2017 ONSC 5184, 2017 ONSC 5184

CITATION: 2017 ONSC 5184 KINGSTON COURT FILE NO.: 145/08 DATE: 2017/08/31 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant and S. L. R. and J.D.S., Respondents BEFORE: Justice Deborah Swartz COUNSEL: Ms. Deborah H. Souder, for the Applicant Society Mr. Stephen Zap, for Respondent S.L.R Respondent, J.D.S. (in default) HEARD: August 25, 2017

SUMMARY JUDGMENT MOTION ENDORSEMENT Nature of the Case/Positions [1] This is a Motion by the Applicant, Family and Children’s Services of Frontenac, Lennox and Addington (the Society) forsummary judgment on a status review application requesting crown wardship of the child S.D.L.R., without access, pursuant to Rule 16of the Family Law Rules. The father (J.D.S.) was noted in default on February 22, 2017. The mother (S.L.R.) is asking that this motionbe dismissed and that the matter proceed to trial. [2] The mother admits that the child continues to be in need of protection pursuant to Section 37(2)(b)(

i) and 37(2)(

g) of theC.F.S.A. There was a consent finding on July 2, 2016 that the child was in need of protection and he was made a ward of the Society forsix months. He has been in care since birth. He is 1 year and 5 months old. Given the length of time that the child has been in care, theonly possible dispositions now are Crown Wardship (with or without access) or a return to the mother under terms of a supervisionorder. [3] The mother wants the matter to go to trial wherein she will request that the child (S.D.L.R.) be returned to her care undersupervisory terms and says that with help, she can parent the child.

She asks that a trial be held so that she can call witnesses regardingher plan of care for her son. The Society wants an order for Crown Wardship with no access. They say that no amount of further helpwill change the mother’s parenting limitations and it is in the child’s best interest that he be made a Crown Ward. The issue before metoday is whether the Society’s motion for

summary judgment should be granted or whether the matter should proceed to trial. Assignment court is scheduled for September 8, 2017. [4] For Reasons set out below, the following order shall issue:

a) This matter shall proceed by way of

summary judgment pursuant to Rule 16 of the Family Law Rules. There is no issue requiring atrial. The Society’s motion for

summary judgment is granted.

b) On consent, the child, S.D.L.R. continues to be a child in need of protection pursuant to s. 37(2)(b)(

i) and 37(2)(

g) of the Child andFamily Services Act, and a court order is necessary to protect him in the future; and

c) Pursuant to S. 57(1)(3) of the Child and Family Services Act the child S.D.L.R. shall be made a ward of the Crown and he shall beplaced in the care of Family and Children’s Services of Frontenac, Lennox and Addington. Law –

Summary Judgment [5] The law on a motion for

summary judgment is addressed in Rule 16 of the Family Court Rules, O Reg. 114\99 (“Rules”)along with the steps required and set out in Hryniak v. Mauldin 2014, SCC 7 at paragraphs 66 to 68.

(a) “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly” - Rule 16(6). There are two steps in this analysis. (

b) First, the judge should determine if there is a genuine issue requiring a trial considering only the evidence submitted by the parties ( Hryniak at para. 66 ). The evidence requirements are set out in Rules 16(4), (4.1) and (5). There are positive obligations on both parties to set out specific facts supporting their positions. (

c) Second, if there appears to be a genuine issue requiring a trial following the above, the court should then determine whether there is genuine issue requiring a trial (Rule 16(6.1)) and if the need for a trial can be avoided ( Hryniak para. 66 ) upon exercising the new fact- finding powers set out in Rules 16(6.1) and (6.2). These involve weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided they do not run contrary to the interests of justice. There will be no genuine issue requiring a trial if the

summary judgment process allows the court to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure ( Hryniak para.s 49 and 67). (

d) If after the above analysis there is a genuine issue requiring a trial, the court still has discretionary powers to give directions, specify the issues, identify which facts are not in dispute, and to impose conditions (Rule 16(9)). Factual

Summary [ 6 ] S.L.R. is the mother of S.D.L.R.. The father is J.D.S.. S.D.L.R. was apprehended on […], 2016 from the care of his mother following his birth at Kingston General Hospital. The mother has two older children who were both made wards of the Crown and have been adopted. The father was noted in default in February of 2017 and has played no role in this child’s life for a significant period. He has no access to the child.

