Windsor-Essex Children’s Aid Society v. C.M., 2011 ONCJ 621

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 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 . . . the 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) (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. Windsor Registry No. FS-223-11 DATE: 2011·XII·01 CITATION: Windsor-Essex Children’s Aid Society v. C.M. , 2011 ONCJ 621 ONTARIO COURT OF JUSTICE BETWEEN: WINDSOR-ESSEX CHILDREN’S AID SOCIETY, Applicant, — AND — Ci.M., R.P. and M.M., Respondents. Before Justice Barry M. Tobin Heard on 17 November 2011 Endorsement inscribed on 1 December 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c, C-11 [as amended], subsection 1(1), subsection 37(2), subclause 37(2)(b)(i), subsection51(1), clause 51(2)(a), clause 51(2)(

b) and subsection 51(3). Family Law Rules, O. Reg. 114/99 [as amended], rule 16 and subrule 16(10). CASES CITED Children’s Aid Society of Hamilton v. N.(M.) and N.(H.S.), , 156 A.C.W.S. (3d) 1043, [2007] O.J. No. 1526, 2007Cars​well​Ont 2453 (Ont. Fam. Ct.). Children’s Aid Society of Niagara Region v. C.(S.) and M.(B.), , 61 R.F.L. (6th) 328, [2008] O.J. No. 3969, 2008Cars​well​Ont 5929 (Ont. Fam. Ct.). Children’s Aid Society of Toronto v. M. (Amanda) and T. (Steve), , 26 R.F.L. (5th) 265, [2002] O.J. No. 1432, 2002Cars​well​Ont 1051 (Ont. C.J.). Children’s Aid Society of Waterloo Region v.

D.(C.A.) and S.(Z.), 2011 ONCA 684, [2011] O.J. No. 4891, 2011 Cars​well​Ont 11963(Ont. C.A.). Windsor-Essex Children’s Aid Society v. B. (Sarah), P. (Andrew) and Chippewas of Nawash First Nation, 2007 ONCJ 288, 170A.C.W.S. (3d) 314, [2008] W.D.F.L. 4669, [2007] O.J. No. 2700, 2007 Cars​well​Ont 9280 (Ont. C.J.). Frank W. Philcox ........................................................................... counsel for the applicant society Maria Fernandes .......................................................... counsel for the respondents, Ci.M. and R.P. Marcy L.

Vale .............................................................................. counsel for the respondent, M.M. [1] JUSTICE B.M. TOBIN (endorsement):— The society moves for an order that the children J.H. (born on […] June2001), A.M. (born on […] June 2005) and Co.M. (born on […] February 2007) be placed with the respondent mother, Ms. Ci.M.,subject to supervision by the society for a period of six months on terms and conditions enumerated within the notice of motion. [2] This is a temporary care and custody motion brought pursuant to clause 51(2)(

b) of the Child and Family Services Act,R.S.O. 1990, c, C-11, as amended. Counsel for the society acknowledged that the request that the term of the order be for a period of sixmonths was made in error. [3] The respondents, Ms. Ci.M. and Mr. R.P. request: An Order that the children remain in the care of the respondents [Ms. Ci.M. (nee H.)] and [Mr. R.P.] andthe Society’s Protection Application be dismissed as against the respondents [Ms. Ci.M.] and [Mr.R.P.]; [4] The relief requested by these respondents is for an order under rule 16 of the Family Law Rules, O. Reg. 114/99 [asamended], for

summary judgment dismissing the society’s claims as against them. In the alternative, they request an order under clause51(2)(

a) of the Child and Family Services Act, that is, that the children remain in their care without any terms of supervision. [5] I will consider the rule 16 request first and, if necessary, then the temporary care and custody motion. 1:

SUMMARY JUDGMENT MOTION [6] Rule 16 of the Family Law Rules authorizes the bringing of

summary judgment motions, including

summary judgmentmotions in child protection matters. [7] The test on a motion for

summary judgment is whether there is a need for a hearing to establish the material facts thatare necessary to the determination of the application. The use of the

summary judgment rule is a procedural remedy designed in part topromote a child’s best interests. See the Children’s Aid Society of Waterloo Region v. C.A.D. and Z.S., 2011 ONCA 684, [2011] O.J.No. 4891, 2011 Cars​well​Ont 11963 (Ont. C.A.), at paragraph [5]. [8] On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determinewhether there is a genuine issue for trial. See 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.).

