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.: C61462/13

Date: 2015-06-16

ONTARIO COURT OF JUSTICE

In the Matter of an Amended Protection Application under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of E.C., born on […], 2013.

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Karen Ksienski, for the APPLICANT

APPLICANT

- and -

C.C. and R.D.

Lauren Davidson, for the RESPONDENT, C.C.

RESPONDENTS

The Respondent, R.D., not appearing, noted in default

Heard: June 4-5, 8-10, 2015

Justice: S.B. Sherr

REASONS FOR JUDGMENT

Part One - Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought an amended protection application seeking a finding that E.C. (the child), born on […], 2013, is a child in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) 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, for the purpose of adoption.

[2] The respondent C.C. (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, with or without terms of society supervision. In the further alternative, she seeks an order placing the child with her mother (the grandmother), subject to society supervision, with access to her. In the event that the child is made a crown ward, she asks that the court make an order granting her access to the child.

[3] The respondent R.D. (the father) is the child's biological father. He did not file an Answer/Plan of Care. He did not attend at the trial. He is not presently exercising access to the child. He was noted in default at the outset of the trial.

[4] The child has been apprehended twice from the mother's care by the society. The child has been in the care of the society since October 28, 2013. Cumulatively, he has been in its care for over 20 months.

[5] The mother presently exercises access to the child at the society's office.

[6] The parties consented to the statutory findings concerning the child at the outset of the trial, pursuant to subsection 47(2) of the Act.

[7] 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?

[8] The trial of these issues was heard over five 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 – Material Facts

[9] The mother is 19 years old. She presently lives with the grandmother and the grandmother's son (N.C.), who will soon be four years old.

[10] The mother has a grade nine education. She has a few grade ten credits.

[11] The mother has worked part-time at a flea market on weekends since December of 2014.

[12] The mother has a boyfriend (J.T.). The mother and J.T are looking for their own residence to raise the child.

[13] The mother and the grandmother have a long history with child protection authorities.

[14] The grandmother is now 42 years old. She testified that she had been a crown ward due to conflict with her family. She said that she was in the care of the society from ages 10 to 15. She said that she has been on her own since she was 15 years old. She has never married.

[15] The grandmother testified that the mother was her first child. The mother's father, she said, has had minimal involvement with the mother. The grandmother said that she raised the mother as a single parent. N.C. is her only other child.

[16] The grandmother told the court that she began having severe conflict with the mother when the mother was 13 years old. She described the mother's behaviour as being out of control. She said that the mother was making dangerous choices, running away for days at a time and not going to school. She testified about the mother, "13 to 16, that is when she went nuts…she thought she knew it all".

[17] The mother was apprehended from the grandmother's care on November 16, 2009, after the grandmother was charged with assaulting her. The mother and grandmother both testified that the mother had lied to the police about the assault.

[18] The mother was temporarily placed with her father, but was soon apprehended again from his care by the society.

[19] The mother was found to be in need of protection and made a society ward for six months on July 7, 2010.

[20] The grandmother struggled with her mental health at this time. She attempted suicide in October of 2010, with an overdose of pills and cocaine. She was in the hospital for 10 days.

[21] The mother did not do well in foster care. She didn't follow rules, frequently ran away and her placements would quickly break down. The grandmother testified that the mother's behaviour "spiraled out of control".

[22] In July of 2011, the mother went to visit the grandmother and refused to return to her foster home.

[23] N.C. was born in […] 2011. The society worked voluntarily with the grandmother to assist her with him. The grandmother testified that N.C.'s father has not been involved in his life.

[24] On August 3, 2011, the court made an order placing the mother in the care of the grandmother, subject to society supervision.

[25] The placement was short-lived. On August 25, 2011, the mother asked to come back into the care of the society due to ongoing conflict with the grandmother. The grandmother expressed concerns to the society that the mother had hurt N.C. and that the mother was prostituting herself.

[26] The grandmother reported to the society that during an argument, the mother jumped on a bed next to N.C. (who was then a baby) so hard that she broke the bed. She also broke all the door knobs, a lamp and a coffee table during this argument and assaulted the grandmother, leaving several cuts and scratches.

[27] The mother returned to the care of the society.

[28] On November 21, 2011, the mother was arrested and charged with assault against another young woman. The mother testified that this person had spit in her food.

[29] On January 16, 2012, the mother was made a crown ward with access to the grandmother. At the request of the grandmother, the society closed their file at this time with respect to N.C.

[30] The mother continued to struggle in the care of the society. In May of 2012, the mother returned to live with the grandmother. The crown wardship order was terminated on July 24, 2012.

[31] The society closed their file for the family in March of 2013. A few weeks later the mother reported to a society worker that she was pregnant.

[32] The society referred the mother to their Young Parents Program. A worker was assigned to assist the mother in planning for the child. The mother needed support at this time to ensure that she had the necessary supplies for the baby and to obtain social assistance to support her and the child. She also required emotional support for her struggles with depression and anxiety and her relationship with the grandmother.

[33] The mother's life was unstable at this time. She testified that she was depressed and anxious. She said that the father was not supportive. She was anxious about money and ambivalent about raising a child.

[34] The mother was charged with assaulting the father in May of 2013. The grandmother and N.C. were present at the time. A criminal release condition restricted the mother from contacting the father.

[35] The mother was referred by her obstetrician to the social work department at the Etobicoke General Hospital for depression. A referral note states:

Depression – was on antidepressant x 1 yr., stopped Nov. 2012 after finding out about pregnancy.

[36] The mother did not follow up on this referral. When asked why at trial, the mother testified that, "there was a lot going on".

[37] Medical records filed at trial indicated that the mother struggled with remembering to attend for pre-natal tests at this time. The mother testified that she had lost the requisition forms for the tests.

[38] The mother did not work well with the Youth Support Worker. She missed appointments to meet with her and didn't return phone calls. This worker deposed that the grandmother was hostile to her. The mother explained at trial that she didn't feel a connection with the worker – "that the worker was just doing a job and wasn't there for me".

