Court File and Parties

Court File No.: Toronto: CFO: 10982-01 A2

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto Applicant

— And —

L.D.E. & D.S. Respondents

Before: Justice Penny J. Jones

Decision on Status Review

Heard on: June 17, 18, 19, 20, 21, 22, 25, and 27, 2012

Decision released on: August 20, 2012

Counsel

Mr. Chris Andrikakis — for the Society

Mr. Thomas Sosa — for the Respondent mother

Mr. D.S. — Respondent father noted in default

JONES, P. J.:

Introduction

[1] This is a status review application relating to the child S.D.E. (S.D.E.) born […], 2009 wherein the Catholic Children's Society of Toronto (the Society) seeks an order that the child be made a crown ward without access for the purposes of adoption.

[2] L.D.E. (the mother) seeks the immediate return of the child and is prepared to consent to a supervision order with such reasonable terms of supervision as the court deems appropriate.

[3] D.S. (the father) has not participated in this proceeding and was noted in default.

[4] On April 22, 2010, Weagant, J. made a finding that S.D.E. was a child in need of protection under section 37(2) (l) of the Child and Family Services Act, R.S.O. 1990. c.C.11, as am. (the Act) and placed the child in the Society's care for a period of six months. This is the status review of that order.

The Apprehension

[5] S.D.E. was apprehended at the hospital by the Society on […], 2009 because the Society was concerned about the ability of the new parents to provide safe and adequate care for the baby. Their concerns at the time of apprehension may be itemized as follows:

1. History of domestic violence between the parents
2. The intellectual and developmental levels of both the mother and the father
3. Lack of familial and community supports
4. The use by the parents during the pregnancy of illegal substances
5. Allegations that the father had sexually assaulted his sister when she was under 10 years of age
6. Lack of prenatal care during the pregnancy
7. Transience of the parents and the lack of suitable, and stable housing

Background

[6] The mother is currently 23 years of age. S.D.E. is her only child. As a child L.D.E. came into the care of the Society because her parents were unable to provide her with a safe, stable home due to alcohol abuse and domestic violence. L.D.E. was in care from age 14 until she turned 18 when she returned to reside with her mother. After she left care she moved from place to place as her parents, now separated, continued to experience problems with alcohol and neither parent was able to provide L.D.E. with any stability.

[7] The father is 25 years of age. S.D.E. is his second child. (Apparently, he has no contact with his first child.) The mother met the father when she was about 17 years of age. His family were friends of the mother's family. (I understand his mother is currently dating her father). As a teenager, the father had been in and out of group homes because of behavioural issues and the inability of his parents to manage him. Dr. Amitay, in his parenting capacity assessment, summarized the reasons for D.S.'s involvement with the Society on page 2-3 of his report dated June 24, 2011 as follows:

"..sexualized behaviours, prostituting himself, drug usage, theft from his parents, staying out late, refusing to take his medication for his social disorders and acts of violence. He came into care of the Society in 2004. In June 2008, his younger sister, then 10 years old, disclosed that he had sexually abused her."

[8] The Society first became concerned about this couple as potential parents when they began receiving community calls that the mother was pregnant, abusing drugs and that the father was assaulting her. The Society attempted to work with this couple during the pregnancy without success as the couple would miss appointments, not return calls and move without advising the Society or would intentionally provide the Society with false addresses. When Andrea Slack, the Society worker assigned to the case, was able to meet with the couple at their home, she noted that the housekeeping standards were deplorable and the apartment, on most occasions, was strewn with garbage and dirty clothes, and was filthy.

[9] L.D.E. testified that, during their cohabitation, D.S. abused drugs and they moved often because he would use their money to buy drugs instead of paying the rent. As well, she told the court that he was violent and would beat her and that on one occasion he broke her finger. She told the court that she did not cooperate with the Society during her time with D.S. because he threatened to kill her and he told her that if she spoke to the Society, the Society would take away her baby. At court, she acknowledged that she had used drugs in the past but denied using drugs during her pregnancy. However, to Andrea Slack and to the parenting capacity assessor Dr. Amitay she acknowledged that she smoked marijuana and used cocaine during her pregnancy.

[10] After the baby was apprehended L.D.E. told the Society that she was separating from D.S., however, I am satisfied that she continued her relationship with D.S. until sometime in December, 2009 or at the latest January, 2010 when she moved in with her sister S.A. (S.A.).

[11] It was only after L.D.E. separated from D.S. that the Society began to explore the feasibility of returning S.D.E. to L.D.E.. In the opinion of the Society, a return was not a possibility so long as L.D.E. continued her relationship with D.S., as that relationship was viewed by the Society as an unhealthy one in which D.S. was physically and emotionally abusive and controlling of the mother. After separation, L.D.E.'s three older sisters offered her support, and L.D.E.'s sister, S.A., offered to allow her to live with her and her husband. The Society noted that without D.S. as a distraction in her life, L.D.E. began to demonstrate a strong commitment to the baby by exercising regular access and by attending various parenting programs as well as participating in addiction counselling at Breaking the Cycle.

