WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act and is subject to subsections 87(8) of the Act. This subsection and subsection 142(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 87(8), read as follows:
87. - (7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87.— (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.
87. - (9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
134. - (11) No person shall publish or make public information that has the effect of identifying a witness at or a participant in a hearing, or a party to a hearing other than a society.
142.— (3) A person who contravenes subsection 87 (8) or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
ONTARIO COURT OF JUSTICE
IN THE MATTER OF the Child, Youth and Family Services Act, S.O. 2017, c.14, Schedule 1
BETWEEN:
Children's Aid Society of the Districts of Sudbury and Manitoulin
Robin Saari, for the applicant
— AND —
C.H.
Elizabeth Gray, for the mother
D.B.
No one for the father (Answer & Plan of Care Struck)
HEARD: June 19 and 20, 2018
JUDGE: Kukurin J.
Reasons for Judgment
Introduction
[1] These are my Reasons following a trial in this child protection proceeding. The trial related to the issue of maternal access only. The society had brought a motion for summary judgment and obtained a finding that the three year old child, Amelia, was a child in need of protection under s.37(2)(b)(i) – risk of physical harm – and s.37(2)(g) – risk of emotional harm. It also obtained an order for crown wardship of the child. This was by an order made June 19, 2017 at which time the governing statute was the Child and Family Services Act (the CFSA).
[2] Since that decision was released, the law has changed and the current statute is the Child, Youth and Family Services Act (the CYFSA). The parties agree that this trial, restricted to the issue of maternal access, is to be dealt with under the new statute. This court also agrees as the transitional provisions in O. Reg 157/18 provide precisely that.
[3] The summary judgment motion judge expressed her view that the Parenting Capacity Assessment report ordered and relied upon in the summary judgment motion had failed to address the nature of the child's attachment to her mother and the possible effects of her continuing or severing that relationship with her. Accordingly, the motion judge directed that the issue of access be listed for a case conference. I infer that maternal access was an issue that the motion judge was not prepared to deal with on a summary judgment basis, and directed that it be dealt with by a formal trial.
[4] As for paternal access, the father was a latecomer to this case. He finally did retain counsel, but his participation was sporadic and unpredictable at best. His counsel eventually brought a motion to be removed as his counsel. The society also brought a motion seeking to have his Answer and Plan of Care struck. Both were granted. He did not participate in the maternal access trial. He was just a stranger, and never did have any access to Amelia.
[5] The summary judgment motion judge was the logical person to deal with the access issue. However, that judge was absent, unavailable, and unable to do so. At a prior conference, it was ordered that the issue of access would proceed with a different judge, namely myself. Moreover, the parenting capacity assessor was not requested to do a supplementary report on the issue of the child's attachment and the impact of continuing or cutting off maternal access.[1] Nor was any other assessor. No appeal was taken from either the finding or from the order for crown wardship.
Background and Litigation History
[6] Although the mother's background is dealt with in the written Reasons of the summary judgment motion judge[2], and in much more detail in the Statement of Agreed Facts filed in the present access case[3], I will attempt to highlight the salient facts on which the decision on the summary judgment motion was based.
The mother had three prior children. Two became crown wards and were adopted. The third died at age six weeks while in the mother's care and custody, although the cause of death was not parental abuse, but acute streptococcal pneumonia with sepsis. The mother has access to none of her prior children who became crown wards.
The mother had a succession of poor choices of male partners. According to the evidence, her relationship lasted with none of them. To this day, the identity of the biological father of the child who is the subject of this proceeding is uncertain. Several of these relationships resulted in domestic violence, primarily towards her. She has not had one stable long term relationship with a male partner. The mother has often chosen partners with drug issues of their own.
The mother had a drug dependency problem. Some of these were street drugs. She has been in a methadone program for a number of years, reportedly now doing quite well in it. The child in this proceeding, however, was suffering, when born, from severe neonatal abstinence syndrome, from drugs in the mother's system. The child as a neonate was treated with morphine and phenobarbitol, and remained in hospital for almost two months until she was weaned off and ready for discharge.
The mother has been diagnosed with several mental health issues including major depressive disorder, post traumatic stress disorder, mixed anxiety and depressed mood disorder, and adjustment disorder with unresolved bereavement. This is in addition to her substance dependency. Although she has been in the methadone program, she had continued to test positive for morphine, cocaine and speed at different times from November 2016 to August 2017. This was well after the birth and removal of her last child, Amelia. In addition, there were mental health disorders with which she was previously diagnosed including opioid dependence, obsessive-compulsive disorder and generalized anxiety with panic and agoraphobia.
The mother was assessed by Dr. P. Ross pursuant to an order under s.54 CFSA. The summary judgement motion judge relied extensively on the report of this parenting capacity assessment which was not favourable to the mother; in fact, it was referred to as "devastating" to the mother's position (which was to have the child returned to her), with no prognosis for any significant change through counseling or programing. Overall, the mother tested with "severe cognitive deficits, with her overall functioning ranked below the 1st percentile" [PCA Report of Dr. P. Ross Page 22]. Although the report is almost a year old now, it is still evidence in this proceeding by virtue of s.98 CYFSA, evidence that has not been contradicted, and much of which has been admitted, by evidence of the mother herself. Academically, the mother does not seem to have finished grade nine, and was pregnant with her first child at age 15.
