Children’s Aid Society of Dufferin County v. K.O., 2011 ONCJ 662

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. Orangeville Registry No. 107/09 DATE 2011·VI·02 CITATION: Children’s Aid Society of Dufferin County v. K.O. , 2011 ONCJ 662 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE COUNTY OF DUFFERIN, Applicant, — AND — K.O. and R.O., Respondents. Before Justice Manjusha B.

Pawagi Heard on 2 May 2011 Reasons for Judgment released on 2 June 2011 Kathleen O’Grady ...................................................................................... for the applicant society Lisa Cherry ..................................................................................... for the respondent mother K.O. R. O. ................................................................................................................................ in default

Jennifer Holder ................................................................. for the Office of the Children’s Lawyer, legal representative for the children JUSTICE M.B. PAWAGI: 1: NATURE OF THE CASE [ 1 ] This case is about three children: siblings aged 15, 13 and 10. The Children’s Aid Society of the County of Dufferin (“the Society”) has brought a

summary judgment motion seeking an order finding that the children are in need of protection and making them Crown wards, the eldest with access, and the younger two without access, for the purposes of adoption. [ 2 ] Their mother is consenting to the protection findings for all three children and to an order making the eldest, 15-year- old A1., a Crown ward with access. But she is opposed to a Crown wardship order for the two younger children, 13-year-old P. and 10- year-old A2.. She is seeking to have them returned to her care and her position is that this issue of disposition regarding the two younger children is an issue that requires a trial, and cannot be dealt with on a

summary basis. [ 3 ] Their father, who lives apart from the family, has taken no

part in the legal proceeding to date. [ 4 ] Counsel for the children supports the mother’s position as the two younger children are clear that their wish is to return to their mother. 2: THE FACTS [ 5 ] The Society apprehended all three children from their mother’s care on June 3, 2009 after an investigation following a referral from the Principal of A.’s school who reported that the child had told him she had left home and had no place to stay. She was 14 years old at the time.

The Society worker interviewed all three children who reported many incidents of physical and emotional abuse, including name-calling, hitting, swearing, yelling and assaults with objects. The Society conducted a joint physical abuse investigation with Orangeville Police Services. The mother and maternal grandmother (whose home the family was residing in) subsequently were charged and pleaded guilty, the mother to two counts of assault and the maternal grandmother to one count of assault with a weapon (a hairbrush).

The mother also admitted to using foul language and inappropriate name calling with the child. [ 6 ] Some of the details are disputed: The children variously reported being repeatedly hit, slapped, punched by their mother, and reported that their grandmother has assaulted them using a vacuum attachment, hairbrush, kitchen utensils, while the mother and grandmother admitted only to limited specific incidents.

The children variously reported being called the following names by their mother: bitch, slut, skank, ass, shit-bag, fucking prick, bastard, ass, dip-shit, while the mother has only admitted to using the names, bitch and bastard. [ 7 ] In a meeting with the mother in August 2009, the Society worker told her that the Society could not return the children to the situation they had been removed from (the home where the mother resided with maternal grandparents).

The mother told the Society worker that if the children would behave and not create stress, it would not be a problem. [ 8 ] The mother deposed that A1. has behavioural problems that the mother has struggled with, mainly defiant behaviour and not wishing to follow any rules. [ 9 ] The mother deposed that P.’s behaviour showed signs of deteriorating as he started to model A1. and as he observed the mother’s interactions with A1., and that the mother then began reacting that way to P. as well.

The mother noted that given A2.’s young age she was not drawn into following A1.’s lead. [ 10 ] The psychological assessments conducted on all three children following their apprehension support the Society’s position that the amount of physical and emotional harm the children have suffered at the hands of their mother and grandmother has resulted in serious trauma and that the children will require long-term, intensive treatment and therapy to heal from their past experiences of abuse. [ 11 ] The supervised access visits over the two years the children have been in care show continued concerning interactions between the mother and grandmother and the children: 1.

