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 45(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.

(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.

(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 File and Parties

Court File No.: C51924/10

Date: 2014-10-06

ONTARIO COURT OF JUSTICE

In the Matter of an Amended (4 Times) Protection Application Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of M.B., born on […], 2011.

Between:

CHILDREN'S AID SOCIETY OF TORONTO

Sherri Smolkin, for the Applicant

APPLICANT

- and -

S.B. and J.V.

Andrew Sudano, for the Respondent, S.B.

RESPONDENTS

The Respondent, J.V., is deceased

Heard: September 29-30 and October 2, 2014

Justice: S.B. Sherr

REASONS FOR JUDGMENT

Part One: Introduction

[1] The Children's Aid Society of Toronto (the society) has brought an amended (4 times) protection application seeking a finding that M.B. (the child), born on […], 2011, is a child in need of protection pursuant to clause 37(2)(b) of the Child and Family Services Act (the Act). The society seeks a disposition order that the child be made a crown ward, with no order for access.

[2] The respondent S.B. (the mother) is the child's mother. She asks that the society's application be dismissed. In the alternative, if the child is found to be in need of protection, she asks that the child be placed with her, or in the alternative, placed with her and her stepfather (the stepfather), subject to society supervision. In the event that the child is made a crown ward, she asks that the court make an order for access.

[3] The respondent J.V. is the child's biological father. He died of a drug overdose on December 5, 2013.

[4] During the trial, the parties submitted a consent with respect to the statutory findings concerning the child pursuant to subsection 47(2) of the Act. An order will go based on the findings agreed to.

[5] The primary issues for the court to decide are:

a) Is the child in need of protection pursuant to the Act?

b) If so, what disposition order is in the child's best interests?

c) If the court makes an order that the child should be made a crown ward, should an access order be made?

d) If the court makes an access order, what form should it take?

[6] The trial of these issues was heard over three days. On consent of the parties, this trial was conducted as a blended proceeding. The court did not consider evidence that went solely to the issue of disposition in determining if the child was in need of protection.

Part Two: Background Facts

[7] The mother is 19 years old. She first became involved with the society in 2007 due to parent-teen conflict with her mother (the maternal grandmother). The mother came into the society's care for 10 days in August of 2007 pursuant to a Temporary Care Agreement. She then returned home.

[8] The society became involved with the mother again in September of 2008. The mother was 13 years old at the time. The society had been contacted by the Big Brother and Big Sister agency who reported that the mother was having sexual relations with her 18-year-old boyfriend and that she had had an abortion. The society verified the concerns but then closed the file.

[9] The society became involved again with the mother from February of 2009 until January of 2010 due to parent-teen conflict. The society closed their file as they believed that there was an improvement in the mother-daughter relationship.

[10] The society did not start a child protection application with respect to the mother when she was a child.

[11] The child is the mother's second child. She gave birth to Ma. B. on […], 2010. The mother was 14 years old when she became pregnant and 15 years old when she gave birth. Ma. B. had a different father (J.K.) than M.B.

[12] The society worked voluntarily with the mother after Ma. B. was born. The society was concerned about the mother's age and her level of maturity and J.K.'s criminal history. The mother initially lived with Ma. B. at her parents' home. She then moved with the child to live with the child's paternal grandparents (the C's).

[13] On June 20, 2010, J.K. was charged with assaulting the mother. He had a bail condition to have no contact with her. The mother testified that this incident was the last of several times that J.K. had physically assaulted her.

[14] On June 23, 2010, the mother entered into a Voluntary Service Agreement with the society. It was agreed that the mother and Ma. B. would live with the C's.

[15] On July 20, 2010, the mother advised the society that she no longer wanted to reside with the C's. She agreed to go to a maternity home with Ma. B., and reside with the maternal grandmother until she was accepted to this home.

[16] In August of 2010, the mother disappeared with Ma. B., from the maternal grandmother's home, for 12 days. Her whereabouts were unknown. The society obtained a warrant to apprehend Ma. B. on August 26, 2010.

[17] On August 27, 2010, the mother and Ma. B. were found at the home of J.K. It was observed that there was no crib or proper sleeping arrangements for the baby. J.K. was arrested and the mother refused to tell the society where she had been or what her plans were for Ma. B. The baby was apprehended by the society.

[18] A temporary order was made on September 1, 2010 by Justice Robert Spence placing Ma. B. in the temporary care and custody of the society. The mother was granted supervised access at the society offices three times per week. The mother initially was consistent in visiting the child.

[19] A plan was presented by the C's to care for Ma. B. This plan was assessed and approved by the society.

[20] The mother learned that she was pregnant with the child in April of 2011. She was 16 years old at the time.

[21] On May 3, 2011, on consent, Ma. B. was placed in the temporary care and custody of the C's. It was agreed that the C's would supervise the mother's access.

[22] The mother testified that her access with Ma. B. was gradually reduced by the C's. She said that they did not get along. A Statement of Agreed Facts dated June 11, 2012 sets out that the mother would often cancel visits.

[23] The mother did not file an Answer/Plan of Care in the case involving Ma. B. On September 7, 2011, she was noted in default and Justice Geraldine Waldman made final orders, finding Ma. B. to be a child in need of protection pursuant to clause 37(2)(b) of the Act and ordered that Ma. B. be placed in the C's care and custody for six months, subject to terms of society supervision.

[24] The reasons why Ma. B. was found in need of protection included:

a) The mother's young age and immaturity.

b) The mother's transience and lack of stable housing.

c) Domestic violence between the parents that led to J.K. being charged with assaulting the mother.

d) The mother's poor judgment and inability to protect the child, particularly in going to J.K.'s home with the child in the face of the criminal no-contact order.

e) The mother's breach of working conditions with the society.

f) The mother's anger issues.

g) The mother's failure to engage in any services requested by the society, including taking parenting courses, obtaining counseling or attending for a psychological or psychiatric assessment.

h) The mother's irregular access. She didn't attend the majority of the visits that were offered to her.

i) The mother's lack of insight into the protection concerns.

j) J.K.'s criminal history. He was under a probation order when the child was apprehended which related to charges of assault with a weapon and theft under.

[25] The mother did not have contact with Ma. B. from September 7, 2011 until June of 2012. On April 30, 2012, the mother was noted in default in the status review application for Ma. B.

[26] The child was born on […], 2011 and apprehended from the hospital. On December 16, 2011, Justice Waldman ordered that the child would remain in the temporary care and custody of the society and her parents would have access, supervised at the society offices, twice each week for two hours.

