WARNING

The court hearing this matter directs that the following notice should 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:

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

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

Date: December 2, 2019

Court File No.: C11282/17

Ontario Court of Justice

Between:

Children's Aid Society of Toronto

Applicant

- and -

R.S., B.P. and M.J.G.

Respondents

Counsel:

• Sherri Smolkin, for the Applicant
• Sage Harvey, for the Respondent, R.S.
• The Respondents B.P. and M.J.G. not attending and found in default
• Jean Hyndman, counsel for the Office of the Children's Lawyer, on behalf of the children JSP and JS

Heard: November 18 - 22 and 25, 2019

Justice: S.B. Sherr

Reasons for Judgment

Part One – Introduction

[1] This was a child protection trial concerning three children – JSP, who is an 8-year-old girl, JS, who is a 4-year-old boy and RS, who is a 9-month-old boy. There were two applications before the court – a status review application regarding JSP and JS and an amended protection application regarding RS.

[2] The respondent R.S. (the mother) is the mother of these children (the children).

[3] The respondent B.P. is JSP's biological father.

[4] The respondent M.J.G. is JS's biological father.

[5] There is no male parent, as defined in the Child, Youth and Family Services Act, 2017 (the Act), for RS.

[6] Neither B.P. or M.J.G. attended at court nor filed an Answer/Plan of Care. They were found in default.

[7] JSP and JS were removed by the Children's Aid Society of Toronto (the society) from the mother's care on July 28, 2017 and have been living since then with B.P.'s parents (the paternal grandparents).

[8] The society seeks an order that JSP and JS be placed in the final care and custody of the paternal grandparents. It also seeks incidents of custody for the paternal grandparents, including the ability for them to obtain documentation for JSP and JS and to travel with them outside of Canada, without anyone's consent.

[9] The society seeks an order that the mother have access to JSP and JS once each month at the Toronto Supervised Access Centre (TSAC). It also seeks an order that B.P.'s access to JSP and JS and M.J.G.'s access to JS be in the sole discretion of the paternal grandparents, including with respect to frequency, duration, location and the level of supervision.

[10] The society asks that this order change an existing domestic order dated January 27, 2014 made under the Children's Law Reform Act (the domestic order) regarding JSP. The domestic order granted joint custody of JSP to the mother and B.P., with JSP's primary residence to be with the mother. B.P. was granted extensive parenting time with JSP.

[11] RS has been in the care of the society since birth. The society seeks a finding that RS is a child in need of protection pursuant to clause 74 (2) (b) of the Act (risk of physical harm). It seeks a disposition order that RS be placed in extended society care with no access to the mother. It further seeks an order that JSP and JS have access to RS as agreed upon between the paternal grandparents and RS's legal guardian, a minimum of four times a year and further and other access as agreed between them.

[12] The mother seeks a dismissal of the society's amended protection application for RS. She opposes the relief sought by the society in its status review application for JSP and JS.

[13] The mother asks that the children be placed in her care. In the alternative, she seeks an order that the children be placed in the joint care of her and her mother (the maternal grandmother). She is prepared, in the further alternative, to agree to terms of society supervision for 6 months.

[14] If JSP and JS are placed in her care, the mother proposes that the paternal grandmother have day access to them every Sunday.

[15] If the court awards custody of JSP and JS to the paternal grandparents, the mother asks that the maternal grandmother have day access to them on alternate Saturdays and a single overnight visit with them on alternate weekends. Subject to the wishes of the maternal grandmother, the mother seeks an order permitting her to attend at these visits. The mother also seeks daily telephone access to JSP and JS. Lastly, the mother seeks rights to information about JSP and JS as set out in subsection 20 (5) of the Children's Law Reform Act.

[16] If RS is placed in extended society care, the mother seeks frequent and specified access to him as may be deemed appropriate by the court.

[17] The mother supports an order for sibling access if any of the children are not living in her care.

[18] The Office of the Children's Lawyer (OCL) was appointed to act on behalf of JSP and JS. The parties agreed at the trial management conference that the court could hear the views and preferences of JSP and JS through their counsel from the body of the court. Those views and preferences were not contentious.

[19] The OCL did not take a position about the placement of JSP and JS, as JSP and JS are not expressing any views and preferences on this issue. The OCL does not consent to or oppose the orders sought by the society or the mother.

[20] The OCL did take a position on access. If JSP and JS do not live with RS, the OCL seeks an order that the society use its best efforts to ensure that sibling access takes place once each week, subject to each child's wishes, schedule and other activities, to be arranged between the caregivers for each of the children.

