Court File and Parties

Toronto Registry Number: CFO - 11008-A1

Date: 2013-XII-20

Ontario Court of Justice

Between:

CHILDREN'S AID SOCIETY OF TORONTO, Applicant

— AND —

R.D. and E.K., Respondent mother and father

Counsel

Danielle M. Szandtner — counsel for the applicant society

Avraham Baratz — counsel for the respondent mother, R.D.

Respondent father E.K. — on his own behalf

M. Ruth Thompson — counsel for the Office of the Children's Lawyer, legal representative for the child

Before

Justice Heather L. Katarynych

Reasons for Crown wardship decision

Released on 20 December 2013

JUSTICE H.L. KATARYNYCH:—

1: INTRODUCTION AND CONTEXT

[1] On 16 December 2013, I released the trial decision in this case. Judgment had been reserved after the submissions made by each counsel and the child's father.

[2] The child was made a ward of the Crown to implement the society's adoption plan for her.

[3] The decision disposed of an amended protection application brought on 21 January 2013 in relation to this child under the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (hereinafter CFSA). The initial application had been before the court since 27 March 2012. The society's claim for a Crown wardship of this child replaced the temporary wardship recommendation in the initial application.

[4] These are the reasons for that decision.

2: RELEVANT BACKGROUND AND CONTEXT

[5] On 14 March 2013, the identification findings required by the Act were made and the child's need for protection found by Justice Marion L. Cohen of this court within clause 37(2)(l) of the Act on the basis of an agreed statement of facts as between the mother and the society.

[6] The father's whereabouts at that time were unknown. On the evidence then before the court, Justice Cohen dispensed with notice of the society's amended protection application issued on 21 January 2013, amended plan of care dated 18 January 2013 and the statement of agreed facts (together with blank answer and plan of care) on this father. The case was then adjourned for hearing of the disposition issue.

[7] The child had been apprehended from her mother's care and custody on 23 March 2012.

[8] Mother was seeking a return of this child to her care and custody under a court-ordered supervision on conditions considered necessary by the court. If she was unsuccessful in that regard, she sought placement of the child with E.K. and his common law partner in the joint custody sought by the father.

[9] The father's position, arriving in the midst of the trial itself, was a placement of the child with him, with or without court-ordered supervision, in a joint custody between him and his common law partner, and if considered necessary, a court-ordered supervision and conditions.

[10] I was not prepared to adjourn the trial, given the protracted time that this child had been drifting in temporary foster care waiting for a disposition of the outstanding protection application, the readiness of all the other parties for the multi-day hearing, and his absence from both the litigation and this child's life since early summer 2012. I did permit the father to participate actively in the trial. He acknowledged receipt of the society's trial record. It was what alerted him to the upcoming court date. He had received it from the person with whom the society had left it in the hope that he might connect with this person. This person was a contact point for him; a "mailing address".

[11] When in the midst of the trial he wanted to advance his own plan, I permitted that as well, notwithstanding the reality that everyone was receiving disclosure of it in the course of the trial itself, and unable to investigate the integrity of the plan because of his timing of it.

[12] The child's lawyer supported the society's case for Crown wardship.

3: THE EVIDENCE

[13] The society's case is reflected by the trial record and the exhibits marked and the oral testimony of the child's social worker, the child's foster parent and the woman who has been parenting this mother's oldest daughter.

[14] Those of the society staff who had delivered their evidence in chief by affidavit, were available for cross-examination.

[15] The mother's case was constituted by her own testimony and the testimony of her friend Tessie O.

[16] The father's case was constituted by his own testimony and the testimony of his common law partner and documents he was permitted to file in support of his case.

4: THE LEGAL PRINCIPLES MOST PROMINENT IN THE ADJUDICATION

[17] All decision-making required by the Child and Family Services Act must be done in a manner that fuels the Act's "paramount purpose" to "promote the best interests, protection and wellbeing" of the child subjected to the decision-making. See CFSA, subsection 1(1).

[18] Additional purposes catalogued for consideration are not permitted to undermine the Act's paramount purpose. Those additional purposes include recognition and consideration of the least disruptive available and appropriate course of action to help a child, recognition that help to a parent should give support to the autonomy and integrity of the family unit and wherever possible be provided on the basis of mutual consent, and recognition of a particular attitude to services to children and their families and how those services are to be rolled out to families and children. See subsection 1(2).

[19] It is legislation, in short, that tries to make plain that the child's needs and interests are distinct from the needs and interests of others, and must be the central focus of all decision-making. It is legislation that values a child's family and tries to protect a child within her family, but requires that option to be consistent with the best interests, protection and wellbeing of the child as the Act envisages those concepts.

[20] When the issue is disposition of a protection application, the court is required to focus on the following considerations:

• whether a court order is likely necessary to protect this child in the future;

• if yes, what option from among those available in the Act is most likely to promote this particular child's best interests, protection and wellbeing, taking into account the catalogue of "best interests" factors set out in subsection 37(3) of the Act;

• what efforts were made by the society or other agency or person to assist the child before the society's reach to the court under Part III of the Act;

• if alternatives less disruptive to the child than the orders sought by the society are available, what factual basis is fuelling argument that they would be inadequate to protect the child;

• if the child cannot be returned to the person from whom she was removed, is it possible to place the child with a relative, neighbour or other member of the child's community or extended family with the consent of the relative or other person and still remain faithful to the Act's primary objective. See CFSA, section 57.

[21] It is well established jurisprudential law and the scheme of the CFSA that a Crown wardship order intended to pave the way for a child's adoption is an extremely serious exercise of the court's discretion.

[22] Adoption is final and irrevocable. See CFSA, section 157.

[23] It gives the child a new status under the law. For all purposes of the law, as of the date of the making of an adoption order, the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child. See CFSA, subsection 158(1).

[24] It takes away the child's birth family status, except in the case of stepparent adoptions. The adopted child ceases to be the child of her parent before the adoption order was made, and that person ceases to be the parent of the adopted child. See CFSA, subsection 158(2).

[25] Absent informal arrangements with the adopting family or an "openness" agreement or order within Part VII of the Act, adoption also severs continuing contact between child and birth family until the child is 18 years old, at which time there is potential for contact via the mechanism of Ontario's Adoption Disclosure Register.

[26] So it is that Crown wardship intended to free the child for adoption is reserved for children for whom the primary objective of the legislation — to promote the child's best interests, protection and wellbeing: see CFSA, subsection 1(1) — is not likely to be served by any of the other options provided by the Act for children found to be in need of protection.

[27] Application of these principles and their reiteration in various forms throughout the state is threaded through this judgment.

5: ANALYSIS AND FINDINGS

5.1: The Subject Child

[28] The evidence as a whole yielded the following findings.

5.1(a): A Measure of Context

[29] At the time of judgment, this child is […] months of age. She was born on […] 2012 in this city in an ambulance en route to hospital.

[30] On her mother's side, her heritage is Jamaican. Although the society said that the mother was born in Canada, that assertion is contradicted by the medical record history. Mother is cited there as indicating that she came to Canada in the 1990s.

[31] On her father's side, the child's heritage is African. The parents met many years ago when they were both residing in a community shelter in this city, and remained friends.

[32] She is the third child born to her mother. She has a half-sister now 15 years old and a half-brother, now 12 years old, both of whom have experienced foster care as a result of deterioration in the mother's mental health during her attempts to parent them. The older child resides in the family of a school friend in an apartment adjacent to her mother's apartment in what is intended to be a long term placement for her. The boy has resided for the last five years with his father and his partner.

[33] On the father's evidence, this child is one of four that he has sired. A half-brother now six years old and half-sister, now 17 months old, reside with him and his present domestic partner. She is the mother of both children. Another half-sister, now 9 years old, is in the primary care of her mother and, on father's testimony, he has regular access to her.