[27] The society's position was that the mother had not addressed any of the protection concerns that led to the finding in need of protection for Ma. B. Further, the child's father, J.V., had a criminal history and substance abuse issues.

[28] The mother and J.V. exercised access to the child consistently at the start, but then became increasingly inconsistent attending visits in 2012. The society worker testified that the visits went well when they took place – "the problem was getting them to come to the visits". The society made several efforts to rearrange access times to accommodate the schedules of the child's parents. J.V. did not exercise access from September of 2012 until February of 2013.

[29] On June 11, 2012, the society terminated the protection proceedings concerning Ma. B. The same day, the C's obtained a temporary custody order for Ma. B., pursuant to the Children's Law Reform Act. The Statement of Agreed Facts filed in the child protection case indicates that:

a) The mother had made no effort to complete any of the expectations recommended to her by the society until recently.

b) The mother failed to attend regularly scheduled appointments or would often be late.

[30] On August 12, 2012, the C's obtained a final custody order for Ma. B. The court also ordered that the mother not have access to the child. The mother has not seen Ma. B. since then.

[31] In November of 2012, the society amended their protection application to seek crown wardship of the child.

[32] The C's subsequently presented a plan to care for the child. This plan was approved by the society in December of 2012 and the society worked on integrating the child into the C's home.

[33] In February of 2013, the child went to live with the C's on an extended visit. This went well. On March 12, 2013, an order was made placing the child in the temporary care and custody of the C's. The society amended their protection application to seek an order granting the C's custody of the child pursuant to section 57.1 of the Act.

[34] The mother entered into a new relationship with S.F. in February of 2013.

[35] During this time, the mother's access and level of engagement with the society continued to be inconsistent. She did not engage in services recommended by the society. J.V. was engaging with services and put forward a plan that was assessed by the society. The mother testified that she was prepared to stay in the background and support J.V.'s plan because she knew that he would take good care of the child and permit her to have a relationship with her.

[36] In June of 2013, the mother was charged with assaulting S.F. The mother participated in a Partner Violence Program (PARS) in 2014 and eventually received an absolute discharge.

[37] In July of 2013, the C's informed the society, with little notice, that they would be moving to Newfoundland with Ma. B. and would not care any longer for the child (M.B.).

[38] The child came back into the society's care on July 19, 2013. On July 24, 2013, a temporary order was made placing the child in the society's care and custody. The society amended their application to seek a crown wardship order.

[39] The society continued to investigate J.V.'s plan. They wanted to see a period of drug abstinence and stability from him. The mother's access to the child continued to be inconsistent. She missed three-quarters of her visits in November of 2013 and half of her visits in December of 2013.

[40] J.V. died of a drug overdose on December 5, 2013.

[41] The society then investigated other kin options, without success.

[42] The mother began to exercise regular access to the child starting in January of 2014. Her access has been gradually increased to unsupervised Saturday visits in her home, for 5 hours each week. These visits go well.

[43] In April of 2014, the mother proposed a plan for the child where she would live with the maternal grandmother and the stepfather. The society referred this plan to their kinship department for assessment.

[44] The mother moved in with the maternal grandmother and the stepfather in May of 2014.

[45] The society's kinship department rejected the mother's plan in May of 2014, primarily due to the extensive child protection history of the maternal grandmother and the stepfather.

[46] The maternal grandmother then moved out of the home and has not returned.

[47] In July or August of 2014, S.F. moved in with the mother and the stepfather and became part of the mother's plan for the child.

[48] The mother advised the society on July 30, 2014 that she was pregnant again. She testified that the child will be delivered by C-section on March 14, 2015. She says that S.F. is the father.

[49] The mother advised the society on September 25, 2014 (4 days before the start of the trial) that she had broken up with S.F. and that he would not be living with her.

[50] The mother and the stepfather were evicted from their apartment on September 30, 2014 (the second day of the trial). They are presently living at the home of the mother's aunt.

Part Three: Finding in Need of Protection

[51] The society seeks a finding that the child is in need of protection pursuant to clause 37(2)(b) of the Act. This clause reads as follows:

Child in need of protection

37(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or;

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[52] The risk of harm under clause 37(2)(b) of the Act must be real and likely, not speculative. See: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T..

[53] Harm caused by neglect or error in judgment comes within the finding. See: Children's Aid Society of the Niagara Region v T.P..

[54] The mother did not seriously contest that the child was in need of protection at trial. Quite properly, her focus was on the disposition of the case.

[55] The evidence was overwhelming that the child was in need of protection for the following reasons:

a) Ma. B. was found to be in need of protection on September 7, 2011, just two months before the child was born. The mother had made no efforts during this intervening time to address any of the protection concerns that led to this finding.

b) The mother was only 17 years old when the child was born and continued to exercise immature judgment. She was inconsistent in exercising access to Ma. B. and missed plan of care meetings with the society.

c) The mother did not obtain proper pre-natal care for the child. A society worker deposed that the mother lied to her about obtaining care at the Hospital for Sick Children. She said that she called the hospital and learned that the mother did not attend for appointments. The worker deposed that the mother admitted this and promised to attend.

d) J.V. had a significant criminal history, with a history of violence. He was arrested for an assault on August 31, 2011 and was in jail until October 11, 2011. He also had a substance abuse issue.

e) The mother and J.V. provided little cooperation to the society prior to the child's birth. They would not provide details of J.V.'s assault charge. The society was only able to meet with J.V. one time and he provided them with very little detail about himself.

f) The mother continued to make questionable choices in partners.

g) The society received community reports of drug and alcohol abuse by the mother. The mother admitted to using small amounts of marijuana daily to deal with stress. She initially agreed to obtain hair-follicle drug testing, but did not follow through with this. At trial, the mother testified that she used to take crack cocaine with J.K., but had not used this drug since she broke up with him.

h) The mother could not maintain stable housing. In 2010, the mother lived at her parents' home, the C's home, a maternity home for one month (Massey Centre), J.V.'s home and her sister's home. In 2011, she lived in her parents' home, lived with J.V. and his mother, then with J.V. alone, returned to live at her parents' home (due, according to the mother, to some "criminal things with J.V.") and then moved out of her parents' home to live again with J.V.

i) The mother continued to lack insight into the protection concerns and took no steps to address them.

j) The mother was not complying with any of the expectations set out by the society.

k) The mother continued to live an unstable and chaotic lifestyle.

[56] The child is found to be in need of protection pursuant to clause 37(2)(b) of the Act.

