Children’s Aid Society of Peel Region v. C.C., 2011 ONCJ 669

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Brampton Registry No. 20082/10 DATE: 2011·VI·29 CITATION: Children’s Aid Society of Peel Region v. C.C. , 2011 ONCJ 669 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE REGION OF PEEL, Applicant, — AND — C.C. and S.E., Respondents Before Justice June A. Maresca Heard on 30 March 2011; 9 June 2011 Ruling on

Summary Judgment Motion released 29 June 2011 Zaheer Lakhani .......................................................................................... for the applicant society Glen A. Cook .............................................................................................. for the respondent S. E.

[ 1 ] JUSTICE J.A. MARESCA:— This is the Children’s Aid Society of the Region of Peel’s (the Society) motion for

summary judgment seeking Crown Wardship without access for Baby C, born June […], 2010 and apprehended from her mother, Ms. E., when she was 12 days old. On July 14, 2010, the Society brought a protection application before the Court with respect to Baby C. The child was apprehended from the care of her mother, Ms. E., on July 9, 2010, in the Region of Peel. The child was placed in the temporary care and custody of the Society on July 14, 2010, with access to Ms. E. and Mr. C., the child’s father, in the discretion of the Society. [ 2 ] Ms. E. filed an Answer and Plan of Care on August 30, 2010. The father, Mr.

C., has been noted in default. The Society filed an amended application on December 13, 2010, which requested an order for Crown Wardship without access for the purposes of adoption. Ms. E. filed an Answer and Plan of Care in response, seeking return of the child, with or without a supervision order, and expanded access. A motion for

summary judgment, seeking Crown Wardship without access, was brought on March 3, 2011. [ 3 ] The

summary judgment motion was argued on March 30, 2011. The issue of a finding that Baby C. was in need of protection was not seriously contested, and the finding was made pursuant to s. 37(2)(b)(

i) of the Child and Family Services Act . Disposition was adjourned, for the reasons outlined below, to June 9, 2011. I reserved my decision; these are the reasons for the final ruling I have made on this motion. [ 4 ] Ms. E. filed an affidavit on March 25, 2011 in response to the motion for

summary judgment. At the conclusion of argument, her counsel requested an adjournment in order to file the report of a psychological assessment of Ms. E. completed by Dr. K. Marek. Given the seriousness of the order sought, despite the objection of the Society, the adjournment was granted to May 18, 2011. On that day, Ms. E. filed a letter from Dr. Marek which indicated that the report was not ready due to “unforeseen circumstances”, and requested a further adjournment. She also filed an affidavit dated May 14, 2011, and an affidavit from Mr. J. L., dated May 12, 2011. Mr. L. was identified as Ms.

E.’s new partner, and fiancé. The motion was adjourned to June 9, 2011 for final submissions. A report from Dr. Marek, dated May 27, 2011, was filed in time for the June 9 appearance, and was considered by the Court. In total, Ms. E. submitted two of her own affidavits, and one affidavit from Mr. L. in support of her position that the motion for

summary judgment be dismissed. 1: HISTORY [ 5 ] The following chronology of events is largely uncontested: [ 6 ] Ms. E. has had four other children before giving birth to Baby C. Two of those children reside with their father Mr. C.; the third resides with his father, Mr. R.; and the fourth child resides with his paternal grandparents. Ms. E. deposes that the third child was born as the result of a rape, and names Mr. R. as the father. She consented to the child residing with him. The fourth child was placed with his grandparents by the York Children’s Aid Society (York CAS) on a permanent basis as a result of a

summary judgment motion heard on November 15, 2010. Ms. E. chose not to attend the hearing of that motion. The first two children were apparently placed with their father on consent, as Ms. E. wanted to obtain a “good and stable job”. [ 7 ] Ms. E. has had a long history of involvement with various children’s aid societies, the first involvement being in 2000. She parented each of her children for a period of time, and all except the second child, who was placed with her father, were placed in the care of a children’s aid society at some time. Each of the children has a different father, none of whom Ms.

E. has had a stable relationship with. [ 8 ] The York CAS apprehended the fourth child, born June 14, 2008, from hospital. A parenting capacity assessment of Ms. E. was conducted by Dr. D. DeCunha, and her report, dated May 26, 2009 was filed in support of York CAS’s application with respect to that child. [ 9 ] At the time of Baby C.’s birth, Ms. E. was in a relationship with the child’s father. A male friend of two years broke up that relationship shortly before Baby C.’s birth. She then removed the father as part of her plan for the child.