5.1(b): The Child's First Five Weeks of Life

[34] This infant was in her mother's parenting for the first five weeks of her life, supported by a monitoring from the society. That included the society's infant nurse specialist. The next door neighbour kept a watchful eye, the society was trying to maintain a responsible contact with the mother's treating psychiatrist and a particular case worker at "The Across Boundaries" resource with which mother was engaged at the time.

[35] On the whole of the evidence relevant to the first five weeks of this child's life, this infant's primary caregivers were essentially her mother and her then 13-year-old half-sister.

[36] Throughout the pregnancy and throughout these first five weeks, this infant's father was on the periphery — a sporadic presence during the pregnancy and an equally sporadic presence during the child's early weeks of life. The pregnancy was not planned, and he had not been thrilled by the mother's announcement of it.

[37] It appears on the whole of the evidence that he left it to the mother to sort out how to manage this addition of another child to her family, providing her with some items during the pregnancy and some items for the infant when she asked for that, but offering no plan of his own to partner her in the parenting.

[38] Only the mother and the child's then 13-year-old half-sister know what actually unfolded for this child during those early weeks in her mother's care. What is plain on the trial evidence relevant to that period in the child's life, including what this child brought into foster care that needed immediate attention, is that this attempt to hold the infant safe in her mother's care was proving quite insufficient. The mother was not managing either her own care or the care of the child very well.

[39] The fragility in this mother's mental health was playing out before the eyes of those monitoring her, her next-door neighbour who at times called the society worker for assistance, to this father who himself expressed concern to the society about the mother's mental health, as did this infant's half-sister.

[40] This older child had a particularly keen sense of what deterioration in her mother's mental health looked like. She herself had experienced it and been removed from her mother's parenting during her growing years, as had her half-brother, because of that deterioration. At the time of this child's birth, this older sister had been in her mother's parenting for some time under a court-ordered supervision that had recently been terminated, because of collective belief of the society and the court that her mother's "improved" health would continue.

[41] The five weeks culminated in the society's removal of both the infant and the older sister from the mother's care under the authority of an apprehension warrant.

5.1(c): The Child's Course of Foster Care

[42] When she entered foster care, there were certain oddities to this child, whether through nature or nurture.

[43] When the social worker assigned to her first observed her in the foster home on 28 March 2012, her body appeared stiff. She arched her back when being held. She was not supporting her head well. She was having difficulty latching while feeding from a bottle, was not making eye contact, did not appear particularly alert.

[44] A couple of weeks later when the social worker next observed her, she appeared more alert and making some eye contact. She persisted in looking over her shoulder to her extreme left.

[45] By four months of age, her developmental gains were underway. She was much more vibrant — kicking and reaching up to grasp hanging toys. She had learned to roll over at three months of age and, by six months of age, she was sitting up. By eight months of age, she was sitting unaided and crawling, although not yet pulling herself into a standing position and not yet sustaining a standing position when assisted. By mid-January 2013 and now eleven months old, she was standing and walking about while holding onto supports, and curiously exploring her surroundings. She was also quite social — engaging with her social worker in a game of looking up and laughing and then putting her head down again. A week before her 1st birthday, her social worker observed her standing without aid (albeit for only a few seconds), beginning to babble and mimicking gestures and words spoken to her. When her social worker visited her on 11 March 2013, this then 13-month-old was standing unaided for a considerable time and was able to turn while standing.

[46] Her development continued. Some milestones were reached as ordinarily expected in an infant's growth.

[47] Over the course of that development, some areas were identified clinically as developmental "lags" — all of which were assessed and then addressed with remedial measures. The remedial measures required substantial day-to-day foster mother-and-child interaction specifically directed to assisting this child to resolve the particular lag.

[48] The work paid off. Although there are still some areas that need careful watch, lest she lose the gains that she has made, she is moving forward to her second birthday with a number of impressive strengths. Her developing skills have also played out during access visits, and been recognized by both mother and social worker supervising the visits, although mother's recognition fell short of what was expected by the social worker.

[49] There is much in this child's development that has been quite impressive.

[50] She walks, climbs stairs, runs, dances, has even learned to open doors on her own. I agree with mother's counsel that these are important milestones and worthy of recognition.

[51] It is also fair to say, on the whole of the evidence bearing on her development, that there is nothing that constitutes extraordinary "special need" in the overall sense of that characterization of need in children.

[52] There are certain vulnerabilities that play out in her day-to-day life. On the foster mother's evidence, she is a poor sleeper at times. In relation to the adjudication of future care and custody, it does not help much to note that poor sleep ability is something quite ordinary in young children. It is this child's reality and the family into which she will go forward that will need to be able to deal with that, whatever other demands are on them.

[53] She is also quite anxious when confronted with changes made to her life.

[54] It is acknowledged that she needs help with development of her fine motor skills.

[55] The evidence relevant to her "lags" suggests that, on a "go forward" basis, the task is to sustain the gains that she has made, be alert to lags that emerge over time, if any, and responsibly to address problems as they arise.

[56] The evidence also identifies skin irritability as something that needs to be managed responsibly. Both in her time with her mother and in her foster care, severe diaper rash had to be managed. She was also observed at an access visit to have scabbing behind her ears, inviting concern that she may be prone to eczema or that cleansers used to manage her hygiene are not suited to her skin.

[57] What must also be noted in relation to her present state of development is that it took a very dedicated parenting to get her there. The demands on the foster parents' time have been considerable — not just the trekking of her to and from various appointments to deal with her developmental lags, but also and most specifically the "homework" arising from the clinical investigations and directives.

[58] I move now to considerations of each of these parents and their readiness and ability to parent this child responsibly on a "go forward" basis.

5.2: The Mother

5.2(a): On the Issue of Risk Posed by Mother's Mental Health

[59] It is, on the whole of the evidence, substantial.

[60] This now 36-year-old mother bears the burden of schizophrenia.

[61] On the medical evidence in this trial, seemingly rooted in information collected from the mother herself, she has borne that burden since she was in her 20s. On mother's account — and there is caution in the medical records that she is a vague and not particularly reliable historian — there is no history of mental illness within her family.

[62] Her counsel pointed out that the sole issue, from the mother's perspective, is her mental illness and whether it is an insurmountable barrier to a restoration of this child to her care.

[63] I took into account in this regard the society's settlement of its "need of protection" claim on a finding of "inability to care" ground rather than the clause 37(2)(b) "risk of physical harm" ground in the Act initially advanced as the proper basis for a finding of this child's need for protection in the care of her mother.

[64] In the circumstances of this case, the selection of the more benign ground does not erase from view the reality that this mother's "inability to care" is centred in a mental illness that has proved difficult for her to control. When out of control, that mental health creates real risk of harm to a child too young to understand, too young to seek help on her own, too young to figure out how to keep herself safe until the flare subsides.

[65] She would have this court find that, although 2012 was a tough year for her, 2013 has been free of hospitalizations and she is now ready to resume her parenting of this, her youngest child.

[66] Her counsel points out that she has been compliant with her medication, that she understands that a failure to take the medication as prescribed for her sends her into a deteriorating state and that she can be counted on to get the injections needed and take the daily tablets medication that are part and parcel of the medical management of her illness.

[67] On the whole of the evidence relevant to this mother, this is her reality:

"Some" stability is not the answer to the problem for this child.

It is common ground that mother has had no hospitalizations during 2013. That in itself did not, when set in the context of the whole of the evidence of her functioning during 2012, and the earlier years, yield the finding that her mental health has been sound over the course of this last year. Backdrop to the removal of this child from her parenting is a history of episodic deterioration in this mother's mental health, sometimes because she has stopped taking her medication, sometimes because her medication needs to be changed, sometimes for reasons that remain mystery.

