WARNING

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

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

45.— (8) 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.

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

ONTARIO COURT OF JUSTICE

IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C.11

AND IN THE MATTER OF A.L., a child apparently in need of protection

BETWEEN:

Kunuwanimano Child and Family Services K. Guillemette

— AND —

S.L. S. Migneault

Y.T. E. Jean

D. Boucher (OCL) for child

HEARD: May 25, 26, 27, August 11, Nov. 3, 4, 8, 9, 10, December 6, 7, 21, 22, 23, 2016 and on written submissions received February 10, 2017

BEFORE: Kukurin J.

REASONS FOR DECISION

[1] INTRODUCTION

These are my Reasons for my decision in this child protection proceeding in which the society was seeking crown wardship of a female child, with no access, for purposes of adoption. That claim changed somewhat during the course of trial.

BACKGROUND

[2] THE APPREHENSION

This proceeding was commenced by a different child protection agency. North Eastern Ontario Family and Child Services (NEOFACS) was the agency that, on September 23, 2014, apprehended the child, without a warrant, at Kapuskasing at the Habitat Interlude Women's Shelter. The child was, at that point, in the physical care of her mother. The child was 10 months of age at the time. She is special needs, and has cystic fibrosis, apparently congenital.

[3] THE MOTHER'S HISTORY

There was a considerable history involving the child's mother, S.L.. Her own mother, M.L., never did raise her. Shortly after S.L. was born, she was placed with a family friend where she was raised until age nine years. At that point, she was made a ward of the crown and continued in that status for the next nine years until she was age 18. On reaching the age of majority, she terminated her crown wardship, and went to live with her mother, M.L., and her mother's partner Y.T.. About two years later, she gave birth to A.L..

[4] THE CONCEPTION STORY

The story of A.L.'s conception has been a fluid one. What is known for sure is that she was impregnated by Y.T. who is A.L.'s biological father. The story is that S.L. volunteered to be a surrogate mother, so that her mother M.L., and her partner Y.T., could have a baby to raise. The initial plan was for her to attend a fertility clinic and become impregnated. However, this became a pie in the sky idea when it became known that OHIP (the Ontario Health Insurance Plan) would not cover the cost of this procedure, and when the actual out of pocket costs became known. A cheap variation was employed, whereby insemination was attempted with a 'turkey baster'. This was unsuccessful. A new plan was devised, which is actually a very old plan. Conception the old fashioned way, through sexual intercourse.

[5] CONFLICTING ACCOUNTS OF CONCEPTION

The story is uncertain at this point because S.L. claims that she was willing to act as a surrogate by way of artificial insemination at a fertility clinic. But she also claims that she was less keen on becoming pregnant by sexual intercourse with Y.T.. Nevertheless, she and Y.T. engaged in sexual intercourse, twice weekly according to her, until a little over a year later, she finally became pregnant with A.L.. This, as explained by S.L. at trial, was entirely against her will and without her consent. Y.T. tells a very different story.

[6] POST-BIRTH ARRANGEMENTS

After A.L.'s birth, the surrogacy role played by S.L. seems to have disappeared. She did not hand the baby over to her mother M.L. and to Y.T.. In fact, she kept the child and breast fed her for a short time, and then bottle fed her, acting for all intents as a regular mother. She and the baby continued to live with M.L. and Y.T. in their home. As far as was known to NEOFACS, which had workers visiting the home even prior to A.L.'s birth, all three were caregivers of A.L..

[7] FAMILY DYSFUNCTION AND DEPARTURE

However, this menage a trois did not function happily. It became somewhat dysfunctional with Y.T. becoming more and more irritable and abusive, to the point that, according to the society, M.L. and S.L. had decided that they would leave with the baby and live elsewhere. This did not materialize. However, by late September 2014, when A.L. was ten months old, S.L. left, semi-surreptitiously, at night, with A.L., after Y.T. and M.L. had gone to bed. S.L. went to the local women's shelter. The society (NEOFACS) was notified, by M.L., that S.L. and the baby were missing. It sent its on call night time child protection worker to the shelter, and confirmed that they were, in fact, at the shelter. In any event, the society left S.L. and the baby there overnight. In the morning, following a meeting of society personnel, the baby was apprehended from S.L. at the women's shelter. She was placed in a foster home in or near the town of Mattice where she has remained now for two and a half years.

THE APPREHENSION

[8] WARRANTLESS APPREHENSION

The NEOFACS agency apprehended A.L. from her mother at the women's shelter. It did so after letting them both remain there overnight after S.L. signed a safety plan. The apprehension took place before noon. It apprehended without a warrant. In fact, according to the evidence, no attempt was even made to obtain an apprehension warrant. The mother and the child were both still asleep upstairs when the society workers returned to the shelter to apprehend.

[9] PERSONNEL INVOLVED

The child protection worker assigned to this family was Ms. M. Dubosq. The night time on call worker was Ms. R. Brazeau (who less than a month later became the child protection worker assigned to this family). Both attended, but it was Ms. Dubosq who effected the apprehension. Also in attendance were two Ontario Provincial Police Officers summoned by Ms. Dubosq and/or Ms. Brazeau for assistance.

[10] GROUP DECISION-MAKING

The decision to apprehend was, according to Ms. Dubosq, not made by her alone. It was a "group" decision. The group consisted of Ms. Dubosq, Ms. Brazeau, Ms. S. Boudreau (senior supervisor), and Ms. M. Violette (described as Program Manager, who participated from Timmins by telephone in the group meeting). While it may have been a group decision, Ms. Dubosq was very clear that she apprehended pursuant to a directive/instruction from Ms. Boudreau and Ms. Violette. According to Ms. Dubosq, the "supervisors" have the last say. She recalled that she was told "to go apprehend the child and to get the OPP for assistance" Ms. Brazeau confirmed this. She indicated that, at NEOFACS, such decisions are made only by supervisors or by upper management personnel, not by front line child protection workers.

[11] STATUTORY REQUIREMENTS NOT ADDRESSED

There was no evidence that any of this "group", and certainly not Ms. Dubosq, the child protection worker who actually apprehended the child, turned her attention to the requirements of s.40(7) of the Child and Family Services Act (the "CFSA") which sets out those circumstances in which a society worker may apprehend without a warrant.

s.40 (7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection; and

(b) there would be a substantial risk to the child's health or safety during the time necessary to bring the matter on for a hearing under subsection 47 (1) or obtain a warrant under subsection (2),

may without a warrant bring the child to a place of safety. R.S.O. 1990, c. C.11, s. 40 (7).

[12] WARRANT AS GENERAL RULE

Section 40 CFSA begins with authorizations from a justice of the peace to apprehend a child [ss.2 and 3]. It then continues with court ordered authorizations to apprehend. [ss 4]. Subsection 6 provides to a child protection worker the authority to enter a place pursuant to the warrant or order to search for and remove a child. It is not until subsection 7 when the CFSA first provides for warrantless apprehensions. This is, in my view, an indication that apprehension pursuant to warrant or order is intended to be the general rule, and apprehension without warrant is intended to be the exception.

[13] WORKER RESPONSIBILITY

The CFSA places on a child protection worker who apprehends a child fairly stringent prerequisites. It does not place these on the worker's supervisor or other superior at the worker's agency. It is the apprehending worker who must answer for what he or she does. To answer that 'my supervisor told me to do it' is an unacceptable answer. The first step in the apprehension process is to assess the situation to determine if the criteria are met for apprehension without a warrant. If they are not, then a warrant should be obtained.

[14] JUDICIAL OVERSIGHT

The CFSA gives extraordinary powers to a society. Who else in our society can legally take a child away from its caregiver? However, it dictates how those powers are to be exercised. Also, and more importantly, it establishes judicial oversight on much of what the society does. One of the first ways in which it does so is to involve a Justice of the Peace who must first be satisfied, based on what the worker puts before him or her, that it is appropriate to issue a warrant to apprehend. What the Justice of the Peace needs is reasonable and probable grounds to believe that, firstly, the child is in need of protection, and, secondly, that a less restrictive course of action is not available or will not protect the child adequately.

[15] HEIGHTENED STANDARD FOR WARRANTLESS APPREHENSION

This is not what a child protection worker apprehending without warrant needs. This worker need much more. She needs reasonable and probable grounds to believe not only that a child is in need of protection, but also that

".... there would be a substantial risk to the child's health or safety during the time necessary to bring the matter on for a hearing under subsection 47 (1) or obtain a warrant under subsection (2) ....(my emphasis)"

[16] TEMPORAL ANALYSIS REQUIRED

This second requirement is a temporal one. It forces the worker to ask:

• How much time would it take to bring this matter to court?
• How much time would it take to obtain a warrant from a Justice of the Peace?
• Is there a risk to the child's health or safety within this time frame?
• What is the risk to the child's health or safety within this time frame?
• Is the risk to health or safety of the child a substantial one?

[17] REASONABLE AND PROBABLE GROUNDS

Not to be minimized, or forgotten entirely, is the "reasonable and probable grounds" to believe all of this, and also to believe that the child is in need of protection. There is plenty of case law that deals with 'reasonable and probable grounds' (R&PG), particularly in the criminal law sphere. It has both a subjective and an objective component, both of which must be present. Moreover, the words "child in need of protection" has a specific meaning in the CFSA and, correspondingly, in apprehensions taking place under the CFSA. The apprehending worker must have R&PG to believe that the child is in need of protection under at least one of the grounds specified under the CFSA in its s.37(2).

[18] SOCIETY'S PRIOR INVOLVEMENT

In this case, the society had been involved with the child A.L. from even before she was born. The first referral recorded by the society was on May14, 2013. The child was not born until [...], 2013, some six months later. She was not apprehended until Sept 23, 2014, when she was 10 months of age. Throughout all of this time, the NEOFACS society had an open file and it was actively involved in visits with the family. It was well aware of the conception story, and well aware of the child's cystic fibrosis condition, and of her periodic trips to Sick Kids Hospital, and also, but maybe less so, of the relationship among the mother, the father and the maternal grandmother.

[19] CIRCUMSTANCES OF APPREHENSION

The NEOFACS night time on call worker, Ms. Brazeau, received a telephone call in the early morning hours of September 23, 2014 from M.L., the child's grandmother. She reported that the mother, S.L., and the child had just left their home by taxi, contrary to the wishes of herself and of the father. After some investigation, Ms. Brazeau found S.L. at the Habitat women's shelter. A.L. was asleep upstairs in the shelter. The story from S.L. to Ms. Brazeau was that she had left the home because of the father's sexual advances towards her. She did not feel safe in the home. As recounted later in her evidence, S.L. had pre-arranged with a taxi service to pick her and the baby up when everyone was asleep. She had packed A.L.'s belongings and her medical requirements in anticipation of leaving. However, M.L. awakened, and she awoke Y.T., who tried to prevent S.L. from leaving with the child. She left anyway. M.L., who was concerned, called the NEOFACS society. She also called the police. She had been advised to do so by Ms. Dubosq, the child protection worker who had enjoined S.L. from leaving the home with the child, and had, in fact, had all three sign a safety plan, one of the tasks of which was for S.L. not to leave the home without first notifying the society (NEOFACS).

[20] SHELTER NEGOTIATIONS

Ms. Brazeau, the on call worker, who was not au courant with the ins and outs of the family, met with S.L. and personnel from the shelter. She testified that S.L., although annoyed with the society's involvement, signed a second safety plan prepared by Ms. Brazeau, in which she promised to stay in the shelter. However, shortly thereafter, she made a telephone call, as a result of which, M.L. and Y.T. arrived at the shelter. At that point, S.L., who had awakened and dressed A.L., was preparing to return to their home. Ms. Brazeau physically blocked S.L. from leaving and gave her an ultimatum – she was to stay in the shelter with A.L., or NEOFACS would apprehend A.L.. Faced with this choice, S.L. stayed at the shelter.

[21] JUSTIFICATION FOR WARRANTLESS APPREHENSION

Was the warrantless apprehension of A.L. justified? She was in a women's shelter. In fact, Ms. Dubosq testified that she had discussed with S.L. her leaving to go to this same women's shelter with A.L. if the situation in the home escalated any further. Women shelter personnel were present to assist the mother. The mother had agreed to remain there, and ultimately, she did. No harm was occasioned to A.L.. If there was a risk of harm, I cannot see where it would be a substantial one. S.L. had cared for this child, together with her mother and Y.T., for over ten months and she was well aware of the child's special needs. Why then, would a society not seek to obtain a warrant from a Justice of the Peace? Was S.L. really a flight risk? Was she, at that point an addict, or at least a drug user? She had a drug test scheduled at 3:00 pm later that day with the society.

[22] PRACTICE OF WARRANTLESS APPREHENSION

I suspect that the answer is that it is just simpler to apprehend. And in fact, this seems to be the practice with NEOFACS, at least according to Ms. Brazeau who indicated that in 21 years as a society worker, she has never once obtained an apprehension warrant.

[23] CRITICISM OF WARRANTLESS APPREHENSION

I have digressed into the area of warrantless apprehensions, specifically to criticize the society over what it did (or rather failed to do) with A.L., and to set out that judicial oversight sometimes calls for educating a society as to what it can and cannot do, and if it is going to do it, to at least address itself to the statutory requirements that permit it to do so. This is even more so the case with Kunuwanimano Child and Family Services, a relative neonate among Children's Aid Societies, who should be wary of perpetuating practices adopted from agencies with lengthier histories, especially wrong practices.

NEOFACS AND KUNUWANIMANO

[24] TRANSFER TO KUNUWANIMANO

Kunuwanimano Child and Family Services became designated as a Children's Aid Society effective May 1, 2015. The court record shows no motion was ever filed seeking a transfer of the case to Kunuwanimano. However, On October 26, 2015, an order was made by Rocheleau J. to "transfer the file to Kunuwanimano". So how did this happen?

[25] FATHER'S ABORIGINAL CLAIMS

A review of the court file shows that the impetus for this transfer was initiated by the father, Y.T. and his counsel. He had requested this by correspondence to NEOFACS. He, in fact, had filed an affidavit advocating for this transfer and indicating that A.T., who was "of Moose Cree First Nation", had adopted him. Hence the supposed connection with the aboriginal community. NEOFACS was resisting this transfer indicating that it needed more than just his say so as to the historical paternal connection. However, no adoption order was ever produced by the father. No customary care agreement was ever shown by him. He produced no affidavit from anyone associated with this band to support his alleged adoptive father's aboriginal connection. There was no evidence that he, himself, had any ties with the Moose Cree band, or that he was entitled to be registered as a band member. He made a statement that he had checked with the Department of Indian and Northern Affairs and received confirmation from them that his adoptive father's aboriginal affiliation had been transferred to him. He produced absolutely nothing from this Department.

[26] METIS CLAIMS

He also claimed that his mother was Metis, and that he, therefore, was as well. How she was Metis was not explained other than to say she "self identified" as Metis through her ancestry. The intimation in this case is that Y.T. self identified as well.

[27] FATHER'S MISREPRESENTATION

The father, as it turns out, did a complete snow job on NEOFACS who, despite its initial reluctance to proceed with the transfer, ultimately consented to it. The endorsement in the court file indicates this was very clearly a consent order. The supporting documentation it asked the father to provide to substantiate his alleged connection to either the Indian or the Metis community was never provided by him.

[28] CHILD NOT ABORIGINAL

This is not a case of misidentification of the child. Justice P. Boucher, the first judge to deal with this matter, made the s.47(2) CFSA identification finding on the first court date, correctly identifying the child as not Indian and not native. That remains the finding to date.

[29] JURISDICTIONAL CONCERNS

What is in issue with this transfer is the territorial jurisdiction of Kunuwanimano Child and Family Services to do anything with this family. This can only be answered by examining the basis for that jurisdiction. I admit to a reluctance as a trial judge whether I should go behind an order made in the course of the proceeding by another judge, the one who made the transfer order. I conclude that I must. Jurisdiction is critical to what the society, as applicant, can do. Moreover, I have much more evidence from the trial than was available to the judge that made the transfer order.

[30] KUNUWANIMANO'S DESIGNATION

The authority of Kunuwanimano arises from a designation made under s.15(2) CFSA by the Minister of Children and Youth Services dated April 29, 2015. The preamble sets out the purpose of the designation which is essentially to deliver child welfare services to Aboriginal children and families in a specified territorial area of Ontario. The designation of Kunuwanimano as a children's aid society is for a list of fourteen Indian Reserves (none of which is Moose Cree First Nation), and for "Aboriginal" persons within a certain huge territory encompassing 139,000 square kilometres which incorporates Kapuskasing, where A.L. was residing when she was apprehended. The designation does not specify whether the "Aboriginal person" it refers to is the child, or a biological parent of the child, or a statutory parent under the definition of parent in the CFSA.

[31] DEFINITION OF ABORIGINAL

An "aboriginal person" is nowhere defined in the CFSA which speaks only of Indian persons or native persons. My understanding is that "aboriginal" includes First Nations, Metis or Inuit peoples of Canada. I presume this is an exhaustive list.

[32] FATHER'S ABORIGINAL ANCESTRY

At trial, I explored the aboriginality of the father which was the only person through whom there could be such a connection. All of the following information was provided by him as hearsay, as the father's only source of this information was his own mother. His mother was born a "C." but was adopted as a youth and raised by the "F." family. The F. family is neither Indian nor Metis. She met and married A.T. in Strickland circa 1969. A.T. was from Quebec and apparently had "ties" with an unknown and unnamed Indian band in that province. He is long since deceased. The father was born in 1977. However he was born of the union of his mother with one F.C. who apparently was in and out of his mother's life. The father was given the surname "T." and has used it since birth. He was never adopted by Mr. A.T., but merely used his surname as his own. A.T. came to Ontario from Quebec and settled in the Strickland area which the father says is in or close to the Moose Cree First Nation area. This is the only connection that A.T. had to Moose Cree.