The mother has had access to the child since she was born. The summary judgment motion judge described the mother as "faithful" and "near perfect" in her access commitment to Amelia. She described maternal access as positive and without any untoward incident or risk to Amelia. This assessment of maternal access was prior to June 19, 2017 (date of crown wardship decision) and may not have been entirely accurate in hindsight, especially with the evidence in the present trial.
[7] The mother contested each child protection application brought by the society. These were resolved by full blown trials or by contested summary judgment motions. One decision was appealed by her and the appeal court upheld the trial court result. She was unsuccessful in all of them. In the present child protection application, she has again been unsuccessful as a finding was made that Amelia is a child in need of protection, and she has been made a crown ward.
[8] The society relies to a great extent on these above facts to convince the court that access to the mother should be terminated. However, these are not the only facts on which this claim is made. In fact, the law that deals with post crown wardship parental access has changed with the enactment of the CYFSA, and it behooves this court to examine what those changes are, and how they impact on the issue before this court.
Law - Access Post "Crown Wardship/Extended Society Care"
[9] The CFSA contained the following provisions with respect to access to a crown ward: (underlining is my emphasis)
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.
[10] The CYFSA provisions are considerably different:
S.105(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) unless the court is satisfied that the order or variation would be in the child's best interests.
S.105(6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),
(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.
[11] What the legislative changes have done in this area of access after crown wardship (or now extended society care) are:
(a) replaced the two requirements for access in s.51(2.1) (a) and (b) with one requirement, namely, the best interests test,
(b) added to the best interests test applicable to access determinations in these circumstances (i.e access to child in extended society care) the two requirements, but only as considerations under that test, not as pre-requisites, and
(c) made the second one of these (i.e. that ordered access would not impair the child's future opportunities for adoption) applicable only if the court considers it relevant.
[12] The reality, however, is that an order for access after an extended society care order is, and can only be, made under s.104 CYFSA. All CYFSA access orders, like CFSA orders before them, are made under s.104 and are necessarily made "in the child's best interests". So the legislative changes did not really add the best interests test as it was already a requirement under the former s.58 CFSA and it remained a requirement under s.104 CYFSA. Section 104 provides:
S.104 (1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate. (my emphasis)
[13] Section 59(2.1) CFSA already had the 'beneficial/meaningful relationship', and 'will not impair future opportunities for adoption' as mandatory judicial considerations. These were, in fact, stated to apply conjunctively. Their phrasing in s.59(2.1) CFSA was clearly in the nature of pre-requisites for any post crown wardship (now, extended care) access order. Now, as additional considerations in the best interests test under the CYFSA, it might be argued that these have come down a notch in terms of importance, that they represent just two more factors among several that must be taken into account under the best interests analysis under the CYFSA, that that they are no longer statutorily included as pre-requisites for the access applicant; they are simply judicial considerations. I do not believe that this is really the end result of the legislative changes.
[14] Finally, to add the contingency "if the court considers it relevant" to the consideration of whether a post extended care access order will impair future opportunities for adoption, makes sense only if it is not relevant in the eyes of the court.[4] If it is relevant, then it is a factor that must be considered and be given judicial weight, just like all other factors listed in the best interests test. What is clear is that the court should first decide its relevancy (ie the proposed access order and its possible impairment of future opportunities for adoption) to the access issue.
[15] In summary, when considering the access of a parent like the mother in this case to the child who is the subject of this case, the court has to look at the child's best interests. Included in that best interests analysis are the 'beneficial/meaningful relationship" considerations. Also, the court has to decide if the impairment of future opportunities for adoption is or is not a relevant consideration in the case. If it is not, future adoption opportunities, and any impairment of them, are of no further consequence. If it is, then the court must consider the evidence that relates to such future opportunities, and to the impairment of them that making an access order will bring about. There is no longer a "formal" requirement that both of these considerations (ie beneficial/meaningful relationship, and no impairment of adoption opportunities) must be demonstrated to the satisfaction of the court by the person seeking post extended care order access. This latter was a formidable task under the CFSA, in some cases, an almost impossible one prior to the dawn of the amendments in 2011 that introduced openness applications into adoption legislation. The enactment of the CYFSA has arguably lessened the onus on the access applicant. It may not have completely done away with the reverse onus that was implicit in s.59(2.1) CFSA, but arguably may have placed some of that onus with respect to access (or no access) on the society[5].
[16] Finally, it must also be pointed out that the best interests considerations have also been amended by the enactment of the CYFSA. These are now set out in s.74(3) CYFSA:
S.74(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,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) 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,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) 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,
(ix) the effects on the child of delay in the disposition of the case,
(x) 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, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[17] Finally, there are two subsections in both the CFSA and the CYFSA that appear unchanged in meaning, although not in wording. They are:
CFSA S.59(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.