This mother is a very private person. She parcels out tidbits of information to those who need to know much more about what she is experiencing, whether it be medical staff receiving her in crisis or child protection staff trying to protect her child in her home when she is not feeling well.

Vague "I'm fine", "Everything is good", when it is clearly not, is not a good base to understand what she experiences. It leaves in the dark everyone who is trying to help her. This child began her life with her mother with five weeks of guesswork about her mother's mental health stability

[68] The bottom line is that the mental illness has seriously affected her ability to provide a consistent and child-centred parenting to her children. The historical evidence in this trial of removals of her two older children from her care during times of deterioration is stark testament to the impact of this mental illness on both her and her children.

[69] It is true that, in the past, the society has returned children to this mother's care, with the endorsement of the court, once her mental health is stabilized.

[70] The stability could not be sustained, despite the hopes of all involved in those returns. It is common ground in the trial that this is the third time within a six-year timeframe that this mother has sought a return of children removed from her because of deterioration in her mental health.

[71] The experience of the two older children is important backdrop in this regard. Until the children were given long-term parenting by adults other than their mother (the boy with his father and the oldest child with her mother's next-door neighbour), the life of both children was significantly disrupted during the transitions back and forth between their mother's home and either extended family or society foster care.

[72] There is also an insight problem. The mother was frank in her testimony that she herself does not believe that she has mental illness. She does what she does in medication and psychiatric appointments to meet the expectations of others. She is prepared to continue to meet the expectations of others because she does appreciate that absence of medication sends her into a state of poor health. She has virtually no recognition of what actually happens in that regard, nor is it reasonable to expect that of her. This mental illness plays out in a disconnect with reality, and that is precisely what happens to her: disconnect and no memory of what filled the time of disconnect.

[73] It is also concerning, on the whole of the trial evidence, that her medication is not proving sufficient to keep deterioration of her mental health at bay.

[74] On the testimony of the next-door neighbour who is caring for this mother's older daughter and who displayed clear caring for this mother and her struggles to maintain her health, this mother's loss of contact with reality was playing out as recently as the evening before this woman's testimony in this trial. The theme is always the same; this mother's loud attempts to "stand up for herself" in relation to someone in her mind's eye who is finding fault with her. At these times when the neighbour intervenes to check on her wellbeing, she finds the mother alone. Although this woman quite readily admitted that she could not see through the walls into mother's apartment and could not state with certainty that this mother was not talking on the telephone with someone at these times, she also testified to occasions when the mother brought these rantings into the hallway and onto the mother's apartment balcony. The society social worker responsible for service to her had experienced the mother's rantings herself when, in the early stage of the child's foster care, he went unannounced to check on her, worried that she did not show up for a scheduled access visit. The disconnect has also played out in a quieter form at times in the course of the child's access visits.

[75] The conversations with herself that play out periodically during her access visits, result in an inability to focus on the child at all. Those supervising the access have had to regularly intervene to keep mother connected to the access.

[76] Even when not lost in her own reveries, time and time again, this child and this mother are in silo mode in the visit. Whatever the reason, the mother finds interactions with the child quite hard at times.

[77] The concern of the supervising social work staff is that the mother does not speak enough with this child during access. In some visits, she does not speak at all and seems lost in her own thoughts, quite oblivious to the child.

[78] The child is now at an age and stage where she actively seeks to engage her mother and finds herself unable to do it. What triggers the detachment from the child is not discernible. It just happens.

[79] The society had embarked on a semi-supervision of the mother's access with this child within the society's premises, only to return it to full supervised access when the mother began to talk to herself during access in a manner that appeared to be gibberish.

[80] The difficulty for the mother's plan is that the child cannot afford to be left disconnected from her mother. If her needs are to be responsibly met, she needs a parent who can, and does, stay connected to her.

[81] There are periods of time when this mother cannot read this child's cues.

[82] It plays out in feeding during access when the child either wants to be fed and mother is not responding, or is not hungry and mother is trying nonetheless to get her to eat.

[83] It plays out in times of distress in the child, when the response given to the child, if there is response at all, instead of alleviating the distress, actually makes it worse. So it is that the child is confronted during access with a mother to makes scary faces or loud noises, either verbally or with the jangling of a toy close to the child's face, seemingly unaware of the child's alarm at what is happening.

[84] This drifting into disconnect with reality presents real risk for this child's safety and wellbeing if she is alone in her mother's parenting.

[85] Her mother lives alone and intends to continue to live alone. Her mother's apartment is on the 10th floor of the apartment complex. The apartment has a balcony. Although mother is convinced that her locking of the balcony door is sufficient safety, it does not factor in times of "disconnect". It also ignores the reality that a curious and enterprising child can learn to open the door on her own. As a matter of common sense, when this mother's mental health is unravelling, this little girl cannot be left to fend for herself until help arrives for her. It is tragedy waiting to happen.

[86] So it is that, although the mother has not been hospitalized during 2013, she is not positioned for a resumption of this child's care.

5.2(b): The Mother-and-Child Relationship

[87] 2012 was a very difficult year for this mother and she missed a great deal of the access arranged for her with the child because her mental health was in revolving deterioration for most of that year.

[88] In 2013, the mother has been more consistently available to attend access, the child is older and has come to know her as a familiar presence and, as a result, this child has had some nourishing moments in her mother's company.

[89] The following facts are notable in that regard:

Whatever her reaction to others outside of her foster home, at this point in her life, this little girl does not "make strange" with her mother. On the evidence as a whole pertinent to mother-and-child access, she goes readily to her mother, seeks to engage her, tries to communicate with her and has learned, with mother's tutelage, to repeat "Mama" in response to her mother voicing of that identification to her.

This mother has also at times voiced pride in this child's accomplishments. On at least two visits, she and the child were engaged for a time with each other in the sort of "conversation" that can be had with a child who is still at the babbling stage.

[90] This is reflective of interactions that are not intercepted by the drifts into disconnect. To the extent that the mother and child have been able to "connect" at those times, there has been benefit to this child in her mother's company.

[91] That acknowledged, there is well grounded worry on the whole of the evidence relevant to child-and-mother access about the extent to which this mother can keep herself in interaction with this child.

[92] This child is safe, only if her mother's plan for her care, both short term and the foreseeable long term includes 24/7 supervision of the child's parenting. That is, on the evidence, the degree of supervision proportionate to the risk in this case.

[93] The mother's plan does not have that component, nor can a court-ordered society supervision provide that degree of intervention. I address that plan in due course.

6: ON THE PLANS FOR THIS CHILD

[94] I begin with the need for the person(s) entrusted with this child's care to manage her transition from foster care.

[95] This child is not a blank slate at this age and stage of her life.

[96] Mother's counsel is quite correct that this child's present continuity of care will be disrupted by any order made by this court.

[97] That requires a careful attention as to what is to support her through the disruption.

[98] Of all the plans alive in this case, only her mother is a "known" face to this child. Her father is a stranger to her, as is his domestic partner and the children in their home. He has not seen her since she was four months old and what he knows about her development and her needs has been acquired in the trial itself. The domestic partner has never met this child and, on her own evidence, knows nothing about her. If the child is released for adoption, her prospective adoptive parents are also strangers to her.

[99] She is an emotionally quite fragile child at this time in her life, whether by nature or by nurture.

[100] That fragility must be managed carefully in transition of her from foster care into an intended-to-be long-term parenting. If her own emotional life is to be protected and nurtured, she needs a parent who can be readily available to her and steady stream of unconditional love and attention through the transition. She cannot be expected, either directly or indirectly, to meet the emotional needs of those given parenting responsibility of her.

[101] That is so because, not surprisingly, given the length of time that she has been in foster care, this child has rooted herself in her foster parents. She will now be expected to rip up those roots and expected to sink them in someone else. That is a formidable challenge for a child not quite two years of age and still too young to understand why she is being uprooted at all.