The mother has fully supervised access which continues to date, twice per week on Mondays and Wednesdays from 9:30-12:30 in her home. [ 7 ] A family court clinic assessment was received in February of 2017. The mother actively engaged in that assessment process and has been cooperative, pleasant and receptive to all efforts and suggestions from the Society during the course of her interactions with them. There is no doubt that she loves her son and has been making good efforts to receive and accept instruction and help from the Society.

It was emphasized by the Society during their submissions that this is an unusual case in that the mother has been almost 100% cooperative and receptive to the Society’s offer of services and assistance. [ 8 ] Unfortunately, the mother has a very significant, global intellectual delay. She has undertaken psychological testing as part of the family court clinic assessment and it was determined that her full scale intelligent quotient was mapped onto the less than .1 percentile relative to other individuals of her age which is considered to be extremely low.

She is described in the family court clinic assessment as having notable cognitive difficulties that are global and not limited to any one domain. It is clear that this is not in any way the fault of the mother but rather is related to a chromosomal duplication. It is not subject to correction, healing or amelioration by way of further learning or provision of services. This is simply the intellectual level at which the mother will remain. [ 9 ] The child has been identified as a child with special needs. Based on genetic testing he has been found to have the same chromosomal duplication as the mother.

The child does and will need a lot of encouragement, stimulation and assistance throughout his life. The family court clinic assessment has recommended that the child be made a crown ward and hopefully adopted into the same home as one of his siblings. It is clearly acknowledged by the assessor and by the Society and it needs to be emphasized that the mother is and has been focused on the best interests of her child. Unfortunately her child shares the same challenges and deficiencies that she does. This makes the situation even more challenging for her and the child.

The assessment notes that it is also crucial for the child to continue to form healthy attachment relationships in a safe and secure environment that will provide him with access to services he requires. [ 10 ] The mother has been connected with various services and has been unable or unwilling to access those community and other resources. In particular the mother has refused to request and receive assistance and services from Community Living Kingston and Better Beginnings. She is of the view that she can parent the child within her home and with the roommates with whom she resides which includes her boyfriend.

The mother has demonstrated during access visits that she can, in a fully supervised setting, provide the basics of child care, with assistance. The Society has provided extensive support to the mother and has not to date been able to remove those supports. In fact the level of supervision between the mother and the child continues at a high level. There is little in the way of discernable change or improvement in the mother’s abilities to parent.

The mother’s plan at the present time is one in which she would have the child returned to her care and raised with assistance of the roommates and with supervision of the Society. Her roommates include a friend and the friend’s mother who is on dialysis and partially blind and for whom the friend provides primary care. There is also another couple who reside with the mother along with the mother’s boyfriend. The mother’s boyfriend works and has had some limited opportunities to observe the mother while she has supervised contact with the child.

There has been no progress beyond the fully supervised access that the child enjoys with his mother at this time. The mother continues to struggle with significant and important aspects of parenting and most areas of child care which include reading and interpreting the child’s cues, behavior and actions, determining appropriate action to meet his needs, calculating timing of feedings, bathing, safety procedures and general attention to the child.

Distraction and inability to engage with the child in a consistent way and struggles to soothe and settle him when he is fussy continue to be a challenge for the mother. The mother continues to demonstrate frustration and an inability to appropriately engage with the child in an age appropriate manner. She has great difficulty in accomplishing more than one task while attending to the child’s care.

The mother has demonstrated unreasonable expectations relating to the child’s age and development and has difficulty in providing safe and proper supervision for the child relating to his environment and general needs. [ 11 ] The mother clearly loves her son. There is no doubt that she is trying hard to parent and cares deeply for her child, but simply

has limited skills with which to care for him. There is no evidence that these skills have improved or changed from the time of the initial apprehension of the child at his birth nor is there any prospect that they will improve in the future. These protection concerns continue to the date of this

summary judgment motion. [ 12 ] The mother has presented a plan for the child that is lacking in detail and does not address how return of the child to her care under terms of supervision would be in the best interest of the child. The mother does not address in any way how or what level of supervision would be necessary to alleviate the protection concerns that are in evidence relating to her abilities to parent this child. Her plan is to not persuasive or complete.

The Society’s evidence is strong, compelling and on balance presents as the best plan for the child considering all the factors found at s. 37(3) of the CFSA. Issues/Law [ 13 ] It is difficult to determine from the mother’s submissions and materials what she asserts is the issue that requires a trial. The evidence from the Society is significant and persuasive. The Respondent mother has not provided much in the way of evidence and her plan is lacking in particulars, long-term stability and child focus.

