Court File and Parties

File No: C26/08

Date: 2016-01-04

Ontario Court of Justice

(West Region, at Woodstock, Ontario)

Between:

CHILDREN'S AID SOCIETY OF OXFORD COUNTY

Applicant

- and –

R.L.M.E. & L.E.

Respondents

Endorsement of Justice M.P. O'Dea

Heard: October 19 – 23, 2015; December 7 & 8, 2015

Decision Delivered: January 4, 2016

Counsel:

Timothy Price, for the Applicant

Brigitte Gratl, for the Respondent R.L.M.E.; and as agent for L.E.

Introduction

This is the disposition stage of a bifurcated hearing on a protection application seeking Crown wardship without access respecting RR-LE (herein "the child") who was born […], 2008. The Respondents are RLME who is the child's biological mother (herein "the mother"); TLD, now deceased, is the child's biological father; and, LE & RE are the child's maternal grandparents. The mother seeks placement without supervision. The grandparents seek placement if the mother's plan is unsuccessful.

Following a 19 day risk hearing between May 5 and December 9, 2014, Justice McSorley found RR-LE to be a child in need of protection pursuant to subsections 37(2)(b.i), (b.ii) and (g) of the Child and Family Services Act. The evidence heard was extensive and I do not intend to reproduce it in these reasons except where necessary to bring context to the decisions I must make respecting disposition.

Background Findings

Her Honor's findings of fact begin at paragraph 114 of her written reasons and include circumstances arising before the date of apprehension, at apprehension and after apprehension. I will synopsize her findings.

Before Apprehension

Before apprehension, Her Honor found that the mother had failed to follow advice that was designed to keep her daughter safe specifically related to her ongoing relationship with the child's father who abused and demeaned her and who continued to use drugs and involve himself in criminal conduct; her decision to allow the father access to the child notwithstanding clear instructions by the Society of the proven dangers in doing so; ongoing domestic violence to which the child was exposed; the mother's inability to understand the risks to herself and the child posed by the father; failure to follow through with medical treatment for a known and treatable malady experienced by the child; the mother's inability to control her anger which was frequently directed at the child; and, her failure to seek treatment for both her depression and anger control issues.

At Apprehension

At apprehension, Her Honor found the mother's mental health had deteriorated significantly and she was suicidal; she was drinking and using drugs almost daily; she was still in ongoing disputes with the father; and, she was quite angry about the Applicant's continued involvement and stubbornly refused help.

Following Apprehension

Following apprehension, Her Honor found the mother could not establish stability for herself; she moved 12 times over 18 months; her access was disrupted by her many moves; some of the moves were to protect herself from poor relationships she developed with violent men; she had no family or community support system; she did not seek mental health treatment for over a year; a negative P.C.A. was received from Dr. Louise Sas almost two years following apprehension; and, another Society was warning her about ongoing risks to another child that mirrored historic issues.

These findings supported the subsection (2)(b)(i) and (b)(ii) findings.

The subsection (g) finding reflected the extensive history of physical and verbal domestic violence to which the child was exposed and the impact on the child respecting the mother's refusal to change following apprehension.

Background to Disposition

When RR-LE was born, the mother's personal circumstances were quite chaotic. Her biological family presented as extremely dysfunctional. Her brother abused her physically and emotionally over a number of years. The abuse was extensive and demeaning. The mother's parents would not take the steps necessary to control the brother and blamed the mother for the incidents of violence in which she was assaulted. In the result, she was apprehended and in September of 2000, the mother was made a crown ward with access.

By the point her crown wardship order was made, the circumstances in the family home had taken their toll on the mother. She was exhibiting signs of mental health deficits evidenced by depression and withdrawal and she had become verbally and physically aggressive with peers and family. During her four years in care, the mother was moved about 24 times given her needs and the inability of foster and/or specialized homes to meet them. She resisted any form of remedial intervention while in care.

On August 10, 2004, when the mother was just 17, she gave birth to her first child, BMLE. Considering the mother's history, BMLE was apprehended at birth and after a number of months in care, was placed with the maternal grandparents subject to supervision. Having regard to the history and the message this order would send to the mother, I found the decision to place with the grandparents to be troubling.

On September 2, 2005, the mother gave birth to her second child, JWJDD, who was also apprehended directly from the hospital. The Society immediately sought crown wardship without access which was granted after a trial in August of 2007. The reasons for both finding and disposition mirrored those involving BMLE. JWJDD has since been adopted.

In October of 2008, the supervision order respecting BMLE was terminated and she was placed in the custody of the maternal grandparents with access to the mother notwithstanding that this exposed the mother to her brother and notwithstanding continued disputes among the adults which, given the family's circumstances, were likely witnessed by the child.

When RR-LE was born in […] of 2008, the mother decided to cooperate with the Applicant. RR-LE was placed in a temporary foster home with extensive access to the mother who admitted herself to a maternity home for parent training. She responded well to the programs and instruction delivered with the result that on September 30, 2008, RR-LE was placed in the care of her mother subject to a 12 month supervision order.

