WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

No. C52675/10

Date: 2012-09-24

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties and Counsel

In the Matter of: The Child and Family Services Act, R.S.O. 1990, c. 11

And in the Matter of: A.M.-J.M., born […] 2010

Between:

CHILDREN'S AID SOCIETY OF TORONTO, Applicant

— AND —

R.M. (mother), Respondent

Before: Justice Robert J. Spence

Heard on: 19, 20 and 21 September 2012

Reasons for Judgment released on: 24 September 2012

Counsel:

• Ms. Karen Freed for Children's Aid Society of Toronto, Applicant
• Mr. Andrew Sudano for R.M., Respondent

Introduction

[1] This is an amended protection application brought by the Children's Aid Society of Toronto ("society") whereby it seeks an order that the child, A., born […], 2010, be made a crown ward, for the purpose of adoption.

[2] The mother seeks an order that the child be returned to her on a supervision order or, in the alternative, that the court make a crown wardship order, with access to the mother.

[3] The child has been in the continuous care of the society since November 30, 2010, when he was apprehended by the society following the laying of a criminal charge against the mother for failing to provide the necessities of life for the child.

[4] On September 1, 2011, the mother [1] signed a statement of agreed facts consenting to an order that the child be found in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act ("Act"). Justice Marvin Zuker made that order on September 8, 2011.

[5] In part, that statement of agreed facts reads:

[mother] struggles with various tasks and activities relating to A. and has difficulty responding to his cues.

[6] The significance of mother's agreement with this set of facts will hopefully become apparent in the discussion that follows later in these reasons.

Background

[7] The child was born in Welland, Ontario on [...], 2010. The mother's family was well-known to the Family and Children's Services of Niagara ("Niagara society") prior to the birth. As a result, that society closely monitored the mother and the child following the birth. During this period of time, the mother was living with the maternal grandmother in Welland.

[8] The Niagara society apprehended the child for the first time on March 5, 2010 following a number of concerns by that society over the mother's inadequate parenting, as well as, what appeared to that society, to be unstable and inappropriate living conditions. The child was returned to mother on March 8, 2010 on condition that mother reside with the maternal great grandparents in Toronto. Mother agreed, and she moved with the child to Toronto.

[9] At that point the society's infant specialist nurse became involved with the family and after about two months the society terminated its involvement with the family, as the child appeared to be doing well.

[10] Mother moved out of her grandparents' home around mid-November 2010. On November 30, 2010, the police were called to the apartment where mother and the child had been living. Present in the apartment on that evening was a man by the name of Jordan who mother said she had known for about six months. On the evening of November 30, mother went out of the apartment, leaving the child behind with Jordan. It is unclear whether Jordan may have had some mental health issues but, in any event, mother mistakenly believed that her son would be safe in Jordan's care.

[11] The police and the society believe that during her absence, the mother's dog [2] ran wild and attacked both the child as well as Jordan. There is some question whether mother arrived home intoxicated, which the police believed to be the case, although this was denied by mother. [3]

[12] The mother states that when she came back into the apartment she saw the child still in his playpen but with a "cut from his cheekbone to his chin". Jordan was also bleeding from injuries. Mother's belief is that Jordan intentionally injured her child and cut himself because he was angry with mother, possibly as a result of his jealousy over mother's affection for someone else.

[13] The mother was criminally charged by the police with failing to provide the child with the necessities of life. She eventually pled guilty to leaving the child unattended contrary to the Act. [4]

Access Following the Apprehension

[14] Mother has generally been permitted court-ordered access twice each week, for two hours per visit, supervised at the society's offices, from the date of apprehension until the present. However, for an 11-week period from December 2011 to February 2012, mother participated in the society's Therapeutic Access Program ("TAP"), which doubled the amount of mother's access from two hours per visit to four hours per visit, twice each week. TAP is designed as an instructional and supportive program where a parent can spend longer times with a child under the supervision and guidance of a society worker who provides instruction and feedback, with the goal of improving parenting skills.

[15] Multiple society workers gave evidence regarding the quality of the access between the mother and the child. There were a number of themes that were common to most, if not all of the workers' evidence. First, they all agreed that mother loved the child and very much enjoyed spending time with him. They also agreed that, for much of the time, the child seemed to enjoy being with the mother.