August 24, 2009 A1. yelled and swore at A2. to the point where A2. was crying. September 28, 2009 A1. threatened to slap A2.. October 15, 2009, A1. punched P. in the arm. In each case, the mother did nothing in response. 2. March 15, 2010 A1. talked about throwing up due to drinking alcohol, and getting back at a rude peer by posting comments about her on-line so that other people would “beat her up.” The mother said nothing.

3. May 3, 2010 A1. described being proud of “kicking Christine’s ass” and “smashing the person’s head into the playground” and the mother did not challenge her. P. was verbally abusive to A2., calling her a “prostitute” and the mother did not respond. 4. August 30, 2010 P. responded to a loud noise of pots and pans falling at the visit centre by crying and could not say why he was crying. Later during the same visit, he spoke about trying to set a fire with a peer (and at another time he had spoken about wanting to hurt animals in a forest). 5.

September 27, 2010 A1. got a homemade tattoo which lead grandmother to respond by saying she needed “a kick in the ass.” When the worker commented that she must mean that metaphorically, the grandmother corrected her saying, “No I mean she needs a kick in the ass. That’s the only thing that works with her.” The grandmother added that none of her own children were a problem, to which the mother quickly agreed. The grandmother said to A1., regarding the tattoo, you are the devil’s child, you are retarded, you’re not very smart are you, that was dumb of you, you’re not very bright.

Mother did not intervene with grandmother or caution A1. about the dangers of a homemade tattoo. 6. November 2, 2010, P. told his mother he was accused by staff of stealing money to buy marijuana and his mother’s response was that “it was stupid the staff did not lock up the money.” The mother later referred to A2.’s foster mother as “an idiot.” [ 12 ] There was one visit, July 19, 2010, where the Society worker noted that the mother and the grandmother did redirect P. when he made a comment about gay people being dirty.

It was the first time such redirection was observed. [ 13 ] A psycho-social behavioural assessment of P. dated March 22, 2010 concluded as follows: It seems evident that P. has developed an emotional belief system regarding his experiences with his mother and grandmother that seemingly undermine his childhood innocence and serve to keep P. in a state of trauma.

It could also be suggested that unless his family takes accountability or responsibility for their actions P. may not be able to shift his emotional belief system and begin correcting his current cognitive distortions (p. 18). [ 14 ] A2.’s psycho-social assessment dated March 22, 2010 summarized the following concerns by everyone involved with A2.: the Society, her foster parents and her school: 1. The Society reported that the mother and grandmother struggled to manage the children’s behaviours and emotional needs and visits often became unmanageable and often inappropriate.

Mother required frequent direction by access supervisor. The tone of the visits failed to improve, arguing between siblings, verbal assaults of one another and consistent inability of the mother to mediate or resolve these conflicts. 2. A2.’s foster parents reported that her behaviour can be quite challenging: verbally abusive, dismissive, rude, vulgar, sneaky, passive- aggressive, failing abilities in developing and maintaining friendships. 3.

A2.’s Ontario School Report noted significant delays in the area of social and emotional competence, difficulties with peer interaction requiring adult mediation, learning disability. [ 15 ] P. is 13 years old. He is presently in a residential group home. He has been charged with theft, he has used drugs, and he has some serious behavioural, emotional and mental health issues which present serious challenges. [ 16 ] A2. is 10 years old.

She has been identified as requiring an individual education plan to accommodate a learning disability, and has some difficulty with peer interaction and social functioning. [ 17 ] The mother’s position is that she has taken responsibility for what has happened. She deposed that “I know I have not been the best role model for them when I have used foul language and struck them on the occasions stated herein.

I also know that my actions affected them emotionally.” [ 18 ] The mother’s evidence is that her psychiatric assessment concluded that she was at low risk for re-offending and she has taken parenting courses and read parenting books but that given the limited time she has with the children during access visits she did not wish to discipline them as that would make them grow more distant from her. [ 19 ] She accepts that the children should not be returned to the environment from which they were apprehended (maternal grandparents’ home).

She intends to move out of her parents’ home but there is a long waiting list for Ontario housing. She plans to move in with B.N. in Etobicoke whom she has known for 20 years and whom she has been dating since fall 2010.