[102] Transition of her from that family is likely to be difficult for her and needs to be very carefully managed by those who must let go, for those who want her to root herself in their care, and by those assigned the task of easing this child though the loss of all that she has invested to date in the only "parents" whom she herself knows.

[103] Also not surprising, given her sense of where her safety lies and her age and stage in life, she does not easily abide strangers in her midst.

[104] In her, this stranger anxiety is still quite pronounced, on the uncontradicted evidence of her foster mother. This is a child who has not been able to acclimatize herself to changing drivers of her to her access visits, so fearful is she of strangers.

[105] Her only babysitter is the older daughter of the foster parents. All the remedial work done with her and for her has been with the active participation of the foster mother. She displays joy in the presence of either foster mother or foster father. Not with strangers.

6.1: Specific to the Mother's Plan

[106] Counsel for mother points out, quite properly, that acceptance of the mother's plan or as an alternative, the father's plan, respects the secondary objective of the Act to reach to protection orders that keep the child within her family.

[107] It is true that a placement with mother would likely enable the child to have access to her oldest half-sister who lives next-door to her mother, access to her father and, via him, to her other half-siblings.

[108] The decision for this child does not turn on whether the mother has "done what she agreed to do in the statement of agreed facts", placed before the case management court: "to take care of her mental health". That is one of many factors to be brought to bear on the decision-making for this child.

[109] Counsel points out that she will continue to comply with the medical management of her illness. What can reasonably be expected in that regard is not clear on the whole of the evidence. Her treating psychiatrist did not testify in the trial. This is the same psychiatrist who has been treating her over the years when children were removed from her because of deterioration in her mental health. I got no sense that he has any particularly close interest in her. When the social worker tried to arrange an emergency appointment for mother, while the child was still in mother's care, he did not provide it. The earliest appointment was a week later, even though he knew that her newborn was in her care.

[110] Counsel points out that she will continue her participation in Across Boundaries. If she is attending the Across Boundaries programming daily, if she sees an individual counsellor every two weeks — and her own evidence in that regard was not corroborated by those who interact with her there, except her friend Tessie O. — I have nothing to shed light on what stability she shows there. I can infer, since a number of her admissions to hospital in 2012 were triggered by a staff of Across Boundaries, that they have had no reason in 2013 to have her transported to hospital because she is decompensating.

[111] A court must find, on the whole of the evidence, an alignment of the secondary purpose with the Act's primary objective of the Act to promote the child's best interests, protection and wellbeing.

[112] The evidence yielded the following findings in that regard:

Contrary to the submission of her counsel, the mother is not managing "extremely well", or even well. She is managing better than she was managing her mental illness in 2012.

If the mother is "fully compliant with her treatment plan", there is reason, on the whole of the evidence about mother's health, to revisit that medical management.

The once-a-month injection that appears to constitute the involvement of her treating psychiatrist, and the twice daily pills that rest for their efficacy on whether she remembers to take them, are not keeping her free of the disconnects that overtake her and that are in plain and unadorned evidence in this trial through the observations of others who have encountered and tried to manage the disconnects.

Contrary to the submission on her behalf, this mother does not display good insight into her mental illness. She told this court quite candidly that she does not believe that she has mental illness. She does accept that she must take medication for something because, when she does not, she does not feel right. That is as far as she can take herself.

It is also advanced on mother's behalf that she will do whatever is required of her under a court-ordered supervision of her parenting.

The evidence did not provide confidence on that point. Although the mother believes that the access has gone well, there have been times when it has not. She has been resistant to the guidance of those supervising her access with the child on issues that directly bear on the child's safety — forgetting that the child's bottle is boiling away in the warmer, being mindful that a forcing of food into a child who is resisting it creates a choking hazard, to cite just two examples.

I looked in particular to what specific supports she has in place for herself and the child that can immediately be activated if the child is returned to her care.

At the time of trial, she was still seeking family supports. None was forthcoming.

But for the plan for daily check-in by her friend Tessie O., on the whole of the evidence, this mother's plan is essentially a return to what persuaded a court to return her oldest daughter to her care a number of years ago.

She will continue to live alone in her present apartment.

She will continue to go daily to Across Boundaries and take this child with her. What awaits the child there was never answered in the evidence. The mother indicated that there was no child care provided there. It is unclear what her own programming is — and is not — while she is in that setting. Although she has a caseworker there, that individual did not provide evidence in the trial.

6.2: On the Friend Advanced as Part of the Mother's Safety Plan

[113] This woman testified that she is prepared to visit her daily.

[114] Mother, through her counsel, urges this court to find this friend's testimony compelling, and, "to give this friend credit for putting herself out there for this mother". "For all we know", counsel urges, "she could provide daily check-ins", despite the other commitments in this friend's life, some of which she outlined in her testimony. "It is a possibility".

[115] I cannot rest this child's safety in her mother's care in "possibilities."

[116] A "dropping by" for a daily check falls far short of what this child needs to be kept safe. A "possibility" that someone will be available to intervene well before harm occurs falls far short of what is needed for this child. It has long been the law that we do not wait for children to be harmed before intervening to protect them.

6.3: On the Alternative Plan Advanced by the Mother

[117] As indicated earlier, by the end of the trial, the mother was asking this court to place this child with the father and his partner if the court did not accept her own plan.

[118] Her own evidence, given before the father's testimony, is understandably sparse on what in his plan was persuasive to her. There is no evidence that she herself had had any contact with the father after mid 2012. It appeared that she, like the other participants in the trial, was caught by surprise when he entered the court midway through the morning of the first day of the trial and that she, no differently than the others, would be learning about his circumstances in the course of the trial itself.

[119] In his closing submissions, her counsel pointed to the following benefits for this child, if the father's plan were to be given to her, none of which are available to her in an adoption:

It allows this child to grow up within her family of birth with knowledge of both of her parents and her half-siblings, thus saved the quest of someday having to search for them.

It makes visible the importance of birth family, or as counsel phrased it, compliance with the "laws of nature", something that this statute holds in high regard.

[120] I do not have to be persuaded that these benefits are not available to her in an adoption. It is reason that the statute requires a close scrutiny of the need for an adoption plan at all. That family plan must, however, be shown to be in alignment with the primary objective of the Act before the court can endorse it.

[121] I move to that now. The evidence as a whole yielded the following in that regard.

7: THE FATHER AND HIS PLANNING

[122] From the perspective of mother's counsel, the "biggest problem" with the father's plan is its "11th hour arrival". He asks the court to overlook that bad timing for the sake of this child.

[123] In his view, the plan that the father unfolded in the trial "has legs" — notably, that "the father's intentions are good. He and his partner could easily have written off this child and not come to the trial at all"; that this father and his partner already have a "special needs" six-year-old in the family and are thus familiar with the extra work required for such a child; that they must be responsibly parenting the children already in their care because, but for a brief opening and closing after a domestic argument that was reported to the society, there is no evidence of child protection involvement with the family.

[124] He also noted that the father's common law spouse forgives the father's unfaithfulness to her and is able to set aside the grief that he has visited on her by his dishonesty, "for the continuity of her own family with him", and to give this child, who is without fault, a plan with "family".

[125] With those features in mind, counsel posed this rhetorical question: Does the timing of this plan mean that this child loses out?

[126] The short answer to that question is this: "It depends".

[127] The court must consider what the whole of the evidence yields about the likelihood of the late arriving planning to promote the child's best interests, protection and wellbeing over both the short and the longer term.

7.1: Specific to the Plan Itself

[128] If this not quite two-year-old child is placed with her father, she joins a family composed of her father and his domestic partner, her now six-year-old half-brother, her half-sister within a few months of her own birth, and the 14-year-old son of the common law partner.

[129] He puts forth himself as this child's primary caregiver and is presently available. Father is apparently on employment insurance after a layoff from his out-of-town employment.