[12] At this time, concerns about her ability to respond to the baby's cues were noted (for example, L.D.E. would attempt to feed the baby even when the baby was not hungry, and would even wake the baby to feed her.) However, with parenting programs, her parenting skills began to improve.

[13] Seeing an improvement, the Society began to increase access to the mother. The mother began to shadow the foster mother to learn the child's routines. The Society, noting the improvement, proposed that the mother move to Robertson House Family Shelter (Robertson House) where she would be supervised and where an expanded regime of access could be tried to determine whether the mother could be taught to successfully parent this child.

[14] In July, 2010, the mother moved to Robertson House. Initially the access was day access, but in a matter of weeks moved to overnight access. During this time, certain concerns were noted in the mother's care of the baby. I heard that there were feeding issues and an incident in which the mother took the child for an unauthorized overnight. I also heard that the mother was not attending her programming on a regular basis in the late fall of 2010. Given the Society's lingering concerns about the mother's ability to care for the baby alone in the community, the Society proposed, and the mother agreed, that she move with the baby to Massey Centre, a home for young mothers with children, as soon as a place became available in the new year. I was told that at Massey Centre a young mother would be able to stay for up to two years in this supervised and supportive setting. The access continued to be liberalized with a view to mother/child reunification.

[15] At Christmas, 2010, arrangements were made to allow the mother unsupervised access on December 24, 2010 and December 25, 2010 so that she would be able to celebrate the holidays with her baby and the extended family. All went well on December 24, however, on December 25, L.D.E. went to her father's home with the baby for an unapproved and unscheduled visit. While she was at her father's home, she either arranged for or allowed an unsupervised visit with D.S. and his family which was in contravention of the existing court order. At first, L.D.E. let the Society believe that the Christmas visits went as planned. However, about a month later, after the Society received information about D.S.'s visit with the baby and confronted her with this information she admitted to the visit. To various workers she gave different versions of what occurred that day. To some she said that her father had arranged the visit, to others she said she had called D.S.. She said that she allowed the visit because she felt that "children should know their fathers". She said that when D.S. arrived at what she said was an unplanned visit he brought gifts including a cell phone for her which she accepted because her cell phone was broken and she needed one. According to L.D.E., he brought her a gift notwithstanding the fact that they had not been in contact since December, 2009.

[16] The cell phone played an important role for two reasons in the decision to cancel unsupervised access. First, the foster mother received a call from L.D.E. on that cell phone during the Christmas week which showed a caller ID of D.S. The foster mother became very anxious when she saw this name and began to fear that D.S. now knew where she lived and her telephone number and that L.D.E. and D.S. were back in contact. As well the Society began to suspect that the two parents were once again seeing each other. The foster mother told the Society that she believed L.D.E. had walked to her home on Christmas day with D.S. to return the baby. L.D.E. has always denied that this happened, although she acknowledges that she originally lied about how and with whom she returned the baby that day. At court she said that she took a cab to the house, and agreed that she had lied to the worker when she said that her sister drove her. According to the foster mother S.D.E. returned home cold and hungry that day and did not appear to have been returned by car. I heard evidence that D.S. met with Andrea Slack in January, 2011 and told her that L.D.E. had called him for a visit on December 25, 2010 and that after the visit, he walked with L.D.E. and the baby to the foster home. He also indicated that they had been seeing each other for a number of months prior to Christmas. He said that he would see L.D.E. at her friend, S.'s home and on occasion they slept over there together. He also said that he had seen S.D.E. at S.'s home.

[17] Secondly, according to L.D.E. a call to this cell phone explains why the second and last meeting between L.D.E. and D.S. occurred. According to L.D.E. she was taken to the hospital for emergency surgery because of an ectopic pregnancy. L.D.E. restated that she had not seen D.S. since Christmas but he happened to call her for the first time on the phone he gave her at Christmas while she was at the hospital and her friend S. answered the phone and told him that she was in hospital for an ectopic pregnancy. Hearing she was ill, D.S. came to the hospital.

[18] The Society suspected that D.S. might be the father given the circumstances of the Christmas visit and the fact he was at the hospital when she underwent surgery for the ectopic pregnancy. L.D.E. denied that this was so and initially told the Society that an old boyfriend was the father, but later admitted that she lied because the father was a man called Mike who had been a janitor at Robertson House, but has since changed jobs.

[19] In light of these events, the Society suspended unsupervised access. The Society felt that L.D.E.'s actions in permitting unsupervised access to D.S. and then revealing the location of the foster home to D.S. could potentially endanger the child and integrity of the foster placement. As well, they suspected that L.D.E. and D.S. were once again seeing one another. They felt that they could not trust her.