I am entitled to assume that the parties have advanced theirbest case and the record contains the evidence that the parties respectively will present at trial. [9] “No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought out bythe [moving party].” See Children’s Aid Society of Niagara Region v. S.C. and B.M., , 61 R.F.L. (6th) 328, [2008]O.J. No. 3969, 2008 Cars​well​Ont 5929 (Ont. Fam. Ct.), at paragraph [43]. [10] In this case, society pleads in its child protection application that the children are in the need of protection pursuant to

subclause 37(2) ( b )(

i) of the Child and Family Services Act , that is: (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, . . . . . . [ 11 ] The evidence relied upon by Ms. Ci.M. and Mr. R.P. in support of their motion for

summary judgment was presented as a response to the society’s evidence in the temporary care and custody motion. [ 12 ] The admissible evidence filed by the parties with respect to the

summary judgment motion is as follows: (

i) Risk Based on Historical Concerns (

a) The society claims that there have been historical concerns regarding the mother’s ability to protect the children. Ms. Ci.M. acknowledges in her evidence that there have been historical concerns but they have not been in issue for years. (

b) The society’s evidence is that J.H. was inappropriately disciplined by his mother when he was four years old. This is denied by the mother. (

c) The society’s evidence is that, in 2006, the mother’s home was unkempt and that she was struggling to keep up with her responsibilities of caring for the children and the home. Ms. Ci.M.’s evidence is that these statements are absurd and that there have been no further concerns noted by the society regarding the cleanliness of her home, despite society workers regularly attending there for the past five years. (

d) In 2006 there were a number of incidents where the children were unsupervised. Ms. Ci.M. states this is not true and that the children were in fact properly cared for. (ii) Risk Based upon Mr. R.P.’s Criminal Behaviour (

e) Ms. Ci.M. cohabits with the respondent Mr. R.P. He has a lengthy criminal record, including assaults. Both Ms. Ci.M. and Mr. R.P. state that his criminal record has nothing to do with his ability to care for the children. They both state he poses no threat to the children. (iii) Risk Based on Physical Discipline (

f) The society’s evidence is that the children have been physically disciplined by Mr. R.P. Both Ms. Ci.M. and Mr. R.P. acknowledge that he physically disciplined A.M. by slapping him “on the bum for emptying the food on the floor, this was an isolated incident . . . the children were spanked once. The society has not cited any bruises, redness, scratches, or marks on the children.” (iv) Risk Based on Failure to Attend to Medical Needs (

g) In December 2010, the child J.H. appeared to his teacher to have a breakdown at school. It was recommended to Ms. Ci.M. by a society worker that she take J.H. to the hospital to be assessed. Ms. Ci.M. appeared receptive to this suggestion and advised that she would do so. The child was not taken to the hospital by his mother. Ms. Ci.M.’s evidence is that, when she attended at the school to retrieve J.H., he did seem distraught and upset. The incident that gave rise to his being distraught and upset was an accident between two children playing.

As such, she did not think it was necessary to take him to the hospital. The evidence of Ms. Ci.M. and Mr. R.P. is that they have arranged to work with the school to provide assistance for J.H. (

v) Risk based on Ms. Ci.M.’s and Mr. R.P.’s Non-Co-operation with the Society (

h) The society’s evidence is that Ms. Ci.M. and Mr. R.P. are not co-operating with the society. They have refused to allow the children to be interviewed by the society. Mr. R.P. has on a number of occasions refused to co-operate with the society’s investigation of concerns brought to its attention. Ms. Ci.M. states she has worked voluntarily with the society for years. (vi) Risk Associated with Children’s Exposure to Mr. D.H. (

i) The society substantiated that, in 1986, Mr. D.H., Ms. Ci.M.’s father, sexually abused her on two separate occasions. She was three years old at the time. Mr. D.H. has regular access with the children J.H., A.M. and Co.M. (

j) Ms. Ci.M.’s evidence is that she does not recall her father’s sexually abusing her. Nonetheless, her father has never and will never be left alone with the children even in her home. [ 13 ] The onus is on the moving parties, Ms. Ci.M. and Mr. R.P., to show that there is no genuine issue requiring a hearing of a claim. [ 14 ] The issues to be decided on this motion are whether there are genuine issues of material fact that require a hearing for their resolution.

