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, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

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:

87(8) Prohibition re identifying child.

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

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

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

Date: 2018-08-15

Court File No.: Peel 20051/16

Between:

Children's Aid Society of the Region of Peel, Applicant,

— AND —

Ms. J.F., Respondent.

Before: Justice A.W.J. Sullivan

Heard on: May 22, 2018

Reasons for Judgment released on: August 15, 2018

Counsel:

Ms. Rozario — counsel for the applicant society
Mr. Bobesich — counsel for the respondent mother J.F.

SULLIVAN J.:

[1] Introduction

This is the decision in a summary judgment motion on an initial protection application commenced November 10, 2016 by the Children's Aid Society of the Region of Peel (the Society).

[2] The Children

The protection application pertains to fraternal twins, R. and W. (the twins), born in 2016. The Society requests a finding pursuant to section 74(2)(b)(i) of the Child, Youth Family Services Act (CYFSA) and a disposition for extended care of these children, no access for the purpose of adoption.

[3] The Mother

The mother of these children is J.F. (the mother / J.F.).

[4] Prior Orders

On November 16, 2017 Justice Clay made a final order that there is no male parent for the twins in this protection application. This is based on a motion located at tab 6 of volume 2 of the continuing record. This order has not been taken out and it should be for the purposes of this hearing.

[5] Placement in Care

The twins have been in the Society's care from shortly after their birth. Justice Dunn made a temporary without prejudice order for the twins to be placed in the Society's care on December 21, 2016. The parties have been operating with this order ever since. Again, from a review of the continuing record, it does not appear that this order has been taken out and this order should be taken out for the purposes of this proceeding.

HISTORY OF PROCEEDINGS TO THIS FINAL SUMMARY JUDGMENT HEARING

[6] Nature of Motion

This summary judgment motion is for statutory findings, protection findings, and disposition.

[7] Considerable Delay

It has taken a considerable amount of time for this summary judgment to be heard.

[8] Evidence Presented at Hearing

On today's date the court has still not received affidavit evidence on behalf of the mother. Today I did accept three individual pieces of evidence from the mother that were handed up to the court today, despite the fact that these were not served much earlier on the Children's Aid Society of Peel. The court accepted these as part of the mother's plan given the request of the Society for extended care under the Child Youth and Family Services Act (CYFSA). This is the highest and most intrusive order the court may consider if the evidence is available.

[9] Initial Hearing Date

A review of the endorsement section of continuing record indicates that this summary judgment motion was set down to be heard initially for February 28, 2018.

[10] Removal of Counsel

On February 5, 2018 the mother's then lawyer was permitted to be removed as solicitor of record. This was days before the summary judgment motion was to be heard, and delayed the hearing of the motion for a considerable period of time.

[11] February 28, 2018 Status

On February 28, 2018 it was noted that the mother had not filed any materials in reply to the Society's summary judgment motion. She had at this time filed an Answer and Plan in response to the Society's protection application as well as an affidavit in support of her answer.

[12] First Adjournment

On February 28, 2018 the mother sought an adjournment to retain a lawyer. This was granted and the matter was put over to May 2, 2018 to proceed.

[13] May 2, 2018 Status

On May 2, 2018 I was the presiding judge. The Society had served and filed its pleadings on the respondent mother via her first counsel on January 16, 2018 some five months earlier. On May 2, 2018 an agent on behalf of mother's new lawyer, Mr Bobesich, appeared before me, indicating that Mr. Bobesich was prepared to act as the respondent mother's lawyer and was available on a date in June 2018.

[14] Balancing Charter Rights

My May 2, 2018 endorsement indicates that I granted the respondent mother this one last adjournment, balancing the children's and parents section 15 and 7 Charter rights with the need to proceed to a final decision on permanency for the children, given the fact that they had by this date been in care some 490 days.

[15] CYFSA Emphasis on Timelines

The CYFSA emphasizes the need for statutory findings and protection findings much sooner than has occurred in this file, as well as moving towards some finality considering the revised/amended preamble and paramount purposes of the CYFSA that applies to this hearing.

[16] Determination of Indigenous Status

The CYFSA directs that as soon as practicable, the court is to determine whether a child is a First Nations, Inuk or Métis child, and if so the child's bands and communities.

[17] Lack of Statutory Findings

This has not been done nor has any of the statutory findings been made some 1.5 years into this matter.

[18] Pattern of Adjournments

When I permitted Ms. F. an adjournment, I indicated on the record that I have reviewed the continuing record and noted that on several occasions she requested an adjournment at key steps in the process, in particular the first settlement conference that was attempted to be held and the first summary judgment motion that was scheduled for February 28, 2018.

[19] Judicial Direction on Proceeding

I noted that although the court understands the need for the mother to retain and instruct the lawyer of her choosing, she must move on this in order to provide her best evidence to the court in this summary judgment matter. I noted the children have a right to have their lives planned. I noted the length of time the children have been in care and the balancing of interests that are needed in these matters, given the state involvement and the request for extended care made in this summary judgment motion.

[20] Timelines for Evidence

Timelines were provided for the mother to serve and file her responding evidence as well as for the Society to file a reply affidavit if it so desired.

[21] Motion Date

The Motion date was set for May 22, 2018, at 9:00 a.m.

[22] May 22, 2018 Status

Today Ms. F. and her lawyer, Mr. Bobesich, were present. The court pointed out that Ms. F. had not filed any pleadings for this summary judgment motion. The court was informed that Ms. F. was relying on the initial Answer and Plan of Care, located at tab 4 volume 2 of the continuing record and an affidavit at tab 5. These documents were filed on April 28, 2017 a year ago.

[23] Recent Evidence Accepted

As noted above the court did hear that the mother had a number of recent reports, one from her psychiatrist as well as from a substance treatment program. Both are relatively recent. These were in part served on the Society either days ago or today. Given the seriousness of this matter the court was prepared to accept this considering the direction from the Ontario Court of Appeal.

[24] Obligation to Minimize Delay

I am mindful of the direction of the Ontario Court of Appeal that it is our obligation to "minimize delay and promote finality for children." C.M. v. Children's Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, at para. 35.

CHILDREN'S AID SOCIETY OF PEEL'S EVIDENCE

[25] Location of Evidence

The notice of motion for summary judgment and supporting affidavits by the Society are located at tab 8, 9, 10 of volume 2 and tab 1, of Vol 2 of the continuing record.

[26] Older Sibling

In reviewing this evidence it is noted that the twins before the court have an older brother named J., born in 2016. Prior evidence of Ms. F.'s parenting of J. was presented as well as a final order placing J. in the custody of the maternal grandparents pursuant to an order under the previous Child and Family Services Act section 57.1 now section 102 of the CYFSA.