3: ANALYSIS AND THE LAW 3.1: What is the Test for

Summary Judgment? [20] Rule 16 of the Family Law Rules gives the court specific authority to use the

summary judgment procedure in family lawmatters, including child protection cases, “if there is no genuine issue requiring a trial or a claim or defence.” [21] Justice Susan G. Himel of the Ontario Superior Court of Justice gives a thorough overview of the case law in F.B. v. S.G.,, 199 D.L.R. (4th) 554, 16 R.F.L. (5th) 237, [2001] O.J. No. 1586, [2001] O.T.C. 293, 2001 Cars​well​Ont 1413 (Ont.S.C.). The case law is clear that the “genuine issue” must relate to a “material” fact, in the sense that the result of the proceeding turnson its existence or non-existence; see Irving Ungerman Ltd. v.

Galanis (1991), (ON CA), 4 O.R. (3d) 545, 50 O.A.C.176, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, [1991] O.J. No. 1478, 1991 Cars​well​Ont 370 (Ont. C.A.); and that the responding partymust not rest on mere allegations or blanket denials, but must provide evidence of specific fact showing there is a genuine issue for trial. See 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.). 3.2: Is There a Genuine Issue for Trial on the Westion of Crown Wardship? [22] The Society’s evidence that Crown Wardship would be in the children’s best interest is as follows: 1. P. and A2. have been in care for 24 months and thus must be made Crown wards or be returned to the care of their mother(neither party is seeking an extension of Society wardship through the exception to the time limit provided for in s. 70 of the Child andFamily Services Act); 2.

P. and A2. have suffered as a result of the emotional and physical abuse they endured in the family home and are exhibitingbehavioural and emotional difficulties as a result (P. to a greater extent than A2.). 3. The mother has not demonstrated that she is able to manage the behaviour of her children and effectively parent them duringaccess visits. 4.

The mother agrees that the children cannot be returned to the family home, but she continues to reside there and has not yetestablished a separate, appropriate residence. [23] The mother’s evidence amounts to a statement of her intentions, not to any specific facts that raise a genuine issue fortrial. She has consented to a protection finding that P. and A2. suffered physical and emotional harm in her care and are at risk ofphysical and emotional harm in her care. She provides no evidence as to how that risk would be alleviated if they were returned to hercare.

She has not demonstrated an ability to effectively manage them during access visits. She has not yet established a separateresidence from her parents. She just intends to move in with her boyfriend in Etobicoke and have P. and A2. join her there.

Even if shewere seeking a six month extension, there is no evidence that such an extension would be in the best interests of the child given the lackof progress in the last two years. [24] I find there is no genuine issue for trial on the question of Crown Wardship. 3.3 Is There a Genuine Issue for Trial on the Question of Terminating Access? [25] There is a legislative presumption against access once a child has been made a Crown Ward.

The court may only orderaccess to a Crown Ward if both of the two conditions are met pursuant to s. 59(2.1) of the Child and Family Services Act: therelationship between the person and the child is meaningful and beneficial to the child and the ordered access will not impair the child’sfuture opportunities for adoption.

The onus is on the parents to show that both of the conditions have been met before the court mayorder access to a Crown Ward. [26] In this case, the Society is conceding the first prong of the test, that the relationship between the mother and the childrenis beneficial and meaningful to the children.

Indeed, the Society’s position is that it would look for an adoptive placement that wouldfacilitate post-adoption contact between the mother and the children. [27] With respect to the second prong of the test, that the access will not impair the child’s future opportunities for adoption,the case law is clear that this is a difficult hurdle for parents to meet in that the Society is not obligated to show that a specific adoptiveplacement has been found; nor is it determinative that the children are over 7 and thus would have to consent to an adoption: seeChildren’s Aid Society of Niagara Region v.

J.C., , 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L. (6th) 40, [2007]O.J. No. 1058, 2007 Cars​well​Ont 1680 (Ont. Div. Ct.); Children’s Aid Society of Ottawa v. R.P.., 2010 ONSC 7106, [2011] W.D.F.L.1220, [2010] O.J. No. 5647, 2010 Cars​well​Ont 9896 (Ont. Fam. Ct.); and Children’s Aid Society of Hamilton v. Wendy M., , 171 A.C.W.S. (3d) 135, [2008] W.D.F.L. 5250, [2008] O.J. No. 4052, 2008 Cars​well​Ont 6135 (Ont. Fam. Ct.). [28] Here, however, I find that there is a genuine issue for trial. P. is 13 years old and A2. is 10.