[33] METIS CONNECTION

On his mother's side, I explored her Metis connection. His mother comes from New Brunswick. It is not known whether her birth family, the C.'s, were First nation or Metis or non-native. Other than birth, she had no real connection with them. She was raised in a non native family. The Metis connection arises from an internet search that the father did on the surname "C." in the province of New Brunswick (which was not produced at trial but) which the father says has some Metis connections or earlier connections with the Miqmaq Indians who are indigenous in that part of Canada. The father did not locate the biological parents of his mother through his researches. He admitted that his mother "did not do much in the Metis culture". This is the only connection of the father with the Metis culture. He does not himself have any personal connection with Metis.

[34] LACK OF ABORIGINAL STATUS

My conclusion is that the father is not Aboriginal in any sense. He is not through his biofather about which nothing is known but his name. Nor is he through his mother's husband, who had never adopted the father. He is not Metis through his mother who is not Metis herself. Neither are the mother or the child in this case who are both white and non-native. Accordingly, Kunuwanimano has absolutely no jurisdiction by its designation as a children's aid society to provide services to this family, and has absolutely no jurisdiction to be the applicant in this child protection case. This "file" ought never to have been transferred. The fact that it was transferred was due to misinformation placed before the judge that made the order of transfer, the consent of all parties to the order for transfer, combined with the inept investigation of NEOFACS as to the requirements for transfer, and I suspect, some underlying personal, political, or monetary interests.

THE MOTHER

[35] SUMMARY OF INVOLVEMENT DOCUMENT

S.L. was the subject of a "Summary of Involvement", a 42 page, single spaced document completed by Shannon Lyttle and dated April 17, 2014. This documents S.L.'s life from her birth to age 18, and a bit beyond. Shannon Lyttle is a colleague in the NEOFACS agency of child protection worker M. Dubosq, and was asked to prepare a full summary of the society's (NEOFACS) historical involvement with M.L. and S.L.. The entire document is completely hearsay and clearly assembled from NEOFACS case notes or quarterly summaries, or from other records of this or other societies who had as their sources only God knows what. On objection by one of the counsel in this case, I ordered this document to be struck from a society affidavit to which it was appended as an exhibit. Despite this, I allowed it to be re-introduced as an Appendix to a Statement of Agreed Facts tendered by the mother and the society later during the course of the proceeding for reasons I will get to later in this decision.

[36] EARLY LIFE

I do not have the luxury of the time to repeat all of the factual information contained in this 42 page document. It documents S.L.'s early life (her first nine years) and her pre-teen and teen life (her second nine years). Anyone reading this document would be immediately struck by the poor hand that S.L. was dealt in her early life.

[37] FIRST NINE YEARS

For about the first nine years, she lived in the Niagara area with S.W., a friend of S.L.'s mother who initially took S.L. in, and then refused to return her. Ultimately, S.W. obtained a court custody order for S.L. in October 1995 when S.L. was about 2 ½ years of age. S.L. remained in the W. household with S.W., and a succession of her four common law partners, and their children. During this time, S.L. was diagnosed with ADHD and with "Separation Disorder" behaviours. From ages 5 to 9, according to reports from S.L., she was sexually abused by one of S.W.'s partners, which abuse included full penile/vaginal penetration and oral sex. In addition, there were many beatings and spankings with both a wooden spoon and a belt by S.W. and her partner, and S.L. is reported to have claimed that she was sexually assaulted on a daily basis by S.W.'s "boys". Academically, S.L. underwent a Psycho-Educational assessment which contained words such as "borderline, weaknesses, aggressive and delinquent behaviours, anxiety/ depressed, attention problems" and so on, all of which landed her in a s.19 classroom identified as an exceptional student with complex behavioural needs. Her school attendance was interspersed with periods of truancy and suspensions for misbehaviours.

[38] CROWN WARDSHIP

Not surprisingly, the Niagara society became involved with S.W. and her family. When S.W. cut her own wrists and was held for an assessment under the Mental Health Act, the Niagara society began to look at S.L.'s birth family. S.L. was placed with her maternal grandmother (K.B.) while the society investigated a return to her mother, M.L.. During this time, S.L. and her mother, M.L., had enough time together for M.L. to realize she could not handle S.L.'s extreme behaviours. Not long thereafter, her grandmother requested that S.L. be removed from her home for the same reason. At this point began a spiral into an inevitable crown wardship order and a succession of foster home placements, almost all of which broke down as her behaviours worsened. As she got older, she was shunted into group home placements.

[39] CROWN WARDSHIP INADEQUACIES

For the second nine years, more or less of her life, S.L. could easily be a poster girl for the inadequacies of the crown wardship system in Ontario. This may be a touch unfair as S.L. came to crown wardship with a lot of baggage. But being a ward of the crown did not help her life to improve. The lack of stability in her life as a crown ward is reflected in the following statement from the author of the summary:

"...between September 18, 2002 and February 24, 2011 .... she experienced 100 placement moves (many, repeat placements)..."

[40] BEHAVIORAL ISSUES AS CROWN WARD

As a crown ward, S.L. engaged in multiple and increasingly serious misbehaviours. This included everything from petty thefts to threats to kill others, suicide attempts, sexualized behaviour, lengthy temper tantrums, destruction of property including a serious arson, self mutilation, and of course, smoking. She kept seeing psychiatrists and was diagnosed with Adjustment Disorder, Bipolar Affective Disorder, Disturbance of Mood and Conduct Disorder, and possible Developmental Delay. She was prescribed a series of different medications, none of which seemed to control her behaviour. She became involved in the Youth Justice system, which, in days long gone by, would have considered her to be a juvenile delinquent. In short, her status as a crown ward could only be described as dismal. It is small wonder that when she turned 18, she wanted out.

[41] DISCHARGE FROM CROWN WARDSHIP

This was the adult graduate that was discharged from the crown wardship school of hard knocks. On discharge, she had not yet finished high school. She was taking Concerta, Seroquel, Sertraline and Depo-Provera (a birth control medication). She was also on probation from youth court. She had called her mother to come to get her, which she did, on February 24, 2011, at her group home in Marmora (near Belleville), Ontario.

[42] MEDICATION WITHDRAWAL

S.L. was described by both her mother and Y.T. as "zombie like" when she initially came to reside in their home. She eventually asked them to get her off of her medication which she felt was the cause of this condition. They did so, gradually weaning her off everything, over a period of several weeks.

[43] FINANCIAL DEPENDENCE

According to the facts at trial, S.L. was financially dependent on her mother and on Y.T. for necessities as she had no income of her own. She made some friends in the community of Kapuskasing, one of which was J.J., age 43, a very close friend, to whom she referred as her "street mom", and who played a role in what ultimately happened.

MOTHER'S CHANGE OF POSITION MID TRIAL

[44] STATEMENTS OF AGREED FACTS

S.L., as the child's mother, was a statutory party. She wanted A.L. to be returned to herself throughout most of this proceeding. However, this changed on December 6, 2016, approximately half way through the trial, and just after she had testified viva voce. As a result of discussions involving her, her counsel and counsel for the society – but not including the father or his counsel – the society filed two Statements of Agreed Facts signed by the mother and the society. I admit to having been surprised by these but admitted them as trial evidence, with the caveat that they would be dealt with in my decision.

[45] FIRST STATEMENT OF AGREED FACTS

The first Statement of Agreed Facts was only for the purpose of re-introducing the 42 page "S.L. - Summary of Involvement" back into evidence, notwithstanding its completely hearsay nature. The main statement made by the mother and the society is that the statements [on this form] are true. The Summary of Involvement is referred to as "attached" to this Statement of Agreed Facts. It does not deal just with S.L.. However, to the extent that it does, I was prepared to admit it into evidence as being the truth as S.L. obviously agreed that it was the truth. As to other hearsay statements contained in it that refer to others, I do not accept them as the truth of what they refer to.

[46] SECOND STATEMENT OF AGREED FACTS

The second Statement of Agreed Facts was again signed by the mother as well as on behalf of the society. This is a much more significant Statement of agreement between these parties. In this Statement, the mother, S.L., agrees that a finding be made that the child is in need of protection under only one ground in s.37(2) CFSA, namely clause (b)(i). In addition, the mother and the society agree that A.L. be made a crown ward, and that there be an order for an access visit by the mother once per week for three hours, subject to review if there are changes in the mother's circumstances, and in the child's best interests.

[47] DRAMATIC DEPARTURE FROM PRIOR POSITION

This is a dramatic departure from the mother's claim up to this point in time. And also one for the society as well. I asked the mother's counsel if she would recall the mother. However, the mother declined to be further examined. Her counsel asked to be excused for the balance of the proceeding, and with my permission, she left.

[48] SOCIETY'S CHANGE IN POSITION

The mother has changed horses and now is conceding a finding that A.L. is a child in need of protection, and that she should be a ward of the crown. The society agrees with her on both these points. It also agrees that maternal access is an appropriate order to make. This is a big change in the case for the society. Its initial claim in this proceeding is set out in paragraph [1] above, and is clearly for crown wardship, with no access, for purposes of adoption.

[49] GROUNDS RELIED UPON

Moreover, as is clear in its submissions, the society continues to rely in this case on grounds under s. 37(2) (b)(i), s. 37(2) (b)(ii) and s.37(2) (g). These are all "risk" grounds. It also agrees that the mother was "the person having charge of the child" for purposes of s.37(2) CFSA. Where does this leave the society? I will deal with grounds further below.

[50] ACCESS AND ADOPTION

One other thing that the society has done is painted itself into a corner with respect to the matter of access. If it agrees to an order for maternal access in the context of crown wardship, then clearly it must be advocating the existence of both parts of the two part test in s.59(2.1) CFSA, namely, that access will be meaningful and beneficial, and that it will not impair the child's future opportunities for adoption. I will deal with this further on in these Reasons.

[51] NO ACCESS FOR FATHER

However, the society is also advocating for a no access order in favour of the father (or of the maternal grandmother, M.L.), which is only possible if the court finds that either one of these two pre-requisites is not present with respect to them.

[52] MOTHER'S DEPARTURE FROM PROCEEDING

In any event, the mother and her counsel have departed from this proceeding, presumably confident that matters will unfold as they and the society have agreed, and that her maternal relationship with A.L. will continue in the context of a crown wardship order. There was no assurance, at least from the court, that at the end of the case, there would be a crown wardship order, or if there was, that any parental access would be ordered. The mother's counsel has not participated any more in this case, but unlike OCL counsel, has not been removed as counsel of record for the mother.

CREDIBILITY OF THE MOTHER

[53] PATTERN OF DISHONESTY

The mother, S.L., is a practiced liar or has a phenomenally poor memory – or both. I suspect both. She has lied to just about everyone – to the society child protection workers, to her doctor and to the Sick Kids clinic personnel. Perhaps the most egregious of her lies have been to this court in her sworn testimony. Among the most notable of her lies are those to the police.

[54] INCONSISTENT STATEMENTS TO POLICE

In May 2013 there was an "anonymous" referral that reported to the (NEOFACS) society the mother's pregnancy, the father's sexual intercourse with her, the surrogacy plan and a number of other allegations. This information was passed on by the society to the police. According to the Summary of Involvement, which S.L. concedes to be the truth, OPP constable Cynthia D'Amours met with and interviewed S.L. about this referral in September 2013. At that time, S.L. reported that she had been having consensual sexual intercourse with Y.T. for the past two years, that she was a surrogate for him and her mother, that she was not feeling "trapped or isolated" and that she was receiving pre-natal care monthly. Yet she testified at trial that not one act of sexual intercourse was consensual, that she was forced into sex, that she was locked in the bedroom by her own mother M.L. who remained in the bedroom on every occasion of sexual intercourse, that M.L. was always on the bed with S.L. and Y.T., and was actually undressed for some of these times and facilitating the intercourse. This is denied by both Y.T. and M.L. and cannot be true as M.L. was away from home on at least one of these occasions when she was herself having a medical operation elsewhere. In any event, this viva voce testimony at trial is at extreme odds with what she is reported to have said to the police during this earlier interview. The police, incidentally, did nothing, as S.L. was an adult, was entitled to have sex with whomever she wished, for whatever reason she wished.

[55] SEXUAL ABUSE ALLEGATIONS

S.L. and the society refer to the "sexual abuse" she suffered at the hands of Y.T.. There was some difficulty pinpointing what the abuse consisted of. It is clear that, at trial, the sexual intercourse was considered sexual abuse by S.L.. However, sexual intercourse stopped when pregnancy was confirmed in February 2013. That it stopped then was confirmed by Y.T., by M.L., and even by S.L..

[56] ALLEGATIONS OF OTHER SEXUAL ABUSE

However, the society evidence is that it was trying to "deal/investigate" the allegations of sexual abuse made by S.L. against Y.T." which have yet to be reported to the police ". The context of this was that it was abuse that occurred much later, after the sexual intercourse stopped. What it was alleged to consist of was one or more of the following:

(a) A report of the "fingering" of S.L. by Y.T. allegedly in early September 2014 (September 4, 2014) while she was sleeping on the sofa. She awoke and asked him to stop. He did. She then went to bed. This incident was isolated and according to S.L., happened only on this one occasion.

(b) On September 25, 2014, S.L. confided to Ms. Dubosq that Y.T. had sexually abused her six (6) times since she last had spoken to Ms. Dubosq. The details were scant, namely that he had " touched her ". The last time S.L. and Ms. Dubosq had spoken before this date was on September 23, 2014 when the child was apprehended, and the time before that was September 22, 2014 when Ms Dubosq was at S.L.'s home for a weekly follow-up and was able to speak with S.L. alone.

(c) On September 23, 2014 at the women's shelter, S.L. told Ms Brazeau that she left her home because she felt unsafe because Y.T. had " been sexually abusing her for the last 4 years " and that " recently, [Y.T.] had begun trying to get into her pants again... ". No details were provided as to what she meant by "recently" and whether or not he did get into her pants again.

(d) On December 6, 2013, at MacDonald's Restaurant, S.L. signed a letter which was an apology to Y.T. and M.L. for the rumours going around, and for the things she had said out of anger or to benefit her case concerning A.L.. She assured the society that this would stop and confirmed that Y.T. had NOT been sexually assaulting her. At the instance of her worker, Ms. Brazeau, S.L. shortly thereafter attended with Constable Rumble and recanted the contents of this letter claiming that it was probably concocted by Y.T., presented to her by M.L., and she initially refused to sign it, but because people were starting to stare, she "just signed it" This was recounted to OPP Constable Rumble on December 9, 2014 during a videotaped interview with S.L. alone, which was overheard by society worker R. Brazeau, who reported this in her evidence in chief.

[57] ANALYSIS OF SEXUAL ABUSE ALLEGATIONS

The society, in its evidence and in the testimony of its witnesses, seems to lump the sexual intercourse abuse allegations with allegations of S.L. of incidents of other sexual abuse by Y.T. that could not have taken place until well after the child was born. What is clear is that sexual intercourse was for the purpose of conception, and clearly ended when S.L. confirmed she was pregnant. This was no later than April 2014 (and as early as February 2014) when she confirmed this with her doctor. Was this sexual intercourse tantamount to sexual abuse? On the basis of all of the evidence, I cannot come to this conclusion. S.L. herself indicated to the police and to the society workers "... that initially, the sex [sexual intercourse] was consensual but not thereafter" So I am left with consensual sexual intercourse that had been reported to the police as being consensual at least twice by S.L., and who did nothing about it. Throughout all of the time that this sexual intercourse was going on, S.L. was very obviously free to do whatever she wanted. She could leave the home and did so quite often when still residing in Kapuskasing.

[58] EVIDENCE OF COMPLICITY

Moreover, S.L. was using pharmaceutical means to determine her optimum fertility periods, as well as pregnancy tests to determine if she had conceived. In addition, S.L. had been prescribed Depo-provera, a birth control medication, when she left crown wardship at age 18, and she clearly had decided not to continue with this medication. Then there is the story about the "turkey baster" method of insemination which, though unsuccessful, provides some basis for complicity of S.L. in the plan for her to become pregnant with Y.T.'s child. Finally, there was the apparently fictional story recounted to others, about a one night stand with "Jake", a male person at a party out of town which resulted in the pregnancy. These are stories recounted by S.L. herself.

[59] CONTRADICTORY BEHAVIOR

Perhaps the most compelling reason to reject S.L.'s trial evidence about the sexual intercourse is because of her actions in continuing to seek out Y.T. and M.L., which continued even after she left the home. In fact, she gave as her reason for leaving that she felt " unsafe " in the home because Y.T. had been abusing her for the past four years (obviously a lie or a gross exaggeration as she was still a crown ward four years previously), and " she could no longer endure the sexual abuse so she had decided it was time to leave ". Yet when Ms. Brazeau attended at the women's shelter, S.L. had called Y.T. and M.L. and was in the process of returning to their home with them, and would have done so but for Ms. Brazeau's threat to apprehend if she did. Even after the apprehension, S.L. contacted Y.T. and M.L. many times asking for financial assistance, for transportation assistance, for assistance with a landlord, and for who knows what else. This behaviour is completely contradictory to the kind of behaviour that would be expected from a victim towards her sexual abuse perpetrator.

[60] LACK OF DETAIL IN ALLEGATIONS

As for allegations of other sexual abuse by Y.T. towards her, I am left with hearsay evidence of the society workers as to what S.L. told them this entailed. The fingering episode was the only one with any detail and, by her own account, she told him to stop and he did. No details were provided about how Y.T. was trying to " get in her pants again ". As for the six incidents reported by S.L., firstly, there was no detail, and secondly, they could not have happened between September 22 and September 24, 2014 because of other events that took place during this time period.

[61] DENIALS BY OTHERS

In addition to all of the foregoing, both Y.T. and M.L. deny that the sexual intercourse was not consensual. M.L. denies ever being present when it was going on or participating in it. Y.T. has consistently denied any other sexual abuse or the "fingering" incident and claims that S.L. fabricated these stories which she then told to her friends thereby starting rumours in the town.

[62] PATTERN OF MISLEADING INFORMATION

S.L. also lied to the society. Ms. Dubosq referred to S.L.'s "pattern of providing misleading information" and that she "kept getting lies or not the full truth" S.L. gave the society several variations of the conception story. When the "fingering" allegation came about (in early September 2014), S.L. was advised by Ms. Dubosq to contact the OPP, but she did not do so. Ms. Dubosq herself contacted the police about this and was told that it was up to the complainant (S.L.) whether she wanted to make this report or not. Moreover, after September 23, 2014, S.L. never again resided with Y.T. and M.L. so it is extremely unlikely that this is the truth.