[39] The grandmother called the society on June 11, 2013, to advise it that the mother would not be using the Youth Support Worker any longer.

[40] The society put out a hospital alert regarding the mother. The protection concerns were:

a) The mother's immaturity.

b) The tenuous and historically volatile relationship between the mother and the grandmother.

c) The mother's difficulties in managing her anger.

d) The mother's history of depression.

e) The abrupt termination of pre-natal support.

f) The mother's lack of positive parenting support.

[41] The mother became increasingly depressed and anxious during her pregnancy. She testified that: "I was depressed, I was waking up at night, I couldn't breathe. I pounded on the wall, I had no air. I was very sick and couldn't hold things down". A decision was made at the hospital to induce her one month early because of her heightened emotional state. The mother and grandmother both described in detail a painful and difficult childbirth for the mother on […], 2013.

[42] The society assigned a worker (Mr. Jose) to meet with the mother at the hospital. He testified that he had received reports that the grandmother was treating hospital staff in a hostile manner. He said that he was cautioned by a social worker from the hospital that he should have security present when he saw the mother due to the grandmother's hostility.

[43] Mr. Jose testified that he was treated with hostility throughout his short involvement in this matter by both the mother and the grandmother.

[44] The child was discharged from the hospital on […], 2013. A hospital report filed at trial indicated that "the mother was staying with the grandmother and seems overwhelmed with baby care. Need to followup with the patient and family". It also stated that "CAS is going to follow up at home". It also noted that the mother has a history of depression.

[45] The society did not apprehend the child at birth, but closely monitored the case. It referred the case to a High Risk Infant Nurse (Ms. Gray-Hall).

[46] The child had jaundice while at the hospital. The hospital set up an appointment with the mother for […], 2013 to do jaundice testing. The mother did not take the child for this appointment. Instead, the mother had taken the child to her family doctor (who was not equipped to do the necessary testing). When Mr. Jose told the mother on […], 2013, that she had to take the child to the hospital that day for the testing, he received a hostile response from both the mother and the grandmother. Both the mother and grandmother testified that they resented Mr. Jose's involvement in their lives at that time. They both felt that they had dealt with the child's jaundice appropriately.

[47] The mother relented and took the child to the hospital on […], 2013. The medical issue was resolved.

[48] Ms. Gray-Hall attended the mother's home on July 23, 2015 and testified about multiple concerns, including:

a) The mother had difficulty remembering and giving accurate information about the child's birth, feeding, medical appointments or routine.

b) The grandmother reported that the child had already been on three different formulas.

c) The mother and grandmother reported that on that day they had gone almost 5 hours between feedings for the child (it should only be every 3-4 hours).

d) The mother and grandmother appeared to be over-feeding the child when he was fed.

e) The mother and grandmother reported that the child was always sleepy and vomiting.

f) The mother and the grandmother failed to understand the importance of taking the child to the hospital, when scheduled, for the jaundice testing.

g) The mother told her that she had stopped taking her anti-depressant medication during her pregnancy and did not feel that she needed it.

h) The mother presented as being very anxious.

i) The grandmother was not receptive to the information she was providing.

j) Throughout her visit, N.C. threw objects at her and around the room, including a wooden side table. The mother and grandmother continuously yelled at N.C., telling him that he was bad, but neither redirected him. The grandmother told her that she was having problems managing N.C. - he was screaming all the time. Ms. Gray-Hall was concerned about the physical risk of harm that N.C. posed to the child.

[49] The grandmother testified that N.C. had behavioural issues at that time. She said that he has broken three Flat Screen Televisions, two iPhones and a door. The grandmother attributed this behaviour at trial to the "Terrible 2's" and N.C. being a boy.

[50] The child was apprehended on July 25, 2013. The society also reopened their file regarding the grandmother and N.C.

[51] The society issued a protection application and the child was placed by Justice Harvey Brownstone in the temporary care of the society on July 30, 2013.

[52] The society assigned a family service worker (Ms. Panzarella) to work with the mother. Ms. Panzarella was able to obtain a placement for the mother at the Massey Centre. This is a supportive maternity home for young mothers.

[53] The mother and the child moved into the Massey Centre on August 23, 2013.

[54] On September 12, 2013, the child was placed by the court in the temporary care and custody of the mother, subject to society supervision. Two of the critical terms of supervision were that the mother was to comply with the rules of the Massey Centre and not attend at the grandmother's home overnight without the permission of the society.

[55] The mother admitted that she did not comply with the rules of the Massey Centre or the court order. This included:

a) Regularly breaking her curfew. The mother was often returning with the child after midnight.

b) Leaving the child (without authorization) with the grandmother so she could go out.

c) Not attending recommended programming at the Massey Centre.

[56] The mother said that her experience at the Massey Centre was horrible. She did not feel that the staff was supporting her. She chafed at their rules and felt that she was treated unfairly. She was also involved with conflict with some of the other young mothers at the Massey Centre, which added to her unhappiness.

[57] The mother missed several scheduled weigh-ins for the child at the Massey Centre.

[58] The society was concerned because the mother was over-reliant on respite care at the Massey Centre.

[59] The society met with the mother frequently to reinforce its expectations of her. The mother's compliance with these expectations did not improve.

[60] The evidence indicated that the grandmother undermined the mother's placement at the Massey Center. The grandmother claimed at trial that she was supportive of this placement, but the evidence contradicted this claim. Within three days of the mother's placement, the grandmother wrote a letter complaining about the Massey Centre. The grandmother facilitated the mother's breaches of the Massey Centre's rules. At trial, she showed no insight into the impact her behaviour had on undermining the success of this placement.

[61] The mother testified that she felt overwhelmed at this time and could not manage. On October 28, 2013, she voluntarily placed the child back into the care of the society. On November 1, 2013, a temporary order was made by the court placing the child in the care of the society.

[62] The child has remained in the care of the society since that time.

[63] The mother testified that she was given three goals by the society for the return of the child:

1. To obtain separate and stable housing from the grandmother.

2. To attend for individual counseling.

3. To attend all access visits.

[64] The society provided the mother with referrals for individual counseling. She did not follow through with these referrals.