[16] However, the workers' evidence pointed to a number of problems. First, the mother had noticeable difficulty reading and understanding the child's cues. And because of that, she would not always treat the child in an age-appropriate way. Some examples of this are:

1. In October 2011, mother yelled at the child, telling him to put his "bib back on right now". The child was only 20 months old and the mother told the worker that she believed the child would understand those words.

2. On December 23, 2011 during a TAP visit, mother continued to try to feed the child when he was signalling that he had had enough to eat, and the worker herself told mother that the child was done eating.

3. On another occasion in January 2012, when the child successfully took some yoghurt to eat, mother expressed the view that perhaps she should just feed him yoghurt every time. When the child stopped eating mother said to him, "you feel like crap, huh?", not understanding that this was not an appropriate way to speak to a toddler.

4. On another visit in January 2012, mother had difficulty knowing when to awaken the child from his nap to get him ready to leave at the conclusion of the visit. And when he did awaken, instead of mother gently bringing him to an alert state by using a soothing voice, she said to the child "now you're so cranky", when it was apparent to the worker that he was not cranky, but simply in the process of waking up.

5. In February 2012, while the child was playing, mother attempted to remove the child from play and return him to the access room. The society worker had to intervene to tell mother there was no reason to interrupt the child's play.

[17] The foregoing are just a few of the numerous examples of the kinds of problems which occurred. I have chosen these examples from the evidence because the incidents occurred long after the child had been brought into care and, consequently, following a lengthy period of time during which the mother had the opportunity to learn the child's cues.

[18] Mother also had difficulty adjusting to the child's routine, so that she either could not grasp the concept of the routine itself or, alternatively once she did so, she stuck to it rigidly without understanding the need for flexibility, within appropriate parameters.

[19] There were also numerous incidents where the mother failed to understand the child's need for safety, engaging in behaviour which compromised that safety. For example:

1. In April 2011, one worker observed mother holding the child dangerously by his neck while she was attempting to clean his ears. Mother seemed unable to understand that despite the child's screams and struggling, and despite the worker's interventions, she needed to address the ear-cleaning in a different, more patient way, and in a manner less stressful to her child.

2. In June 2011, mother allowed her sister, who was present at the access visit, to place an adjustable necklace on the child's neck, even after telling her sister not to do so because it created a choking hazard.

3. In September 2011, mother left a bottle warmer unattended, permitting the child to explore it and potentially burn himself. The society worker was forced to intervene.

4. In October 2011, during mealtime, mother gave the child all of his cookies at once and allowed him to eat these while she left him to warm his bottle. The society worker was forced to intervene to take the cookies away and feed them one at a time, again to prevent the child from choking.

5. In February 2012, mother asked another mother who was at the access centre to look after the child while she left the room to get a bottle. She failed to understand that she should have taken the child with her, rather than leaving him with a stranger.

6. In May 2012, the mother failed to stop the child from placing a small ball in his mouth which could have choked him. The worker was forced to intervene to ask mother to take the ball away.

[20] At the conclusion of the TAP program, the TAP coordinator concluded that mother had been unable to demonstrate sufficient progress or insight into her own deficits that would have enabled her to safely care for the child. Nor did she develop a sufficient understanding of ages and stages, which otherwise would have enabled her to provide appropriate care and nurturing.

[21] TAP did conclude that mother had improved in some of her instrumental tasks, such as diapering; but mother's inability to read the child's cues prevented her from attending to the child's needs in a timely and appropriate manner. To be clear, the society workers testified that there were some visits which unfolded without incident, and there were some visits where mother managed to take direction in an appropriate way. The insurmountable problem, however, was that there were simply too many examples of mother failing to address fundamental issues related to the child's needs and his safety.

[22] At the conclusion of the TAP program, the access reverted back to twice each week, two hours per visit, supervised at the society's office. That is the access which has remained in place to the present.