CYFSA S.105(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), any order for access made under this Part with respect to the child is terminated.
[18] These latter two sections are fairly clear. What seems to be the result is that when the order for crown wardship was made on June 19, 2017, whatever interim access order that was in existence on that date ended. Notwithstanding this statutory termination, the mother, the society and the foster mother continued with maternal access arrangements, significantly reduced in frequency and duration from what had previously been the status quo. The explanation for why this access continued or why it was changed seemed to be the society's view that this was a reasonable compromise seen from a child centred point of view. The mother preferred that she would have had the same access as she had been used to having.
[19] Aside from statutory provisions, there is also the jurisprudence that has been built up around the issue of access to a child who is made a crown ward. While the terminology has changed so that a crown ward is now a child in extended society care, the semantic differences have not really changed the case law that has evolved to date. Of particular note is the case law that deals with
- the 'beneficial and meaningful relationship' considerations of access
- the impairment of future opportunities for adoption
- the kinds of access orders that are possible for a court to make
- the more recent provisions for openness applications and openness orders
This jurisprudence will figure into these Reasons below when discussing the applicability of statute and case law to the facts of this case.
[20] There is another aspect of the "law" that impacts on this case. The issue of access was deferred to this trial. However, almost all of the evidence of the society and in response of the mother in this trial is in affidavit format. The affiants have been produced for cross examination on their affidavits. This has come about by an endorsement of a trial management conference judge that "evidence in chief and response affidavit to go in without viva voce evidence subject to cross examination". I have no real objection to this procedural format. However, the affidavits produced are chock full of hearsay evidence which is not normally admissible at a trial. The society has attempted to rehabilitate its hearsay affidavit evidence by producing a duplicate set of affidavits with less hearsay and with case notes or other documents attached as exhibits thereto. Both sets of affidavits are still included as trial evidence. Moreover, the secondary set is just as much hearsay as the first set. The only difference is that the second set has exhibits attached that are almost exclusively case notes made by the affiants, mainly their own case notes. Apparently, the creation of these case notes is a policy requirement of the society. However, the case notes are themselves replete with information that the case note maker obtained from (an)other person(s) who may or may not have been an eye witness to what factual events are recounted in these notes. The buttressing of hearsay evidence with notes which are themselves hearsay does not make the evidence no longer hearsay. Hearsay is still inadmissible at a trial unless it can be shown either to fall under one of the classically accepted hearsay exceptions, or be justified under the principled approach that involves their assessment in terms of necessity and reliability. No such effort was made in this case by either side. The parties, in fact, seemed to want all the evidence before the court, with the court to allocate judicial weight to it.
[21] There is yet another wrinkle in the issue of parental access after an extended care order. I raise it as it has surfaced several times during the course of this trial. It involves 'openness' as a statutory feature of the CYFSA. Openness arises only if the court makes an order for access. Openness does not even fall within Part V of the CYFSA. It is first raised in Part VIII which is the part of the CYFSA which deals with adoptions. The possibility of a subsequent openness order being made is nowhere in the CYFSA suggested to be a factor that should impact on the making of an access order. This is still, however, a contentious issue for judges deciding access claims in the context of a crown ward/child in extended society care.
[22] The most significant decision on the impact of the CYFSA openness provisions on the determination of an order for access to or by a child with respect to whom an extended care order has been made is an appellate decision of Harper J. of the Ontario Superior Court of Justice in 2015.[6] He states at paragraph [68]:
"The amendments to ss. 141, 143 and 145 create the concept of "openness". However, s. 59 was not amended to require the court to consider the concept of openness when considering an access application under s. 59."
This decision canvasses several other decisions that express views that the Bill 179 amendments to the CFSA in 2011 require the court to "consider the future benefits of an openness order in assessing if the parent's relationship with a child is beneficial and meaningful"[7] or that "amendments in Bill 179 have introduced new elements into the analysis required under the test for access to Crown wards contained in that section 59(2.1)"[8] to which he stated "With the greatest respect, I do not agree. Section 59 does not require the court to consider whether or not an openness order might impair adoption. It only requires the court to consider whether the relationship is beneficial and meaningful and whether an access order will impair adoption.... any consideration of openness does not come into play until the child is going to be placed for adoption."
My decision in these Reasons does not consider the impact of an openness application.
[23] I am of the view that there still remains an onus under the CYFSA on the person who seeks an access order to a child who has been ordered into extended society care, to persuade the court that the relationship between that person and the child is beneficial and meaningful to the child, and to do so on the balance of probabilities. While this is now a "consideration" in the best interests test under s.74(3) CYFSA, it is an important one, perhaps more important than any other[9].
