Children’s Aid Society of Nipissing v. S.K., 2011 ONCJ 632

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. COURT FILE No.: FO 2001-121-0004 DATE: 2011·01·04 CITATION: Children’s Aid Society of Nipissing v. S.K., 2011 ONCJ 632 ONTARIO COURT OF JUSTICE In the matter of a Status Review Application under

Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11 for the Crown Wardship of A.J.H.K.B. (born […] jan. 2001) a ward of the Children’s Aid Society for the Districts of Nipissing and Parry Sound BETWEEN: CHILDREN’S AID SOCIETY FOR THE DISTRICTS OF NIPISSING AND PARRY SOUND Applicant — AND — S.K. AND P.B. Respondents Before Justice Lawrence J. Klein

Heard on March 4, 2011 Reasons for Judgment released on April 4, 2011 B. Oldham ......................................................................................................... for the applicant(

s) D.A. Thomson ................................................................................ for the respondent mother, S.K. No appearance by or on behalf of P.B. P. Marshall ........................................................................ for the Office of the Children’s Lawyer, legal representative for the child KLEIN J.: 1: INTRODUCTION [ 1 ] The Children’s Aid Society for the Districts of Nipissing and Parry Sound (the Society) has brought a

summary judgment motion pursuant to rule 16 of the Family Law Rules, O.Reg. 114/99 as amended (the rules) requesting an order that the child, A.J.H.K.B. (“A.”) be made a Crown Ward without access for the purpose of adoption. [ 2 ] The Respondent S.K. is A.’s mother. She asks that the

summary judgment motion be dismissed and that A.J.H.K.B. be returned to her care with the help of her mother, B.H. [ 3 ] The father of A.J.H.K.B. is P.B. who has not had any contact with A.J.H.K.B. since he and S.K. separated in the summer of 2001. He took no

part in these proceedings although he was served substitutionally. [ 4 ] This is a status review application. A.J.H.K.B. has been in the care of the Society since June 16, 2009 and pursuant to a consent order of this court dated July 14, 2009 making A.J.H.K.B. a ward of the society for a period of 4 months. He was found to be in need of protection pursuant to clause 37(2) (

i) of the Child and Family Services Act, R.S.O. 1990, c. C-11 as amended (the Act). [ 5 ] A further temporary order was made on November 3, 2009 that A.J.H.K.B. was to remain in the care of the Society with access to his mother, the Respondent S.K. [ 6 ] On January 11, 2010 with the consent of all parties S.R. and D.R. were added as parties with the stated intention that they be considered as custodial parents of A.J.H.K.B.. [ 7 ] By order dated November 30, 2010 Justice J.

Wilson again, with the consent of all parties, ordered that D.R. and S.R. be removed as parties in this proceeding. [ 8 ] I reviewed and relied upon the affidavits of K.A.A. dated February 17, 2011 and of S.K. dated March 2, 2011 with their various exhibits attached, which included affidavits of other social workers. 2: LEGAL CONSIDERATIONS 2.1:

Summary Judgment Law [ 9 ] Rule 16 of the rules permits a party to make a motion for

summary judgment. The following sub-rules in rule 16 are relevant to this case: 16. When available –

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for

summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. ...

(4) Evidence required – The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) Evidence of responding party – In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) Evidence not from personal knowledge – If a party’s evidence is not from a person who has personal knowledge of the facts in

dispute, the court may draw conclusions unfavourable to the party.

(6) No issue for trial – If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [10] On a motion for

summary judgment the court is required to take a hard look at the merits of the case to determine if thereis a genuine issue for trial. The onus is on the Society to show that there is no genuine issue for trial. See Children’s Aid Society forHamilton v. M.N. and H.S.N., (ON SC), [2007] O.J. No. 1526 (Ont. Fam. Ct.). [11]

Summary judgment should proceed with caution. It is not, however, limited to or granted only in the clearest of cases. The court must ensure the best interests of the child are adequately addressed on the available evidence. If the evidence does not raise atriable issue as to where the best interests lie, those best interests themselves call for resolution without the delay associated with the trialand the resulting prolongation of the state of uncertainty about the child’s future. See Jewish Family and Child Service of Toronto v.R.A. and J.G.., [2001] O.J. No 47 (Ont.