Rule 16 requires that the moving party (the Society) file evidence that sets out specific facts showing there is no genuine issue requiring a trial. The mother is not entitled to rest on mere allegations or denials in accordance with the rule, but must set out specific facts showing that there is a genuine actual issue for trial. That has not been made apparent by the mother. [ 14 ] As a result, if there is no genuine issue requiring a trial, I am obligated to make an order for

summary judgment and I do so herein. The court is obligated to consider the evidence submitted by the parties and I have done so. It is in the child’s best interest and in the interest of justice for this matter to proceed by way of

summary judgment. In accordance with the caselaw provided to me I am entitled to assume that the record before me has all the evidence that the parties would rely on were the matter to proceed to trial at this time. The respondent mother has requested that I order this matter to trial so that she can more fully explain the parenting plan that she has in which her roommates and boyfriend would support her to parent the child. This is an insufficient response to this

summary judgment motion. The mother has not put her best foot forward. [ 15 ] In considering the question of whether there is a genuine issue for trial, I have considered the over- arching principles pursuant to the legislation at

section 1 of the CFSA which is to promote the best interest, protection and well-being of the child. Pursuant to

Section 65 of the CFSA the test on this status review is the best interest test based on the factors that are set out and specified in s.37 of the CFSA. I summarize below my review of these factors in relation to the specific facts of this child’s life:

A) This child has been identified as high risk infant as a result of his genetic chromosomal duplication. He has already had significant medical involvement and it is expected that will continue in the future. He has experienced difficulties in many areas including feeding, settling, diet and it is expected that he may have hearing difficulties in the future. He continues to experience deficiencies and difficulties with speech and development and he has had a heart murmur although not symptomatic of any problem at this time.

The child continues to receive assistance through the infant development program at the Child Development Centre which will provide ongoing monitoring in consultation with the family. At the present time his expressive language is less than his chronological age and he is only meeting some of the developmental milestones for his age. Given his particular and special needs, he needs even more care and attention than might otherwise be the case.

B) I have considered the child’s cultural background and religious faith. The proposed placement for the child would be by way of adoption through a paternal relative who is also the adoptive parent of his next older sibling and as a result he would continue to share the same culture and traditions from his birth family. There is no evidence before me that there is a religious faith significant to the child or family.

C) I have considered factors relating to the importance of a positive relationship with a parent, a secure place in a family and the relationships and emotional ties to family, parent, and siblings. There is evidence that the mother is not in a position to provide the child with a secure place as a member of the maternal and paternal families in light of the conflict that is ongoing between her and the father. The child has not been in the mother’s primary care since birth and has remained in the same foster home subsequent to which it is anticipated that he will be adopted by the paternal members of his family.

Those members of the child’s family have continued to facilitate contact between both of the child’s older siblings and their respective adoptive families and communities. There is no reason to expect that there would be anything less than similar efforts made for this child especially given the anticipated adoption placement within his brother’s adoptive family home. The mother has indicated in her materials and submissions of her counsel, that if a crown wardship order is made that she would like the child (S.D.L.R.) to be placed with his next older sibling and his adoptive family.

Clearly she has anticipated that this is the best option for him if her request for his return to her is denied. This is a thoughtful and child focused expression of the mother and goes again to emphasize her clear love and commitment to this child.

D) I have considered the seventh factor relating to continuity of the child’s care and note that there will be a disruption in care from the child’s (S.D.L.R.) current foster home no matter what order is made, in that he will be moved from his current foster home in any event.

E) The Society has provided clear, cogent and convincing evidence of the nature of their plan and proposed care of the child. Their plan to have him placed with his brother’s adoptive family is a solid proposal in the best interests of the child. In comparison it is simply not possible to return the child (S.D.L.R.) to his mother even with terms of supervision. There is no alternative or less disruptive plan available to him. Family, or other alternative kin placements have been researched and there are none available.

Although there are no existing access terms or agreements currently in place for the child (S.D.L.R.) with his siblings there is evidence of a consistent and reassuring history of sibling contact between his brothers’ adoptive homes which would be clearly a benefit to this child in the future.

F) There is also some established contact between the mother and the other two children and their adoptive families. This is positive and is not always available to children in these difficult circumstances. This makes the Society’s plan even better. The mother has engaged positively with the adoptive families, which in turn benefits all of her children.