[24] The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family. In fact, the permanency plan for such child is necessarily with someone else. So why have an access order? The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful. That is not to say that if the access seeker is, for example, a parent of the child, there is an automatic presumption that access between the child and that parent is beneficial or meaningful. It must still be shown to be. The same applies for any other category of access seeker, and even the child itself if he or she is seeking access.
[25] It is a child focused inquiry. It matters only a little, if at all, what the relationship may be for the access seeker. The child must be at the receiving end of "beneficial and meaningful". The leading case, most often cited on the meaning of these adjectives is a decision of Quinn J.[10] in which he says, at paragraph 45:
"What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous." A "meaningful" relationship is one that is "significant." Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough -- it must be significantly advantageous to the child"
And at paragraph 46:
"I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship"
And at paragraph 47:
"Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made"
The Mother and the Child
[26] There is no question but that the child and the mother have a relationship that is more than simply a blood tie. But the mother has never been a primary caregiver other than in the context of an access parent. She has done so since the child's birth. The child is now age 3 years. So for most of this time, the mother has been having a relationship with a newborn, an infant, a toddler and currently a pre-schooler. She has attended medical appointments with the child and her foster mother. Almost all of her access has been supervised or semi-supervised. There is only one reference to any overnight maternal access. The reports of access supervisors have shown the mother to be appropriate as a caregiver during access, sometimes with a little help or advice. The relationship has been observed to have been enjoyable on both sides. The mother has engaged in recommended activities to assist the child in her development, both physically and emotionally. Before the child was weaned, the mother would express breast milk to provide to the foster mother for the child. With some not unusual exceptions, all access exercised has been generally described as positive. The child was reported to smile and seemed happy to see her mother at most access visits.
[27] The child was observed interacting with the mother at a regularly scheduled supervised access visit at the mother's home by Dr. Patricia Ross, a psychologist who prepared a parenting capacity assessment report under s.54 CFSA. The description of the visit by Dr. Ross was a positive one. She commented on the cleanness and tidiness of the room, how very loving, animated and affectionate the mother was with Amelia, and how Amelia was comfortable, happy and responsive to her mother. The mother created the belief in Dr. Ross that she had a very strong attachment to Amelia and was highly motivated to do her best to parent her and meet her needs [P.33, para (h) PCA Report – Tab 5 Trial Record].
[28] Dr. Ross, however, did not believe that Amelia's primary attachment was to her mother; it was to her foster mother. This is not surprising as the foster mother was the person who provided the most direct and responsive care and nurturing in the critical period of attachment formation. In fact, Dr. Ross acknowledged that there may be a secondary attachment by Amelia to her mother, but questioned whether it might even be lower in Amelia's hierarchy of secondary attachments to that which Amelia has with other persons, such as her foster father and others in her environment. Dr. Ross believed it was less difficult to separate from secondary attachment figures than from primary ones, and even less difficult the more secondary attachments the child had.
[29] Although the summary judgment motion judge commented on the mother's near perfect attendance at access visits, the evidence at the trial before me indicates that the mother was far from perfect. In fact, during the period Nov 27, 2015 to January 4, 2017, the access facilitator assigned by the society for Amelia reported many cancellations and for a variety of reasons. Whatever the reasons, the loss of access on a cancellation day was borne by the child. It should be remembered that the mother's access changed over the three years to date. The child was born May 16, 2015. At first, the child was in hospital for two months. The mother was permitted to visit from 10 am to 5 pm daily, but the child was really under the primary care of nursing staff as she was withdrawing from drug effects acquired while in utero.
[30] On October 15, 2015, the access became a four day a week schedule from 9:30 am to 3:20 (Monday), to 11:30 (Wednesday), to 12:30 (Friday) and 1:30 (Saturday) – approximately 15 hours weekly.
[31] Then, on December 7, 2015, the mother's access was increased by court order to three times weekly, each visit for a 9 hour duration, for a total of 27 hours per week. This continued until the decision of Serre J. on June 19, 2017 placing Amelia in extended society care. Thereafter, starting in July 2017, access was reduced to once weekly, on Fridays, for three hours. In the year since that reduction, the mother has again cancelled a number of visits. At one point in May 2017, the society had put in place a "safety plan" because of the mother's "numerous missed visits" and "her failure to advise the society". This required the mother to contact the society by 8:30 am on the morning of the visit and leave a voicemail confirming her attendance. The many cancellations, particularly without advance notice from the mother had created stress in the foster family, and in particular, for the child for whom routine was desirable, more so than for a normal child.