The mother appeared to function well during the supervisory term and the supervision order was terminated on September 28, 2009. However, her gains were illusory. She had already (unknown to the Applicant) rekindled her relationship with the child's abusive father and allowed him free and liberal access to the child contrary to the Applicant's warnings that doing so could trigger another apprehension. Between September of 2009 and the apprehension, the mother's mental health deteriorated and at the apprehension, she was clearly suicidal. Incidents of neglect of the child's needs mounted and reports of verbal abuse directed at the child became frequent.

On February 8, 2010, the mother's deteriorating mental health was noted by a medical practitioner. She was offered but refused any form of assistance. In the result, the child was removed and placed in a temporary foster home. On February 10, 2010, the child was placed in a foster home which was deemed long term as a "foster with a view to adopt" placement.

Long-Term Placement Plan

The Applicant's protection application was issued on February 10, 2010, the same day the child was placed with her present foster family. The bulk of the mother's attention in this proceeding has been focused on the short-sightedness of the decision to seek Crown wardship, the long-term placement decision and the foster mother.

The Applicant's decision to seek crown wardship in the face of the mother's recent parenting successes was based on her history together with the circumstances leading to the mother's mental health breakdown in November of 2009, both of which made the decision to begin permanency planning necessary. Based on Justice McSorley's findings, the Applicant's decision was in the interests of the child. The mother's successes in the previous year had been illusory and her parenting and decision-making continued to be defined by her inability to deal with her past trauma.

The Applicant also believed, considering the depth of mother's regression after the period of cooperation, that she could not likely make the changes necessary to regain care and control of her daughter within the statutory timelines defined in s. 70 of the Act.

The Applicant's decision to place RR-LE into a foster with a view to adopt home was based on the protection circumstances mentioned above as related to the mother. The only additional factor that supported this specific placement was that the foster home was where RR-LE's brother JWJDD had been adopted.

The mother's position on learning of the above two decisions was to complain that the Applicant had pulled the carpet out from under her in context of her chances to succeed in the court proceeding. She was of the view the Applicant would not give her a fair shake on disposition when she began the process of improving her parenting; and, that the placement was intended to assure that she would never succeed in removing RR-LE from the long-term placement because she was with her brother.

The mother wanted RR-LE placed in a situation where she could be moved when she was ready to retake care and control. This demand might be fair if she intended to begin her remedial efforts immediately.

However, within months of this placement, the mother left Oxford County and began a period of transiency. She lost focus of her relationship with RR-LE and she did not immediately begin the process of change that was so clearly needed.

In her evidence today, the mother blames the Applicant for this period of transiency in that the apprehension undermined her will to change. With all due respect, the evidence is clear the mother's 18 months of transiency following the apprehension was a by-product of her declining mental health. While it is always easier to blame others for one's difficulties, I would have expected the mother's view to have changed by now considering her claim that her recent therapy has opened her eyes to how her history defined her previous self.

Notwithstanding, the mother's accusations against or blaming of the Applicant for its February, 2010 decisions have done nothing to advance her claims today. They do not define her present qualities as a parent nor are they relevant to RR-LE's present best interests. Like so many trials in the child welfare arena, this one was hijacked by irrelevant complaints and evidence.

In context of the child's eventual attachment with the present foster parents, the mother appears to suggest an attachment would not have occurred had she been kept in the temporary foster home. This position indicates to me the mother has no concept how parent-child relationships develop and again, I would call into question to what extent her recent parenting programs have improved her understanding of a child's needs and development.

Mother's Complaints Against Foster Family and Applicant

The mother focused most of her evidence on her perception how the foster mother and the Applicant have conspired to undermine her right to have her daughter returned to her care. Her list of complaints is lengthy and includes personal information about her given to the foster mother by workers; spelling of the child's given name and use of the foster family's surname; the foster mother's interference with the access regime; discussing adult issues related to the trial within earshot of the child; the foster mother's attempts to interfere with the child's relationship with the mother and her family of origin; the foster mother's interference with RR-LE's counsel; the conflict of interest created by the decision to place the child with her brother; and, the foster parents' failure to apply for status and to be represented in this hearing.

Overall, each above complaint was never entirely supported by a fact base. What was proved was a series of isolated events which the mother then speculated supported her conclusions but the connections were always fuzzy and the conclusions she wanted the court to draw from the events were seldom apparent from her evidence.

I grant the mother's concern about personal information shared by workers with the foster mother about the mother and her new partner. The Applicant claims information was shared to alert the foster parents to possible issues during access and/or access exchanges. I do not accept this explanation. If issues did exist, it was for the Applicant, not the foster parents, to put protective measures in place. The Applicant's obligation is to shield the foster family from these issues, not involve them in them. Nevertheless, it is clear this complaint has no impact on the decision I must make today. It informs neither placement nor access issues.

The mother's complaints about name tags, the spelling of the child's given name and the foster parents using their surname for school purposes is irrelevant to the issues today. They inform neither placement nor access issues. There is no evidence that any of the incidents related in evidence on this issue has had any impact on the child's best interests.