[65] The mother was given access three times each week at the society offices. Her attendance became inconsistent. From November of 2013 to January of 2014, she missed 16 visits. The visits were reduced to twice each week.

[66] The mother attributed her poor attendance at visits to her depression and feeling overwhelmed. She was not taking her anti-depressant medication. She did not see a psychiatrist. She did not go to counseling.

[67] The mother lived with the grandmother until she obtained an apartment in February of 2014. The new apartment was suitable accommodation. The society felt this was a positive step towards a reintegration with the child and hoped to set up home visits. The society had also noted improvement in the mother's access at the society's office. She was now regularly attending visits. The mother testified that she began taking her anti-depressant medication.

[68] The plan for overnight visits was put on hold when the society learned from the Children's Aid Society of Toronto that the mother was living with another mother who had her own open child protection case. The mother had not disclosed this to the society. The mother was advised that overnight visits would not take place while this person lived with her.

[69] The mother's friend did not move out of the apartment until June 2, 2014.

[70] On June 30, 2014, the mother's visits were permitted to take place twice each week in her home.

[71] The mother quickly went into crisis again. She testified that she was under a great deal of stress. She was having financial difficulties and was worried about losing her apartment. Her cell-phone coverage had been cut off. She missed one visit and began to be late for exchanges with the child, frustrating society drivers. She was also taking the child to the grandmother's home without the prior permission of the society.

[72] The worker referred the mother to the society's Renewed Youth Supports Program in July of 2014, as being a former crown ward she was eligible for financial support of close to $1,000 per month. The mother was unable to follow through with this referral in a timely manner and did not obtain this financial relief until January of 2015.

[73] On September 24, 2014, Justice Roselyn Zisman ordered a parenting capacity assessment to be conducted pursuant to section 54 of the Act.

[74] The mother was evicted from her apartment on October 3, 2014 because she wasn't paying her rent. She returned to live with the grandmother. Access exchanges were to take place at the society offices, with the visits continued in the community.

[75] The mother subsequently moved to Pickering with J.T. She still spent considerable time at the grandmother's home. The mother admitted that one of her reasons for moving to Pickering was that she hoped she could have the child protection agency changed.

[76] The mother's visits were moved from the community to the society's office in December of 2014 after two incidents. On December 9, 2014, the grandmother became involved in a confrontation with a stranger in the society parking lot. The mother and child were present. On December 18, 2014, the mother returned the child late. She had also been in a taxi with the child without a car seat.

[77] During this time period, the mother was delaying the completion of the parenting capacity assessment. She was canceling appointments with the assessor or coming to appointments and leaving early, claiming that she had other appointments. The mother testified that she felt the assessor would be against her and that is why she was behaving in this manner.

[78] The society amended their protection application to seek crown wardship no access.

[79] Society workers testified that the mother has required an increased level of supervision to care for the child since the start of 2015. They have concerns about her ability to engage the child, ensure his safety and manage his behaviour at visits. The mother is frequently late for visits, although she attends all of them. She was described as frequently being emotional and tearful in front of the child. The workers testified that the mother is not consistently bringing appropriate food to the visits.

[80] The mother testified that she became more depressed after learning that the society was seeking crown wardship. She admitted that the quality of her visits with the child has declined. She said that she has lost her confidence as a parent. She said that for the last four months she has been sitting back, feeling depressed and anxious. She testified that she can't sleep, lacks appetite and tends to take out her frustration on people who don't deserve it. She stated that "nobody can understand what she is feeling – they don't understand what she is going through".

[81] The mother moved back to live with the grandmother in March of 2015. The mother and grandmother did not tell their respective workers about this. Both of these workers were surprised when they learned about this development at trial. The grandmother's worker described this as a fundamental breach of their relationship and the society would have to meet to determine if more intrusive steps were required with respect to N.C. She testified that the grandmother's parenting ability has declined in the past when the mother is in the home.

[82] The mother continues to live with the grandmother. She testified that she is looking for an apartment with J.T.

Part Three - Finding in Need of Protection

3.1 – Legal Considerations

[83] The society seeks a finding that the child is in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act. These provisions read 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;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[84] The risk of harm under clauses 37(2)(b) and (g) of the Act must be real and likely, not speculative. The harm must be demonstrated by a serious form of one of the listed conditions or behaviours. 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..

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

[86] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm: See: Children's Aid Society of Toronto v. S.A.C., 2005 ONCJ 274; Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903.

[87] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754; Brant Children's Aid Society v. J.A.T., 2005 ONCJ 302.

3.2 Analysis

[88] The evidence was overwhelming that the child has been in need of protection since the society became involved with him under Part III of the Act, based on all of the clauses pleaded by the society, for the following reasons:

a) The mother was only 17 years when she had the child and was very troubled and immature.

b) The mother has had anger management issues. She had been charged with assaulting her mother and another woman in 2011 and the father in May of 2013. She did not take any steps to address this issue.

c) The mother has had a volatile and sometimes violent relationship with her mother, her main support. Until just before the trial, neither the mother nor the grandmother had taken any steps to obtain counseling to address this issue.

d) The child was in a very stressful environment at the time of the first apprehension. The mother and grandmother were both feeling overwhelmed with their parenting responsibilities. They had a conflictual relationship. The grandmother had a limited ability to manage the behaviour of N.C., who was aggressive and damaging property, putting the child at a risk of physical harm.

e) The mother did not make use of pre-natal supports from the society. One of the consequences of that choice was that she did not apply for social assistance which would have given her priority for daycare for the child.

f) The mother suffers from depression and anxiety. The evidence established that her ability to function and parent quickly breaks down when under stress, placing the child at risk of physical harm (neglect) and emotional harm (lack of emotional availability). For instance:

i) She had to be induced one month early due to her anxiety and stress.

ii) She had difficulty relating details of the child's stay at the hospital, his medical treatment and feeding schedule to Ms. Gray-Hall.

iii) She didn't take the child to the important medical appointment at the hospital for jaundice testing and missed important weigh-ins for the child at the Massey Centre. She was erratic in obtaining pre-natal tests for the child when she was pregnant.