[32] The mother cannot complain that the access she was permitted was niggardly. It was quite generous until the crown wardship order was made. The available access that did not take place was extensive enough to question the mother's actual practical commitment to the child. At this trial, the mother indicated a plan to leave Sudbury and to relocate in Barrie. She has no vehicle and no money to buy one. Her present partner is under house arrest, with her as one of his sureties, facing trial next month on criminal charges. She has no specific plan to convince this court that whatever access it may accord to her will be exercised and not cancelled. In short, the mother's access has not been as faithful as the summary judgment motion judge believed it to have been, at least as of the date that the motion was heard.[11]
[33] The mother attended the child's appointments with health service providers along with the foster mother, and after a certain point, also with a society worker. The mother was always kept in the loop on the child's needs, her progress, and the recommendations of professionals (at least until the crown wardship order when she was almost completely cut off from this kind of information). For the most part, the mother listened to the service providers, of which there were quite a few – physicians, vision specialists, physical therapists, occupational therapists, speech and language pathologists and nutritionists among others. The mother was provided by the foster mother with food for Amelia for the access visits as Amelia had food intolerances (eg lactose). The mother did not agree with the food regimen established for Amelia in her foster home but followed it reluctantly, if not always faithfully. Nor did she agree with the foster mother's decision to forego immunization for Amelia.[12] The mother used a "pincer" device during access visits that was recommended to correct the child's grasp and help develop her motor skills. The mother engaged in age appropriate activities such as colouring and learning numbers and letters and praising the child to encourage her successes. There was appropriate affection between mother and child. The child clearly benefited from maternal contact. The fact that the child was also provided with the same stimulation within the foster home, and probably to a much higher degree, was not the fault of the mother. Her time with the child was limited by the extent of her access visits.
[34] In summary, according to the society witnesses, the mother did motherly things with Amelia and did them fairly well. Amelia was a special needs child. She has a low vision problem (Nystagmus) for which she wears glasses. She has food intolerances for which she has special dietary needs. She has motor skill deficiencies for which she has physical and occupational therapies. She also has speech and language deficits that require professionally directed therapy. The foster family is currently pursuing genetic testing. On top of all of this was the poor start Amelia had at birth suffering from withdrawal from drugs in her body which seemed to have crossed the placental barrier from her mother. The mother has done remarkably well, given her own limitations, during the time she had the child for access visits, to address these needs of the child. However, the foster parents have done immeasurably more.
[35] The most recent information that came out at the access trial as to Amelia's "special needs" is that she has apparently caught up with her peers in most aspects of her lags. The Developmental Assessment Report summary of Brenda Miller of the Infant Development program, dated April 27, 2018 [Exhibit 4], indicates that Amelia is now within the average range. This improvement has taken place since the maternal access was reduced from 27 hours weekly to once weekly for three hours. Both mother and society seem to acknowledge that this progress is not co-incidentally but causally related. The inference is that reduction of access has accelerated Amelia's progress.
The Foster Mother/Family and the Child
[36] The foster mother testified. The foster father did not. The foster mother indicated that she had infrequent contacts and communications with the mother when Amelia was placed from the hospital in her care as a foster parent. This took place primarily at medical and other health related appointments for the child. However, two incidents occurred that resulted in a buffer of a society worker to be present when such encounters took place. The first was the mother's reaction when she was served with the society's application. According to the foster mother, the mother was very upset and unpredictable. The foster mother felt she was under verbal attack by the mother and her friend, and requested the presence of a society worker at subsequent medical appointments. The second involved the mother's lack of candidness, at times approaching deception, about what went on during her visit with Amelia. Especially during the time that the mother had Amelia for access 27 hours per week, Amelia did not do well then. The mother was rarely able to get Amelia to nap. As a result, her routine was interrupted. Amelia screamed a lot and she would not feed properly. The child returned from visits to the foster home exhausted and extremely irritable and had to be held for lengthy periods before she would settle down. The mother, when asked, indicated that the visit had gone well. Moreover, the mother fed some dairy products to Amelia, despite several cautions not to do so, that resulted in eczema over her body. The mother's testimony of what transpired at her access visits was night and day with the foster mother's account of what she encountered as the aftermath of these visits.
[37] When maternal access was reduced to 3 hours per week, Amelia seldom if ever asked about her mother. According to the foster mother, a backpack would always be prepared to accompany Amelia for access visits (containing her food, glasses etc.) When Amelia caught sight of the backpack, she would show signs of resistance to going, whining and crying, and at times taking a tantrum. There is considerable disparity in observations of Amelia before and after her access visits, and those reported by her mother during her visits.
[38] The foster mother makes it plain that she does not want an access order in favour of the mother. Apart from the fact that Amelia does not seem to want to go, and shows signs of upset when she returns, the foster mother has another child within her home who is the half sister of Amelia. This was one of the mother's children who was previously made a crown ward. There is no maternal access order attached to this older child, now age 12 years. Accordingly, the mother is a virtual stranger to her. However, she is in the same household as Amelia. The foster mother made a deliberate decision not to inform this older child of who her mother was, nor to introduce them to each other. Moreover, she only recently learned that Amelia is her half sister. Part of the reason was that the foster mother did not perceive that the mother had made sufficient progress in her own life and with her own problems to serve as a good maternal role model. This older child has observed what the adverse effects of access have been on her younger half sister. This, according to the foster mother, is an additional reason to keep the mother away from Amelia. If access is ordered, the foster mother fears that the disparate treatment of these two sisters would only exacerbate an already difficult situation.