[21] The OCL took the position that if RS is placed in extended society care and a prospective adoptive home is identified for him, the society may, in its discretion, reduce the frequency of sibling access, but access shall still take place a minimum of once each month until a notice of intent to place RS for adoption is served.

[22] The OCL asks that sibling access take place separately from any child's access with the mother. The society agreed with this request.

[23] If JSP and JS are placed with the paternal grandparents, the OCL seeks an order that JSP and JS have access with the mother at the TSAC, with the location, frequency and duration as may be available through the TSAC, and further access in the discretion of the paternal grandparents, taking into consideration the best interests of these children, including their views and wishes. It also asked for an order giving JSP and JS the right to have a one-on-one visit with the mother a minimum of three times each year.

[24] The OCL also sought an order that JSP and JS have access with the maternal grandparents each Saturday, subject to each child's wishes and other activities, to be arranged between the maternal grandparents and the paternal grandparents, and such further and other access as they may agree upon, which may include overnight access.

[25] The OCL does not take any position with respect to whether the mother, RS or any other person should also be made an access holder, except that any order making one of them an access holder should mirror the orders made for JSP and JS.

[26] The society called 11 witnesses at trial. The court heard from multiple society employees who worked with the family. Their direct evidence was provided by affidavit and they were all cross-examined by counsel for the mother and counsel for JSP and JS. The court heard oral evidence from the paternal grandmother of JSP (the paternal grandmother) and from the foster parents of RS.

[27] The mother provided part of her direct evidence by affidavit and the other part orally. She also called a social worker and the maternal grandmother as witnesses.

[28] The society filed business record briefs on consent. During the trial both the society and the mother filed additional business records.

[29] The parties also filed two Statements of Agreed Facts. One was prepared for the hearing on August 7, 2018, where JSP and JS were found to be children in need of protection. The second was prepared for the consent disposition hearing on January 30, 2019 for JSP and JS.

[30] The statutory findings concerning RS were made at the outset of the trial pursuant to subsection 90 (2) of the Act. RS is not a First Nations, Inuk or Métis child.

[31] The trial was conducted as a blended proceeding regarding RS. The court did not consider evidence solely related to disposition when considering whether he should be found to be a child in need of protection.

[32] The main issues for this court to determine are as follows:

a) Is RS a child in need of protection?

b) If so, is intervention through a court order necessary to protect him in the future?

c) If so, what dispositional order is in his best interests?

d) If an order is made placing RS in extended society care, what access orders are in his best interests, including who should be made an access holder and who should be made an access recipient?

e) Is intervention through a court order necessary to protect JSP and JS in the future?

f) If so, what dispositional order is in their best interests?

g) If JSP and JS are placed in the custody of the paternal grandparents, what incidents of custody are in JSP's and JS's best interests?

h) If JSP and JS are placed in the care of the paternal grandparents, what access orders are in JSP's and JS's best interests? This includes a consideration of whether the court should make an access order for the maternal grandmother.

i) If JSP and JS are placed in the care of the mother, or in the joint care of the mother and the maternal grandmother, what access orders are in JSP's and JS's best interests?

Part Two – Background Facts and Court History

[33] The mother is 37 years old. She was born in Canada and comes from a family that is of Indian Sikh background. She is fluent in English and Punjabi.

[34] The mother testified that she lived for one year with B.P. They separated around 2010. JSP lived with the mother after this separation.

[35] B.P. issued an application for custody of JSP in 2012. This case was resolved on consent. On January 27, 2014, Justice Geraldine Waldman made an order for joint custody of JSP, with primary residence to the mother, and generous specified parenting time for B.P.

[36] JSP continued to reside with the mother after this order was made.

[37] JS was born in 2015. He also lived with the mother. His biological father, M.J.G., has had little contact with him. The court was advised that M.J.G. has been in jail throughout most of 2019.

[38] The mother and maternal grandmother both testified that the maternal grandmother provided considerable parenting assistance for the mother. The maternal grandparents bought a condominium for the mother to live in with JSP and JS. They paid the mortgage on the property and provided other financial assistance for the mother. The maternal grandmother came over daily to spend time with the mother, JSP and JS.

[39] The mother described a volatile and violent relationship with B.P. that continued until 2017. She testified that he had alcohol and drug addictions and that he frequently assaulted her. She said he would break things in her home when he was enraged. This often took place, she said, in front of the children. She said that she couldn't end this relationship. She said that "B.P. was my addiction". The mother said that, because of B.P., she spent a night in a holding cell. She also said that she entered into a Peace Bond respecting him in 2015.