The mother has speculated broadly how the foster parents' concern about the delay in concluding this proceeding has affected the child. Notwithstanding no evidence on point, the mother argues the child heard the foster parents' alleged angry complaints and this somehow affected her choice where she might want to reside. Beyond the fact this speculation is groundless, there is no evidence the child ever "chose" where she wanted to live.

There were a number of complaints that the foster mother was allowed to dictate access terms; however, none were ever identified in evidence. Counsel for the mother failed to connect any dots between incidents during access and subsequent decisions to alter how access occurred.

I have no idea which incident(s) the mother advances as evidence of the foster mother's attempt to interfere with the child's family of origin.

The child had counsel appointed by the Office of the Children's Lawyer. Counsel got on the record in December of 2013 and was removed at his request in April of 2014. I have heard snippets about his relationship with the foster mother but nothing concrete. He was not called to testify as to why he got off the record. These circumstances add to the mass of speculation I am asked to apply as proven fact.

The mother complains that the placement of RR-LE with her brother gave rise to a "conflict of interest". She never did define who the conflict related to. During evidence, she hinted it was between the Applicant, the mother and the foster mother; but during submissions, she changed focus and argued it was between RR-LE and her siblings. Apart from the question which persons were in conflict, the mother never did define the conflict itself or how the conflict impacted best interests.

Finally, the mother submitted the court should somehow question the appropriateness of the foster placement since the foster parents did not seek leave to be added as parties for the purposes of supporting the placement. It is still unclear how this decision might affect best interests and in the end, this was simply another irrelevant diversion.

However, this submission merits some comment. A society has the unfettered right to place a child in its temporary care as it deems appropriate in the interests of the child and consistent with the purposes of the CFSA, including the unfettered right to place the child in a home where an eventual adoption might occur. However, where a final order has not yet been made that has considered both subsections 57(3) and 57(4), the foster home is merely a temporary safe haven and the foster parents have no rights independent of the society that placed the child with them. R.L. v. Children's Aid Society of Niagara Region, [2002] O.J. No. 4793, O.C.A.; Children's Aid Society of Toronto v. R.D.S., [2007] O.J. No. 4216, O.C.J.

In my mind, both cases speak directly to the mother's issue. As long as the Applicant continued to support the placement, the foster parents had no right to be heard at any point in this proceeding. It is unnecessary to address speculation what their rights might be if the Applicant no longer supported the placement.

On the evidence as presented, I find nothing in the mother's complaints that did or tended to interfere with her rights under the C.F.S.A. Nothing likewise affected best interests.

Changes in the Mother's Circumstances

This evidence is not challenged by the Applicant. It is supported in materials from Family and Children's Services of St. Thomas and Elgin County.

In the summer of 2011, the mother was pregnant again and found her way to St. Thomas. Oxford alerted the Elgin CAS to her circumstances and Elgin agreed to monitor her. On August 30, 2011, the mother gave birth to JDB who, like the other children, was apprehended directly from hospital.

Upon this apprehension, the mother agreed to cooperate with the Elgin CAS. It identified the programs she had to complete and then apply in her day-to-day parenting. Between September of 2011 and January of 2013, the mother worked hard in a significant number of interventions.

Most critically, she began personal counselling to address her childhood traumas, rejection by her parents and her aggressive nature. She participated actively until her discharge in May of 2012.

She also saw a psychiatrist and was diagnosed as bi-polar. She was placed on a medication regime and has maintained that regime since. She sought the assistance of the Canadian Mental Health Association and participated in about 8 months of personal counselling.

She attended and completed an addiction treatment program by May of 2012 and has remained drug-free. She also completed a number of parenting skills programs.

In June of 2012, the mother met S.B. and they began to cohabit in September of 2012 since she was pregnant with SB's child. SB's background was investigated by the Elgin CAS and he was approved as a parent figure for JDB.

On August 12, 2012 and on consent, JDB was made a society ward for four months. It appears this timeline was to allow the mother to complete a few programs, to monitor her relationship with SB and to monitor increased access time with JBD.

On January 13, 2013, the Elgin CAS placed JDB in his mother's care subject to a 12 month supervision order since that Society deemed that she was applying what she learned to her daily parenting circumstances.

On May 2, 2013, the mother gave birth to AJLB. Rather than intervene through a court application, the Elgin Society opted to enter into a Voluntary Services Agreement with the mother and SB. The agreement was pro-forma and did not identify any new risks. It appears the Elgin Society was content that JDB's supervisory terms offered it sufficient means to protect AJLB.

In August of 2013, BMLE came to reside permanently in her mother's care. This was an arrangement made directly between the mother and her parents and it is unclear whether the move was pre-approved by the Elgin Society. Nevertheless, the Elgin society did not alter any of its terms after this change.

By January of 2014, the Elgin Society determined it had no further services to offer the mother and that risk had sufficiently abated that it could withdraw. On January 28, 2014, the outstanding supervision order was terminated and the VSA had expired.

However, and for reasons unknown, the mother and SB executed another VSA on February 13, 2014. This agreement covered all three children in the mother's care but, as with the previous VSA, it did not suggest a new risk and it added no new demands of the mother beyond (generically speaking) to be a good and attentive parent.