iv) She couldn't cope with parenting the child at the Massey Centre and voluntarily placed the child into the society's care. She told her worker that she couldn't take the pressure anymore. The mother couldn't wait to graduate from the Massey Centre or to wait for a placement at another maternity home before putting the child back into care.

v) She missed many visits from November of 2013 until January of 2014 due to her stress and anxiety.

vi) She couldn't maintain the home visits with the child after July of 2014 due to the stressors in her life.

vii) She missed important appointments for her parenting capacity assessment due to her anxiety about the process.

viii) The quality of her visits declined after January of 2015 when she claimed that she was stressed and depressed.

g) The mother has not taken meaningful steps to address her mental health challenges. She has not seen a psychiatrist. Until very recently, she has shown no interest in counseling.

h) The mother has continued to demonstrate immature judgment since the child's birth. Her poor judgment places the child at risk of physical harm (neglect) and emotional harm (placing the child in unstable and chaotic situations). For instance:

i) She has been unable to follow clear expectations of the society and the Massey Centre.

ii) She compromised her ability to parent the child by breaching the rules of the Massey Centre. She prioritized her own needs to those of the child's. She stayed out to very late hours with the child in the community, took the child to the grandmother's home without permission and did not participate in programs to enhance her parenting skill and ability to cope.

iii) She continued to break the terms of access after the child came into the society's care for the second time.

iv) She has been dishonest with the society. She did not tell the society about her roommate, which delayed her having overnight visits in the home. She did not tell the society that she has been living with the grandmother since March of 2015. She has frequently lied to the society about being in school or contacting service providers.

v) She would tell the society she would obtain supportive services and then miss appointments to use them.

vi) She delayed in following through with the Renewed Youth Supports Program in 2014 which would have provided her with funding to alleviate her financial stress.

vii) She did not listen to the society's suggestion to move to a supportive shelter in October of 2014, after she was evicted from her apartment. She chose to live with the grandmother, even though she knew or ought to have known it would impair her ability to have the child returned to her care.

i) The mother has had poor supports. The grandmother's parenting issues mirror the mother's. She undermined the mother's placement at the Massey Centre – a placement that gave the mother her best chance for success. The grandmother has enabled the mother to breach the rules and expectations of the society. She has been secretive and dishonest with the society. Instead of supporting the mother's relationship with society workers, she has often been confrontational and argumentative with them. Unfortunately, she has a perspective that the society has destroyed her family, which has reinforced the mother's perspective that the society is the enemy. This attitude has significantly impaired the mother's ability to work positively with the society.

j) The mother has not been able to maintain stable housing. Since the child's birth, she has lived with the grandmother, found her own apartment with a roommate not approved by the society, was evicted, moved back in with the grandmother, moved to Pickering with J.T. and then moved back in with the grandmother. Even at trial, there was inconsistent information presented on behalf of the mother as to where she is living. It appears that she might be moving back and forth between the home of the grandmother and the home of J.T.'s mother. Now she and J.T. intend to move into their own apartment, although nothing specific has been arranged. The lack of stable housing poses a risk of emotional harm to the child (being placed in an unstable environment).

k) The mother has shown an inability to take steps to stabilize her life. She wanted to go back to school. She started this process twice, once in 2014 and once in 2015, and quickly stopped both times. She was unable to find any employment until December of 2014, when she said that she started working on weekends at the flea market. Until recently, she has rejected almost all of the services to support her suggested by the society. These services were essential to assist her ability to cope, parent, address her anger management and to strengthen her relationships.

l) The mother has struggled in organizing her life. There is a constant theme of her making and missing appointments. She has only attended one plan of care meeting for the child. She is often late for visits. She has difficulty following through with services. The mother acknowledged that she has problems with memory and organization. Ms. Panzarella gave her a backpack, an agenda book and pens to help her with this. She has not used them. If the mother is unable to manage her own life, it raises a protection concern that she will not be able to manage the child's life. This creates a risk of both physical and emotional harm to the child if important medical and service provider appointments are missed.

m) The mother has required increased supervision at visits since January of 2015, due to her inability to engage the child and supervise him consistently. The child recently injured a finger at an access visit when he was slamming doors and his mother was unable to redirect him.

n) The mother has often been unable to control her emotions in front of the child at visits. She did not appear to understand how this might adversely impact him.

o) The mother has been critical of the foster placement in front of the child, not understanding how this might confuse the child and undermine his sense of security.

p) The mother demonstrated no insight into the protection concerns at trial. Despite two placements of the child with her and efforts to reintegrate the child with her, she believes that she has never had an opportunity to parent him. She externalizes all blame.

[89] The child is found to be in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act.

Part Four - Disposition

4.1 Legal Considerations

[90] 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.

[91] 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.

[92] 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.)

[93] 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.

[94] 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.

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

[96] 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.

[97] 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.

[98] 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..

[99] 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..

[100] 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 herself was subjected to poor parenting. See: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

4.2 Services Provided

[101] The society worked very hard to support the mother and the child. It either provided or offered the mother the following services:

a) It provided her with a Youth Support Worker.

b) It provided her with a Family Support Worker.

c) It gave her items to assist her with the child, such as a crib.

d) It facilitated her obtaining a placement at the Massey Centre.

e) It gave her referrals for individual counseling.

f) It gave her referrals to parenting programs.

g) It provided her with a housing list.

h) It referred the mother to the Macauley Child Development Centre that ran the Early Years Program. This is a program that the mother attended with the child.

i) It tried to assist her in getting into an educational program.

j) It referred her to the Pape Adolescent Resource Centre (PARC). This is an umbrella program for children who have been in the care of the society. It is available to assist the mother with housing, finances and counseling. The mother did not follow through on this referral until recently.

k) It referred her to the Renewed Youth Support Program.

l) It referred her to Developmental Services Ontario for services to deal with her learning disability.

m) It provided the child with a children's service worker.

n) The child had a developmental assessment and has been put on a waiting list for speech and language assistance.

o) Two Family Group Conferences were held to try and find alternative family or community placements for the child.