[23] Mother's attendance at the 22 TAP access visits had been excellent. She did not miss any of her visits, and she arrived at all of her visits on time. However, both before and following the TAP program, her ability to attend visits was inconsistent. For example, at least one worker stated that mother "often forgot the days on which she had visits, or got her visit days mixed up, despite repeated reminders." This pattern was evident in December 2010, and continued on into March 2011, with mother cancelling visits without notice on December 20 and 29, 2010, and January 12, 17, 19, 31; February 9, 16 and March 7, 2011. Because the child had been driven to these visits from the foster home to the society's office, and because he was having to be returned without the visit taking place, mother was told by the society that henceforth she would have to telephone the society no later than 9 a.m. on the day of the visit to confirm her attendance for that day's visit, beginning at 10 a.m.

[24] Following the conclusion of TAP in February 2012, the pattern of missing visits began again. In fact, mother began to miss her visits with increasing regularity. [5] Specifically:

1. She missed March 2, 2012, without an explanation

2. She missed April 4 and 5 without an explanation

3. She missed the child's Plan of Care Meeting on April 2, 2012

4. She cancelled her visits on June 27 and 28, 2012, as her grandparents were out of town and she had nowhere to stay in Toronto

5. She missed her visit on July 6, 12, 19 and 26, 2012 due to her late arrival at the society's office, resulting in the cancellation and the child having to be returned to the foster home.

6. She did not attend visits scheduled for August 16, 24, 30 and 31, 2012. Nor did she call to cancel those visits.

7. She did not attend visits scheduled for September 6 and 7, 2012. Nor did she call to cancel those visits.

[25] Accordingly, for the 14-week period from the beginning of June to the end of the first week of September 2012, there would have been 28 scheduled visits. Mother missed 12 of those visits, or about 40% of her scheduled time with her child. Attending 16 visits over a 14-week period means that mother spent only 32 hours with her son in more than three months. She could have spent 56 hours with him.

Dr. Margaret Jordan

[26] Dr. Jordan is a psychologist who practises in St. Catherines, Ontario. She conducted a one-day assessment of mother's intellectual ability and adaptive skills as a result of a referral from Twin Lakes Clinical Services. The purpose of the assessment was to determine mother's eligibility for developmental services. The purpose of the assessment was not to assess mother's parenting skills, per se.

[27] All the background information which Dr. Jordan obtained for the purpose of her assessment came either from mother herself, or from her mother who also attended at the assessment. In her written report, Dr. Jordan noted that mother experienced "frustration and reacted negatively to stress" while she was growing up in her family unit. Her family had been involved with the children's aid society prior to the birth of A. Mother said she made some "bad choices" when she was a late teenager, which led to depression and anxiety and hospitalization following a "breakdown" when she was 19 years old. I infer from this evidence that this breakdown must have been shortly before the birth of A., as mother was the same age, 19 years, when she gave birth to him.

[28] Dr. Jordan administered a battery of standard psychological tests which she discussed in her written report, which was filed in evidence, as well as in her oral testimony. I extract the following from the Summary and Recommendations section toward the end of that report [my emphasis]:

Intellectually [mother] has a personal strength in her average verbal reasoning and in her processing speed when only visual scanning is required. She has weaknesses in Perceptual reasoning (0.3) percentile, Working Memory (1st percentile) and Processing Speed with a fine motor component (under 1st percentile). She has average literacy skills but her mathematics skills are in the lower extreme. Scores on a formal measure of adaptive skills are in the low average to average range. However, interview report of difficulties with money management, housekeeping independently, problem solving and reading environmental cues are credible based on her intellectual profile and weaknesses in mathematics. . . . [she] meets the criteria to be considered for designation as a person with a Developmental Disability in Ontario . . . has significant difficulties in overall adaptive functioning (based on extremely low mathematics score with reported difficulties with money management, housekeeping, problem solving and reading social cues).

[29] Evidence, such as this, coming from a Ph.D. does not take on a special status and somehow attract greater evidentiary weight by virtue of the source of that evidence. As with all evidence, it is to be considered in context and be given the weight that the court considers appropriate, having regard to the merits of that evidence, as well as all the other evidence in the case.

[30] That said, what is noteworthy about Dr. Jordan's evidence is that it is very consistent with the on-the-ground evidence from a number of society witnesses. In other words, Dr. Jordan's evidence does not stand in a vacuum but, rather, fits neatly into the other pieces of the puzzle presented by the society. Specifically, mother's "significant difficulties in overall adaptive functioning . . . problem solving and reading social cues" were noted by the society's workers, as illustrated in the foregoing examples which I referred to in these reasons.

