WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: C53328/11

Date: 2015-12-01

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 K.J.K., Born on […], 2014.

Parties

Between:

Children's Aid Society of Toronto

Erin Rose, for the Applicant

Applicant

- and -

A.F. and A.K.

Edward Rice, for the Respondent, A.F.

Respondents

Service dispensed with on the Respondent, A.K.

Herbert Stover, for the interested party, M.H.

Hearing and Decision

Heard: November 12-13, 16-18, 20 and 23, 2015

Justice: S.B. Sherr

Reasons for Judgment

Part One – Introduction

[1] The Children's Aid Society of Toronto (the society) has brought an amended protection application seeking a finding that K.J.K., born on […], 2014, (the child) is in need in protection pursuant to clause 37(2)(b) of the Child and Family Services Act (the Act). The society seeks a final disposition that the child be made a crown ward, without access, for the purpose of adoption. The statutory findings required pursuant to subsection 47(2) of the Act were made during the trial.

[2] The respondent A.F. (the mother) is the child's mother. She seeks a dismissal of the society's amended protection application. In the alternative, she seeks an order that the child be placed in her care and custody, subject to terms of society supervision for 6 months. In the further alternative, she seeks an order that the child be placed in the joint care and custody of her and her mother, M.H. (the grandmother) subject to terms of supervision for 6 months. In the further alternative, she seeks an order placing the child with the grandmother, subject to terms of supervision for 6 months. If the court decides not to place the child with her, the mother seeks as much access to the child as possible.

[3] The respondent A.K. (the father) is the child's father. He has had no involvement with the child or this court case. An order was made dispensing with service on him at the outset of the trial.

[4] The interested party M.H. (the grandmother) was granted limited rights of participation at this trial. She was permitted to have counsel attend during the trial and make submissions with respect to the issues of disposition and access. The grandmother's counsel conducted her direct examination, the direct examination of two witnesses, was permitted to cross-examine society witnesses about evidence pertaining to the grandmother and made closing submissions.

[5] The grandmother asked the court to place the child in her care, subject to society supervision for 6 months, as an alternative to the mother's plan. In the alternative, she sought an access order to the child. The grandmother's counsel kept within the participatory framework structured by the court during the trial and was of assistance to the court in ensuring that there was a full evidentiary presentation and consideration of the alternate plans.

[6] The child has been in the care of the society since October 24, 2014. The mother and the grandmother currently exercise access to the child.

[7] The issues for this court to determine are:

a) Is the child in need of protection?

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

c) If the child is placed with the grandmother, what access, if any, should the mother have to him?

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

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

[8] The trial of these issues was heard over seven days.

Part Two – Brief Background

[9] The child is the mother's fourth child. A protection trial took place over nine days from February 3 to 13, 2014 regarding her three eldest children (the older children) before Justice Carolyn Jones (the first trial).

[10] Justice Jones released her Reasons for Judgment on September 24, 2014. She made an order that the mother's three older children be made crown wards, with no access to the two younger children (J-1 and J-2), and with access by her to the oldest child (S.), to be supervised in the society's discretion, a minimum of twice per month.

[11] At the first trial, the mother had asked that all or some of the older children be placed in her care, or in the alternative, placed in the care of the grandmother. She also had asked for access to all three children.

[12] The mother has appealed Justice Jones' decision. The appeal has not been heard.

[13] The mother failed to advise Justice Jones or the society that she was pregnant (about 5 months) during the first trial.

[14] The mother also failed to advise the society or Justice Jones that she was involved in a relationship with the father during the first trial and that it was an abusive relationship.

[15] The mother separated from the father in April of 2014 and moved in with the grandmother. The grandmother has three of her other children living in her home, being A., age 18, R., age 12 and T., age 11.

[16] The society was not advised that the mother was pregnant until May 27, 2014.

[17] The child was born on […], 2014.

[18] The child was apprehended from the care of the mother from the hospital on June 19, 2014.

[19] After a temporary care and custody hearing, Justice Robert Spence placed the child in the temporary care and custody of the grandmother on June 26, 2014. Several terms of supervision were ordered. The key term was:

If the grandmother is unable to supervise the child, she shall ensure that the child is appropriately supervised at all times by a responsible adult approved of previously by the society, not the mother.

[20] The child was apprehended from the care of the grandmother on October 24, 2014 after the mother and the grandmother breached the supervision order. The grandmother had gone to a school meeting for R. and left the child in a taxi while she attended the meeting. The mother was in the taxi with the child.

[21] The mother and the grandmother both acknowledged that they understood they were breaching the court order.

[22] The society apprehended the child on October 24, 2014.

[23] The mother and the grandmother had shared in caring for the child until he was apprehended. The evidence indicates that the child was developing normally. The mother and the grandmother had assistance from the Public Health Nurse and a Home Visitor.

[24] The mother and the grandmother had also participated in a parenting program called Making the Connection.

[25] On October 29, 2014, Justice Spence made a temporary order placing the child in the care and custody of the society with supervised access for the mother and the grandmother at the society office.

[26] The society amended its protection application to seek crown wardship without access on December 12, 2014.

[27] The mother's access was increased to three times per week, for two hour visits, on January 9, 2015.

[28] The mother moved for temporary unsupervised access on March 26, 2015. This motion was dismissed by Justice Spence.

[29] The mother moved again for unsupervised access on June 30, 2015. Justice Spence ordered that the mother could have two visits per week. One visit would be for three hours and be fully supervised. The second visit would be for four hours, with the first and last 45 minutes of the visit supervised. The middle portion (two and one-half hours) would be unsupervised in the community.

[30] The grandmother stopped attending access on a consistent basis after December 9, 2014. She did not attend any access from March 3, 2015 until September 25, 2015. She asked to reinstate access in August of 2015. She is currently exercising access.

[31] The mother moved from the grandmother's home to her own residence in May of 2015. She continues to reside on her own.

Part Three – Finding in Need of Protection

3.1 – Legal Considerations - Finding in Need of Protection

[32] The society seeks a finding that the child is in need of protection pursuant to clause 37(2)(b) of the Act. This clause 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;

[33] The risk of harm under clause 37(2)(b) 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..

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

[35] 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 (Superior Court - Family); Brant Children's Aid Society v. J.A.T., 2005 ONCJ 302.

[36] It was unnecessary for the court to examine evidence beyond the date of the child's apprehension as the evidence was overwhelming as of that date that the child was in need of protection.

3.2 Past Parenting

[37] The evidence supporting the finding in need of protection was primarily based on past parenting evidence, as only a short time had elapsed after the completion of the first trial until the child was apprehended.

[38] Subsection 50(1) of the Act permits the court to consider the past conduct of a person toward any child, and any oral or written statement or report that the court considers relevant to the proceeding is admissible into evidence. This subsection reads as follows:

Consideration of past conduct toward children

50.(1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[39] Past conduct evidence must not be permitted to suffocate evidence of a parent's current conduct, circumstances and functioning. The real relevance of past parenting evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed. See: Waterloo Region v. R.C. and M.S.; Catholic Children's Aid Society of Toronto v. C.S., 2010 ONCJ 656.

[40] The admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge or determinative of the result. However, where a parent's previous children have recently been made crown wards, there is a tactical burden on the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that was found to exist in relation to the earlier children. See: Children's Aid Society of Niagara Region v. D.P. and S.B. (No. 3); Catholic Children's Aid Society of Toronto v. L.M., 2011 ONCJ 146; Catholic Children's Aid Society of Toronto v. C.T., [2012] O.J. No. 2716.

[41] The past parenting evidence in this case has similarities to Children's Aid Society of Simcoe County v. B.D., 2014, O.J. No. 1641 (SCJ – Divisional Court) as in B.D., which was an appeal of a summary judgment decision. That court wrote at paragraph 32:

It was appropriate for the motions judge to rely on a judgment dated December 8, 2011 after a lengthy trial as evidence of past parenting under s. 50(1), particularly because the child was born just two and a half months after the judgment and the parents lied to the trial judge about the mother being pregnant.

[42] The court went on to cite this court's decision in Catholic Children's Aid Society of Toronto v. L.M., supra, in the same paragraph as follows:

In the latter case, Sherr J. stated the following in a summary judgment motion, and I agree:

[14] It is appropriate for this court to rely on the findings in these decisions as evidence of past parenting under subsection 50(1) of the Act. The society properly restricted its reliance on past parenting evidence to the findings set out in these two decisions; it did not present the court with additional past parenting evidence, which could overwhelm the mother's ability to address it, particularly on a summary judgment motion. See: Catholic Children's Aid Society of Toronto v. V.W. and A.A.-C.; Kawartha-Haliburton Children's Aid Society v. D.C.; and Children's Aid Society of Bruce County v. I.Bu., J.M.Br. and Saugeen First Nation Band, 2004 ONCJ 454.

3.3 Findings of Justice Jones

[43] The findings of Justice Jones are highly relevant as she completed the first trial just four months before the child's birth.

[44] Justice Jones delivered a comprehensive decision. Her findings that this court will rely upon are set out in the paragraphs below. This court has attempted to use Justice Jones' wording wherever possible.