[130] He makes plain that he would not seek employment until such time as this child is settled in the family and ready for day care. If necessary, he would go on social assistance to ensure his availability. He has been on social assistance in the past and is familiar with its workings. His partner would continue in her full-time employment to provide the primary financial support for the family.

[131] On his evidence, he has the full support of his common law partner. She would have the court make that finding on her own evidence as well.

[132] All the children presently in this family are in either school or day care and the expectation is that, once settled into the family, this child would also be in day care.

[133] The father was offering an expansive and "welcome in my home anytime" sort of access to the mother.

[134] In this case, the "timing" of this particular plan did not emerge on the whole of the evidence as the only impediment to placement of this child with her father.

[135] This plan did not emerge with the "legs" advanced by counsel, or any other legs sufficient for a level of intervention pegged at the level of court-ordered supervision of the child's parenting.

[136] This was not a "plan" in any meaningful sense of what is required by this statute for this child. It is more properly characterized as a catalogue of intentions or a "proposal", and wholly uninformed.

[137] Had the plan been found, on the whole of the evidence, to have legs, this court could and would have stood down at the close of the evidentiary case for each party to give them fair opportunity to explore the plan and return to the trial with the results of their exploration. The "legs" would have provided a rational justification for further delay in permanency planning for this child.

[138] When set within the whole of the evidence pertinent to his involvement in this child's life and her needs, this father's "plan" rested far too much on a wholly uninformed optimism that everything would work out just fine.

[139] What needed to rise from the evidence was sufficient fact-based optimism about the father's planning to infer implementation on the "up close" horizon. Absent "legs", further delay to await their emergence simply exacerbates further the unfairness already visited on this child by the already frank breach of the maximum timeframe permitted for temporary foster care, even when the limited extension of that timeframe permitted by the Act is taken into account. See CFSA, section 70.

[140] The court's pivotal concern was not the arrival of his plan in the midst of the trial, but what emerged in terms of risk in the plan itself.

[141] I address now the most prominent impediments to the court's ability to endorse the father's desire that this child join his family as it is presently constituted.

7.2: On the Extent to Which "Planning" Has Been Brought to Bear on This Plan

[142] There has not been much, and what is there is fully uninformed.

[143] That is not surprising, given the time and attention given to it.

[144] This father went home at the end of the first day of trial day not knowing whether he would be supporting one of the plans already before the court or presenting his own plan. He indicated that he needed some time before he could answer the court's question in that regard. The planning then evolved over the weekend.

[145] Like most ventures that rest in a cobbling together in haste, it has not been thought through.

[146] In the end, what father was offering, on the whole of the trial evidence, was not a "plan" in any meaningful sense of that word. It is a proposal, and one fully uninformed. This "plan" rests in boundless optimism that all will unfold just fine, whatever the issues that might come their way.

[147] The evidence as a whole did not yield sufficient factual basis for that optimism.

7.3: This Father's Attitude to Planning

[148] This latest desire to be her long-term plan comes many months after he had let lapse his initially declared intention to plan for this child.

[149] As between the two parents, he had been the first to file response to the society's protection application. His answer and plan of care for this child filed on 20 June 2012, presented the scenario of a brief society wardship while he set himself on the task of acquiring "suitable" accommodation and day care. He had experienced counsel, highly respected by this court. It was a plan that was taken seriously by all, as indeed it must be within the scheme of this statute.

[150] In the "near future", he declared, he expected to be "in a position to plan for the child" and intended to "present an updated answer and plan of care to the court "after he secured suitable housing and day care". He pointed out his then shared accommodation with three men and unsuitable for an infant. He knew, but no one else did, that he was actively misleading anyone reading his answer and plan of care. There were no three men. He and his partner and their children and the partner's son were the residents at that address. He made no mention in his answer and plan of the partner or the children who were already part of that household. He made no mention of his older child's residing with her mother and the extent of his involvement in her life and times.

[151] He then disappeared.

[152] Fast forward to the present.

[153] He admits that he was lying to the other participants in the case and the court itself.

[154] His reason?

[155] He had also been lying to his partner and to this child's mother about this particular child's existence. His partner found out "from me", he indicated, sometime near the end of the summer of 2013 about the existence of the child born to R.D. He told her that he "needed her help to get [the child] out of CAS".

7.4: The "Trust Me" Approach

[156] The "trust me" sort of approach required a finding, on the whole of the evidence, that his recent awakening to the impact of his conduct and attitude on others has been enough to give him instantaneous cure of certain frankly irresponsible behaviour; or alternatively, to find that his inability to manage critically important components of his life would not likely play out on the back of this young child.

[157] This "trust me" was also being voiced by a man who has laid down a serious pattern of deceitful behaviour. On his own evidence, he has a criminal history rooted in deceit. On his own evidence, he went forth from the earliest stages in this child's life deceiving others about her existence. On his own evidence, this man filed information in this court case about himself and his circumstances that he knew to be false.

[158] That pattern of deceit is a problem for his expectation that the court will simply "trust" his ability to be truthful in the future.

[159] Risk of further deceitful behaviour is a risk to this child quite different than the risk found in the mother. There has been no mental illness throwing up obstacle to him in the management of his life. It is, in his case, a choice about things, and as he acknowledged frankly in his evidence, he has made a lot of bad choices.

[160] A court cannot be wilfully blind to a parent's frailties when it places a child under an order that requires supervision of the parenting. This man's pattern of deceit raises serious issue about the society's ability to responsibly monitor the child's wellbeing under a court-ordered supervision. "Trust" does not descend full blown from the clouds.

7.5: His Involvement with This Child

[161] It has been sparse.

[162] He told the society worker, when the mother was resisting his participation in post-apprehension access with the infant, that she was mad at him because he had not been involved with her very much during the pregnancy.

[163] He was not present at the child's birth.

[164] The father had a bit of contact with this infant in the early weeks of her life, but not much, although it was quickly evident that this mother really needed help with this infant. He knew that the society had been attempting to protect the child within her mother's care.

[165] When, on 22 March 2012, the society considered the risk too great to the child in her mother's care, the society worker tried to reach the father via the telephone number that he had provided to the society. There was no answer and no voice mail.

[166] In the wake of the apprehension of the child next day, the society social worker advised the father of the apprehension, gave him the first court appearance date and received his expression of interest in seeing the baby at that time.

[167] Child-and-parent access was arranged for both parents. Although he attended a number of visits, he could not be counted on to show up. A significant number of visits were missed because, on what he was telling the society at the time, he had "work commitments" or had to be out of town for some reason. Other times he simply did not show up for access, nor did he contact the society to indicate that he would not be coming. So it was that there were times when the child was brought to the access in expectation that he was coming, only to find herself, after a reasonable time of waiting for him, being bundled up and transported back to her foster home.

[168] When he indicated that he was having a problem with weekday visits "because of his work schedule", the society organized Saturday access for him, acknowledging that in doing so he had been handling the infant sufficiently well in the supervised visits to give the society a basis for lifting the supervision somewhat.

[169] He never showed up for the Saturday access, although the child was transported from her foster home to the Saturday access centre for the visit with her father. He did not call the society or otherwise provide any information that he would not be coming.

[170] It was June 2012. This infant was four months old. He chose to disappear from sight, leaving his infant dangling in "temporary" foster care.

[171] It would be the last time that the society would see or hear from the father until he walked into the courtroom midmorning on the first day of this hearing.

[172] He chose to leave no contact information for the society. He chose to give no notice to the society that, from that point forward, he would not be available for access with the child. He chose to make no inquiries about the child.

[173] So it was that he knew virtually nothing about this child's life and times when he arrived at court that morning.

7.6: On His Disappearance from the Court Proceeding

[174] Court proceedings are serious business. This father, familiar as he is with the importance of being available and ready in court proceedings from his part involvement with the criminal court, can be expected to recognize that reality.