[20] The Society amended the status review application to Crown wardship for the purposes of adoption. They also brought a motion for a section 54 parenting capacity assessment on the mother to be conducted by Dr. Oren Amitay.

[21] Dr. Amitay undertook the assessment and concluded that there was evidence of significant cognitive delay and, in his opinion, the mother would not be able to raise the child on her own but would require the assistance of another person who would be the primary caregiver. At the time of the assessment, L.D.E.'s sister S.A. was proposing that L.D.E. and S.D.E. live with her and her husband in an extended family household; Dr. Amitay felt that this plan was worth serious consideration by the Society.

[22] The Society was prepared to consider this plan and made attempts to begin a kinship assessment. Unfortunately, it became clear in the late fall that S.A.'s husband was not prepared to endorse this plan for a number of reasons including his concern that such an arrangement would prove detrimental to his wife's health (S.A. had Crohns Disease).

[23] L.D.E. was very disappointed that her brother-in-law was not prepared to implement this plan, and the relationship between them soured. In January, 2012 she left her sister's home. When she left she moved in with P.V. (P.V.), a man she began dating in late December, 2011. P.V. is now her fiancé. Her current plan of care involves S.D.E. coming to live with them.

Issues

[24]

1. Is Crown wardship the least disruptive order in S.D.E.'s best interests that is available and appropriate in the circumstances of this case?

2. If a Crown wardship order is granted, should an access order to L.D.E. be made?

[25] In order to decide which dispositional order is in S.D.E.'s best interest, I must choose between the plan of care of the mother and the plan of care of the Society. On the one hand, the mother seeks the return of her child under supervision order, and on the other hand, the Society seeks an order of Crown wardship for the purposes of adoption. Given the fact that S.D.E. was apprehended at birth and has been in the care of the Society for almost three years, a further period of society wardship, even if available under section 70(4) of the Act, is neither appropriate nor necessary in this case. There is a pressing need to provide a permanent home for S.D.E.. As soon as possible, S.D.E. should either return to her mother or be placed in an adoptive home where she may expect to grow to maturity.

[26] In the event I determine that a Crown wardship order is in the child's best interests, would an access order in favour of the mother be appropriate given the provisions of section 59(2.1) of the Act.?

Legislative Scheme

[27] Both issues are to be determined according to the child's best interests. Section 1 and section 37(3) provide assistance to the court in understanding the concept of best interests in the context of this Act.

[28] Section (1) reads as follows:

1(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

To recognize that children's services should be provided in a manner that,

i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests and

includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences

[29] Section 37(3) of the Act reads as follows:

37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, or other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[30] I have compared the two plans of care and have chosen the Society's plan to place S.D.E. for adoption as the plan best able to address S.D.E.'s best interest. I see this plan as the plan most likely to provide a stable, permanent home for S.D.E.. In reaching this conclusion, I have considered the following factors:

1. The mother's parenting abilities and need for assistance and the availability of such assistance.
2. The mother's ability to work honestly and co-operatively with the Society and other helping professionals
3. The mother's ability to exercise good judgment and her ability to put her daughter's needs above her own.

Analysis

1. The Mother's Parenting Abilities and Need for Assistance

[31] The Society sought assistance in assessing L.D.E.'s parenting abilities by way of a parenting capacity assessment. Dr. Oren Amitay carried out the assessment in the spring of 2011. He did so by reviewing the documents, including the pleadings and affidavits, speaking to collaterals, performing psychological tests on the mother including an intelligence test, interviewing the mother and observing the mother with S.D.E.. His conclusions were presented to the court by way of a written report, and he was cross examined extensively. His professional opinion on the issue of the mother's parenting capacity was not shaken in cross examination.

[32] Dr. Amitay concluded that the mother has an extremely low level of intelligence that will always pose a significant impediment to her effort to provide a safe, stable and structured upbringing for S.D.E.. Dr. Amitay noted in his report that the full scale I.Q. score for the mother was 57 which would place her in the mild mental retardation category. (He indicated in his report that he was reluctant to use labels and did not wish to imply that Ms. D. E. presents with mild mental retardation.) Given her extremely low level of intelligence, he noted at p. 22 of his report that she will have "great difficulty in retaining information, demonstrating what she has learned and following through on recommendation on a consistent basis." He opined that these difficulties not only apply to parenting but also to learning to live independently. He wrote in his report, p. 22,

"As a result, it must be stressed that Ms. L.D.E. test data suggest that she would be unable to assume the role of primary caregiver. She would likely need to live either fulltime with a competent caregiver whom she might eventually learn to emulate; at the very least, someone would need to be with Ms. L.D.E. for a significant portion of the time that S.D.E. is with her. It must be clear that, in such an arrangement, Ms. L.D.E. would not really be a co-parent at first—if ever—but would instead be learning from the other person, who would be the primary caregiver".

