CAS v. N.A.-M., 2018 ONSC 978

Facts of the Case

• The child, R.S.A., born in 2015, was apprehended by Children and Family Services for York Region ("the Society") on October 2, 2015.

• The mother, N.A.-M., had a history of involvement with multiple child protection agencies and had moved frequently between shelters.

• The mother was inconsistent with access visits and had no long-term stable residency.

• The child was diagnosed with Autism Spectrum Disorder and global developmental delay.

• The mother left Canada in early 2017 and has not seen the child since January 31, 2017.

• The Society sought an order finding the child in need of protection under sections 37(2)(b)(i) and (ii) and 37(2)(g) of the Child and Family Services Act (R.S.O. 1990, c. C-11) and requested that the child be made a crown ward with no access.

Issues for Determination

1. Whether there is a genuine issue requiring a trial that the child is in need of protection.

2. Whether there is a genuine issue requiring a trial regarding a disposition other than crown wardship.

3. Whether there is a genuine issue requiring a trial regarding parental access to the child.

Legal Framework

Relevant Statutory Provisions:

1. Child and Family Services Act, R.S.O. 1990, c. C-11:

   • Section 37(2)(b)(i) and (ii): Defines a child in need of protection due to lack of parental care and supervision.

   • Section 37(2)(g): A child is in need of protection if a parent is unable or unwilling to provide proper care.

   • Section 59(2.1): Establishes a presumption against access for a parent if a child is made a crown ward, unless access is beneficial and does not impair adoption opportunities.

   • Section 70(1)(a): Provides a one-year statutory time limit for children under six years old regarding permanency planning.

2. Family Law Rules, O. Reg. 114/99:

   • Rule 16: Establishes the test for summary judgment.

   • Rule 14(18) and 14(19): Governs the admissibility of affidavit evidence, particularly hearsay.

3. Case Law:

   • Children’s Aid Society of Toronto v. T. (K.), 2000 CanLII 20578: Clarifies that a genuine issue for trial must be material to the case outcome.

   • Berger v. Berger, 2016 ONCA 884: Discusses the admissibility of hearsay evidence in family law.

   • Children’s Aid Society of Ottawa v. B.(J.), 2016 ONSC 2757: States that affidavits based on hearsay should not be relied upon in summary judgment motions.

   • Children’s Aid Society of the Niagara Region v. S.C., 2008 O.J. No. 3969: Summary judgment is appropriate where there is no realistic possibility of an alternative outcome.

Ruling and Analysis

1. Child in Need of Protection:

• The court found that the mother had a history of instability, misrepresentation, and lack of engagement with child welfare services.

• The child had special needs that required ongoing care and support, which the mother had not demonstrated the capacity to provide.

• The court ruled that there was no genuine issue requiring a trial regarding the child’s need for protection under sections 37(2)(b)(i), (ii), and 37(2)(g) of the Act.

2. Disposition – Crown Wardship:

• The Society had made repeated efforts to engage with the mother and provide mental health support, which the mother rejected.

• The mother failed to provide a viable plan of care for the child, and her evidence consisted primarily of inadmissible hearsay through her law clerk’s affidavits.

• The court determined that delaying the child’s permanency planning was not in the child’s best interests.

• The court found no genuine issue requiring a trial regarding crown wardship.

3. Access:

• The mother made no submissions on access.

• Under section 59(2.1) of the Act, the burden was on the mother to prove that access was beneficial and would not impair adoption.

• Given the mother’s lack of contact and engagement, the court ruled that there was no genuine issue requiring a trial regarding access.

Final Order

• The court granted the Society’s motion for summary judgment.

• The child was declared a crown ward with no access for the purpose of adoption.

• The mother’s failure to provide direct affidavit evidence led to an adverse inference under Rule 16(5) of the Family Law Rules.

Conclusion

The ruling in CAS v. N.A.-M., 2018 ONSC 978 reaffirmed the principles of summary judgment in child protection cases. The court emphasized the importance of direct evidence, the inadmissibility of hearsay affidavits, and the paramountcy of a child’s need for permanency planning. The decision underscores that parental rights may be terminated when the parent is unable or unwilling to provide a stable and protective environment for the child.

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Family and Children’s Services of Frontenac, Lennox and Addington v. J.D. (2017 ONSC 6813)

Background

The case concerns the welfare of two children, M.C.D-K. (born 2010) and C.S-M.D-K. (born 2012), who were removed from their parents' care due to concerns over substance abuse, domestic violence, and neglect. This was the second Status Review Application brought by the Society, seeking a final order for Crown Wardship with the goal of adoption.

Key Issues

1. Whether the children should be returned to their mother under the Society's supervision or made Crown Wards for adoption.

2. Whether the father should have any access to the children.

3. If Crown Wardship was ordered, whether the mother should have access and under what terms.

Legal Framework

The judgment is guided by the Child and Family Services Act, R.S.O. 1990, c. C.11

• Section 37(2)(b)(ii) outlines risk of physical harm to a child as grounds for apprehension

• Section 37(2)(g): outlines that a child is in need of protection if they have experienced or are at risk of experiencing harm (physical, emotional, sexual abuse, or neglect)

Positions of the Parties

• Society’s Position:

  • The children should be made Crown Wards for adoption.

  • The mother has a long-standing substance abuse problem, has not shown consistent abstinence, and may still have contact with the father, who has a history of domestic violence.

  • The father should have no access due to concerns over drug use and past violence.

• Mother’s Position:

  • Agreed the children needed protection and that the father should have no access.

  • Sought to have the children returned to her with a supervision order for 12 months.

  • Claimed progress in substance abuse recovery and had community and cultural support.

• Father’s Position:

  • Did not appear in court and was in default.

Findings of the Court

• Mother’s Substance Abuse:

  • The mother had a history of drug use, including morphine, cocaine, fentanyl, benzodiazepines, and amphetamines.

  • Although she was on a methadone program, she continued to relapse, with the most recent relapse occurring in mid-2017.

  • The court found her progress insufficient for safe parenting.

• Domestic Violence and Relationship with the Father:

  • The father had a history of domestic violence and substance abuse.

  • The mother had difficulty disengaging from him, as evidenced by multiple encounters after claiming to have cut ties.

  • The court found that the mother was not credible in her statements about her contact with the father.

• Neglect of Children's Needs:

  • The older child had severe speech delays and cognitive impairments, which went unaddressed while in the mother’s care.

  • The court found that both children had special needs requiring stable and structured care.

• Child Placement and Stability:

  • The children had been in foster care since October 2015, and delays in decision-making were causing instability.

  • The court ruled that returning them to the mother would pose too great a risk.

Final Decision

1. The children were declared Crown Wards for adoption.

2. The mother was granted access at least once per month, with the Society determining the details.

3. The father was denied access.

Conclusion

• The court prioritizes child welfare and stability over parental rights if risks persist.

• A parent’s continued drug use and association with an abusive partner can significantly impact custody decisions.