[175] He also chose to disappear from this court proceeding without notice to any of the other participants or to the court itself.

[176] That was particularly problematic for this child because he had left dangling in the wind his announcement early in the litigation that he wanted to be the long-term plan for her.

[177] On information that he himself was providing about himself, set in the context of his management of the infant in access visits, and the continuing crises in the mother's mental health, the society considered him a serious contender for custody responsibility.

[178] It waited. Nothing happened. The statutory clock kept ticking towards the maximum allowable "temporary" foster care for this child. He never surfaced. The society, not surprisingly, amended its protection application to seek Crown wardship to implement an adoption plan for the child.

[179] The society tried, without success, to locate him to serve him with its amended pleadings.

[180] Efforts to locate him included a trek in February 2013 to an address that emerges in the trial evidence to be the residence of both him and his common law spouse and their children. She declined to accept the envelope, indicating that he had not lived there for over a year. So it was that the society eventually sought and was given a court order that dispensed with service of documents on him.

[181] On the partner's evidence in this hearing, she knew how to locate him. She also told him promptly that someone had come by looking for him. He dismissed the visit as inconsequential. The partner knew that the call had something to do with a child and children's aid society. She never probed him on what it was all about and he never offered explanation.

[182] The society did succeed in getting the society's trial record into his hands, using an address of a "friend". It also sent him a letter notifying him of the specific trial dates. The father acknowledged when he arrived at court on the first day of the hearing that he had received it. He had not, however, read it in preparation for the upcoming trial, nor had he brought it to court with him. On his evidence, he believed that this was "just another court appearance" like all the others.

[183] I did not find him believable on that point. Both the word TRIAL and the dates scheduled for that trial are on plain display in the document.

[184] When he arrived midmorning on the first day of the trial, he was given opportunity to question witnesses and assisted by the court in that regard. The court stood down for a day to give both him and the parties opportunity to bring themselves up to speed on what was — or was not — to be forthcoming as a result of his late entry into the trial.

[185] The society had provided him with another copy of its trial record for his use in the courtroom on the first day of the trial.

[186] It was apparent in his evidence days later that he had not absorbed much of the information in it, including and most especially the information relating to this child's needs, although he confirmed to the court that he has no difficulty reading or writing.

7.7: On the Support of the Father's Partner

[187] She is a compassionate spouse, dedicated parent, with a fine sense that this child should not be "punished" because of her father's conduct.

[188] She is a woman sufficiently invested in her relationship with this man to forgive his transgressions and resolve to move on. Prominent in her priorities are her children born of their relationship as well as preservation of the family constellation that includes her teenage son.

[189] She is willing to do what is needed, if this child is entrusted to their joint custody, including raising the child on her own if needed. This was an important feature for the father, in the event of problems in their relationship.

[190] She is also loaded to the gills with responsibilities in the family. In order to manage both her work commitments (she is a personal care worker with the elderly) and her "home" responsibilities, her day begins at 5 a.m. and ends sometime around 9 p.m. Weekends are when she does what does not get done during the week.

[191] The partner's testimony, while echoing her support of him, did not leave assurance that she is particularly enthusiastic about the prospect of another child added to her family.

[192] She had her first notice that there was a child in the mix when the children's aid society came to her door looking for the father in February 2013. She did not accept the documents on behalf of the father. She either could not or would not assist the society in locating him. She did tell the father about the caller. He dismissed it as inconsequential. She asked no questions.

[193] On her own evidence, she considered this child and her circumstances to be the father's "problem", once she learned from him that this child existed. She left it to him to tell her what he wanted in help from her. She herself made no inquiries about this child at the time of that confession of paternity, or in the months leading up to this trial or indeed while the trial was underway.

[194] That happened, not because she is an uncaring woman, but because she is a very busy woman, working full time and providing the lion's share of the parenting the three children in the home. Her priority is her own children, and she refers to all three as "her" children.

[195] She knows nothing about the child. She had been too busy to read the trial record that was in the father's possession. She has never met the child. She was not asking for access to the child.

[196] She appeared caught off guard at times by what the father was advancing as preparedness for this child in their home, including access between the child and her mother.

[197] He described her as "there" for him, and her own evidence made plain that she has been in many ways throughout their relationship "there" for him.

[198] The father counts on that, even though it overextends her considerably.

[199] For example, the "incoming" child in the father's plan has sleep problems. To expect his partner and the children already in the home to manage the stress of a stranger child who cannot soothe herself to sleep is asking a lot. The evidence as a whole gives no confidence that it will be the father who single-handedly goes forth to settle the distress of the child who cannot settle into sleep.

[200] Plain on the whole of the evidence is the extent to which this woman's own needs and interests were on the periphery in this trial. It appeared to be a dynamic in this relationship. She does not probe him with questions about his comings and goings. She placidly accepts as the norm his use of various addresses for his contact information. She did not press him to provide her with his out-of-town address, even though that "not knowing" spanned a period well in excess of a full year.

[201] Whereas the father had left the impression in his evidence on mother-and-child access that their home was an open door, so to speak, his partner in her evidence appeared to be caught off guard when she was questioned on what she envisaged as mother-and-child access. Both her demeanour and the content of her evidence on this point (in essence, that something would have to be worked out) left a strong impression that she had not turned her mind to that issue in any meaningful sense.

[202] She mentioned a number of times in her evidence that her priority is her children. I do not doubt her on that point.

[203] "Being there" for the father does not equate with ability to be there for the child.

7.8: On This Father's Parenting Experience

[204] He has not acquired much parenting experience over the years.

[205] In relation to his oldest child, he and her mother separated when she was an infant and her mother has always been her primary caregiver. For a period of some six years after that separation, he had no contact at all with this child. He now has an access entitlement to her by court order and is still in the process of nurturing a father relationship with her. Until his re-entry to her life, that child viewed another man as her father.

[206] He has not been the primary parent in the life of his two children born to his common law partner.

[207] The partner took maternity leave for both children and provided the primary care. In her most recent maternity leave, she was effectively single parenting both their young son and their newborn. In the evidence of both parents, he left town before the birth of their second child to take employment and was available for parenting only on weekends and "days off". Weekends, on the evidence of his partner, amounted to "three out of four" on average. Sundays were the days he visited with his oldest daughter before returning to his out-of-town employment.

[208] When his partner returned to work, the infant was entrusted to day care. The boy was in day care from the time of his first birthday. He now is in school and before and after-school care.

[209] His son has been in day care since his mother returned to work from her maternity leave. The youngest child in the home is also in day care, although this father is not presently employed.

[210] Since mid 2013 and until a few weeks ago, on his evidence, he was working outside Toronto, and available only on an average of three out of four weekends, on the evidence of the common law spouse. Part of these weekend times was dedicated to access time with his oldest child.

[211] The extent to which he has been precluded from parenting because of work commitments is an unknown. There appears to be significant chunks of time that he was not employed, but also not fully engaged in parenting any of his children.

[212] He has left it to others involved with the children to do the day-to-day slogging of primary parenting.

[213] Whatever the reason, it has left him at best an access parent.

[214] This is important backdrop to his articulated intention to be a full-time parent to this child, whatever the cost to him.

[215] He leaves unaddressed how he has factored into that exclusivity of attention, both the ordinary and extraordinary needs of the three children who already know him as their father and yet have not themselves had much from him in the overall scheme of their own growth and development.

7.9: On His Scamming Behaviour

[216] Until this trial was underway, neither woman knew that the other existed.

[217] Neither knew that each had birthed a child sired by him; this mother in […] 2012 and the common law partner in July 2012.

[218] He also scammed the case management court and all the participants in the case.

[219] He can be taken to know, given his extensive exposure to the courts as part of his criminal career, that fraud on the court is very serious business.