G) I have noted above my concerns with regard to delay and the length of time it has taken for this matter to proceed. This child is very young, and providing permanency for him is very important especially given his particular special needs. I have considered the risks that

the child may suffer harm through being removed, kept away from, returned or allowed to remain in the care of a parent. The mother hasnot been able to progress beyond the fully supervised access she currently has with her son. She struggles, as noted above in thesupervised access visits, although she has many positive things to offer the child with guidance and direct supervision. Were the child tobe returned to the care of his mother there is serious concern and risk to him on the evidence before me. I find she is simply unable toparent him on her own even with a supervision order in place.

Despite her best intentions and love for him the protection concerns thatexisted at the time of his birth remain to date, and the degree of risk that existed and justified the initial finding of protection continues todate. These concerns have not been ameliorated by the assistance of the society and there is no evidence that any further assistance,supervision or resource will change the risk to the child flowing from his mother’s inability to parent him in a safe and appropriatemanner.

Conclusion re Disposition [16] Disrupting the child’s current stable foster placement in these circumstances would put the child’s safety immediately intoquestion and would be contrary to his best interests, protection, and well-being and therefore contrary to the paramount purposes of theCFSA legislation S.1(1). [17] This court cannot order crown wardship unless satisfied that less disruptive alternatives such as a supervision order to motherwould be inadequate to protect the child. I see no genuine issue requiring a trial on this point.

Even while fully assisted by all servicesavailable from the Society, which have been thorough, and child focused, the mother has been unable to address the inadequacies in herparenting and the initial protection concerns continue to present significant risk to the child. He still receives fully supervised access. Iam not satisfied there are terms of supervision that would adequately protect the child. There is no question that the mother has apositive relationship with the child and that that relationship is significant to her. This does not however create a triable issue.

It is not inthe child’s best interest to allow further time to pass as there is no evidence after such a long period of intervention, of any positiveprogress or improvement in the mother’s parenting skills and abilities to protect and care for her child. The current plan from the motherhas no realistic possibility of success. There is in fact evidence that the mother’s intellectual deficits are permanent and significant, andwhile not her fault, they are real and unwavering. Access [18] When a child becomes a Crown ward, the existing access order automatically terminates (subsection 59(2)).

There is arebuttable presumption against the court making any further access order under subsection 59(2.1) of the CFSA. The onus rests on themother to rebut that presumption and prove that the relationship between her and the child is meaningful to the child; that the relationshipbetween her and the child is beneficial to the child; and that the ordered access will not impair the child’s future opportunities foradoption: Children’s Aid Society of the Niagara Region v. C.(J.), (ON SCDC), [2007] O.J. No. 1058 (Ont. Div. Ct.) atpara. 23. [19] There was little focus on the issue of access in this motion.

The Society is of the view that the mother did not rebut thepresumption and no order for access should be made. The Society has indicated that it expects there will be contact between the motherand the child through the adoptive family and that the established history with the older two children does in fact occur and that theadoptive parents are committed to contact. The mother did not set out specific facts showing that there was a genuine issue for trial onaccess.

It was her position that the motion be dismissed and that the matter proceed on evidence to trial and that she wanted the childreturned to her with supervisory terms. There is evidence in the Society’s materials that the relationship between the child and themother is meaningful to the child in that he has a positive relationship with her.

There is no convincing evidence that the relationship isbeneficial to the child in the sense of being advantageous to him in a significant way. [20] The Society conceded that access would not impair the child’s future opportunity for adoption given the adoptive family’shistory of facilitating contact with the siblings but instead focused on whether the mother had rebutted the presumption by establishingmeaningful and beneficial access to the child.

There were no submissions made as to what or, if any access terms were requested by themother in the event that the crown wardship was ordered or how such access would be managed. I find that there is no genuine issuerequiring a trial relating to access and that the mother has not rebutted the presumption against access. It does appear however that themother supports the adoption plan as an alternative to the child being returned to her care under terms of supervision.

It may be that sheshares the Society’s hope that contact between the mother, the child and his siblings will unfold as it has for the child’s siblings. Decision [21] There are no genuine issues requiring a trial. I find that the child is in need of protection pursuant to s.37(2)(b)(

i) and 37(2)(

g) of the CFSA and this particular part of my order proceeds on consent as noted above. I am satisfied that intervention through courtorder by way of a crown wardship order is necessary to protect the child in the future and he is therefore made a crown ward. Justice D. Swartz Released: August 31, 2017

CITATION : 2017 ONSC 5184 KINGSTON COURT FILE NO.: 145/08 DATE: 2017/08/31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Family and Children’s Services of Frontenac, Lennox and Addington Applicant – and – S. L. R. and J.D.S. Respondents

summary judgement motion endorsement Swartz J. Released: August 31, 2017