[27] Access to Older Sibling

This order was made on consent December 21, 2016 and Ms. F. has access with this child at the discretion of the maternal grandparents.

[28] Protection Concerns

Some of the protection concerns regarding J. apply to the twins before the court. In particular, the concerns regarding Ms. F.'s ability to manage her mental health combined with her use of street drugs in particular cocaine and marijuana. There is also a third issue which is Ms. F.'s lifestyle and her choice of partners that has resulted in conflict and domestic disputes and police involvement.

[29] Premature Birth

In this summary judgment the court was provided evidence that was uncontested that the twins were born premature at 24 to 26 weeks gestation.

[30] Knowledge of Pregnancy

There is conflicting evidence as to whether or not Ms. F. knew of her pregnancy from the start, or only learned of her pregnancy approximately 2 weeks prior to the twins' birth.

[31] Drug Use During Pregnancy

There is also conflicting evidence as to whether or not Ms. F. was using cocaine and OxyContin as well as marijuana during her pregnancy.

[32] Cocaine in Children's Samples

The uncontested evidence is that there were traces of cocaine in both the children's samples at birth.

[33] Mother Left Hospital

When the Peel CAS workers were notified by the Trillium Health Centre that the twins were born in 2016, Society workers attended the hospital on October 10th, 2016 only to find that Ms. F. had left the hospital while the children remained in the Intensive Care Unit given their multiple health requirements.

[34] Medical Needs at Birth

At birth the twins required incubation and both required blood transfusions.

[35] Resuscitation and Injuries

Both children received morphine at birth and were required to be resuscitated and suffered rib fractures from the CPR administered.

[36] Brain Imaging

The children's ultrasound did show no major brain damage and W.'s ultrasound revealed a smaller developing brain.

[37] Hospital Transfers

The twins were transferred to Sunnybrook Hospital where they remained from December 2016 until January 2017 in intensive care.

[38] Initial Plan with Mother

While the children remained in hospital society workers outlined a plan with Ms. F. to gain a better understanding of her drug use and management of her psychiatric history through her doctor, Dr. L. Historically Ms. F. was diagnosed with a bipolar mood disorder type II and borderline traits with use of street drugs.

[39] Doctor's Assessment

Her doctor in October 2016 indicated that she had last seen Ms. F. on October 5, 2016, after a period of six months where she had not seen her. In October, 2016 Dr. L. indicated that Ms. F. was "irritable regarding her son J. whom she had placed voluntarily with the paternal grandparents".

[40] Society's Plan of Care

The Peel Children's Aid Society plan of care for the twins is located at tab 4 of volume 2 of the continuing record. It reveals that the Society at the start of its protection application sought the protection finding under the then CFSA s. 37(2)(b)(i) (s. 74(2)(b)(i) of the CYFSA), an order for the statutory findings and extended care in the Society for the twins, pursuant to section 101 of the current CYFSA. This is the Society's request today.

[41] December 1, 2016 Hospital Update

In the Society's pleadings noted above there is a report from December 1, 2016 when the workers attended Sunnybrook Hospital Neonatal Intensive Care Unit (NICU). On this date they received an update that the children were struggling and had been required to be ventilated. The child R. would require neurological follow-up upon discharge.

[42] Brain Shunt Surgery

On December 22, 2016, the child R. was transferred to Sick Children's Hospital and required surgery for a brain shunt which was completed to meet his needs.

[43] Mother's Cooperation with Society

The Society evidence is that Ms. F. worked well with the Society's team of social workers between January 2016 and January 2017 attending access and meetings with doctors and specialists caring for her children. It is reported that Ms. F. has a number of strengths but overall she has not taken seriously the protection concerns that led to her older child J. and the twins being brought to a place of safety at birth.

[44] Ongoing Concerns

The workers that have assisted Ms. F. throughout the file have had ongoing concerns attempting to verify information that she provided about her partners and ongoing conflict that require police assistance at her home and her struggles regarding her physical needs, housing, her mental health and her on and off drug use.

[45] Substance Abuse Program Concerns

When the Peel Children's Aid Society workers spoke with Ms. F.'s workers at Peel Addiction Assessment and Referral Centre (PAARC), a drug treatment program, the Society was unable to confirm whether Ms. F. was consistent in her abstinence.

[46] Lack of Demonstrated Insight

Overall it has been difficult to confirm whether she has demonstrated an insight into her personal problems and take responsibility to manage these in such a way to avoid the risk of harm for the twins with such high special needs if placed in her care.

[47] Children's Vulnerability

The evidence provided by the Society indicates that the twins R. and W. are vulnerable children that require a parenting style that is consistent, sensitive and present at all times for their needs.

[48] Assessment of Mother's Capacity

From the Society's perspective and evidence, although Ms. F. is a bright and articulate individual, she lacks insight and at times consistency in her willingness to take on the challenge she faces regarding the management of her mental health and at times self-medication / drug use in order to parent her twins with their significant medical and emotional needs.

MS. F.'S EVIDENCE

[49] Lack of Affidavit

For this summary judgment motion, although Ms. F. was provided with an opportunity to file an affidavit, she did not. She relied on an earlier affidavit filed in support of her answer and plan of care noted above.

[50] Access and Participation

Her principal evidence is that she has visited her twins on a regular basis, as well as participated in the first part of the Society's extensive therapeutic access program. She has also attended most, if not all, of the doctors' appointments for the children.

[51] Denial of Drug Use

Ms. F. denies using crack cocaine during pregnancy and believes that somehow a drink was spiked that she had at a party, around the time of the birth of the children.

[52] Treatment Engagement

She has in the past worked with a counselor at PAARC to deal with her substance abuse and as well continued to see her psychiatrist Doctor L.

[53] Drug Testing Compliance

She has been willing to undergo drug tests but there have been a number of difficulties at times in complying with this request.

[54] Proposed Treatment Programs

In Ms. F.'s plan she outlines that she was prepared to submit to drug testing through an outpatient program namely, the Addiction and Concurrent Disorder Treatment in Group Therapy, offered through Credit Valley Hospital. She further indicated that she is exploring options through the Credit Valley Hospital and the Centre for Addiction and Mental Health to start a similar program at each facility.

[55] Drug Screens Signed

In the affidavits of the Peel Children's Aid Society for this summary judgment motion there is evidence that in May of 2017 Ms. F. signed consents for drug screens.

[56] Positive Drug Tests

Ms. F. tested positive in 6 screens in relation to marijuana at a high level. Ms. F. further tested positive for cocaine on May 24, 29, and June 5, 2017. After this there was a period of approximately 3 months through to August 2017 where the workers were visiting the mother's residence to attempt to lineup further tests each and every time there was some difficulty or excuse. In February 2017, Ms. F. indicated to the workers that she was not going to complete any inpatient program for substance abuse for her fear of hospitals. This was after she had indicated she was investigating the same.