[33] He also went on to observe that it is not only Ms. L.D.E. 's low intelligence that would put S.D.E. at risk of harm if she were placed in her mother's care, it is also her mother's poor self esteem, immaturity, limited insight and poor judgment, including poor judgment in choice of partners. He noted that L.D.E. stayed with D.S. even after she said he "tried to kill her" and then took the child to see him at Christmas behind the Society's back and in contravention of a court order.

[34] Dr. Amitay testified that L.D.E. does demonstrate some understanding of S.D.E.'s basic practical, safety and emotional needs. He was supportive of the plan for L.D.E. and S.D.E. to live in an extended family situation where her sister would act as the primary parent. He noted that, on p. 21,

"Ms. L.D.E.'s history and test data suggest that her sister should recognize that she cannot raise a young child on her own. One or more competent family members or significant others would need to assume a prominent role in taking care of S.D.E. and teaching Ms. L.D.E. how to improve her parenting."

[35] Dr. Amitay, at the time of conducting the parenting capacity assessment, understood that S.A. and her husband were proposing to make a home together with L.D.E. and S.D.E.. Unfortunately, this plan never materialized. Dr. Amitay never had the opportunity to assess the new plan put forward by the mother to have S.D.E. live with her and her fiancé P.V..

[36] When P.V. testified I found him to be a likeable man with traditional values. He is a 41 year old Portuguese/Canadian construction worker who is well paid and who works long hours. P.V. is out of the home from early in the morning til after 5 p.m. Monday to Friday, weather permitting. He said that he had yet to meet S.D.E. because he had to work but said he wanted access on the weekends so that he could meet S.D.E..

[37] P.V. testified that he wishes to marry L.D.E. and become a dad to S.D.E.. When he spoke about what he would do with S.D.E., he talked about taking her to the park, for a walk, and on a trip. He said that he would play with her and "do what a dad has to do". He testified that he considers S.D.E. his daughter and had already added her to his benefit plan at work. I have no doubt that P.V. is capable of meeting L.D.E.'s and S.D.E.'s financial needs. If this relationship continues, and S.D.E. were to go home with L.D.E., he would be able to provide stable housing, adequate food and clothing for L.D.E. and her daughter.

[38] Given the evidence as to the level of support required by L.D.E. to successfully parent S.D.E., I do not find that this plan with P.V. would be able to meet S.D.E.'s need for a safe, stable and structured upbringing. P.V. neither has the inclination, the time, the skill set, nor the understanding necessary to fulfill this role. I do not find that P.V. would be able to be the "primary parent" that Dr. Amitay spoke about, the one who would be able to model for L.D.E. and teach her parenting skills and I do not need a further parenting capacity assessment to reach this conclusion

2. The Mother's Ability to Work Honestly and Cooperatively with the Society and Other Helping Professionals

[39] L.D.E. has not always been honest and forthright with the Society or with other professionals who have worked with her. In many cases she has lied to her workers in an attempt to put herself in a good light or to avoid being found out when she, in her own words, "messed up." For example, L.D.E. lied to the Society about the following issues:

1. About her relationship with D.S.
2. About where she was living at various times and with whom she was living
3. Initially, about her relationship with P.V.
4. About what she was doing with S.D.E. during unsupervised access and the persons she was allowing to be with the child

[40] L.D.E. lied about important thing which could have affected the safety and well being of S.D.E.. Unfortunately for L.D.E., when she lied she was often found out. Her propensity to lie made it difficult for her workers to trust her, to work cooperatively with her and to case plan effectively. Given L.D.E.'s significant need for support in parenting and in life generally, her ability to work with the Society honesty and cooperatively is crucial to a successful outcome in a case like this that is so high risk. As Dr. Amitay wrote on p.20 of his assessment,

These types of incidents counter-indicate the capacity to meet three criteria that parent must ordinarily satisfy in order to facilitate a successful outcome in cases such as this one. Specifically, the caregivers must consistently demonstrate 1) sufficient insight into their issues and the factors that have contributed to their involvement with CCAS; 2) good judgment in order to care for, protect and raise their child, and to put the child's needs before their own; and 3) the ability to work honesty and cooperatively with CCAS and any other people or organizations involved in the welfare of the child, in order to improve on the issues that led to the Society's involvement with the family .

[41] L.D.E. is a likeable young woman who loves her baby. Social workers and other helping professionals want to work with her and want to see her succeed, if possible. Sadly, if they can not trust her and she can not trust her workers enough to tell the truth, I see little chance for a genuine therapeutic alliance to be formed or for there to be a successful outcome in this case.

3. The Mother's Ability to Exercise Good Judgment and Ability to Put Her Daughter's Needs Above Her Own

[42] L.D.E. has not been able to consistently place the interests of her child above her own or to exercise good judgment in her daughter's best interests. There have been times since the birth of S.D.E. that the Society has seen L.D.E. make some progress with respect to parenting, and in lifestyle choices only to witness a regression.