[40] The paternal grandmother confirmed that B.P. had an alcohol addiction. She has been concerned in the past about his drinking and driving and emotional outbursts when intoxicated.

[41] The mother testified that the police were frequently called about her and B.P.

[42] In 2016, the maternal grandmother became seriously ill and was hospitalized for 5 weeks. The mother said that this is when everything began to collapse. She was in an abusive relationship, was caring for two young children, had been in a car accident, was not receiving any child support from the fathers of her children and no longer had the maternal grandmother available to assist her.

[43] The society attended the mother's home with the police on June 19, 2017. The Statement of Agreed Facts filed on August 7, 2018 sets out that the mother displayed bizarre behaviour on this day, including screaming at society workers and alleging that their identity cards were fake.

[44] On July 28, 2017, the mother was involuntarily admitted to hospital under a Form 1 order pursuant to the Mental Health Act after the maternal grandparents called 911 and the society. The mother stayed in the hospital until August 1, 2017 due to concerns about her deteriorating mental health.

[45] On July 28, 2017, the maternal grandparents advised the society that they were unable to care for JSP and JS and declined to have them placed in their care.

[46] The same day, the paternal grandparents advised the society that they were able to care for JSP and JS.

[47] JSP and JS have remained in the care of the paternal grandparents since then.

[48] At the time of her discharge from the hospital on August 1, 2017, the mother's final diagnosis was cannabis-induced psychosis.

[49] The society commenced a protection application for JSP and JS. On August 2, 2017, Justice Carole Curtis made a temporary without prejudice order placing them in the care of the paternal grandmother.

[50] The mother attended the emergency room of a hospital on August 2, 2017. She reported that she had fallen and believed that she had fractured her hip. She also reported having heart problems. She disclosed to the treating physicians that she had been drinking beer that day. At the time of her release, the doctor noted no physical problems and provided a diagnosis of "substance induced psychosis". The discharge summary included a plan for the mother to follow up with Pinewood Addiction Services (Pinewood). The mother did not follow through with this program.

[51] On August 5, 2017, the mother attended the emergency room at a different hospital complaining of hip pain. X-rays were completed and no concerns were noted.

[52] On or about August 9, 2017, the mother was admitted to hospital under a Form 2 pursuant to the Mental Health Act based on the information sworn by a family member. She was subsequently placed on a Form 1 order by her treating physician until August 11, 2017, after which time she was placed on a Form 3 order pursuant to the Mental Health Act. She was discharged on August 18, 2017 with a diagnosis of substance induced psychosis.

[53] The mother testified that she had little memory of what happened during this time.

[54] The mother exercised supervised access twice each week to JSP and JS at the society's office after they were placed with the paternal grandmother.

[55] JSP and JS have also had unsupervised access on most Saturdays with the maternal grandmother since they were placed with the paternal grandparents. The paternal grandmother and maternal grandmother have arranged this access directly. There has never been a court order regarding this access.

[56] On October 22, 2017, the mother attended at the hospital claiming that she was pregnant, due in January 2018 and that the baby had dropped. The hospital conducted an ultrasound. The mother was not pregnant. It was suggested that the mother see a psychiatrist, but she refused to do so.

[57] On or about October 31, 2017, the maternal grandmother called the police and the mother was charged with assaulting the maternal grandparents.

[58] Due to concerns about the mother's conduct at visits, the society suspended them in November 2017. They remained on hold until they started again in March 2018.

[59] On December 12, 2017, Justice Curtis heard a contested access motion brought by the mother. She ordered that the mother's access to JSP and JS would be in the society's discretion, including no access.

[60] On January 14, 2018, the mother was brought by the police to Rouge Valley Hospital. The hospital records indicate that the mother reported that she had been partying with her boyfriend since New Year's Day and had been drinking alcohol and smoking marijuana. She was claiming that JSP and JS had been taken by B.P. (they hadn't). The records further noted that the mother had been previously prescribed Lorazepam during one of her hospitalizations but did not use it as it made her feel worse.

[61] The mother testified that the police had brought her to the hospital that day because her friend had beaten her and another friend. This evidence was contrary to the information set out in the hospital records.

[62] The hospital referred the mother to the Pinewood program and the mother completed the program in February 2018.

[63] In March 2018, the mother completed a women's empowerment program teaching different life skills.

[64] On June 20, 2018, the mother and the society agreed that a psychological assessment of the mother should be conducted by Dr. Kathleen McDermott.