Part Four: Disposition

4.1 Legal Considerations

[57] The court's disposition options in this case are set out in subsection 57(1) of the Act. This subsection reads as follows:

Order where child in need of protection

57. (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:

Supervision order

1. 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.

Society wardship

2. 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.

Crown wardship

3. 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.

Consecutive orders of society wardship and supervision

4. 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.

[58] The court also can make a custody order in favour of any person pursuant to section 57.1 of the Act, with that person's consent.

[59] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:

1. Determine whether the disposition that is in the child's best interests is return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or crown wardship. (Section 57.)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for crown wardship.

3. If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)

[60] Subsection 57(2) of the Act requires that I ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act.

[61] Subsection 57(3) of the Act requires that I look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless I determine that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[62] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care.

[63] In determining the appropriate disposition, I must decide what is in the child's best interests. I have considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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 by blood or through an adoption order.

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.

[64] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J), (1997) 23 R.F.L. 4th 79 (SCJ- Family Branch).

[65] In determining the best interests of the child, I must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M..

[66] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..

[67] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests. See: Catholic Children's Aid Society of Hamilton v. J.I.. This principle also applies to a young mother, who was herself subject to severe neglect and abuse. See: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

4.2 Services Provided

[68] The society has provided the mother and the child with a number of services over the years including:

a) The society referred the mother to the Family and Teen Clinic at the Hospital for Sick Children. The mother started, but then stopped attending this program.

b) The society referred the child's parents to the HOPE program for one-on-one support. The mother did not participate in the program.

c) The mother was referred to the Wrap-a-Round program. This is a non-profit organization which uses a holistic method of engaging with individuals with complex needs. The mother did not use the program.

d) The society workers reviewed options for affordable housing with the mother.

e) The society referred the mother's plan to their kinship department for assessment.

f) The society provided referrals to the mother for counseling and parenting programs.

g) The society was prepared to fund hair-follicle drug testing for the mother.

h) The society provided the mother with bus tokens to facilitate visits.

i) The mother was provided with a Family Service Worker/ Pregnancy and Aftercare Worker.

j) The child was provided with a Children's Service Worker.

4.3 Community or Family Plans

[69] The society met their statutory mandate to explore alternate community and family plans for the child. In particular:

a) They assessed and approved the C's plan to care for the child in 2012.

b) They were seriously considering J.V.'s plan before he died.

c) They reached out to J.V.'s extended family after he died. They started an assessment of his uncle, which was not completed. The uncle and his wife could not agree on whether to adopt the child and eventually separated. The uncle was uncertain about his plans and didn't follow through with the assessment.

d) The society inquired if J.V.'s mother would put forward a plan. She chose not to do so.

e) The society investigated the plan for the maternal grandmother and the stepfather to care for the child. They did not support this plan after they completed their assessment.

f) The society then investigated the plan for the stepfather to care for the child. They did not support this plan after they completed their assessment.

g) The society was advised on April 5, 2014 that the C's wished to pursue a permanency plan for the child. They referred the matter to the child protection agency in Newfoundland in May of 2014 to assess their plan. This assessment process is still ongoing.

[70] The only remaining plans at trial to evaluate were those of the society and the mother.

4.4 The Child

[71] The court heard that the child is a wonderful little girl. She is healthy and developing normally. She is happy and doing well in foster care. She was described as a social child who is loving and affectionate. She has no behavioural issues.

[72] The court also heard that the child loves her mother and enjoys her visits with the mother and the stepfather. She is affectionate with them and gives them big smiles and hugs at the start of visits. The child is sometimes reluctant to leave the mother at the end of the visits.

4.5 Review of the Mother's Evidence

[73] The mother testified that she grew up in Toronto. She testified that her closest supports in her life have been the maternal grandmother, the stepfather, and her sister, who is 5 years older than her.

[74] The mother described herself as a rebellious teenager. She said "I just wanted to have fun and do what I wanted to do. I wasn't big on following directions from anybody". She said that she and the maternal grandmother frequently argued, particularly over whether she should go to school (at age 14). She moved out of her home at a young age to live with an older boyfriend.

[75] The mother was able to recount how the society became involved with her due to her conflict with the maternal grandmother. She felt that the intervention of the worker was very helpful – she gave them good strategies to work on their conflict.

[76] The mother described the abusive relationship that she had with J.K. She said that she didn't do much except complain about it, "until it got very physical". The mother candidly acknowledged that Ma. B. was apprehended "because she put her at risk, taking her to the father's home after he beat her (the mother) up with a no-contact order".

[77] The mother described how she felt lost and confused after Ma. B. was apprehended. She felt that the society was supporting the paternal family and felt betrayed. She said that she had a bad relationship with Ma. B's paternal grandmother. She felt uncomfortable seeing her at the society office and stopped coming regularly to visits. She acknowledged making up excuses for not coming to the visits.

[78] The mother acknowledged that the society had set out expectations for her both before and after she became pregnant with the child. She said that "they were asking me to do things which I really wasn't doing".

[79] The mother felt that she had a good relationship with J.V., but it became strained when he blamed her for the child being in care – he felt it was unfair to him. She said that she was aware that he had a lengthy criminal record and had been in jail.

[80] The mother testified that she was comfortable when she learned that J.V. wanted to plan for the child. She felt that he would do a good job and permit her to have access to the child. She acknowledged that she wasn't planning for the child herself or participating with the society.

[81] The mother said that she was devastated when J.V. died and decided to put forward her own plan.

[82] The mother said that she was disappointed when the society did not approve her plan to live with the maternal grandmother and the stepfather. She said, "my parents are my stability, they are the people who support me. I thought they would make me stable for the child". She said that the maternal grandmother became upset that she couldn't be part of her plan and left the home. She says that she only has occasional telephone contact with her. She testified that she would not permit her into the home now, as she fears how their conflict might not be stable for the child.

[83] The mother testified that she started dating S.F. in February of 2013. She said that in June of 2013 she was charged with assaulting him and fail to comply. She said, "I got a little bit angry and didn't address it the right way. I got arrested". The mother completed the PARS program and received an absolute discharge in 2014.

[84] The mother acknowledged that she was aware that S.F. had a lengthy criminal record and substance abuse issues. S.F. is currently on probation for assaulting a police officer and resisting arrest in March of 2014. The mother said that he spent some time in jail for this offence and that it wasn't the first time he has been in jail since she met him.

[85] The mother testified that she recently learned that another woman had become pregnant with S.F.'s child. The mother and S.F. separated on September 16, 2014.