[57] Requirements for Unsupervised Access

The workers advised her that before she could graduate from supervised access with the twins, to community access, she would need at least a consolidated period of time of approximately 6 months of clean screens as well counseling that could be verified.

[58] Difficulty Confirming Compliance

The Society's evidence is that in the summer of 2017 it had difficulty confirming whether or not Ms. F. was enrolled in any program as she had advised and/or whether or not she continued to use non prescribed medication and/or street drugs.

[59] Withdrawal from Drug Screening

The Society received a call from the random drug screen program called Drive Check that was set up for Ms. F. The screening service advised that Ms. F. informed them that as she felt that she was not getting her children back, she therefore was not going to pursue any random drug screens.

[60] CAMH Registration

On July 4, 2017, Ms. Bennett, the primary worker on the file working with Ms. F., indicated that Ms. F. called her stating that she had recently registered and was working with the Centre for Addiction and Mental Health (CAMH).

[61] CAMH Program Limitations

Ms. Bennett on August 1, 2016 spoke with CAMH to confirm whether drug screens were being conducted at the program that Ms. F. was enrolled in. The worker from CAMH indicated that its program was voluntary and based on trust and they could not confirm whether or not Ms. F. was in compliance with abstinence. The Society's evidence after this is that for several months in August, September and October 2017 they had difficulty confirming whether or not Ms. F. was abstinent.

[62] Emergency Room Incident

On November 19, 2017, the Society received a call from the Trillium Hospital Emergency Room physician and the Society was advised Ms. F. was brought there early one morning by the police for concerns regarding her overall health and whether or not she had overdosed. Ms. F. was not cooperating with the hospital and was discharged the same day early in the morning. This information went uncontested at this hearing.

[63] Jean Tweed Centre Program

On the morning of this hearing Ms. F. did produce a letter from the Jean Tweed Centre, dated May 18, 2018. This letter states that Ms. F was admitted into a three-week day program on April 30, 2018 and that she successfully completed the program on May 18, 2018.

[64] Verification Difficulties

On today's date I heard viva voce evidence from Ms. Bennett, the society worker who indicated that she has been attempting to confirm further evidence about Ms. F.'s compliance with the program at Jean Tweed Centre and whether there was testing. The information she received is that there was no random testing done during this program and the society is unaware of whether or not Ms. F. has been abstinent other than her attendance which the society indicated was a positive step.

[65] Psychiatrist's Letter

Similarly, in terms of Ms. F.'s mental health, it was not until the morning of this summary judgment hearing that she produced a letter from her psychiatrist Doctor L. The letter is dated February 6, 2018.

[66] Self-Reported Improvement

Doctor L. indicates that from Ms. F.'s self-reporting she has decreased her use of alcohol and drugs and Doctor L. has no collateral information pertaining to this.

[67] Mood Disorder Management

Doctor L. further indicates that in terms of Ms. F.'s mood disorder, apart from occasionally experiencing brief live symptoms of sadness, fatigue and occasional insomnia, Ms. F. reports that she has been doing moderately well. Her mood symptoms occur in the context of situational issues and that her condition is moderately well-controlled on Quetiapine XR.

[68] Psychiatric Assessment

In this reporting letter the doctor summarizes that Ms. F. is doing well from the perspective of the bipolar disorder which was felt at this point to be in a stable state.

[69] Significance of Late Evidence

The above pieces of information, exhibits 1 and 2 to this hearing were the most significant pieces of information presented on behalf of Ms. F. that the Society and the court received over the past year and a half.

[70] Inability to Verify

The Society testified that other than receiving this information on today's date it had little or no way of confirming the same.

TEST ON SUMMARY JUDGMENT

[71] Divisional Court Guidance

The Divisional Court in Kawartha-Haliburton Children's Aid Society v. M.W., 2018 ONSC 2783, has assisted in clarifying the test in Summary Judgments that the Parties are to meet and that a Court must be satisfied of to proceed as follows:

Rule 16 of the Family Law Rules, O. Reg. 114/99 was amended in 2015 to mirror Rule 20 of the Rules of Civil Procedure, RRO 1990, and Reg. 194. The relevant parts of Rule 16 provide:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

16. (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

16. (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

16. (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

16. (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.

16. (6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[72] Application to Child Protection Cases

Subrule 16 (2) expressly provides that the summary judgment rule applies to child protection cases such as this one.

[73] Hryniak Framework

In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada heralded a new approach to summary judgment to foster and enhance access to civil justice in Canada. The Supreme Court recognized that the cost and delays associated with lawsuits that proceed to trials were preventing people from being able to obtain a true measure of civil justice. Even if successful at trial, the court explained, that the cost and delay may be disproportionate and prevent the outcome of being a truly just one. The court called for a "culture shift" away from civil trials toward a more efficient, affordable, and proportionate civil dispute resolution process.

At para. 36 of Hryniak, Karakatsanis J. set out the key change in approach to summary judgment as follows:

These reforms embody the evolution of summary judgment rules from highly restricted tools used to weed out clearly unmeritorious claims or defences to their current status as a legitimate alternative means for adjudicating and resolving legal disputes.

The Supreme Court explained that using summary judgment simply as a tool to weed out the weakest claims leaving all other cases for trial was no longer an appropriate approach. Rather, summary judgment is recognized as its own, separate, alternative process to resolve cases.

The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial. (Hryniak at para. 34)

To find the faster, cheaper outcome, the test for determining whether there is a "serious issue requiring a trial" must now focus on whether a summary process will provide a fair outcome in the interests of justice. The goal is to avoid slow and expensive trials where it is fair and just to resolve the case without a trial.

The test for determining whether a matter can proceed by way of summary judgment, that is, whether there is a genuine issue requiring a trial, was set out by the court at para. 49 of Hryniak as follows:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

The process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial.

The Supreme Court of Canada laid out a specific roadmap detailing the questions to be asked by a judge in deciding whether the case is one that should be dealt with summarily. At para. 66 of Hryniak, Karakatsanis J. wrote:

…the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.... If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers.... She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[74] Responding Party's Obligation

Rule 16 (4.1) then dictates how a party who wishes to resist summary judgment is to respond, as follows:

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[75] "Put Your Best Foot Forward" Rule

In Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, affirmed 2014 ONCA 878, Corbett J. confirmed the continued applicability of the rules requiring the responding party to "put its best foot forward" or "lead trumps or risk losing". Combined Air Mechanical Services v. Flesch, 2011 ONCA 764 at para 56; Bhakhri, v. Valentin, 2012 CarswellOnt 6667 (S.C.J.), para. 7; Pizza v. Gillespie (1990). The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. T. Hamilton and Son Roofing Inc. v. Markham (City), 2018 ONSC 2665 at para. 30.