She then asked the same male friend to co-sign a lease for a new apartment with her, and he agreed to do so. She shared that apartment with a member of her church. Ms. E. learned that her roommate was involved with the police, and asked her to leave. She required the assistance of the police to have her removed. [ 10 ] She then reconciled with Baby C.’s father, who moved back in with her. The same male friend again interfered with her life, and was eventually arrested for assault. He had his name removed from the lease, which eventually led to Ms. E. being evicted from the apartment.

The child lived with her father and Ms. E. for a brief time after the child was released from hospital. As noted above, Baby C. was apprehended on July 9, when she was 12 days old. [ 11 ] Ms. E. then separated from Baby C.’s father a final time, after finding him with another woman. She moved to Barrie, as the rent was cheaper there, and she was offered the opportunity to open and run a cafe in the city. There were difficulties with the inventory for the cafe, and that venture did not proceed. She then entered into a business arrangement with Mr.

M. to own and run a franchise in Richmond Hill, called Honey’s Bistro. She moved into Mr. M.’s residence, and looked for a home to purchase with her mother. [ 12 ] Ms. E. did not exercise access to Baby C. from October 2010 until February 2011, as she had difficulty getting to access visits from Barrie. Her first two visits with the child in February 2011 were in the company of the business partner, with whom she was living. In March 2011, Ms.

E. filed an affidavit which outlined a plan in which she would live in a house with her mother, would parent Baby C. during the day, and would work in the evening at the Bistro while her mother cared for the baby. She was not involved with anyone at that time. Her plan changed shortly thereafter, when she began a relationship with Mr. L., and she and Mr. L., with whom she currently resides, now wish to parent Baby C. together.

2: EVIDENCE OF THE SOCIETY [ 13 ] The Society filed a parenting capacity assessment report completed by Dr. Dawn DeCunha, a psychologist in private practice. The report, which was prepared for the proceedings involving Ms. E.’s fourth child, is dated May 26, 2009. Dr. DeCunha spent eight hours with Ms. E., two hours observing her with Baby C. [ 14 ] The concerns raised by Dr. DeCunha can be summarized as follows, along with some examples from the evidence relating to those concerns (in bold type): 1. Ms. E. is unable to accurately assess her own behaviour.

She denies even the slightest flaws, and believes that she is more capable than most people. The result is that she is not open to learning new ways to deal with problems or taking advice. The evidence is replete with examples of Ms. E. projecting blame onto others for her own difficulties and failings. 2. Ms. E. is unable to understand the impact of her actions on a child. She is unable to see how her behaviour affects a child, and cannot perceive and understand the needs of a child .

For example, there is no evidence that she understands the impact on Baby C. of her absence from Baby C.’s life for four months. 3. Ms. E. is unstable both in terms of her lifestyle and her emotions. She is not able to maintain a consistent, stable home or relationship . Her new plan, developed between March and May of this year, is a clear example of this. 4. While Ms. E. is capable of providing for the physical needs of a young infant, she is not able to care appropriately for children as they grow older. There is no evidence that she has parented any of her five children as they became older. 5. Ms.

E. has not exercised good judgment . She left one child with the man she says raped her; she did not see two other children for a significant period of their lives after leaving them with their father; she did not attend the final court appearance for the fourth child; and she did not see Baby C. for four months while Ms. E. lived in Barrie. Her choice of partners – and indeed, roommates – has been poor in the extreme. [ 15 ] Dr. DeCunha ended her report with the following paragraph: Ms. [E.] lacks awareness of the very significant issues that have led to her current circumstances.

She is unable to understand her own role in her circumstances and has a dysfunctional propensity to project her difficulties onto other people or agencies that in her view, are the source of her problems. She denies entirely the significant and substantial role that many protection agencies have played in her life, and when provided with evidence to the contrary, will minimize the concerns or project the blame onto someone else. From a very young age, Ms. [E.] has been unable to develop better insight into the role she has played in her difficulties.

It is unlikely she will develop this insight without considerable and sustained treatment support. [ 16 ] The report of Carla Marques, supervised access facilitator at the therapeutic access program, also lends support to Dr. DeCunha’s recommendations. Ms. E. was referred to the Therapeutic Access Program run by the Peel Children’s Aid Society. She attended 8 out of 12 sessions, between August and October 2010. The purpose of the program was to assess Ms. E.’s parenting skills with a view to helping her work on identified areas of weakness, in order to strengthen her overall parenting.

It is troubling to read the following paragraph included at the beginning of the assessment report:

Summary of Assessment: (Please note that when producing a report there is always an effort to document all information in a detailed manner while ensuring that the report adequately reflects the strengths observed throughout the sessions.