[86] The mother and stepfather testified on September 30, 2014. They described in detail the qualities of their current accommodation. The mother said that she planned to have the child attend the daycare just down the street. The mother and the stepfather both expressed reservations about the high rent and whether they could continue to afford it. They indicated that they planned to look for more affordable housing. The mother said that she was open to the idea of moving into the Massey Centre, a maternity home for young mothers.

[87] On October 2, 2014, the mother asked to re-open her case to present additional evidence. She testified that when she returned to her home on September 30, 2014, she found out that she and the stepfather had been evicted and locked out. She said that her landlord had taken her to court in August of 2014, they had participated in mediation and had reached an agreement. She said that she and the stepfather had not complied with the agreement and were evicted.

[88] Neither the mother nor the stepfather provided the court with this important evidence about the fragility of their housing when they testified on September 30, 2014.

[89] The mother said that she and the stepfather are presently staying with her aunt. She plans to leave in about a week as there are too many persons in the home.

[90] The mother testified that she feels she has matured and makes more appropriate decisions. She described how she has been proactive in obtaining supports for her current pregnancy.

[91] The mother described her relationship with the child with love and affection. She showed a good understanding of the child. She described in detail her positive visits with the child.

[92] The mother testified that she felt she would have no problem parenting two children.

[93] The mother testified that she has an excellent relationship with the stepfather. She says they never fight and that he has a calming influence on her. She said that they parent the child together well on visits.

4.6 Review of the Stepfather's Evidence

[94] The stepfather testified. He is 50 years old. He has been on Ontario Disability Support (ODSP) for the past 7 years. He said that he has had several knee operations and has had two knee replacements. He started living with the maternal grandmother in 2001 and married her in 2003. He said that they had a good relationship. The mother was 5 years old when he moved into the family home and he considers her and her sister his daughters.

[95] The stepfather has no biological children. He testified that he and the maternal grandmother changed their residence in April of 2014 from Harriston, Ontario to Toronto, to support the mother.

[96] The stepfather spoke very affectionately of the mother and stated that he has seen her mature. He said that at first "she didn't do much, but once the child's father died she pulled herself up and improved a lot". He said that the child had a great connection with the mother.

[97] The stepfather said that he has attended every access visit with the child since May 1, 2014 and that they enjoy an excellent relationship. He says that he will support the mother "in any way she needs, financial or emotional".

4.7 The Plans of Care

4.7.1 The Society's Plan

[98] The society's plan is to make the child a crown ward and then seek an adoptive home for her. The child has no special needs that might impair her adoption. The society asks that the court not make an access order, in order to facilitate her adoption.

[99] The society advised the court that the C's have put forward a plan to adopt the child. This plan is still being assessed in Newfoundland and has not yet been approved. Even if it is approved by the Newfoundland child protection agency, it still must be determined if it should prioritized by the society's adoption department.

4.7.2 The Mother's Plan

[100] The mother asked that the child be placed with her. In the alternative, she asked that the child be placed with her and her stepfather.

[101] The mother's plan has changed several times in the past few months, including during the trial. Her first request is to have the child placed in her care. She said that she has applied to live at the Massey Centre. She said that she will have an intake interview with them on October 8, 2014. She is hopeful that she will be accepted into the program.

[102] The mother testified that she is also applying for subsidized housing and hopes to be able to obtain such housing to live with the child if she is not accepted by the Massey Centre.

[103] The mother's next housing alternative is to find accommodation with the stepfather. She plans to leave her aunt's home shortly.

[104] The mother hopes to be able to find daycare for the child. She also plans to look for work once she is settled with her new baby in 2015.

[105] The mother has recently engaged with service providers. She says that she is committed to working with them. She is now seeing a counselor, attending a parenting program, working with a public health nurse and a dietician. She has attended at St. Michael's Hospital for pre-natal care and is seeing a social worker there.

[106] The mother says that she also has the support of many friends and her sister to help her with the child. She said that the stepfather will be her major support. She testified that the child loves him very much.

[107] The mother testified that S.F. will also be a support for her. She said that he is very committed to being a good father for their new baby and that he has an excellent relationship with the child.

[108] In closing submissions, the mother presented proposed terms of a supervision order. Some of these supervision terms included:

a) That she and the child live at the Massey Centre.

b) She will enroll the child in daycare.

c) She will ensure that the maternal grandmother and S.F. have no contact with the child, except as authorized by the society.

d) That she will enroll in counseling and work with the public health nurse and dietician.

e) That she will participate in parenting classes and continue to work with her social worker at St. Michael's Hospital.

f) That she will not consume alcohol or drugs in the child's presence.

4.8 Positive Aspects of the Mother's Plan

[109] I make the following positive findings about the mother and her plan of care:

a) The child would have the opportunity of living with her biological parent.

b) The child would have the opportunity of knowing her extended biological family.

c) The child would have the opportunity of continuing her positive relationship with the stepfather.

d) The mother loves the child very much.

e) The child identifies the mother as her mother. She enjoys her time with the mother and the stepfather. The foster mother reports that the child comes home happy from visits. The child is affectionate and loving with the mother. Society workers testified that the child has a positive attachment and bond with her.

f) The evidence indicated that the mother's visits with the child are very positive. The mother has many parenting strengths, including:

i) She is organized and has a plan for each visit. She will bring toys and activities for the visits.

ii) Since the start of 2014, she has been consistent in coming to each visit and coming on time.

iii) She interacts easily with the child. The mother has been observed by society workers to be comfortable parenting the child.

iv) She is loving and affectionate with the child.

v) She is able to listen to the child and read her cues. She is able to identify when the child is tired or hungry.

vi) She is receptive to parenting advice and asks appropriate questions about the child.

vii) She ensures that the child is properly fed and cleaned. She knows the appropriate foods to give to the child.

viii) She has organized her home to be free of safety hazards for a toddler. The home was observed by the society to be clean and well-maintained.

ix) The mother has appropriate toys and clothing for the child. She has a chalkboard for the child to play on and has several of her art drawings hung up on the walls.

x) The mother has been able to work well with others (such as the stepfather and S.F.) when parenting the child at visits.

xi) Workers testified that they have "no worries" when the mother has access with the child – she exercises it responsibly.

g) The mother has become more cooperative with the society in 2014. She is executing consents and is more responsive to workers.

h) The mother is now engaging with service providers as detailed in paragraph 105 above.

i) The mother has an engaging personality. If she is willing to follow through with their assistance, service providers will be motivated to help her.

j) The evidence indicated that the mother is beginning to mature. This is reflected in the consistency of her access and improved engagement with the society.

k) The mother demonstrated some insight into the reasons why her children were taken into care and acknowledged some of her issues. This makes it more likely that she will be able to make the necessary changes in her life that are required to reduce the risk to any child placed in her care.

l) The mother, despite her limited education, impressed the court as being bright and articulate. She does not appear to have any cognitive limitations that would adversely impact on her parenting.

m) The mother is taking the necessary steps and engaging with the proper services to ensure that her baby will be born healthy.

n) The mother's family service worker wrote a case note in June of 2014 that the mother may be able to parent the child with supports. However, she testified that she wrote this note before she learned the mother was pregnant. She does not believe that the mother can adequately parent the child at this time.