[43] L.D.E., because of low intelligence is vulnerable to the good intentions of those who seek to befriend her, and because of her poor self esteem, she is ill equipped to protect herself against those that choose to use or abuse her. L.D.E. requires assistance in her everyday life and as such is dependent on others to a greater extent than most people.

[44] L.D.E. had a long standing abusive relationship with D.S., a man she said was verbally, physically and emotionally abusive to her. She testified that he threatened to kill her, broke her finger, abused drugs, and mismanaged their finances causing them to be transient and yet, at Christmas 2010, a year after she said they terminated their relationship, she admitted that she allowed him to have unsupervised access with their child because she believed "a child should know her father". In fact, I find on the balance of probabilities that L.D.E. actually recommenced her relationship with D.S. in the fall of 2010 and that when she did so, her focus shifted away from S.D.E.. For example, I heard that during this time her attendance at her parenting programming and drug counselling fell off and she began to disregard the rules at Robertson House. She took the baby out for an unauthorized overnight and spent nights outside the residence at a friend's home after she had been warned by staff to avoid that person. Ultimately, she was found out, and her chance to be reunited with the baby at Massey Centre was forfeited.

[45] After she left Robertson House and went to live with S.A., L.D.E. did well and was able to focus her attentions on the baby. S.A. met L.D.E.'s dependency needs and S.A. had her sister's best interests at heart. However, once L.D.E. was advised that there would be no joint family plan with S.A., I find that L.D.E. began to seek any other plan as she did not want to lose S.D.E..

[46] At Christmas L.D.E met P.V. who agreed to help her with the baby. Shortly after that she moved in with him. Worried that this plan might not work out, she lied to the Society about her living arrangements. By April she met with the Society and introduced P.V. and said they were just friends and they did not know whether they liked each other. In April she told Andrea Slack that it was embarrassing being with him because he was older and people looked at him and thought he was her father. By May she was proposing that S.D.E., (who had not even met P.V. nor had P.V. been investigated by the Society), move in with them and by June they were engaged to be married.

[47] L.D.E. showed poor judgment in resuming her relationship with D.S.. As a result of this lapse in good judgment she forfeited her best chance to resume care of the baby. L.D.E. showed poor judgment in cobbling together a plan of care for S.D.E. with P.V. without P.V. first being subject to a thorough investigation by the society. She proposed this plan at a time she hardly knew him. Although she told the Society that P.V. was a friend of the family, it is clear that L.D.E.'s sisters are just now getting to know him and that none of her sisters has been to her new home. By acting so impulsively and rashly in moving in with someone she had virtually just met, given her vulnerabilities, she could have placed herself at serious risk of harm if P.V. had been a violent, or abusive man. If S.D.E. had been with her, the same would hold true for S.D.E.. If her relationship with P.V. is successful, it will be more good luck than good planning. If this relationship is not successful she will once again be looking for another supportive living situation as I have seen no evidence that L.D.E. currently has the necessary skills to live independently. L.D.E.'s great need for support clouds her judgment and that is not in S.D.E.'s best interest. S.D.E. needs a stable, secure home and unfortunately I am not satisfied that L.D.E. will be able to provide such a home, now or in the foreseeable future.

Access Issue

[48] In the alternative, the mother seeks an order for access to S.D.E. on the basis that an access order would be in the child's best interests.

[49] The Society is opposed to the mother's application for access now that the Court has concluded that a crown wardship order is the least disruptive order available and appropriate in the circumstances which is consistent with the best interests of this child. I am advised that the Society intends to place the child for adoption and referred the Court to section 59(2.1) which provides as follows:

59(2.1) ACCESS: CROWN WARD—The court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) The relationship between the person and the child is beneficial and meaningful to the child; and

(b) The ordered access will not impair the child's future opportunities for adoption .

[50] This section contains a rebuttable presumption against the making of an access order whenever a child is made a Crown ward. This presumption may be rebutted only if the court is satisfied that the person claiming access can satisfy both prongs of the test contained in section 59(2.1). See Children's Aid Society of Toronto v. D.P. , [2005] O.J. No. 4075 (C.A.). The Society and the mother have a difference of opinion as to whether the presumption against access has been rebutted.

Discussion

Prong #1: Is the Relationship Between the Child and the Mother Beneficial and Meaningful to S.D.E.?

[51] S.D.E. will be three years of age on September 25 of this year. For her entire life she has resided in the same foster home where she enjoys a rich family life with her foster mother and her foster's mother's two daughters and the other foster children who come and go from the home. According to her foster mother Mrs. D., S.D.E. is a healthy, happy, strong- willed and independent child who is well settled in her home and enjoys the other children, especially the babies.

[52] S.D.E. visits with her mother three times per week on a regular basis. Mrs. D. testified that S.D.E. does know when she is going to visits and is usually very happy to go. If she has anything new, she asks the foster mother to pack it in her backpack so that she may show it to her mother.