[63] LACK OF RECOLLECTION

But perhaps the testimony that persuades me the most that S.L. ought not be believed is her lack of recollection. After the apprehension, she advocated for A.L. to be placed with S.W. as a kin caregiver, the same person whom the Summary of Involvement claims was abusive to S.L., and from whose care and custody S.L. had been removed when she was nine years of age. S.L. was confronted with her allegations of abuse at the hands of S.W., and of her partners, by NEOFACS worker R. Brazeau and responded that " she does not recall making those allegations "

[64] SUBSTANCE ABUSE AND MEMORY GAPS

S.L. did also not recall at trial about any interview in September 2103 with OPP Constable D'Amours when she was questioned about her own role and Y.T.'s role in her pregnancy. She also had no trial recollection of having stated to Ms. Dubosq that Y.T. had abused her sexually six times since their last encounter. She had no trial memory of having told Ms Brazeau at the women's shelter that Y.T. " had begun trying to get into her pants again " and giving as her reason for leaving the home that she had suffered abuse " for the last four years or so " and that she felt " unsafe " there. She was equally vague at trial about her recollection of society documented occasions of her having consumed " molly " (ecstasy and marijuana) and cocaine near the end of November 2014, of being intoxicated at the society's offices and having a 2 litre bottle of alcohol on Feb 7, 2015, of reporting she had just done a six day binge on "speed" on March 13, 2015, of having shared that she did " molly, speed and drank " on March 24, 2015, and that " she wants to get high all the time now and no longer cares what the drug is " She also did not recall confirming her daily use of pot in September 2015. She claims she went for a drug screen the day of apprehension but never received any results. This is not an accurate recollection as it is contradicted by both Ms. Brazeau and Ms. Dubosq, both of whom claim that S.L. never came for the drug test on that date.

[65] CONTRADICTORY DESIRES

Notwithstanding her position at the start of trial, S.L. is clearly against Y.T. and M.L. having care and custody of A.L.. She recounts a lot of home conflicts, arguments, fighting and name calling leading up to her flight to the women's shelter. Once she had left the home, and the society on call worker located her, the first place she wanted to go was back to her home with M.L. and Y.T., the exact place she had left only hours before because she did not feel safe there due to Y.T.'s " sexual abuse " of her.

[66] OVERALL ASSESSMENT OF CREDIBILITY

As a result of her poor memory, her acknowledgement in her Statement of Agreed Facts of the truth of events she claimed, at trial, that she did not recall, her statements to the police inconsistent to what she recounted at trial, her lack of recollection of admissions she had made or of observations made of her of when she was using drugs or alcohol, or both, and her stated reasons for leaving the home juxtaposed to her wish to return there only hours later – all of these make me doubt almost anything that the mother says. In addition, if the sexual intercourse was as non-consensual as S.L. describes, she had friends in the community of Kapuskasing and could simply have left the home to stay with one of them, and reported the abuse to the police. She never did. Her involvement with the police was always at the instance of the society (NEOFACS). My review of her Summary of Involvement indicates she was anything but shy about anything she did. I cannot believe that this sexual intercourse was sexual abuse, especially when she was doing ovulation tests and home pregnancy tests throughout this time. She was not held captive, as she herself admitted to leaving the home, and even staying out overnights, both before and after the birth of A.L.. The society documents many occasions of hearing stories from S.L. and then hearing recantations of these same stories. Even the anonymous referral (ultimately identified at trial as R.J., a friend of S.L.) the society received on September 3, 2014 cautioned that S.L. " made up all kinds of lies in order to get attention " and consequently her information should be considered with caution. The society itself admitted to being, if not sceptical, at least confused, about the truth of S.L.'s allegations considering her " pattern of providing misleading information ". I conclude that S.L. communicated what she did out of expediency, recanted what she had said when driven by other pressures, or escaped to the 'I don't remember that' response when all else failed. She was not even a good liar.

[67] SUBSTANCE USE AT TRIAL

Finally, I suspect that S.L. was still using substances by the time of trial. She had an abrupt change of position on both finding and disposition with no explanation for such drastic changes. This was even more surprising as throughout her trial testimony, she was clearly advocating a return of A.L. to her care. She declined to be further examined following the mid-trial filings of her Statements of Agreed Facts. She had taken no substance abuse treatment by the time of trial even though she had admitted to the society that she was "addicted". She was still involved with friends who she admitted were drug users, especially J.J. with whom she specifically admitted drug use. These all support my conclusion that whatever S.L. says must be taken with a great deal of caution, if not outright rejected.

[68] SOCIETY'S RELIANCE ON MOTHER'S EVIDENCE

The society's evidence, considered globally, consisted of information that it obtained primarily from S.L. or from observations of S.L.. Despite its own assessment of S.L.'s lack of credibility, it continued to act on the assumption that what S.L. told them was (mostly) true. In fact, it continued to do so even at trial despite overwhelming evidence that she ought not be believed.

THE FATHER Y.T. AND MATERNAL GRANDMOTHER M.L.

[69] FATHER'S EMPLOYMENT AND LIVING SITUATION

Y.T. remains, to this day, in a common law relationship with M.L. and they reside in a home that they bought in Kapuskasing. He works for General Motors from December to March or April, two weeks on day shift (7:30 am to 4:45 pm), and then two weeks on night shift (5:30 pm to 2:15 am). From March or April to December, he works for TSM (Total Street Maintenance) as a trucker. His hours at TSM are long and uncertain, starting at 6:00 am and usually stretching from 13 to 16 hours per shift. M.L. does not work. She is on a disability pension with ODSP (Ontario Disability Support Plan).

[70] FATHER'S ACCOUNT OF CONCEPTION

Y.T. confirmed that A.L. was the result of his sexual intercourse with S.L.. However, he tells a very different story than she does. According to Y.T., it was S.L. who volunteered to act as a surrogate to produce a child not only for her mother, M.L., who was unable to have children due to a gastric by-pass operation, and whose tubes had been tied long before, but also for Y.T., who apparently desperately wanted a child to raise with M.L.. She overheard them talking about this and came up with the idea. The fertility clinic option was researched, by S.L. for sure and also by M.L., and quickly died as the cost and expenses became known. The turkey baster was obviously discussed because all three at some point refer to it. According to Y.T., he twice produced an ejaculate which he claim S.L. inserted into her vagina. Neither Y.T. nor M.L. were present when S.L. did this. However, S.L. also provided this story of how conception occurred to her child protection worker M. Dubosq. This is important from an evidentiary point of view as it lends credence to the involvement of S.L. as a willing participant in at least this aspect of the plan to produce a child.

[71] PSYCHIATRIC CONSULTATION

Y.T. recounted at trial that he raised the prospect of sexual intercourse as a viable route to conception. He agrees that all three were initially awkward with this but it was not dismissed entirely. He admitted at trial that he knew it was "wrong" but attempted to justify it by the fact that S.L. was an adult, that she had volunteered to be a surrogate, and that it was not illegal as he was not biologically related to her. He stated that he explained the mechanics step by step to S.L. and gave her plenty of time to consider the idea. In fact, he had M.L. take S.L. to a psychiatrist to ensure that she was mentally capable of consenting to this and had the mental stability to see it through. S.L. confirmed that she did, in fact, make an appointment with and did see the psychiatrist, although she did not disclose to the psychiatrist that conception would be by sexual intercourse with her "stepfather". However, S.L. stated that she saw the psychiatrist after she was already impregnated, possibly a month or so into her gestation, a considerably different account from that of Y.T., who claims she saw the psychiatrist in July 2012, long before conception. Moreover, she says she told the psychiatrist that she got pregnant after a "one night stand" with a guy. S.L. testified that she went to see the psychiatrist because Y.T. wanted to make sure she was okay with the surrogacy plan. Although M.L. went to the psychiatric appointment with her, S.L. spoke with the psychiatrist in private.

[72] CHANGED SURROGACY PLAN

It is clear that the plan to conceive by sexual intercourse between stepfather and stepdaughter, was poorly thought out and fraught with problems. As it turned out, these problems materialized. The relationship between M.L. and Y.T. changed. Spousal infidelity became an issue for M.L., as no doubt did the fact that her daughter was having sex with her common law husband in their own home, regardless of the reason why. The plan for surrogacy also changed, and based on the evidence, it may even have changed before A.L. was born. The new plan was for all three to raise the child in their home, and basically to hold out to the world that the father was a male friend of S.L.. In fact, the society was informed at one point that the biological father was an acquaintance of S.L. named "Jake" from the Belleville area who had a one night stand with S.L. when she went there to visit a friend. This story was clearly a lie and conceivably dreamed up, at least partially, by S.L. who had lived in the Belleville area when she was age 18 and still a crown ward. The dynamics within the household also changed dramatically and led to arguments and name calling, and these changes were compounded by residential moves that the family made during the years that S.L. was a part of the household.

[73] RESIDENTIAL HISTORY

Piecing together the history from the various testimonies, it appears that Y.T. and M.L. were residing in Holtyre, Ontario when S.L. left crown wardship and she came to live with them. Their residential moves after that were as follows:

• February 24, 2011 – at Holtyre, Ontario
• May 2011 – to A[…] Street, Kapuskasing
• January 2012 – to L[…] Street, Kapuskasing
• Spring 2013 – to Opasatika, Ontario
• May 2014 – to E2[…] Avenue, Kapuskasing (Y.T. and M.L. to date)
• Sept 23, 2014 – to Habitat Interlude Women's Shelter (S.L.)
• Sept 2014 – (S.L.) to a series of short term accommodations all in Kapuskasing including currently at D[…]; previously with a boyfriend D. and his girlfriend, at C[…]; with J.J., at E1[…]; with her then boyfriend B., at B[…]; on Centenniel Court, again with J.J.; and more recently with her now ex-boyfriend M.B. with whom she occasionally cohabited.

[74] SEXUAL INTERCOURSE TIMELINE

According to the chronology, sexual intercourse took place at A[…] Street and at 11 Lang. By February 2013, her pregnancy was confirmed at the local hospital. At that point, all sexual intercourse stopped. All agree on this which makes some sense as the objective of the intercourse was to conceive. While living in Kapuskasing prior to the birth of A.L., S.L. lived basically an unrestricted life. She came and went as she pleased and found her own circle of friends. So far as can be determined, once pregnancy had been confirmed, S.L. did not take any drugs. She attended pre-natal clinics, all with M.L.. The family moved to Opasatika, which is commuting distance from Kapuskasing, but is basically a village. While there, S.L. discontinued her relationships with her friends, mainly because she had no transportation, but not happily so. She wanted to return to Kapuskasing to be with them.

[75] DISCLOSURE TO FRIENDS

She admits that she divulged her acts of sexual intercourse with Y.T., and her pregnancy, and her plan to be a surrogate with some of her friends. It is a reasonable inference that J.J. was one friend with whom she shared this confidence. In the "Summary of Involvement" is a reference to a May 14, 2013 referral by an anonymous person to NEOFACS who knew too much about what was happening in the home, not to have received this information from S.L..

[76] FATHER'S PERSONAL CHARACTERISTICS

Y.T. is asthmatic and has an air purifier in the home. He does not smoke or drink. He does not do drugs and is totally against the use of illegal drugs. He is in a long term relationship with M.L. and they own their home in Kapuskasing where they reside. He is gainfully, if seasonally, employed but this appears to be year round.

[77] FATHER'S TRIAL TESTIMONY

At trial, Y.T. was a less than exemplary witness. He was clearly reluctant to talk about the sexual intercourse he had with S.L.. He tended to stray to tangents whenever the questions became too intrusive. He would answer questions not asked. He did admit to broaching the sexual intercourse alternative to S.L., and claims he gave her time to think about it. It was S.L., according to Y.T., who approached him one day on his coming home from work saying basically that she was ready, and that is when sexual intercourse began. Y.T. was adamant that the sexual intercourse was always consensual and that it was private, between himself and S.L.. M.L. testified that the first time sexual intercourse occurred, M.L. was told about it after the fact. M.L. denied that she was physically present when they had intercourse. She would stay elsewhere in the home or went for a walk. But she knew when it was happening most of the time. Y.T. also denied any other sexual impropriety with S.L., and specifically the alleged "fingering" that she claims happened.

[78] FATHER'S ACCOUNT OF CHANGED PLAN

His story is that S.L. was a willing participant, initially as a surrogate, but at some point, the plan for surrogacy evidently changed. It was difficult to determine when that occurred, or whether it occurred as a result of a discussion and agreement among the three adults. The plan that replaced the surrogacy plan provided for all three adults to live in the home and to share in the raising of A.L.. This is what happened after the child's birth. This is the picture that was portrayed to the community. This was what the society itself observed to be the case according to the testimony of its witnesses.

TEMPORAL CONSIDERATIONS

[79] TIME SENSITIVITY OF CFSA

The Child and Family Services Act is time sensitive. This is primarily because of the fact that children do not live in a vacuum once removed from their usual custodian and caregiver. They continue to grow and mature and to form new relationships. Conversely, they still have their family of origin relationships which are intended to be fostered while the child resides elsewhere. In this case, the child A.L. was apprehended without the consent of either of her parents and was placed in a foster home in Mattice which is a small community west of the child's normal residence in Kapuskasing. This was done without court order. In fact, the court was not involved until some days later.

[80] FIVE-DAY REQUIREMENT

The CFSA requires an apprehending agency to have a child (that is, an application with respect to the child) before the court within five days of being apprehended. It is virtually impossible to hold an immediate hearing within those five days as no one is really ready to argue. Hence the society will generally bring a motion seeking an order for temporary care and custody, which itself cannot be argued for the same reason. At that time, an interim order is made (usually on a without prejudice basis) to validate where the child will be while the child protection proceeding is ongoing - and the motion is adjourned to be heard later.

[81] TIME CONSTRAINTS IN CFSA

However the CFSA, being time sensitive, has some definite things to say about time. So also do the Family Law Rules (The "Rules") which provisions apply to child protection proceedings.

[82] TWELVE-MONTH LIMITATION

The CFSA has in its section 70, a limitation on the time that a child can be in the temporary care of a society. For a child of A.L.'s age, that period of time is 12 months. "In care" means as a society ward or under a temporary order. I take the position that this time starts running when the child is apprehended. Clearly, the passage of time is very prejudicial and especially so to "parents". The society will inevitably have to amend its initial application to one of crown wardship if it does not move with the alacrity required by the CFSA to meet its time lines.

[83] PROCEDURAL TIMELINES

There are two procedural time lines that apply to this case specifically. One is regulatory; the other is statutory.

[84] TEMPORARY CARE AND CUSTODY HEARING TIMELINE

The hearing of the motion for temporary care and custody is governed by Family Law Rule 33 and is to be completed within 35 days of the date the child protection application is commenced. The society's motion for temporary care and custody in this case was not completed within the 35 days. In fact, the continuing record indicates that it was heard only on October 18, 2016, more than two years after the case was started.

[85] FINDING TIMELINE

The statutory timeline is found in section 52 of the CFSA, which is arguably more critical, and is concerned with a finding that a child is in need of protection. This is a timeline that is imposed on the court. In this case, this finding should have been made in early 2015. It is now 2017, two years down the litigation road, and the issue of a finding is only being made in this decision after a trial.

[86] SOCIETY'S RESPONSIBILITY FOR DELAY

It is the society which is the applicant in child protection cases. It is the society which is the litigant best equipped to control the pace of the litigation. When steps in the case such as the temporary care and custody hearing and the finding that a child is in need of protection (the onus of proving which is always on the society) are delayed beyond what the CFSA and the Rules dictate, it is generally logical to point the finger of blame at the society. That is not to say that the Respondent parents are totally blameless in the issue of delay. However, for an institutional litigant who is, or should be, well versed in the time sensitivity of the CFSA, it is customary to expect the society to move the case along as close to the timelines as possible. More importantly, if the society drags its feet, it cannot be allowed to argue that delay in the case is a factor that should work against the respondent parents.

FINDING THAT THE CHILD IS IN NEED OF PROTECTION

[87] BURDEN OF PROOF

As just mentioned, the onus is always on the society to satisfy the court that the child who is the subject of the child protection proceeding is in fact "a child in need of protection". The CFSA defines what is meant by this phrase in its subsection 37(2). There are a number of descriptions of grounds under which such a finding can be made. This is arguably the most important of the judicial checks and balances on the authority given to a society. Without such a finding being made, the case is over, and the child, if apprehended, must be returned to the person or persons who had charge immediately prior to the removal of the child by the society.

[88] GROUNDS RELIED UPON

There are many grounds which could lead to a need for protection finding. The society, in its application (and in its submissions at trial) specifies which of these it is relying upon. In this case, it relies on subsections 37(2) (b)(i), 37(2) (b)(ii) and 37(2) (g). All of these require the finding of a "risk" of harm to be demonstrated by the evidence, and to be so demonstrated on the balance of probabilities. What is also common to all of these subsections is the need of the society to prove, and for the court to find a causal connection between the risk of harm and the acts, or omissions, of "the person having charge of the child".

[89] PERSON HAVING CHARGE

Clearly, it is critical to decide who had charge of A.L. and to see what such person or persons have done or have failed to do that has led to a risk of harm. In this case, the society argues that the child's mother S.L. was the person who had charge of the child immediately prior to apprehension. While I accept that this is true, it is not completely true. So too did Y.T., the child's father with whom the child had resided continually since birth up until the moment that S.L. left the home with the child without his knowledge or his consent and, when he discovered she was leaving, contrary to his wishes. He was a custodial care giving parent just as was S.L.. One cannot become a person having charge by surreptitious removal of a child from another person who also had charge of the child, or cannot exclude such other person as a person having charge.