[45] Justice Jones made the following findings of fact in her Reasons for Judgment:

a) The mother is a former ward of the crown. At the time she became pregnant with S., the society was continuing to provide her with ongoing support in the form of extended care and maintenance. Following the birth of S., the society remained involved with the mother and the child. Between December, 2006 and June, 2007, the society identified concerns relating to the mother's ability to budget, her attachment to the child, and her ability to meet S.'s social and emotional needs.

b) In June 2007, the society apprehended S. who was then only six months old, after learning that she had suffered serious injuries while in the mother's care. The child was examined at the Hospital for Sick Children, in the Suspected Child Abuse and Neglect (SCAN) clinic, where she was found to have a broken right femur and a fractured right upper arm (humerus).

c) During the society's joint investigation with the police, the mother's common law partner (the partner) admitted that he and the mother were fighting over the child and that one of them had pulled and twisted the child's arm, causing the fracture to her humerus. The mother testified that S. broke her leg while the partner was bathing her in the tub and the partner slipped. She said that it was an accident.

d) The mother testified that after this incident, the partner became physically abusive to her, resulting in charges against him. She admitted that she did not know much about him when she invited him to reside in her home.

e) It was concerning to Justice Jones that the mother entrusted the care of a vulnerable infant to a man about whom she admitted she knew very little. Both the mother and the partner were charged with aggravated assault and criminal negligence causing bodily harm, in relation to the child's injuries.

f) S. remained in foster care until November, 2007, when she was placed in the care of the grandmother, on an extended visit. In December, 2007, an order was made placing S. in the care of the grandmother subject to the supervision of the society on terms and conditions. The mother exercised access with the child, both at the home of the grandmother, as well as at the offices of the society. The charges against the mother and the partner were ultimately withdrawn.

g) In February, 2008, following a meeting of the society's Abuse Review Committee, the society made the decision to support the return of S. to the care of the mother, provided she and the partner were no longer in a relationship. S. was returned to the mother's care, and the society remained involved for the next twelve months.

h) The mother testified that she subsequently became involved in a relationship with the father of J-1 and J-2, when she travelled to Jamaica. This was a long-distance relationship.

i) In September, 2008, police responded to a call to the mother's apartment building, due to the fact that the mother's two younger brothers (ages 4 and 5 at the time), who were under her care, were running into traffic and darting out into the street. While the mother claimed at trial that she could not recall the details of this incident, she agreed it was possible that the incident occurred as police described. The mother did not react appropriately, to remove her brothers from the situation of risk that had developed. She stated that the boys were hard to watch because of their exceptionalities. Justice Jones found that the mother did not provide an adequate level of care to keep her brothers safe, on this occasion.

j) In February of 2009, the society closed its file with respect to S.

k) On July 11, 2009, the mother had been caring for five children at that time, among them her two oldest children, S. who was then two years of age and her son, J-1., who was then only six months old. As well, at the time of the incident, the mother was babysitting the three children of the grandmother. On this occasion, the two boys were out on her 9th floor balcony, without adult supervision, hanging their heads and arms over the railing. The boys would have been no more than five and six years of age at that time. Neighbours called the police. The mother denied to the police that the children were climbing on the rail. The mother provided two contradictory reports of her actions on that day. In her testimony at trial, the mother stated she had been watching her brothers from inside the apartment, while seated on the couch. At the time of the incident, the mother stated to the police that she was inside the apartment cleaning and had "hardly left them alone out there". Justice Jones found that:

i) If the mother had been watching her brothers from inside the apartment, while seated on the couch, as she maintained at trial, then it was very concerning to the court that she did not immediately react to pull the children to safety.

ii) It was much more likely that the mother was not actively supervising the children at the time they were on the 9th floor balcony, circumstances that give rise to considerable concern about the mother's judgment and her lack of appreciation of the risk or danger to children.

l) The mother was arrested and charged with two counts of abandoning a child arising out of the first balcony incident. Ultimately, the charges laid against the mother were withdrawn, on the basis of the mother entering into a peace bond pursuant to section 810 of the Criminal Code, pledging to keep the peace and be of good behaviour for a period of twelve months.

m) The society's next activation was on February 9, 2011. At that time, the society's intake worker, Ms. Lynne Maitland, was at a public school in Toronto, attended by one of the sons of the grandmother, for the purposes of conducting an investigation relating to that child. While there, the worker discovered that the mother's children, S., J-1, and J-2, had been left unattended for over one hour in the grandmother's unheated car, which was parked outside the school. The children were crying when they were found.

n) The intake worker noted that there was only one car seat in the vehicle, although given their ages car seats were required for all three children, while being transported in a vehicle. The worker learned that, while they were riding in the vehicle, the middle child, J-1., age two years, had been seated in the car seat, while four-year old, S., had held the baby, J-2., on her lap.

o) The intake worker noted that the children were extremely under-dressed for the cold winter day. They wore light tops, had no sweaters and had ill-fitting footwear and socks. The children presented as very dirty and smelled poorly. S. had matted hair, the middle child had flaking skin and lumps on his forehead, and the baby, J-2., had dried diarrhoea on her skin and clothing, from her neck to her boots.

p) The grandmother repeatedly stated to the worker that the mother was on her way to pick up the children, however the mother did not arrive at the school until 7:00 p.m. By that time, the worker had apprehended the children.

q) The mother admitted at trial that at the time she left the children in the care of the grandmother, she was aware that the grandmother would be transporting the children in her vehicle and that she did not have sufficient car seats in order to do so.

r) Justice Jones made the following findings about this incident:

i) The mother did not make appropriate advance arrangements for childcare, even though she had to attend a scheduled medical pre-operative procedure that day, and had surgery scheduled for the following day. These circumstances would make it foreseeable that she needed to pre-arrange child care. Instead, the mother virtually abandoned her children to the maternal grandmother's care, even as the grandmother protested that she could not assume this role.

ii) The mother's behaviour in this situation was irresponsible and denoted her poor judgment. Further, the mother did not make adequate arrangements for her children to be transported safely by the grandmother, bringing only one car seat and failing to make adequate arrangements to ensure other car seats were available.

iii) On leaving the children with the grandmother, the mother did not make responsible arrangements for the return of her children to her care. As well, she did not call or check-in with the grandmother in a timely manner, to ensure that she was managing adequately with the children. Instead, the mother waited until she was on Go Transit, on the way back to Bolton, before contacting the grandmother.

iv) It is clear that the mother intended to impose the care of the children upon the maternal grandmother for the following day as well. The mother's poor decisions contributed to the circumstances where her children were unsafely transported and then left alone in a cold car in a school parking lot that day.

s) On July 26, 2011, Justice Spence found the older children to be in need of protection pursuant to clause 37(2)(b) of the Act. S. was placed in the care of the mother, subject to a 6 month supervision order. J-1 and J-2 were made society wards for four months and two weeks, subject to access to the mother in the discretion of the society. The society was of the view at this time that the mother was ready to resume the care of one child, although not all three of the children.

t) In 2011, the mother and the children were involved in the TAP program. During her supervised access, the older children would often run from the mother's care, once outside of the confines of the visitation room, such as while walking to the washroom or to the cafeteria. Even in the structured environment of the society's TAP program, the mother was not able to keep the children under her direct supervision and control. This shortcoming resulted in a much more serious safety issue when a similar situation arose in the community.

u) On October 17, 2011, following an access visit, the mother left the building with S., then age four years. Approximately ten minutes later, S. came up the elevator alone to the society's 4th floor office. She had run from the mother's care at the York Mills subway station, and had crossed Yonge Street on her own, en route back to the society's offices. The mother subsequently arrived at the society's offices, separately from the child. Justice Jones found that:

i) The mother did not ensure that she used measures to keep the child within her control at that time, such as holding the child's hand, or having the child go through the turnstile first, so that the child was constantly in her sight and within her sphere of supervision.

ii) When the child bolted from the mother's care at the subway station, it was incumbent upon her to react immediately, so that she could overtake the child before the child exited the subway station and reached the street.

iii) The mother was at least one minute behind, and by the time the child got to the society's offices, possibly up to five minutes behind, while the child crossed busy Yonge Street by herself and returned to the society's offices alone.

iv) It was fortunate that no harm came to the child during the time she was out of her mother's care.

v) S. was demonstrating problematic behavioural issues. In April of 2012, the parties agreed to a six month supervision order that S. remain in the mother's care.

w) On June 28, 2012, J-1 and J-2 were sent home on an extended visit with the mother with a view to having them placed with her pursuant to a temporary supervision order. The mother had been told by the society that she had to leave the child with a pre-approved babysitter. The worker attended at the mother's home the next day and no one answered. The worker contacted the mother. The babysitter had left the home, leaving J-1 and J-2 with the mother's 15-year-old-sister. This had not been pre-approved by the society. The home was noted to be a mess, with piles of clothing on the floor, along with diapers and garbage.

x) The mother was arrested on an outstanding warrant on July 8, 2012 (for driving while under suspension), after the police had attended at her apartment in response to a false 9-1-1 call by S. The older children were placed with friends of the mother until her release from jail several days later.

y) On July 17, 2012, S. was apprehended by the society from the mother's care and J-1 and J-2 were brought back into care. The police had been called by concerned neighbours because children were alone and throwing items off the mother's balcony. The police broke down the apartment door and found the mother asleep in a bedroom. The children were unsupervised on the balcony with the door locked from the inside.

z) The photographs of the mother's apartment on July 17, 2012 provided a visual representation of the state of her living space. A number of safety hazards were identified. A bottle of detergent was left sitting on the floor. Cords and wires and a screwdriver were all within easy reach of her small children. Shopping carts were left next to the railing on her balcony, among other hazards. The police attending at the apartment described the condition of the apartment as horrific.

aa) The mother admitted the following at the trial about this incident:

i) She had initially lied to the society about this incident, as she had denied being asleep. She said that she had taken prescription medication for depression and fell asleep. She agreed that she did not tell the truth because she felt that, if she had admitted to falling asleep while caring for the children, this would have reflected badly on her being able to care for the children.

ii) The balcony was dangerous and something to be concerned about, from the perspective of the children's safety. She recognized that the children could have fallen off and she would never have seen them again.

iii) She did not install the lock on the balcony door and should have done this.

bb) Justice Jones made the following comments about this incident:

i) The lax attitude of the mother and her inaction in relation to the peril presented by the 19th floor balcony, was even more concerning, given the earlier incident on July 11, 2009, when her two younger brothers, who were under her care, were out on her 9th floor balcony, partially hanging over the railing. Even the earlier involvement of the police did not register with the mother the seriousness of the balcony danger. One would have expected that the mother's awareness of the risk would have been heightened by the 2009 balcony incident.

ii) Three years later, after she had moved another ten floors higher, the mother did not take preventative measures to ensure that her children would not be in a situation of peril, in relation to her 19th floor balcony.

iii) The fact that the mother was not more alive to the risk posed to the children by the balcony leaves the court to question the mother's ability to learn from past mistakes or experiences, and her ability to generalize her learning from one situation to a similar situation.