[53] On the rare occasion when a visit is cancelled, S.D.E. is now old enough to remember that a visit was supposed to have occurred and will become disappointed when it does not. The foster mother indicated that previously she had been able to distract the child with some treat or outing, but more recently, if the visit is cancelled, S.D.E. becomes upset for the next 30 to 45 minutes before she is able to settle down. After a visit, Mrs. D. indicated that S.D.E. is always happy to get home, and will hug and kiss everyone.

[54] I heard evidence from the workers who supervised the visits that S.D.E. is happy to see her mother, will seek her out and is relaxed and at ease when interacting with her mother during access. Likewise, when the visit is over, she appears quite happy to leave and is content to go with the driver.

[55] Dr. Amitay had the opportunity of observing the quality of the visits between mother and child. He testified that he thought the mother was a good access parent who showed reasonable parenting skills in a controlled environment. According to him, S.D.E. and her mother play well together, they appear to enjoy each other's company, and the mother does demonstrate some basic parenting skills.

[56] I have no doubt that this relationship between mother and daughter is beneficial and meaningful to the mother, but can the same be said about this relationship from the perspective of the child?

[57] In determining whether the relationship is a "beneficial and meaningful relationship", it must be evaluated from the child's perspective. Aiken, J. In Children's Aid Society of Niagara Region v. J.C. , [2007] O.J. No. 1058 provided some guidance in interpreting this first prong of the test in paragraph 29 of that decision, when she wrote,

" Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant" (Children's Aid Society of Niagara Region v. J. (M) (2004) , 4 R.F.L. (6 th ) 245 , 2004 CarswellOnt 2800 , at para. 45 ). The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. The only positive factors which the trial judge identified in regard to the children, the children loved her, and through her access she conveyed to the children that she loved them and wanted to be part of their lives. Standing alone, these findings were inadequate to satisfy the requirement that the relationship between the children and their mother was "beneficial" within the meaning of s. 59(2)(a) of the Act. More is required than love, the display of love, the fact that the mother had cared for the children in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the children's emotional health, were identified.

[58] In Children's Aid Society of Niagara Region v. M.J., K.S. and S.S. , [2004] O.J. No. 2872, Quinn, J. made the following comments in paragraphs 45, 46, 47 which are often quoted, and are of assistance in understanding the meaning of "beneficial and meaningful" in the context of this section. He wrote,

45. What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is advantageous." A "meaningful" relationship is one that is "significant." "Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough---it must be significantly advantageous to the child.

46. I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

47. Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made .

[59] In the circumstances of this case, I do not find that the relationship between the mother and the child is significantly advantageous to the child nor does access provide the child with a "positive advantage". (See Children's Aid Society of Hamilton v. W.M. , [2008] O. J. No. 4052. Although I have no doubt L.D.E. loves the child and the child loves being with her, S.D.E. is a toddler whose "real life" takes place at the foster home. She enjoys visiting her mom, likes showing her mother new things, and enjoys her visits with extended family, but is also happy to go home and spend time with her foster family. Unfortunately, given the age of the child and the nature of the access, I am not satisfied that the relationship S.D.E. has with her mother at this time is beneficial and meaningful within the meaning of section 59(2)(a).

Prong #2: Would Ordered Access Impair the Child's Future Opportunities for Adoption?

[60] Counsel for the mother argues that since the Act was amended in 2011, an access order no longer impairs a child's future opportunities for adoption. He points out that since the repeal of the former section 141.1 of the Act which prohibited the placement of a Crown ward for adoption so long as an access order was in existence, an access order today no longer impairs a child's future opportunity for adoption. Today, a Crown ward with access may be placed for adoption, subject to notice and a possible application for an openness order which may be brought either by the person exercising access or the child who is the subject of the access order. He compared the sections.

[61] The former section 141.1 reads as follows:

141.1 LIMITATION ON PLACEMENT BY SOCIETY—A society shall not place a child for adoption until,

(a) any outstanding order of access to the child made under subsection 58 (1) of Part 111 has been terminated; and

(b) if the child is a Crown ward,

(i) the time for commencing an appeal of the order for Crown warship under subsection 57(1) or 65.2(1) has expired, or

(ii) any appeal of the order for Crown wardship has been finally disposed of or abandoned.

[62] In 2011, the following section was enacted to replace the above section. It reads as follows;

141.1.1 (1) ADOPTION PLANNING—Nothing in this Act prohibits a society from planning for the adoption of a Crown ward in respect of whom there is an access order in effect under Part 111 (Child Protection).

(2) OPENNESS---Where a society begins planning for the adoption of a child who is a Crown ward, the society shall consider the benefits of an openness order or openness agreement.