[90] MATERNAL GRANDMOTHER AS PERSON HAVING CHARGE

Moreover, there was another person who also meets the criteria for a person having charge of the child. This was M.L., the child's grandmother. There is a difference in the status of a grandmother who has the role of a normal grandmother, and of a grandmother who has a role of a "parent" to a child. The evidence does not persuade me that M.L. was just a grandmother. In fact, the evidence, even that of the society, clearly shows all three were caring for A.L., and that the bulk of the child care responsibilities were carried out by M.L., particularly in the months prior to apprehension. S.L.'s role was to help out when she was at the home, which evidently was becoming less and less. M.L. was the person who invariably went to Sick Kids when the child had her regular Cystic Fibrosis Clinic check-ups, and even went to be with her during her hospitalizations after apprehension. It was M.L. who was well versed in the requirements for A.L.'s care as she was often in touch with Louise Taylor, nurse practitioner at Sick Kids. It was M.L. who advised the society after apprehension what the routine was for A.L., which the society later confirmed to be the case directly with Sick Kids. It was M.L. who undertook to be financially responsible for many of the expenses of this cystic fibrosis child, to the point that she was voicing some complaints about the unfairness of this burden. M.L. accompanied S.L. for all of her pre-natal appointments and her postpartum Public Health nurse appointments. It was M.L. who fed, changed, played with and cared for A.L. up to the point of apprehension, perhaps on the evidence, more so that either the child's mother or the child's father. In a letter dated September 14, 2014, S.L. gave to M.L. (and Y.T.) the right to make "medical and parental" decisions on her behalf for A.L.. Finally, it was for M.L. that S.L. was having this baby at all, at least initially. The society and both Y.T. and S.L. were quite clear in their evidence that the original plan was for S.L. to be a surrogate for M.L.. All of this argues for a finding that M.L. also had charge of A.L. prior to the society's intervention. I find that she did.

[91] EMOTIONAL HARM GROUND – s.37(2)(g)

Was A.L. in need of protection on risk of emotional harm grounds as defined in s.37(2) (g) CFSA? I am not persuaded by the evidence that she was. The requirements for a finding of the risk of likely emotional harm are twofold. The second requirement is that the risk of harm is because of the actions, failure to act, or pattern of neglect of the "parent or the person having charge of the child". None of this can be said of any of S.L., Y.T. or M.L.. To the contrary, they were diligent in ensuring that the child received medical attention when needed and that she went to all of her appointments at the Sick Kids Cystic Fibrosis clinic. The first requirement is that the evidence establishes that there is a likelihood (ie more probable than not) that the child will suffer emotional harm demonstrated by serious "anxiety, depression, withdrawal, self destructive or aggressive behaviour" or "delayed development". The evidence is to the contrary. The child was meeting all of her milestones. She was not reported by anyone to be anxious, depressed, withdrawn or engaging in self destructive or aggressive behaviour. She was reported to be a happy child with a contagious smile.

[92] LACK OF EVIDENCE FOR EMOTIONAL HARM

There was not a scintilla of evidence of any of the types of emotional symptoms required by this ground. Nothing in the reports of Sick Kids hospital or of the child's local physician. Nothing even from the Porcupine Health Unit nurse who was a regular visitor to the home. Why did the society pursue this ground? The evidence and the submission of the society suggest that the child was likely to be adversely emotionally affected by the high level of conflict in her household exhibited by the behaviours of the three adult caregivers. However, the society has adduced absolutely no evidence of either the amount of exposure of the child to this adult conflict, or more critically, to any causal connection between this high level of adult conflict and the risk of the types and degree of emotional harm required to be demonstrated by this ground. The situation post apprehension was similarly based on the inability of S.L. and Y.T. to extricate from their unhealthy and dysfunctional relationship. While this may have been true for a period of time, it must be remembered that the child was in foster care and would not have been exposed to this poor parental relationship, and the relationship was clearly ended a full year, if not more, before the trial even began.

[93] REJECTION OF EMOTIONAL HARM GROUND

Moreover, the symptoms must be "serious", which is an adjective with some meaning. Where is the line between "serious" and "not serious"? If the society is suggesting that a child protection worker is able to make this call, I respectfully disagree. Risk looks always to the future. I would require the opinion of a qualified emotional and mental health practitioner, preferably one who has examined the child beforehand, to satisfy me that this child is at risk of harm on this ground, and that the symptoms of the emotional harms was serious. This evidence was not presented and I decline to find A.L. in need of protection on risk of emotional harm grounds. Of some interest, the mother (and the society) did not agree to this as a ground that the child was in need of protection in their Statements of Agreed Facts.

[94] PHYSICAL HARM GROUND – s.37(2)(b)(i)

This ground also has to be causally connected by the society, with admissible evidence, to "the person having charge of the child". The problem is that there were three such persons. The mother, S.L., agrees in her Statement of Agreed Facts that a finding should be made by the court on this ground (and only on this ground). However, neither she nor the society state in this Statement of Agreed Facts who the person having charge actually is. The inference is that this person is S.L. herself. If it is meant to include Y.T. and/or M.L. as well, then she and the society have fallen short of proving so. I have no trouble finding A.L. in need of protection on this risk of physical harm ground but I do so on the basis of the evidence which points to the mother as the person having charge and being the source of this risk. That evidence consists of the following:

(a) Mental Health: The "S.L. - Summary of Involvement" was re-introduced into evidence as an attachment and is an integral part of the Statement of Agreed Facts. I accept it insofar as it relates to S.L. only. This is an extremely damaging document and very prejudicial to the parenting abilities of S.L.. It outlines her mental health deficiencies, diagnosed by professionals in the mental health field and includes diagnoses of ADHD, bipolar affective disorder, borderline personality disorder, adjustment disorder, mild intellectual delay and significant learning disability. In addition, it seems evident from both this document as well as other evidence that S.L. suffers from depression as well as from PTSD (Post Traumatic Stress Disorder). I place absolutely no faith in S.L.'s testimony that she was told by Kapuskasing Counselling Agency on her first intake visit there that all of these diagnoses were "dropped". I doubt very much that this agency would make such a statement especially at an intake visit. There is nothing from this agency to confirm this statement. Moreover, S.L. undertook a course of counselling with this same agency to deal with symptoms of anxiety, depression and anger. I might add that Dr. Sroga who is a qualified psychologist, also diagnosed S.L. as meeting the DSM-5 criteria for PTSD, Substance Abuse (Amphetamine) Disorder, Mild Intellectual Disability and Antisocial Personality Disorder – and this report is dated April 4, 2015 which postdates the date on which the Kapuskasing Counselling Service supposedly "dropped" S.L.'s prior diagnoses.

(b) Child Care: Evidence from both the society and from Y.T. and M.L. that S.L. became less than diligent as a parental child care provider to A.L. after the family's move to Kapuskasing. In fact, S.L. herself admits to spending weekends at the home of her friends (without A.L.) and she certainly admits spending a full week at the Moonbeam "Hempfest" in August 2014. M.L. recounts that she was tasked with more and more of the care of A.L. as time went on. Y.T. indicates that he took over child care on weekends when he was not working.

(c) Substance Abuse: Evidence, primarily from the society, that S.L. was using illegal drugs and consuming excessive alcohol even before the apprehension, and this escalated significantly in the months following. This was a source of worry and of complaint by both M.L. and Y.T.. S.L. admitted her drug use to her society worker in the months following the apprehension and in fact admitted that she was "addicted". Moreover, society child protection worker R. Brazeau documented her observations of S.L. being totally drunk and stoned, and even refused to meet with her on one occasion until she sobered up. As far as the evidence I read and heard, even by the time of trial, S.L. had never undertaken any program to deal specifically with her drug and alcohol abuse.

(d) Lack of Stability / Impulsiveness / Poor planning: There were other reasons why A.L. was at risk of physical harm with S.L.. S.L. had no money nor any financial means when A.L. was apprehended. She also had no prospects of finding the financial means to care for a child such as A.L.. She had no home once she left the home of Y.T. and M.L., and her plan was to move in with J.J., a person with whom she admits she had consumed drugs. She had no transportation. She had established a pattern of leaving the child's care to others while she partied with her friends. She co-slept with A.L. after she was warned not to do so. S.L. had no prior experience as a parent. She also suffered from lack of parenting in her own youth. Her first nine years were, by her own admission, abuse filled, and her second nine years as a crown ward were abysmal, with no continuity of consistent parenting.

(e) Parenting Capacity Assessment (considered with caution): Subject to my further comments below, there is also the Parenting Capacity Assessment and the testimony of its author, Dr. M Sroga, which casts S.L. in a very pejorative light insofar as her ability to parent a child like A.L. is concerned. This evidence deals with S.L.'s intellectual delay, and her inability to make decisions and contemplate consequences, being a particular handicap in raising a child like A.L..

[95] RISK OF HARM FROM MOTHER

There is no question that A.L. would be in need of protection if she had remained in the care of S.L.. The society was quite correct in its decision to apprehend S.L. from her (but not without a warrant). She was a poor candidate to be a single parent to a child, and in particular, a child with A.L.'s challenges. So this deals with one of the persons who had charge of A.L.. There were two others. Does it matter from the point of view of the CFSA whether these others were or were not a source of a risk of physical harm to A.L.?

[96] MULTIPLE PERSONS HAVING CHARGE

As unfair as it may appear, a finding that a child is in need of protection as a result of a risk of likely physical harm resulting from even one of the persons who had charge of the child appears to be enough. There is no requirement in the CFSA that all of the persons having charge must contribute to the risk of harm in order for there to be a finding that the child is in need of protection.

[97] FATHER AND GRANDMOTHER AS SOURCES OF RISK

However, in this case, the society appears to be arguing that Y.T. and M.L. were also sources of the risk of physical harm to A.L.. Accordingly, it is necessary to consider its evidence and whether such evidence meets the standard of proof needed to arrive at this conclusion.

[98] FATHER AND GRANDMOTHER'S CARE

Unfortunately, the submissions of the society were not a great help in identifying what it was that Y.T. and M.L. did, or failed to do, that created a risk of future physical harm for A.L.. The provisions of s.37(2) (b)(i) are disjunctive, but nonetheless fairly clear What the society must show is that Y.T. and/or M.L. failed to care for, or to provide for, or to supervise, or to protect A.L., and that this caused a risk of physical harm to A.L. in the future that is likely (ie more probable than not) to occur. The society has not specified which of the foregoing were the failures of Y.T. and/or M.L.. In fact, they did care for her and clearly provided for her for over ten months until she was apprehended. There were no complaints with respect to their care of her. Both Ms. Dubosq and Ms. Brazeau confirmed as much in their trial testimony. They had no concern when Y.T. was in sole charge of the child for several days during the Hempfest festival. Nor did they express any concern with his care of the child on weekends when he was not at work. S.L. herself had no concerns about Y.T.'s care of A.L.. In the case of M.L., the evidence of Ms. Brazeau was that she was a good caregiver to A.L.. M.L. was very soft spoken, very caring and attentive during access visits as well. There was always a positive interaction between her and the child. The worst that can be said about either of them is that, at some point, they were doing the "clapping" procedure to facilitate removal of mucous from A.L.'s lungs incorrectly, and that they had a disagreement between them as to the administering of enzymes on one access visit. I did not hear the criticism of their clapping procedure subsequently, and my inference is that they corrected whatever they were doing. As for their difference of opinion with respect to administration of enzymes, it was only a one time occurrence and may well have been as a result of a misunderstanding between themselves as to what had been given and when, In term of supervision, there were references to the mess or the "clutter" of the home mentioned by Ms. Dubosq who observed this on the day prior to apprehension [when "G.T. Plumbers" were present fixing the hot water boiler], and who re-attended on the day of apprehension to take photos and made recommendations about getting the home in order. In fact the home was observed not long afterwards by Ms. Brazeau to "be clean and no apparent smells", and A.L.'s room to be "charming" with a wireless camera for supervision and monitoring. In fact, NEOFACS allowed A.L.'s first birthday to take place in the home in November 2014. Kunuwanimano permitted Christmas access in the home for two successive year without any adverse comment as to cleanliness.

[99] CATS AND HOME CONDITION

The number of cats was a criticism of the society but some of these were S.L.'s cats and were removed from the home. There is no evidence that the cats were a source of physical harm to A.L. and only some speculative evidence to the contrary. There were few references to the physical state of the home prior to apprehension and any deficiencies were temporary and were attended to. This leaves "failed to protect".

[100] FAILURE TO PROTECT

The failure to protect under s.37(2)(b)(i) has to be from the risk of physical harm. If the society is trying to tie a failure to protect on the part of Y.T. and M.L. to the likelihood of physical harm being suffered by A.L., I have difficulty in appreciating where this failure to protect arises, and of what specific physical harm the child my suffer thereby. The bulk of the society evidence is that risk of physical harm was from S.L., not from Y.T. or M.L.. In fact, Y.T. and M.L. appeared to be very diligent in protecting the child from risk of physical harms. The clutter observed by the society was clearly situational as construction or maintenance work was being done in the home at the time it was observed. Moreover, it was cleaned up shortly afterwards. For well over a year, the society was visiting the home and there may have been one case note about the "clutter" in all of that time and none about the home being 'dirty'. This was clearly not a home where safety hazards to a young child were endemic. If Y.T. and M.L. failed to protect the child at all, it was in letting S.L. share in as much of the child care as she did. In summary, with respect to a risk of physical harm resulting from the acts or omissions of Y.T. or M.L., the society has not persuaded me that there was any such risk.

[101] PATTERN OF NEGLECT GROUND – s.37(2)(b)(ii)

This ground is similar to risk of physical harm in clause (i) except that it places an additional onus on the society, namely, that the failures specified in subclause (ii) must be a result of a "pattern of neglect" on the part of the person having charge. Other than to submit that this risk was "obvious", I disagree that the society has proven this ground at all. A pattern of neglect necessarily requires behaviour over a period of time in the past from which a risk of physical harm can be inferred for the future. There was no physical harm to this child ever during her lifetime and certainly not from a pattern of neglect. If there had been, the weekly or bi-weekly visits from the society and the Public Health Unit nurse would undoubtedly have mentioned this. They did not. The only reference was to co-sleeping and this was by S.L. and there is no evidence it was continued after it was pointed out. In short, it was not a pattern. There was virtually nothing that the society could point to in the behaviours of M.L. or Y.T. that could conceivable be called a pattern of neglect. The society itself spent very little effort in arguing this ground. I frankly do not understand why it was pursuing this ground at all. I do not make a finding that A.L. was a child in need of protection on s.37(2) (b)(ii) grounds. It is also of some note that the Statement of Agreed Facts omitted this as a ground for a finding that the child was in need of protection.

[102] CONCLUSION ON NEED FOR PROTECTION

In the end result, I do find A.L. is a child in need of protection on risk of physical harm grounds in s.37(2) (b)(i), and the evidence for this finding is completely related to the deficiencies of S.L. as a parent. The jurisprudence concerned with a finding in need of protection makes it clear that the circumstances that justify such a finding are not limited to the time of apprehension. There may be circumstances that pre-date the time of apprehension, or circumstances that arise after apprehension. Evidence of any can give rise to a finding. And the finding is the threshold from which the court begins to look at a disposition.

[103] DISPOSITION THRESHOLD

Clearly, the reasons why a child is in need of protection is very relevant to what order the court makes with respect to disposition. In the present case, the society asks the court to make an order of crown wardship. No order for temporary wardship is possible at this point. The child must be made a crown ward or must be placed with someone, either with or without a protection (supervision) order.

DISPOSITION – THE LAW

[104] DISPOSITIONAL OPTIONS

The dispositional options following a finding that the child is in need of protection are set out in s.57 CFSA:

Order where child in need of protection

S.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. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, . 13 (1-3).

[105] DEEMED CUSTODY ORDER

The foregoing are protection orders which involve some level of continued involvement by the society. There are additional options. One, under s.57.1(1) CFSA, is a deemed custody order:

S. 57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2006, c. 5, s. 14.

[106] RETURN TO PRE-APPREHENSION CAREGIVER

There is also an additional option under s.57(9) CFSA of simply returning the child to the pre-apprehension caregiver:

Where no court order necessary

S. 57 (9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part. R.S.O. 1990, c. C.11, s. 57 (9).

[107] OPTIONS WITHOUT SOCIETY INVOLVEMENT

The options included under s.57.1(1) and s.57(9) CFSA do not involve any continued involvement by the society in the family of the child by way of court order. Implicit in an order under s.57(9) CFSA is the court's belief that such continued involvement is unnecessary. The circumstances that led to the society intervention have either disappeared or have abated to the point that they no longer are a source of a need for protection. In the case of s.57.1 CFSA, the granting of a deemed custody order is seen as an alternative to a protection order, one that will be sufficient to alleviate those circumstances that led to a finding that the child was a child in need of protection.

[108] AVAILABLE OPTIONS

Regardless of the claims in the application and the position of the parties, all of these are options that are available to the court except for a temporary wardship order under either clauses 2 or 4 of s.57(1) CFSA. This is proscribed by the limitation in s.70 CFSA.

[109] ACCESS AND CROWN WARDSHIP

In the present case, the society's "amended" claim of crown wardship with access to S.L., but no access to Y.T. (or M.L.) poses a problem. This is so by the operation of s.59(2.1) CFSA.

S.59 (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. 2006, c. 5, s. 17 (2).

[110] BURDEN ON SOCIETY FOR MATERNAL ACCESS

This requires the mother, who discontinued her participation in this proceeding midstream and whose counsel made no meaningful submissions on access, to satisfy the court that these two criteria are met with respect to herself. In the peculiar circumstances of this case, where a Statement of Agreed Facts filed by the society and the mother stating that they agree that the order that would best serve the best interests of the child is an order for crown wardship with access to the mother, it logically also falls on the society to show that these two criteria are met. There is no need for the society to convince the court that these two criteria are met with respect to Y.T. or M.L.. Rather, if they want an order for access in their favour, it is up to them to show that these two criteria are not met. This is, of course, only if an order is made for crown wardship.

[111] BEST INTERESTS CONSIDERATIONS

The big question is what is the correct order to be made in this case? That is a question that hinges on what is in the best interests of A.L.. And in deciding what is in her best interests, the court is mandated to a consideration of a number of circumstances, to the extent that each is relevant in this case. These are found in s.37(3) CFSA:

S. 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 and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
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. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3).

[112] NON-EXHAUSTIVE LIST

That this is a non-exhaustive list is evident from clause 13 of the list which is a catch all that can include any other relevant circumstance.