S.C.); affirming Jewish Family and Child Service of Toronto v. R. A. And J.G., (ON CJ), [2000] O.J. No 6045 (Ont. C.J.). [12] A party answering a motion for

summary judgment cannot just rest on bald denials; they must put their best foot forwardshowing that there is a genuine issue for trial. See Children’s Aid Society of Toronto v. Kathleen T. and Charles W., (ON CJ), [2000] O.J. No 4736 (Ont. C.J.). [13] The test for granting

summary judgment is met when the moving party establishes that there is no genuine issue ofmaterial fact that requires a resolution. Not every disagreement between the parties means that a trial is required. Only a disagreementabout a fact that a party is required to prove constitutes disagreement about a material fact. See Children’s Aid Society of Toronto v.Kathleen T. and Charles W. (supra). [14] “No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by theapplicant.” Justice A. Pazaratz in Children’s Aid Society of Niagara Region v.

S.C. and B.M. paragraph 43. 2.2: Legal Consideration in a Status Review Hearing [15] The court must determine whether there is a triable issue within the legal considerations that apply on a status reviewapplication. The status review application is brought pursuant to

section 64 of the Act. Subsection 65(1) of the Act sets out the court’soptions on a status review application as follows: 65. Court may vary, etc. – (1) where an application for review of a child’s status is made under

section 64, the court may, in the child’sbest interests, (

a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part ofthe order; (

b) order that the original order terminate on a specified future date; (

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1. [16] I am guided in following the statutory pathway by the judgment of Justice Craig Perkins of the Ont. S.C. in his decisionin Children’s Aid Society of Toronto v. Tracey L. and Evonne B., 2010 ONSC 1376 , [2010] O.J. No 942. 1. Determine whether the disposition that is in the child’s best interests is return to a party, with or without supervision. If so, order thereturn and determine what, if any, terms of supervision are in the child’s best interests and include them in the order.

If not, determinewhether the disposition that is in the child’s best interests is society wardship or Crown wardship (section 57). 2. If a society wardship order would be in the child’s best interests, but the maximum time for society wardship under section 70(1) hasexpired, determine whether an extension under section 70(4) is available and is in the child’s best interests. If so, extend the time andmake a society wardship order. If not, make an order for Crown wardship. 3.

If a Crown wardship order is to be made and a party has sought an access order, determine whether the relationships between the childand the person who would have access is both meaningful and beneficial to the child (section 59 (2.1)(a)). If not both meaningful andbeneficial, dismiss the claim for access. If so, go to the next step. 4. Determine whether the access would impair the child’s future opportunities for adoption (section 59(2.1)(b)). If so, dismiss the claimsfor access. If not, go to the next step. 5. Determine whether an access order is in the child’s best interests.

If not, dismiss the claim for access. If so, make an access ordercontaining the terms and conditions that are in the child’s best interests (section 58). [17] Subsection 57(2) of the Act requires that I ask the parties what efforts the Society or another agency made to assist thechild before intervention under

Part III of the Act.

[18] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of thepersons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate toprotect the child. [19] Subsection 57(4) of the Act requires that I look at community placements, including family members, before deciding toplace a child in care. [20] In determining the appropriate disposition, I must decide what is in the child’s best interests with the guidance of thecriteria set out in subsection 37(3) of the Act. [21] I am well-aware that a Crown wardship order is the most profound order that a family court can make.

To takesomeone’s child from them is a power that I must exercise only with the highest degree of caution and only on the basis of compellingevidence and only after a careful examination of possible alternative remedies. See Catholic Children’s Aid Society of Hamilton-Wentworth v. Jill G.-T., [1996] O.J. No 1394 (Ont. Div. Ct.). [22] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time ofthe apprehension still exist today. This must be examined from the child’s perspective. See Catholic Children’s Aid Society ofMetropolitan Toronto v.

Cidalia M., (SCC), [1994] 2 S.C.R. 165. [23] A child’s need for permanency planning within a time frame sensitive to that child’s needs demands that the legal processnot be used as a strategy to “buy” a parent time to develop an ability to parent. In child protection proceedings, the genuineness of anissue must arise from something more than a heartfelt expression of a parent’s desire to resume care of the child.

There must be anarguable notion discernible from a parent’s evidence that they face some better prospects than what existed at the time of the Society’sremoval of the child from their care and has developed some new ability as a parent. See Children’s Aid Society of Toronto v. Robin M.and Michael N., (ON CJ), [2000] O.J.