4.9 Limitations of the Mother's Plan

4.9.1 Preliminary Comments

[110] Notwithstanding the positive aspects of the mother's plan, I find that it is in the child's best interests to be made a crown ward for the reasons that follow below.

[111] The protection issues in this case are not about the mother's love for the child or her ability to look after the child on visits. As one of the society workers testified, "it is about almost everything else".

[112] The major protection issue is the mother's ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

4.9.2 Relationships

[113] The mother has continued to have unstable and questionable relationships since the child was born. She had been in a violent relationship with J.K. He had a criminal record and a substance abuse problem.

[114] The mother then had a conflictual relationship with J.V. He also had a long criminal record, history of violence and a substance abuse problem. He had just been in jail. He died of a drug overdose. Society workers deposed that the mother reported a lot of arguing and fighting in this relationship.

[115] The mother's next relationship was with S.F. He also has a long criminal record, history of violence and a substance abuse problem. S.F. was charged in 2014 with assaulting a police officer and resisting arrest. He is presently participating in a substance abuse program.

[116] All of the mother's partner relationships have been marked by conflict. The mother was charged with assaulting S.F. in 2013. The mother testified that she is trying to learn to control her anger and "not put her hands on people".

[117] This is a disturbing pattern of partner choices and brings the mother's judgment and ability to provide stability for the child into question.

[118] The mother also appears to have several other conflictual relationships. She has frequently changed residences due to conflict. She recently wanted to change out of a parenting group because of a personality conflict with another person. The mother acknowledged that she is often in conflict with the maternal grandmother.

[119] The mother, only recently, has begun to engage in services to understand why she is involved in so much conflict.

4.9.3 Housing

[120] The mother has continued to have unstable housing. In 2012, the mother lived with J.V., her friend, her cousin and her sister. In 2013, she lived with her cousin, with a friend and with her sister. In 2014 she has lived with her biological father, the maternal grandmother and stepfather, the stepfather alone, with the stepfather and S.F., and with the stepfather alone. On September 30, 2014, she and her stepfather were evicted from their apartment and she is now living with her aunt.

[121] The mother does not really have a viable housing plan and presented in a state of crisis at court on October 2, 2014. Her aunt's home is not suitable housing for the child as there are a large number of persons staying there. The mother is scrambling to find housing. She arranged an intake interview with the Massey Centre for October 8, 2014. However, there was no evidence that she would be accepted for this program, or if the child could live there with her. There was also no independent evidence about how long it might take for her to get into the program. The mother testified on October 2, 2014 that she would apply for priority housing through social assistance the same day. Again, there was no evidence about whether she would be approved for this housing or how long it might take to obtain it.

[122] The mother said that the stepfather would also apply for subsidized housing through ODSP. However, he had not yet taken any steps to do this (despite the imminent eviction). There was no evidence about whether he would be approved, how long it would take, or if the mother and child could even live with him.

4.9.4 Changing Plans of Care

[123] The mother has been unable to present a consistent and workable plan of care. The only constant is that her plans change. The mother's plans of care can be summarized as follows:

a) April of 2014 – The mother asks for the child to be placed in her care. She proposes to live with the maternal grandmother and the stepfather. She indicates that she will enroll in counseling and a school program. She also indicates that she will attend parenting and anger management programs at the Elizabeth Fry Society. The mother says that she has the support of her sister, S.F. and two friends.

This plan was not approved by the society. The maternal grandmother moved out of the home in May of 2014 and is no longer part of the mother's plan. The mother did not follow through with the Elizabeth Fry programs. She did not go back to school. She did start counseling on September 9, 2014 – three weeks before the trial. The mother did not call her sister or her friends to give evidence at trial.

b) July of 2014 – The mother advised the society that the maternal grandmother was no longer part of her plan. She assured the society worker that S.F. was not living with her and that he was not part of her plan.

c) September 4, 2014 – The mother asks that the child be placed in her care. Her plan now is to live with the stepfather and S.F. She proposes that the child go to daycare part-time, if necessary. She indicated that she would obtain personal counseling and take the child to the Ontario Early Years Program. She also indicated that she would take a parenting program with S.F. through the YWCA. She listed the same supports, save and except the maternal grandmother. She claimed to be looking for work.

d) September 25, 2014 – The mother advises the society that she has broken up with S.F. and that he is no longer part of her plan.

e) September 30, 2014 – The mother testifies that she is now open to going to the Massey Centre. However, she has not yet met with anyone there. She testified that she has left messages that have gone unreturned. She also testified that she and her stepfather are looking for more affordable housing. She doesn't mention that they are on the brink of eviction.

f) October 2, 2014 – The mother and the stepfather have now been evicted from their home. The mother proposes to move into the Massey Centre and offers alternate housing plans as set out in paragraphs 121 and 122 above.

[124] The mother's plan was vague and superficial and raised more questions than answers. She was unable to describe how she would provide stable housing for the child, how she would financially support the child, how costs would be shared and how parenting responsibilities would be shared. She had not confirmed daycare arrangements. She had a vague plan to one day look for work. She had no viable plan as to who she could reliably turn to in a time of crisis.

4.9.5 Poor Personal Supports

[125] There are also significant concerns about the mother's supports. The mother identified the maternal grandmother as one of her closest supports in her Plan of Care in April of 2014. However, the maternal grandmother has a troubling and extensive history with child protection agencies. She has had four children, most of whom were in and out of care from 1985. Two of her children were made crown wards. The protection concerns over the years related to neglect, allegations of physical and sexual abuse, her girls becoming sexually active at a young age and parent-teen conflict. The society had sound reasons for not approving her being part of a plan to care for the child.