[76] Satisfaction of Summary Judgment Test

Considering the above directions by the Divisional Court and my review of the entire record including the current evidence presented by Ms. F. as well as her opportunity to present further affidavit evidence which she has not done, I am satisfied that the above noted test for summary judgment has been met by the Society. I have before me a complete record in which to make a decision and that the process allows me to fairly and justly adjudicate the dispute and this process is a timely, affordable, and proportionate procedure to all, including the children given the preamble and best interest test in the CYFSA.

DISCUSSION AND DECISION

[77] Necessary Findings

As noted earlier in this decision none of the necessary findings under the CYFSA for a final order have been made as yet in this file, despite the fact that it has gone on for over close to two years. Therefore in this trial the following elements for a final order to be made will be reviewed below.

STATUTORY FINDINGS

[78] Undisputed Findings

A review of the record shows that this finding on the particulars of the children was never in dispute and are not in dispute today.

ORDER

[79] Statutory Findings

I make the statutory findings pursuant to section 90 (2) of the CYFSA as follows:

Child's full name: R.S.F.

Date of birth: 2016

This Child is not a First Nations, Inuk or Métis child.

This child was brought to a place of safety before this hearing being the care of the Children's Aid Society of Peel

Child's full name: W.R.F.

Date of birth: 2016

This child is not a First Nations, Inuk or Métis child.

This child was brought to a place of safety before this hearing being the care of the Children's Aid Society of Peel.

FINDING IN NEED OF PROTECTION

[80] Request for Finding

In this summary judgment motion the request set out by the Society is that the children R. and W. are now and when they were brought to a place of safety in need of protection pursuant to section 74(2)(b)(i) of the CYFSA.

[81] Findings of Fact

In regards to the finding in need of protection I make the following finding of fact:

The twins tested positive for cocaine at birth. The mother admits historical use of street drugs, but says that during the pregnancy with the twins she did not use. She believes that at a party someone might have spiked one of her drinks.

[82] Pregnancy Circumstances

Further it appears that she was unaware of the pregnancy until approximately a week or two prior to the twins' birth and Ms. F. did not receive much care during her pregnancy.

[83] Medical Intervention at Birth

The children at birth were premature and required intensive medical intervention to stabilize their health.

[84] Current Medical Issues

Currently they have the following medical issues that require attention by a caregiver for years to come:

THE CHILD R.

[85] General Health Status

R. is generally in good health since his discharge from the neonatal intensive care unit at Sunnybrook hospital where he was treated after birth.

[86] Brain Shunt

In August 2007, R. experienced malfunction in his brain shunt, and underwent surgical revision. R. continues to be followed by the neurosurgeon team at Sick Kids hospital.

[87] Supplements

R. is taking vitamin and iron supplements.

[88] Growth and Feeding

R. has a history of slow growth and has been referred to a community dietitian. R. eats mainly infant formula and blended solids along with some baby finger foods although at this point in his life he should be eating more solid foods.

[89] Vision

R.'s vision at birth was a concern but has improved. He has an ophthalmology surveillance check in at Credit Valley Hospital yearly.

[90] Developmental Concerns

Developmentally R. presents with concerns for his motor function, possibly resulting from his history of brain injury at birth, at the same time he is meeting his motor milestones. He is restricted in his cognitive, social and language skills; at times he has a blank affect, and is easily distractible and difficult to engage in simple interaction play.

[91] Language Development

R. did not have any words or word approximations at the appropriate age development and did not use any pro-social gestures such as pointing or waving.

THE CHILD W.

[92] General Health Status

W. has been in good health since her discharge from the neonatal intensive care unit at the Sunnybrook hospital.

[93] Growth and Feeding

W. has a history of slow growth, and has been referred to a community dietitian. She eats mainly infant formula food and blended solids and baby finger foods.

[94] Vision

W. has a yearly ophthalmology surveillance report at Credit Valley Hospital.

W. is progressing well in her motor skills; she has challenges regarding social and cognitive skills. She has trouble with sustained eye contact, and cannot be engaged in simple interactive play.

[96] Language Development

W. did not have any words or word approximations for her appropriate age development. W. has not been able to respond to her own name and does not use any pro social gestures such as pointing or waving for her age development.

MS. F. DRUG USE AND DRUG TESTING

[97] Ongoing Concern

I find the issue of Ms. F.'s drug testing and willingness to participate in intensive programs early on in this file has been an ongoing and concerning feature. This issue goes to a trust issue and the mother's willingness to recognize that she needs help on this front. How would she operate with the Society on this and other needs while caring for the children? Her use is a major distraction to her parenting of her attentiveness to her children's needs and a drain on her resources.

[98] Positive Drug Tests

Random drug testing in May 2017 did indicate positive cocaine use and Ms. F. did admit to a relapse.

[99] August 2017 Difficulties

In August 2017 Ms. F. missed a number of drug tests, although at the time her mother was undergoing surgery and this did cause some difficulties for Ms. F. I recognize this, however much time has passed since this rough patch to clarify her drug use which she has squandered.

[100] On-Again Off-Again Struggle

There has been an on-again off-again struggle throughout the file about whether Ms. F. was going to obtain the services and attend treatment at either the Credit Valley Hospital or CAMH.

[101] History of Drug Dependency

The evidence that is uncontested is that Ms. F. reported a history of drug dependency. She has been open about her use of marijuana more so than that of cocaine although tested positive for cocaine.

[102] Society's Encouragement

Throughout the course of this file the Society has been encouraging Ms. F. to attend a drug treatment program that has a component of testing and counseling as well as asking Ms. F. to undergo random testing.

[103] PAARC Program

In this regard Ms. F. had initial connection with the PAARC program.

[104] Credit Valley Hospital Program

She did attend an information session at the Credit Valley hospital drug treatment program and was scheduled to undergo an assessment there on April 20, 2017, but she canceled that visit and did not pursue this program.

[105] Despondency About Efforts

At times Ms. F., in her discussions with the Society workers, was despondent about her efforts to have her twins returned into her care, and felt that she should not pursue drug testing as this would not assist her in this effort. I find the Society workers encouraged her not to adopt this thinking.

[106] CAMH Program

In July of 2017, Ms. F. informed the Society that she was going to work through CAMH to address her cocaine use. When the Society workers were able to connect with CAMH the staff at this program outlined that the program is a self-reporting program without any testing that would have assisted the Society in moving to unsupervised access or community access between Ms. F. and the children.

[107] CAMH Attendance

In the fall of 2017, the Society updated its information regarding Ms. F.'s attendance at the CAMH and Ms. F. did attend most of her sessions in September and October 2017.

[108] PAARC Verification

Also in October 2017 the Society called a counselor at the PAARC program, where Ms. F. indicated she was receiving counseling from the beginning of 2017, only to discover that this was not the case.