[63] Section 145.1.1 outlines the procedure a Society must follow if it intends to place a Crown ward who is the subject of access order for adoption. This section reads as follows:

145.1.1 NOTICE OF INTENT TO PLACE FOR ADOPTION—

(1) This section applies where,

(a) a society intends to place a child who is a Crown ward for adoption; and

(b) an order under Part111 (Child Protection) has been made respecting a person's access to the child or the child's access to another person.

(2) NOTICE—In the circumstances described in subsection (1), the society shall give notice to the following persons:

1. The person who has been granted an access order,
2. The person with respect to whom an access order has been granted.

(3) RIGHT TO APPLY FOR OPENNESS ORDER— The society shall include in the notice the following information:

1. Notice that the society intends to place the child for adoption.
2. Notice that the access order terminates upon placement for adoption.
3. In the case of notice to a person described in paragraph 1 of subsection (2), the fact that the person has a right to apply for an openness order within 30 days after notice is received.
4. In the case of notice to a person described in paragraph 2 of subsection (2), the fact that the person described in paragraph 1 of subsection (2) has the right to apply for an openness order within 30 days after notice is received.

[64] Subsections (4), (5) and (6) deal with the issue of giving service.

[65] Section 145.1.2 deals with how this new procedure is to work. This section reads as follows:

145.1.2. APPLICATION FOR OPENNESS ORDER—

(1) A person described in paragraph 1 of subsection 145.1.1 (2) may, within 30 days after notice is received, apply to the court for an openness order.

(2) NOTICE OF APPLICATION—A person making an application for an openness order under this section shall give notice of the application to,

(a) the society having care and custody of the child;

(b) the child, except as otherwise provided under subsection 39 (4) or (5); and

( c) if the child is bringing the application, the person who will be permitted to communicate with or have a relationship with the child if the order is made.

(3) CONDITION ON PLACEMENT—A society shall not place a child for adoption before the time for applying for an openness order under subsection (1) has expired unless every person who is entitled to do so has made an application for an openness order under this section.

(4) INFORMATION BEFORE PLACEMENT—Where an application for an openness order under this section has been made, a society shall, before placing the child for adoption, advise the person with whom it plans to place the child of the following:

1. The fact that such an application has been made.
2. The relationship of the applicant to the child.
3. The details of the openness arrangement requested.

(5) OUTCOME OF APPLICATION—Where an application for an openness order under this section has been made, a society shall advise the person with whom the society has placed or plans to place the child for adoption or, after an adoption order is made, the adoptive parent of the outcome of the application.

(6) OPENNESS ORDER—The court may make an openness order under this section in respect of a child if it is satisfied that,

(a) the openness order is in the best interests of the child;

(b) the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to the child; and

(c ) the child has consented to the order, if he or she is 12 years of age or older.

(7) SAME---In deciding whether to make an openness order under this section, the court shall consider the ability of the person with whom the society has placed or plans to place the child for adoption or, after the adoption order is made, the adoptive parent to comply with the arrangement under the openness order.

[66] Subsection 8 stipulates that the court shall not direct the society to supervise or participate in the arrangement under an openness agreement unless the society consents to do so. Subsection 9 provides that an openness order terminates if the child ceases to be a Crown ward by operation of section 65.2(1) (by reason of a status review.) Subsection 10 permits the court to make temporary order relating to openness in the child's best interest.

[67] As the Act read prior to the 2011 amendments, it was virtually impossible for a parent to argue that an access order for an adoptable child did not "impair that child's future opportunities for adoption" because no Crown ward who was subject to an access order could be placed for adoption until that access order was terminated by the court. Now that the section has been repealed, is the converse true? Is it now possible for a parent to argue that in virtually all situations an access order will no longer impair a child's future opportunities for adoption?

[68] Pazaratz, J, considered this issue and in Catholic children's Aid Society of Hamilton v. L.S. 2011 ONSC 5850 , [2011] O.J. No. 4512 para. 421 and wrote:

Under the former legislation it was almost impossible for a parent to establish that no outstanding access order would not impair a child's opportunities for adoption. Section 141.1 opens the door slightly . But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will no impair the child's future opportunities for adoption." ( emphasis added )

[69] Simply because an access order no longer precludes an adoption does not necessarily mean that an access order in the circumstances of the case may not impair a child's future opportunity for adoption. Conversely, there may be cases where an access order will not impair a child's opportunity for adoption even when the child is adoptable. This section does "open the door slightly." In different language, but to the same effect, Waldman, J. in Children's Aid Society of Toronto v. S.A., R.M, and S.R. 2012 ONCJ 42 commented,

"The recent amendments to the Act create new considerations when addressing the issue of access and new dynamics in the adoption process."

[70] In that case, Waldman J. made an access order to a child who was not immediately adoptable, but might become adoptable in the foreseeable future, and who by all accounts, had special needs and for whom access to her mother would be in her best interests.