[126] The society's kinship department also had sound grounds for rejecting the stepfather's plan to care for the child. The stepfather began living with the maternal grandmother in 2001. He was present when a lot of the child protection concerns occurred. The evidence indicates that he did little to protect the children, using the excuse that this was the maternal grandmother's responsibility. The stepfather claimed to have no knowledge of most of the protection concerns for the mother and her sister, but this was contradicted by the society that detailed evidence of discussing many of these issues with him.

[127] The stepfather also couldn't rationally explain why the maternal grandmother left the family home in May of 2014. He claimed that they had a very good relationship, yet he says that they haven't talked since she left. It leaves the court with the impression that she left the home in the hope that it would improve the mother's chances of having the child returned to her. The court strongly suspects that the maternal grandmother will be a real presence in the background if the child is returned to the mother.

[128] The court also has little confidence that the stepfather would be honest or cooperative with the society – essential requirements for a supervision order. He was aware that he and the mother were on the brink of eviction and did not disclose this to the court or the society (representing that they had suitable housing for the child) when he testified on September 30, 2014.

[129] The stepfather also demonstrated little responsibility in not taking any real steps to obtain alternative housing when he and the mother were on the verge of eviction – particularly when they were planning for the child to be placed with them.

[130] The court's overall impression of the stepfather is that he is at best, passive. While there is no evidence that he would ever harm the child, the court has no confidence that he would report any protection concern if it meant speaking up against the mother or the maternal grandmother. The court is not satisfied that he would act protectively for the child.

[131] The court also has concerns about S.F.'s relationship with the mother and what his role would be in the child's life. The mother, in submissions, proposed having no contact with S.F. without the society's consent. However, this was not the tenor of her evidence. This has been a volatile relationship. On September 4, 2014, S.F. was an important part of the mother's plan. On September 25, 2014, he was no longer part of her plan. In listening to the mother at trial, the court is far from convinced that this relationship is over. This creates several concerns. The mother acknowledges that they frequently argue and this is not stable for the child. The court is also concerned about S.F.'s own issues – his criminal history, history of violence and substance abuse history and how this might destabilize the mother and the child. The court did not receive S.F.'s criminal record and the society did not have the opportunity to assess him, because of the rapid change in the mother's plans.

[132] The mother also listed her sister as a strong support. However, the court learned at trial that all four of her sister's children have been taken into the care of her local children's aid society. The court was not provided with details of the protection concerns.

[133] The other two supports listed by the mother were not called to give evidence at trial.

[134] The mother does not have stable supports. Further, it appears that purported supports and partners regularly come and go from her life. This isn't the consistency and stability that the child requires.

4.9.6 Failure to Obtain Community Supports

[135] It is apparent from the evidence that the mother has deep-rooted issues that have adversely affected her. Given the maternal grandmother's extensive child protection history, it is likely that the mother was inadequately parented. She dropped out of school at a young age. She has had three pregnancies by age 19. She has been involved in relationships with men who have histories of violence, criminal behaviour, and substance abuse. She has been unstable herself. Her own child protection history at this time is mirroring that of her mother's. The mother needs considerable help to be able to break this cycle and become stable enough to safely parent a child.

[136] Unfortunately, until very recently, the mother has been very resistant to using any of the services that might help her.

[137] The society has regularly, since 2010, set out clear written expectations for the mother to follow. With the exception of attending the PARS program (which was mandated by the criminal court), the mother has not complied with these expectations until this summer.

[138] The mother is to be commended for finally obtaining supports. However, she didn't first see the public health nurse until September 9, 2014. She only started counseling in August of 2014 and has just gone to 3 sessions. She started the parenting program on September 10, 2014. She began to engage with St. Michael's hospital in August of 2014 and has met the social worker once.

[139] The mother has a history of starting with services and not following through with them. She needs to show that she can follow through with these services and make constructive use of them. This will likely take several months.

4.9.7 Responsibility and Insight

[140] The mother has not been able to move forward in a constructive way with her life. She was told as early as 2010 that the society had an expectation that she either go back to school or go to work. Over four years have passed and she has done neither. She has remained on public assistance. The mother acknowledged that "she didn't do much" prior to 2014.

[141] The mother also demonstrated questionable judgment becoming pregnant again when she was at a critical juncture in this case – when she was trying to put forward a plan for the child and trying to demonstrate that she can make responsible decisions. She showed little insight at trial into how having another child would make her plan for the child more difficult for the society and the court to approve. She didn't feel it would be difficult to parent two young children. She felt "it would be easy, fun and give me something to do". She demonstrated no understanding of the challenges she might face transitioning the child from a foster placement that has been her home for 2 years, while attending to the needs of an infant.

4.9.8 Drug Use

[142] The mother testified that she uses marijuana daily. She says that she does this to reduce her stress. She does not have a prescription for this drug. She claimed that her OBGYN knows of her drug use and has told her it is not a problem. She did not provide any supporting evidence (such as a medical report) for this claim.

[143] The mother has refused the society's requests to take a hair-follicle drug test. She said that this is because she is being honest about her drug use. She admitted to using crack cocaine in the past with J.K. and says that she has not used it since she broke up with him.

[144] The court is not willing to give the mother the benefit of the doubt on this issue and will not blindly accept, based on her word alone, that it is not a protection concern. The mother was not honest with the court about her housing situation and she does not have credibility concerning the drug issue. Drug use may very well explain some of the mother's instability. The court would want to see reliable evidence about the extent of the mother's drug use before it could safely place a child in her care.

4.9.9 Time

[145] The child has now been in the care of the society for over 29 months – well in excess of the statutory timelines set out in subsection 70(1) of the Act. It is far past the time for the child to have a permanent home.

[146] The mother has been given multiple opportunities to address the risk concerns. She is only recently making modest gains in her life. However, she is not close to being ready to appropriately parent the child.

[147] There are no exceptional circumstances present that would justify extending the timelines pursuant to subsection 70(4) of the Act.

4.9.10 Summary of Factors Adverse to the Parents Set Out in Subsection 37(3) of the Act

[148] In addressing the relevant clauses in subsection 37(3) of the Act, the court finds that:

a) The society's plan will better meet the child's physical, mental and emotional needs.

b) The society's plan will better meet the child's physical, mental and emotional level of development.

c) The society's plan will better meet the child's needs for continuity and a stable place in a family through adoption.

d) The risk of placing the child with the mother is unacceptably high. The child would be moving from a stable to an unstable environment.

e) The society's plan will better address the child's needs than the plan proposed by the mother.

f) This case should not be delayed any further and the child should receive a permanent home as soon as possible. It is in her best interests that this be in an adoptive home.