The mother and SB and the children moved to London shortly after the 2014 VSA was executed. They continue to reside in London and the London CAS has not become involved with the family.

In context of this evidence, the mother's position is succinct. She did everything demanded by the Elgin agency which was the same demands made of her by the Oxford agency. She is now permitted to parent three children without society intervention. This, she submits, is ample evidence supporting her daughter's return into her care; and, that the order need not include supervision terms.

Analysis: The Mother's Placement Plan

The mother emphasises that notwithstanding the passage of time, the proceeding today is a protection application which entitles her to a number of priorities, especially in regard to the Applicant's proposal to adopt. The two she pays most attention to are subsections 57(3) and (4).

She argues that the changes she has achieved allows the court to consider her to be a less disruptive alternative to permanent separation under s. 57(3); and, if she cannot succeed on the strength of her changes, then the maternal grandparent's plan must be given priority under subsection 57(4).

Since the 1999 amendments to the Child and Family Services Act, the legislation is deemed to be "child driven" or "child focused" given that the paramount purpose is now the promotion of "the best interests, protection and well-being of children". Permanency planning is encouraged at the earliest stages of an application to assure the provision of a stable family relationship: C. v. Children's Aid Society of Ottawa-Carleton, [2000] O.J. No. 2063.

In particular, considerations under subsections 57(3) and (4) may be subsumed by subsection 37(3) best interests considerations if they do not mesh with the s. 57 considerations the court is required to pay heed to: Children's Aid Society of Toronto v. A.(A.), [2013] O.J. No. 2667; Children's Aid Society of the Districts of Sudbury and Manitoulin v. D.(D.), [2009] O.J. No. 5376; Children's Aid Society of London and Middlesex v. C.E., A.R.S. & C.S., [2007] O.J. No. 4536; Children's Aid Society of Ottawa-Carleton v. R.L., [1998] O.J. No. 1185.

While not specifically or directly so, the mother tacitly acknowledges that the passage of time since RR-LE was placed with her present foster family likely stands in the way of the court placing much weight on her placement plan. In that case, she strongly urges the grandparents' plan. Unfortunately, the reason the passage of time creates a roadblock for the mother's plan similarly blocks the grandparents' plan.

The fact that we have almost reached six years since the foster placement leaves many of the subsection 37(3) best interest considerations far less relevant to RR-LE's interests. This will be discussed below but the sheer passage of time together with the child's attachment to the foster family means that her emotional needs and continuity will outweigh most other considerations and those in subsections 57(3) & (4): Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165.

Analysis: Child's Need for Continuity

It is the Applicant's position that RR-LE has formed an attachment with her foster parents and her brother and that it is not in RR-LE's interests to sever this attachment. To satisfy its position, the Applicant retained Dr. Nitza Perlman to conduct an attachment assessment respecting RR-LE in the foster home.

Dr. Perlman is a clinical psychologist. Since 1967, Dr. Perlman has focused her research on parent-child relationships and their effect on child development. Her entire career has been dedicated to the issue of attachments. She has conducted (as best as she can guess) over 200 attachment assessments and she has been qualified to give expert evidence respecting attachments in all levels of Ontario trial courts. She has written advisory articles for the Court of Appeal and Supreme Court of Canada.

Dr. Perlman's evidence was given during the risk hearing to accommodate her very busy (business related) travel schedule. Justice McSorley qualified her and that finding is applied today.

Dr. Perlman made her observations supporting her opinions in September of 2013. RR-LE was seen in the home with the foster parents and her brother and Dr. Perlman spoke with other members of the foster family and their neighbors.

Dr. Perlman found that RR-LE is "completely integrated with the foster family" and that she trusts those in the foster family and its extended family and is "firmly attached to them". Dr. Perlman also determined that RR-LE trusts that the foster parents will protect her, respond to her needs and comfort her when needed and that these incidents of trust are the key components to a secure attachment that has developed.

Dr. Perlman is of the opinion that to sever this attachment will be traumatic to RR-LE and will result in "significant, irreversible harm" in most of her important developmental domains including cognitive, emotional, social and moral development, self-control, a capacity to delay gratification and self-regulating of her moods. Dr. Perlman opined that the development of the attachment reaps life-long benefits and severing it exposes the child to life-long losses.

The mother does not challenge these findings. Her questioning of Dr. Perlman focused what the mother would establish in her evidence and sought the Doctor's opinion if the evidence was accepted.

Critical Areas of Evidence

The critical areas of evidence suggested by the mother that will impact my decision relates to RR-LE's attachment to herself during the first two years of her life; the child's relationship with her mother, grandmother and siblings during access; and, the child's apparent wishes to be reunited with her mother.

The mother raised other issues with Dr. Perlman during cross-examination that will not inform my decision – the impact of RR-LE's access with the mother and siblings on JWJDD, the attitude of the foster parents toward the litigation, their fear of losing the litigation, theories about "adoption stigma" and what the child might have heard about the litigation or where she would eventually live.

