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, R.S.O. 1990, c. C-11, as amended, and is subject to 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:

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

45(8) Prohibition on publication of identifying information

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

45(9) 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) Offence

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

Court Information

Brantford Registry No.: FO-08-438-05

Date: 2015-01-23

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended;

And In the Matter of J.S., born on […]2000, E.S., born on […] 2002, children apparently in need of protection.

Parties

Between:

Children's Aid Society in the County of Brant, Applicant,

— And —

A.C., C., and S., Respondents.

Before the Court

Before: Justice Kathleen A. Baker

Oral Reasons for Judgment delivered on: 23 January 2015

Counsel

Mark A. Dejong — counsel for the applicant society
Alison R. MacDonald — counsel for the respondent, A.C.
P. Alan R. Giles — counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

[1] Introduction

JUSTICE K.A. BAKER (orally): This is an application by the mother for leave to bring a status review application, pursuant to subsection 65.1(5) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, with respect to the subject children, J.S., born on […]2000, E.S., born on […] 2002.

[2] Father's Application

The father joins in this application and he is seeking leave to bring his own status review application. Both state that they are seeking only access at this time, although the mother's status review application specifically claims an order placing the children with her under an order of supervision.

[3] Legal Framework — The Test for Leave

The Child and Family Services Act does not outline the test under subsection 65.1(5) for a motion for leave to review a Crown wardship order. Some years ago, in Catholic Children's Aid Society of Metropolitan Toronto v. Beverley Anne F., [1988] O.J. No. 2950, 1988 Carswell Ont 2213 (Ont. Prov. Ct., Fam. Div.), Provincial Judge Douglas A. Bean set out five principles he felt should be applied in a leave application. These are as follows:

The status review application for which leave is sought must be made in good faith and not for some ulterior motive that would needlessly disrupt the stability of the child's foster placement.
There is no less drastic remedy to secure the relief sought.
There are some unusual circumstances to justify the court's intervention.
The application would promote the object of the Child and Family Services Act.
Finally, the evidence demonstrates some prima facie prospect of success on the status review.

[4] Approval of Bean Criteria

These criteria have been approved of and followed in a number of subsequent cases, including Dilico Anishinabek Family Care v. Marsha T., 2010 ONCJ 105, [2010] 2 C.N.L.R. 136, [2010] O.J. No. 1186, 2010 Carswell Ont 1737 (Ont. C.J.), and numerous other cases.

[5] Reconsideration of Bean Criteria

Judge Bean's criteria were also considered in an Ontario Superior Court of Justice decision by the Honourable Justice D. Roger Timms in Durham Children's Aid Society v. J-A.S., 186 A.C.W.S. (3d) 725, 195 A.C.W.S. (3d) 1040, [2009] O.J. No. 5901, 2009 Carswell Ont 8777 (Ont. Fam. Ct.). In that case, the court noted that the five criteria seemed to have, in effect, become the equivalent of statutory criteria. Justice Timms then went on to say that he was:

[30] … not convinced that Justice Bean's five criteria should be given the force that they have attained in the jurisprudence, or even that they all merit examination in every case, …

Justice Timms then concluded:

[47] … I think that it is sufficient to say that any party making an application for a review of a Crown wardship order, which does not lie as of right, must satisfy the court, on the balance of probabilities, that such a review would meet the "paramount" and "other purposes" definitions found in section 1 of the Child and Family Services Act. Best interests are included therein.

[6] Application of Bean Criteria

I accept that the use of the Judge Bean criteria are not mandatory and that not all of the criteria must be considered, or indeed, or even applicable in every case. Having said that, in the absence of statutory criteria, they do provide some guidance.

[7] Meritorious Case Standard

In Sean R. v. Catholic Children's Aid Society of Toronto, 2011 ONCJ 11, 198 A.C.W.S. (3d) 106, [2011] O.J. No. 666, 2011 Carswell Ont 838 (Ont. C.J.), Justice Robert J. Spence reviewed the case law with respect to when leave should be granted to commence a status review. He found that a court should not allow a status review application to go forward, unless the person seeking leave is able to establish that there is at least a meritorious case for relief.