[149] The least disruptive disposition, consistent with the child's best interests, is to make her a crown ward.

Part Five: Access

5.1 The Law

[150] Once a disposition of crown wardship is made, the Act provides for a presumption against access. The current test for access to crown wards is set out in subsection 59(2.1) of the Act, which reads as follows:

Access: Crown ward

(2.1) 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.

[151] The onus to rebut the presumption against access to a crown ward is on the person seeking access. See: Children's Aid Society of Toronto v. D.P.. This person has the onus of establishing both portions of the test in subsection 59(2.1) of the Act.

[152] The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the children to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.

5.1.1 Beneficial and Meaningful

[153] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J. where he said:

(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 of 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.

[154] Justice Quinn wrote this decision before the openness amendments were incorporated into the Act in 2006 and in 2011. The court is no longer required to choose between no-access for the purpose of adoption and access to the parents. For the openness amendments to be meaningful, the court should consider the future benefits of an openness order in assessing if the child's relationship with a child is beneficial and meaningful. This was the approach taken in Catholic Children's Aid Society v. M.M., [2012] O.J. No. 3240 (OCJ) at paragraph 212 where Justice Ellen Murray wrote:

In my view, the amendments in Bill 179 have introduced new elements into the analysis required under the test for access to Crown wards contained in that section 59(2.1). The fact that a court does not necessarily have to choose between the security of an adoption placement and the prospect of a child having some contact with his biological family affects the analysis in both prongs of the s. 59(2.1) test.

[155] In considering the beneficial and meaningful portion of the test, Justice Murray found that maintaining a connection and knowing your roots is significant in this consideration. She indicated that if a child can continue the connection while also having the security of an adoption placement, it should be considered.

[156] In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.

5.1.2 Impairment of the Child's Opportunity for Adoption

[157] Justice Murray reviewed the law concerning the second prong of the test – impairment of the child's opportunity for adoption in Children's Aid Society of Toronto v. C.J., 2014 ONCJ 221, in paragraphs 168-170 as follows:

[168] With respect to the second prong of the test, until recent amendments to the Act it was virtually impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption, as the Act did not allow adoption placement if there was an outstanding access order. Section 141.1 of the Act now allows a Society to place a Crown ward who is the subject of an access order for adoption. Once notice of a society's intent to place a child for adoption is given, then any person with a right of access may apply for an openness order.

[169] These amendments did not change the provisions of section 59(2.1). A person seeking access to a Crown ward must still establish that not just that the order will not prevent an adoption, but that it will not "diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption". Catholic Children's Aid Society of Hamilton v. L.S., (2011)O.J. 4512 (S.C.).

[170] However, it has been recognized that the amendments allowing the possibility of an openness order for an adoptive child do affect the analysis to be conducted on the second prong of the 59(2.1) in some respects, in that a court does not have to choose at this stage between adoption and some contact between a parent and biological family. Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087. A court asked to make an access order for a Crown ward will be aware that such an order will open the door to an openness application when a society proceeds with its plan for adoption. Native Child and Family Services, v. J.E.G., 2014 ONCJ 109. The possibility of that litigation and such an order may restrict a child's opportunities for adoption.

[158] In Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, Justice Penny Jones listed reasons why courts might reject claims for access on the second prong of the test in paragraph 71 as follows:

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.

[159] In Catholic Children's Aid Society v. M.M., supra, Justice Murray commented in paragraphs 232-233 that:

232 Would the prospect of a court making an openness order have a "chilling effect" on those who might wish to adopt L.M.? That "chilling effect" might result from nervousness at the prospect of a future court decision on an openness application, a decision which the adoptive parents cannot control. Or it might result from opposition to any type of openness arrangement.

233 I can speculate that some prospective adoptive parents may be scared off for these reasons. I can also speculate that there are other prospective parents who would think it an advantage if they were able to preserve their child's connection to his biological family in a way that did not diminish, but strengthened the child's place in their family, and who were willing to enter into a discussion about what type of openness arrangement would be best.

[160] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters won't, and will be ordered. See: Children's Aid Society of Toronto v. C.J., 2014 ONCJ 221; Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087.

5.2 Analysis

5.2.1 Beneficial and Meaningful

[161] The mother has met the onus on the first part of the two-part test. The court finds that access is and would be beneficial and meaningful for the child for the following reasons:

a) The child loves the mother and looks forward to her visits.

b) The child is attached to and bonded with the mother. Their relationship is more than enjoyable – it is advantageous to the child.

c) The child is often sad when visits with the mother end.

d) The visits with the child are very positive as detailed in paragraph 109 above.

e) The child's access has not impacted negatively on her adjustment in the foster home.

f) The child would be able to maintain a connection with her biological parent and know her roots.

g) Medical information and family history will likely be more readily available if the child maintains contact with her mother.

h) The child will have the opportunity to have a relationship with the baby due in March of 2015.

i) There would be a detriment to the child in not making an access order. She would likely lose contact with someone she loves and cares about and who has been an important person in her life. This could be very distressing to her.

5.2.2 Impairment of the Child's Opportunity for Adoption

[162] The mother also met her onus with respect to the second part of the two-part test. She proved on a balance of probabilities that an access order would not impair the child's opportunity for adoption.

[163] The evidence indicated that the child is very adoptable. She is healthy, sociable, loving, active and meeting all of her developmental milestones. There will undoubtedly be many prospective adoptive parents for her.

[164] This case bears many similarities to Catholic Children's Aid Society of Toronto v. M.M., supra, where Justice Ellen Murray made an access order for a child even younger than the child. In both the M.M. case and in this case:

a) The parents were not capable of adequately parenting the child on a full-time basis.

b) The relationship with the child was found to be beneficial and meaningful.

c) The parents were cooperative with the foster parents. In this case, the evidence indicated that the mother communicates very well with the child's foster parent through a communication book about the child's needs.

d) The parents did not undermine the foster parent. In this case, the child settles very well in the foster home after visits and moves happily between the mother and the foster parent.

e) The parents were appreciative of the foster parent.

f) The parents followed the rules of access set out by the society. In this case, the society workers testified that they had "no worries" when the mother had the child.

[165] The evidence also indicates that the mother has been willing to accept a lesser parenting role if she believes that her children are being well taken care of. She did not contest Ma. B. living with the C's and she supported J.V.'s plan for the child.

[166] The society argued that an access order might impair a placement of the child with the C's, due to the poor relationship they have with the mother.

[167] However, the court is not restricted to considering a specific potential adoptive plan when assessing whether a child's opportunity for adoption will be impaired. It is but one factor to consider.