[46] Referencing the incidents set out in paragraph 45 above, Justice Jones found that:

a) The mother failed to show good judgment and was not making good decisions in relation to her parenting.

b) The mother does not foresee obvious safety concerns or situations of risk to her children, which are quite apparent to others. When a safety concern arises, she does not react quickly enough to the circumstances.

c) Even when alerted to a situation of risk to her children, the mother is unable to appreciate the gravity of the risk, and she is unable to take ordinary precautions or implement appropriate safety measures to protect her children.

d) The mother had been unable to maintain a clean, safe environment for her children and this had been a long-standing issue for her, giving rise to concerns for potential neglect of the children.

e) Young children need an alert, attentive, aware caregiver with good judgment, who is able to identify and respond to child safety hazards and who is able to provide appropriate supervision, in order to reduce risk. This is a skill set with which the mother struggles.

f) The risks of returning any child to the mother are unacceptably high and would be tempting fate.

[47] Justice Jones accepted the evidence of Dr. Betty Kershner, a psychologist, who had conducted a psychological assessment of the mother in early 2012. Justice Jones wrote at paragraph 406 of her decision:

Dr. Kershner testified that the mother has a tendency to "zone-out" or to "blank out" as a coping mechanism. Her depressive traits are a factor contributing to her slow rate of processing her thoughts. Dr. Kershner concluded that the mother cannot move fast enough, either physically or mentally, when circumstances require immediate action. She cannot be expected to react quickly to her children or to circumstances in which a swift response is required. These observations were confirmed by the evidence.

[48] Justice Jones made findings that:

a) The mother showed strengths in her commitment to attending the access and in being open to direction from workers. As well, the mother demonstrated affection towards the children on a number of visits.

b) Despite support, the mother was slow to integrate the parenting strategies communicated to her. She was not able to demonstrate consistent use of effective techniques, nor was she able to demonstrate consistent improvement in terms of her interaction with the children. She struggled with multi-tasking. At the time of the trial, the mother was still requiring prompts and intervention from an access supervisor, in her management of the children, even in a monitored environment.

c) The mother had a lack of positive supports.

d) The mother lacked insight into her parenting deficits.

e) The mother did not follow through with a number of referrals made by the society. Justice Jones wrote at paragraph 424 of her decision:

…..She did not attend individual counselling, although this was identified as an area of need in the spring of 2012, following the assessment of Dr. Kershner. Such counselling was proposed to enable the mother to address her depressive tendencies, and other personal issues. Sadly, the mother had inadequate parenting herself, and was victimized during her childhood and young adult years. Dr. Kershner clearly identified that the mother's depressive tendencies are likely rooted in her experiences of past trauma, and not simply the fact that her children are not in her care. These issues affect her cognitive processing, her ability to react, her tendency to ignore, avoid or be inattentive and ultimately, her judgment.

[49] Justice Jones found that the mother was not open and honest with the society. She made several findings of fact in support of this conclusion, including:

a) There were numerous occasions where she was not truthful to the society, the other parties or the court. The mother actively misled the society, by providing a false name for S.'s father, and by claiming to have no idea of his address or contact details, when this information was known to her.

b) The mother, in a custody and child support case had failed to advise S.'s father or the court that the children were in the care of the society. She obtained a child support order. She did this both on December 6, 2007 and on June 28, 2011. She paid none of that support to the society.

c) When the older children were taken back into care on July 17, 2012, following the second balcony incident, the mother was untruthful to the society about the circumstances pertaining to the incident. She claimed that the children had not been on the balcony and that nothing had been thrown off the balcony. She claimed that she had not fallen asleep. These statements were false. She chose to mislead the society as to these facts, believing that her version would cast her in a better light.

[50] Justice Jones wrote that in order to have an effective working relationship with the society, any proposed caregiver must be honest and forthright with the agency. She found that the mother's lack of honesty with the society was an obstacle to any arrangement for the children's care that relies upon open communication between the society and the mother for the children's safety and well-being.

[51] Justice Jones concluded in paragraph 394:

The evidence demonstrates that over the course of the society's involvement with the mother, very little has changed or improved in relation to the factors which give rise to a risk of harm to her children. The protection concerns that were identified at the outset of this case, in relation to the mother's care of the children, have continued to persist. While the mother loves the children, over the period that this case has been pending, she has not taken effective steps to address the risk factors. One of the most significant concerns arises from the mother's poor judgment and lax supervision, resulting in safety concerns for the children.

3.4 Finding Analysis

[52] Justice Jones found that there was overwhelming evidence that the older children continued to be in need of protection. She found that the risks of returning even one child to the mother were too high.

[53] The evidence set out above certainly supports that conclusion.

[54] It follows that if the risks of returning even one child to the mother were too high in February of 2015, the risk of placing a vulnerable infant in her care just four months later was also too high. The mother did not take any steps to reduce the risks identified by Justice Jones during this period.

[55] Events during and subsequent to the first trial and prior to the apprehension of the child only reinforced the findings of Justice Jones. In particular:

a) The mother admitted that she failed to notify the society or Justice Jones that she was pregnant during the first trial. She knew that this was critical information, as she was putting forward alternate plans that she was capable of caring for two children, or in the alternative, just one child

b) The mother did not inform the society or Justice Jones at the first trial that she was involved in another relationship. This was critical information to assess her plan.

c) The mother did not inform the society or Justice Jones at the first trial that she was involved in a physically abusive relationship. This was critical information as it affected the physical and emotional safety of the older children. By asking the court to place the older children in such an environment, the mother was placing the older children at risk and putting her own needs ahead of her children's. The mother conceded at the trial before me that this was poor judgment.

d) The mother did not inform the court or Justice Jones of these important facts because she was afraid it would adversely affect her case.

e) The mother did not advise the society that she was pregnant until just a few weeks before the child's birth. This gave the society very little time to work with the mother to prepare for the child's birth.

f) The mother's actions only reinforced Justice Jones' conclusions that she was not open and honest, showed poor judgment and placed her own interests ahead of the children.

g) The mother had taken no steps to obtain intensive counseling to address her childhood trauma as strongly recommended by Dr. Kershner. From the date of the first trial until the date of the child's apprehension, the mother did not obtain any counseling.

[56] The child was clearly in need of protection pursuant to clause 37(2)(b) of the Act at the time of his apprehension. It is unnecessary to rely on facts that occurred subsequent to his apprehension to support this finding. It is surprising that the mother chose to contest this issue when it should have been evident to her that this would be the result.

Part Four – Disposition

4.1 Legal Considerations

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

Order where child in need of protection

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

Supervision order

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

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

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

[58] The 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.)

[59] Subsection 57(2) of the Act requires that the court 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.

[60] Subsection 57(3) of the Act requires that the court 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 it determines 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.

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

[62] In determining the appropriate disposition, the court must decide what order is in the child's best interests. The court has 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.

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

[64] In determining the best interests of the child, the court 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..

4.2 Services Provided

[65] The following services have been provided to assist the mother and the child by the society:

a) It provided the mother with a Family Service Worker.

b) It provided the mother with Family Support Workers who provided her with intensive parenting assistance.

c) It arranged Plan of Care meetings to share information about the child. The mother attended these meetings.

d) The society made referrals for the mother to obtain counseling.

e) The society's Family Service Worker tried to obtain intensive counseling for the mother at CAMH. She even met with the mother's family doctor to facilitate this referral. CAMH did not accept the mother because there are ongoing court proceedings.

f) It provided the child with a Children's Service Worker.

[66] The services provided above were in addition to the many hours of intensive parenting instruction the mother had received through TAP for the older children. The society fulfilled its obligation to provide services for the family and the child pursuant to both subsection 57(2) and clause 15(3)(c) of the Act.

4.3 Community or Family Plans

[67] The grandmother provided an alternate plan for the child. It will be reviewed below.

[68] No other community or family plans were presented to the society or the court.

4.4 The Child

[69] The witnesses consistently described the child as happy, friendly and healthy. He enjoys playing and singing.

[70] The witnesses described the child as rarely upset and easy to manage.

[71] There was some initial concern that the child was behind in his gross and fine motor skills. However, by the time of this trial the child was meeting his developmental milestones.

4.5 The Plans of Care

4.5.1 The Society's Plan

[72] The society's plan is to place the child for adoption.

[73] The adoption worker testified that the child is highly adoptable and provided sufficient evidence to support that claim. The society asks that the court not make an access order in order to facilitate the child's ability to be adopted.

4.5.2 The Mother's Plan

[74] The mother's primary plan is to care for the child on her own. She would receive assistance from the grandmother and her sister. Her second choice is to have the child placed jointly with her and the grandmother and they would live together. Her third choice is to have the child placed with the grandmother and have as much access as possible.

[75] The theory of the mother's case was that she is far more capable now of parenting a child than she was at the time of the first trial. She provided the following evidence in support of this theory:

a) She had been in a series of abusive relationships with partners, including during the first trial. She has actively engaged in domestic violence counseling, learned how to become more assertive and identify the warning signs of an abusive partner. She said that she has not been in an abusive relationship since leaving the child's father in April of 2014.

b) She had been overwhelmed trying to care for three children, work and attend at school in 2012. This led to the second balcony incident. The mother is no longer working or going to school as she is eligible for the Ontario Disability Support Program (ODSP). She said that the prior stressors have been eliminated.

c) The mother says that she took Dr. Kershner's report seriously and used it to obtain ODSP and see a psychiatrist for her depression.

d) The mother says that she has been proactive in obtaining services. She has attended parenting programs and individual and group counseling. She said that she has learned from these programs and she is a much stronger person and better parent.

e) The mother called both counselors who have worked with her. They have provided supportive counseling for her and concentrated mainly on her domestic violence and relationship issues. The counselors were both very positive about their involvement with the mother. They testified that the she was motivated to learn, receptive to their advice, committed to the process, gave constructive feedback and was able to gain insights. They both felt that she has developed more assertiveness and takes more initiative. They both commented that the mother was very committed to the child and highly motivated to parent him.

f) The mother remains involved with the second counselor at Tropicana Community Services. This is culturally appropriate counseling. She sees this counselor for individual counseling once every three weeks.

g) The mother said that she has been cooperative with the society and receptive to their feedback.

h) The mother said that her ability to understand child development and to read a child's cues has improved.

i) The mother said that she has been able to demonstrate that she can keep the child safe in a variety of situations.

j) The mother said that her relationship with the grandmother has improved and is now very strong. She said that she has also made peace with her father.

k) The mother testified that she now takes responsibility for her poor judgment. She repeatedly acknowledged during the trial that she had exercised poor judgment. Her acknowledgements of poor judgment included:

i) Exposing her children to abusive relationships.

ii) Not properly supervising her nephews during the 2008 incident when they ran into traffic.

iii) Not properly supervising children in both balcony incidents.

iv) Lying to the police and the society about not being asleep during the second balcony incident.

v) Leaving her children with the grandmother without enough car seats in the children left alone in the cold car incident.

vi) Not adequately supervising S. in the Yonge Street incident.

vii) Not disclosing that she was pregnant or in an abusive relationship to the society or the court during the first trial.

viii) Lying about the identity of S.'s father to the society.

ix) Not advising the family court on two occasions that her children were in the care of the society, while obtaining orders for child support.