[8] Substantial Test for Leave

The test for leave was also considered by Justice Lawrence P. Thibideau in Children's Aid Society of Haldimand and Norfolk v. Jennifer Ann M.-F., 2011 ONCJ 53, 198 A.C.W.S. (3d) 381, [2011] W.D.F.L. 1884, [2011] O.J. No. 723, 2011 Carswell Ont 991 (Ont. C.J.). The court made the following contextual comments about such applications:

[22] The granting of leave is not mere formality. It is a matter of substance. …

[23] Any judicial determination with respect to granting leave to permit a parent-originated status review must be done in the context of the philosophy and goals and requirements of the Act, including those in subsection 1(1), subsection 1(2), subsection 37(2), subsection 37(3), section 57, especially subsection 57(3), section 58, especially subsection 58(7), section 59, especially subsection 59(2.1) …

[9] Test for Leave — Prima Facie Case

The court then reviewed the various principles set out in the case law, and relevant portions of the legislation, and concluded:

[46] It is logical to conclude that the test for leave in these circumstances has to be substantial. If not, the plan and its implementation are jeopardized. …

The test was then stated as follows:

[56] … Has the moving parent placed before the court, with the request for leave, apparently credible and weighty evidence that is sufficient to warrant holding a hearing on the merits? Is the evidence sufficient to demonstrate there is reasonable prospect of success?

[10] Court's Adoption of Test

I concur with Justice Thibideau in his statement of the test to be applied, and the onus to be met.

[11] Paramount Purpose — Best Interests of the Child

In assessing the merits of the application, the court must have regard to the relevant legislative principles. The first and most significant of these is the paramount purpose of the Child and Family Services Act, which is to promote the best interests, protection, and well-being of children.

[12] Criteria for Best Interests

Subsection 37(3) sets out the criteria that a court must consider in determining the best interests of a child. The criteria most relevant in this case are as follows:

The child's physical, mental, and emotional needs, and the appropriate care or treatment to meet those needs.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of the family.
The importance of continuity in the child's care, and the possible effect on the child of disruption in that continuity.
The child's views and preferences if they can be reasonably ascertained.

[13] Foster Family as Part of "Family"

There is some discussion in the case law as to whether the term "family" is used in paragraph 37(3)¶5 includes a foster family. In Children's Aid Society of Haldimand and Norfolk v. Jennifer Ann M.-F., supra, Justice Thibideau finds that it does not. I disagree. It is true that a foster parent is not expressly a parent as defined in Part III of the Act, but that definition is set out in a different context. For example, that definition determines who has party status, and who is entitled to advance a claim. It makes sense that a foster parent would be exempted from that status. But, in many cases, and specifically in this case, the foster parent is the psychological parent of the child or children. In considering the best interests under subsection 37(3), it makes no sense to disregard that consideration.

[14] Secure Place in Foster Family

I, therefore, find that in considering the child's best interests, I may also weigh the value of the child's secure place as a member of his foster family.

[15] Access to Crown Ward — Statutory Test

Section 59(2.1), which deals with access to a Crown ward, is also relevant. It provides as follows:

(2.1) Access: Crown ward. — A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

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

[16] Meaning of "Beneficial" and "Meaningful"

Meaningful has been held to be synonymous with significant. Beneficial has been held to mean advantageous. The person seeking access must prove that his or her relationship with the child brings a significant positive advantage to the child. The relationship must have both of these qualities at the time of the assessment as to whether or not access is appropriate. A court cannot order access in the hope that it will become meaningful and beneficial at some point in the future. If the relationship is not meaningful and beneficial to the child at the time of the hearing, there is no discretion to make an order that gives the opportunity for future benefit or meaningfulness to the child. See Re Proposed Openness Order for S.M., 2009 ONCJ 317, 70 R.F.L. (6th) 421, [2009] O.J. No. 2907, 2009 Carswell Ont 3994 (Ont. C.J.).

Background Facts

[17] Initial Involvement and Apprehension

The background with respect to this matter is as follows: The society first became involved with this family in 2002. Over the following six years, the society remained involved, at least, intermittently, in relation to concerns of domestic violence, neglect, and physical abuse of the children by both the mother and her partner, Mr. A.J. In 2008, following an incident of domestic violence, J.S. and E.S., as well as their younger sister, K. [ph] were apprehended. A younger sibling, D. [ph] was born in […] 2009. He initially remained in the mother's care, but was later apprehended in September 2009.

[18] Re-integration and Supervision Order

During the summer of 2010, the court ordered that the children be re-integrated back into the mother's care. At the time, the mother had stated that she was no longer involved with Mr. A.J. The children were re-integrated into the mother's care by September 2010.

[19] Re-apprehension

In December 2010, the children were re-apprehended when it was learned that the mother was allowing Mr. A.J. to be in the home in contravention of the supervision order. It is evident from this recitation that, over the last six and a half years, the subject children have been in the care of their mother for three months because of the protection concerns, including the concerns relating to Mr. A.J.'s propensity for violence.