[102] The mother chose, for the most part, not to take advantage of the many services offered to her.

4.3 Community or Family Plans

[103] The society explored whether the father would put forward a plan for the child. He chose not to.

[104] The society considered and rejected the alternate plan from the grandmother.

[105] The society explored a potential plan from a member of the mother's family, but this request was withdrawn.

[106] The society held two Family Group Conferences to explore alternative family or community placements.

[107] The society made a referral to its Family Finder program to locate kin. This yielded no results.

[108] No other plan was presented for the child.

4.4 The Child

[109] The court heard that the child is thriving. He is happy, healthy and meeting all of his developmental milestones, although he may have a minor speech delay. He was described as active, affectionate and a pleasure to be around. He is vocal and talkative. His fine and gross motor development are progressing well. He enjoys playing with toys, coloring and being read to. He has done well in his foster placement. He has no behavioural issues.

[110] The child was placed on a wait-list for speech and language therapy. His doctor felt that he probably would not need this, but it would not hurt to have this service available, if required in the future.

4.5 The Plans of Care

4.5.1 The Society's Plan

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

4.5.2 The Mother's Plan

[112] The mother asked that the child be placed with her. She plans to find her own accommodation with the child and J.T. She testified that she had seen a suitable apartment during the trial, and depending on the trial result, would move there as soon as possible. She said that her plan is to find full-time employment and have the child attend daycare during the day. The mother testified that she had a friend who might be able to get her a job working at Kentucky Fried Chicken. She said that she planned to meet the prospective employer the weekend after the trial ended. The mother expressed a hope that she could one day study to be a corrections officer.

[113] The mother testified that the grandmother would support her with the child. Both she and the grandmother testified that their relationship has improved in the past two years – they still have disagreements at times, but they have learned how to handle them better. The grandmother testified that she would do anything for the mother.

[114] The mother testified that her relationship with J.T. is excellent. This was also evidence presented to the court by the grandmother, J.T. and a maternal aunt. The witnesses described him as calm and supportive of the mother. He apparently is able to calm down the mother when she becomes upset with the grandmother.

[115] J.T. testified that he will support the mother and the child. He said that he presently works part-time for a moving company. He said that he wants to one day go to school at Trent University in Peterborough and attend its HVAC program.

[116] In the weeks prior to the trial, the mother and the grandmother took steps to obtain services. The mother contacted the PARC program. PARC has assigned a worker who has met once with the mother. The mother says that the worker will assist her with counseling, finances and finding housing. The mother and the grandmother also contacted the Rexdale Women's Clinic for counseling (both joint and individual) and parenting programs. The parenting programs haven't started yet, but are scheduled to begin on June 25, 2015. They were referred to the Jamaican Canadian Association by the Rexdale Women's Centre for counseling. However, the grandmother said that the person who would be doing the counseling was a doctor, and she and the mother do not feel that they need a doctor.

[117] The mother offered the grandmother as an alternative plan. Very little evidence was provided about how this plan would work and how the grandmother planned to manage two children. The grandmother owns a condominium. It has sufficient space to accommodate the child. The grandmother claimed that she had the support of her entire family, although the mother described the grandmother as the black sheep of her family.

4.6 Positive Aspects of the Mother's Plan

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

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

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

c) The mother loves the child very much.

d) There have been times when the access visits with the child have been positive. That is why the society has worked very hard to see if the child could be returned to the mother's care. The mother is affectionate and loving with the child and the child is affectionate and loving with the mother. The child will turn to the mother for soothing when he is upset and she is able to soothe him.

e) The mother desperately wants to be a good mother and to be able to parent the child. She was described by workers as having good intentions. She wants to be successful in meeting her life goals.

f) The mother was described by workers as enjoyable to work with when she is emotionally well. At times, she is able to hear feedback from professionals and incorporate it into her parenting.

g) The mother has good verbal skills and can articulate herself well when she is well emotionally.

h) J.T. was described by the mother and her witnesses as a calm and caring person. He was described as having an excellent relationship with N.C.

i) The mother is starting now to access services to address her personal challenges.

j) There appears to be some improvement in the relationship between the mother and the grandmother. However, the court treats the self-reports of the mother and the grandmother with caution as both have a history of being dishonest with the society and both minimized the protection concerns and their responsibility for them at trial. The court also notes that throughout the fall of 2014 and early 2015, the mother reported to the society and the parenting capacity assessor (Dr. Amin) concerns about her relationship with the grandmother.

4.7 Limitations of the Mother's Plan

[119] Notwithstanding the positive aspects of the mother's plan, the court finds that it is not in the child's best interests to be placed in her care for the following reasons:

a) The mother has not been able to establish that she will be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need their parents to have a stable plan for them. They need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. They need stable housing. The mother has just only recently 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.

b) The mother has a long history of depression and of becoming overwhelmed. The evidence indicates that her parenting and judgment is severely compromised when she is under stress (as detailed in subparagraphs 88(f) and (h) above). The child requires a parent who will consistently be emotionally available for him. The mother has not been able to make improvements in this area – largely because she has resisted efforts to obtain supportive services. She has not seen a psychiatrist, a therapist or obtained counseling. She has a lot of work to do to before a child can safely be placed in her care.

c) Society workers testified that the mother does not appear to understand the child's stage of development and will get upset when the child does not follow through on unrealistic expectations she has of him.

d) The mother's parenting of the child has declined every time her access has expanded. She quickly becomes overwhelmed with the responsibilities of parenting. She has been unable to demonstrate that she can positively parent the child outside the structured confines of the society office. Until recently, she has resisted referrals by the society to parenting programs to enhance her parenting ability.

e) The mother continues to demonstrate poor judgment (as detailed in subparagraph 88(h) above). She repeatedly testified that she has always been willing to do whatever it takes to get the child back, but her actions speak differently. She has chosen not to comply with the expectations of the society, despite continually being told about the consequences of not doing so. The mother needs to be able to establish that she can make good decisions before a child can be safely placed in her care.