[31] Dr. Jordan testified that mother would need lots of compensatory skills to make up for these significant deficits, stating "that can be done". However, it was clear from the totality of Dr. Jordan's evidence, as well as the other evidence, that mother is neither at that point now, nor is she likely to be in the near future.

Mother's Evidence

[32] Mother is now 21 years old. She testified that about three years ago she was involved with the society, but she was never brought into care. [6]

[33] She met A.'s biological father in 2009 and shortly afterwards she became pregnant with her son. She no longer has any contact with the father; and the father has no contact with the child.

[34] She gave birth to her child at a hospital in Welland.

[35] While mother was unable to offer any details, she states that the society became involved with her following the birth of her son "mainly because of my mother's involvement in the past".

[36] Following the birth, the mother and the child lived with the maternal grandmother in Welland. The society then had contact with mother almost every day, with the public health nurse coming to the home to give her lessons on how to feed her new baby. Mother says she was "very nervous as a new mother".

[37] She says that when the first apprehension occurred in March 2010, the society did not tell her the reason, and she was never "really sure" why this happened, stating, "they didn't give me any information".

[38] The society returned A. to mother's care three days after the apprehension on condition that mother live with her father in Welland. Mother agreed to do so.

[39] At some point afterwards, mother moved to Toronto, to live with the maternal grandmother and the grandmother's boyfriend. [7]

[40] Following the incident on November 30, 2010, the child was apprehended and, in turn, mother cut off her contact with Jordan, the man in whose care mother had left her child when she herself left the apartment.

[41] The society's evidence was that the child had been attacked by the dog. Mother stated that she believed Jordan attacked her son. She testified that the dog was harmless and could not have gotten into the child's playpen. However, the society's evidence was that when the police arrived there were dog feces all over the apartment. Mother did not deny this, nor did she give any explanation for the presence of the dog feces. There are only two logical inferences to be drawn from the presence of the dog feces. Either the dog was in fact running wild, or the feces were present prior to the mother leaving the apartment. Neither of these scenarios speak to mother credibly being able to care for her child in a safe and appropriate manner.

[42] Mother described her access visits, including her TAP visits, by stating that she was open to improving her parenting skills. However she denied that the problems identified by the various workers were as serious as the workers described them. She also disagreed that she was ever rough or harsh with her son or that she was unable to read and follow his cues.

[43] It appears that she has been moving back and forth between Welland and Toronto, as well as at least one move to and from Newmarket where her current boyfriend, M., resides. She currently lives in a two-bedroom apartment in Welland, where she has been residing for about two weeks. She said she signed a "long-term" lease there and it is her plan to live there with her son.

[44] She said she moved from Toronto to Welland about one month ago, but before she moved to her present apartment two weeks ago, she lived in an "older location" with her mother. She did not state where that was. Nor did she attempt to explain the reasons for these various moves.

[45] In her examination-in-chief, she stated that she will live with her 18 year-old sister G., who will be one of her supports. In her cross-examination, she added that her boyfriend would also live with her and act as one of her supports, both financially as well as in a caregiver role. Her boyfriend has attended only one access visit with the child.

[46] She met her boyfriend in 2011 and has been in a relationship with him since then. She testified that he has no source of income "at the moment". She does not know if he has any experience caring for small children. Mother was asked why she is not living with her boyfriend at the present time. She responded that the reason is "we are having financial difficulties".

[47] At one point, mother was living with her boyfriend in Welland from about December 2011 to April 2012. Then he moved, on his own, to Newmarket, while she remained behind in Welland. [8] She then moved to Toronto in about June 2012. She moved back to Welland in about August 2012.

[48] Apart from the issues surrounding her boyfriend, I am left to wonder about the sustainability of any plan which includes her 18 year-old sister G.. In mother's amended plan of care, filed just two months prior to the start of trial, her stated plan was to live with her boyfriend only. G. was not going to be part of this living arrangement. Accordingly, the plan to now include her sister creates the impression of having been cobbled together at the last minute, with little thought or substance.