[20] Crown Wardship Order

The society ultimately commenced an application for Crown wardship without access for the four children. On 31 May 2012, J.S., E.S., and K. were all found in need of protection on consent, pursuant to subclauses 37(2)(a)(i), 37(2)(a)(ii), 37(2)(b)(i) and 37(2)(b)(ii) and clause 37(2)(g) of the Child and Family Services Act.

[21] Disposition and Access Trial

A motion for summary judgment on the disposition for the child was heard on that date, and judgment was reserved. On 39 June 2012, judgment was rendered, making the children, K., J.S., and E.S. wards of the Crown. The issue of access was remitted to trial. The youngest child, D., was made a Crown ward without access.

[22] Trial Judge's Findings on Re-apprehension

In his reasons for judgment, Justice Gethin B. Edward reviewed the facts leading up to the re-apprehension of the children in December 2010. He noted that there was a specific term in his own endorsement granting the supervision order returning the children to the mother that stated as follows: "Most importantly, [Mr. A.J.] shall never be present during the respondent mother's access visits."

[23] Mother's Violation of Supervision Order

Justice Edward went on to find that, not three months later, the mother began having surreptitious contact with Mr. A.J. culminating in the worker's finding Mr. A.J. hiding in the mother's residence during a home visit.

[24] Trial Judge's Finding — Mother's Choice

Justice Edward went on to find that:

All efforts to have [Ms. A.C.'s] children returned to her care were dashed, because [Ms. A.C.] chose [Mr. A.J.] over her children. The tragedy is that she continues to make that choice.

[25] Access Trial and No Access Order

The youngest child, D., was made a Crown ward without access on the same date. The issue of access proceeded to trial and Justice James P. Nevins gave judgment on 3 April 2013. A decision was given orally and all parties were present, so it is obvious the parties knew they could expect the result that day. At the trial, the society had taken the position that there ought to be no access to any of the three subject children. It was successful in that position, and an order of no access was granted.

[26] Trial Judge's Reasoning on Access

In his reasons for judgment, Justice Nevins explicitly recognized that the evidence was that the father's access to the boys had been very good and that the boys looked forward to it. The decision also referred to the CAAP assessment, that is Child Advocacy and Assessment Program, of McMaster University. That report was completed previously and it included a recommendation for access, but only on certain terms. Justice Nevins summarized the thrust of that report as follows:

The overriding theme and message that comes through very, very clearly in this report, is for all of these children, by far the most critical issue is to try to create and maintain stability for them in their family placements, wherever they may be. That is absolutely essential and the reasoning for that is clear once one reads the report. There hasn't been stability in their lives at all. So, as far as [J.S.] is concerned, we're talking about 12, almost 13 years of instability.

The court also commented on Mr. A.J., saying that his relationship with the mother had been violent and abusive and that the evidence was that Mr. A.J.'s character had not changed much.

[27] Trial Judge's Concerns About Mother's Conduct

Justice Nevins went on to say:

I am concerned that [Ms. A.C.] simply does not understand that her false promises or impressions that she is giving to the children, that they may reunite in the future, or that they may get back together as a family is not only an impediment to the children's stability, but it is terribly damaging and upsetting to the children. I just do not think she gets it. She does not understand what the problem is.

He went on to say:

It leads me to believe without any hesitation whatsoever that [Mr. A.J.] will be in her life actively for the indefinite future, whether they actually live together, or whether he is there in the wings pulling on the strings on what she does.

[28] Trial Judge's Finding on Father's Access

The court also concluded that access to the father would not be meaningful and beneficial because, whether he intends it or not, his continued access might lead the boys to believe that they might be placed with him. The point was directly addressed in the following excerpt from the judgment:

It's just that this is what the boys are perceiving, and that's not good for them because they need the stability of knowing that where they are going to be is where they are going to stay.

[29] Cessation of Mother's Access

Access to the mother immediately ceased after the release of the judgment. Although the society wanted to set up a goodbye visit between the mother and the boys to give them all some closure, the workers were not able to contact the mother and the mother then moved to London, Ontario. She says she called the society to ask for a goodbye visit but she did not persist.

[30] Society's Questionable Decision on Father's Access

This is where things take a rather odd turn. Having argued that there ought to be no access to the parents, including the father, the society had pre-scheduled a visit with the father for the day after the appearance to receive the decision. Why this would have been done instead of waiting to ascertain the outcome of trial, is something of a mystery. But, having received the decision, rather than cancelling, or, at least, deferring the visit so it could be converted to a goodbye visit, which is a fairly standard procedure, the society decided to just go ahead with it.