The Society could notmaintain P. in a regular foster home and he is in a residential group home. He has allegedly stolen, used drugs, and has behavioural and

emotional issues. A2. also has behavioural and emotional issues and has been diagnosed with a learning disability. They have both exhibited problems with peer relationships. [ 29 ] Thus, I find that the question of whether they would have a future opportunity for adoption does raise a genuine issue for trial. 3.4: Recent Amendments to the Legislation: [ 30 ] While I have not granted the Society’s request for an order for no access on a

summary judgment basis, some very recent amendments to the legislation have made this request moot. [ 31 ] The amendments, which became law on June 1, 2011, will enable Children’s Aid Societies to place Crown wards for adoption, even if there is an access order. The amendments provide that the Society may plan for the adoption of a child who is a Crown Ward with access. Before actually placing the child for adoption, the Society must give notice to any person who has court- ordered access. This person then has 30 days to apply for an openness order which would permit contact post adoption.

The court has jurisdiction to make an openness order if it is satisfied that the openness order is in the best interests of the child, that it will permit the continuation of a relationship which is beneficial and meaningful to the child and the child has consented to the order (if 12 years of age or older). The court shall also consider the ability of the prospective adoptive parent to comply with the openness order. The relevant portions are reproduced as follows: Adoption planning 141.1.1

(1) Nothing in this Act prohibits a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect under

Part III (Child Protection). Openness

(2) Where a society begins planning for the adoption of a child who is a Crown ward, the society shall consider the benefits of an openness order or openness agreement in respect of the child. Access orders terminate 143

(1) When a child is placed for adoption by a society or licensee, every order respecting access to the child is terminated, including an access order made under

Part III (Child Protection) in respect of a Crown ward. Notice of intent to place for adoption 145.1.1

(1) This

section applies where, (

a) a society intends to place a child who is a Crown ward for adoption; and (

b) an order under

Part III (Child Protection) has been made respecting a person’s access to the child or the child’s access to another person. Notice

(2) In the circumstances described in subsection (1), the society shall give notice to the following persons: 1. The person who has been granted an access order. 2. The person with respect to whom an access order has been granted. Right to apply for openness order

(3) The society shall include in the notice the following information: 1. Notice that the society intends to place the child for adoption. 2. Notice that the access order terminates upon placement for adoption. 3. In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received. 4. In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received. Application for openness order 145.1.2

(1) A person described in paragraph 1 of subsection 145.1.1 (2) may, within 30 days after notice is received, apply to the court for an openness order.

Openness order 145.1.2

(6) The court may make an openness order under this

section in respect of a child if it is satisfied that (

a) the openness order is in the best interests of the child; (

b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and (

c) the child has consented to the order, if he or she is 12 years of age of older.

(7) In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent to comply with the arrangement under the openness order. [ 32 ] Thus, in this case, there is no need to have a trial on the issue of access. The Society’s position is in favour of post- adoption contact. The Society can thus proceed to find an adoptive placement for P. and A2. and then an openness order may be obtained on consent. [ 33 ] Final Order: 1.

The statutory findings pursuant to s. 47 (2) of the Child and Family Services Act shall be made as set out in paragraph 1 of the Society’s Notice of Motion returnable May 2, 2011. 2. There shall be a finding that the children, A1., P. and A2. are in need of protection pursuant to s. 37(2)(a)(b)(

g) and (

g) of the Child and Family Services Act . 3. There shall be an order making A1. a Crown Ward with access between A1. and her family members in the discretion of the Society taking into consideration her wishes. 4. There shall be an order making P. and A2. Crown Wards. [ 34 ] Temporary Order: The temporary order made June 8, 2009 making access between P. and A2. and their family members in the discretion of the Society remains in effect. [ 35 ] There shall be no order as to costs. Released: 2 June 2011 __________________________ Justice Manjusha B. Pawagi