[65] A trial was held on August 7, 2018 to determine if JSP and JS were children in need of protection. The mother and the society agreed that the court could make this determination based on the Statement of Agreed Facts filed and submissions of counsel.

[66] At the conclusion of the August 7, 2018 trial, Justice Curtis found JSP and JS to be children in need of protection pursuant to clauses 74 (2) (b) (risk of physical harm), (h) (risk of emotional harm) and (k) (unavailability of parent) of the Act.

[67] Dr. McDermott prepared a psychological assessment of the mother dated October 3, 2018.

[68] Dr. McDermott's assessment was not provided to the court at this trial. Dr. McDermott was not called as a witness.

[69] In the second Statement of Agreed Facts provided for the disposition hearing on January 30, 2019, the parties agreed that:

a) Dr. McDermott noted in her assessment that the mother presents as an individual with pronounced narcissistic personality features and has a predisposition to severe cognitive decompensation (i.e. paranoid delusions) when under extreme stress and/or substance abuse.

b) Dr. McDermott stated in her assessment that the mother's interpersonal relationships based only on her needs and gratification will continue.

c) Dr. McDermott recommended in her assessment that perhaps long-term and ongoing treatment with an experienced therapist, who has foreknowledge of her previous behaviours and actions, might help mitigate the mother's future suffering.

[70] The second Statement of Agreed facts also states that:

a) The mother and her family service worker had discussed Dr. McDermott's report several times.

b) The mother told the family service worker that she does not mind the diagnosis, because "I do love myself, who doesn't". She said that she does not need to read the rest of the report.

c) She denied to the family service worker on January 8, 2019 that she has any current mental health concerns.

d) The family service worker encouraged her to review the report with any psychologist or psychiatrist of her choice. The mother said that she would not do this.

e) The mother subsequently said that she planned to meet with a psychiatrist to be reassessed.

f) There were concerns about the mother's ability to divide her attention between JSP and JS at visits, to manage JS's behaviour and to end visits on time.

g) The mother was consistent in attending her access visits. Some visits went well overall.

[71] In September 2018, B.P. moved into the home of the paternal grandparents. The paternal grandmother testified that he was never left alone with JSP and JS. In December 2018, B.P. was asked to leave the home after coming home drunk. The police were called to remove him after he was breaking furniture in his room. He did not see JSP and JS again, by his choice, until the fall of 2019.

[72] On October 16, 2018, Justice Curtis set a summary judgment motion date for the disposition of the protection application. The society was seeking a 6-month supervision order placing JSP and JS with the paternal grandparents. The mother opposed this.

[73] The society attempted to arrange a Family Group Conference to discuss alternative family or community plans for RS, who was due in February 2019. The mother was resistant to doing this. She finally agreed and a Family Group Conference was scheduled for January 31, 2019. However, it was cancelled because no maternal family member was willing to present a plan for the baby.

[74] The parties agreed to a disposition order for JSP and JS on January 30, 2019 – the return date for the summary judgment motion. Justice Melanie Sager ordered that JSP and JS be placed in the care of the paternal grandmother for 6 months, subject to the supervision of the society. Access to JSP and JS by the mother and B.P. was to be as approved by the society and in its discretion. Access to JS by M.J.G. was to be as approved by the society in writing and in advance, with the access to be supervised. The supervision order set out terms and conditions for the mother.

[75] RS was born in February 2019. He had medical issues at birth and remained in the hospital for nine days. The society brought him to a place of safety (at the hospital) at birth.

[76] On February 15, 2019, Justice Debra Paulseth placed RS in the temporary care of the society. Access to the mother was ordered to be in the discretion of the society. This order remains in place.

[77] On February 21, 2019, RS was discharged from the hospital and placed in a foster home. He has remained in that foster home since then.

[78] The mother has exercised supervised access to RS twice each week at the society office since he was discharged from the hospital. At one of these visits each week, the mother, JSP and JS visit with RS for an additional thirty minutes.

[79] In March 2019, the mother attended at the Scarborough Health Network for the purpose of obtaining individual counseling. Some preliminary appointments took place but counseling never started. The mother and the counselor agreed that the counselor could not provide the services that the mother was looking for. The counselor suggested other resources that might help the mother.

[80] In April 2019, the society assessed the maternal grandmother as a potential supervisor for the mother's access with JSP and JS. It assessed that the maternal grandmother was not capable of safely protecting them from the mother.