[31] Society's Indecision on Father's Access

For the next seven weeks, the society seems to have dithered about what to do about access to the father. Why this would be the case, in the face of a "no access" order is unclear. It appeared from the totality of the evidence that there was some sort of schism amongst society personnel, even prior to the granting of the "no access" order as to whether access was in fact in the boys' best interest.

[32] Resumption of Father's Access

In mid-May 2013, E.S. had a chance meeting with his father in the community. The manager in charge, Denise Morton, has testified that she believed there were other chance meetings between father and sons. No basis for that opinion was elicited. Ms. Morton was also of the opinion that the boys might seek out their father in the community. Again, no basis for that opinion was elicited. J.S. was also seen at the time as being "out of sorts" and the assigned worker, Marlene Napthen, felt access with the father would be a good thing for him. Ms. Napthen also told E.S. that he would be seeing his dad and E.S. was happy about this. Accordingly, an access visit for the father was arranged from 29 May 2013. This was clearly not a goodbye visit, rather the decision had been taken to ignore the trial judge's findings and to proceed with more access in the face of an order to the contrary.

[33] Society's Assessment of Father's Access

At about the same time, the file was passed to Joe Oliveira, the current child service worker. Mr. Oliveira was charged with continuing the access to assess whether there was a benefit to the boys or not. If so, the society would consider returning the matter to court to seek an order for access. At no time did the society commence an appeal or otherwise seek to set aside the order for access; it simply ignored the order.

[34] Supervised Access Visits

Prior to the "no access" order, access between the father and the children was semi-supervised. After the order, the society says that all visits were fully supervised and that three additional visits occurred on 29 May, 16 July, 1 August and 23 September 2013. All went well.

[35] Father's Arrest and Incarceration

On 3 October 2013, the father was arrested and charged with trafficking cocaine. He remained incarcerated until February 2014 when he was released on bail. Access was terminated on the father's arrest and no visits have been scheduled since that time. The father did attend at the foster mother's home immediately after release and asked for access, but the society has not been prepared to reinstate it. It should be noted at this juncture that the father has a serious criminal history for various offences, including drugs and he has served extensive time in the penitentiary, although his criminal record was not introduced into evidence by any party. In his answer, the father acknowledges having been charged with drug offences in 2010, 2011, and 2013. The current drug trafficking charges remain outstanding and are scheduled for trial in April 2015.

[36] Children's Reaction to Father's Arrest

The boys were devastated by their father's arrest and incarceration. They had known the society was assessing the access with a view to potentially returning the issue to court. They also knew that their father's incarceration would put an end to access.

[37] Mother's Surreptitious Contact

To add to the boys' distress, the mother was, at the same time, surreptitiously contacting them through social media and text messages. She also orchestrated a personal meeting with them by enlisting one of their friends to bring them to her in the community. Coincidentally, it was right at this time that the mother had also announced an intention to bring a status review application and to pursue the adoptive parents of the two youngest children. In the course of that discussion with the worker, the mother also announced that Mr. A.J. was still in her life and the two were planning to go to couples counselling.

[38] Mother's Assumed Names and False Promises

In October 2013, the foster parent learned that the mother had been contacting J.S. through his cell phone. She was doing so under the assumed name of H., using also an assumed name of D. for J.S. Therein, the mother tells J.S. that, if they do not give up, they will all be together. This discussion between mother and J.S. is also about having the matter transferred to London so the children can move there with her. And, it should be noted, at that point the mother had given birth to another child, X., but the London society had not removed him from her care.

[39] Mother's Taped Meeting with Children

Also in October 2013, the mother arranged a meeting with the children at MacDonald's. She taped this conversation to use as evidence. The recording reveals the mother encouraging the boys to cast dispersions on their foster family. In the course of these interchanges, J.S. begins to refer to his foster home where he has been placed continuously since December 2010 as his "temporary home".

[40] Mother's Deliberate Concealment

It is clear from the totality of the messages, from all the evidence, that the mother went to great lengths to avoid detection in this endeavour. In her testimony, the mother was quite unrepentant and she obviously did not recognize that her conduct was grossly inappropriate.

Around the same time, J.S., at his mother's urging, contacted the Child Advocate Office. There seems to have been some discussion between J.S. and the Advocate's Office about getting the file transferred to London, but nothing came of this. In the meantime, the mother was also turning to the internet and, in particular, social media sites, to disparage the society and the foster parents. She posted a comment to Facebook, saying, "[J.S.], [E.S.], I'm coming. K., D., I'll find you."