[76] The mother testified that she has adequate accommodation for the child. She says that she has kept it clean and free of hazards. She says that she has obtained all necessary equipment to have the child home, including a crib.

[77] The mother said that she will stay at home and be a full-time parent. She plans to have the child in daycare during the days. She also plans to take the child to the Ontario Early Years Centre. She said that she can use the grandmother and her sister for parenting relief. She said that she might also pay an outside agency to assist her on occasion. She said that she can afford to pay between $200 and $400 per month for this service.

[78] The mother said that she will support herself and the child with her ODSP benefits. She said that the grandmother can also provide her with financial assistance.

[79] The mother said that she will take the child to her current family doctor.

[80] The mother said that she will continue with her counseling at Tropicana and will try to find services through the Aisling Discoveries program. The mother said that she is also receptive to re-engaging with the Home Visitor program.

[81] The mother says that she will be careful before entering into another relationship.

4.5.3 Positive Aspects of the Mother's Plan

[82] I make the following positive findings about the mother's plan of care:

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

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

c) The child would have the cultural advantages of being raised in his own culture.

d) The child would have the opportunity of being raised in his religious faith.

e) The mother loves the child very much. She sincerely wishes to be able to raise him. All society workers testified that the mother tries to the best of her ability.

f) The child enjoys his visits with the mother. The mother shows him great love and affection. She sings to him, hugs and praises him. The child is affectionate with her. The mother is able to comfort the child if he is upset. Society workers testified that the child has developed a bond with her.

g) The mother ensures that the child is clean, well fed, changed and in proper clothing at all times during the visits.

h) The mother's access is generally positive. The mother has shown some improvement in her ability to engage with the child in recent months.

i) The mother has made some gains in her parenting ability, such as reading the child's cues.

j) The mother has been able to provide a structure (going to the Ontario Early Years Centre) for the unsupervised portion of her visits.

k) The mother has shown some improvement in her time management (coming on time for visits and appointments has been an ongoing issue).

l) The mother has shown some ability to learn parenting skills, albeit with constant repetition.

m) The mother was able to demonstrate parenting insights in a recent homework assignment given to her by a society worker (Exhibit # 9 at the trial).

n) The mother has been proactive in seeking assistance since the child was apprehended. On her own initiative (or with the help of the grandmother), she has obtained parenting assistance through the Making the Connection and Home Visitor programs. She has obtained individual and group counseling. She presently is engaged in counseling at Tropicana.

o) The court was very impressed with the mother's current counselor from Tropicana. She presented as warm, caring, knowledgeable and supportive of the mother.

p) The mother is very likeable. While this is not a personality contest, the reality is that service providers are likely to be more effective with someone who is easier to like. Likeability is also a positive trait for the child to be exposed to.

q) The child's foster mother will not be putting forward a plan to adopt the child. It would likely be easier for the child, in the short term, to transition to the mother's home than to the home of a stranger.

4.5.4 Limitations of the Mother's Plan

[83] 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 the care of the mother for the reasons that will be set out below.

4.5.4.1 - Honesty, Insight and Judgment

[84] The mother was not a reliable or credible witness. There are several examples where she has been dishonest with the court or the society. At trial, her memory about important events was very poor. Her evidence was often contradictory or inconsistent. She continued to minimize her responsibility for bad decisions and deflect blame. The mother has historically lied to courts and the society to try to obtain the result she wants. The court did not rely on her evidence unless it was independently corroborated. It preferred the evidence of society workers where it conflicted with the mother's. Examples of the mother's lack of honesty, insight and judgment are:

a) The mother did not advise the society or Justice Jones at the first trial that she was pregnant or in an abusive relationship. While she admitted this was bad judgment in her evidence, she also cast blame on the society for not recognizing that she was pregnant at visits.

b) At this trial, the mother claimed that no evidence had ever been produced that S.'s injuries in 2007 were anything other than accidental. However, the mother had signed a Statement of Agreed Facts in a prior proceeding regarding S., where she acknowledged that the Hospital for Sick Children had reported S.'s injuries as being non-accidental. The mother tried to rationalize this inconsistency, stating that a line had been missed in the Statement of Agreed Facts that the injuries were accidental. This was unlikely.

c) The mother could not remember the 2008 incident where the police were called because her brothers were running unsupervised in traffic. She conflated this with the first balcony incident.

d) The mother continued to minimize her lack of judgment and parenting deficiencies in her affidavit sworn on June 24, 2014. This affidavit was prepared in support of a temporary care and custody hearing.

e) The mother provided a new explanation for the second balcony incident during this trial. She claimed that she fell asleep because she was overwhelmed from all of her obligations. She never mentioned this up to and including her first trial, where she testified that she fell asleep due to her depression medication. The mother admitted that she had initially lied to the society about this incident, claiming to be awake.

f) The mother continued to minimize the condition of her apartment in the second balcony incident.

g) The mother continued to struggle to understand possible solutions to preventing her children from going out on the balcony during the second balcony incident. She made excuses about why she did not secure the balcony, when it was apparent that she could have just pushed solid furniture in the apartment up against the balcony door to secure it.

h) The mother admitted that she did not advise the family court, in both 2007 and 2011, that S. was not in her care. She obtained court orders and collected child support. The mother minimized this behaviour by claiming that she used the child support to buy things for her children. The mother provided no evidence of this.

i) The mother continued to minimize her responsibility with respect to the children left alone in the cold car incident. The mother feels that her error was not providing enough car seats. Justice Jones set out multiple protection concerns about the mother, including her failing to make adequate arrangements for the care of the children, the poor condition of the children, her failing to make adequate arrangements for the return of the children and failing, in a timely manner, to ensure that the children were being adequately managed by the grandmother. Further, the mother's counselor testified that the mother had told her that the older children came into care at this time because of the grandmother's mistake. The mother did not take personal responsibility for her actions.

j) The mother claimed at this trial that she was right behind S. in the Yonge Street incident. She denied that the child crossed Yonge Street, but acknowledged S. crossed another busy street. On cross-examination, the mother agreed with the finding of Justice Jones that she followed somewhere between 1-5 minutes behind S., who was four years old at the time.

k) The mother does not appear to understand the impact her past parenting issues could have on her present parenting of the child. She has told workers that her past problems have nothing to do with the child.

l) The mother appears to lack any insight into the grandmother's parenting deficits. These deficits are profound and will be reviewed later. The mother views her as a great support. A protective parent would avail herself of us much information as possible to assess if a caregiver is appropriate. The mother has not done this. She testified that she couldn't remember discussing the children left alone in the cold car incident with the grandmother. She never spoke to the grandmother's child protection worker about any protection concerns that might impact the child. She is aware that the grandmother had a negative Parenting Capacity Assessment in her own child protection case, but never asked to see it. The mother is demonstrating poor judgment again in making the grandmother a central person in her plan.

m) At one of her first unsupervised visits (in July of 2015), the child bumped his head when he fell at the park. The mother had difficulty explaining what happened, giving different explanations to society workers. The society was very concerned that the mother was very focused on the society signing a piece of paper agreeing to her version of events.

n) The mother knowingly breached the supervision order of Justice Spence, which led to the apprehension of the child on October 24, 2014. When asked if she had breached the order on any other occasion, the mother hesitated and said, "I don't think so". After listening to the evidence of the mother and the grandmother, the court is pretty sure that they breached the terms of the supervision order more than the one time.

o) The mother has stated to many witnesses that she does not agree with Dr. Kirshner's report. She tells them that she does not see the need for intensive long-term therapy as recommended by Dr. Kirshner. She has chosen not to share this report with her counselors. This report sets out significant issues with respect to the mother's relationship with the grandmother which require appropriate therapy. The mother disagrees and feels that she has resolved these issues.

p) The mother claimed that she could not afford the private counseling suggested by Dr. Kirshner (the evidence about these counseling recommendations will be reviewed in more detail below). This was contradicted when (in a separate line of questioning) it was learned that the mother received a personal injury settlement of $18,000 in 2014. Further, the grandmother testified that she is able to save between $1,800 and $2,000 each month.

[85] The mother's lack of honesty creates a major barrier to returning a child to her. The court has no confidence that the mother would advise the court or society if she was involved in another relationship or if that relationship was abusive. It has no confidence that the mother would report any protection concerns or incidents affecting the child to the society. The court also has no confidence that the mother would consistently comply with the terms of a supervision order. Her history, including her recent history, informs the court that that this is unlikely. This creates an unacceptably high risk for the child.

[86] The mother's lack of insight and minimization of the parenting concerns likely places a ceiling on the improvements that she can make. It makes her far more likely to repeat her episodes of poor judgment and parenting, as she has done in the past when she has minimized risk concerns.

[87] The evidence shows a history of exceptionally poor parenting judgment by the mother. She is fortunate that a tragedy did not befall a child.

4.5.4.2 - The Mother's Ability to Keep the Child Safe

[88] A major protection concern about the mother has been her inability to recognize safety hazards or dangerous situations and keep children in her care safe. Examples of this are:

a) In 2008, when she let her brothers run into traffic.

b) In 2009, when she left her brothers unsupervised climbing on the railing of the 9th floor balcony.

c) In 2011, when she left the older children with inadequate car seats and clothing with the grandmother.

d) In October of 2011, when she lost S. in the subway station and let her run across a major street to the society office.

e) In June of 2012, when the older children were left with an inappropriate caregiver, the day after J-1 and J-2 were returned to her.

f) In July of 2012, when she left her children unsupervised on a hazardous 19th floor balcony during the second balcony incident.

g) She has exposed at least S. to an abusive relationship.