[49] Her plan of care would include supports from the paternal grandparents, her father, her cousin P. and her friend H.W.. None of those people came to court to give evidence, or to sit in the body of the court to show their support for mother.

[50] Neither of the two people [9] that mother says she would live with and who would provide support for her and the child, attended court.

The Statutory Path

[51] Part III of the Act outlines the statutory path for the court to follow in a protection application. The first step is set out in subsection 47(2), which requires the court to make the jurisdictional findings. As I previously noted, Justice Zuker made those findings on September 8, 2011.

[52] The second step is for the court to determine whether the child is in need of protection pursuant to subsection 37(2) of the Act. Once again, Justice Zuker made that finding in need of protection, pursuant to subsection 37(2)(b)(i) on September 8, 2011.

[53] The third step, once a finding in need of protection has been made, is to decide on the appropriate disposition. Section 57 of the Act provides:

57. Order where child in need of protection.—

(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

2. Society wardship — That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

4. Consecutive orders of society wardship and supervision — That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

(2) Court to inquire. — In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

(3) Less disruptive alternatives preferred. — The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

(4) Community placement to be considered. — Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[54] In the context of the present case, because the child has been in care for more than 21 months, well beyond the statutory time limit of 12 months, the court is unable to make either a society wardship order or consecutive orders of society wardship and supervision.

[55] The other options are an order under section 57.1, a supervision order or a crown wardship order. However, as there are no other individuals who are available to seek a custody order under section 57.1, the only remaining options are a supervision order with mother, or a crown wardship order, with or without access.

[56] A supervision order would require the court to conclude that the mother is immediately [10] capable of appropriately caring for her child on a fulltime basis, supervised by the society. On all of the evidence before the court, that conclusion is not possible, having regard to the best interests of the child.

Why No Supervision Order

[57] The weight of the evidence forces me to conclude that mother has inherent intellectual or psychological deficiencies which prevent her from reading and understanding her child's cues and reacting to those cues in a safe and nurturing manner. If she is unable to demonstrate that she is capable of doing this in an effective manner for brief periods of time in a highly structured supervised setting, the court cannot logically conclude she would be capable of doing so on a fulltime basis, and without someone constantly looking over her shoulder.

[58] Nor has she demonstrated that she has the capacity to learn how to safely care for her child. Again, when safety issues frequently arise in brief, supervised access visits, then I must conclude that the child living fulltime with the mother would pose serious risks of harm to the child.

[59] Second, mother's judgment is highly suspect. She chose to leave her child either with a dangerous dog, or with a person who himself was dangerous and a threat to her child. Notwithstanding that, she now states she is prepared to delegate child care responsibilities to a boyfriend with whom she is not living, and who, himself, has seen the child only once in the child's lifetime and, further, as far as mother is concerned, may have had no experience whatsoever in caring for a young child.

[60] She is also prepared to delegate child care responsibilities to her sister who is a school-aged teenager and who ignored the mother's caution not to place a choking hazard around the child's neck.

[61] Third, the mother has missed a substantial portion of her access visits, without any real explanation. [11] A parent who is seeking to regain custody of her child needs to make that her number one priority. That would include demonstrating to the court that she is attending virtually every visit, absent a true emergency. If she cannot set aside sufficient time to attend visits for four hours per week, how is it possible for the court to conclude that her child will be her priority for 168 hours per week? In this case, for the three-month period leading up to shortly before the start of this trial – a time which the mother ought to have known would be most closely scrutinized by the court – mother missed approximately 40% of the scheduled visits.

[62] Fourth, I turn to the issue of mother's transience. In the past two years mother has had a number of different residences. She has moved around continuously between Toronto, Newmarket and Welland, seemingly unable to acquire and retain stable housing. She has provided little or no justification for these repeated moves. She seems not to be able to remain in one place for any extended period of time. She has been in her current residence for approximately two weeks.

[63] Finally, I turn to mother's support system. As I previously noted, mother states that she is counting on a number of different people to help her out, both financially as well as in a child-care capacity. None of those people attended court. It may well be that mother sincerely believes those people would provide substantial and extensive support for her and for her son. I am prepared to give mother the benefit of the doubt, insofar as her sincerity is concerned.