No 5853. 3: MATERIAL FACTS [24] The mother submits that she has not been given a reasonable opportunity to parent A.J.H.K.B. and, if she was given theopportunity, she could demonstrate that it is in A.J.H.K.B.’s best interests to be placed in her care. [25] The material facts in the paragraphs to follow were either not seriously opposed or simply denied by the mother.

Someexplanations provided do not alter the basic elements of the facts that were before me in the written material filed. [26] S.K. first became involved with the Society with respect to A.J.H.K.B., her first child, in September 2001 due to on-goingconcerns about her abuse of prescription medications, her lack of parenting skills, domestic violence in her life and her transient lifestyleand lack of a stable home. [27] Those factors above resulted in a temporary order of this court on June 20, 2006 placing A.J.H.K.B. with his maternalgrandmother, B.H., subject to the supervision of the Society. [28] By April of 2007, S.K. had achieved some stability in her life and had been achieving some success dealing with her drugabuse issues, thus leading the Society to conclude that she could parent A.J.H.K.B..

On that basis, the Society withdrew its applicationand began working with S.K. on a voluntary basis while she lived with her mother, B.H. [29] With the birth of her second son, Hayden, in July 2008, medical professionals again contacted the Society due to concernsregarding S.K.’s illicit drug use, her inability to parent Hayden, her abandonment of Hayden in the hospital and her lack of a stableresidence. [30] School officials made numerous referrals to the Society in the winter and spring of 2009 due to concerns aboutA.J.H.K.B.’s behaviour at school and on the school bus, his frequent absences from school and S.K.’s failure to attend meetings called todiscuss these issues, as well as her failure to follow-up with services that had been arranged for A.J.H.K.B.. [31] On June 13, 2009, S.K. and her family met with the Society to complete the Family Group Decision Making process.

Aconsensus was reached that it was in the children’s best interests to be placed in care while S.K. worked on making positive life changesfor herself to better care for her children. S.K. agreed inter alia to access services through Addiction Outreach and Community MentalHealth. [32] A.J.H.K.B. and Hayden came into care on June 16, 2009 and A.J.H.K.B. has remained in the care of the Society eversince. [33] By the end of September 2009, S.K. had not addressed any of the concerns identified in the Family Group DecisionMaking process meeting on June 13, 2009.

The Society advised her that on that basis they would have to consider proceeding with anapplication for Crown Wardship without access. [34] The next day S.K. attended for an access visit with family members who included her aunt, D.R., who late in October2009, presented a plan of care for A.J.H.K.B.. [35] On November 19, 2009 the Society brought an Application for Crown Wardship without access due to S.K.’s continuedinability to meet the terms and conditions set out in previous court orders and agreements. [36] Visits were on-going between A.J.H.K.B. and D.R. and S.R. as part of their plan of care for a kin-care placement.

[ 37 ] In the winter of 2010 visits by S.K. with the children were sporadic as she cancelled a number of them or did not

schedule visits for weeks at a time. On other occasions she showed up at visits with friends or ended the visits up to 45 minutes early.

S.K. was not attending Addictions Outreach or Community Mental Health appointments with any regularity. [ 38 ] In April 2010, S.K. submitted to hair follicle testing and was found positive for marijuana and opiate use, specifically oxycodone. [ 39 ] S.K. spent the summer of 2010 in jail on fraud related charges and, as a result, had no contact with the Society or her sons. [ 40 ] In mid-November 2010 S.K. made contact again with the Society reporting that she was attending Addiction Outreach and Community Mental Health again and was ready to fight for her children.

She reported that she was back on the methadone programme and by January 19, 2011 her hair follicle test was negative for banned substances. [ 41 ] By the beginning of February 2011 A.J.H.K.B.’s placement with D.R. and S.R. had broken down due to personality conflicts and he moved back into his former foster home in the Parry Sound area on February 11, 2011. [ 42 ] B.H. advised the Society in early February 2011 that she wanted to present a plan of care for A.J.H.K.B.. No such plan was presented to the Society who had serious concerns about Ms.