[89] The society workers testified that the mother continues to struggle with consistently recognizing and reacting to safety hazards for the child. They say that the mother has to be continually reminded about these hazards before she can learn this information. She will then have difficulty transferring this knowledge to new situations. Examples of these problems are:

a) The mother has to be continually reminded to check the temperature of food she is feeding the child.

b) The mother has to be continually reminded to lock the child's stroller. The mother has argued that it is safe enough to prop the stroller up against a wall.

c) The mother had to be repeatedly reminded to apply sunscreen for the child. She felt that a hat would be sufficient.

d) The mother has to be reminded to first check that objects are not hot before placing the child on them. This happened this summer when the mother was about to place the child on a hot marble statue at the park and the society worker intervened. A society worker testified that the mother was upset after this incident, as the mother had an expectation that the supervising workers should be identifying all possible safety hazards for her when she goes out into the community with the child.

e) The mother has to be reminded to hold the child's hand when in the community so that he doesn't run off.

f) The mother had to be instructed not to change the child on her lap as he was rolling and wriggling and could have fallen. After several reminders at visits, the mother finally stopped doing this.

g) When discussing the balcony incidents with a society worker, the mother told her that it was no longer a safety issue because she was on the ground floor. She did not appear to understand that the main safety hazard was her lack of supervision of the children.

h) The mother continues to struggle with multi-tasking. She will ask society workers to look after the child while she is getting food ready for the child. She has to be constantly reminded to keep an eye on the child when she is involved in other tasks.

[90] The multiple society workers who testified had variable levels of generosity when describing the mother's parenting. The most generous worker was Amy Studholme. Ms. Studholme was the Family Support Worker for the mother and supervised 30 of her visits up until July of 2015. Many of the positives of the mother described above came from Ms. Studholme. The mother was very fortunate to have the assistance of Ms. Studholme. She is calm, professional, warm and empathic. She demonstrated the best knowledge of the mother. For these reasons, the court gave her evidence considerable weight.

[91] Despite her obvious affection and praise for the mother, Ms. Studholme had considerable reservations about the mother having unsupervised access to the child. She testified that the mother was not always aware of safety risks – she was not aware of her surroundings and potential risk factors. Ms. Studholme felt that the mother was able to parent well in a familiar and structured setting, but struggled when the setting and structure changed. Ms. Studholme felt that she needed to stay in close proximity to the mother and the child at visits to ensure the child's safety. She does not have confidence in the mother's ability to recognize and react to safety issues, despite the intensive parenting instruction that the mother has received over several years.

[92] Ms. Studholme felt that the mother would never intentionally hurt the child, but the child was at risk of being inadvertently harmed due to the mother's lack of attention. The court takes her concern seriously.

[93] The court is mindful that the mother has made some gains in the area of child safety. However, the mother had also made gains in this area in 2012 after intensive parenting instruction at TAP. The gains quickly regressed once the children were returned to her.

[94] The court fully agrees with Justice Jones when she wrote at paragraph 405 of her decision:

It is simply not possible to modify a child's environment in every aspect to eliminate risk. While an apartment without a balcony may exclude this particular danger, other types of risk will inevitably arise in any living space. Young children need an alert, attentive, aware caregiver with good judgment, who is able to identify and respond to child safety hazards and who is able to provide appropriate supervision, in order to reduce risk. This is a skill set with which the mother struggles.

[95] This court has to answer a fundamental question in this case. Will the mother be able to keep the child consistently safe if he is returned to her care? Sadly, the court has to answer that question, no. The risks of returning the child to the mother are much too high.

4.5.4.3 - Other Parenting Concerns of Mother

[96] The evidence set out other parenting concerns about the mother. Society workers testified and this court finds that:

a) The mother has struggled to learn parenting techniques and has to be constantly reminded about them.

b) The mother still needs support by society workers to structure her visits and play with the child.

c) The mother has spent too much time focusing on the child's hygiene, as opposed to playing with him on visits (although there has been some recent improvement).

d) The mother has difficulty consistently coming to visits on time. This means that she is rushed at the outset of these visits, as she has to set up the room and look after the child. This results in some disorganization on these visits. The mother also has to be reminded to allow enough time to get the child prepared to leave at the end of visits. There has been some recent improvement in this area.

e) The mother doesn't consistently respond to the child's cues (again, the mother has improved in this area). For instance, the child will be content doing an activity and the mother will start doing something else. At times, it was observed by society workers that she will put her own needs first. She will say that the child is tired (when he isn't) when it is she who is tired.

[97] The court finds the following deficits in the mother's plan of care:

a) The mother says that she will have the child attend daycare. However, she has taken no steps to ascertain waiting lists for daycares or to determine the procedure to obtain subsidized daycare.

b) There are some concerns about the mother's ability to budget. She said that she received $18,000 in a personal injury settlement in 2014, but that only $1,000 is left. This line of inquiry arose when the mother testified that she would spend $200 to $400 per month for private parenting relief. Her budget was explored. She only receives $1,100 per month from ODSP benefits and her rent is $1,300 per month. Even considering that she will receive more benefits with the child in her care, it is hard to see how she can afford private caregivers.

c) The court is very concerned about the significant role proposed for the grandmother in the mother's plan. The grandmother lives in a building attached to the mother's. She testified that they either see one another or speak daily. The court does not view the grandmother as a positive support. To the contrary, the grandmother has often had a destructive influence on the mother. The mother and the grandmother have a very troubling history. For instance:

i) The mother was twice, as a young child, placed in the care of child protection agencies in Florida.

ii) The grandmother acknowledged that she sent the mother, when she was about 5 years old, to live with a friend in Toronto because of the mother's behavioural problems. The grandmother lived in Texas at that time. The grandmother acknowledged that the friend called the society stating that she could no longer care for the child.

iii) The grandmother was charged in Ontario of assaulting the mother with a weapon when the mother was 13 years old. Justice Jones found that the grandmother repeatedly beat the mother with an electrical power bar. The grandmother continued to blame the mother for this incident at the trial.

iv) The mother had little contact with the grandmother for three years after this incident and became a crown ward.

v) The mother's children were apprehended from the grandmother in February of 2011, in the children left alone in the cold car incident. Justice Jones found that there had been very poor communication between the mother and the grandmother, as the mother left the older children with the grandmother in a rushed and disorganized manner and did not follow up to check on their welfare. This poor communication led to the apprehension of the older children and the grandmother's children.

vi) The mother and grandmother participated together in the breach of the supervision order of Justice Spence, resulting in the apprehension of the child on October 24, 2014.

vii) The mother and grandmother have not engaged in any treatment to deal with their issues since the mother was a teenager. They both feel that they have resolved their issues. The court has little confidence in the accuracy of this evidence.

d) Aside from the grandmother, the mother did not produce any other friend or family member who could assist her with her plan. The mother needed to be able to present a plan where she could parent the child jointly with a responsible adult to have had a realistic opportunity to be successful in this case. The grandmother is not that person. The involvement of the counselor from Tropicana is a positive consideration, but she is only available for counseling once every three weeks. The mother requires much more intensive support.

e) The mother has appealed the order of Justice Jones asking that the older children be placed in the care of the grandmother. However, at this trial, she seemed confused about what she was seeking in her appeal. She thought that she had asked for the older children to be placed either in her care or the grandmother's. She had no real plan about how she would care for her four children if she was successful on both the appeal and in this case.

4.5.4.4 - The Psychological Assessment and Evidence of Dr. Kirshner

[98] The psychological report of Dr. Betty Kirshner, dated April 9, 2012, provides some insight into why the mother struggles with her judgment, insight and parenting. The society filed an addendum to this report by Dr. Kirshner, dated October 9, 2015. Dr. Kirshner also testified at this trial.

[99] Justice Jones in her decision reviewed this report in detail and relied on it in reaching her decision. The court will limit its review of Dr. Kirshner's evidence to the key components of the report and to her testimony in this case.

[100] The court is mindful that assessments should be treated with caution. As this court wrote in paragraph 78 of Jewish Family and Child Service of Toronto and R.K., 2008 ONCJ 774:

Courts should always treat assessments with caution. The assessor does not have the benefit of the full evidentiary record that a trial judge has. Their reports, by their very nature, are predictive. They are just one piece of evidence and what is important for the court is to evaluate how the findings do or do not correspond with the evidence at trial.

[101] In this matter, Dr. Kirshner's report has the following limitations:

a) Her initial report is over three years old.

b) Dr. Kirshner did not have the benefit at this trial of knowing how the mother has functioned for the past three years and her current status.

c) Dr. Kirshner did not interview the grandmother.

d) Dr. Kirshner only received background information from the society.

e) Dr. Kirshner only interviewed the mother one time.

f) This was not a parenting capacity assessment. It was a psychological assessment. Dr. Kershner did not observe the mother with any children. She could only testify about how the mother's psychological characteristics would likely affect her general parenting. She could not comment on the mother's specific parenting of children.

[102] Dr. Kirshner was qualified as an expert in clinical psychology, psychological assessments and parenting capacity assessments at this trial.