[109] Emergency Department Incident

In November 2017 the Society received a call from the emergency department at Trillium Hospital and was informed that Ms. F. was brought to the hospital early one morning by the police who responded to a call where a party was taking place and Ms. F. was brought to the hospital for fear of a potential overdose. Ms. F. subsequently did not sign any consents to the Society to confirm what exactly happened on this occasion.

[110] Jean Tweed Centre Letter

At this hearing Ms. F. did produce a letter dated May 18, 2018 from the Jean Tweed Centre. This was admitted as Exhibit 2 to this hearing. The Society had not received this letter until today and there was no ability to confirm its contents.

[111] Jean Tweed Centre Program Details

It does not explain the nature of the counseling offered and the letter indicates that Ms. F. entered a three-week day program on April 30, 2018 and successfully completed the program on May 18, 2018.

[112] Unresolved Protection Concern

I find that Ms. F. has not been able to satisfactorily address this protection concern. She has been less than honest in this regard and it remains an unresolved protection concern.

MS. F. MANAGEMENT OF MENTAL HEALTH

[113] Psychiatrist's Letter

Regarding this protection concern, Ms. F. did produce a letter of February 6, 2018 from her psychiatrist Doctor L.

[114] Self-Reported Improvement

The letter does reveal that Ms. F. has self-reported a reduction in substance use and is managing her diagnosis of mood disorder, bipolar mood disorder type II with a feature of personality disorder / borderline features according to this report.

[115] Difficulty Obtaining Consents

The Society's evidence was that it has been having difficulty obtaining consents to speak with Dr. L. and as late as January 2018 was still seeking consents to do so.

[116] Assessment of Evidence

In my assessment of the above evidence in relation to the protection finding, I conclude that it supports this finding.

[117] Limited Verifiable Evidence

I recognize Ms. F.'s efforts to work with her doctor to manage her health; however; at this point there is very little verifiable evidence as to how this work that she has started would impact on the care of the twins in her care. Would this major responsibility be too much for her? Is this risk manageable and by what supervision conditions given the fact that the children have not been in Ms. F.'s unsupervised care and given their unique medical and developmental needs? Although some of Ms. F.'s evidence today is positive, it is beyond too little and far too late to help this court evaluate the overarching best interest test within the protection findings that I have made.

[118] Connection to Drug Use

I note that at birth the children tested positive for cocaine. Ms. F. was not forthcoming on her use of cocaine and to a lesser extent marijuana and this self-medication is somewhat linked to her management of her mental health.

[119] Third Area of Concern

A third area of concern that was raised in this protection application is the recurring difficulty with Ms. F.'s partners and domestic violence in her life.

[120] Domestic Violence Issues

Although not the father of the twins Ms. F. has at times brought Mr. C. to access visits. She has indicated that he is a boyfriend. In December 2017, Ms. F. informed the police that Mr. C. had pushed her to the floor during an argument. She refused to pursue charges and has not taken steps, to my knowledge, to end this relationship, which at times has been difficult for Ms. F., and not supportive to her or attend couples counseling. I have no information about Mr. C. and what if any further risk he may pose to the children if placed in Ms. F.'s care.

[121] Premature Birth and Medical Needs

The twins were premature and required intensive medical assistance at birth and throughout their life this will be an issue to different degrees.

[122] Lack of Prenatal Care

Ms. F. was not aware that she was pregnant until approximately a week or so before their birth. There is no history of her receiving any specific prenatal care. The children continued to have high medical needs.

[123] Unresolved Substance Use Concerns

Throughout the course of the file there's been a struggle to obtain a clear picture from Ms. F. on her willingness to participate in concentrated counseling and testing to address substance use. It is uncertain how this might contribute to the management or mismanagement of her mental health which appears at this point to be in hand.

[124] Finding of Risk

My findings from the evidence reviewed above support the finding that the children are at risk pursuant to section 74(2)(b)(i) of the CYFSA.

[125] Limited Capacity

Ms. F. is distracted from the main task and goal of arranging her health and domestic life in such a manner to show a stable pattern of stability to be able to meet her children's multiple health and emotional needs now and as they grow. She shows a limited capacity to consolidate her parenting skills and this grounds the risk to the children Children's Aid Society of Hamilton v. O (E).

[126] Constant Theme

In addition her use of drugs to cope with issues is a constant theme in the evidence and her work with the Society that remains unresolved at this point in time.

[127] Jurisprudence on Drug Abuse

In paragraph 112 of Children's Aid Society of Simcoe County v. T.W., [2012] O.J. No. 2866 (SCJ):

There is a substantial body of jurisprudence that stands for the proposition that where a parent is abusing drugs or alcohol, the child is at risk: Lennox and Addington Family and Children's Services v.S.W., 2010 ONSC 2585, [2010] O.J. No. 1862 at paras. 6, 13-15, 22, 47-51, 58-62, 106; Children's Aid Society of Ottawa v. M.C., [2003] O.J. No. 6307 at paras. 22-24, 31, 34; Children's Aid Society of Waterloo Region v. F.(S.J.M.), [1994] O.J. No. 955 at paras. 12-13; Children's Aid Society of London and Middlesex v. S.M., [2000] O.J. No. 2064 (S.C.J.) at paras. 22-23; Children's Aid Society of Durham v. M.F., [2000] O.J. No. 4007 (S.C.J.) at paras. 3-5, 12-14; Children's Aid Society of Hamilton v. L.V., [2009] O.J. No. 1468 (S.C.J.) at paras. 11, 13, 70, 80-81, 83, 94, 97; Children's Aid Society of Owen Sound v. A.L., [2008] O.J. No. 5133 (Ct. J.) at paras. 34, 40, 58-61; Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 at paras. 28-32; Frontenac Children's Aid Society v. S.A.E., [2001] O.J. No. 5487 (S.C.J.) at paras. 3, 23, 27, 29. As Perkins J. stated in Children's Aid Society of Toronto v. A.T., 2011 ONSC 511, [2011] O.J. No. 6220 (S.C.J.) at para. 30.

[128] Ongoing Risk Assessment

I note that I must consider not only at the time of apprehension whether the children were need of protection, but whether this is an ongoing issue today.

[129] Continuing Need for Protection

I find that the children were in need of protection at the time of apprehension and continue to be so through to today's date.

[130] Best Interests Assessment

In determining the best interests of the child, the court must assess the degree to which the risk concerns which existed at the time of the apprehension still exist today. They must be examined from the child's perspective. CAS Toronto v. C.M., [1994] 2 S.C.R. 165.

ORDER

[131] Finding in Need of Protection

The children R.S.F. born in 2016 and W.R.F. born in 2016 are found in need of protection pursuant to section 74(2)(b)(i) of the Child, Youth Family Services Act.