In this case, the question is whether the moving parties have shown that there is no risk that the children are likely to suffer physical harm inflicted by the person having charge of the children or caused by that person’s failure to care for, provide for, supervise or protect the children adequately. [ 15 ] Whether Mr. R.P. is subjecting the children to physical discipline cannot be resolved on the basis of the affidavit material that is before the court. It requires a hearing for its resolution.

If the hearing judge decides that the children have been subject to physical discipline, it also gives rise to the issue of whether there is risk that the children will suffer harm by reason of Ms. Ci.M.’s failure to protect the children adequately. [ 16 ] The relevance of Mr. R.P.’s lengthy criminal record in determining his risk to the children also requires a hearing. Mr. R.P.’s statement that the criminal record has nothing to do with his ability to care for the children is a conclusion, not fact upon which I can rely upon in this motion. [ 17 ] The evidence of the society is that Ms.

Ci.M.’s failure to take the child to the hospital for an assessment in circumstances where there was an apparent breakdown gives rise to the risk referred to in subclause 37(2) ( b )(

i) of the Child and Family Services Act .

[18] The determination of whether Ms. Ci.M. took the appropriate action in not taking the child to the hospital and agreeing toa psychological assessment by the school board is sufficient to mitigate against the risk alleged requires a hearing. [19] The society’s evidence is that it investigated and substantiated that Ms. Ci.M.’s father, Mr. D.H., sexually abused her in1986. Ms. Ci.M.’s evidence is that she does not recall this happening. The evidence is that he has access with the children. [20] Again, this raises a genuine issue of material fact in relation to the society’s claim that the children are at risk undersubclause 37(2)(b)(

i) of the Child and Family Services Act and it requires a trial for its resolution. Does Mr. D.H. pose a risk and if sohow can the children be protected? [21] Whether the respondents Ms. Ci.M. and Mr. R.P. have or should co-operate with the society in the context of the issuesidentified and whether this lack of co-operation gave rise to risk cannot be determined on the evidence before me. [22] These are the genuine issues requiring a hearing of the society’s claim. I cannot say with respect to these issues that thereis no realistic possibility of an outcome other than that sought by the moving parties. Therefore, the motion for

summary judgment isdismissed. [23] Subrule 16(10) provides;

(10) Costs of unsuccessful motion.— If the party who made the motion has no success on the motion,the court shall decide the amount of the other party’s costs of the motion on a full recovery basis andorder the party who made the motion to pay them immediately, unless the motion was justified, althoughunsuccessful. [24] If costs of this motion are sought by the society, submissions no more than three pages in length together with any offersto settle and dockets are to be provided within 7 days of the release of these reasons.

The respondents shall have seven days to respond. 2: TEMPORARY CARE AND CUSTODY HEARING 2.1: Legal Considerations [25] When a hearing is adjourned, a court is required to make a temporary order for care and custody of the subject children. The options that are available to the court and that are relevant in the circumstances of this case are to allow the children to remain in thecare of the respondents, Ms. Ci.M. and Mr. R.P., without any terms of supervision or subject to terms of supervision. See subsection51(1) and clauses 51(2)(

a) and (

b) of the Child and Family Services Act. [26] In Windsor-Essex Children’s Aid Society v. Sarah B. et al., 2007 ONCJ 288, 170 A.C.W.S. (3d) 314, [2008] W.D.F.L.4669, [2007] O.J. No. 2700, 2007 Cars​well​Ont 9280 (Ont. C.J.), the court addressed the test to be applied when the relief sought was achoice between clauses 51(2)(

a) and 51(2)(b). After surveying a number of cases that addressed this issue, the court stated: [16] Collectively, these decisions reflect that there is no judicial consensus relating to the issue ofthe interim test before me under clause 51(2)(

a) or clause 51(2)(b). Some judges describe it as thedemonstration of reasonable and probable grounds to believe that a child may or is in need ofprotection. Others describe it as something less stringent than substantial risk and more demanding thanbest interests. (Note that the test under the predecessor