These areas are either irrelevant or Dr. Perlman's answers, which I accept, left the mother's theories groundless. Most importantly, most of the mother's hypotheticals have not been supported by much evidence with the result that none have been proved.

Attachment to Mother

The mother's theory is that the child's attachment to her began in utero and continued between July of 2008 and November of 2009 and that such attachment has been built upon through access thereby decreasing the harm that will result from a decision to return her to her mother.

Dr. Perlman dismissed the "in utero" theory as unsubstantiated and suggested that the latter attachment would have to be supported by evidence that the appropriate level of trust developed in the experiences of the child. Such evidence does not exist.

The mother's submissions on this particular point were premised on a summarization by Justice Keast of attachment and bonding evidence he heard from another expert in Children's Aid Society of Algoma v K.A.H., [2003] O.J. No. 3238. Her view was that this decision supported that a child will attach to a mother figure as long as the child resides with that person between six and 36 months of age which is the critical attachment phase suggested by that expert.

This assumption couldn't be further from the truth.

The expert in the above case was Dr. Robert D. Siem. He qualified his attachment evidence with the precondition that the environment the child is raised in is "nurturing" in that it meets both the physical and emotional (affectional) needs of the child. While Dr. Perlman was not asked about the 6 to 36 month critical attachment period, she did clearly confirm Dr. Siem's qualification respecting the nurturing environment.

In regard to RR-LE's past attachment with her mother, the evidence heard by Justice McSorley during the risk hearing is relevant as is what I did not hear in the disposition evidence about the underpinnings of the alleged attachment.

The evidence at the risk hearing strongly suggests that the mother rekindled her relationship with the abusive father some time before November of 2009 with the result that I would infer, given history, that the child was exposed to adult conflict. Considering the mother's history, her ability to effectively parent diminished during times of conflict and the impact on the child is evident from her presentment when placed in the foster home.

The child presented as fearless and would leap into the arms of anyone. She called the foster mother "mommy" within hours of placement and immediately demanded her undivided attention. She did not mention her biological mother. She was terrified of the bathtub. She was fearful of men, especially the foster father. She was aggressive – hitting, biting, kicking, screaming and spitting. She had trouble falling asleep, slept lightly and often awoke in a panic.

None of these observations support an attachment to any person, let alone her mother. The mother did not speak about her relationship with her daughter during the currency of the 2008-09 supervision order in her evidence on disposition and she did not identify a single example that might support an attachment. She simply assumed an attachment had developed considering the amount of time the child resided with her but made no effort toward supporting the conclusion.

The evidence overwhelmingly supports that RR-LE was not attached to her mother when she was apprehended from her care and there was nothing to build on from that day forward. Dr. Perlman makes it clear that the foster family had to build the child's trust from scratch and it is these parents – and none other – that she unconditionally trusts.

What I find telling, in context of attachment, is that the mother offered no evidence tending to show a bond had developed between her and her daughter. Given her history, it is unclear whether the mother was capable of bonding with the child but the likelihood she did not is supported by the child's presentment upon apprehension.

Relationship During Access

The mother spent considerable time discussing the child's relationship with her, her grandmother and her siblings during access. That the visits presented as positive is not challenged by the Applicant; however, the mother submits the positive visits support her placement plan in that she, the grandmother and RR-LE's siblings have always been a positive factor in her life and this supports some level of attachment.

Dr. Perlman addressed this submission. She testified it is not the amount of time a child spends with her biological family that defines the attachment the child experiences but it is who the child sees as meeting her needs, keeping her safe and providing for her that defines the attachment. Dr. Perlman stated the mere fact a parent visits with a child does not, by any stretch, create an attachment.

I will address the child's perception of access below but for the present purposes, I find the visits have not served to develop or contribute to the continuation of an attachment between the child and her mother.

Child's Wishes Respecting Placement

I intend to address the submissions respecting the child's wishes respecting placement in a broader sense than as submitted.

After a finding in need of protection has been made, I tend to give some latitude respecting statements by a child. The latitude I offer, however, is restricted by the obligation of the person to whom the statement was made to give some context to the statement in order that the dangers raised by what is otherwise hearsay evidence can be considered.

Broadly stated, the circumstances that can overcome the danger posed by receiving hearsay – ie., the absence of contemporaneous cross-examination - require the court to assess when and how the statement itself was made; the child's personal strengths and weaknesses in relating events; the child's first hand or more distant role in the event described; the child's relationship with the person complained of; and, corroborating information. These are the broad areas that would most likely be focused on in skilled cross-examination thereby reducing the dangers in admitting hearsay: R. v. Hawkins, 111 C.C.C. (3d) 129 (SCC). Some attention must be given to these factors.

Some of this contextual information must be offered before the statement can be given any weight. This information is also critical since a statement by a child is most frequently made to a party to the proceeding who, quite naturally, has a heightened interest in the outcome and that self-interest also detracts from weight.

In this case, I heard of statements by the child to the mother and foster mother. All of these statements were offered without any contextual definition. Most importantly, none of the recipients kept notes and none could tell me exactly what the words the child used were. When I consider self-interest and how easily a comment's meaning can change with the addition or subtraction of just a few words, the statements offered merit no weight.