DISPOSITION

[132] Weighing Competing Plans

At this stage of the hearing I will weigh and consider the evidence in relation to the competing plans presented for the twins. I note at this stage the amendment found in section 93(2) of the CYFSA that this evidence regarding disposition was not considered and weighed by me prior to the finding in need of protection.

[133] Available Disposition Orders

Given the length of time that the twins have been in care, since December 2016 and given their ages which are less than six, the timelines and provisions set out in the CYFSA direct that the only orders that I may consider at this point in time is extended care to the Society or return to the person from whom the children were apprehended, in this case Ms. F.

Delay and Child Development

Delay in the litigation process in child protection matters must be measured from the child's perspective. The court must consider the impact of delay on the best interests of the child. CAS of Toronto v. T. (L.), 2016 ONCA 146; CAS of Ottawa v. F. (L.), 2016 ONSC 4044.
The court must also consider the strict timelines that govern child protection proceedings, and section 1(1) which sets out that the paramount purpose the Act is to promote the best interests, protection and well-being of children. M.(C.) v. CAS of Waterloo, 2015 ONCA 612; CAS of Ottawa v. B.H., 2017 ONSC 4799.
Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's chance to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. Catholic Children's Aid Society of Hamilton v. V.C., 2017 ONSC 5557.

[134] Child-Centered Approach

At this stage of the case given the timing involved I must maintain a child-centered approach in that good intentions of a parent are not enough.

Test for Parental Change

The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R., 19 R.F.L. (2d) 232 (Man.C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504.

[135] Comprehensive Best Interests Analysis

A comprehensive best interests analysis requires consideration of the strengths and weaknesses of every option.

a. The court must consider the risk each child may suffer by remaining or being placed in a parent or other person's care.

b. The court must also consider the risk of emotional harm each child may suffer by being kept away from a parent or other significant person in their life. CAS of Toronto v. S. (G.), 2012 ONCA 783; CAS of Hamilton v. C. (K.), 2016 ONSC 2751. Catholic Children's Aid Society of Hamilton v. V.C., 2017 ONSC 5557.

[136] Permanency Planning

The court of appeal upheld the trial judge's decision that emphasized permanency planning over a family plan (proposed supervision or custody order), when the trial judge found that there would be a high risk of continued litigation if a custody order was made. Children's Aid Society of Toronto v. E.S., 2013 ONCA 77.

[137] No Extension of Timelines

No extension of the time lines has been requested nor would I consider it at this stage in the proceedings given the needs and age of the children unless there was some extenuating circumstance, which I have not been advised of nor do I find.

[138] Competing Plans

As noted earlier, both the applicant, Children's Aid Society of Peel, and the respondent mother, Ms. F., presented plans of care for the twins.

[139] Location of Plans

The Children's Aid Society of Peel's plan of care is located at volume 2 tab 4 and Ms. F.'s is at volume 2 tab 5, of the continuing record.

[140] Society's Plan

The Children's Aid Society of Peel is asking for the twins to be placed in their extended care. This previously was known to be crown wardship.

[141] Mother's Plan

Ms. F. is requesting the children be returned to her care under terms of supervision which are not necessarily articulated but understood by the court to be the case.

[142] No Other Plans

The evidence indicates that there are no other plans.

[143] Grandparent Placement Explored

The Children's Aid Society of Peel testified in its evidence that it has pursued the possibility of placement of the twins with the grandparents currently caring for the child J.

[144] Grandparent Placement Not Viable

The evidence I have before me today is that this possible kin placement is not viable given J.'s needs and that of the twins.

[145] No Alternative Placement by Mother

Ms. F. has not provided any evidence of any other possible placement other than herself.

[146] Society's Obligation to Provide Services

In these matters it is important to consider the obligation of the Society to provide services to the children and family from the start to this file, in order to fulfill the preamble and the paramount purpose of the CYFSA.

[147] Opportunity to Parent

Consideration should be given as to whether the Society has given the parent an opportunity to parent. Where the Society frustrates contact with the parent and offers no services, this consideration must come into the equation. Children and Family Services for York Region v. A.W. and M.M., [2003] O.J. no. 996 (Sup. Ct.); CCAS v. P.A.M., [1998] O.J. No. 3766 (OCJ); CAS of the United Counties of Stormount, Dundas and Glengarry v. C.K., [2001] O.J. No. 128 (Sup. Ct.).

[148] Child-Centered Services

In this regard the preamble, amongst other objectives, notes that services provided to the children and family should be child centered.

[149] Building on Strengths

Families have better outcomes when one builds on their strengths and services wherever possible should help maintain connections to the family and community.

[150] Paramount Purpose

The paramount purpose of the legislation is the need to promote the best interests, protection and well-being of the children, respecting their continuity of care and the relationship in a family and taking into account the expanded goals in the preamble including the appropriate sharing of information including personal information in order to plan for and provide services that are essential for creating positive outcomes for children and families.

[151] Best Interest Factors

In assessing the respective plans, I must consider the best interest factors set out in section 74(3) of the CYFSA including, if I can ascertain the views and wishes of the children, which in this case is not possible.

[152] Society's Services

I find that the Children's Aid Society of Peel has offered, from the start and to present, services to both the children and to Ms. F. that have met the preamble and overarching paramount purposes of the CYFSA.

[153] Children's Care

The children were provided a safe and nurturing foster placement in which their basic daily needs have been met and as well their emotional/ development and medical needs were addressed at birth and followed up continuously since on a need be basis.

[154] Mother's Involvement

The facts show that Ms. F. was incorporated into this process and invited to attend and she did attend most medical appointments. She did this in conjunction with the foster parents.

[155] Access Programs

The Society offered continuous access to Ms. F. including the first stage of the Therapeutic Assisted Access Program (TAAP). A second stage TAAP program might have been available to Ms. F. but for the fact that there were continuous difficulties regarding her management of substance abuse and relapse, prevented her from attending and participating in the second stage.

[156] Access Consistency

Regarding access, the overall assessment has been at times Ms. F. has been inconsistent but when present, she has been attentive to the children's needs. There were periods of time when some access was missed due to Ms. F.'s own illness and at other times because of her mother undergoing surgery.

[157] Conflicting Evidence

There is conflicting evidence on Ms. F.'s inconsistent access.

[158] Detailed Access Records

The Society file detailed evidence reviewing months of access in 2016 and 2017. Some of the details show that Ms. F. at times canceled her visits with little advance warning and at times provided reasons for not attending that could not be confirmed.

[159] Summer 2017 Access Issues

In the summer of 2017, a significant period of access was missed which caused the program that Ms. F. was attending to consider not offering this to her altogether. At the time Society workers spent time focusing Ms. F. on the need to be clear about her goals.