THE EVIDENCE

[113] QUALITY OF EVIDENCE

It is well worth mentioning at this point that s. 37(3) CFSA requires the court to take into account "circumstances" that are relevant. "Circumstances' are by their very nature 'factual'. The court was not present or privy to these circumstances so it must necessarily rely on the evidence in the case that is presented to the court by witnesses, including the parties. I have already made some remarks about the credibility of some of these witnesses which I need not repeat. However, I do feel it is necessary to consider the quality of the evidence from other points of view.

[114] AFFIDAVIT EVIDENCE AND HEARSAY

On February 1, 2016, Justice M. Lambert made an order at a trial management conference that the evidence in chief at trial of all society workers was to be in the form of affidavit evidence. The most important part of this order was the understanding that it was to be "trial evidence". It is a well established and well accepted tenet of our judicial system that hearsay evidence should not be admitted at trial unless it falls within certain exceptions. It is important therefore that everyone understand what hearsay evidence is and what are the exceptions to its inadmissibility.

[115] DEFINITION OF HEARSAY

Many jurists have explained what hearsay evidence is and what it is not. One of the best and most succinct comes from Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.) at page 970:

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay.

It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.

This is as true today as on the day it was first written."

[116] HEARSAY IN AFFIDAVITS

Much of the evidence of the society in affidavit form is clearly hearsay. The court is expected to accept the truth of statements made by the deponents of the affidavit about statements that were made to them by others, or obtained by the deponents from other written or oral sources (and in some cases there is no indication from where these statements originated). There was no voir dire held in this trial to test the admissibility of such statements, mainly because there was no trial time allotted and because there were so many of such statements. Moreover, some statements were made to the deponents of the trial affidavits by persons who actually were witnesses called to testify, and these persons were cross examined. However, some of the statements they allegedly made were about circumstances that they themselves learned only from others who were not called to testify, or about others who contradicted the information in these statements when they themselves were examined.

[117] EXAMPLE OF PROBLEMATIC HEARSAY

As an example, Ms. Brazeau was instrumental in arranging for S.L. to be interviewed by Ontario Provincial Police constable Rumble on December 9, 2014. Ms Brazeau was apparently within earshot of the interview which was both video and audiotaped. Ms. Brazeau was the deponent of a trial affidavit as well. In this trial affidavit, she recounts what she overheard S.L. and Constable Rumble discussing in the interview. Much of this involved observations and allegations of S.L. about Y.T. and his "sexual abuse" (ie fingering) of her. This narrative of Ms. Brazeau was clearly for the purpose of establishing that what S.L. told Constable Rumble had taken place actually did take place. In short, it was clearly 'hearsay' coming from the affidavit of Ms. Brazeau who clearly was not present to have observed S.L. or Y.T. at the time of the alleged fingering incident. Moreover, the incident recounted by S.L. was explicitly denied by Y.T.. There was no actual audiotape or videotape of this interview produced at trial. The police officer was not called as a witness, and the evidence that was introduced (on consent) was that the police did nothing as a result of this interview. During her cross examination at trial, S.L. could not recall most of this interview. From an evidentiary point of view, I have to discount this hearsay evidence of the society if it is the intention of the society that I should believe that this fingering incident did occur. There is an expectation, especially when evidence is critical in the case, that the best evidence will be presented or that there will be some cogent explanation why it cannot be presented. In this case, there was neither with respect to most of the hearsay presented, nor any attempt to justify the admission of hearsay on the principled approach involving "necessity' and 'reliability' criteria.

[118] HEARSAY PROVISION IN CFSA

There is an evidentiary provision in the CFSA that appears to permit hearsay evidence. This is section 50 which provides:

S. 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. 1999, c. 2, s. 12

[119] APPLICATION OF SECTION 50

Section 50, however refers to factual evidence that consists of past conduct of a person to any child, if that person has or may have access, or may care for, the child in the proceeding in which that evidence is tendered. In the present case, this would be primarily evidence of M.L.'s conduct towards her own children, in particular S.L.. However, that evidence is contradicted to a great degree by M.L.'s own viva voce trial testimony. The court can consider this kind of evidence in a written statement or report, but the conduct must have some relevance to the case before the court. The court may admit this evidence and give it little or no weight. The only written report or statement of prior conduct I have are the "S.L. of Involvement" and the PCA assessment report(s) of Dr. Sroga, both of which are admitted as evidence in this case, subject to the limited use I make of them.

[120] APPROACH TO HEARSAY

I the end result, I have to choose between either refusing to accept hearsay evidence or accepting it and assigning judicial weight to it. While the former would be much easier to do from a judicial point of view, it would eviscerate the proceeding and lead to Reasons that basically only explain why certain evidence was not admissible and why some was. It would not necessarily deal with the substance of the proceeding which ultimately is the well being, protection and best interests of the child involved in this case. Accordingly, and with some reservation, I have opted for the latter approach for the most part.

COMMENT ON THE INVESTIGATION AND PROSECUTION

[121] DISTURBING ASPECTS OF CASE

There are things about this case that are very disturbing, but these in particular:

1. the role of the society and its personnel in this family;
2. the society's pre-occupation in the manner in which A.L. was conceived;
3. the interim access that was afforded to this family; and
4. the manner of society investigation

[122] SOCIETY'S CONDUCT

I have already commented negatively on the NEOFACS society's apprehension of A.L. without a warrant, its consenting to the transfer of this case to the Kunuwanimano society, an agency which does not have the jurisdiction to act as the applicant society, as well as the delay in reaching the statutory and regulatory temporal milestones anywhere close to the allotted times. But there are other things that have happened along the way that equally deserve comment by the court.

[123] SOCIETY'S PREOCCUPATION WITH CONCEPTION

Ms. Dubosq, in her cross examination, admitted to continued pressing of the family for an explanation of the circumstances surrounding the conception of A.L.. She did this, according to her testimony, on the instructions of her supervisor, and contrary to her own belief that by doing so, she was aggravating the stress already present in a high conflict family. She commented that she and her supervisor had a discussion about this and she communicated her feelings to her supervisor. In fact, there was a disagreement between them over this. Ultimately, Ms Dubosq was reprimanded by her superior and she went on a stress related sick leave which I infer was prompted to a large extent by difference of views on how to do her job with this family. It should be noted that the society had information in its own files about the interview that S.L. had with OPP Cst. D'Amours in May 2013 about how S.L. came to be pregnant with A.L., and certainly had it by April 2014 when Shannon Lyttle prepared the Summary of Involvement of which details of this interview formed a part. I accept Ms. Dubosq's evidence as it is replete with her recitation of numerous incidents where she repeatedly raised the subject of the conception of A.L. with S.L., with Y.T. and with M.L.. I also accept her evidence that as of August 1, 2014, she had received the true story of what had transpired from all three of the participants. Any further queries by the society thereafter were destined to add stress to already stressed relationships. There is a fine line between the investigative role of a society and the supportive role. I believe in this case the society forgot its focus and its mandate which is to promote the best interests, protection and well-being of the child, and got snarled up and preoccupied with the family dynamics. Moreover, it seems to have taken sides early in the game on who it was backing despite its protestation to its continued neutrality.

[124] CONCEPTION METHOD AND SOCIETY ROLE

The physical method by which A.L. was conceived was the same that billions of world's children are conceived. The problem with this conception is that it was between two persons who did not meet the conventional mating expectation. A stepfather and a stepdaughter mating is ostensibly very close to incest, which is still a crime in the Criminal Code, and a crime of moral turpitude to most. Do the parties to the sexual intercourse make a difference to the role of the society? Or to the decision of this court?

[125] CONTEXT OF CONCEPTION

There are much worse examples of circumstances in which sexual intercourse has produced a child. Rape immediately springs to mind. Incest, of course, does as well. Sex with underage children. Polygamy in some cultures (or subcultures). Sex with prostitutes. Sex involving deceptions or misrepresentations. Casual sex without contraceptive protection. The sexual intercourse in this case deserves some scrutiny as it has played a major role in the society's approach to its mandate, as well as in the views of Dr. Sroga, the psychologist who did the parenting capacity assessment.

[126] CONSENSUAL NATURE OF INTERCOURSE

Firstly, the sexual intercourse between Y.T. and S.L. was not a sexual assault crime in the eyes of the police which twice interviewed S.L. and did not lay any charges as a result. Secondly, even S.L. admitted to many individuals that the sexual intercourse was "consensual" at least at first. Thirdly, depending on whether one believes S.L. or Y.T. and M.L., the idea of surrogacy, which ultimately led to sexual intercourse, was an idea first raised by S.L. who overheard Y.T. and M.L. talking about wanting a child of their own and volunteered to help them out. Fourthly, and despite what the society may believe to the contrary, the sexual intercourse was between two consenting adults. Fifthly, the sexual intercourse was for the purpose of procreation, not recreation or sexual gratification. It stopped immediately once pregnancy was confirmed.

[127] POWER IMBALANCE

Was there a power imbalance in the relationship? Absolutely, there was. As there is in many mating relationships, even in those sanctified by formal marriage. Both S.L. and Y.T. got something which they each wanted out of the sexual intercourse. Was S.L. taken advantage of by Y.T. because of her vulnerabilities? I would say that she was. She was not sophisticated. She had some serious mental health issues. She was relatively young although I am not convinced that she was inexperienced. She was also totally dependent on him and on M.L. financially although I disagree that she was chained or imprisoned there either physically or emotionally. She was free to come and go, and in fact often did so. There was no violence from Y.T. (or M.L.) to S.L. that was reported by her. I discount entirely S.L.'s version of a locked bedroom door, of M.L. joining in the sexual activity, of coercive conduct by Y.T. or M.L. towards S.L.. I believe that she eventually simply tired of the routine of sex which apparently had little passion and was not producing the expected result as quickly as she thought it would. But she engaged in it, apparently willingly, if not enthusiastically.

[128] SOCIETY'S PREOCCUPATION WITH CONCEPTION

The society had become overly pre-occupied with the conception story and then believed what S.L. was telling it about her role in the interrelationships. The child almost became a secondary consideration in this case. In fact, this child was never in any great danger of harm before being apprehended despite her vulnerabilities as a cystic fibrosis child. She was receiving good care with regular medical oversight. This was while she was in her home being parented by S.L., Y.T. and M.L.. The society obviously recognized this as it did nothing to change the arrangements of the family for a full ten months, not until the unilateral departure of S.L. with the child precipitated an apprehension.

[129] INTERIM ACCESS REGIME

The interim access that the court awarded on September 26, 2014 was pursuant to an order made 'without prejudice' and provided that access was to be supervised by the society. This order remained in place until January 18, 2016 when paternal access was permitted at the home of the father, but supervised by the maternal great grandmother, K.B.. The 'without prejudice' order did not give any details about things like times, frequency, duration, location or any other aspect of such access except that it was to be supervised. Neither did the amending order.

[130] SOCIETY'S UNILATERAL DECISIONS ON ACCESS

What actually materialized from this interim access order? The initial access was set by the NEOFACS society unilaterally at twice per week for two hours per visit. It took place at the NEOFACS society office in Kapuskasing. All three attended the visits (although S.L. missed the first one as she was moving). The society continued with this regime of access for two or three months and then moved the location of access to a library in Mattice. The society also split the access to provide separate access times to S.L., apparently at her request. However, this had the effect of reducing the time that each parent had with the child by fifty percent (50%), so that by December 2016, the access was once per week for two hours for S.L. and the same for Y.T. and M.L.. There was no explanation by Ms. K. Poitras, the child care worker tasked with supervising access why the society initially chose a frequency of twice per week for a duration of two hours. Nor was there any explanation of why this access time was effectively cut in half. The obvious inference is that to keep to the same frequency and duration for each parent after access became separate for S.L. would double the work for the society which was supervising every visit. The society did not ever consider access at the home in which the child had been raised, even after the "clutter" following the relocation to this home and the ensuing renovations had been attended to.

[131] FAIRNESS OF ACCESS RESTRICTIONS

How fair was this? Setting the time spent with one's child to two hours once per week is, by any reasonable measure, a niggardly allocation of access. It was not set on the basis of mutual consent. Y.T. asked repeatedly for an expansion of access to no avail. He was forced to bring a motion to expand his access. This was minimal access that was destined to reduce the integrity and autonomy of the family unit. It did not provide services that recognized the respect for the needs of the child for continuity of care and for stable family relationships. On top of this, NEOFACS was clearly not going to increase its access, especially once it amended its claim to crown wardship with no access.

[132] KUNUWANIMANO'S CONTINUATION OF RESTRICTIVE ACCESS

The policy of NEOFACS in reduction of the time that parents can spend with their children in society care was evidently inherited by the Kunuwanimano agency which continued with the status quo of the interim access schedule in this case. It opposed the father's claim for better interim access, although not totally not successfully, as the court ordered that access be at his home supervised by the child's maternal great grandmother.

[133] PARENTS' FAITHFULNESS TO ACCESS

The interim access exercised by Y.T. and M.L. was regular. They were faithful and attended all access visits that the society allowed. S.L. was less faithful. She often missed and did so without prior notice to the society in many cases. Moreover, Y.T. complained to the society, in vain it appears, that the Mattice library was a poor choice, and not conducive to a productive access visit. While these visits required transportation to and from Mattice, the society at least provided gas monies to defray the cost.

[134] IMPACT OF MINIMAL ACCESS ON RELATIONSHIPS

In minimizing the parental access, the society was effectively suffocating the relationship of A.L. to her pre-apprehension caregivers – her 'family of origin'. To foster a relationship requires firstly, contact, and contact that is caring, affectionate and nurturing to the child. To pretend that a child's relationship to parental figures can be fostered in two hours once per week is a ridiculous proposition. A child in A.L.'s circumstances was bound to attach to her foster home caregivers as they had her for 164 of every 168 days of each week. Conversely, the relationship with Y.T. and M.L. and with S.L. was bound to suffer adversely if for no other reason than lack of contact. For the society to criticize Y.T. and M.L., in particular, for the way they conducted themselves during their access visits was unfair. They were criticized for bringing snacks that A.L. wanted rather than needed, for catering to her wants, and for not teaching the child the difference between right and wrong, or of her colours, numbers or body parts. This was the society's apparent expectation during the weekly two hour visit which it permitted. It seems to me that Y.T. and M.L. did what normal access visitors would do, namely, try to enjoy the extremely brief time that they had with A.L. without getting her upset.

[135] CONSTANT SUPERVISION

Finally, the supervision of access did not abate. Every second of access was supervised by the society until the court ordered that Ms. K.B. could supervise paternal access. This constant supervision, together with an unsuitable access venue, created an artificial environment which was bound to stifle any meaningful relationship that A.L. had with Y.T. and M.L.. It was only their faithful and unflagging attendance that kept the relationship alive. A.L. is reported to have always been happy to see Y.T. and M.L. and to have enjoyed her time with them.

[136] MATERNAL ACCESS

As for S.L.'s interim access to A.L., the society was equally unfair to her even though she missed many visits and did not conduct herself as well as did Y.T. and M.L.. It is extremely surprising that the society is now agreeing that three hour weekly visits for S.L. are in A.L.'s best interests.

[137] INVESTIGATION DEFICIENCIES

The society's investigation of the family is worthy of some negative comments by this court. There are many examples of this. Firstly, it is clear that the "S.L. - Summary of Involvement" document prepared by Shannon Lyttle became the basis for what the NEOFACS and the Kunuwanimano societies knew about the history of S.L. as well of M.L. and her family. The society placed this document into evidence in filing the Statement of Agreed Facts and expects this court to accept it as the truth of this history. However, this document was constructed from unspecified source documents and thus was almost all, if not completely, hearsay. Even S.L., who lived through the years recounted in this narrative, did not corroborate its correctness. M.L. disagreed with many of its assertions, especially about herself and her other children. So also did K.B.. The NEOFACS society did not take any steps to verify any of this information directly, and neither did Kunuwanimano.

[138] SUBSTANCE ABUSE INVESTIGATION

Secondly, the society has relied on substance abuse as a major factor why A.L. cannot be returned to either S.L. or to M.L.'s care. In the case of S.L., the society had scheduled an appointment for S.L. to provide a sample suitable for a drug test for 3:00 pm on September 23, 2014, the day it apprehended A.L.. The society's evidence is that S.L. never kept this appointment. In fact, its evidence is that S.L. called to cancel and to re-schedule this appointment. However, she never attended for any re-scheduled appointment either. There is some evidence from Ms. Brazeau that S.L. finally agreed to a "hair strand screening" on November 19, 2014, and may even have given a hair follicle sample, but there is no evidence of what became of that sample, whether it was ever analyzed, and what the lab results were. At trial, this was explained away by the possibility that by then, "Motherrisk" tests results were no longer acceptable as evidence. The net result was that the society has produced not one scientific piece of evidence of S.L.'s drug use despite this being such a major factor in this case, and despite overwhelming evidence that she was using illegal drugs.

[139] INVESTIGATION OF GRANDMOTHER'S SUBSTANCE USE

Conversely, the society alleged that M.L. was abusing drugs. However, its evidence was not verified by any drug tests it had arranged for M.L.. Its source information of drug use by M.L. was S.L., whom the society knew or should have known was prone to prevarication. M.L. admitted to drug use, but not to illegal drug use. She went to a drug assessment in 2014 and the letter from this agency (exhibit 17) makes no mention of her using illegal drugs beyond her 20's. She is now 48 years of age. Her drug use now is and has been by prescription only and is to alleviate severe pain symptoms following a motor vehicle accident injury. Ms Brazeau claims that M.L. admitted using pot at the Hempfest in August 2014. This is not my recollection from M.L.'s testimony which made no such admission and, in fact, limited her attendance at the Hempfest to one overnight. The point made here is that the society did very little to substantiate its concerns about M.L.'s drug use especially in light of S.L.'s allegations that M.L. was using street drugs and was selling her prescription drugs to others.

[140] POLICE FOLLOW-UP

The society was instrumental in arranging for S.L. to report her sexual abuse allegations to the police. However, it never arranged to obtain the videotape from the police, did not call the police officer as a witness at trial, and it never did follow up with the police on what was the result of its interview with S.L..

