.E.H.

[20] Commencing on February 8, 2024, the mother’s access to N.E.H. has been supervised by Laura Given from Mareas Services. Ms. Given is supervising the access visits, but she is also providing one-to-one support for the mother on parenting strategies. These supported supervised visits have occurred on approximately eight occasions in the last two months.

[21] The mother acknowledges that she has had some intellectual deficits for her entire life. However, she wishes to continue to be a parent to N.E.H. She understands that she will require some parental supports to do so. The parties agree that the mother is motivated to be a parent for N.E.H. The concern is whether it is a realistic possibility that N.E.H. can be returned to the mother’s care.

The Mental Health Assessment

[22] On consent, the mother’s mental health was assessed by a psychologist, Dr. Taslim Alani-Verjee (“Dr. Verjee”). Dr. Verjee’s assessment report is dated June 27, 2023.

[23] In summary, Dr. Verjee found that the mother was a pleasant young woman who was co-operative and eager to attend the testing measures. Dr. Verjee found that the mother had experienced a significant amount of trauma throughout her lifetime, including physical and sexual abuse by family and/or foster family. Dr. Verjee confirmed that the mother suffers from FASD, which has resulted in intellectual and functional deficits.

[24] Dr. Verjee found that mother’s overall intellectual functioning was in the borderline range. Some aspects of her intellect were in the low average range, and others, such as her working memory, were in the range of severe impairment. Her academic ability ranged from low to average. She had significant difficulties in her memory function; her auditory memory was borderline, and her immediate memory was shown as profound impairment. Other aspects of her memory were rated as moderate or low average.

[25] Dr. Verjee wrote that the mother “presented as a low functioning individual and at times had difficulty understanding language. Despite these challenges, she remained patient and completed all testing hours.” Dr. Verjee found that the mother’s memory skills were poorly developed. Dr. Verjee also found that the mother had long-standing difficulties with attention and concentration, including task completion, forgetfulness, and being organized. She also had symptoms of depression, low energy, and low self-esteem.

[26] At the conclusion of the report, Dr. Verjee wrote that the mother “is motivated to parent her daughter. Moreover, she has demonstrated a commitment to do so to the best of her abilities. She will, however, require support in order to parent her daughter effectively.” Dr. Verjee then listed several recommended parental supports, including a safe person that the mother can call upon when feeling emotionally dysregulated, someone she can ask for help or instructions, parenting classes to assist the mother in regulating and managing her daughter’s behaviour, funding or support for the mother to ensure that her daughter gets academic support, and respite from childcare.

Analysis

[27] There is no issue with respect to the requested preliminary findings. Accordingly, I hereby find that:

1. The child’s name and date of birth is N.E.H., born [...], 2021,
2. The child is not a First Nations, Inuk, or Métis child, and
3. The child was brought to a place of safety on June 21, 2022 at St. Catharines, Ontario.

[28] The mother contests the Society’s request for a finding that N.E.H. is a child in need of protection. If that were the only issue in this case, the matter could likely be resolved on the summary judgment motion. That is, there is ample evidence to support the Society’s concerns regarding the mother’s inappropriate home environment for the child, the mother’s conflictual relationship with K.D., and the limitations on the mother’s capacity to parent N.E.H. All of this evidence would suggest that there should be a finding that N.E.H. is a child in need of protection. However, I will not make that finding today as there are other issues related to this issue, discussed below, that require a trial.

[29] The real issue in this case is the appropriate disposition. It is the position of the Society that an order for extended care is the only realistic disposition for this case as the mother clearly has some intellectual deficits that limit her ability to parent, the mother has not participated in most of the recommended programming, and the mother has not offered any evidence on the summary judgment motion as to safety precautions that the mother would put in place to protect N.E.H. if N.E.H. were returned to her care.

[30] In response, the mother submits that most of the issues regarding the home environment and any conflictual relationship revolve around K.D. The residence that was unclean and unhygienic was the residence of K.D., and the mother was living there out of necessity. She also submits that K.D. was the source of any conflict. The mother says that K.D. has been a negative influence on her for most of her life, but she has now removed this negative influence by moving out of her mother’s residence and into a residence in Cambridge.