It is significant to note that the mother has not adopted any privacy settings for her Facebook page, and it was abundantly clear, on all of the evidence, that this was done to ensure that J.S. and E.S. would have access to the site so they might view her rants and promises. Mother's Facebook posting from as recently as 23 July 2014, makes it clear that she intends to surreptitiously and actively seek contact with the two subject children come what may. As recently as early January 2015, the mother, "poked" E.S. on Facebook, an action obviously intended to solicit a response.

[43] Mother's Unsubstantiated Allegations Against Foster Parents

In her testimony, the mother recited a litany of complaints against the foster parents. She said the boys had been taken on "drug runs" with their foster sister and that the foster father called them names and treated them inequitably as compared to his own grandchildren. She offered innuendo about possible coercion between an unnamed person and the foster sister, and she talked vaguely about people playing with knives.

[44] Foster Parents' Position

The boys remain at the foster home of T.D and G.D. where they have been since December 2010. Ms. T.D. testified and I was impressed with her as a witness. She says that the boys see her as their psychological parent. The boys seem to be doing as well as can be expected in her care. Mrs. G.D. and her husband are obviously very troubled by the implications of resumption of access between the mother and the boys. After a great deal of thought, the foster parents have reluctantly concluded that, if there is to be an order for access, they will have to withdraw their permanency plan for the boys and withdraw from fostering them.

Analysis of Applications for Leave

[45] Good Faith — Father's Application

Turning now to the Justice Bean criteria, the good faith of the application for leave:

[46] Good Faith — Father

The father brings this application in good faith. He was given access after the "no access" order on the authority of the society. He asked for resumption of access on release of incarceration and, when he was declined, he did not try to obtain contact through other means.

[47] Good Faith — Mother

The mother clearly does not bring this application in good faith. She was candid in acknowledging that the trigger for bringing the application was learning that the father was getting access. Immediately upon announcing an intention to bring the application, she surreptitiously and repeatedly instigated contact with the boys knowing that there was a court order for no access. She continued to elicit contact in the face of an admonishment by Justice Edward in June 2014 to have no contact whatsoever with the children. Mother was also blithe in her dismissal of the concern that the boys would potentially lose their foster placement should her application be granted, saying, at one point, that her mother could possibly care for them. She was rabid in her criticism to the foster family, all of which was quite devoid of merit. She is clearly intent on destroying the only stability these boys have ever known.

[48] No Less Drastic Remedy

No other less drastic relief: A status review application is the only mechanism by which either of these parents could obtain access at this point.

[49] Unusual Circumstances — Father

Unusual circumstances to justify intervention: It might be said that there are unusual circumstances to justify intervention in regards to the father due to the continuation of positive access subsequent to the "no access" order. But, as Mr. Dejong pointed out, on behalf of the society, there are no unusual circumstances as it relates to the father's situation, and the reasons for the "no access" order.

[50] Unusual Circumstances — Father's Criminal History

The reasons for the "no access" order were the father's criminal antecedents, the risk of further arrest and incarceration, and the destabilizing effect that access might have upon the boys' placement. Almost two years later, the father is facing more criminal charges for trafficking in cocaine. He has produced no drug test to confirm that he is drug-free. It is not unreasonable to think that he might consume drugs given has been so immersed in the drug culture historically. We only have his bare assertions that he is ceased, as he puts it, to "having intercourse with his demons."

[51] Risk of Destabilization — Father

Moreover, there remains the concern that access would destabilize the placement. This is true for two reasons: First, the boys were very distressed by the father's previous incarceration. If he is again incarcerated, it quite likely will have a similar effect. The foster parents would be left to pick up the pieces. Second, no one asked whether the foster parents would continue their commitment to fostering the boys in the face of an access order to the father. Although the foster parents have previously supported the father's access, this position was undertaken without the knowledge that he was facing new charges. The foster parents made it clear that they would withdraw if access were granted to the mother. The court is left without any knowledge whether an access order in favour of the father now would have a similar effect on the foster family's commitment.

[52] Unusual Circumstances — Mother

The onus is on the parent to show unusual circumstances to justify the intervention. To do so, the parent must produce some positive confirmatory evidence. It is not sufficient to rely on an absence of evidence. There are no unusual circumstances to merit intervention in relation to the mother's application. It is true that the mother has had another child who has not been removed from her care, but that decision was made by another children's aid society. I have no idea on what information that society based its decision. In any case, the court might not agree with that society. What I do know is that the mother is continuing a relationship in some form with Mr. A.J., who is described by Justice Edward as "a particularly nasty person who has no compunction of using a belt on children or beating women."