[64] However, when a parent has the kind of intractable deficits that this mother has, it is crucial for the court to understand fully the nature and the quality of the proposed supports that will be in place to provide the assistance which mother would clearly require on an ongoing basis. Unless those persons are willing to come to court to testify, and to have their testimony tested on cross-examination, the court cannot possibly be satisfied that the supports are real or, if real, that they are meaningful, and that they would meet the needs of the child.

[65] For all of the foregoing I am forced to conclude that a supervision order would not be in the best interests of this two year-old child.

[66] Accordingly, the only remaining option open to the court is to order crown wardship, with or without access.

Crown Wardship with Access?

[67] Mother's alternative argument is that the court should order crown wardship with access.

[68] Section 59(2.1) of the Act provides [my emphasis]:

(2.1) Access: Crown ward. — A 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.

[69] This is a two-part test, both parts of which must be satisfied before the court can make an order for access. The case law is settled, namely, that the parent or proposed caregiver who is seeking an access order, has the burden of proving both prongs of the test. See, for example, Catholic Children's Aid Society of Hamilton v. B.(D.), [2003] O.J. No. 1968 (Ont. S.C.) and Children's Aid Society of Toronto v. Tracy L. and Evonne B., 2010 ONSC 1376, [2010] O.J. No. 942.

[70] Turning first to subsection 59(2.1)(a), the "beneficial and meaningful" test, the mother argued that, if the child is made a crown ward, the court ought to make an access order because the access is both beneficial and meaningful to the child. The burden of proving this rests with the mother.

[71] The case of Children's Aid Society of the Niagara Region v. J.C., 223 O.A.C. 21, 281 D.L.R. (4th) 328, 36 R.F.L. (6th) 40, [2007] O.J. No. 1058, considered the import of the phrase "beneficial and meaningful". Speaking for the majority, Justice Catherine D. Aitken stated, at paragraph [29] [my emphasis]:

"Beneficial" has been held to mean "advantageous". "Meaningful" has been held to mean "significant" (Children's Aid Society of the Niagara Region v. M.J., supra, 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 mother's relationship with the children at the time of trial was that she loved 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.

[72] The case of Children's Aid Society of Owen Sound and Grey County v. Tammy T., 16 R.F.L. (6th) 235, [2005] O.J. No. 1875, was a decision of Justice Hugh M. O'Connell, who also considered the phrase "beneficial and meaningful", stating at paragraphs [20] and [21] [my emphasis]:

The meaning to be attracted to the words "beneficial" and "meaningful" are not synonymous. If access is meaningful but not beneficial to the children then access should be denied. The appellant must prove on the balance that these children would gain a benefit or advantage from their relationship with her beyond the fact that she is their mother. As stated by Morneau J., there is no issue as to the love the parents have for these children.

Reference is made to the cases Children's Aid Society of Ottawa-Carleton v. T.C., [2002] O.J. No. 3711 (S.C.J.), Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.T., [2003] O.J. No. 3041, and Re S.P., [2001] O.J. No. 1280 (S.C.J.) in support of this law. A parent cannot meet the threshold by relying on arguments that past access visits were successful or that the children had much to gain from future access visits. She must show that, on the balance of probabilities, the access is both meaningful and beneficial to the children and the appellant must adduce evidence about the nature and the quality of her relationship with the children.

[73] In support of his argument that the access is "meaningful and beneficial", Mr. Sudano, for mother, relies on my decision in Children's Aid Society of Toronto v. T. (C.) (2006) R.F.L. (6th) 443. In that case, I made an order for crown wardship with access. In doing so, I noted that the access between the child and his mother was mostly positive and that "the child has a bond with his mother and that he enjoys most part of the visits . . . . [and the child] . . . greets her with smiles and hugs." Counsel stated that the same is true in this case.

[74] I agree with counsel that these similarities do exist in the two cases. However, I disagree with the suggestion that enjoyment during visits, hugs and kisses and smiles are sufficient, in and of themselves, to allow a court to conclude that access is "beneficial and meaningful". In my prior decision, the evidence about the access visits was buttressed by a psychologist who, after performing an assessment, concluded that the child's loss of his mother, if a no-access order were to be made, would represent a real "loss" to the child. No such evidence was presented in the case at bar.

[75] I conclude, therefore that on the evidence presented, mother has not satisfied the first test, namely, that access is beneficial and meaningful.