The Supervised Access Program is aware that the information documented in this report will read negatively.) - brackets in original [ 17 ] The following excerpts from the report highlight the concerns noted: In recognition that Ms. [E.] was struggling with her previous experiences with Children’s Aid involvement and to address her allegation that PCAS had not listened to her story and was not listening to her, the program staff scheduled to meet with the mother for a 3 hour meeting. During this meeting the mother was encouraged to share and given the opportunity to express her concerns.

During this meeting it was noted that she denied and/or minimized her responsibility for her parenting experiences. … Since the beginning of the program, Ms. [E.] struggled in her participation. She arrived often very agitated and behaved very unpredictably. … It was the overall observation that Ms. [E.] could not hear feedback (negative), and is intolerant of anyone who holds her accountable for her role in the situation she finds herself in. She had difficulty receiving feedback from program staff when direction, boundaries and information was provided.

She dismissed teaching by repeating that she had parented children and knew about parenting. She engaged in conflict and became confrontational whenever feedback was provided (even when it was requested by her). For example she consistently asked staff how she was doing, staff provided feedback that she should focus on the child’s emotional needs, disengage in conflict and listen and attend to cues for needs. Ms. [E.] rejected the observation, would not accept the suggestion, challenged the feedback and insisted that she had been attentive.

… As the parenting sessions progressed Ms. [E.] continued to demonstrate a progressively greater emotional disconnect from [Baby C.] She was noted to take more time to respond to [Baby C.] (take longer to greet her when she arrived), she also held her less during her sessions and would place her back in car seat or leave her in the car seat when she was fussy or crying, she would place a blanket over the car seat handle and turn the car seat in opposite direction, rock the car seat with her foot (while sitting on a chair) and in the later sessions she became more verbally negative and harsh with the baby. … Ms. [E.] was unable during this entire involvement to prepare and organize [Baby C.] for the departure.

She was unable to set her own feelings aside and organize her daughter for the drive home; she refused to walk [Baby C.] to volunteer driver’s car.

She said that taking her to the car was too difficult and became verbally upset when staff asked her to reflect on why [Baby C.] needed to be emotionally organized before departure. … During this 6 week assessment, despite receiving 16 hours of intensive support, direction and intervention from staff, Ms. [E.] continues to exhibit signs of A-typical parenting behaviours which promote high levels of anxiety and confusion in the parent-child relationship, including an inability to consistently respond to emotional cues and communicate with [Baby C.] She has been unable to demonstrate insight into the impact of her parenting on [Baby C.] and continues to deny or minimize the risk factors which brought her into care.

Her lack of insight regarding the past and present protection concerns are indicators that she continues to have limited awareness of her parenting model and when under stress or is preoccupied, Ms. [E.] would continue to use maladaptive and unsuccessful strategies that she has utilized in the past. 3: EVIDENCE OF MS. E. [ 18 ] Ms. E. filed an affidavit dated March 25, 2011, which set out her plan to care for Baby C. She indicated that her intention was to find a home with her mother, and purchase it on a “rent to own” basis. She filed an undated letter from a real estate agent as evidence of her intention.

She outlined her partnership in Honey’s Bistro with Mr. M., in whose home she was living. She says in her affidavit: “I am on the verge of obtaining good accommodations for [Baby C.] as under the home agreement I have a mortgage to buy a home with my mother. I am bound pursuant to the rent to own program, to stay in the home for at least three years so I want the home to be suitable for myself, [Baby C.], my mother and for my other two children.” [ 19 ] A subsequent affidavit, dated May 16, 2011 – less than two months after her previous affidavit — was filed by Ms. E., and set out yet another plan.

She deposed that “I have begun a relationship with L., a man I have known for the past 10 years........We have agreed to get together.....He wants to adopt [Baby C.]”. While Mr. L.’s plan detailed a meeting he and Ms. E. had with the father of Ms. E.’s first two children, to move the children to Ms. E.’s and Mr. L.’s home, Ms. E.’s affidavit did not mention this. A letter from that father was filed which praised Ms. E.’s parenting skills, but it also failed to mention the children moving from his home to that of Ms. E. and Mr. L. [ 20 ] Mr. L.’s affidavit outlines his commitment to Ms.

E. and his desire to adopt Baby C. Mr. L.’s affidavit indicates that he owns his own home, where he resides with his two sons, 18 and 15. He was on the Board of Directors of the daycare connected to the French school in his neighbourhood. He is employed full time at an H R consulting firm, and has coached rep football and soccer in his community. [ 21 ] Ms. E. also filed a letter from Dr. Marek, a psychologist whom Ms. E. had been seeing since December 2010. The purpose of her contact with Dr. Marek was to obtain a psychological assessment.