[53] Mother's Relationship with Mr. A.J.

The mother describes this person as an "awesome father" and says that she allows him regular contact with her young son. Despite his "awesomeness", there have been two occasions since the "no access" order when the mother has had to resort to calling police because of Mr. A.J.'s volatility and the conflict between them.

[54] Mother's Lack of Understanding

It was more than apparent from her testimony that the mother still does not "get it" as Justice Nevins said. She says that she has undertaken various services, but these have certainly not helped her in this regard. She is wilfully blind to the difficult and stressful position in which she has placed her children by seeking surreptitious contact with them, both personal and electronic. Had the parents demonstrated a prima facie prospect of success on the status review application, the father might have been positioned to obtain leave on the first four criteria.

[55] Father's Changed Circumstances

Had this application been heard on 30 September 2013, it would have been a totally different consideration. Access was going well. The boys' stability in the foster home was not being undermined by the access. The boys were clearly enjoying the access and it was meaningful to them. But, there is a lot of water under that bridge. Access was interrupted by the father's arrest and incarceration. The children were devastated by that event. Father has now not had access for some 15 months. The boys are not asking about access. They seemed to have gotten on with their lives and accepted that, as Mr. Oliveira said, "Father blew his chance."

[56] No Prima Facie Case — Father

There is no evidence upon which I could conclude that access by the father is currently meaningful and beneficial for the children. Without some evidence in that regard, there is no prima facie case. But, aside from that, it is impossible to think that reinstating access now, when the father still has outstanding criminal charges, for which he could face further periods of incarceration, could possibly be in the children's best interest. Why would the court expose them to the possibility of again being devastated?

[57] Father's Criminal History and Risk

The father has as very extensive criminal record. In his testimony, he acknowledged a 35-year history of "wrestling demons" that included extensive immersion in the drug-trading culture. He made tacit reference about spending the proceeds of crime. There is an obvious risk of children's becoming collateral damage in the violence associated with the drug-trade.

Society's Conduct in Permitting Access

[58] Society's Authority to Permit Contact

This brings me to the question of the society's conduct in continuing regular scheduled access to the father subsequent to the "no access" order of 3 April 2013. Mr. Dejong says the society was entitled as the custodial parent of the children to provide this access. In his position, he relies first on subsection 59(4) of the Child and Family Services Act which provides as follows:

(4) Society may permit contact or communication. — If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward.

[59] Plain Reading of Subsection 59(4)

No specific case law was provided to assist in the interpretation of that provision, but a plain reading of the subsection, and especially the words "and, no access order is in effect", belie the interpretation that Mr. Dejong seeks to prevail. There was an access order in effect, and it was no access.

[60] Society's Authority Under Common Law

Mr. Dejong also relies upon the decision of the Ontario Court of Appeal in Children's Aid Society of Toronto v. Dora P. and Raymond L., 202 O.A.C. 7, 19 R.F.L. (6th) 267, [2005] O.J. No. 4075, 2005 Carswell Ont 4579, in support of his position. Therein, the court reviewed previous decisions about the society's authority to provide who sees Crown wards in its care. Ultimately, it found that the society retains the right to control who may visit the children and when. The court went on to say:

[12] … in the absence of a "no contact" order, the CAS retains the right described above, even where an order stipulates that a parent has no legally enforceable right of access.

[61] Adoption of Principle

This principle was adopted by Justice Stanley B. Sherr of the Ontario Court of Justice in Children's Aid Society of Toronto v. Efrata E., 2011 ONCJ 113, 215 A.C.W.S. (3d) 661, [2011] O.J. No. 3143, 2011 Carswell Ont 6089 (Ont. C.J.). Under conclusion, Justice Sherr noted that his order for Crown wardship without access:

[76] … 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.

[62] Court's Acceptance of Society's Authority

I accept that the society, standing in place of a custodial parent, has the right to control who has contact with or who visits the child. I accept that this can include contact or visits with the child even in the face of a "no access" order when undertaken for the specific benefit of the child. The society did here act within its "rights", but the manner by which the society conducted itself is troubling. The sequence of events bears reiteration. The society took the position at trial that there should be an order for no access. In doing so, it no doubt relied in part on the evidence of the CAAP report and the witness from CAAP, Ms. Pietra Antonio. Here is what the trial judge had to say about the report:

I can say quite honestly that I have seen a great many reports over the years. I do not recall ever seeing such a comprehensive report, so well researched, and so well presented.