THE PARENTING CAPACITY ASSESSMENT

[141] DR. SROGA'S BACKGROUND

Dr. Margaret Sroga, by her own admission, is primarily a child and adolescent clinical psychologist. She estimated she had done about forty parenting capacity assessments (PCA's) over a period of seven years before doing the one in this proceeding. She was approached by the NEOFACS agency to conduct a PCA in this case at a time when she was already scheduled to attend in Kapuskasing to conduct one in an unrelated case. She agreed.

[142] DR. SROGA'S QUALIFICATIONS

Dr. Sroga's curriculum vitae indicates that she progressed through the standard academic rungs to becoming a registered psychologist in Ontario. She has a Ph.D from the University of Ottawa since 2004. She has a somewhat eclectic practical background with some thirty years of clinical experience obviously garnered both before and after she obtained her doctorate. She lists one peer reviewed (refereed) publication and a half dozen others to which she has "contributed" and all seem to be concerned in some way or other with the LSI-OR, a risk assessment tool used by our Ontario Government to assess risk of re-offending by young offenders which appears to be her area of concentration, if not expertise. No party had any problem with her academic qualifications. Nor do I, except that they seem to indicate that her interests are less in PCA's than in pursuit of other academic or practice interests. She, in fact, admitted that her practice was not specifically focussed on PCA's, that she had no specific training in conducting PCA's as none was offered when she began to do these, and what training she did get was from two supervisors at a Children's Aid Society for whom she worked in the North Bay area. I did not qualify Dr. Sroga as an expert or as a specialist in the assessment of parenting capacity. In fact, she asked that I not do so.

[143] ORDER FOR ASSESSMENT

The order for a parenting capacity assessment was made on December 15, 2014, well before any finding was made that A.L. was a child in need of protection. The assessment was dated April 20, 2015 and forms part of the continuing record. The report of the three assessments concludes that none of S.L., Y.T. or M.L. is a good candidate to parent A.L. for a number of reasons. I am not aware of S.L.'s position on the assessment as it pertains to herself. However, she seems to agree with the conclusions of Dr. Sroga with respect to Y.T. and M.L.. Both Y.T. and M.L. disagree with Dr. Sroga's conclusions in her report with respect to their own parenting capacities. I am not sure but suspect that they agree with Dr. Sroga's opinion of S.L.'s. I do not intend in these Reasons to dwell overmuch on the assessment of S.L.'s parenting capacity as S.L. has effectively abandoned her claim to have the child returned to her. From a dispositional point of view, her PCA is academic. However, it is worthwhile to examine not only the PCA assessment report of Y.T. and M.L., but also to examine Dr. Sroga's cross examination testimony.

[144] STATUTORY AUTHORITY FOR ASSESSMENT

The court is empowered to order an assessment by s.54 of the CFSA:

S.54. (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

1. The child.
2. A parent of the child.
3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child. 2006, c. 5, s. 10 (1).

[145] FAILURE TO ASSESS CHILD

The order of Boucher J. dated December 15, 2014 required Dr. Sroga to assess the child, A.L., as well as S.L., Y.T. and M.L.. There was no assessment of the child A.L. ever done. There was never any subsequent order amending or varying the December 15, 2014 order to exclude an assessment of A.L.. It is not appropriate to simply dismiss this on the basis that A.L. was a child. Nor is it appropriate to plead lack of time to assess A.L.. Nor is it appropriate to say that she was not assessed as an oversight. In this case, A.L. was a child with cystic fibrosis, a condition about which no one had anything but a rudimentary knowledge, even Dr. Sroga who indicated that she had to acquaint herself with this condition and what it entailed for a person who had it. Moreover, the society specifically listed and argued the child's vulnerability as a result of this condition and her requirement for special needs as reasons why she cannot be parented by Y.T., S.L. or M.L.. Dr. Sroga does mention (and repeats in each assessment) "the extraordinary level of care required" by A.L. as a result of having cystic fibrosis in arriving at her conclusion that none of the persons assessed are competent parental candidates. Accordingly, the assessment is faulty in that it did not comply with the order for assessment in this one rather material respect.

[146] NON-COMPLIANCE WITH ASSESSMENT ORDER

An order for assessment made under s.54 is subject to a number of conditions and restrictions. For example:

S.54 (2) The person performing an assessment under subsection (1) shall make a written report of the assessment to the court within the time specified in the order, which shall not be more than thirty days unless the court is of the opinion that a longer assessment period is necessary. R.S.O. 1990, c. C.11, s. 54 (2).

In the present case, the report was not forthcoming within the thirty days prescribed by the CFSA. It is dated April 20, 2015, about four months from the date of the order. Nor was there any order extending the time for it to be made. Moreover, the evidence of Dr. Sroga is that she provided a draft of her report to the NEOFACS society. Why she did so is still a mystery as she claimed she and the society did not discuss this draft, and the society could make no changes to her report in any event. Why or when she did so was undocumented by her but presumably it was after the report was completed. There is attached to the assessment report of Y.T. in the Trial Record (filed by the society) a copy of an e-mail dated February 17, 2015 2:12 pm from Ms. Brazeau to Dr. Sroga in which the following sentence appears:

"I have not been to either homes since the Parenting Capacity Assessment has been completed"

[147] TIMING DISCREPANCY

A reasonable supposition is that Dr. Sroga had completed her assessment by February 17, 2015 which is the date of the e-mail message. Why then was the assessment dated April 20, 2015? Moreover, it is up to the assessor to make his or her report to the court, not to the person or entity who is a litigant in the case. This is another instance of non-compliance with the requirements of the CFSA with respect to a s.54 order, and raised my eyebrows somewhat as to the question of for whom Dr. Sroga thought she was doing the assessment.

[148] SOURCES OF INFORMATION

By far the most critical aspect of the assessment report is what it was based upon. In this case, Dr. Sroga was quite candid that it was based on information that she had at the time she conducted the assessments. This time could have been no later than April 20, 2015 and possibly even earlier. She confirmed that she received no updates on the parties after she completed her report. She does not know what happened after her report was completed and produced. She lists in her assessment what materials she had available to her. A review of these indicates that in each case, these consisted of a clinical interview with the person assessed, interviews with a child care (sic, protection) worker (Ms. Brazeau), her supervisor (Ms. S. Boudreau) and a child care workers (Ms. Gignac and Ms. Poitras). In addition Dr. Sroga indicates she had about ten or so psychometric tests which she had administered. The only other information she lists is her "Review of Referral Data" which has no details provided as to what this consisted of.

[149] REFERRAL DATA

Dr. Sroga was asked when she was examined at trial what this "referral data" consisted of. It was clearly of some importance in understanding the background of the case and the dynamics of the parties. She indicated at one point that she did not have a copy of the society's pleadings. I presume that by this she meant the child protection application, the amended application and the society's Plan of Care. Nor, I believe, did she have the affidavit evidence contained in the continuing record. She did ask for and received "case notes" of workers at the NEOFACS agency. She indicated that she had received many case notes. However, in cross examination, she identified only two case notes, one dated January 20, 2015 (3 pages) and one dated January 15, 2015 (1 ½ pages) and did not state who authored these. She also received an undated "summary" from NEOFACS of some three or four pages. She referred to a "telepsychiatry" medical report from Sick Kids she had an opportunity to peruse. And finally she received something entitled "L. case", a half page e-mail document dated February 17, 2015.

[150] INDEPENDENCE OF ASSESSMENT

This is very interesting from the point of view of this court. Dr. Sroga describes her assessment as an "independent source of collateral psychological data ..." However, all of the documentary data she received was from the society. There is no record of anything having been received from any of S.L., Y.T. or M.L., not even their pleadings and certainly not their affidavits filed in the continuing record. Moreover, Dr. Sroga interviewed some NEOFACS personnel. Two of these were Ms. Brazeau and her supervisor, Ms. Boudreau, neither of whom I would categorize as neutral or disinterested persons in this case. She did not interview Ms. Dubosq who had a much more involved relationship with the family in the pre-apprehension stage and for about a month afterwards. Ms. Brazeau's contribution to the assessment amounted to information that pre-dated Ms. Brazeau's own involvement and could only have been acquired from other sources. It also referred to the "dysfunctional triangle" and what Ms. Brazeau's beliefs were about this when she was interviewed. There was nothing in the assessments that resulted from Dr. Sroga's interview with M. S. Boudreau. What is even more surprising is the amount of historical information that found itself into the assessment reports, particularly in the assessments of S.L. and of M.L.. The court has to question the immediate and ultimate source of Dr. Sroga's information in this regard.

[151] SOURCES OF HISTORICAL INFORMATION

The background information in S.L.'s assessment was stated by Dr. Sroga to have been obtained through a review of NEOFACS "case notes" on this agency's involvement with S.L.. I am very sceptical of the veracity of this statement not only because these "case notes" were never produced at trial, but also because the information in the assessment predated, in some instances, NEOFACS involvement, and in other instances was clearly information obtained from other often unidentified sources.

[152] EXAMPLE OF PROBLEMATIC SOURCING

As an example, Dr. Sroga indicates in her assessment report that S.L. was born at St. Catharine's Hospital with a birth weight of "6 pounds and 9 ounces, with APGAR scores 6 and 9". While this is relatively innocuous information, the significant question is where did it come from? The background information section of the PCA assessment report continues with S.L.'s detailed history, including names and dates of foster homes she lived in, her education history, her physical and sexual abuse, her increasingly serious behaviours, her encounters with the youth justice system, and her psychiatric and psychological consultations and evaluations including the names of the physicians or psychologists, the exact dates when these took place and the diagnoses or outcomes resulting. Dr. Sroga uses the words "she experienced 100 placement moves (many were repeat placements)"

[153] RELIANCE ON SUMMARY OF INVOLVEMENT

Dr. Sroga, despite her refusal or reluctance to acknowledge it, could only have obtained this information from the "S.L. of Involvement" prepared by Shannon Lyttle. This document has the same references to birth weight and APGAR scores and placement moves that found their way verbatim into Dr. Sroga's assessment. This is further corroborated by the psychological and psychiatric information Dr. Sroga included. Accordingly, I conclude that Dr. Sroga had available to her in the course of her assessments information from the NEOFACS society that was based on Shannon Lyttle's summary. Unfortunately, this document was completely hearsay, and was incorrect and incomplete in many respects, in particular in its information regarding M.L. and her early life.

[154] DEFECTS IN ASSESSMENT

What should be done with the assessment report in light of the foregoing? It is defective in that it does not comply with the s.54 order, it is based on information that is poorly documented as to source, it appears to be based on information that the assessor declined to acknowledge that she had available to her, and it is the report of an assessor who, despite her otherwise impressive qualifications, did not wish to be, and was not qualified as an expert witness. The CFSA says:

Assessment is evidence

S.54 (6) The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding. R.S.O. 1990, c. C.11, s. 54 (6).

[155] LIMITED UTILITY OF ASSESSMENT

Ultimately, the report does have some valuable information in terms of the psychometric results reported by Dr. Sroga. I have little reason to disregard this information as it seems to be based on testing procedures that are recognized to have some validity and reliability in the psychological community, and Dr. Sroga is well qualified to administer and to score such tests. There is also some value in the clinical observations made by Dr. Sroga particularly of the assessees' interactions with the child as these form an integral part of any assessment. Finally, there is the cross examination of Dr. Sroga to take into account as she did testify as a witness for the society.

[156] CLINICAL OBSERVATIONS

The clinical observations of Y.T. and M.L. were separate and were relatively unremarkable. If anything, they demonstrated a positive parent-child interaction. Dr. Sroga recalled in her cross examination that the NEOFACS workers had shared with her their views that Y.T. had good qualities, that he was a positive figure and that its estimate of his parenting skills were very positive. M.L.'s interaction with the child was acknowledged to have taken place partially while the child napped, but despite this, Dr. Sroga was impressed with M.L.'s handling and care of the child and with the positive bonding she noted. Admittedly, both observation periods were very short and Dr. Sroga would optimally have wanted a longer observation time. The interactions of the child with each of them was consistent with what the society access supervisors had been reporting of their observations of interactions during access visits.

[157] PSYCHOMETRIC TEST RESULTS

The psychometric tests results were not particularly favourable to Y.T., but neither were they reflective of any highly polarized maladjustment or of any psychopathology. Many were within the normal range or were neutral. Essentially, he is a bilingual male who prefers the French language, he is somewhat below average in his overall intelligence, he tends to be introverted and has difficulties in social situations including forming close relationships. Dr. Sroga provides an opinion that with "his cognitive profile and personality characteristics" it is unlikely that he will be able to change his decision making abilities and his personality style, or to empathize with others.

[158] DR. SROGA'S CRITICISM OF FATHER

Dr. Sroga went into a great deal of the history of the surrogacy arrangements involving S.L. with a clear criticism of Y.T.'s role, his lack of judgment, his abuse of his position of authority over S.L. and his inability to consider the consequences of and the impact of his actions on S.L.. She also mentions that S.L. alleged that she was coerced into becoming a surrogate child bearer and that she was sexually assaulted by Y.T.. Dr. Sroga clearly believes that S.L. was the victim in this surrogacy scheme.

[159] ASSESSMENT BASED ON ONE-SIDED INFORMATION

This is clearly a skewed appreciation of what took place. Dr. Sroga was acting on one sided information. She believed that Y.T. approached S.L. initially to act as a surrogate. The evidence I accept is that it was the other way around. S.L. was never coerced into being a surrogate. She consented to it, even when it involved becoming pregnant through intercourse. She was even provided the opportunity to consult a psychiatrist, in private, to ensure that she was all right with her decision to participate. Moreover, the sexual intercourse report that S.L. made to the police was that it was consensual, not that it was sexual assault. In addition, S.L. was as much if not more at fault for the continued contact between her and Y.T. following the apprehension, and I do not see this as Y.T. manipulating S.L. so much as the converse. While I agree that the entire scheme was poorly though out beforehand, it is a big step to jump from this to the opinion that Y.T. will have difficulty responding to his child, A.L.'s emotional needs, or that he poses any risk of sexual harm to her.

[160] LIMITED UTILITY OF ASSESSMENT FOR Y.T. AND M.L.

The utility of the assessment reports on Y.T. and M.L. are very limited for purposes of this proceeding. I do not accept Dr. Sroga's bottom line opinion that neither of them is a suitable long term candidate for parenting A.L.. This is clearly an opinion, and not an expert's opinion in this case. It is one based on information that was not correct or accurate. I accept the report's psychometric results which are not of the nature that would disqualify either of Y.T. or M.L. from being adequate parents to a child with cystic fibrosis like A.L.. Moreover, the assessment is limited by being dated. There have been developments since it was prepared, the most significant of which is that Y.T. and M.L. had not seen or spoken to S.L. for well over a year by the time of trial and have had nothing to do with her.

BEST INTERESTS OF THE CHILD

[161] BEST INTERESTS ANALYSIS

The CFSA is quite clear that the decision that the court must make on disposition under s.57(1) or 57.1(1) or even S.57(9) CFSA must be one that is in the best interests of the child. Accordingly, it seems fitting that this court should analyze the evidence in accordance with those considerations in s.37(3) CFSA that are relevant in this case. However, it will be evident that I do not include as a possible option the return of the child to the care and custody of her mother S.L.. Why not should be evident from my Reasons up to this point, and even more so because S.L. has abandoned this possibility with her Statement of Agreed Facts.

[162] REMAINING OPTIONS

Accordingly, the only remaining options are:

• Wardship (permanent custody) in favour of the crown and care in favour of a society;
• return of the child to a parent, with or without a supervision order; or
• placement of the child with kin

[163] CROWN WARDSHIP AS LAST RESORT

Crown wardship has been said to be the most profound order that a court can make. It should be the order of last resort to be made only where it is made clear on the evidence that there is no other viable alternative for the child within the timelines set out in the CFSA. The temporal circumstances are certainly such that a permanent solution is not only desirable but also necessary for A.L.. She has already been in society care much too long. The CFSA, however, places some constraints on the parties and on the court before a crown wardship order can be made. It firstly requires the society to file with the court a written Plan of Care. The Plan of Care requirements are not meant to be suggestions, nor are the contents of the Plan of Care intended to be vague. On the contrary, where crown wardship is sought, they are intended to set out what the permanency plan is for the child. In fact, the court is precluded from making an order before it obtains from the society and considers the society's Plan of Care.

[164] DEFICIENT PLAN OF CARE

In this case, the society has filed a Plan of Care. But its Plan of Care is one that is based on an order of crown wardship with no access for purposes of adoption. It is out-of- date with changes sought by the society as set out in its Statements of Agreed Facts. In fact, its Statement of Agreed Facts (Exhibit 8) deletes the reference "for the purpose of adoption". The result is that this court has no idea what the society has as a plan for permanency for A.L.. If it is not permanency by the adoption route, and if maternal access is planned on a weekly basis, then the logical guess is that the child will become a long term crown ward and will reside in some proximity to her mother. I am not enamoured with the prospect of crown wardship to adulthood for A.L. particularly with the evidence of the mess that crown wardship created for her mother S.L.. The lack of a current Plan of Care does not even let the court know where and with whom it intends that A.L. will reside. It seems fairly certain, even with the little evidence I heard that the child's foster family over the last 2 ½ years is not the permanent placement that the society envisions for this child. In addition, this is the child of a bilingual and/or francophone father who communicates with her in the French language. There is no description of the arrangements that the society is planning to preserve the child's heritage and cultural identity.

[165] SOCIETY'S EFFORTS TO ASSIST CHILD

The CFSA also places obligations on the court to make inquiries of the society of what efforts it has made to assist the child before intervention. I have received considerable evidence of the society's pre-apprehension involvement with this family. Little has actually been specifically on how it has assisted the child. The bulk of the society involvement has been with adults and I have already expressed my view that the NEOFACS society has aggravated the adult conflict by its persistent interrogation about how the child came to be conceived, and may have even precipitated the flight by S.L. by scheduling a drug test that she was, on the best evidence available, almost certainly bound to fail. Other than keeping tabs on the post partum visits of the Porcupine Health Unit nurse, reminding the parents of the immunization expectations, and ensuring that the child kept to her Sick Kids CF clinic appointments, all of which was already being attended to by the family, the society did not do a great deal for the child. Its evidence of its involvement in correcting the 'clapping' procedure and clarifying the pre-meal enzymes was all post apprehension.