[160] Workers' Accommodation

The evidence available shows that the workers attempted to work around difficult times that interfered with access or her attending the twin's medical appointments due to Ms. F.'s own medical needs or appointments for her mother.

[161] Maintenance of Relationship

In this regard, I find that efforts were made to maintain and develop a healthy and nurturing relationship between the children and their family.

[162] Theme of Inconsistency

A theme that emerges when reviewing the totality of the evidence in this matter is that there has been inconsistency in Ms. F.'s desire and focus and do the necessary work and share the required information to address the protection concerns as set out earlier in this decision, so that the court would be satisfied that she could address the protection concerns and meet the overall needs of the children.

[163] Best Interest Factors Analysis

In considering the respective plans set out for the children I am directed to do so in relation to the best interest test set out in Section 74(3) as follows:

(a) Views and Wishes of Children

Given the ages of the children and their special needs I cannot ascertain their views and wishes.

(b) Indigenous Status

These children are not First Nations, Inuk or Métis and therefore the considerations under the section do not apply.

(c) Physical, Mental and Emotional Needs

(i) and (ii) these children's physical, mental and emotional needs and the appropriate care or treatment to meet those needs and their level of development – I find are being met and have been met with the Society's plan both in the past and currently and the evidence points that it will continue to be so.

In terms of Ms. F.'s ability to do so independently I do not have any evidence in this regard. She has attended with the foster parents and at times social workers to medical appointments. I have no independent evidence as to her level of knowledge or understanding of her children's needs as this was not presented other than her desire to maintain the level of medical and therapy care that they currently are receiving.

There was evidence presented that when Ms. F. had a community visit with her son J. and the grandparents, Ms. F. showed a lack of understanding regarding J.'s developmental level and needs when she stated J. needed to be disciplined he had yelled out in public rather than understanding that he could not avoid this behavior, given his level and stage of development.

This aspect of the best interest of the children is significant in that they have many developmental needs that will require caregivers to be attentive and sensitive to their developing needs and address these on an ongoing basis.

This will require caregivers/parents that have no other distractions or struggles other than the day-to-day obstacles presented in life. Ms. F. has unresolved substance abuse issues that this court is not clear on in terms of how she has been owning up in dealing with them in relation to managing and combined with her emotional/mental health.

(d) Race, Ancestry, Ethnic Origin, and Cultural Heritage

(iii) and (iv) with regards to the children's race, ancestry, ethnic origin, family diversity and the child's cultural and linguistic heritage,

Both plans presented would address these children's needs.

At this stage in their life there is no information regarding sexual orientation, gender identity or gender expression that this court has to consider.

In this regard there is no doubt that the mother's plan would address the children's ethnic origin and family diversity cultural and linguistic heritage. The society's current plan does this as well and they indicate that they are sensitive to this on a go forward basis.

(e) Relationships and Emotional Ties

(v) the child's relationship and emotional ties to a parent, sibling, relative, and other member of the child's extended family or member of the child's community.

In this regard the children have emotional ties to each other and their current caregivers as their strongest emotional bond. There is no doubt that they also have a connection to their mother Ms. F. through her visits as well as to their brother J. who is in the care of the paternal grandparents.

Ms. F's plan would address this issue of the children's interests. The Society's plan intends to keep the children together and would also address the bond in connection the children have between each other as well as to their brother J.

(f) Continuity of Care

(vi) the importance of continuity in the child's care and possible effect on the child of disruption of that continuity. Regarding this aspect of the best interests for the twins, this lies squarely with the care that has been provided by the Children's Aid Society of Peel.

This court has doubts and is uncertain of the ability of Ms. F. to maintain the care for the children given other struggles and distractions in her life that she has not yet addressed to the satisfaction of this court such that I find there could be a negative effect on the children's physical mental and emotional development that they have made if placed in her care.

(g) Merits of Proposed Plans and Effects of Delay

(viii) (ix) under the merits of the proposed plans and the effects of the delay in the disposition of this case these children have a right to permanency. The Society's plan is for adoption. The court has ongoing protection concerns that it believes will continue for the children if placed with Ms. F. The proposed plan for adoption would consider the needs of the children remaining together with an adoptive family that would address their special needs. There is benefit and merit to this happening sooner given the delay in the resolution of this matter.

(h) Risk of Harm

(x) and (xi) as for the level of risk that the children may suffer harm through being returned to the care of Ms. F. and the degree of risk, if any, that justified the finding that the children are in need of protection as noted above the court has found that the grounds for need of protection continue today such that the children if placed with Ms. F. could suffer harm.

[164] Best Interest Conclusion

Considering the totality of the evidence and the above best interest factors and law, the length of time the children have been in care and the ongoing protection concerns, I find that it is in the children's best interest to be placed in the extended care of the Children's Aid Society of Peel.

ORDER

[165] Placement in Extended Care

The children R.S.F., born in 2016 and W.R.F., born in 2016 are placed in the extended care of the Children's Aid Society of the Region of Peel.

[166] Access to Children in Extended Care

At this stage in the hearing I have considered whether access to the twins and extended care would be in the children's best interests.

Section 105(5) of the CYFSA indicates that no order for access shall be made to children in the extended care of the society unless the court is satisfied that the order will be in the child's best interests considering:

whether a relationship is beneficial and meaningful for the child, and
if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.

[167] Specification of Access Holders and Recipients

The court is to specify access holders and access recipients when considering an access order for children in extended care.

[168] Statutory Requirement

Pursuant to subsection 105 (7) of the CYFSA, the court must specify who is an access holder and who is an access recipient in its decisions.

[169] Access and Adoption

The existence of an access order does not preclude the Society from placing a child for adoption. A Society may place a crown ward with access for adoption, and once that child is placed for adoption, the access order is terminated under section 195 of the CYFSA (formerly section 143 of the CFSA), subject to notice and a possible application for an openness order being commenced by either the subject of the access order or by the person or persons (including the child depending on the wording of the order) who has/have the benefit of the access order.

ACCESS HOLDER

[170] Distinction Between Access Holder and Recipient

The distinction between who has been granted an access order (the access holder) and who is the person with respect to whom an access order has been granted (the access recipient) has now become a critical consideration because only the access holder has the right to bring an openness application if served with a Notice of Intent to place a child for adoption. The access recipient only has the right to be given notice of the society's Notice of Intent to place a child for adoption. Children's Aid Society of Toronto v. K.A., 2014 ONCJ 304.

[171] Best Interests Test for Access

Subsection 105 (5) and (6) of the CYFSA set out a new legal test for children who have been placed in the extended care of the society. It is now a best interests tests and the court has to consider whether the relationship between the child and the person seeking access is beneficial and meaningful for the child and whether access would impair the child's opportunities to be adopted.