This finding affects the foster mother's evidence respecting the child's opinion of a few access visits and the mother's evidence that the child expressed a wish to move from her foster home and into her mother's home.

In regard to the latter statement allegedly made to the mother, her evidence was so lacking in detail that I cannot determine if the child's wish was to see a room that was set aside for her or to move into it. For a witness who insisted she never discussed her plan with the child, I wonder how this comment arose. But, without context to define the child's meaning, this alleged wish merits no weight. This finding is supported by Dr. Perlman who testified that she has never "seen a six year old responding well to one environment and at the same time planning an exit from that environment".

Even if I were able to accept that the child's comment to her mother was an honest wish to be relocated, the evidence I heard would not allow me to accommodate her wish in her own interests.

Emotional Impact of Relocation

Dr. Perlman was questioned extensively about the emotional impact on the child if the mother's plan were implemented. She testified the emotional trauma would run deep, be long-standing and the child would present as extremely difficult to parent. If the child internalizes her trauma, she will present as severely depressed. If she externalizes her trauma, she will become aggressive and explosive and unmanageable. In either case, her self-worth will seriously degrade and that will define an inability to be happy with life.

When asked how she would respond to the child's trauma, the mother replied "I will access my support system in London". When asked if she had made inquiries yet, the mother responded she had not. When then asked who her support system in London included, the mother answered "Madame Vanier and the London CAS".

However, it is clear from the evidence that the mother does not trust either Vanier or the London CAS.

Her oldest daughter was experiencing behavioral problems in school and the school recommended the mother contact Madame Vanier for help managing these deficits. The mother did so. After the initial call, BMLE was sexually abused by an unrelated child who was residing at the time in the mother's home. When she spoke to the therapist from Vanier, the mother disclosed this fact and she was advised to immediately call the London CAS. She did not make the call for several months thereby ruling out any hope for a meaningful investigation.

The Vanier therapist made his recommendations respecting BMLE's therapy. He suggested he would attend at the mother's home to assist her in implementing a behavior management regime. The mother rejected this suggestion stating BMLE's issues could be dealt with at Vanier's facility. She could not explain why she refused the in-home regime and why she never finalized the alternate program she asked for.

In my mind, the mother presented as very uncomfortable interacting with or having any person in authority into her home. She presented as mistrustful and in the end, there can be no finding but that she does not have a support system at all.

Considering how the mother ignored BMLE's clearly identified needs, I find she would respond in like fashion to RR-LE's needs and to return RR-LE to the care of her mother would result in the child suffering identified emotional harm which the mother would be unwilling or incapable of addressing.

Balancing: Section 37(3)

Considering the above findings, there is little left to discuss in this area of my decision. In the result, much of what is now outlined is a synopsis rather than a full discussion.

I intend to focus numbers 1, 6, 7 and 8. Any other potentially relevant consideration is subsumed in the discussions and findings above.

Emotional Needs and Care

As to RR-LE's emotional needs and the appropriate care or treatment to meet them, I note that if she remains in her present placement, there is no evidence supporting the need for any form of therapy whereas if she were returned to the care of her mother or grandmother, she would be forced into the extensive therapies and treatments discussed above.

On the evidence, I find the grandparents are as likely to ignore these needs as is the mother.

I heard from the grandmother very briefly; the grandfather did not attend this side of the hearing to testify. However, they both testified at the risk hearing and neither presented well in context of empathy. Both continued to assert that the mother was as, if not more, responsible for the beatings she received from her brother and neither was prepared to acknowledge their shortcomings when the mother was apprehended. Neither presented as ready to accommodate programs or therapy for a child in their care since they would deny the issue rather than face it. Most importantly, I am of the view the grandmother has no idea just how demanding a child RR-LE will become if moved into her care; and, I don't get the sense the grandfather will pay much attention except to complain.

Further, I am of the firm view the grandmother's alternate plan is a temporary plan which will last just long enough to transfer RR-LE into her mother's care without anyone noticing. They have passed BMLE back and forth depending on their needs and I don't doubt this will happen to RR-LE.

In the end, the grandparents' plan is faced with exactly the same roadblocks as the mother's plan.

Relationships with Maternal Family

As to the child's relationships with and emotional ties to her maternal family, this factor does not assist the mother or grandmother in regard to placement. There is no evidence that throughout all of the visits, the child came to see or perceive the mother or grandmother as anything more than persons who visited with her. Dr. Perlman was clear that she knew exactly what her tie was to these people but no form of attachment resulted from this or the visits since the child continued, in her state of limbo, to look solely to the foster parents to meet her needs and never looked to her maternal family to deliver the same.

As Dr. Perlman put it, "access is good mostly to consolidate identity, not so much for attachment". On this, positive visits help little in regard to placement.

Present Placement Stability

There is no evidence contradicting Dr. Perlman's evidence that RR-LE's present placement is strong and positive and based on her observations, it more likely as not will be sustained over the long term. As indicated above, it is almost certain that a placement relationship with her mother or grandmother would quickly break down or the child would become stranded within it without appropriate help for her emotional needs. In either circumstance, the child would pay dearly.