The report was completed on the basis of three hours of review, which included interviews with Ms. E., telephone calls, document review and psychological testing and

interpretation of the results. Some of the conclusions drawn by Dr. Marek are as follows: Ms. E’s responses to the MMPI-2 resulted in a very guarded profile.

The validity scale suggested that she not only responded in a guarded manner but was unwilling to admit to even minor flaws, claiming adherence to high moral standards and having a naive self- view......Although this may put the validity of her responses to this inventory into question, .......it is not uncommon in cases such as custody disputes and parenting issues that one would find elevated validity scores. … There was no indication of psychopathology, emotional or mental disorders.

No anxiety was evident in the profile. … There is nothing to suggest instability, emotional lability, anxiety, nor a thinking or mood disorder. Further, there is nothing in the test results that would suggest poor judgment, impulsivity, or irrational thinking. … I am of the opinion that Ms. E. requires a parenting coach and sufficient positive recognition and affirmation of the parenting skills that she does possess . I believe that when she is under significantly less stress and with the appropriate guidance, can develop the consistent parenting skills that she may require to raise her baby.” [emphasis added]

[22] Ms. E. filed two letters from a therapist, George Hartwell, who critiqued the parenting capacity assessment of Dr.DeCunha, which were written June 17, 2009. These letters were filed in the proceedings relating to the fourth child, who was eventuallyplaced in the care of his grandparents permanently, on the basis of a final order dated November 15, 2010. It is interesting to note thatMr. Hartwell’s criticism of Dr. DeCunha’s report focused primarily on the fact that the validity scales for one of the personality testsadministered was high, indicating that the test ought not to be relied upon.

This is the same concern, as noted above, as Dr. Marek hadabout his testing of Ms. E. 4: ANALYSIS [23] At issue in this case are two competing and critical goals: to ensure that

summary judgment motions are successful onlyin the clearest of cases, particularly where the termination of parental rights is at stake; and to ensure that permanent plans for children incare are made without delay. The danger in determining that there is no genuine issue for trial is that the evidence upon which thatdetermination is based has, in most cases, not been tested in the trial process. The Court must scrutinize the evidence very carefully,especially given the fact that the Society argues their case on the basis of a

summary judgment motion. See Children’s Aid Society ofSimcoe County v. Cecile S. (2001), 110 A.C.W.S. (3d) 490, [2001] O.J. No. 4915, 2001 Cars​well​Ont 4389 (Ont. Fam. Ct.).. Theevidence must be credible on its face, and lead to an inexorable conclusion. Children’s Aid Society of Hamilton v M.N. and H.S.N., [, 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007 Cars​well​Ont 2453 (Ont. Fam. Ct.). The court cannot make findingsof credibility or weigh the evidence. See Children’s Aid Society of Nippissing v Marielle M., , 98 A.C.W.S. (3d)134, [2000] O.J. No. 2541, 2000 Cars​well​Ont 2372 (Ont.

S.C.) It must consider the affidavit evidence filed by the parties in determiningwhether the Society has demonstrated that there is no real issue to be tried. See Children’s Aid Society of Toronto v Cynthia H. v.Hassan S., 2004 ONCJ 224, 134 A.C.W.S. (3d) 261, [2004] O.J. No. 4084, 2004 Cars​well​Ont 4076 (Ont. C.J.). The evidence filed indefence of the motion must not disclose a triable issue. Children’s Aid Society of Toronto v Kathleen T. And Charles W., , 101 A.C.W.S. (3d) 944, [2000] O.J. No. 4736, 2000 Cars​well​Ont 4827 (Ont. C.J.).

In cases where the child before the Court isthe last in a series of children who are being parented by someone other than the responding parent, past parenting evidence takes ongreat significance. Where the reasons why older siblings are not in the responding parent’s care are consistent over time, the need forthe parent to demonstrate significant change is great. See Children’s Aid Society of Niagara Region v. D.P. and S.B. (No. 3), , 36 R.F.L. (5th) 265, [2003] O.J. No. 619, 2003 Cars​well​Ont 574 (Ont. Fam.