f) The mother has been unable to maintain stable housing (as detailed in subparagraph 88(j) above). She was still scrambling at trial to find a residence for herself and the child. While she stated that she found an apartment, this had not been finalized.

g) The mother has not been able to meet any of the goals she has set. She has not been able to stay in school. She has not been able to secure full-time employment. She still does not have separate housing.

h) The mother continues to struggle with personal organization (as set out in subparagraph 88(l) above). The child needs a parent who will reliably look after his needs, follow through with medical appointments and advice and provide a consistent schedule and routine. The mother has not demonstrated that she can do this and has resisted attempts to assist her with these challenges.

i) Despite the positive comments from the mother and her witnesses about J.T., his actions have not given the court any confidence that he will be a consistent support for the mother and the child. He has only attended one visit with the child despite being invited by the society to come more often. When asked why he has only come one time, J.T. stated that work has been busy. This was not plausible given that he testified that he only works part-time. Further, the society has asked to meet with him again and J.T. has not followed through with this meeting. The child needs far more commitment and reliability than J.T. has demonstrated to date.

j) The mother has developed no insight into the protection concerns. She still feels that she is a victim. This perspective is reinforced by the grandmother, who is a huge and negative influence in the mother's life. This lack of insight means that she is unlikely to make meaningful changes that will reduce the risk concerns.

k) The risk concerns to the child have not abated since the child was initially apprehended. The risk concerns are far too great to return the child to the care of the mother.

l) If the court was to consider returning the child to the mother it would be imperative that it be done pursuant to a supervision order. The evidence indicates that the mother would not consistently comply with terms of supervision, creating an unacceptable risk of harm for the child. The mother breached the terms of the initial supervision order and did not comply with the access rules of the society. She did not seem to appreciate the importance of following a court order at trial – she just felt that it was unfair. The mother has also continued to be dishonest with the society. She tried to manipulate her living arrangement in December to get the society off the case. She lied to the society about her present living arrangements. She expressed that the society has ruined her life and the life of the child. There is no evidentiary basis to conclude that she would comply with a supervision order.

m) The child has now been in the care of the society for over 20 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. The mother has been given multiple opportunities to address the risk concerns. She is not close to being ready to appropriately parent the child. It would be irresponsible for the court to return the child to the mother without her being able to show an extended period of stability and positive parenting. If attempted, this would be achieved through graduated access increases. Given the evidentiary record, this process would take at least one year before the child could be safely returned to the mother's care, with success highly speculative. This process has already been attempted and failed. It is far too late now for the child to start again.

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

[121] It is not in the child's best interests to be placed in the care of the mother.

4.8 The Parenting Capacity Assessment

[122] A parenting capacity assessment of the mother was conducted by Dr. Shukri Amin, a registered psychologist.

[123] The court did not require this assessment to make the finding that it is not in the child's best interests to be returned to the mother.

[124] The results of the parenting capacity assessment were consistent with the evidence and the court's observations of the mother.

[125] The following are some of the conclusions reached in the report:

a) The mother has major psychological, personality and cognitive issues that affect her ability to parent.

b) The mother has difficulty picking up and interpreting social cues.

c) The mother has learning disabilities that are social and relational and significantly impact her judgment.

d) The mother suffers from symptoms of depression and anxiety.

e) The mother has a tendency to be erratic. She is unreliable and inconsistent.

f) The mother tends to be highly emotional, dramatic and histrionic.

g) The mother has strong needs of her own that she can't ignore – a child's needs would be secondary.

h) The mother has a low frustration tolerance.

i) The mother has been unable to remain in a stable home environment because she always does something to disrupt it.

j) The mother doesn't presently have the capacity to parent because her own developmental needs have not been met.

k) The mother has a dysfunctional attachment with the grandmother. Dr. Amin testified that the mother and the grandmother might be able to maintain peace in their relationship for a short period of time, but then it will go "haywire".

l) The mother has difficulty maintaining attention to her environment.

m) The mother has a very poor knowledge of child development.

n) The mother has a very limited ability to reason abstractly. This means that she has limited imagination and problem-solving abilities. Dr. Amin stated that this skill is essential for safe parenting.

4.9 The Grandmother's Plan

[126] The mother presented an alternative plan that the child be placed with the grandmother.

[127] The court finds that this plan is not in the child's best interests for the following reasons:

a) The grandmother is struggling with parenting N.C. She still has an open child protection file concerning him. The grandmother's society worker testified that:

i) N.C. has significant developmental and behavioural issues, although there has been some improvement in these areas in the past six months.

ii) The grandmother often becomes stressed and frustrated with N.C.'s behaviour.

iii) The grandmother struggles in organizing and maintaining routines for N.C.

iv) The grandmother does not follow through or delays in following through with parenting recommendations for N.C. and often makes excuses for this.

v) The grandmother often misses scheduled appointments for N.C., including missing an important developmental assessment.

vi) The grandmother becomes easily overwhelmed. She does better when she only has to manage small tasks.

vii) The grandmother needs a lot of encouragement and support in getting tasks done.

viii) The grandmother's parenting deteriorates when the mother is in the home as it distracts her parenting focus.

b) The grandmother has her own emotional challenges. She acknowledged that she has lived a very hard life. She said that she has been on her own since she was 15 years old. She attempted suicide in 2010. She has never followed up on the medical recommendation to see a psychiatrist. She struggled in dealing with the mother's behaviour and became overwhelmed. She is often overwhelmed caring for N.C.

c) The grandmother is in poor physical health. She has been on long-term disability for five years. She testified that she has been in chronic pain. She said that she has been involved in four car accidents in the past five years. Her worker testified that she often used her pain as an excuse for not following up with services and programs for N.C.

d) The grandmother is on a methadone program. She testified that this was due to her "popping pills" for her pain and need to have a better method of pain management. She denied in court that she was an addict, although her methadone doctor advised the society worker that she has an opiates addiction. The grandmother also acknowledged that she was using cocaine in 2010.

e) The grandmother has not consistently followed through with referrals made by the society, such as counseling or parenting programs. Her worker testified that the grandmother needs counseling to deal with her past trauma, stress and guilt. The child requires a caregiver that will be able to consistently follow through with treatment providers.