[103] Dr. Kirshner conducted cognitive and personality tests on the mother. She looked to see how these tests fit together with her observations of the mother. Her evidence was that:

a) The "big issues" with the mother are her lack of awareness, slow rate of thinking, lack of availability and lack of vigilance to safety issues.

b) The mother tested at the 13th percentile for cognitive functioning. This is the low-average for the general population. The mother's processing speed, at only the 4th percentile, was lower than expected and was indicative of depressive feelings.

c) The cognitive testing showed that the mother has slow reactions. She has a tendency to withdraw into herself, feel frightened and confused and minimize what is going on.

d) All of the testing of the mother showed evidence of depression, with poor self-esteem and generalized confusion. Her depressive traits are a factor contributing to her slow rate of processing her thoughts.

e) On her personality testing the mother had a strong tendency to ignore, avoid, distract herself and not pay attention. As a result, she can be expected to have great difficulty paying attention to two things at a time. Her ability to multi-task is weak. She will be slow to react, even when a quick reaction is required and she may not know how to deal with a situation that is unfolding in front of her.

f) The mother is very vulnerable to not seeing what is going on and misinterpreting danger. She is unlikely to fail to notice or grasp that certain parenting situations require her intervention. Dr. Kirshner gave as an example the danger of the children climbing on the balcony railing. She said that what the mother took away from the incident was that people didn't believe her. She did not learn to be more vigilant.

g) The psychological testing showed that the mother had a low capacity to learn. She has limited comprehension and judgment.

h) The mother's failure to ask her grandmother questions about the children left alone in the cold car incident was problematic. An insightful mother would want to know these details to protect her child – to determine if it would be safe to leave the child with the grandmother.

i) The mother was cooperative and listened to feedback, but would not accept it.

j) The mother has a very low ability to generalize information and transfer it to other situations.

k) Cognitive functioning is unlikely to change with time. Dr. Kirshner said that there could be some improvement in the mother's functioning and ability to react more quickly if her depression lifted.

l) The mother suffered significant trauma as a child. She experienced considerable turmoil in her relations with her parents and was sexually abused twice when she was a teenager.

m) The mother has a limited ability to think critically about the parenting she received from her mother. The mother may face triggers as the child grows up through developmental stages that reflect what she experienced with her mother. The mother has unconsciously internalized at least some of the grandmother's behaviour and lacks the understanding that would allow her to decide what of it she wants or does not want to incorporate into her own parenting.

n) The mother's personality characteristics would not likely change unless the mother had a strong partner relationship and participated in long-term (about 3 years), weekly intensive therapy by a qualified professional that confronted her behaviour.

o) The counseling that the mother has received is entirely insufficient to address her issues as it is only supportive counseling – it is limited to working on her self-esteem and coping issues.

p) Parents with low cognition or depression are capable of parenting children. It is the combination of the mother's low cognition, depression and personality characteristics that impair her functioning.

q) Motivation and insight are important for long-term therapy to be successful. Unfortunately, the mother does not see the need for this and is a poor candidate to change.

r) She did not believe that a parenting capacity assessment was necessary.

[104] The second balcony incident occurred just 3 months after Dr. Kirshner's 2012 report was released.

[105] Justice Jones incorporated Dr. Kirshner's observations into her decision. The court finds, based on its review of the evidence set out above, that Dr. Kirshner's observations generally fit well with the evidence and continue to have merit.

4.5.4.5 - Steps Taken by the Mother as a Result of Dr. Kirshner's Assessment

[106] The mother has taken some steps as a result of Dr. Kirshner's assessment. She consulted with a psychiatrist and obtained anti-depressants. She testified that she went off this medication when she was pregnant and that she no longer uses or needs it. The mother was able to obtain ODSP benefits as a result of her depression.

[107] The mother acknowledged that she has suffered from depression since she was a teenager.

[108] The mother provided no medical evidence about the current state of her depression. She is still on ODSP because of this disability. It would have been helpful to have such evidence to assess if there has been or can be any improvement in her condition. It would have been helpful to know if there were treatment options available to the mother.

[109] The mother has not had a stable partner relationship since Dr. Kirshner's report was released. To the contrary, she was involved in another abusive relationship.

[110] The mother claimed that her relationship with the grandmother is a stable partner relationship. The evidence (as reviewed in subparagraph 97(c) above) indicates otherwise.

[111] The mother has not obtained the intensive therapy that Dr. Kirshner states is critical for her to make meaningful gains. The mother needs to address her childhood trauma and develop insight into how the grandmother's parenting of her has adversely impacted her own parenting.

[112] The mother has been very resistant to engaging in this form of counseling. She has told many workers and her counselors that she has spoken to the grandmother and her father about her childhood and they have moved on. She does not believe that this form of counseling is necessary.

[113] The mother has consistently stated that she believes that Dr. Kirshner's report is wrong.

[114] The mother acknowledged that she has been consistently told by society workers that the society's expectation is that she must positively engage in the form of counseling recommended by Dr. Kirshner before they can support increasing access or moving towards placing the child in her care. The mother testified that she has understood this expectation.

[115] The mother finally indicated to the society that she was willing to attend for the intensive counseling recommended by Dr. Kirshner in May of 2014, even though she felt it wasn't required.

[116] Unfortunately, much time was lost trying to get the mother into the intensive therapy program at CAMH. The society and the mother received confusing communication from CAMH as to whether or not the mother could get into their program. The mother cannot be blamed for this program not working out.

[117] However, the evidence indicates that the mother did not actively seek such counseling on her own. In particular:

a) The mother's first counselor asked her on several occasions what issues she would like to work on. The mother could have asked to deal with the issues suggested by Dr. Kirshner. Instead, she chose to concentrate on communication issues with partners and friends.

b) The mother rejected the suggestion of the society worker to have a three-way meeting, with the worker, mother and counselor to discuss the form of counseling that the society was asking her to obtain.

c) The mother did not share Dr. Kirshner's report with either of her counselors. She told her first counselor that her depression was due to her children being in the society's care. However, if the counselor had had the benefit of Dr. Kirshner's report, she would have become aware that the mother's depression is long-standing and serious.

d) The mother did not explore privately obtaining this counseling. She had the means to do so, having received $18,000 in 2014. Further, the grandmother testified that she could have financially assisted the mother, but the mother only asked her for financial help (and only then to pay for a second psychological assessment) in October of 2015.

[118] The court finds that the mother has not obtained the therapy required to make the necessary gains to consistently parent the child safely. She had the opportunity to obtain this therapy, but chose not to engage in it, because she minimized the concerns set out in Dr. Kirshner's report – she did not agree with it.

4.5.5 Subsection 70(4) of the Act

[119] Subsection 70(1) of the Act states that the court shall not make an order for society wardship for a child under 6 years of age if it results in the child being a society ward in excess of 12 months. Subsection 70(4) of the Act provides that this period may, in the court's discretion, be extended by a period "not to exceed six months if it is in the child's best interest to do so".

[120] As of this date, the child has been in care for close to 14 months, so the court, in its discretion, can still make a society wardship order.

[121] Notwithstanding this authority, the court finds that it is not in the child's best interests to make an order for society wardship. 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. Children's Aid Society of Toronto v. R.H..

[122] The parenting deficits of the mother described in this decision are deep-rooted and have been evidenced by her consistently poor parenting of children since 2007, despite having received significant parenting instruction. The mother has not engaged in the necessary therapy, developed sufficient insight into her parenting deficits or developed the necessary parenting skills to parent a child safely on an extended basis. She lacks an appropriate support system. Lastly, she cannot be trusted to work honestly with the society. After this length of time, these challenges are not going to be satisfactorily resolved in the near future. Based on the evidence presented, the court would not even be prepared to order overnight access at this time, let alone place the child with the mother.

4.5.6 The Grandmother's Plan

[123] The grandmother presented an alternate plan to parent the child. She is also prepared to parent the child jointly with the mother.

[124] The grandmother is 49 years old. She has four children, including the mother. Her other three children live at home with her. A. is a full-time student at York University. R. has been assessed as being a "high-functioning autistic child". He is in a special autistic program at school. T. has had behavioural problems and is in grade 6.

[125] The grandmother used to work as a nurse. She stated that she left nursing in 2008 and has not returned in order to concentrate on the needs of her children, particularly the special needs of R.

[126] The grandmother testified that her plan for the child is the same plan that successfully worked during the four months that the child was in her care in 2014. She would stay at home full-time with the child. She would receive parenting assistance from A. and the mother. The grandmother would obtain the support of the Public Health Nurse and the Home Visitor Program. She said that she would also explore obtaining respite services.

[127] The grandmother said that the child would attend daycare full-time on the weekdays. The grandmother or A. would exchange the child at the daycare. The grandmother has researched available daycares and has looked into obtaining subsidies. She plans to take the child to the Ontario Early Years Centre on weekends.

[128] The grandmother testified that the behavioural needs of R. and T. have significantly diminished and they are now easy children to manage.

[129] The grandmother expressed confidence that she could meet the needs of the child, her own children and the older children, in the event that the mother's appeal is successful and the older children are placed in her care.

[130] The grandmother testified that she can financially afford the needs of all of these children. She is in receipt of CPP benefits, as a result of receiving a bad blood transfusion, and receives Child Tax Benefits. She receives a number of subsidies due to R.'s disabilities. She says that she is presently able to save between $1,800 and $2,000 each month.

[131] The grandmother testified that she has appropriate accommodation and supplies for the child. She has a three-bedroom apartment.

[132] The grandmother said that she would take the child to her family doctor.

[133] The grandmother testified that she would like to involve the mother in the child's care, but would fully comply with any terms of a supervision order that might restrict the mother's contact.

4.5.7 Positives of the Grandmother's Plan

[134] The following are the positive factors in considering the grandmother's plan:

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

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

c) The child would have the cultural advantages of being raised in his own culture.

d) The child would have the opportunity of being raised in his religious faith.

e) No protection concerns were raised about the care of the child while in the grandmother's care for four months in 2014.

f) The grandmother cooperated with and made use of the Public Health Nurse and Home Visitor during this period. Both of these witnesses testified that the child was developing normally, seemed happy and well-cared for. They both said that the grandmother was open to teaching and was able to incorporate teaching into her parenting.

g) The Catholic Children's Aid Society of Toronto has closed their file with respect to the grandmother. The grandmother signed requested consents by the society to see this file.

h) The grandmother presented as intelligent, organized and a forceful advocate.

i) The society expressed no concern about the grandmother's ability to meet the instrumental needs of the children (food, clothing and hygiene).

j) The grandmother apologized for her breach of Justice Spence's order and said that there was no excuse for her behaviour.

4.5.8 Difficulties with the Grandmother's Plan

[135] The difficulties with the grandmother's plan far outweigh its benefits for the child. As with the mother, the court had to ask itself a fundamental question about the grandmother. Can it trust her to safely parent and protect the child and work openly and honestly with the society? The answer was no.

4.5.8.1 - Justice Jones' Findings at Trial

[136] The grandmother presented a similar alternate plan at the first trial with respect to the older children that was rejected by Justice Jones. Justice Jones made the following relevant findings with respect to the grandmother in paragraphs 453-462 of her Reasons for Judgment:

[453] The mother's alternate plan was that the children be placed in the care of the maternal grandmother, Ms. M.H., or that she be considered, either as a caregiver for the oldest child, or for the two youngest children. Evidence heard at trial confirms that there are protection concerns in relation to the maternal grandmother. As well, there are other factors that give rise to serious reservations with respect to any plan involving the maternal grandmother in a caregiving role to any of these three children. These concerns include the grandmother's own child protection history, the grandmother's poor judgment in relation to children in her care, and the limited relationship between the grandmother and the children.