[76] Furthermore, that case was decided on the predecessor Act, which has since been amended. When that case was decided, subsection 59(2.1)(b) provided [my emphasis]:

(b) the ordered access will not impair the child's future opportunities for a permanent or stable placement.

Subsection 59(2.1)(b) now reads [my emphasis]:

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

[77] In the prior case, I concluded on the evidence that the child was in a stable foster home where he was likely able to remain for some time. I also concluded that there was little evidence that the child, who had significant special needs, and who was five years old at the time of trial, was adoptable.

[78] In the present case, the child is two years old and he has no real special needs [12]. A child of that age and without any special challenges is presumptively adoptable. [13]

[79] And perhaps most important, with the change in the legislation, a court can no longer order access when a crown wardship order is made unless the parent is able to establish, on a balance of probabilities, that an access order will not impair the child's "future opportunities for adoption". No such evidence was led in this case. Nor was the argument in support of that contention advanced by counsel. [14]

[80] Accordingly, I must conclude that the mother has not satisfied the second part of the test set out in subsection 59(2.1)(b) of the Act, as well as the first part of the test in subsection 59(2.1)(a). As a result, and for the reasons stated, I am unable to order crown wardship with access.

Conclusion

[81] As with most crown wardship trials, this decision will doubtless represent a sad outcome for the mother, notwithstanding that the result is in her child's best interests. But in this case, I expect that the outcome for mother will be particularly difficult. As I listened carefully to the evidence, and especially mother's evidence, I concluded that mother is generally a well-meaning and sincere person who very much loves her child and very much wants to be his parent – or at least maintain a relationship with him.

[82] However, her significant challenges likely prevent her from having the necessary insights into why she cannot adequately parent her child. I do believe her, when she says that she believes she is a good mother and that she can adequately care for her son. Regrettably, that is not enough, particularly when that belief is not founded on the evidence. Unfortunately for mother, she may never understand why the court has been forced to conclude that her relationship with her child must be terminated and why it is in his best interests to be placed for adoption. Nevertheless, she may take some solace from the knowledge that her son will likely find a stable and permanent placement within an adoptive home, where he will be given a real opportunity to develop to his full potential, and as a happy and healthy child.

[83] There will be an order making the child, A., a crown ward, so that he can be placed for adoption.

Justice Robert J. Spence

September 24, 2012

Footnotes

[1] On January 12, 2011 Justice Marvin Zuker made a ruling of "no male parent" pursuant to the Child and Family Services Act.

[2] The society worker described the dog as a "large pit bull", but the mother's evidence seemed to suggest that it was not a pit bull.

[3] For the purpose of these reasons I am prepared to give mother the benefit of the doubt when she denies that she was intoxicated.

[4] According to the society's evidence; although it is unclear under what section of the Act the plea was accepted. In her own evidence mother stated that she pled guilty to "abandonment".

[5] Missed visits include those occasions when mother showed up late at the society's office, so that the child had to be returned to the foster home prior to the mother's arrival.

[6] Her memory as to the society involvement may have been faulty, as it would not have been possible for the society to commence a court proceeding and bring her into care after she turned 16 years of age.

[7] It was not clear from the evidence when this move took place and why the mother chose to live with the grandmother after that living arrangement had previously raised a red flag with the Niagara society in March 2010.

[8] Although where that residence was in Welland, or with whom the mother was living, did not materialize from the evidence.

[9] Her boyfriend M. and her sister G.

[10] "immediately", because the 12-month statutory time limit has long been exceeded and the child can no longer remain in care unless the court makes the child a crown ward.

[11] Although she herself did not advance this as a reason, I am prepared to give the mother the benefit of the doubt on a very few of the missed visits, that for some of them she was travelling from Welland to Toronto and may have missed a bus. However, that does not explain the vast majority of the missed visits.

[12] It remains to be seen whether he may require some speech therapy. However, there is no immediate evidence that is the case. And, in any event, the child is meeting all of his milestones.

[13] See T. (C.), supra, at paragraph 78.

[14] To be clear, this is not intended as a criticism of Mr. Sudano, or the way in which he presented the case. In fact, he represented mother in a way that demonstrated both organization and skill.