[63] CAAP Report and Trial Judge's Findings

The evidence from CAAP was that the long-term stability had to take precedence over access to anyone. The court found that the boys were perceiving that there was some possibility that their father might be able to care for them. This, of course, would tend to destabilize their placement. After careful consideration of all the evidence, including the expert evidence, and finding that the access was not being beneficial and meaningful, the court ordered no access.

[64] Society's Failure to Seek Reconsideration

If the society was having second thoughts about the merits in continuing access, even after receipt of the report, it does not seem to have presented them to the court. Judgment was granted orally on 3 April 2013. There was no effort by the society to re-open its case to change its position about father's access, or to present whatever updating evidence might have supported change in its position.

[65] Society's Disregard of Court Order

The society then proceeded on with its pre-planned visit the very next day after receiving this carefully reasoned decision. I can accept that the society's authority is in effect that custodial parent would allow it to have one, or even a sequence of goodbye visits, but this is not what happened. The society went on as if the order and the findings had never been made.

[66] Society's Internal Conflict

In the ensuing few weeks, the society considered whether it should act consistently with the order. Some at the society seemed to have recognized that that course of not acting consistently might be problematic. Ms. Fawcett, the adoption worker, said that she asked whether they, being the society, could even do that; but the society did allow access.

[67] Society's Failure to Return to Court

At no point did the society seem to consider that perhaps it should return the matter to court on notice to the Children's Lawyer before embarking on further regular access. The society then set up regular monthly access visits to assess whether or not to return to court some unspecified date in the future to reconsider access. Of course, when the father was arrested again, that was that, and the boys were devastated. The risk of this happening was one of the reasons underlying Justice Nevins' order.

[68] Rule of Law Concerns

In undertaking this course of action, in this factual context, I find that the society decided that it was at liberty to substitute its judgment for that of the court. It seems to me that there are problems with this. First, the rule of law presumes that the court makes the final decision. It is one thing to pursue access when the court has made a "no access" order to facilitate an adoption, and no placement has yet been made. It is one thing when goodbye visits are set up after a "no access" order, but it is quite another to have a court consider the evidence and conclude on the evidence that access will be potentially detrimental to a child and then have the society continue access anyway.

[69] Disrepute to Administration of Justice

The society just ignored the decision. That is problematic. When a litigant, especially an institutional litigant decides that it is free to completely disregard court findings, in my view, that tends to bring the administration of justice into disrepute. And, in this case, it had some very unfortunate consequences for these children. Not only were the boys devastated by the later abrupt termination of access, but it also opened up the door to the mother's taking the view that, if the society could ignore court orders, so could she.

Mother's Application for Leave

[70] Mother's Access Prior to No Access Order

Turning now to the mother's case. Has the mother demonstrated, she has a prima facie case for status review? In my view, the evidence is unequivocal that she has not. Prior to the "no access" order in April 2013, mother's access was not going well. The boys were demonstrating anxiety before and after visits and were bed-wetting. There was increased physical aggression between the two boys. The court found that access was not meaningful and beneficial.

[71] Mother's Surreptitious Contact Only

The mother has not had a planned, legitimate access visit since the making of that order. She did not pursue the society to secure a goodbye visit, which might have been helpful for the boys. She just disappeared, apparently fleeing Brantford to avoid apprehension of her child to be. Mother's only contact, subsequently, has been in defiance of the order and it has been surreptitious. It has put the boys in a situation where they are being enlisted in their mother's defiance of a "no access" order.

[72] Mother's Harm to Children

The mother has conscripted the children in a taped interview where they are encouraged to say bad things about the foster parents, with whom they have an important relationship. The mother is utterly oblivious to the harm that she has caused the boys in putting them in this position. She is indifferent to their best interests. The mother is entirely focused on what she wants, which was evident in her comment in examination in-chief to the effect that she deserved to see the boys.

[73] Mother's Intent to Undermine Placement

The mother has demonstrated a tenacious intent to undermine the boys' placement. The children themselves are concerned about the effect that mother's action has had on their ability to continue to see their two younger siblings, who are placed for adoption. The boys have expressed that their priority is access to the younger siblings. The evidence is overwhelming that access between the boys and their mother could not be meaningful and beneficial.

[74] No Merit to Mother's Application

In considering the paramount purpose of best interest, protection and well-being of children, it is plain and obvious that there is no merit to this plan. And, accordingly, the mother cannot show that there is some prima facie prospect of success on a status review application.