section 47 — now

section 51 — used thelanguage of “substantial risk” rather than “likely risk of harm”). Others describe the test as a referenceto

section 1 and subsection 37(3) of the Act, promoting best interests, welfare and paramountcy of thechild. Others refer to an “adequacy of protection and proportionality” argument pending adjudication ofthe issue of protection. [17] Under these circumstances, perhaps it might be best to put the test as follows: Can it be saidthat the conditions are such that the criteria found under subsection 51(3) can be met? If so, theappropriate interim order under clause 51(2)(

c) or clause 51(2)(

d) should then issue. If not, then anorder under clause 51(2)(

a) or clause 51(2)(

b) should apply. I tend to prefer the language of the court inChildren’s Aid Society of Niagara Region v. Liza Marie M., supra: [15] It is always worth remembering that, under

section 51, the court is not ruling onwhether a child is in need of protection but, instead, is simply determining what order willsatisfy the test in subsection 51(3) until such time as the protection application is heard. [27] Subsection 51(3) sets out the criteria that the court should consider in determining whether a child should be separatedfrom his or her parent during the adjudication of a protection application. This should not occur “unless the court is satisfied that thereare reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protectedadequately by an order under clause (2)(

a) or (b).” See subsection 51(3) of the Child and Family Services Act. [28] This language suggests that whether a child is returned or is to remain in the care of a parent during the term of anadjournment depends upon how he or she can be protected from a likely risk of harm. The court is to enquire whether there are anyterms of supervision that can be put in place to protect the child.

If not, the child will not be returned or remain in the care of that parent. [29] If the risk to the child, as referred to in subsection 51(3), can be adequately protected with the imposition of terms, theseterms must be proportionate to the need or risk shown by the evidence. See Children’s Aid Society of Toronto v. Amanda M. and SteveT., , 26 R.F.L. (5th) 265, [2002] O.J. No. 1432, 2002 Cars​well​Ont 1051 (Ont. C.J.), at paragraph [18].

2.2: Application to This Case [ 30 ] I find that there are reasonable grounds to believe there is risk the children are likely to suffer harm for the reasons that follow. 2.2(a): Physical Discipline [ 31 ] Mr. R.P. has acknowledged in his affidavit slapping “the child on his bum”. In the same paragraph, Mr. R.P. made the previous statement; he stated that he “vehemently” denies using physical discipline on the children. [ 32 ] Ms.

Ci.M.’s evidence is that the children A.M. and Co.M. were spanked once. [ 33 ] School officials reported that, on 1 February 2011, A.M. disclosed physical discipline was used on the home. [ 34 ] There is credible and trustworthy evidence that the children have been physically disciplined by one or both of the respondents. 2.2(b): Mr. D.H. [ 35 ] The society alleges that Ms. Ci.M.’s father, Mr. D.H., poses a risk to the children because it substantiated concerns in 1986 that he sexually abused her on two separate occasions. The society’s evidence is that Mr.

D.H. advised the society worker he has regular access to the children. Ms. Ci.M. states that he has never been left alone with the children, nor will he. 2.2(c): Lack of Co-operation [ 36 ] Ms. Ci.M. and Mr. R.P. have not co-operated with the society’s investigations of potential risks to the children. Mr. R.P., in particular, has been resistant to society involvement with the children, Ms. Ci.M. and him.

He has done so in circumstances where the society’s concerns appear on the evidence warrant the need for investigation. [ 37 ] The combination of these factors; physical discipline, exposure to possible sexual abuse and lack of co-operation give rise to reasonable grounds to believe that the children are likely to suffer harm while in the care of Ms. Ci.M. and Mr. R.P. [ 38 ] I agree with counsel that an order placing the children in care of the society during the term of the adjournment is not required in this case. I disagree with counsel for Ms. Ci.M. and Mr.

R.P. that the children should remain in their care unconditionally. The nature of the grounds and the evidence supporting the belief set out above require that terms of supervision are necessary in this case. I hasten to add that this does not mean that I have found that the children are in need of protection under subsection 37(2) of the Child and Family Services Act . [ 39 ] I must now determine what terms of supervision are necessary to adequately protect the children during the period of the adjournment. [ 40 ] I am guided by the following. [ 41 ] As was stated in Children’s Aid Society of Toronto v.