[39] The foster mother has two adopted children, and one on adoption probation. She has been a foster parent for 15 years, has had at least 40 primary placements, and has also operated a licensed day care that has had over 200 children in overall attendance. The foster mother is not a rookie in dealing with children. In addition, she has adult biological children who assist her in her duties as both a foster mother, an adoptive mother, and a day care service provider. The foster mother has reached out to the aunt of these two half sisters, who resides out of town and who has two children of her own. She has done so out of a commitment to ensure that the oldest sister, at least, has some connection with her biological family. The aunt currently has backed away from further contact, presumably fearing to get drawn in to this court proceeding. The foster mother has also started a 'memory box' for both children which they will be able to access when curious about their birth family identities.
[40] One further consideration of the foster family is its commitment to adopting Amelia. However, there is some slight crack in this commitment if access is ordered by this court. It is not as solid as the family seems to proffer as its position. But an order of access is not a deal breaker for Amelia's adoption. The child has been in the foster home for three years. She has been a very difficult child to raise just from her early struggles and from her special needs. A more than usual amount of parenting has been devoted to her. The bond between the family members and Amelia is quite strong. I would be very surprised if the family did not proceed with the adoption even if extensive maternal access was ordered. Moreover, the society is one hundred percent behind the foster family, and the continued placement of Amelia within that family as an adopted child. So, it appears, is the mother following the order of extended society care.
Analysis
[41] The ultimate question is whether the mother has met the onus of satisfying the court that the best interests of Amelia justify the making of an adoption order. While the 'beneficial/meaningful relationship' consideration is demoted in importance under the CYFSA, in fact, if the relationship is not shown to be beneficial and meaningful, then it is strike one and two against the mother. If impairment of future adoptability is relevant in the circumstances of this case, and the mother does not show that access will not impair future adoptability, then it is a virtual strike three against her.
[42] A beneficial relationship is an advantageous one for a child. What advantage has the mother shown would accrue to Amelia if maternal access were ordered? The answer to that question is hardly any. The preponderance of the evidence shows that from the child's birth, the mother has not provided any advantages to Amelia.
Firstly, by her drug use, the mother basically ensured that Amelia would be born addicted, and condemned her to painful withdrawal symptoms that even adults would find overwhelming. This was a definite disadvantage with which to start one's life.
Secondly, her care of Amelia during access visits has had sufficient indications that the child was not doing well in terms of her development. Despite the positive reports of mother and child interactions made by society personnel, many of whom did not supervise the entirety of each visit, I am troubled by the reports of the prequels to these visits and the aftermath that the foster parents had to deal with following such visits. In accepting the foster mother's observations over the mother's, I have to question whether any advantage that the mother actually brought to the child during access was not more than cancelled out by pre- and post- access conduct of the child.
Thirdly, I accept that when visits were reduced in frequency and duration in July 2017, the child's development increased positively in leaps and bounds. Less parental contact was the only variable that seems to account for this. This argues against access being beneficial.
Fourthly, the mother's positive contributions to Amelia's development were not quantified in the sense that, but for her care during access, Amelia's would not have benefited in some way that she did. I am left with what did the mother actually provide that gave Amelia any advantage. There is no evidence that the mother supplemented what the foster mother was already providing, or that she was providing something that the foster mother was not.
Fifthly, The mother has shown a less than admirable record of commitment to visits, with many cancellations, albeit some with justifiable excuses. This record is unlikely to change with the mother's stated intention to move to the Barrie area, and may even worsen, particularly with only a vague and contingent transportation plan that she puts before the court.
Sixthly, the mother is far from a model of maternal care, even care restricted to access visits. The fact is that she has a track record of illegal drug use which she has still not overcome, the loss of three children, the death of another, the poor choice of male partners, her involvement in domestic violence relationships, her inability to even identify the father of Amelia[13], and her present relationship with her male partner who was, or is, involved in drug use, criminality, incarceration, alleged domestic violence, and with no job or job prospects – the same kinds of qualities that she should by now know she should avoid.
Seventhly, the mother has a whole host of mental health issues, that have plagued her for some time, and indications are that they may do so for some time to come. These inevitably affect her functioning and would affect her in the exercise of access, or her cancelation of it.
Eighthly, there is the evidence in the PCA, which remains uncontradicted, that the mother operates at a very low level in terms of her cognitive functioning. She is unlikely or unable to change this as time marches on. Moreover, and significantly, Amelia does not have a primary attachment to her. This says that there is no, to very little, advantage to have a mother who will always be cognitively challenged and intellectually deficient as a parent, even for access.