[75] Unconscionable to Grant Leave

Granting a leave for the status review application would have the effect of prolonging the uncertainty for these two boys, both of whom are of an age where they would be aware of the litigation. To do so in a case so devoid of merit would be unconscionable.

Dismissal of Applications for Leave

[76] Dismissal of Both Applications

The mother's application for leave to bring the status review is dismissed. The father's application is similarly dismissed.

Restraining Order

[77] Authority for Restraining Order

That brings us to the issue of the motion for a restraining order. These children have already been found in need of protection, which is a condition precedent to a restraining order under section 80 of the Child and Family Services Act. The court must consider whether such an order would be in the best interest of the child or children.

[78] Mother's Relentless Pursuit

The evidence is overwhelming that the mother has been relentless in her pursuit of contact with the children. She knows that there is an order for no access and that the society, acting as the custodial parent to the children, does not view access by her as in the children's best interest. She does not care.

[79] Mother's Defiance of Court Orders

Notwithstanding having been admonished by the court to cease her efforts to have any contact with the children, the mother has persisted in trying to engage the boys. The mother is indifferent to the best interests of the children, or indeed for their wish, which has been expressed clearly to not see her. J.S. is so desirous of putting an end to contact by the mother that he even sought information about being adopted. His idea in doing so was that, if he were adopted, he would be placed out of Brant County, thus ending his mother's ability to find him. Mother remains oblivious to this rather desperate message.

The Facebook print-offs entered into evidence today show the mother posting, under her own name, discussing what is obviously this hearing, and referencing the involvement of the children's aid society. Because she has not set up any privacy settings, this information is open to all and sundry who troll social media sites. There is also a post that is rather obviously intended to be a message to her sons. It states as follows:

You know what, at 14 you have the right to make some choices. By 16, you can sign yourself out and do as you choose, no courts, no bullshit.

[81] Restraining Order Granted

The boys need to be protected from this kind of behaviour. It is therefore in their best interests that there be an order restraining the mother from contacting or having access to the children. The court has authority under the section to provide such directions as it considers appropriate for implementing the order, and protecting the child or children. Accordingly, there will be an order directing the mother to block both children from her social media sites, and to refrain from any attempt to engage through any and all electronic means.

[82] Restraining Order Not Time-Limited

Mother's counsel has submitted the restraining order should be time limited. The mother is hopeful of securing admittance to and attending a social work program. Restraining orders are noted on CPIC, and would potentially be disclosed to any prospective employer, thus impinging on the mother's future employment prospects. I decline to do so. There is no concrete plan in place for the mother to pursue this goal. She says she would not, in any case, plan to do so for at least another year. Any program of education would presumably take at least two years. The plan is speculative at this point. The need to protect the children from the mother's dogged pursuit, in any event, outweighs some future relatively remote possibility.

[83] Consequences of Contravention

Having made that order, I should specifically inform the mother of the provisions of section 85 of the Child and Family Services Act, which provide that a person who is found to have contravened a restraining order is guilty of an offence, and is liable to a fine of not more than $2,000 or imprisonment to a term of not more than two years, or to both. That is my ruling.

[84] Exception for Photographs

Before closing, I will say this. The boys clearly have an interest in seeing photographs of their youngest sibling who resides with the mother. The mother seems to think that the boys should be allowed to view photos. The granting of this restraining order does not prohibit the mother from providing photos of the youngest child to the Brant Children's Aid Society to be subsequently provided to the children at the society's discretion.

Final Order

[85] Procedural Matter

Is there anything else? All right. For oral reasons given then, final order to go:

(1) Dismissing the parents' applications for leave to bring a status review application.

(2) Restraining and prohibiting the mother, A.C., born on […] 1979, from having contact, access, or communication with the subject children, including all particulars of prohibition set out in paragraph 1 of the OCL's notice of motion originally returnable on 20 June 2014.

[86] Costs — OCL

Mr. Giles, that motion originally included a claim for costs. Are you pursuing that?

[87] OCL Response

Mr. GILES: I have no instructions to seek costs, Your Honour.

[88] Costs — Court

THE COURT: All right. Thank you, very much. Any issue of costs from the society's point of view?

[89] Society's Response

Mr. DEJONG: Given Your Honour's comments regarding the society's allowing access, I don't think that would be appropriate.

[90] Conclusion

THE COURT: Thank you, very much.

Recorded and transcribed by Celina Boswell, court reporter, Ontario Court of Justice at Brantford.