f) The grandmother presently has significant stressors in her life. She is struggling with parenting N.C., the society's involvement with N.C., and the stress of this court case. She has been experiencing financial stress. She recently declared bankruptcy and thought that she would have to sell her condominium.

g) The grandmother has shown very poor judgment in this case. She was hostile to the society worker at the child's birth. She did not take the child for a hospital appointment for jaundice testing, instead choosing to be confrontational about the child's treatment. Most importantly, she undermined the mother's best chance for successfully parenting the child, enabling her to break the rules of the Massey Centre and the terms of the temporary supervision order.

h) Until just before the trial, the grandmother had taken no steps to deal with her relationship issues with the mother. This risks exposing the child to an unacceptable level of conflict.

i) The grandmother shows poor parenting judgment. She has let the child's father and the mother's roommate (who had her own child protection file) care alone for N.C. As recently as May of 2015, she was caught driving the child in the front seat of her car without a car seat.

j) The grandmother has conflictual relationships. She has no involvement anymore with the fathers of her children. She has had conflict with her family. The grandmother has been in conflict with the mother. The grandmother was reported as being hostile at the hospital, and hostile at times to society workers. She was engaged in the confrontation with a stranger at the society office on December 9, 2014, in the presence of the child.

k) The grandmother has been dishonest with the society. She failed to advise her worker that the mother has been living with her since March of 2015. When asked why at trial, she answered, "they didn't ask".

l) The grandmother has a deep-rooted animus to the society. She described them as an episode of the movie Mean Girls. She said that they are false, pretend that they are looking out for her best interests, but instead, have a hidden agenda.

m) The grandmother cannot be trusted to comply with the terms of a supervision order.

n) The grandmother has limited family support.

o) The grandmother gave much of her evidence in a rambling and disjointed manner. This was consistent with Dr. Amin's observation that she is a highly emotional and reactive woman whose thoughts aren't always organized. It was informative that she took no responsibility for her conflict with the mother, placing the blame for their relationship issues on the mother and the society. The grandmother also minimized her issues with N.C. at trial and took no responsibility for the society's involvement in her life. She also showed no insight into the protection concerns for either N.C. or the child.

p) The grandmother did not provide a concrete plan to care for the child. She did not set out how the child would be cared for on a day-to-day basis. She did not set out what supports she had and how they would support her. She has taken no steps to constructively plan for the child, such as exploring daycares. She did not set out what involvement the mother would have in the child's life.

q) Placing the child with the grandmother would likely overwhelm the grandmother and place both the child and N.C. at an unacceptable risk of harm.

[128] Although not specifically requested, the court also finds that the risk to the child would be unacceptably high, for all the reasons set out in paragraphs 126 and 127 above, if the child was placed in the joint care of the mother and the grandmother.

4.10 Summary of Factors Adverse to the Mother Set Out in Subsection 37(3) of the Act

[129] 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 or the grandmother, or with them jointly 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 plans 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 his best interests that this placement be in an adoptive home.

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

Part Five - Access

5.1 The Law

[131] 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.

[132] 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.

[133] 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

[134] The issue is not whether the parent views the relationship with the child as beneficial and meaningful. The court must examine the quality of the relationship from the child's perspective. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.

[135] 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.

[136] 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 parent 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.

[137] 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.

[138] 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.

[139] More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. 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. An access order cannot be merely a consolation prize for disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.

[140] In Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, this court took into consideration whether the parents would support an adoptive placement, or possibly undermine it, in determining whether access for the child was beneficial. This court considered that the parents in E.U., would not support an adoptive placement, but still found that access would be significantly advantageous for the ten-year old child, writing at paragraphs 247 and 250:

[247] However, the court needs to be careful about defaulting to a finding that a relationship is not beneficial to a child when parents engage in this type of behaviour. It must examine this behaviour in light of the ability of the child before the court to manage it and then weigh this factor against the other benefits and detriments of the relationship.

[250] The court finds that the relationship between the child and the parents is beneficial for this child. The impact of the parents' behaviour is mitigated by the child's maturity, resilience and insight and her demonstrated ability to manage this behaviour. The parents, despite their behaviour, have not shaken the child's resolve to live with the caregivers. The child still wants to see her parents, despite their behaviour. The effect of such future behaviour on the child will also be mitigated by the child's knowledge that the court had decided that she will live permanently with the caregivers. The uncertainty that she has coped with for the past 22 months will now be removed.

5.1.2 Impairment of the Child's Opportunity for Adoption

[141] Justice Murray reviewed the law concerning the second branch 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.

[142] 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.

5.2 Analysis

[143] The mother did not meet her onus under either part of the two-part test under subsection 59(2.1) of the Act.

5.2.1 Beneficial and Meaningful

[144] The court considered that when the mother is emotionally well the access visits go well. Positive aspects of the access visits were reviewed in subparagraph 118(d) above. The court also considered that an access order would permit the child to maintain a connection with his biological parent, biological family and know his roots. It would also mean that medical information and family history will likely be more readily available. The court also considered that there may be some detriment to the child in losing contact with the mother.

[145] However, the evidence does not support a finding that the access is beneficial and meaningful for the child as defined in the case law reviewed above. In particular:

a) The child spends limited access time each week with the mother. His closest emotional connection is with his foster parent, who he has lived with for most of his life.

b) The mother is often late for the limited access she has.

c) The quality of the mother's access has significantly declined in 2015. She is not engaging well with the child at visits.

d) The mother is often emotional and teary at visits, reducing the quality of the visits. Based on her history, there is a good chance that the mother's emotional health and the quality of visits will further decline due to the child being made a crown ward.

e) The mother is increasingly becoming critical of the foster parent at visits. She complains in front of the child about the child's clothing and the food sent by the foster parent. She becomes upset when the foster parent does not dress the child in clothes she bought for him.

f) The mother believes that the child has been wrongly taken and kept away from her. Her frustration and sense of injustice would likely increase with a reduced role in the child's life. There is a good chance that she would attempt to undermine the child's placement when exercising access. This would undermine the child's sense of security and stability.

g) The mother has no insight into these concerns and is unlikely to change her behaviour until she is able to obtain professional help to assist her in developing such insight.