[166] MANDATORY CONSIDERATION OF KIN PLACEMENT

The more critical obligation of the court is found in section 57(4) CFSA:

S.57 (4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).

[167] COURT'S RELIANCE ON PARTIES

This subsection requires a consideration of whether the child can be placed with a person or persons I loosely refer to as 'kin'. This subsection is mandatory on the court. However, the court is at the mercy of the parties in terms of the information it has to consider in order to comply with this pre-requisite. The court's expectation is that the parties will present the evidence required for the court to fulfil this statutory obligation.

[168] IDENTIFICATION OF KIN

The first step in this mandatory consideration is to identify the persons who might qualify for such a placement. In this case, the society is of the view that S.L. is the only person who had charge of A.L. immediately prior to its intervention. Assuming this to be the case, then Y.T., M.L. and K.B. (the maternal great grandmother) are relatives of the child, and are therefore 'kin'. M.L. and K.B. are also extended family members to the child, and thereby also 'kin'. All three qualify as 'kin' for purposes of considering a possible placement as all three have consented. If Y.T. and M.L. are also persons who had charge immediately prior to the society's intervention, then they still qualify as 'kin' for purposes of this section on exactly the same basis and have a preferential position. Because Y.T. and M.L. are a couple, they should be considered for joint placement.

[169] SOCIETY'S EXCLUSION OF KIN PLACEMENT

The NEOFACS society intimates that it was considering placement with at least Y.T. at some point after apprehension. However, it felt it could not, and clearly did not pursue this as an option after it received the PCA assessment in April 2015. The society's position requires some scrutiny. Why was placement with Y.T. (and M.L.) precluded? And why has it continued to date to be excluded as an option for a possible placement some 2 ½ years after apprehension?

[170] CIRCUMSTANCES AT TIME OF APPREHENSION

At the time of apprehension, S.L. had explained that her reason for leaving the home with A.L. was that she no longer felt safe there, that Y.T. had been sexually abusing her for the last 4 years or so, and that recently, he had been trying to get into her pants again and/or actually engaging in sexually assaultive behaviour. The home was seen by one of the workers the next day and was in a state of clutter, smelling of cat urine, with multiple cats and even some evidence of cat feces on the floor. The society had fairly recent evidence that the adult conflict had escalated in the home to the point that M.L. was considering leaving (and maybe S.L. and the child as well). The society suspected that M.L. was using illegal drugs, and maybe selling her own prescribed drugs. Y.T.'s behaviour was poor at or about that time and he was being very difficult to get along with. Y.T. was the breadwinner in the family and was away at work most of the week. Considering all of these things, it is understandable that placement with Y.T. and M.L. was not a good option the time.

[171] CHANGED CIRCUMSTANCES

However, that situation did not remain fixed. The physical home was cleaned and decluttered. Some of the cats were gone. M.L. and Y.T. apparently reconciled their domestic difficulties and presented as a united couple with no more talk of separation. M.L. was co-operating with the society, and the society, despite ample opportunity to check whether she was using illegal drugs, could not prove such use on her part. Nor could it show that she was selling her own prescription drugs. They were faithful in exercising whatever access they were afforded and M.L. went to Sick Kids when A.L. got sick in foster care and had to be hospitalized. S.L. spoke to the police about sexual misconduct on the part of Y.T., but nothing ever developed as a result of those allegations. However, Y.T. and S.L. continued to have contact especially by cell phone messaging, and were not up front about it with the society. They were still an unhealthy and dysfunctional triad which was astounding especially in light of continued allegations (and recantations) by S.L. against Y.T.. Finally, the PCA assessments became available and the assessor's unfavourable opinion on capacity to parent appears to be the final nail in the coffin as far as the society is concerned.

[172] COURT'S INDEPENDENT ASSESSMENT

The society's decision whether to place with Y.T. and M.L. is not necessarily that of the court. Moreover, even the placement with the great maternal grandmother, Mrs. K.B. should not be ruled out. The court has to examine these on the basis of the circumstances as they are today, not as they were in September 2014.

[173] COMPARATIVE EXERCISE

Ultimately, this look at 'kin' as possible placements has to be a comparative exercise. Best interests is essentially a comparative test, perhaps the ultimate comparative. What the court must look at are the alternatives permanency planning options open for this child and must look at them in the light of the circumstances listed in S.37(3) CFSA.

[174] PHYSICAL, MENTAL AND EMOTIONAL NEEDS

The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs – The physical needs of anyone start with food, clothing and shelter. I believe those needs were always met by Y.T. and M.L.. If there was any doubt about the quality of the shelter they provided, it was only for a limited time and was at worst a situational lapse the occurred shortly after a move and during home repairs or renovations. I am satisfied that the home is more than adequate now and the society itself has no concerns on this account. As for mental and emotional needs, these have always been attended to by Y.T. and M.L. who have shown nothing but affection and loving care to her. Her special medical needs as a cystic fibrosis child have been met by Y.T. and M.L. as well, from the time that this condition was first diagnosed. They have been diligent throughout the time that the child was in their care to consult with the medical specialists locally and at the Sick Kids CF clinic where they have personally taken A.L. for her quarterly appointments. They have followed medical recommendations and instructions and have not been laggard in asking for help and advice. There is filed a copy of an e-mail from M.L. to Louise Taylor, nurse practitioner, and her reply attesting to advice sought and given. While the society points to their errors in the clapping procedure and in administration of pre-meal enzymes, it appears that these were swiftly corrected and in the case of the enzymes, it was a misunderstanding that led to the confusion. In fact, during the time that they had A.L. in their care, the child never got sick. This cannot be said for the time when the child was in society care as she was sick on two occasions and required hospitalization at Sick Kids for two week stretches. On one occasion, in fact, this came about at the insistence of Y.T. who disagreed with the society's plan of local medical aid, and it was fortunate that he did insist that S.L. be taken to Sick Kids. Y.T. and M.L. have transportation to take the child to her appointments. They have already contemplated her future and have made enquiries as to her ability to attend school when she reaches school age. They have always had a local family physician for A.L.. They have ensured she received all of her immunizations on time. They have changed her, fed her, engaged in play with her. In fact, they have done everything that any parent would do for and with his or her child, and more.

[175] SOCIETY'S FOSTER CARE PLAN

By contrast, the society has placed the child in a foster home an hour's drive away by car thereby limiting the time A.L. has to her family of origin. It has limited her contact with her parents to two hours per week each. The child has twice become sick while in foster care necessitating two stays at Sick Kids hospital. The foster parents have otherwise taken good care of her and she obviously is bonded and comfortable with them. However, her continued stay with them is not assured, and any move will inevitably create a major disruption in her life. The society has not disclosed what its plan is for A.L. either short term or long term. The society's continued plan for maternal visits is an impulsive one as history shows that S.L. has missed many scheduled access visits, and many that she attended were less than ideal with negative comments of her interactions with the child (taking smoke breaks, pre-occupied with her cell phone). Moreover, the society's plan is to cut out entirely visits with Y.T. and M.L., two people whom the child is always happy to see, and with whom she enjoys visits, and for no ostensibly good reason. I believe that a consideration of this circumstance favours returning this child to Y.T. and M.L.'s care.

[176] CHILD'S DEVELOPMENTAL LEVEL

The child's physical, mental and emotional level of development – A.L. is currently 3 ½ years old. That is in chronological years. She is not yet of school age but will be within a year or so. Emotionally and mentally, she appears to be within relatively normal limits. There is no real psychological assessment of A.L. available despite the s.54 order. The best independent evidence of her level of development consists of the medical reports from Sick Kids usually addressed to her local physician advising of her progress. While some of these were part of a joint documents brief, and were referred to during the trial, none were made individual trial exhibits. The gist of these reports, all pre-apprehension, was that A.L. was doing quite well, was more than meeting her milestones and was receiving good care at home. Unfortunately, the record of her while living at home terminated when she was ten months of age, and she was removed from that home. From the evidence, however, it appears that A.L. was breast fed for a short time, slept in her mother's room in a bassinet to facilitate nighttime feedings, was quickly weaned off breast milk and became a bottle fed baby. Her mother began to take less and less physical care of her and M.L. picked up this slack. This was accentuated when the family moved to Kapuskasing in May 2014 and S.L. was often away from the home, even spending weekends with her friends. By then, M.L. estimated she was providing about 80% of the hands on child care. Y.T. was taking the child care responsibilities on when he was home on weekends.

[177] SPECIAL NEEDS CARE

A.L. is clearly a special needs child. She is susceptible to respiratory infections and has had a ventalin mask prescribed for her. She requires lengthy hospital stays with high doses of antibiotics when she becomes ill. This is apparently the lot of any child with cystic fibrosis. There is no evidence that either Y.T. or M.L. are incapable of meeting A.L.'s medical needs and plenty that they did so while she was in their care. They have shown interest and co-operation with A.L.'s health care providers and have shown that they can be taught to attend to her medical needs whether they be physiotherapeutic (clapping) or digestive (enzymes) or recognizing infections. A.L. will not remain at her present chronological age. Medical issues are bound to surface in the future. The society and the foster parents are as uninformed as to what may arise and how to deal with it as are Y.T. and M.L.. The society has no evidence that it has a specialized foster placement with foster parents familiar with cystic fibrosis and its care requirements. On this circumstance, I gauge that M.L. and Y.T. are a marginally better choice of placement than is the society.

[178] CULTURAL BACKGROUND

The child's cultural background – The child's cultural background is that of a child raised in a household where there is a one parent who is bilingual (French and English) and one who is English speaking. She is currently in a foster home that is francophone or at least bilingual. Unfortunately, there is simply no evidence that she will remain there and that whatever new place(s) the society may find for her will also be bilingual. The plan of Y.T. and M.L. is for the child to be bilingual. One complete side of A.L.'s extended family is bilingual, if not francophone, so this is a reasonable wish for this reason alone. If the child were raised by them, it is more than likely that she would retain and develop her francophone language and share in her father's francophone heritage and culture, especially if they continue to reside in the Kapuskasing area. This consideration clearly favours placing the child with Y.T. and M.L..

[179] RELIGIOUS FAITH

The religious faith, if any, in which the child is being raised. – The child was identified as being of the Roman Catholic denomination, at least at birth. However, there is not enough other evidence of her religious and or spiritual upbringing to consider this circumstance as a consideration of what is in her best interests in terms of placement. If the child was to be placed with Y.T. and M.L., it is at least foreseeable if not likely that she would be raised in this religious denomination.

[180] POSITIVE RELATIONSHIP WITH PARENT

The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family - From a placement point of view, this requires the court to consider the relationship of a child with her parent(s) and as a secure member of her parent's family. The plan of the society would minimize this as it plans only a three hour visit once per week with A.L.'s mother (S.L.). This would be completely supervised by the society. The past history of access visits demonstrates that S.L. is prone to miss scheduled visits so it is unlikely that this contact will actually occur once per week. Moreover, S.L. still has many issues which impact on her access visits (addictions, smoking and insufficient parenting skills) which make for a less than productive interaction with her child at times. Finally, the society has built into its proposed access provisions some room for possible changes to maternal access contingent on the mother's "circumstances", and "bearing in mind the best interests of the child". Given the present circumstances, this is unlikely to mean expansion of access; more likely a reduction, or elimination, of maternal access. It is almost certain that A.L. will never reside with her mother in the future.

[181] FAMILY RELATIONSHIPS AND EXTENDED FAMILY

The plan of the society does not include access visits with her other parent, her father Y.T., or with M.L.. They would be cut out of this child's life completely. At least this seems the logical outcome of the order the society is seeking as it does not mention Y.T. and M.L. at all, not even as access parents. Currently, there is a positive relationship between the child and her father as well as with M.L.. It has been positive since birth. The society's plan does not foresee A.L. as a secure member of Y.T.'s family, nor of her maternal extended family (through M.L.). What the society actually foresees for A.L. in relation to her being a secure member of a family is not disclosed, but also seems to exclude her present foster family as long term caregivers. Y.T. and M.L. plan to raise A.L. in their household. They have extended family on both sides that would form the familial constellation in which A.L. would be raised including an aunt (Nicole) and an uncle (Nicholas) and two great grandmothers (Denise and K.B.). A sibling for A.L. is highly unlikely, so she would be an only child and the recipient of all the love and affection that a birth family can provide. This as a circumstance very clearly favours a disposition that involves Y.T. and M.L. as caregivers, and certainly as persons having access.

[182] RELATIONSHIPS AND EMOTIONAL TIES

The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community – This consideration is clearly in favour of a placement with Y.T. and M.L.. The evidence is vague as to with whom A.L. has a relationship while a foster child. She is described as attached to her foster mother (P.S.), a natural outcome of her being in her care almost 24 /7, and of such care being universally described as loving and affectionate. Other than this relationship which is not going to be a permanent one under the society's plan, A.L.'s relationship to others adults or children is relatively unknown. By contrast, A.L. has relationships that are both loving and emotional to both of her parents as well as to M.L. whom she seems to regard as having a parental relationship. She also has such ties to K.B. who has been in her life from at least January 2016 when she was approved by the court as paternal access supervisor. She has an adult aunt and uncle and considerable paternal extended family ties in fact, or available to her as she matures. The preservation and fostering of these birth family relationships is one that is recognized as desirable by the CFSA and clearly favours a placement with Y.T. and M.L..

[183] CONTINUITY OF CARE

The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. – Whatever it is that the society has planned for A.L., it involves a discontinuity in care and the consequent disruption that will result. Firstly, the society plans to discontinue any contact with Y.T. and M.L.. These are two of the most significant persons in A.L.'s life and have been since birth. Secondly, the society inevitably will have to remove A.L. from the S. foster home. Arguably, Mrs. P.S. is an almost equally significant person in A.L.'s life. Thirdly, the society's plan will eliminate both paternal and maternal extended family contact (except for contact with A.L.'s mother S.L., which has not been regular and may yet be terminated in the future). The society's specific plan is unknown, but it will almost certainly involve placement of A.L. with strangers who are as yet unidentified, either in a long term foster care setting, or in an adoption placement. Either way, there will be disruption from not only those persons with whom she has a close relationship but with all things familiar and comfortable in her life. On the other hand, returning her to Y.T. and M.L. will take her back to familiar surroundings, environment, personal care and relationships. It will eliminate the disruption in the child's life. It represents a plan whose essential elements are known and are not speculative.

[184] SOCIETY'S PLAN VERSUS FATHER'S PLAN

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 - The absence of any information from the society about any prospective adoption of A.L., and particularly in view of the society's deletion of the words "for the purpose of adoption" in the order for crown wardship that it feels will be in the best interests of A.L. (as set out in its Statement of Agreed Facts), renders it almost impossible to compare the merits of competing plans for the child. I say 'almost' because the lack of a cogent plan by the society means that the plan proposed by the father wins by default, provided that it is a viable plan. In fact, it is a viable plan that leaves the 'hands on' daily weekday care of the child with his common law spouse M.L., who is also the child's grandmother, and in their joint care evenings and weekends, a pattern that is basic to most families that have one breadwinner and one homemaker. The continuation of birth family relationships overwhelmingly favours his plan over that of the society which has no details of where this child will be raised. The society has provided some internally inconsistent evidence that M.L. might not be a suitable caregiver for the child. It says, on one hand, that she is loving, caring, affectionate, and attentive as a 'maternal' caregiver. On the other hand, it indicates that she is in chronic pain most of the time and takes strong pain medications, has a history of using illegal drugs, has not raised her own children and/or abandoned them, and her relationship with Y.T. was at one point on the verge of ending. There is no evidence of illegal drug use by M.L. other than over twenty years ago. The only other evidence is hearsay evidence of the society obtained from S.L. about M.L.'s drug use at the Hempfest festival which involved a one day overnight attendance by M.L.. Other than that, the society evidence states that M.L. admitted to use of drugs on that occasion, but that evidence is contradicted by M.L.'s trial evidence which denies such use. While she does take pain medication, it appears that all of what she takes is prescribed for her by her physician and is related to her medical condition. M.L. has a proven record of caring for A.L. and has travelled to Sick Kids for her quarterly check-ups as well as for her hospitalizations when she became ill. She has not missed one access visit in 2 ½ years and her access visits are, for the most part, reported to be good visits. She has shown strong commitment to the child and also to Y.T., with whom she continues to reside in a long term relationship. Y.T. has never been a problem for the society in terms of child care and he shows a similar commitment.

[185] CHILD'S VIEWS AND WISHES

The child's views and wishes, if they can be reasonably ascertained - This is somewhat problematic as a consideration. The reality is that this child had independent legal representation at one time, but that ended at the start of the first day of trial. Ms. D. Boucher was appointed as the legal representative for the child A.L. by an order dated July 27, 2015 which was the same date that an order was granted to amend the application claim to one of crown wardship with no access. It was also an appointment made 10 months after the child was apprehended. Ms. Boucher was permitted to be removed as counsel for A.L. on the first day of trial which was May 25, 2016 some ten months later, at her own request. Her contribution to the evidence in the case was nil as she did not participate at trial. Her position on behalf of the child was to endorse what the society was seeking at the time, which was crown wardship without access, for purposes of adoption.

[186] OCL COUNSEL'S POSITION

The main reason Ms. D. Boucher gave for wishing to be relieved of her position as counsel for the child was that A.L. was too young to be interviewed by her, and for the same reason, the child could not provide meaningful instructions as to her wishes and preferences. This would be a short answer to this consideration, namely that the wishes and preferences of the child could not reasonably be ascertained. However, Ms. Boucher did state her position as OCL counsel before departing and it is worthwhile to examine this position. Firstly, it was a position that was based primarily on trial evidence of the society. The trial management conference judge only required advance affidavit evidence in chief from society workers, not from any of the respondents. Secondly, the main society workers produced these trial affidavits late, so it is unclear what Ms Boucher actually reviewed. Thirdly, Ms. Boucher did not have any trial evidence from the respondents and could not possibly know what they might say. Fourthly, whatever evidence she had from any source was not any that had been tested by cross examination as she was no longer counsel when trial evidence began. Fifthly, she had no foreknowledge that the position of the mother and of the society on critical aspects of this case would change as they did. Sixthly, she was not present to hear or participate in the cross examination of Dr. Sroga.