Dr. Perlman unconditionally supports that RR-LE should be adopted to allow her to escape the sense of limbo she has experienced for almost six years and to assure that her sense of self-worth will be protected.

Statutory Findings and Order

I find the Applicant invested significant time and assets on the mother's behalf before the second apprehension and it has met its statutory obligation under s. 57(2) respecting services for the mother.

I find there is no less disruptive alternative under s. 57(3) to a permanent placement on these facts. There are no further interventions that would benefit the child considering her present placement. The mother would not accept any additional services considering her history and her ongoing mistrust of any agency tasked with the protection of her daughter.

I find no other person has stepped forward with a long-term plan for the child, personally or through a parent. No person fitting the definition of the child's "community" has been identified and given the time she has been in foster care, her "community" could only flow from this placement. I find the grandparents should not, on these facts, be entitled to a placement order.

I find the plan of care filed meets the demands in s. 56 of the Act.

On the whole of the evidence, the Applicant's long-term placement plan is the only viable plan in RR-LE's interests and an order of Crown wardship will be endorsed.

Access

When the court makes an order for Crown wardship, there is a presumption against access to a parent and the onus defined in s. 59(2.1) of the Act shifts to the parent. The onus under this provision is heavy and intentionally so with the result that the parent must prove, on a balance of probabilities, that an access order will not impair a child's future opportunities for adoption and that the relationship between the applicant for access and the child is both beneficial and meaningful: Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872; Children's Aid Society of Toronto v. T.L. & E.B., 2010 (ON SC); Catholic Children's Aid Society of Toronto v. J.B., [2013] O.N.C.J. 583.

The "significantly advantageous" definition given to beneficial and meaningful in Children's Aid Society of the Niagara Region v. M.J., supra has been reconsidered over the years to emphasize that the words are not synonymous and both beneficial and meaningful must be proved.

Meaningful is defined by something more than a blood relationship that includes mutual love, frequent shows of affection, positive connections or "successful" visits. These are important factors but they must result in a significant advantage to growing a child's existing connection with her culture and roots and an appreciation of her sense of identity: Catholic Children's Aid Society of Toronto v. M.M., [2012] O.J. No. 3240, O.C.J.; Children's Aid Society of Toronto v. S.B., [2014] O.J. No. 4704, O.C.J.

Beneficial means a significant advantage to the child's present and future well-being which focuses a parent's ability to maintain meaningful visits notwithstanding the Crown wardship order. The child's well-being will not be enhanced if the access might destabilize her permanent placement or her relationship with the adoptive parents: Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058, S.C.J., Div. Court; Children's Aid Society of Owen Sound and Grey County v. T.T., [2005] O.J. No. 1875, S.C.J.; Catholic Children's Aid Society of Toronto v. C.C., [2015] O.J. No. 3139, O.C.J.

In context of the presumption against access, if access is deemed appropriate on the evidence, there will, as a rule, be an appreciable decrease in the access enjoyed before the order was made since pre-order access is meant to focus family re-integration and/or education whereas post-order access in intended only to preserve a relationship: Native Family Services of Toronto v. JEG, [2014] O.J. No. 1059, O.C.J.

In Children's Aid Society of the Niagara Region v. M.J., supra and Children's Aid Society of Toronto v. T.L. & E.B., supra, both courts suggest an additional inquiry where a court finds a meaningful and beneficial relationship between a child and parent. In M.J., the court suggests "some qualitative weighting of the benefits of access versus no access" and in T.L. & E.B., it is suggested a court should also determine if access is in the best interests of the child pursuant to s. 58.

In my mind, if the parent meets the statutory test articulated, an access order should issue. To require a parent to answer the additional factors identified in the cases above creates an onus without defined boundaries and without a fair opportunity for a parent to determine what evidence may or may not be relevant to a particular judge.

However, it appears there is movement toward a more expansive approach to the assessment of beneficial and meaningful given the 2011 openness amendments to the legislation: Catholic Children's Aid Society of Toronto v. M.M., supra; Children's Aid Society of Toronto v. S.B., supra.

Counsel today was asked to address the possibility of differing considerations given the amendments but neither was able to assist. I intend to consider the above decisions. Many of the factors both would apply have been generally considered before in relation to access but not in their specific relationship to a narrower scheme of contact after a Crown wardship order - including openness.

Access Visits to Date

From 2012 on, the visits included the mother, the grandmother and three of RR-LE's siblings. The grandfather attended infrequently when work permitted. The other adults and children were consistent in their attendance.

On the evidence, the visits were positive from the child's perspective. She always presented as accepting of the visits as evidenced by her greetings and good-byes to and interactions with all who participated. The adults were attentive to her needs and the visits were child-focused. RR-LE presented throughout as understanding her linear (family) connection with everyone in attendance. Subject to a few expected childhood snits about going, RR-LE never exhibited conduct tending to suggest she was anything but content to spend time with her family. There is no evidence she attends solely as a matter of "duty".

Everything I heard about the mechanical aspects of the access to date tends to suggest a decent level of beneficialness and meaningfulness for RR-LE.