Access - Beneficial and Meaningful

When considering the pre-May 1, 2018 case law to assist in defining this part of this test, I am aware that the test has changed and now there is incorporated the best interest factors which must be balanced with the above terms that have been defined to mean the following in pre-May 1, 2018 decisions before the legislation was amended:

"Beneficial" requires the trier of fact to decide whether, overall, the relationship between the child and the parent is a benefit for the child. This is not a comparative analysis: the question is whether, taking everything into account, access between the child and his father would be good for the child. The analysis is made on an objective standard – the court is asked to decide whether an access relationship would be good for the child – nothing more than that. Children's Aid Society of Toronto v. J.L., 2017 ONSC 2380.
"Meaningful" requires the trier of fact to assess the subjective importance of access for the child. This is separate from the question of whether the access would be "beneficial", a question that requires an objective assessment of the advantages of access for the child. Of course there is some overlap between "beneficial" and "meaningful" – one of the "benefits" of access is continuation of a close family bond between parent and child – something that, by definition, would be meaningful to the child would also be a benefit. Some of the case law seems to combine the two questions – "beneficial" and "meaningful" – into one analysis – "beneficial and meaningful". In my respectful opinion these two analyses ought not to be conflated. Children's Aid Society of Toronto v. J.L., 2017 ONSC 2380.
In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.

[172] Balancing Access and Permanency

The challenge is finding the fine balance between what will preserve a beneficial and meaningful relationship in the best interests of the children and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the children in their new adoptive home. CAS of Ottawa v. B. (J.), 2017 ONSC 1194 (SCJ).

[173] Post-May 1, 2018 Case Law

From: Family and Children's Services of Guelph & Wellington County v. T.S., 2018 ONCJ 411, Justice M.P. O'Dea states:

… beneficialness and meaningfulness is no longer the sole criterion (apart from the adoption question) defining the access onus? Reading subsections 105(5) and (6) together, the beneficialness and meaningfulness criterion should be given no greater weight than the balance of the subsection 74(3) criteria.
The question addressed in D.D.D.H. is whether beneficialness and meaningfulness should be interpreted as it was under the CFSA: see Children's Aid Society of Niagara Region v. J. (M.), [2004] O.J. No. 2872, and S.C.J. Nothing in the wording of the CYFSA appears to bar applying the prior interpretation; however, given that this new criterion is merely one of fourteen considerations, will the prior interpretation risk giving it greater weight than it merits under the new regime.
I found the J.(M.) interpretation of "significantly advantageous" (#45, , [2004] O.J. No. 2872) stands a risk of overpowering the other 13 criteria in subsection 74(3) and found this interpretation should be amended to mean that the access relationship at the time of trial was both "positive" and "important" to the child since, in my mind, these words appear contextually compatible with the balance of the subsection 74(3) considerations whereas significantly advantageous reads as an overriding consideration.

ACCESS

[174] Onus on Mother

The onus is on the Ms. F. to satisfy the court of the new statutory requirements for access to a child in Extended Care.

[175] Relevant Evidence

Applying the above to the facts of this case I note the following relevant evidence:

The twins have been having visits with their mother since birth from 2016 to present. These visits have always been supervised. Ms. F. and has not requested to expand this format of visits at the Society's offices. The Society has not moved to reduce access.

[176] Consistency of Access

Although Ms. F.'s access at times has been inconsistent, access has never dropped off entirely.

[177] Mother's Behavior During Access

Ms. F. has been described during access as a caring and doting mother. She also has been described as a resourceful and bright woman. By and large she brings appropriate snacks, toys, but at times can be inconsistent to rely on what the foster mother has provided. She does at times have ongoing difficulties redirecting and understanding the developmental needs of the children.

[178] Substance Use During Access

Ms. F.'s substance dependency, although unclear in terms of her understanding and use, has never been an issue to the point where it has interfered with an access visit while underway. It is uncertain, however if missed visits were due to this issue.

[179] Medical Appointments

The evidence indicates that Ms. F. has attended most of the children's medical appointments with the foster parents and other caregivers.

[180] Healthcare Cooperation

There is evidence that prior to the children coming into care and during their stay at several hospitals given their premature births that Ms. F. provided all the consents needed for the children's healthcare and worked cooperatively with hospital and Society staff.

[181] No Interference

There is no evidence that Ms. F. has interfered with any of the care that the Society has arranged for the children including the foster parents.

[182] No Negative Impact on Children

There is no evidence that the children have been affected by access or that this has interfered with their emotional and physical development.

[183] Relationship with Older Sibling

There is evidence that she has worked out a similar form of access with her child J. and the grandparents who care for him. There was no evidence that she has attempted to undermine this placement.

[184] Beneficial and Meaningful Access

The above facts support or fulfill the best interest criteria specifically section 74 of the CYFSA. I find that the access is beneficial or good for the children, and the meaningfulness is fulfilled when one looks at the best interest criteria that are meet as noted above.

[185] Access and Adoption

The existence of an access order does not preclude the Society from placing a child for adoption. A Society may place a child in extended care with access for adoption, and once that child is placed for adoption, the access order is terminated under section 195 of the CYFSA (formerly section 143 of the CFSA), subject to notice and a possible application for an openness order being commenced by either the subject of the access order or by the person or persons (including the child depending on the wording of the order) who has/have the benefit of the access order.

[186] Access Holder and Recipient Distinction

FINAL ORDER

[1] The statutory findings pursuant to section 90 (2) of the CYFSA is made as follows:

Child's full name: R. S. F.

Date of birth: 2016

This Child is not a First Nations, Inuk or Métis child.

This child was brought to a place of safety before this hearing being the care of the Children's Aid Society of Peel

Child's full name: W. R. F.

Date of birth: 2016

This child is not a First Nations, Inuk or Métis child.

This child was brought to a place of safety before this hearing being the care of the Children's Aid Society of Peel.

[2] The children R.S.F., born in 2016 and W.R.F., born in 2016 are found in need of protection pursuant to section 74 (2)(b)(i) of the Child, Youth and Family Services Act.

[3] The children R.S.F. born in 2016 and W.R.F. born in 2016 are placed in the Extended Care of the Children's Aid Society of the Region of Peel.

[4] The following access is to be arranged at the discretion of the Society, such discretion shall extend to the type of access, level of supervision, venue and length of such access.

[5] The child R.S.F. shall have the right to access to the child W.R.F.

[6] The child R.S.F. shall have the right to access to Ms. F.

[7] The child W.R.F shall have the right to access to the child R.S.F.

[8] The child W.R.F. shall have the right to access to Ms. F.

[9] Ms. F. shall have the right to access to the children R.S.F. and W.R.F.

Released: August 15, 2018

Signed: Justice A.W.J. Sullivan