Amanda M. and Steve T. , supra, at paragraph [18]: The interim protection imposed must be proportionate to the need shown by the evidence. [ 42 ] Any protection imposed must further the Act’s paramount purposes that all decision making promote a child’s best interest, protection and well-being. See subsection 1(1) of the Child and Family Services Act . [ 43 ] I am satisfied that the risks can be adequately protected against with the following terms of supervision: (

a) J.H., A.M. and Co.M. shall reside in the County of Essex during the course of this order, and Ms. Ci.M. and Mr. R.P. shall not change the residence of their children from the County of Essex without further order of the court. (

b) Ms. Ci.M. and Mr. R.P. shall ensure the society is provided with up-to-date addresses and telephone numbers where they can be reached at all times and shall notify the society at least 14 days prior to any change in address or telephone number. (

c) Ms. Ci.M. and Mr. R.P. shall allow society workers scheduled and unscheduled access to the home and to the children and shall permit the worker to meet with the children both in their presence, and in private, including at the children’s school when necessary. (

d) Ms. Ci.M. and Mr. R.P. shall refrain from the use of physical discipline with the children and use only age appropriate discipline techniques. (

e) The children shall not have unsupervised access with Mr. D.H. 3: ACCESS — Mr. M.M., Father of A.M. and Co.M. [ 44 ] Pursuant to the order of the Justice Gordon I.A. Thomson dated 3 July 2009, made on consent, Mr. M.M. and Ms. Ci.M. share joint custody of A.M. and Co.M. The weekly residency

schedule sees the children in the care of Mr. M.M. every Friday from 2:00 p.m. until Monday at 2:00 p.m. [ 45 ] At the hearing of the motion, the society and Mr. M.M. sought an access order in his favour with the same terms as contained in the order of Justice Thomson. Counsel for Ms. Ci.M. and Mr. R.P. did not make any submissions with respect to this

access. The evidence disclosed that the society raised concerns regarding Mr. M.M.’s housekeeping standards and use of marihuana in August 2011. The children were removed from his care for a few days. [ 46 ] The evidence also disclosed that Mr. M.M. has taken steps to address the society’s concerns and the children have once again been in his care in accordance with that order (except 9 and 23 September). [ 47 ] On the basis of this evidence, I find that it is in the best interest of the children, A.M. and Co.M., that they have access with the respondent Mr.

M.M. each Friday from 2:00 p.m. until Monday at 2:00 p.m. subject to him ensuring that the children are picked up from school at the end of their school day on Friday and returned to school at the beginning of their school day on Monday. 4:

SUMMARY [ 48 ] In accordance with these reasons, the following temporary order shall issue: 1. The children, J.H. (born on […]2001), A.M. (born on […]2005) and Co.M. (born on […]2007) shall be placed in the care and custody of the respondent, Ms. Ci.M., subject to supervision by the Windsor-Essex Children’s Aid Society upon the following terms and conditions: (

a) J.H., A.M. and Co.M. shall reside in the County of Essex during the course of this order, and Ms. Ci.M. and Mr. R.P. shall not change the residence of their children from the County of Essex without further order of the court. (

b) Ms. Ci.M. and Mr. R.P. shall ensure the society is provided with up-to-date addresses and telephone numbers where they can be reached at all times and shall notify the society at least 14 days prior to any change in address or telephone number. (

c) Ms. Ci.M. and Mr. R.P. shall allow society workers scheduled and unscheduled access to the home and to the children, and shall permit the worker to meet with the children both in their presence, and in private, including at the children’s school when necessary. (

d) Ms. Ci.M. and Mr. R.P. shall refrain from the use of physical discipline with the children and use only age appropriate discipline techniques. (

e) The children shall not have unsupervised access with Mr. D.H. 2. The respondent, Mr. M.M., shall have access with the children A.M. and Co.M. each Friday from 2:00 p.m. until Monday at 2:00 p.m. subject to him ensuring that the children are picked up from school at the end of their school day on Friday and returned to school at the beginning of their school day on Monday. 3. If costs of the motion for

summary judgment are sought by the society, submissions no more than three pages in length together with any offers to settle and dockets are to be provided within seven days of the release of these reasons. The respondents shall have seven days to respond.