5.2.2 Impairment of the Child's Opportunity for Adoption

[146] As the first branch of the test in subsection 59(2.1) of the Act has not been met, it is not necessary to address the second branch of the test. That said, the mother failed to lead any evidence to meet her onus under the second branch of the test. In fact, the evidence led indicated that an access order would impair the child's future opportunities for adoption.

[147] The child is very adoptable. He is healthy, sociable, loving, active and meeting all of his developmental milestones.

[148] However, the discussion of whether access will impair the child's opportunity for adoption does not end there. The phrase "impair the child's future opportunity for adoption" means more than just impairing a child's opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369.

[149] The case law reviewed above emphasizes the importance of the following factors (many of which are interrelated) in making the determination under the second branch of the test:

a) Is the parent cooperative with the society and the current caregiver?

b) Does the parent communicate well with the current caregiver?

c) Is the parent appreciative of the current caregiver?

d) Will the parent be able to accept his or her new role in the child's life?

e) Will the parent follow the rules set out by the society and accept boundaries?

f) Is the parent honest?

g) Is the parent likely to undermine or disrupt the child's placement?

h) Is the parent litigious?

[150] Applying these factors to the mother, the court finds:

a) The mother's cooperation with the society has been variable.

b) The mother is not appreciative of the child's foster parent and has not communicated well with her. The mother chose not to follow through with communicating with the foster parent through a communication book and will only communicate with her through the society worker. The mother has not attended most of the plan of care meetings about the child at the society's office where she would have had the opportunity to learn about important matters regarding the child.

c) The mother resents the society's role in her life. The mother testified that:

i) The child was ripped away from her by the society.

ii) The society's plan all along was to take the child away from her.

iii) The society has constantly lied to her.

iv) The society is responsible for many of her problems, because it let her do whatever she wanted when she was in its care.

v) The society has abused the grandmother and has tried to segregate her from her family.

vi) The society has ruined her life.

vii) The society is trying to ruin her child's life. She will not allow it.

d) The mother has shown that she will not follow rules she does not agree with. She breached the rules of the Massey Centre and the supervision order of this court. She did not follow access rules set out by the society when she had access to the child in the community.

e) The mother is not honest. She has frequently lied to the society in this case about her housing, who she is living with, her schooling (or lack of schooling), going to counseling, where she was taking the child on visits and her finances. She has recently been deceitful with the society about her living arrangements.

f) The mother criticizes the foster parent in front of the child.

g) It is unlikely that the mother will accept a new and reduced role in the child's life and respect boundaries. As she said, "I will not accept it". She strongly believes that there was no basis for the child being removed from her care and that there is no reason why the child shouldn't be returned to her care. This belief means that she is more likely to engage in further litigation if given the opportunity through the openness mechanisms in the Act. She will likely continue to strive to have the child returned to her care. While this is understandable, her continued involvement with the child could create a power struggle with an adoptive placement that could destabilize the child. It would also give most potential adoptive applicants pause before becoming involved with the child.

h) The mother's attitudes are unlikely to change. She lacks the insight to understand the protection concerns and externalizes blame. Her attitudes are also strongly reinforced by the grandmother, who negatively influences her. Many of the grandmother's statements mirrored the mother's, such as:

i) The society had an agenda to take the child. It was premeditated.

ii) The society's tactics are to not be transparent and open.

iii) The society are a bunch of mean girls. Like an episode of "Mean Girls".

iv) The society is false. It pretends to look out for your best interests, but has a hidden agenda.

v) The society makes promises, all broken.

[151] The reality is that an access order would likely adversely impact the pool of persons willing to adopt the child. Prospective adoptive parents may be unwilling to come forward if they will have to constantly deal with the mother. This means that even if the child can eventually be adopted, the adoption process may be unduly delayed and the child will remain in limbo. This impairs the future ability of the child to be adopted and is contrary to the child's need for permanency planning. An access order is contrary to his best interests and well-being.

[152] The mother did not meet her onus pursuant to subsection 59(2.1) of the Act. No access will be ordered.

Part Six - Conclusion

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

a) The child is found to be in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act.

b) The child is made a crown ward, with no access, for the purpose of adoption.

[154] This order does not preclude the society, in its capacity as custodial parent of crown wards, from permitting the mother to visit the child prior to an adoption placement. See: Children's Aid Society v. D.P.. It also does not preclude the society from seeking an adoptive home that will be amenable to an openness agreement with the mother or an openness order pursuant to section 145.1 of the Act.

[155] The court is aware that this outcome will be very painful for the mother and will be very difficult for her to accept. If the child ever reads this decision, the court wants to emphasize to him that it was never in doubt that the mother loves him very much. She fought very hard to be able to have him returned to her care. Unfortunately, the mother has led a very difficult life and has many personal challenges that she was not able to overcome in time.

[156] The mother is undoubtedly wondering what this decision means for her ability to raise a child in the future. There is much she can do to convince a future court and the society that she can do this, including:

a) Leading a stable lifestyle. This means having stable housing and relationships.

b) Seeing a psychiatrist to obtain treatment for her depression and following a medication regime, if required.

c) Meaningfully engaging in individual counseling or therapy. She has had a hard life. She needs to develop insight into her issues and learn productive ways to cope with the stresses she will continue to encounter in her life. It is important that the mother develop an understanding about the protection concerns so that she will not repeat what has happened in this case with another child. The court is pleased that the mother has just started this process and hopes that she will follow through with this.

d) Attending a parenting program to learn about developmental stages and needs of children.

e) Obtaining a full-time job or go back to school full-time.

f) Dealing with the society honestly and openly.

[157] The court wishes the mother the best and hopes that she succeeds in meeting these goals.

[158] Lastly, the court wants to thank counsel for their professional presentation of this case.

Released: June 16, 2015

Justice Stanley B. Sherr