H’s involvement in the local drug culture. [ 43 ] S.K. provided explanations for a number of missed appointments with various social service agencies and medical professionals with whom she was connected in the past 20 months during the currency of the matters before the court. [ 44 ] S.K. provided explanations for her transient lifestyle and the number of residential moves that were required of her during this same period. [ 45 ] S.K. had the opportunity to meet with Dr. Lonsburg, a psychiatrist, during her period of incarceration in the summer of 2010.

He diagnosed her depression, ADHD and post-traumatic stress disorder and prescribed medications to treat those afflictions. She also attends a concurrent programme with Addiction Outreach and Community Mental Health. [ 46 ] With the diagnoses and treatment she is presently receiving, S.K. feels she will be able to have A.J.H.K.B. returned to her care.

At the very least, she alleges that a continuing relationship between her and A.J.H.K.B. would be in his best interests. [ 47 ] In paragraph 21 of her affidavit of March 2, 2011 she avers as follows: I believe that my behaviour and past mistakes have been corrected and with the understanding I now have about why I am acting the way I was my relationship with both my children can be safely restarted. 4: THE PLANS OF CARE [ 48 ] The Society’s plan is to make A.J.H.K.B. a Crown ward for the purposes of adoption. [ 49 ] The mother’s plan is to have A.J.H.K.B. returned to her care.

She has the support of her mother and other family and proposes to establish permanent housing for her and both her sons. 5: SERVICES AND FAMILY PLANS [ 50 ] The Society has provided significant services to the mother and A.J.H.K.B., including: (a)Provision of a family service worker and child service worker (

b) Referrals to Addiction Outreach (

c) Referrals to Community Mental Health (

d) Referrals to housing agencies (

e) Arranging drug testing (

f) Providing medical and dental treatment for the child (

g) Participation in Family Group Decision Making [ 51 ] The Society has also explored, without success, alternative family plans including placement of A.J.H.K.B. with his aunt and uncle, D.R. and S.R. and with his grandmother, B.H. The Plan of Care of B.H. appeared as Exhibit “E” in the affidavit of the mother. It represents a belated and somewhat desperate attempt to change the course of the proceedings. I have legitimate and well- founded concerns about the demons that so obviously affect B.H. and am concerned that she must deal with them first and foremost as she appears to be in recovery mode herself. 6: ANALYSIS

[ 52 ] I considered the following factors in support of the mother’s request to dismiss the Society’s motion for

summary judgment: (a)She clearly loves A.J.H.K.B. and wants to parent him to the best of her ability. (

b) She has remained out of any abusive relationship since at least the summer of 2009. (

c) She has been diagnosed by a psychiatrist and is being provided with medications for her afflictions. (

d) Placing A.J.H.K.B with the mother would maintain his biological ties with the mother and her extended family. (

e) S.K. has obtained some counselling and has begun treatment for a concurrent disorder with the assistance of Addictions Outreach and Community Mental Health. (

f) S.K. deserves credit for addressing her substance abuse issue and for being open to hair follicle testing to confirm her abstinence. [ 53 ] Despite these positive attributes in support of S.K.’s application to have A.J.H.K.B. returned to her care, the Society has met the onus of establishing that there is no triable issue that A.J.H.K.B. should be made a Crown ward for the following reasons: (a)The evidence establishes that the mother has not been able to maintain personal stability and is not able at this time to provide A.J.H.K.B. with the stability, continuity of care and security that he requires. (

b) The evidence establishes that the mother does not have the ability to meet the physical, mental, educational and emotional needs of A.J.H.K.B.. (

c) A.J.H.K.B. is a high needs child and the skill required to meet his present needs is beyond the ability of the mother who will have much work to do to meet her own needs in the foreseeable future. (

d) The risk concerns that existed at the time of the Family Group Decision Making meeting in June 2009 remain extant even if they have, in some areas, begun to be adequately addressed. (

e) The mother remains disorganized and unable to faithfully keep appointments for her own development and has demonstrated in the past her inability to ensure that A.J.H.K.B. receives the services to which he has been referred. By missing a number of visits with the children or by leaving up to 45 minutes early, the mother has demonstrated a lack of understanding of how that behaviour on her

part imparts a negative message to her sons. (

f) The on-going instability in the mother’s life and her frequent changes of residence does not bode well for a child who needs predictability and consistency. (

g) The mother has acquired some supports since A.J.H.K.B. first came into care but unfortunately most of them are of a very recent vintage and I have serious doubts that they will remain long term or that S.K. will take full and appropriate advantage of them. (