[454] The court notes that the maternal grandmother was harsh and punitive, in many ways, in her parenting of the mother. The maternal grandmother blamed the mother for the problems in her life, including the breakdown of her relationships with other partners. When the mother was only thirteen years of age, she was seriously assaulted by the maternal grandmother, who hit her repeatedly with an electrical power bar, causing her injury. The grandmother's past failings, in dealing with the behavioural challenges of the mother, as a child, are serious concerns, particularly given the fact that both the oldest child, S.F. and the middle child, J-1., have been described as struggling with behavioural challenges.

[455] The issue of the grandmother's past parenting is a relevant consideration for the court. The grandmother has had recent involvement with child protection agencies. At the time of trial, the grandmother had an open child protection file with the Catholic Children's Aid Society of Toronto, in relation to her own children, T. and R. Knowing that police and child protection records would be necessary in order to evaluate her plan, the grandmother did not take steps to make this information available. Prior to trial, the grandmother did not provide the society with the necessary consents and authorizations, to enable the society to obtain information from these sources. No witnesses were called from these independent organizations. No records were voluntarily produced. The court was not provided with any independent evidence to suggest that the grandmother had adequately addressed the prior protection concerns that are known to the court. This is a very significant void, which makes it impossible for the court to consider and gauge the level of risk to any of the children, should they be placed in Ms. M.H.'s care.

[456] There is also evidence of the grandmother's poor decision making, in relation to children in her care. The three children were apprehended in February, 2011, from the maternal grandmother's care. The apprehension was due, in part, to the poor judgment of the grandmother at that time. On that occasion, the grandmother made a decision to drive the children in her vehicle without the necessary car seats, thereby placing them at risk. When she arrived at the school, she chose to take only her son, R., into the school and to leave the three young children, S.., J-1. and J-2., alone in the unheated vehicle, in the wintertime, for an extended period. The risk to the children, ages four, two and one year at the time, goes beyond their exposure to the cold in the car. Situations of potential harm may have arisen by various means while they were alone in the car. Significant safety concerns arise, whether the timeframe the children were left alone in the car was for ten to fifteen minutes, as the maternal grandmother suggests, or for over one hour, as the society states. Young children of their ages require constant supervision by a responsible adult for these reasons.

[457] The day prior to the apprehension, the grandmother made a poor decision to delay medical treatment for her son, T.M., after he was burned by boiling water. She did not alert the school to her son's injury, or check-in with the school during the day to find out about his condition.

[458] In July, 2012, the grandmother knew of the peril to the children, arising from the balcony door of the mother's 19th floor apartment. When she was unable to install the chain lock on the door, she chose to ignore the situation of risk to her grandchildren, leaving it to the mother to take the initiative. When nothing was done, she did not contact the society, to alert them to the danger, or take any other protective measures.

[459] The maternal grandmother has not taken active steps to maintain an ongoing relationship with the children, while they have been in society care. In the three years that the two youngest children have spent in society care, from February 9, 2011 to the time of trial, the grandmother rarely visited the children. This is similarly the case for the older child, during the time she has been in the society's care. The lack of contact has, no doubt, contributed to the waning of the relationship between the grandmother and the children.

[460] The evidence confirms that the maternal grandmother did not indicate an interest in planning for the children until September, 2013, and even then, she did not provide the society with her complete contact information or any written details of her plan. These factors cause the court to question her level of commitment to the children, and her willingness to cooperate with the society in the children's interests.

[461] Moreover, the grandmother is parenting one child, R.M., who has a diagnosis on the autism spectrum, and reportedly her other son, T.M., has a past diagnosis of ADHD and oppositional defiant disorder, according to the mother. The evidence at trial confirms that the oldest child, S., was bullied by T.M. in her first foster home placement and his presence at an access visit appeared to be a trigger for emotional distress for the child. There was no indication that the grandmother has thoughtfully considered the relationship dynamics between her children and her grandchildren, or formulated a plan to address any difficulties that may arise.

[462] For all of these reasons, the court is unable to consider any plan for the three children together, or for any of them separately, which would involve their placement with the maternal grandmother.

[137] Justice Jones made these additional findings at paragraphs 438-439 of her judgment:

[438] The maternal grandmother has not taken any steps to develop an open and honest relationship with the society. To the contrary, she has been closed and defended towards them. Ms. Hugh-Yeun testified that, over the past three years, on the five occasions when she supervised access visits that were attended by the maternal grandmother, the grandmother did not take any steps to approach the worker, either to seek information about the children, or to provide information about herself or any plan she might have for the children. The grandmother did not facilitate the sharing of information between the society or the CCAS regarding the existing protection issues involving herself and her own children. In her testimony, the grandmother minimized and rationalized past concerns. She was guarded, in discussing her past involvement with child protection agencies.

[439] The placement of the children with the maternal grandmother, subject to a supervision order, has been proposed, as one of the alternate plans put forward by the mother. The court has no confidence that the maternal grandmother would promote an open dialogue with the society or candidly share important information with them about herself and the children, if any child was placed in her care. This would add an element of risk to any plan involving the maternal grandmother.

4.5.8.2 - Honesty and Trust

[138] Justice Jones' concerns about the grandmother's honesty and ability to work openly with the society were borne out by subsequent events.

[139] Justice Spence placed the child in the temporary care and custody of the grandmother on June 26, 2014, with a specific term that the child was not to be left alone with the mother. The grandmother fully understood this term. This was her chance to show that Justice Jones was wrong about her – that she could be trusted to be honest and protect the child.

[140] The grandmother breached the court order on October 24, 2014 by leaving the child with the mother in the taxi – just one month after the release of Justice Jones' decision.

[141] A society worker testified that later on October 24, 2014 (the same day of the breach described in paragraph 139), when she attended at the grandmother's home to apprehend the child, she observed the grandmother coming out of a taxi alone carrying a pizza. She was certain that it was the grandmother. The grandmother testified that it was actually A. who had come out of the cab, wearing the grandmother's coat – and the child was in the apartment with her. The court believes the society worker. She knew A. and the grandmother well. She had a very clean line of sight. She knew the difference between them.

[142] It is likely that these weren't the only times that the grandmother was breaching the order – these were just the only times she was caught.

[143] The grandmother was not a credible witness. She was often evasive and defensive when presented with difficult evidence. When confronted with transcripts from the first trial that contradicted answers she gave at this trial, she twice claimed that the transcripts were inaccurate. She then rationalized that she had said many inaccurate things at the first trial because she did not have her documentation with her. "I had to admit to things", she said. On one occasion, when she gave evidence at this trial that she had not given during the first trial, she said: "there are many things that I did not say at the first trial". At another point, when confronted with a statement in a prior affidavit that contradicted her evidence, she attributed this to her lawyer having written the affidavit. Some examples (there were many) of her lack of honesty are as follows:

a) She claimed to have only become aware of the mother's pregnancy in April of 2014. This is highly unlikely if she was as close to the mother as both her and the mother claimed.

b) Even if she became aware of the mother's pregnancy at this time, she did not notify the society about this.

c) She claimed that she had been jailed for a few hours in Florida for allegedly writing a bad cheque. In the first trial, she said that she had been jailed for 30 days for this incident.

d) The grandmother maintained that society workers had asked her not to come for access visits with the child in December of 2014. However, in an affidavit seeking increased access on December 9, 2014, the grandmother wrote that she was aware that if she only had supervised access, it was unlikely that the child would be placed with her – that it is critical to move forward. She was granted defined access and rarely exercised it. When presented with the statement in her affidavit, the grandmother claimed to be unaware of it, saying, "things are written by lawyers I don't know".

e) At the first trial, the grandmother told the court that in the children left alone in the cold car incident she did not call the school to delay her meeting because she was afraid that they would call the society. In this trial, the grandmother denied this was why she had failed to call the school.

f) The grandmother testified that she had told the society worker, during the same incident, that the older children were in the car, but during cross-examination it became apparent that this was highly unlikely. The court does not believe that the society worker would permit the grandmother to leave three young children alone in a cold car (it was minus 18 degrees Celsius that day). The grandmother explained that the she was overwhelmed because she was having difficulty trying to control R.'s behaviour and the questions from the worker. This is likely the main reason for the grandmother's neglect of the older children.

[144] The grandmother also continued to minimize protection concerns and deflect responsibility for her behaviour during this trial. Some examples of this are as follows:

a) She was very argumentative and defensive in discussing her role in the children being left alone in the cold car incident.

b) She was argumentative and defensive in discussing her lack of action in the second balcony incident. The grandmother had claimed that she was in the mother's home during this time cleaning it twice per week. Yet, she never notified the society about the deplorable condition of the premises. She was aware that the balcony was dangerous, but took no real steps to assist the mother. At one point, she said that she left this issue to a worker from Bartameus (but that worker had not been involved with the mother for two months). The grandmother had told the society that the apartment was too small for the older children, yet she significantly added to its chaos. She had asked the mother to store many items for her, including a fridge and stove. One of the bedrooms in the mother's apartment was used only for storage. The grandmother demonstrated no insight into her role in the apprehension of the older children.

c) She blamed the mother for the incident where she repeatedly hit her with a power bar at age 13. Justice Jones has found that her actions were harsh and punitive.

d) The grandmother admitted that the child bonded with her while they lived together. Despite this, she only attended sporadically for visits after November of 2014, and did not attend access from March 3, 2015 until September 25, 2015. The grandmother claimed that she was told not to come to visits by the society after December of 2014 to permit them to evaluate the mother. This was denied by the society. The court did not find the grandmother's evidence credible because:

i) She was still sporadically attending visits until March of 2015. No one asked her to leave these visits.

ii) The mother acknowledged that society workers were asking her why the grandmother was not attending visits. The mother either told workers that the grandmother was busy, or she didn't know why she wasn't coming. No one was telling the mother that the grandmother couldn't attend access.

iii) The grandmother gave this same explanation for not seeing the older children on a consistent basis prior to the first trial. It is far more likely that her behaviour is a pattern, demonstrating lack of commitment to her grandchildren.

[145] The evidence made it clear that the grandmother cannot be trusted. The court has no confidence that she would consistently comply with the terms of a supervision order or report any protection concerns. This places the child at an unacceptable level of risk of harm.