[43] "Meaningful" in terms of the relationship has been judicially interpreted to mean that it is "significant". I cannot say that the mother has convinced me that Amelia's relationship with her is 'significant'. From a quantitative standpoint, 3 hours per week is not a significant amount when juxtaposed to 165 of 168 hours per week that Amelia is in the care of her foster family. The mother is only seeking slightly more than 3 hours per week. Significant or meaningful from a qualitative point of view has to be considered from the child's eyes. That is difficult to do with a child that is only three years old and does not verbalize well. I am not inclined to infer from reports of Amelia's conduct whether her access relationship with her mother was or was not significant for her. These would be interpretations at best and would be biased based on who was interpreting. The law is not entirely clear as to who bears the onus to show that the relationship is meaningful, but it seems logical to place that burden on the access applicant. In reviewing her evidence, I was not convinced that she had met this legal threshold. I am even less convinced when I consider what seems to be contradictory evidence from the foster mother, primarily, and others.
[44] With respect to impairment of future opportunities for adoption, the circumstances here do not render this to be a relevant factor. The foster mother has indicated that the foster family intends to adopt Amelia. I have interpreted this to mean that this is their intention whether access is ordered or not. I accept the foster mother's evidence to mean that they would prefer that there be no maternal access order. Accordingly, this meets the contingency requirement of this factor. Impairment of future opportunities for adoption is not a factor relevant in this case. The adoption in question is already identified. And it is not impaired by whether access is granted or not.
[45] The CYFSA does not end with the determinations of "beneficial/meaningful relationship" and "impairment of future opportunities for adoption, if relevant". The statute requires the court to consider the factors listed in s.74(3) CYFSA. This does after all, list the best interests considerations, to the extent that they are applicable in a particular case.
[46] The mother argues that, under the current test for access to a child who is in extended society care,
"The CYFSA does not preclude an order for access, even if the criteria of whether the relationship is beneficial and meaningful to the child and if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption, are not met. It is true that the court must consider the aforesaid criteria as part of and along with the best interests test but the court can still make an order for access even 1f those factors are not established. This is a change from the test under the CFSA" [From supplementary submissions of counsel for the mother]
[47] I agree that technically speaking, this may be correct. However, it is virtually impossible to order access if these two criteria are not met. In fact, I cannot conceive of a situation where they are not met but the court would still order access. It would be a very unique set of circumstances where this would be a reasonable result.
[48] In any event, I am bound nonetheless to canvass the circumstances in s.74(3) CYFSA. The first, in clause (a) is the views and wishes of the child, unless they cannot be ascertained. In this case, I cannot get these from the child because of her age and the fact that there is no evidence of these in this trial. I was invited to infer what these views and wishes might be from the evidence that I did have of observations of the child's behaviour and demeanour at certain times. I decline to do so. The persons who observed this behaviour are not experts and ought not to be testifying as to what this behaviour means. Moreover, this is the behaviour of a three year old child who has numerous challenges. I accept that these cannot be ascertained in this case.
[49] The second does not apply. Clause (b) applies only in the case of a child who is First Nation, Inuit or Metis. Amelia is identified as none of these.[14]
[50] With respect to the subclauses (i) to (xi) in clause (c), it must be remembered that for Amelia, her family consists, in her mind, of her foster family members. While the best interests test is normally used with the child's birth family in mind, this is not the proper touchstone for a child who was apprehended at birth and spent the entirety of her life with a foster family, especially where it was the same foster family throughout that time. Accordingly, where s.74(3)(c) speaks of the importance of a child's relationship to a parent and a secure place as a member of a family, or of the child's relationships with others, it is referring more to Amelia's foster family, not to her mother or her birth family. The same applies to the desirability to avoid disruption, and to be wary of delay in disposition. These are to be gauged from the child's current and historical placement and her relationships with those persons in her constellation of significant persons. There can be no doubt that for most of the subclauses of s.74(3) CYFSA, the foster family, and the foster mother, in particular, emerges far ahead of the mother.
[51] The best interests considerations are not well suited to access determinations. They are much better directed to those considerations that deal with disposition or placement of a child. But the CYFSA, like the CFSA before it, did not create a separate list of considerations that applied more directly and are more germane to determining the issue of access. So we are stuck with what we have and must do the best with it.
[52] Ultimately, the two most important considerations are the needs of the child Amelia and her levels of development, in various spheres: physical, mental, and emotional. There is no comparison between the abilities and means of the mother to meet those needs and that of the foster family. From whatever vantage point, the foster family is the clear winner on this score, not only with the experience that this family has in dealing with children, and not only with the high commitment it has to Amelia, but also from the society's backing. It is these needs of the child that are the highest on the priority list and these considerations frankly outrank others in this particular case. Amelia may have moved to the average range of functioning based on an assessment, but not in all sphere. Her vision is still problematic as are her motor skills. She will likely need special care and treatment for a long time to come. There was no indication that she was being pulled out of all of her therapies and medical interventions simply because of her recent progress in functioning.
Decision
[53] Ultimately, the mother has failed to meet the best interests test on the balance of probabilities. Her onus is to show the court with admissible evidence that the "extended society care best interests test" justifies the order for access that she seeks. She has not done so, particularly not in showing that the relationship between her and the child is beneficial and meaningful to the child. She is required to show this to be the case now, not in the future.