[71] Recent cases have considered potential reasons why courts might reject claims for access on the second prong of the test. See Catholic Children's Aid Society of Toronto, Applicant, and M.M. Respondent, and J.N., Respondent [2012] O.J. No. 3240 and Catholic Children's Aid Society of Hamilton v. L.S., supra. The following is a list of reasons why claims for access have been rejected, or might be rejected, in the future. This list is in no way exhaustive.

1. Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:

   a. They would be facing further litigation b. They would not know the result of such litigation c. They would not know what form an openness order might take d. If an openness application is brought, the adoption will be delayed e. If an openness order is granted they will have to deal with potentially difficult people and they would be required to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved

2. Parents of an adoptable child who have a record of being difficult to deal with and not supportive of foster placements might find their access request refused because of their past disruptive behavior. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child's future opportunities for adoption.

[72] In deciding whether an access order in this case would impair S.D.E.'s future opportunities for adoption I have reviewed the evidence. No new evidence was called specifically on whether an access order would deter a "particular pool of applicants" for adoption in this case. Absent direct evidence on this point, Murray, J in Children's Aid Society of Toronto v. M. M. supra, declined to make a finding that a potential openness order (which would be the result of the granting of an access order with respect to an adoptable child) would have a chilling effect on those who might wish to adopt, and therefore would impair that child's future opportunities for adoption. In para. 235 and 236 wrote,

235. For the court to evaluate these arguments, evidence about the characteristics of the pool of prospective adoptive parents is required. It is the Society, and not M.M., and J.N., who have access to this data. The Society chose not to present evidence on this point.

236. M.M. and J.N. bear the onus of satisfying me that an order for access will not impair L.M.'s opportunities for adoption. They have presented all the evidence they could reasonably be expected to marshal on this point. The Society has presented no evidence on the beliefs and attitudes of its pool of potential adoptive parents as regards possible openness arrangements for L.M., and I decline to make a finding on this point without evidence.

[73] Although no evidence "on the beliefs and attitudes of its pool of potential adoptive parents" as regards possible openness arrangements was called, I find such evidence is not necessary for me to decide the issue in this case. On the evidence before me, I am not satisfied that an access order would not impair S.D.E.'s future opportunities for adoption. I reached this conclusion on the following basis.

[74] In the event I were to grant an access order and the Society were to begin planning for her adoption, anyone interested in adopting S.D.E. would have to be told the history of this file because of the potential for an openness order.

[75] I have reviewed the history of the case and what a potential adoptive parent would have to be told. At a minimum, a potential adoptive parent would have to be told that the child's parents had a difficult relationship scarred by domestic violence and drug abuse. The father is currently having no access to the child. His history is relevant in that there are concerns about his past sexual conduct towards children; there is good reason to believe that he sexually assaulted his sister when she was under 10 years old. As an adult he has faced charges of assault and sexual assault. The mother and the father have had difficulties separating from one another and the mother took S.D.E. to visit her former partner in violation of a court order, then lied to the Society about doing so. The Society recognized this situation to be a high risk one given the dependent personality of the mother and the violent history of the father and returned the access to a supervised setting.

[76] On the fact of this case, I am satisfied that from this evidence a reasonable inference might be drawn that certain potential adoptive parents, not all, might be reluctant to proceed to adopt S.D.E. in these circumstances and might be afraid that they would be required to interact with these parents . They might feel that this situation is very complicated with many unknowns, and that they might need some assistance in dealing with such parents on their own. They might conclude that it would be preferable to wait for the next available child, especially given the fact that if an openness order is made, the court cannot direct a Society to supervise or participate in the arrangement without the consent of the Society. In the event an openness order were granted it would be the court and not the adoptive parent (although he or she would be consulted) that would set the terms of the openness order. This is unlike the case where an informal arrangement for openness is negotiated at the time the child is placed for adoption by the Society and is subject to the veto of the adoptive parent. On the facts of this case it is not unreasonable to conclude that a certain number of potential applicants might be deterred from applying to adopt S.D.E. if there was a possibility that an openness order might be made on terms no one would be able to predict with absolute certainty. Therefore I am not satisfied that the making of an access order in this case will not impair the child's future opportunities for adoption.

[77] Accordingly, I find that the mother has not satisfied either prong of the two part test set out in para. 59(2.1).

Conclusion

[78] I find that the least restrictive order consistent with the best interests of the child is crown wardship for the purposes of adoption. The mother's claim for access is dismissed because I find that neither prong of the two part test set out in section 59(2.1) has been met.

[79] In choosing this disposition, I recognize that my decision will be very upsetting to the mother and to her family as I accept that the mother loves S.D.E. very much as do her extended family. This decision is a difficult one for me to make knowing how it will affect the mother, but I have made it as I am required to do in accordance with my view of the evidence and my understanding of what is in S.D.E.'s best interest at this time My sympathy to L.D.E..

Released on: August 20, 2012

Justice Penny J. Jones