[168] While it is not this court's decision about which adoption plan should be approved, it can certainly consider the viability of a plan when determining the reasonable prospects of it being approved and prioritized, and whether an access order would impair the child's opportunity for adoption.

[169] The society acknowledged that it is uncertain if the C's plan for adoption will be approved, or if it is approved, whether it will be given priority. The court sees some serious difficulties with the C's plan including:

a) The C's, with very little notice, abandoned their plan for the child and returned her to the society's care in July of 2013. This showed a profound lack of commitment and sensitivity for the needs of the child. Their actions could have caused the child serious emotional harm.

b) The C's appear to have been ambivalent about caring for a non-biological child. There is a real risk that they will not be available for the child on a long-term basis, or that they might prefer Ma. B. to the child.

c) The society worker testified that the C's were rigid, inflexible and very difficult to deal with. One questions whether this is a suitable home for the child.

d) The society worker also testified that the C's unfairly restricted the mother's contact with Ma. B. Her evidence indicated that the C's lacked insight into the importance of Ma. B. maintaining what was a beneficial relationship to her with her mother.

[170] Since the child is highly adoptable, there are likely many adoption options for her that would not be impaired by an access order – where the proposed adoptive parents would appreciate and be sensitive to the benefits of the child continuing a relationship with the mother in some form.

[171] The following comments by Justice Murray in paragraphs 234-236 of Catholic Children's Aid Society of Toronto v. M.M., supra, also apply to this case:

234 I can only speculate as to whether the prospect of an openness application and hearing would be a deterrent to prospective adoptive parents, since I have no evidence about the pool of prospective adoptive parents for L.M. In this case, it may be that an openness application by M.M. and J.N. could be resolved on consent, with the involvement of the adoptive parents. If not, there is no reason to think that the delay occasioned by the hearing of the application would not be brief. The court has already heard extensive evidence about L.M., M.M., and J.N.

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 has 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.

[172] The court finds that an access order will not impair the child's opportunity for adoption.

5.2.3 Access Order

[173] The next issue is what form the access order should take.

[174] The court has considered that there is a qualitative difference, as well as a different purpose, for access before and after a crown wardship order is made. In Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109, Justice Penny Jones wrote about the difference between an access order before and after crown wardship in paragraphs 81 and 82 as follows:

It is well settled that an access order is qualitatively different after a crown wardship order from an access order before Crown wardship. In this regard, I agree with the comments made by Clay, J. in para 90 of his decision, Children's Aid Society of the Region of Peel v. A.R., [2013] O.J. No. 2969 (OCJ) when he wrote:

81. The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother's care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child.

82. Similarly, I accept the proposition that an access order post Crown wardship is qualitatively different than a contact order post adoption. Section 136 of the Act defines "Openness order" as follows:

"openness order" means an order made by a court in accordance with this Act for the purposes of facilitating communication or maintaining a relationship between the child and,

(a) a birth parent, birth sibling or birth relative of the child,

(b) a person with whom the child has a significant relationship or emotional tie, including a foster parent of the child or a member of the child's extended family or community, or

(c) (applicable to Indian or native children as defined by the Act)

83. Openness allows for a form of contact by the biological parent or member of the biological family (or other person who enjoyed a significant emotional tie with the child) post adoption. After an adoption order is made, the parent-child relationship that previously existed between the child and her biological parents and which was terminated by the Crown wardship order becomes vested in the adoptive parents. Thus, it is not the parent-child aspect of the relationship that is being continued post adoption by way of an openness order. See: Re S.M., 2009 ONCJ 317.

[175] The society submitted that any access order should be supervised, in their discretion. They want to ensure that the child's transition to an adoptive home is clinically well-supported and that the proper messages are being given to the child.

[176] The court finds that supervision is unnecessary and not in the child's best interests. The unsupervised visits have been very successful and beneficial to the child. There is no evidence that the mother would not follow the society's directions or give improper messages to the child.

[177] There will be an order for access on alternate Saturdays from 10:00 a.m. to 4 p.m., or such other times as agreed upon with the society. There will be a condition that the mother shall not consume any alcohol or non-prescription drugs during or within 24 hours before any visit.

[178] The mother should be aware that the case law sets out that if the child is placed for adoption that any future openness order will likely result in her having less time with the child than has been granted in this order as the focus will be on stabilizing the child's long-term placement.

Part Six: Conclusion

[179] Final orders shall go on the following terms:

a) The statutory findings for the child pursuant to subsection 47(2) of the Act are made as set out in the consent filed as Exhibit 1 at trial.

b) The child is found to be in need of protection pursuant to clause 37(2)(b) of the Act.

c) The child is made a crown ward.

d) The mother will have access to the child on alternate Saturdays from 10:00 a.m. until 4 p.m., or such other times as agreed upon with the society. She shall not consume any non-prescription drugs or alcohol during or within 24 hours before any visit.

[180] The court is aware that the mother will be disappointed that the child will not be placed in her care. It knows that she loves the child very much and that she wants what is best for her.

[181] The mother will undoubtedly wonder where this decision leaves her with respect to her baby due in March of 2015.

[182] The court sees a lot of potential in the mother. However, she still has a lot of work to do to show that she can safely parent a child on a full-time basis. Her chances of convincing the court to place the new child with her will greatly improve if she can do the following:

a) Move into a maternity home, such as the Massey Centre and remain there.

b) Take advantage of the programs at the Massey Centre, such as parenting, counseling and budgeting.

c) Comply with the rules of the Massey Centre.

d) Follow through with her pre-natal care at St. Michael's Hospital.

e) Continue to work with the public health nurse.

f) Show that she can avoid dysfunctional and unstable relationships. It would be unwise to reconcile with S.F. It would also be unwise for her to become involved with another man with a criminal record, violent nature or substance abuse history.

g) Return to school or obtain some part-time work.

h) Take a hair-follicle drug test and demonstrate that drugs are not a protection concern.

i) Be open and honest with the society.

[183] The court also suggests that it would be helpful if the society convened a meeting of the mother's supports and service providers in the next two months to coordinate the efforts to assist her and to develop sound and safe plans for her to parent a baby.

[184] The court wishes the mother the best in working towards her goal of having her next child placed with her. She has 5 months to demonstrate that she can have a child safely placed with her.

[185] Lastly, the court wants to thank counsel for their excellent presentation of this case. They presented this case with the highest level of professionalism and sensitivity.

Released: October 6, 2014

Justice Stanley B. Sherr