[220] The case management court received in good faith his intention to plan for this child when she first came into society care. It believed him to be a man of substance because he was portraying himself in that light. That misleading contributed markedly to this child's drift in temporary foster care. Had his true circumstances been known, it is likely that permanency planning would have been scheduled much earlier in this case in order to align this child to the deadlines of the CFSA for temporary foster care.

[221] The deceit threaded through the trial in relation to this mother, and what he did and did not know about her.

[222] This man testified that he did not know that R.D. had mental illness "until they took the baby".

[223] That has no ring of truth to it. He had been present at least twice in the home of R.D. when the society was attempting, through monitoring of the society social worker, the society's infant specialist nurse, the Across Boundaries worker and the mother's psychiatrist, to support this mother's parenting of the infant.

7.10: On Certain Curiosities in His Lifestyle

[224] There are some curiosities about him that were never answered by the whole of the evidence:

7.10(a): His Various Addresses

[225] This father has not laid down a record of being easily accessible to those in this case who need to reach him.

[226] He maintains a number of addresses, what he calls his "mailing addresses". He does that, as I understand his evidence, because he likes it that way. The result is that those trying to get information to him, including the participants in this case, may or may not be successful, depending on who has what address.

[227] Why he maintains that "multiple address" lifestyle is mystery.

[228] On the evidence in this hearing, what is plain is that the effect of his choice is to mislead those relying on one or other of his addresses misled about him.

[229] Included in his addresses, for example, is the address of this child's mother.

[230] He produced an "Ontario Identity" card, unfamiliar to all in the courtroom, that has her address as his own. Why he does not have his card identification tied to his residence with his common law spouse never was answered in a manner that made any sense.

[231] I noted, in contrast, the mother's own attention to accurate contact information. In the medical records of the mother, she had him listed as her "spouse" and "next of kin" only until 2012. From that point forward, her next of kin is listed as her Across Boundaries caseworker.

[232] He also uses this mother's address as his contact point with Immigration Canada. He has some immigration issues — the details of which are not entirely clear. On his evidence, he has remained in Canada as a "protected person" within the meaning of Canada's immigration law. The certificate that he produced in evidence has expired. He claims to have obtained a renewal, but there is no evidence of that renewal in this hearing.

[233] He also testified that he applied for permanent status in Canada in 2009, on his account, but was not eligible because of his criminal history. He has applied for a pardon. There has been no decision on that application.

[234] The evidence of his purported interaction with officials in relation to that pardon application is particularly puzzling.

[235] He provided an unsigned letter dated 7 December 2013 advanced as a communication from PARDON Applications of Canada in Ottawa (see exhibit 10) stating, among other assertions about the application, that "in our professional dealings with E.K., he has expressed remorse, sincerity and resolve . . . to continue going forward as a law abiding citizen".

[236] The date of the letter is curious coincidence. The content echoes his own submissions in this trial. No file number is cited. No one is named as the author of the letter, leaving the closing invitation "please ask us directly, should you have any questions", as nonsense. There is no person identified in that letter or otherwise in evidence in this hearing as a contact person. The reader is left to accept the letter at face value. I could not give this letter any weight. There are features on a plain read of it that invite concern about its integrity.

[237] He also uses the address of "a friend" who lives in the vicinity of the mother of his oldest daughter. It is at that address that the society left its trial record for him, in the event that he made contact with the friend.

[238] His common law partner is aware that he uses other addresses because, on her evidence, he brings mail home that has addresses different than the address that they share. She does not ask questions about it.

[239] Use of various addresses might rest more comfortably with this court if this man did not, on his own evidence, have a criminal history rooted in crimes of deception and fraud, and a recent history of visiting his deceitful behaviour on the two women who have borne his two youngest children.

7.10(b): His Episodic Employment

[240] Both on his own evidence and the evidence of his common law partner, he is adept at getting employment in the "customer services" sector of the employment market. Yet he does not appear to have steady employment. The impression left by his evidence is that this is a matter of choice.

[241] At the time of trial, he was on Employment Insurance and would be looking for work when that ran out. He assured the court that he was quite prepared to reach to social assistance, if needed, to enable him to be a stay at home parent to this child, pointing out that "This is Canada" and that in Canada, he "can always get financial assistance".

[242] The picture is a man leaning on others to support him and house him.

[243] This child's mother can ill afford to be giving him money, but he appeared to be nonplussed by that reality in her life. Both he and this child's mother testified that she would lend him money and allow him to stay at her apartment if he needed to do that. The mother's income is ODSP. Her apartment is within social housing.

[244] His common law partner is the steady income earner in his present family constellation, as well as the primary parent of their children and her 14-year-old son residing in their home. She is also the driver for the family, since he does not drive.

[245] In relation to his oldest daughter, he and her mother have a child support arrangement that allows him to "do what he can". His evidence left a strong sense that doing what he can is not yielding very much; in short, that this child's mother is both her primary parent and her primary financial support.

[246] He has paid no child support at all for the child who is the subject of this application. He bought the mother a few items during her pregnancy when she asked him to help her out.

[247] All this was puzzling, because on plain observation of him, he appears to be strong and healthy, blessed with excellent oratory skills and quite obviously attentive to his grooming. He also does not appear to have any physical or mental disability that might throw up obstacle to his income earning capacity.

[248] Both he and his common law partner testified to the ease with which he is able to get work in the area of customer relations because of his communication skills, notwithstanding his lack of high school diploma.

[249] And yet he works episodically. It made no common sense. It is the mothers of his children who have been the primary financial security and stability for their children.

7.10(c): On his Understanding of the Impact of His Conduct of Others

[250] It is poor.

[251] As indicated earlier, deceptive behaviour is a red flag when what must be considered is a court-ordered supervision of a child's parenting. This father's deceptive behaviour in relation to both the child and this case raised real concern about the ability of a court-ordered supervision of the parenting to provide a sufficient protection for the child.

[252] The father has engaged in this course of deceit, seemingly oblivious to the impact of his lies on those who need him to be speaking the truth; whether it be his partner, his children, this child's mother and her counsel, the children's aid society staff responsible for service to the family under a court-ordered supervision and its counsel, the child's counsel, and the court itself.

[253] The father cannot expect the society, burnt by his dishonesty to the society and the price that this child has paid for it in delay in permanent planning, to easily rest its trust of whatever he and his partner might present to the society as "reliable" information about the child's development and wellbeing in his care. His partner displays no ability to be a voice independent of the father in relation to this child.

[254] His assurance that the social worker in charge of the case has confidence in him and is his "friend" is misguided nonsense. He had the trust of the social worker in charge of the case at the beginning stages of this case, when the social worker took this man's portrayal of his then circumstances in good faith. He betrayed that trust.

[255] Truth telling in this trial also emerged as a problem for his partner, but in her case plays out in an echoing what father himself wants her to tell this court. It is her way of trying her best to "help" him. This child needs a parent not so concerned about pleasing this father.

7.10(d): On his Insight into the Needs of Others for Whom He Bears Responsibility

[256] It is fragile, and at times not there at all.

[257] So it is, for example, that he believes that he has a particular insight into this child's delays because his six-year-old son is also delayed.

[258] That boy was only very recently diagnosed with autism, and is now on a waiting list for treatment.

[259] On what could be gleaned from the evidence of father and his partner to this boy, these parents had their son's delay brought to their attention by day care staff when he was a toddler. They were slow to respond to the problem. They preferred to believe that he would outgrow the delays in his development, did not want him labelled "retarded", did not want pharmacological supports for him.

[260] The child and his day-care staff were left to manage as best they could.

[261] He also volunteered a curious foray into the topic of substance abuse as a feature in his life that, in his mind, called for some counselling.