[187] WEIGHT GIVEN TO OCL POSITION

In considering the wishes of the child, I am not inclined to give any weight to the position advanced by Ms. D. Boucher. As far as I am concerned this is a neutral consideration.

[188] EFFECTS OF DELAY

The effects on the child of delay in the disposition of the case – I need not repeat my previous comments with respect to the time it has taken this case to reach this point. It is yet another example of a child protection case that extends well beyond it intended lifespan. The fault in this case is not only that of the society. The father, with his nonsense about his aboriginal connection, added to the delay by the involvement of a totally new agency, which had no prior evidentiary role when it took over. The circumstances of the delay in a disposition require the court to consider the case from the child's point of view. Some jurists would argue that the status quo established by the length of time the child has been out of the care of her pre-apprehension caregivers, and the length of time that she has been in a stable foster home setting, especially if it has been a continuous one, militates against returning the child. Frankly, I disagree with this way of thinking. It is more relevant to consider why the case has taken so long. If the delay in a final resolution is not the fault of a party, is it fair for that party to be prejudiced by reason of the delay in arriving at a final disposition? What I do agree with, however, is that permanency in the form of a final resolution for a child is highly desirable.

[189] PERMANENCY PLANNING

In this case, the child is in a place where she is quite comfortable. The society does not intends that the child should remain there to adulthood, but does not say what its plan is for the child. Its most recent Plan of Care says it will look for adoption but that appears to be belied by its Statement of Agreed Fact which does not say exactly what is in store and when, and proposes weekly maternal access commencing immediately. This leaves the court with no idea of the permanency plan of the society. Y.T. and M.L.'s plan does provide better for permanency and it would be implemented immediately with a return of the child to their care. Their plan appears to be preferable in minimizing the delay in a final disposition.

[190] RISK OF HARM FROM REMOVAL OR RETURN

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 – This is a circumstance that has several alternatives. Ultimately, it is concerned with the care of a "parent". So the only consideration is what is the risk if the child is or is not in the care of a parent. In this case, the child has already been removed, so removal from a parent is academic and not applicable. So too is a consideration of remaining in the care of a parent as this is equally academic as the child is not in the care of a parent and obviously cannot remain there. So the only considerations at this time are the risk that the child may suffer harm:

• by being kept away from a parent, or
• by returning to the care of a parent

[191] RISK OF PHYSICAL HARM FROM FATHER

What parent are we considering here? The words "... in the care of ...." means placement as opposed to access, particularly access that is fully supervised. In the present case, care of a parent means care by Y.T.. While I don't have enough evidence to determine risk of harm to A.L. in some unidentified permanency plan of the society, I can and do consider whether there is any risk of harm in returning her to Y.T.'s care. The most significant risk in A.L.'s life is the physical risk to her health due to her cystic fibrosis condition. I am not overly concerned that being in Y.T.'s care will create a risk of physical harm that is beyond the limits of acceptability. Despite the society's and Dr. Sroga's characterization of the level of care that will be required for A.L. as "extraordinary", I have evidence that A.L. received an adequate level of care when she resided with Y.T. and M.L. prior to being apprehended. Moreover, I presume that A.L. has been receiving this same level of care while she has been in her present foster home. The evidence of the society and of the respondents is that Ms. P.S., the foster mother had no prior experience with a cystic fibrosis child, yet somehow she managed to provide such "extraordinary" care. It is the society's evidence that neither of the foster parents travel to the Sick Kids hospital either for A.L.'s quarterly checkups or when she becomes ill and is hospitalized. Dr. Sroga testified that she had no knowledge of cystic fibrosis and had to do some research into it. Whatever research she did is not set out in the PCA report she prepared other than to state that care of a cystic fibrosis child would need to be "extraordinary". While I have evidence that such care is much different than the care of a normal child, I don't have any actual evidence that Y.T. (with M.L.'s help) cannot provide it.

[192] RISK OF EMOTIONAL HARM FROM DYSFUNCTIONAL TRIAD

There is another risk of harm about which the society has evident concerns as is clear from its evidence and submissions. This is the concern to the child's emotional health if she is returned to Y.T. and M.L.. The source of this risk of harm is the "triad" or the "triangulation" that the society found was not only confusing to its workers, but a sign of the dysfunctionality that plagued the relationships among A.L.'s adult caregivers. This postdated the removal of A.L. from their home and was characterized by the continued communication, mainly between S.L. and Y.T., by cell phone, texts and in person. This, when juxtaposed to the sexual assault allegations that S.L. was clearly sharing with her friends and with the society, was behaviour that was seen as inconsistent with what would be expected of S.L. as a victim of Y.T.'s alleged sexual assaults, and also of Y.T., as the alleged perpetrator and/or the victim of the false allegations. Without getting into a psychological analysis of why they were acting this way, what I infer from the evidence is that S.L. was the initiator of most of these communications, they were made because she wanted something from Y.T. (eg money, or transportation or assistance), and he foolishly obliged her more often than not.

[193] TRIAD NO LONGER EXISTS

What I disagree with is that this remains a concern. The unequivocal and uncontradicted trial evidence is that neither Y.T. nor M.L. have had any contact or communication with S.L. for 1 ½ years. She has moved on with her life, although she evidently has some animus towards them. She has not asked them for anything for a long time and appears to have written them both off. Similarly, Y.T. and M.L. have not made any effort to have any contact with S.L.. In short, this dysfunctional triad is over and done. Whatever risk to A.L. was inherent in this continued entanglement is no longer.

[194] SOCIETY'S ROLE IN PERPETUATING TRIAD

I might add that the NEOACS society was less than innocent in perpetuating this 'triad' it viewed as being so toxic. For well over two months post apprehension, it continued joint access visits with all three adults. This continued when the visits were moved to the Mattice library venue. The society was well aware that S.L. had no means of transportation for these access visits, so it was not an unexpected development that she would look to Y.T. and M.L. for help in getting her to these visits. Or that they would help her out.

[195] DEGREE OF RISK

The degree of risk, if any, that justified the finding that the child is in need of protection – I have already alluded to the society's reasons for apprehending A.L. and for not returning her to her pre-apprehension caregivers. The society has concentrated on the mother, S.L., as the source of the risk of harm to the child. I agree that she is the main source of this risk of harm. Dr. Sroga chimes in with other reasons as well:

• S.L.'s compromised intellectual ability from her clinical observation and her psychometric test results
• S.L.'s mental health issues, in particular her post traumatic stress disorder (PTSD) and her Antisocial Personality Disorder
• S.L.'s substance abuse dependence and her co-residence with a drug user (at the time of the PSA)

In fact, Dr. Sroga recommends that S.L. attend a concurrent disorders program at a facility such as Homewood for treatment.

[196] SOCIETY'S LACK OF CONCERN ABOUT FATHER AND GRANDMOTHER

The society had not apprehended A.L. while she was living in her home. This is very significant, particularly as it knew that M.L. was reported as providing much of the actual care giving. The society does not say much about the risk, or rather the degree of risk that Y.T. or M.L. presented or still poses to A.L.. Its main criticism is that Y.T. has been too reticent to discipline A.L. when discipline is required, he and M.L. do not make any efforts to teach her colours, numbers or body parts, and that Y.T. does not seem to grasp the transfer of learning from one situation to another. These criticisms all are based on observations of Y.T. and M.L. during their access visits with her.

[197] MINOR NATURE OF CRITICISMS

These are criticisms that are not reflective of any high degree of risk of harm. Moreover, it must be remembered that they see A.L. only for two hours once per week and she is not in their parental care. Moreover, she is completely supervised during visits.

[198] RISK FROM DYSFUNCTIONAL TRIAD NOW RESOLVED

The risk of harm to A.L. was because of the "triad" the society observed, which is no longer a source of risk of any harm as it no longer exists. The dysfunctionality in the Y.T. and M.L. relationship, which at one point the society believed was on the verge of disintegrating, is belied by their continued domestic relationship, and can be ascribed, I believe, at least in part to the presence of a S.L. in their lives which, in the words of Y.T. (in retrospect) was like a "demon" in their home. The only other major source of risk of harm was possibly the risk of sexual harm that Y.T. poses to A.L., particularly as she grows older. I discount this entirely. Firstly, I am sceptical that Y.T. was ever a risk of sexual abuse to S.L.. Secondly, the society has not actually argued that Y.T. poses a risk of sexual harm to A.L.. It certainly did not rely on such grounds in this proceeding. Aside from third party reports that he may have accessed some pornographic internet material, there is no evidence of any proclivity on his part to sexually deviant behaviour.

[199] SUMMARY OF RISK ANALYSIS

In summary, whatever may have been concerning at the time of apprehension or thereafter, it involved S.L. much more than Y.T. or M.L.. It has now disappeared as any source of a risk of harm. As for degree, the society has not shown that any of its concerns with Y.T. or M.L. as caregivers are of such a degree that precludes their care of the child. The finding of A.L. in need of protection was based on S.L. as the source of this risk almost exclusively.

[200] OTHER RELEVANT CIRCUMSTANCES

Any other relevant circumstance – This final circumstance includes anything that may be specific to the case but is not related to the dozen listed in s.37(3) CFSA that precede it. In this case, there are some circumstances that tie into best interests that warrant some mention.

[201] SUPERVISION ORDER AND WORKING RELATIONSHIP

Should an order for crown wardship not be made, then what should be made? The answer is either a protection order placing the child elsewhere, or placing the child elsewhere with no protection order. Should there be a protection order, it will require supervision by a society. This will require that there be a working relationship between such a society and the person or persons with whom the child is placed. In the present case, the society involved will not be Kunuwanimano for reasons of lack of jurisdiction. This leaves NEOFACS as the only other society which does have jurisdiction as a supervising agency for this family. Can Y.T. and M.L. work under the supervision of NEOFACS? I believe they can. NEOFACS workers have consistently said that they have no major problems in their dealings with either Y.T. or M.L.. The evidence shows this to be true. There have been no serious disputes between them and this agency. I doubt that I would make no protection order. One of the major reasons is that S.L. may still exercise access to A.L. and it would be inadvisable for her to have contact with Y.T. and M.L., especially with the state of their relationship at the moment. Having an agency like NEOFACS strategically placed between them to facilitate maternal access would be preferable. Another reason is that S.L.'s access, if any, may still require supervision and there is no one proffered who would be an approved access supervisor. I assume that the maternal access contemplated in the Statement of Agreed Facts was intended by the Kunuwanimano society to be supervised, and the omission of this important qualifier was due to either inadvertence or sloppiness. Y.T. and M.L. have not had this child in their care and custody for over 2 ½ years. They are not as familiar with the current medical needs of A.L.. In fact, they have always wanted to know and be kept informed about A.L.. The society has not been as generous in sharing information as it says it has been. For one thing, the society has prohibited Y.T. and M.L. from speaking directly with personnel at Sick Kids for the purpose of obtaining information about A.L.. It also seems to have blocked, or at least discouraged them, from speaking with Ms. P.S., A.L.'s foster mother, who would be the one person who should be in the know about A.L.. Regardless of the reasons, it would be preferable to have some supervision order in place, at least for a time if A.L. is to be returned to Y.T. and M.L.'s care and custody.

[202] SOCIETY'S EXPECTATIONS

Another consideration that falls within paragraph 13 of s.37(3) has to do with the expectations of the society from the respondents. In this case, I will limit this to a consideration of what the society expected Y.T. and M.L. to do. The best place to discover what this was is to look at the society's Plan of Care. This would be the Plan of Care filed September 26, 2014 when the society was seeking a six month wardship order. Paragraph 5 of this Plan of Care sets out the NEOFACS society's expectations of S.L., of Y.T. and of M.L. in separate lists.

[203] FATHER'S COMPLIANCE WITH EXPECTATIONS

It wanted Y.T. to attend the Kapuskasing Counselling Service for an assessment and wanted him to follow through with this agency's recommendations. He did this. He saw Mr. Denis Lallier, a mental health counsellor on Feb 27, 2015. The result was that Y.T. presented with no mental health symptoms and he did not require further services from this agency. NEOFACS also wanted him to sign consents to monitor his compliance with recommendations. He did so. It also wanted him to participate in paternity genetics testing. While I have no actual evidence of any paternity test results, I understand that his paternity of A.L. was established satisfactorily to the society. It also wanted him to clean his home which he did. Finally, it wanted him to consider recommendations that society workers made to him that were deemed to be in his and A.L.'s best interests. This is an expectation, the performance of which is incapable of being evaluated.

[204] FATHER'S ADDITIONAL EFFORTS

Y.T. has done other things as well. He has been attending couples counselling with M.L. at the Kapuskasing Friendship Centre. Y.T. and M.L. asked the NEOFACS society to assist them to take a Triple P parenting program. But they were refused, apparently because they did not have care of A.L.. Nevertheless, they did complete a parenting program with the Kapuskasing Friendship Centre. Y.T. asked many times to have his access expanded to no avail. Finally, he brought a motion which resulted in an order dated January 18, 2016 that provided for paternal access to take place at Y.T.'s (and M.L.'s) home and to be supervised by the maternal great grandmother, K.B.. Finally, Y.T. has been very faithful in exercising his access. He and M.L. even went to Sick Kids when A.L. was hospitalized and had access in the hospital.

[205] GRANDMOTHER'S COMPLIANCE WITH EXPECTATIONS

This Plan of Care had expectations of M.L. whom it referred to in this Plan as a "Respondent" even though it refused to name her as a party respondent and opposed her attempts to be added as such. It wanted her to undergo a hair follicle test and subsequent urine tests on 24 hour notice. It wanted her to abstain from alcohol and non-prescribed drugs. It also wanted her provide to the society a list of her medications and to seek addictions counselling to avoid triggers that might cause her to relapse. It wanted her to undergo an assessment at the Kapuskasing Counselling Services, to sign any consents that the society requested and it wanted her to follow all recommendations. This seems like quite a bit to ask a non party to do. But she did all of this. In fact, she claimed at trial that she provided samples three times and not once did she receive any feedback on the test results. The society evidence lists her medications which it obtained from her voluntary disclosure. The North Cochrane Addiction Services advised that M.L. did a drug and alcohol assessment in November, 2014. M.L. also participated in one on one counselling and subsequently for couples counselling with Y.T.. M.L. also attended for a mental health pre-assessment and did not meet the criteria for any counselling or treatment. M.L. has signed whatever consents the society requested. She and Y.T. also cleaned up the clutter in their home. In short, she has done everything that the society has asked of her. The society has no evidence that M.L. is not a good parent aside from the handicap of her chronic pain which she manages with prescribed drugs. She as well as Y.T. completed a parenting program. M.L. has even taken steps to quit smoking.

[206] COMMITMENT TO CHILD'S RETURN

Both Y.T. and M.L. have remained committed to having A.L. returned to their care and custody. They have complied with all of the society's demands and gone beyond. They appear to be willing to work under the supervision of a society. They also have the physical assistance of the child's maternal great grandmother. She is not as good a candidate as a kin caregiver for A.L.. She is 73 years of age and has a litany of health problems. She is epileptic and has cancer. She also has COPD although she still seems to smoke. She also has no home of her own and lives with a son in Mississauga when she is not living with Y.T. and M.L.. She has not passed the kinship assessment that the society did on her although the reason why not was not really disclosed to her. Like Y.T. and M.L., she has no contact with S.L.. She expressed a wish to assist whoever gets care and custody of A.L.. Her presence in Y.T.'s home and her history of raising S.L.'s sister Nicole attest to the fact that she is willing to pitch in and help. However, I agree with the society that she has too many strikes against her as a long term kin caregiver for A.L..

CONCLUSION

[207] FINAL DECISION

In the end result, I find that A.L. is a child in need of protection as defined in s.37(2) (b)(i) of the CFSA. This finding is qualified in that the source of the risk of physical harm flows almost entirely from the mother, S.L.. The best interests of A.L. dictate that she should be returned pursuant to s.57(1) paragraph 1, to her pre-intervention caregiver and custodian, namely her father Y.T.. This return of A.L. should be subject to a supervision order. Unfortunately, I have heard nothing about either the length of any supervision order. Nor do I have the benefit of submissions of counsel as to what conditions should apply during whatever period of supervision I might impose. In addition, I do not believe that Kunuwanimano is the proper Children's Aid Society to be involved in such supervision, except as a sister agency of NEOFACS carrying out a supervisory function that belongs to NEOFACS. Accordingly, any submissions on any conditions of a supervision order should be made by NEOFACS and the respondents.

[208] MATERNAL ACCESS

In addition, I have no submissions on maternal access except that the mother and society agree to a three hour visit once per week. I have nothing on which to base this frequency and duration of maternal access visits other than this agreement, and have no idea why it would be in A.L.'s best interests to order such access. Moreover, with the state of the relationship between S.L. and Y.T. and M.L., I believe I should have some submissions, at least, and I would probably benefit from more evidence to make a best interests determination on maternal access. The last this court saw of S.L., she was leaving the courtroom mid trial and declined to return to the stand. Her counsel also left and was absent for a good part of the trial.

[209] NOTICE TO NEOFACS

In fairness to the NEOFACS agency, it should be made aware of these Reasons as its continuing role in this family is contemplated to persist for a while.

[210] INTERIM ORDER

These are Reasons only and do not constitute my order after trial. I will endorse that order once I have more information and submissions. In the meantime, I make an order:

1. That a copy of these Reasons be provided by the court clerk to each of:

   • (a) Executive Director of North East Ontario Family and Children's Services
   • (b) Ms. K. Guillemette, counsel for Kunuwanimano Child and Family Services
   • (c) Ms. S. Migneault, counsel for the mother, S.L.
   • (d) Ms. E. Jean, counsel for the father, Y.T.
   • (e) Ms. D. Boucher, formerly OCL counsel for the child

2. That the clerk of this court shall arrange a telephone case conference with myself as the trial judge to discuss and decide on the best manner to deal with the continuation of this case.

3. That the existing order shall continue in the interim.

Released: March 30, 2017

Signed: "Justice John Kukurin"