[54] The mother's request is for a modest amount of access. This, unfortunately, is not a situation where the mother gets second prize as runner up. She has failed in her onus and it is clear to me that the court cannot order any access in her favour. It is regrettable for the mother who, I truly believe, loves Amelia and who, despite her own deficiencies and difficulties, has made a rather remarkable effort to keep Amelia in her life in some way. Amelia is a child who would benefit by being fully and permanently integrated in a loving family which has the resources to provide for her needs. The mother should take solace from the prospect that her child will be well cared for to her adulthood, even though the mother will not be part of that process.
[55] Accordingly, I make an order that there be no access by anyone to the child Amelia, and no access by the child Amelia to any person. I decline to make an order that is silent on access, if that is what the society has asked for. Maternal access is an issue that has been placed before this court for adjudication and I view an order that is silent on access as tantamount to a dereliction of a judicial duty to adjudicate in this proceeding.
[56] Should any party seek costs of this trial on maternal access, such party shall serve and file a notice of motion claiming such costs by July 30, 2018, together with written submissions not exceeding 3 pages, and any case law in support. Failing this, there shall be no costs to any party. If such costs are claimed, as above directed, the party against whom costs are claimed shall have until August 30 to serve and file a response, written submissions not exceeding 3 pages and any relevant case law.
[57] I wish to express my thanks to counsel, both of whom were very professional and who represented their principals ably and well. I thank them as well for their helpful submissions and the cases they provided for my review.
Released: June 26, 2018
Signed: Justice John Kukurin
Footnotes
[1] In fact, the Parenting Capacity Assessment Report was not fully completed. It appears that the mother met with the assessor and they reviewed what the assessor had to say. The mother was not pleased and never returned to complete the assessment. It was unlikely that she would attend for a supplementary assessment on the matter of attachment, and the assessor developed a conflict. The society would apparently no pay for another assessment.
[2] Reasons released June 19, 2017
[3] At Tab 16, Trial Record (also Exhibit 1 in this trial)
[4] For example, a child over 12 years who is ordered into extended society care, and who is adamantly opposed to being adopted, and has clear and long established beneficial and meaningful relationships with parents or other persons, might lead a court to consider impairment of future opportunities for adoption to be not at all relevant (to the issue of access to or by the child)
[5] The structure of the previous s.59(2.1) CFSA was 'The court shall not ... unless it is satisfied that (a) and (b)'. The reasonable inference from this grammatical structure was that there was a presumption against access, but it could be rebutted if the court was satisfied that (a) and (b) applied. The section did not explicitly state who had the onus to establish that (a) and (b) applied in the case. However, the logical interpretation was that the person seeking the access order had this onus. Now, with the CYFSA wording, whether (a) and (b) applies in a particular case is no longer a pre-requisite to the making of the access order. These are simply factors that the court must consider, along with all others listed in the S.74(3) best interests test, but these two extra factors apply only when considering access to or by a child with respect to whom an extended society care order has been made. This 'extended care best interests test" is as much an onus on a society to prove (or disprove) as it is for an access claimant (to prove or disprove). A society now cannot simply stand back and rely on a presumption against access (which does not exist in the statute) and say to the access claimant "Prove that the preconditions for your access exist"
[6] T.L.K. v. Children's Aid Society of Haldimand Norfolk, 2015 ONSC 5665, [2015] O.J. NO. 6235 (Harper Ont SCJ)
[7] Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, [2014] O.J. No. 2939 (Sherr Ont CJ)
[8] Catholic Children's Aid Society v. M.M., [2012] O.J. No. 3240 (ONCJ) (Murray Ont CJ)
[9] The circumstances listed in s.74(3) CYFSA, and the two additional factors added by s.105(6) CYFSA that must be considered in applying the best interests test are not ranked in terms of priority or importance. Any one may be as important any other. However, these are not applied in a vacuum. The particular facts of a case will often determine which is of higher importance to the overall decision.
[10] Children's Aid Society of Niagara v. M.J., [2004] O.J. No. 2872 (Quinn Ont SCJ)
[11] The summary judgment motion was focused on finding the child in need of protection and on the disposition following such finding. It did not appear to have any detailed significant evidence on maternal access, at least not to a reader of the Reasons. This is not unusual. When the main focus is elsewhere, parties often concern themselves less with access, a contingent consideration in any event on the outcome of the higher profile issues.
[12] Amelia was not immunized by the foster family. This is somewhat surprising as most children's aid societies will view failure to immunize by a parent as an indicator of neglect. The society here was certainly aware of the foster mother's decision and appeared to respect it although the child, since apprehension, was in the care and custody of the society, which had the ultimate responsibility for the child's health.
[13] Even after the summary judgment motion and decision in June 2017, the mother identified yet another male person who she indicated might be the biological father of Amelia.
[14] There were identification findings under s.42 CFSA made in this case. However, some of these became meaningless with the enactment of the CYFSA which has different identification criteria or categories. In this case, the child was re-identified as not being First Nation, Inuit or Metis following the summary judgment motion and after the CYFSA took effect.