Monitoring Requirements

However, what makes beneficialness and meaningfulness less than "significant" in this case is the fact that almost every minute of a visit had to be monitored to prevent communications between the child and adults about this litigation, about the foster parents and about the child's future. This level of monitoring will not disappear in a post-Crown wardship access regime.

The mother identified the foster family as her rival from the moment she was told about the placement and the reasons it occurred. In her mind, this made the foster family part of the plot the Applicant fomented in 2010 to ruin her life by taking her child from her. In her mind, the child should have never been apprehended and she alone is now and has always been entitled to parent her. As soon as she was rid of CAS interventions early in 2014, her view was that her daughter should have been immediately returned to her care without terms and irrespective how long the child had been cared for by someone else.

The Applicant (rightfully on the evidence) believed that if the mother, grandmother and child were left alone, the risk of damage to her relationship with the foster parents was real in regard to demeaning comments from the adults or their involving the child in the litigation. There is no doubt in my mind that the mother (at a minimum) would have taken every opportunity to demean the foster parents and attempt to influence where the child ought to reside. This is clear in regard to her comments to the various workers and her evidence today.

In the mother's mind, bonding and attachment are not legitimate issues when her right to parent is at stake. She firmly believes that even though it took her two full years to begin and four full years to complete very basic personal and parenting changes, her right to parent ought to have been held in abeyance while those changes occurred. In her testimony, the mother got all of the "catch phrases" correct when discussing bonding and attachment but in her delivery, it is clear she did not believe that these factors are as critical or as potentially damaging as Dr. Perlman set out. Her evidence how she would address the child's emotional damage when removed from the foster home was expressed with the right words but without any conviction she would ever need the intensive interventions as suggested.

I do not see the mother's attitude toward the foster family or the legitimacy of the Crown wardship order changing at all in the future. She was absolutely clear in her evidence that she would continue to "fight for my right" to parent and she has shown she will use the courtroom (in addition to other initiatives) to do so. She showed her willingness to fight, even if she had no chance of success, when she issued the 2014 Children's Law Reform Act access application to JWJDD. She again showed her willingness by issuing a Notice of Appeal of Justice McSorley's risk findings notwithstanding that the disposition hearing had not yet commenced.

The mother has the right to commence proceedings as she deems fit; however, in the child welfare context, that right is always subject to being balanced against the interests of the child. In this case, the child has remained in a state of limbo for close to six years and Dr. Perlman is clear that this has been an extremely unhealthy circumstance in regard to her emotional well-being. I will not ignore this fact solely in deference to the mother's unfettered personal right to access the justice system.

On the evidence, I find the child's visits with her family will always require close monitoring and this is not conducive to either meaningful of beneficial visits.

Applicant's Involvement in Access

If monitoring were required, it would be so extensive that an access regime would require the assistance of the Applicant. It is clear the mother would not cooperate and its involvement would only further the mother's assumption of a plot against her. She blames the Applicant for her removal from her family as a teen and she blames it for RR-LE's apprehension. She expressed this blame during the risk hearing and in the disposition hearing and this attitude will never change.

Last year, she refused to involve another society to address a sexual assault against another of her children because she was afraid where the complaint might lead. She refused help from an agency to address a child's behaviors because it required access to her home. In her evidence, her lawyer pleaded with her to agree to accept the need for a supervision order if RR-LE was returned into her care; notwithstanding, she refused. At this stage, nothing will alter this attitude.

As explained above, the mother's attitude about the foster mother and the legitimacy of an order keeping RR-LE out of her care is entrenched and will not change simply because the order has been made. Any unmonitored visit between the child and mother will present a risk of destabilizing the child's placement.

Impact on Sibling Relationships

I recognize that in refusing access to the mother, access the grandmother and siblings enjoyed will be disrupted.

From the grandmother's perspective, I am of the view she does not disagree entirely with her daughter's positions respecting either the Applicant or the foster parents. I am of the view the grandmother would use opportunities, if presented in a lax access regime, to promote the mother as a parent figure. I do not see the grandmother's role in access as serving to enhance beneficialness or meaningfulness.

I cannot see how to save RR-LE's access to her siblings. They would have to be brought independently and I do not see the mother being prepared to make this accommodation on their behalf. It would not be long before this relationship would break down resulting in another incident of separation the child would have to endure.

Conclusion on Access

Finally, I have no evidence that halting access with RR-LE's family might adversely impair RR-LE's emotional well-being. The mother alleges a "deep bond" has developed between RR-LE and the access participants but there is no evidence supporting its existence beyond the positive mechanical aspects referred to earlier. Dr. Perlman could have helped on this point but was not given access to the mother or the visits.

On the evidence, the mother and grandmother have not met their onus respecting meaningfulness or beneficialness and their access application is dismissed. On this finding, it is unnecessary to address the adoptability aspect of the s. 59(2.1) test. In the result, the Crown wardship order shall identify that it is "for the purpose of adoption".

Final Order

I therefore order that RR-LE who was born […], 2008 be and the same is made a ward of the Crown for the purpose of adoption.

Justice M.P. O'Dea