4.5.8.3 - Other Protection Concerns About the Grandmother

[146] The court has additional protection concerns about the grandmother including:

a) She has had extensive involvement with child protection agencies with respect to her own children. The mother was in society care twice in Florida. The mother came into society care in Ontario at age 13 and was made a crown ward. The grandmother has had 15 openings with respect to her children with child protection agencies in Ontario.

b) R. and T. were in the care of the Catholic Children's Aid Society of Toronto for almost two years after they were apprehended after the children left alone in the cold car incident.

c) The grandmother was charged with assaulting the mother with a weapon at age 13, hitting her repeatedly with a power cord bar.

d) The grandmother has prioritized her own children over her grandchildren. This was evident when:

i) During the children left alone in the cold car incident, the grandmother supervised her own child in the school while leaving her grandchildren alone in the cold car.

ii) In the second balcony incident, the grandmother had the mother store many of her items in her second bedroom, including a fridge and stove. This resulted in one room being unavailable for the children, when the grandmother was aware that the apartment was already too small and cluttered.

iii) The grandmother stopped visiting the older children during the first proceeding. The grandmother testified that she had her own problems with her own court case and couldn't see them (in addition to stating that she was told not to come).

iv) The grandmother stopped seeing the child in this case for a long period of time, as she concentrated on the needs of her own children.

v) Instead of cancelling the October 24, 2014 school appointment for R. or bringing the child to the meeting, when she couldn't obtain child care, she chose to breach the supervision order of Justice Spence.

e) The grandmother has a history of not supervising children appropriately. In 2009, the police were called when R. was found wandering on the street alone. The grandmother had left her children, then 5 and 6 years old, alone with A., who was 12. She left the older children alone in the car in February of 2011 and then left the child in the taxi with the mother on October 24, 2014.

f) Despite claiming to have a very close relationship with the mother, the grandmother claimed to have not carefully reviewed Dr. Kirshner's report. This is highly unlikely as her report was an important part of the first case and Justice Jones thoroughly reviewed it in her Reasons for Judgment. If true, it is even more concerning that the grandmother would not try to understand the parenting concerns about the mother and what is required to address them. It would demonstrate a lack of insight or unwillingness to accept that there are protection concerns and raises concerns about the grandmother's ability to protect the child.

g) The grandmother claimed to have significant financial resources, but despite claiming to have a very close relationship with the mother, she did not assist her in obtaining the private intensive counseling required.

h) The grandmother has chosen not to have a close relationship with the child. This is a repeat of how she stopped visiting the older children during the first proceeding.

i) The grandmother already has considerable parenting challenges with her own children. R. is autistic and T. has had behavioural problems. While their file is now closed, the Catholic Children's Aid Society has had considerable involvement with the grandmother. It is too risky to add another child, particularly a vulnerable toddler, to this equation. The grandmother's plan to parent the child and the mother's other three children is just unrealistic.

[147] The risks of placing the child with the grandmother alone or with the mother and the grandmother jointly are unacceptable high and the court finds that these plans are not in the best interests of the child.

4.5.9 - Summary of Factors Adverse to the Mother and Grandmother Set Out in Subsection 37(3) of the Act

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

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

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

c) The society's plan will best 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, grandmother or with both of them jointly is unacceptably high.

e) The society's plan will best address the child's needs than the plans proposed by the mother and the grandmother.

f) This case should not be delayed any further and the child should receive a permanent home as soon as possible. The mother and grandmother are not able to present a safe and secure long-term plan for the child. It is in the child's best interests that the child's placement be in an adoptive home.

[149] 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

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

Access: Crown ward

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

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

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

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

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

5.1.1 Beneficial and Meaningful

[153] The 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.

[154] 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.

[155] 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.

[156] The court must consider whether the relationship is beneficial and meaningful to the child at the time of the hearing. Considerations of openness should not be imported into this analysis. See: Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638.

[157] 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.

[158] Knowing one's roots can be an important part of a child's development. If a child can maintain a connection with these roots without jeopardizing the security of a permanent adoptive placement, that is an option that should be considered. See: Children's Aid Society of Toronto v. M.M., [2012] O.J. No. 3240 (OCJ).

5.1.2 Impairment of the Child's Opportunity for Adoption

[159] 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) 2011 ONSC 5850.

[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.

[160] 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.

[161] A child can now be placed for adoption when there is an existing access order.

[162] Sections 145.1.1 and 145.1.2 of the Act set out the procedure to follow when a Children's Aid Society wishes to terminate an existing access order for the purpose of an adoption. Any person who is the holder of an access order shall be served with a Notice of Intention to Place for adoption. This person then has 30 days to bring an openness application. Pursuant to subsection 145.1.2(6) of the Act the court may make an openness order if it is satisfied that such an order is in the best interests of the child and the openness order will permit the continuation of a relationship with a person that is beneficial and meaningful to a child.

[163] While theoretically the child can be placed for adoption while an openness application is ongoing, the reality is that most adoptive applicants will first want to know what openness order will be made before proceeding.

[164] The case law has established that there are qualitative differences in the amount of contact a party will have with the child before and after a crown wardship order is made, and then again after a child is placed for adoption and an openness order is made. Justice Penny Jones discussed these differences in paragraphs 81 and 82 of Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109, as follows:

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

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

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

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

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

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

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

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

[165] The case law has recognized that persons who hold certain attributes may be more likely to impair a child's opportunities for adoption, as these attributes might dissuade adoptive applicants from coming forward to adopt the child. This might result in an undue delay in the child's adoption. Many people will hold more than one of these attributes.

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

[170] The potential chilling effect to adoptive applicants of having to deal with litigious parties in openness litigation is discussed by Justice Jones in paragraph 71 of Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530 as follows:

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

5.2 Analysis

5.2.1 Meaningful and Beneficial

[171] The court finds that, despite the young age of the child, the mother has met her onus of establishing that her relationship with the child is meaningful and beneficial.

[172] In reaching this conclusion, the court has relied on the evidence of the Family Support Worker, Amy Studholme. Ms. Studholme had the most knowledge of the child's relationship with the mother, and as stated above, the court has considerable confidence in her observations.

[173] Ms. Studholme testified that "the mother is a significant person in the child's life". She said that the child knows and is excited to see his mother. She said there is great love and affection between the mother and the child. They hug, kiss and show physical affection with each other. The mother praises the child, smiles at him and takes pride in his accomplishments. The mother is able to comfort the child when he is upset.

[174] The other society workers were consistent in their observations that the child has positive visits with the mother.

[175] The child has no difficulties before or after access visits.

[176] The mother has an established loving relationship with the child. This has developed, in part, due to the extensive and consistent access that the mother has exercised.

[177] Access is also beneficial to the child because:

a) The mother is an important part of the child's religious and cultural heritage.

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

[178] The foster parents will not be adopting the child. The child will undoubtedly have difficulties leaving these persons that he is closest to. It might also be to his detriment to lose his relationship with the mother at the same time.

[179] The relationship between the grandmother and the child is not meaningful and beneficial as described in the case law. The grandmother attended only 1 out of 8 scheduled visits in December of 2014, 2 out of 8 visits in January of 2015 and 1 visit in February of 2015. She did not attend any access between March 3, 2015 and September 25, 2015. Her access remains fully supervised.

5.2.2 Impairment of the Child's Future Opportunities for Adoption

[180] There is no issue that the child is adoptable. He is healthy, happy, friendly and meeting his developmental milestones. The society's adoption worker confirmed that he will be an attractive candidate for adoption.

[181] However, despite his adoptability, the mother did not meet her onus on the second prong of the two-part test. Access to the mother would likely impair the child's future opportunities for adoption.

[182] The mother led very little evidence on this issue despite her onus.

[183] In reviewing the attributes held by parties that may signal a concern for the impairment of a child's opportunities for adoption described in paragraphs 166-169 above, the court finds as follows:

a) Attribute One – The mother does not pose a physical or emotional threat to the security of adoptive parents. She is not aggressive or angry and she does not have a problem with impulse control. She is not confrontational.

b) Attribute Two – The mother has not undermined the placement of the child's foster parents or S.'s caregiver. However, the evidence indicates that the mother will have considerable difficulty accepting the significantly reduced role in the child's life that would result from a post crown wardship access order and which would likely be sought by the society in any openness proceeding. The mother strongly believes that she is a good parent. She has poor insight into the parenting and protection concerns about her. She believes that any issues that she had with the older children are in the past and she has not been given a fair chance to parent the child. The mother's minimization of her parenting deficits, combined with her firm belief that she should be parenting the child, is a bad recipe for her support of a future placement for the child. As the child gets older, there is a real possibility that he will receive confusing messages about who his "real parent" is.

c) Attribute Three – The mother has communicated well with the child's foster parent. However, the evidence indicates that she is dishonest and secretive and cannot be relied upon to consistently comply with court orders or accurately report incidents concerning the child.

d) Attribute Four – The mother is unlikely to accept a reduced role in the child's life. She does not accept the parenting and protection concerns about her. The mother does not agree with most of Dr. Kirshner's report. Despite overwhelming evidence, she could not even consent in this case to a finding that the child was in need of protection. This all makes it far more likely that there will be future litigation over openness issues that would delay the adoption process.

[184] The court finds that access to the mother would jeopardize or impair the child's opportunities for adoption.

[185] 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., supra. This might be warranted in the short term as the child will be losing his relationship with his primary caregivers, the foster parents.

[186] This order 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. These provisions provide that the adoptive parents must consent to such an agreement or order. The order for no access that will be made by this court takes away the mother's right to initiate an openness application.

[187] While it is not necessary to address the second part of the test with respect to the grandmother (since she did not meet the first part of the two-part test) she also did not meet her onus to show that access to her would not impair the child's future opportunities for adoption. The profile of the grandmother, as described in this decision, would have a chilling effect on any potential adoptive parent.

[188] It is in the child's best interests to move on to a permanent home as soon as possible. No access will be ordered.

Part Six - Conclusion

[189] A final order shall go that the child be made a crown ward, with no access, for the purpose of adoption.

[190] I am very aware that this decision will be extremely painful for the mother and I regret that. She has had many challenges in her life and is trying to the best of her ability to improve herself. There was never any doubt in my mind that she loves the child and wants what is best for him.

[191] Lastly, the court thanks counsel for their skilled and sensitive presentation of this difficult case.

Released: December 1, 2015

Justice Stanley Sherr