h) The risk concerns that existed when A.J.H.K.B. was found (on consent) to be a child in need of protection have not abated to any extent and have not been adequately addressed by the mother on any long-term basis. (

i) The mother’s plan is not realistic. It lacks specificity and remains hopelessly vague and unfocussed. Simply put, “I’m better now so give me my son” does not give any confidence to the court that the mother is capable of meeting the needs of A.J.H.K.B. now or in the near future. Serious questions remain as to the sustainability of any part of the mother’s plan of care given her past behaviour and the relatively recent nature of her “improvements”. (

j) Given the limited options that are available to the court at this late stage in the process, it would be reckless in the extreme for the court to order the return of A.J.H.K.B. to his mother’s care under a supervision order. At the very least, it would only be possible to do so on a gradual basis testing the relationship of mother and son and eventually the ability of the mother to meet A.J.H.K.B.’s needs. Such a process would take months and we no longer have that time. (

k) The statutory time limits in the Act are an important consideration for the court in making this decision. They loom above this proceeding like a tsunami set to carry away all before it. There are no exceptional circumstances existing here that would permit the extension of the statutory time limits.

There is simply no longer adequate time to test any parenting arrangements that might present themselves. [ 54 ] The mother remains convinced that her behaviour and past mistakes have been corrected and that she now has the understanding of her own demons so that she can safely restart her relationship with her children if given a reasonable opportunity to do so. The case law is clear that the court should consider whether the Society has given the mother a reasonable opportunity to parent.

Where the Society has refused to help out or to offer services I must consider the possibility that the mother’s plan was frustrated by the actions of the Society. The evidence is clear that this is not the case here. On many occasions the Society looked at alternative care arrangements, withdrew from formal involvement, made all services available and encouraged access with A.J.H.K.B.. The Society facilitated a kin-care arrangement that unfortunately did not prove successful.

In the end result the mother’s improvement was a case of too little, too late. [ 55 ] On that conclusion, there is no triable issue that a least disruptive alternative in the best interests of A.J.H.K.B. would be available other than Crown wardship.

7: ACCESS [56] The mother has the onus of rebutting the presumption against access to a Crown ward. The mother has the onus ofestablishing both portions of the test in subsection 59(2.1) of the Act. See Children’s Aid Society of Toronto v. Dora P. and Raymond L., (ON CA), [2005] O.J. No 4075 (Ont. C.A.) This is a very difficult test for her to meet. [57] Before a Society can place a child for adoption any outstanding order of access to the child must be terminated (s.141.1 ofthe Act). No adoption placement can be made in the face of an outstanding access order. [58] As ably argued by Mr.

Marshall, counsel for the child, the question of whether access is beneficial and meaningful forA.J.H.K.B., is a live issue. He urged a limited and directed analysis of this in a trial that would be focussed on A.J.H.K.B.’s best intereston this question alone. Within that analysis a full exploration of the adoptability of A.J.H.K.B. would be necessary. This would be atriable issue and a hearing should proceed on that basis only.

With the recent breakdown in A.J.H.K.B.’s kin-care placement with D.R.and S.R., with his long-standing special needs as identified by the school authorities and given his age (10 years old) there should be athorough airing of the issue of adoptability and the coincident question of access between the mother and child. 8: CONCLUSION [59] An order will go on the following term: (a)The Society’s motion for

summary judgment will be granted in part. (

b) A.J.H.K.B. shall be made a Crown ward. (

c) The issue of continuing access between the mother S.K. and the child, A.J.H.K.B. will proceed to a hearing at a time to be set inconsultation with the parties and their counsel. [60] I am very cognizant that this decision will be very difficult for the mother and for her family. As I wrote earlier in thisdecision a Crown wardship order is among the most serious and final decisions rendered by this court and is never made lightly. S.K.loves her son A.J.H.K.B. very much and made valiant attempts to parent him.

In the end result she found challenges which proved toomuch for her to overcome in her quest to be A.J.H.K.B.’s parent. I must express my profound sorrow for her loss. [61] I would be remiss if I did not thank counsel for their assistance in this very difficult and important motion. Theirprofessionalism was of great assistance to this court. Released: April 4, 2011 Signed: “Justice Lawrence J. Klein”