[31] Further, although she acknowledges that she has some intellectual deficits, the mother submits that she is capable of parenting N.E.H. with the assistance of parental supports. The mother relies in part on Dr. Verjee’s recommendations in this respect. The mother also submits that it is the responsibility of the Society to assist her in putting these parental supports in place, and they have not done so.

[32] I find that there is a genuine issue as to whether the court should order that N.E.H. be placed in the extended care of the Society, or returned to the mother’s care on specific terms that would include parental supports.

[33] Pursuant to rule 16 of the Family Law Rules and the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, if I am able to identify a genuine issue for trial on the evidence at a summary judgment motion, I must then decide if the need for a trial can be avoided by using the court’s expanded fact-finding powers. See Hryniak, at para. 66.

[34] I am well aware of the Ontario Court of Appeal decision in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, [2019] O.J. No. 2029, which stands for the proposition that a court must exercise exceptional caution in summary judgment motions with respect to child protection matters considering the Charter implications and the fact that a final order could permanently remove a child from the care of the child’s parent. See Kawartha-Haliburton, at para. 64.

[35] In Hryniak at para. 49, the Supreme Court of Canada explained that “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.”

[36] In the present case, I find that it would not be a fair and just determination on the merits if I were to resolve this case on a summary judgment motion. In my view, therefore, this case should proceed to trial.

[37] There are several reasons for this finding. First, Dr. Verjee’s report appears to suggest that the mother is a motivated parent and could parent N.E.H. if certain parental supports were put in place. This assessment by Dr. Verjee provides some significant support for the mother’s position. The court at this point has very little information as to whether these parental supports are truly available, or could be made available, for the mother. Thus, it is very difficult for a court to determine an appropriate disposition at this stage.

[38] Further, it is apparent that neither the Society nor the mother have made a fulsome attempt to determine whether the parental supports suggested by Dr. Verjee would adequately resolve the concerns as to the mother’s ability to parent this child. The introduction of supported supervised access visits is a good start, but the outcome of this attempt at support is not yet known. Thus, it may be premature to determine whether N.E.H. could be returned to the mother’s care.

[39] Still further, the Society’s position that the mother has not participated in programming and therefore will not make use of any parental supports is a live issue. The mother has obtained some counselling and has at least started some programming, although I accept that her efforts have been sporadic. That being said, because of the mother’s deficits, it is quite possible that a court could find that any delay in participating in programming may be a result of the mother’s organizational issues and/or memory issues. Those problems could be minimized by the use of assistive aids.

[40] Therefore, I find that there are several unresolved issues that arise out of Dr. Verjee’s recommendation that the mother may be able to adequately parent with parental supports.

[41] Another issue relates to the reliance of the Society on information provided to the Society by K.D. I accept that K.D. and the mother have a high-conflict relationship. I also accept that there is an issue as to whether K.D. has been entirely truthful with the Society about the mother’s ability to care for N.E.H. Hearsay evidence is admissible on a summary judgment motion, and at the trial, provided that it is trustworthy and reliable. Hearsay evidence from the Society as to K.D.’s statements about the mother is not necessarily trustworthy and reliable in these circumstances. In my view, it would be more appropriate for the court to hear viva voce evidence at trial from K.D.

[42] Finally, there is also a hearsay issue with respect to Dr. Verjee. Although the mother seems to rely on Dr. Verjee’s recommendations, the mother does not necessarily agree with Dr. Verjee’s findings about the extent of her intellectual deficits. Given that Dr. Verjee is providing expert evidence, again it would be more appropriate to hear viva voce evidence from Dr. Verjee at a trial.

[43] For all of these reasons, I find that it is not fair and just to grant all of the relief requested by the Society on this summary judgment motion.

Conclusion

[44] I hereby make the following preliminary findings:

1. The child’s name and date of birth is N.E.H., born [...], 2021,
2. The child is not a First Nations, Inuk, or Métis child, and
3. The child was brought to a place of safety on June 21, 2022, at St. Catharines, Ontario.

[45] For the reasons set out above, the remaining aspects of this summary judgment motion are dismissed. The matter will proceed to trial.

J. R. Henderson, J. Date released: May 21, 2024