Ct.); Catholic Children’s Aid Society of Toronto v.Christine S. and Laurie Hope B., 2010 ONCJ 656, [2010] O.J. No. 5831, 2010 Cars​well​Ont 10360 (Ont. C.J.). [24] In order to be successful on its motion for

summary judgment, the Society must discharge the onus of demonstrating thatthere is no genuine issue for trial. In responding, the parent must put her best case forward; it is insufficient to simply deny theassertions made by the Society. See Children’s Aid Society of Toronto v. M.A., , 114 A.C.W.S. (3d) 676, [2002] O.J.No. 2371, 2002 Cars​well​Ont 1923 (Ont. C.J.). Similarly, it is not sufficient that a parent present a plan without addressing the concernsraised, particularly when there is clear evidence of a pattern of concerning behaviour over time. See Children’s Aid Society v.

Robin H.and Michael N., , 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 Cars​well​Ont 6170 (Ont. C.J.). [25] In cases where instability and poor judgment are significant concerns, the responding parent must be able to point toevidence of stability and good decision-making. Where a pattern of behaviour has developed that is of concern, a parent must showevidence that the pattern has been broken, and that she has developed new ways of organizing her life and parenting her children. SeeChildren’s Aid Society v. Robin H. and Michael N., supra. [26] The stark facts of this case are that Ms.

E. has had five children. None of these children reside with her. The eldest tworeside with their father. While he is supportive of Ms. E.’s parenting, there is no evidence from him to confirm the contention of Ms. E.and Mr. L. that he has agreed to a shared parenting arrangement with them. According to Ms. E., the third child was born out of a rape.Despite this fact, Ms. E. consented to that man having custody of the child. The fourth child was apprehended by the York CAS, and afinal order placing him with his grandparents was made by the Court at a hearing which Ms. E. chose not to attend.

Now Baby C. hasalso been removed by the Court from Ms. E.’s care. Ms. E. was not able to maintain consistent contact with Baby C. over the course ofthe last 11 months, and in fact did not see her at all for four of those months, from October 2010 to February 2011. [27] Ms. E. has been unable to maintain consistency in any significant area of her life: she has moved frequently; she has hadlittle stability in maintaining employment; her education was interrupted in Grade 11; she has had a series of partners, friends, androommates with whom she has experienced brief and volatile relationships.

Her plan for caring for Baby C. in the 11 months of her lifehas changed several times. The parenting capacity assessment of Dr. DeCunha is thorough and detailed. Ms. E. had an opportunity totest that assessment when her fourth child was before the Court, and chose not to do so. The critique of the assessment, from Mr.Hartwell, was based almost solely on information provided to him by Ms. E. Mr. Hartwell criticized Dr. DeCunha for relying on ameasure assessing personality in which Ms. E.’s high scores on a subscale made the results unreliable.

What is clear from Dr.DeCunha’s report is that she recognized that that particular measure was of questionable value, and that she administered a wide range ofother psychological, cognitive and projective testing in coming to her conclusions. She assessed Ms. E. over the course of five sessions,and observed her with the fourth child on two occasions. [28] Even Dr. Marek, whose report was the most favourable to Ms. E., concluded that it would only be with “parent coaching”and “appropriate guidance” – things that have been offered unsuccessfully to Ms.

E. – that she “can develop” the necessary parentingskills. [29] Ms. E.’s affidavit materials filed in response to the Society’s motion for

summary judgment do not seriously address anyof the concerns raised by the Society, Dr. DeCunha, or the Supervised Access report. Both affidavits are replete with denials, and theyboth place the blame for any criticized behaviour on someone other than herself. The plan put forward by Ms. E. and Mr. L. is veryappropriate on paper; the difficulty is that none of it has been tested. There is nothing in Ms. E.’s history or her own materials thatdemonstrates that this plan is viable. On the contrary, the plan was hastily conceived, with little attention paid to the child herself.

Hadthis plan been put forward shortly after Baby C.’s birth, credence may have been given to it; as it is, it is nothing but dreams andpromises.

[ 30 ] Ms. E. loves Baby C. She desperately wants to parent her. She has simply not been able to demonstrate that she is capable of doing so. Baby C. has been in care for nearly a year, and a permanent plan must be made for her now, not in the future. The only choices open to the Court are Crown Wardship or return to Ms. E. For the reasons outlined above, Baby C. cannot be returned to her mother; she shall therefore be made a Ward of the Crown. [ 31 ] There is no evidence before the Court from anyone that access between Ms. E. and Baby C. would be beneficial or meaningful to the child.

There is evidence that Baby C. is adoptable, and that the Agency will seek to place her with an adoptive family as soon as possible. [ 32 ] In all the circumstances, the

summary judgment motion is granted. Baby C. is made a Ward of the Crown and committed to the care of the Children’s Aid Society of the Region of Peel, with no access, for the purposes of adoption. Released: 29 June 2011 ___________________________ Justice J.A. Maresca