[262] He "used to use marijuana", he testified, but stopped "because of the impact on my brain". He pointed out that he recently joined a drug counselling program. He could not name the programme or the counsellor, although he testified that he had been there three times. He could only give the general location of it. Absent corroborating evidence, this testimony did not have a ring of truth to it.

[263] In addition, I noted that the location of this purported counselling is within Toronto, far removed from the town in which he and his partner have their residence. He does not drive, on the evidence in this hearing. How he planned to incorporate this counselling support for himself into his life on a "go forward" basis, given the other responsibilities that he asks be loaded onto his shoulders, remained an unknown.

[264] Looming large in this child's most immediate needs is a carefully managed transition of her to long-term planning, wherever it is to be secured. What would greet this child within the father's desire to parent her are three children who have never met her, one of whom is a child with special needs of his own that place demands on his parents; a mothering figure who has never met her, and who until relatively recently did not know of this child's existence, and a father who has not seen her since she was four months old, and knows virtually nothing about her needs and interests.

[265] It is the sort of transition reality that is likely to trigger the need for a particular sensitivity to what this child can — and cannot –tolerate in integrating herself to all these strangers. Neither the father nor his partner displayed any realistic appreciation of that.

7.10(e): On the Parenting of this Child as His Opportunity to Prove Himself

[266] There was a recurrent theme in his evidence that has this child as opportunity for him to prove to himself, as well as others, that he can get something right.

[267] His firm belief that he needs this opportunity to parent this child to prove that he "can get something right" ignores the reality that this not yet two-year-old, with her own needs and interests, cannot serve as the instrument through which he works through his redemption of himself.

[268] If the court's failure to give this child to him will "kill [him] inside", he makes that choice.

7.10(f): The Absence of the Walk

[269] In the end, this father has yet to "walk the walk" to responsible management of his own life.

[270] There is much to be accomplished in that regard that, for his own sake, the sake of his common law partner and the three other children that are already a part of his life, cannot be distracted by the needs and interests of the young child who is the subject of this case.

[271] This is unlikely to be a walk that can be quickly accomplished, given the extent to which the problematic behaviour has been a lifestyle choice.

[272] This father can express remorse — and quite eloquently. What is also evident is that he expects those affected by his conduct to forgive and simply move forward.

[273] I came away from the trial uncertain about what can be drawn on in terms of his understanding that "talking the talk" — and he is very adept at the talk — takes its value from a "walking of the walk".

[274] He relies on his resolve to do better now that the truth is out and the caring of others to get beyond what he has done.

[275] In the end, I found too little in areas where the father wanted this court to "trust" him. Those who deceive invite the mistrust of others. On this court's credibility weighing, his dishonest behaviour tilts the scale quite markedly.

[276] He has ample opportunity within his presently constituted family responsibility to "get it right", and three children, a common law spouse, and the mother of his oldest daughter who would likely benefit considerably if he walked the walk for their sakes.

[277] He has had ample opportunity to plan for this child within a timeframe that paid attention to her needs. He squandered it.

[278] She cannot afford either the experience or the timeframe likely needed for the unfolding of her father.

8: CONCLUSION

[279] Counsel for mother quite properly pointed out that, in the end, the decision must rest on what is "fair and just". What must be kept central, however, is the "to whom" part of the concept.

[280] The centre of this adjudication must be "fair and just" to this child. Counsel for mother points out that it is "worth" taking a chance, that, if it fails, status review is available as remedy. There is problem in that thinking. Life in litigation is a series of "temporary" care situations and is precisely what this statute tries to spare the child.

[281] Injustice and unfairness has already been visited on her by the slow pace of this case.

[282] The father's case is essentially, "Everything will be just fine. Just give me a chance". There are times to embrace that sort of boundless optimism and times when to embrace it is to put in jeopardy the wellbeing of another. This is such a case. There is not just a bit of jeopardy in the father's proposal for this charge. It is a substantial jeopardy.

[283] This case is not about giving the father "a chance". It is about securing for this child a plan for her future care and custody that is likely to serve her needs, protect her from harm, centre on her wellbeing. So it is that the court could not embrace the father's proposal for her.

[284] There are times that a parent's needs and interests must fade into the background in order to clear a path to serve the child's needs and interests. This is such a time.

[285] This court cannot, on the whole of this evidence in this trial, risk a return of this child to her mother even under a court-ordered supervision and conditions to govern that parenting. The mother cannot bear that responsibility for reasons that are beyond her control.

[286] This court cannot, on the whole of the evidence in this trial, risk a placement of this child with this father, even under a court-ordered supervision and conditions to govern that parenting. He has far too little to offer this child and far too much to do to establish himself as a responsible father. Whereas his other children have mothers in their lives who can provide responsible parenting for the children to offset his shortcomings, this child does not. She cannot wait for her father's unfolding of himself.

9: ON ALTERNATIVE PLANNING

[287] There is none. A plan proposed earlier in the litigation by an aunt was withdrawn before trial.

10: ON ADOPTABILITY

[288] With respect to adoptability evidence, I am mindful of the jurisprudential quest for fuller and more specific evidence from children's aid societies about adoptability.

[289] I had in this trial the following:

• an experienced adoption worker known to this court from the number of cases that he has brought forward for adoption finalization, for his knowledge, skill and dedication to the task of matching a child, whatever that child's needs, with an adoptive family up to the challenge of whatever lies ahead;

• a reach first to the society's internal bank of already approved families waiting to be selected for a child to ascertain whether a match can be found for this child without the need to cast further afield to the provincial resources dedicated to finding adoptive families for children in society care. The internal bank route, if successful, provides earlier placement for the child;

• a family within that bank who will be approached if the child is available for adoption planning.

[290] It was enough, given the statute's constraints on what can be brought into a Crown wardship hearing in that regard.

[291] Within the scheme of this legislation, and a contextual read of Parts III and VII of the Act, set with the objectives of the Act for children, children's aid societies are not entitled to float a child before prospective adoptive parents' eyes before that child is legally free for adoption planning, nor are societies entitled in a Crown wardship hearing to float particulars about persons accepted into the adoption bank for consideration for a child.

[292] The legislature does not vest the selection of adoptive family in the court. Sections governed instead by specific provisions set out in Part VII of the Act that hone in on a prospective adopter's suitability for parenting a child not born to them, and then the suitability for a specific child. It is that latter stage that information is conveyed that it reasonably needed to ensure that adoptive families are grounded in the child's experience of life before they say 'yes' to a particular child.

[293] The focus on "adoptability" is whether the child is adoptable. Whether those who are entrusted with the child are worthy of her is the focus of those who select as agent of the Crown, specifically the society, into who is entrusted with the Crown wardship responsibility to her. The Act is quite clear in its expectations. The task is to select for her a family that, like all decision-making under the legislation, promotes the primary objective of the Act.

[294] There is nothing in this child, as she has been presented in evidence in this trial, to suggest that she is not adoptable. She is at her present age and stage in life quite adoptable.

[295] Counsel for the mother asks, "Who is to say that adoptive parents would not have the 'same issues' as this father?" — and points out that they, too, may have other children distracting their attention for this child, that 'day care' may be a reality in an adoptive family's life. That may well be.

[296] This decision does not turn on those features of parenting.

[297] It does not rest in what might or might not be available in adoptions.

[298] The statute requires the court to centre on there is a realistic implementable plan before this court for the child that is likely to meet the primary objective of the Act — one that would make the reach to Crown wardship unnecessary.

[299] The evidence as a whole yielded the conclusion that there is no such sufficient plan.

11: CONCLUSION

[300] For all foregoing reasons, the only option likely to promote this child's best interests, protection and wellbeing is the Crown wardship sought to secure her stability in an adoptive home.

[301] These reasons are to be released to counsel of record and to the father today.

____________________________

Justice Heather L. Katarynych

Released on: 20 December 2013