[81] In May 2019, the mother asked the society to assess her roommate, K.C., as a potential access supervisor for her. The society started this process. However, K.C. called the society on July 12, 2019 stating that she was no longer willing to provide support for the mother. The mother testified that there was a physical confrontation where K.C. tried to slap her, and K.C. asked her to leave her apartment.

[82] On July 2, 2019, the society issued its status review application regarding JSP and JS.

[83] On August 12, 2019, the society reduced the mother's visits to JSP and JS to once each week due to its concerns about her conduct at visits.

[84] B.P. began seeing JSP and JS again in the fall of 2019. His access is supervised by one of the paternal grandparents.

[85] In August 2019, the society referred a proposed plan by the maternal grandparents to care for RS to its kinship department for assessment. Shortly after, the maternal grandmother asked the society to put its assessment on hold.

[86] On October 16, 2019, Justice Curtis dismissed a motion brought by the mother for increased access to the children.

[87] M.J.G. has not actively engaged with the society and has shown no interest in seeing JS.

Part Three – Credibility and Reliability

[88] There were many material facts in dispute at trial – particularly around the mother's conduct. It is necessary to conduct a credibility and reliability analysis to determine these contested facts.

3.1 The Mother

[89] The mother was neither a credible or reliable witness.

[90] Some of the mother's evidence was proven to be false. Other evidence was exaggerated. Often, the mother provided evidence that appeared to be a distorted reconstruction of the facts.

[91] Some examples of the mother's evidence being proven false were:

a) She claimed that she had never been arrested. The maternal grandmother confirmed that the mother had been arrested at the end of October 2017 for assaulting her. Further, the mother described another occasion where she had been held overnight in jail and entered into a Peace Bond with respect to B.P. She also said that she completed the PARS program in 2015 – this is usually related to the criminal court process.

b) The mother claimed in her trial affidavit that she had completed several weeks of individual counseling in 2019. She said that the counselor refused to continue with her after being sent a letter by her counsel asking for information about the counseling. She deposed, "Ms. J. then refused to provide any further counseling to me saying I should see someone who is willing to write letters".

The mother called the counselor as a witness. The counselor testified that the mother came very late for their first session – not much was done. She had the mother complete an assessment for the second session. In the third session, she explained to the mother that she would be conducting Cognitive Behavioural Therapy with her. In the final session, the mother told her that she wanted a parenting capacity assessment for court. The counselor said that she didn't provide this service and gave her referrals. The counselor said that no individual counseling ever took place.

In cross-examination, the mother conceded that she didn't want to continue with the counselor. She felt that the counseling the counselor had proposed doing with her didn't pertain to what she was going though and was "more appropriate for a CAMH patient". She expressed gratitude for the counselor and said that they had agreed she would not participate in counseling with her. This evidence was contrary to the mother's evidence set out in her trial affidavit.

c) The mother stated in her trial affidavit that no psychiatrist has been willing to see her on an ongoing basis. In cross-examination, she conceded that she recently missed an appointment with a psychiatrist and has now been put on a 3 to 6 month wait-list.

d) The mother claimed that she did not attend at a hospital in October 2017 and tell hospital staff that she was pregnant and that the baby had dropped. This was contradicted by the hospital records. There is no reason to doubt such a detailed record from the hospital.

e) The mother claimed that the police took her to the hospital on January 14, 2018 because of physical injuries suffered when she was assaulted by her friend. She denied that she had been drinking alcohol. The hospital records for that date make no mention of physical injuries but do set out that she had been partying with her boyfriend (the person she claimed at trial had assaulted her) since New Year's Day, drinking and smoking marijuana. The records also set out the mother's allegation that B.P. had taken JSP and JS. Again, there is no reason to doubt such specific records from the hospital.

f) The mother claimed that she was now living in a condominium rented by her parents. The maternal grandmother had no knowledge of this and said that the mother was living in an apartment with a friend. The maternal grandmother said that she hadn't arranged for this apartment.

[92] Some examples of the mother distorting or exaggerating evidence are as follows:

a) She claimed that she didn't want the maternal grandmother to see RS at the hospital after he was born because she didn't want her to become attached to him if he was to come into society care. This was not the case. The maternal grandmother testified that the mother was denying her access because she was very angry at her for calling the society about her in July 2017 – their relationship had deteriorated. The mother told the society at the time of RS's birth that the maternal grandmother had to be supervised as she may be having a mental health deterioration and has a bi-polar disorder.

b) She claimed that her home was immaculate prior to the children coming into care. The paternal grandmother described it as being kept in very poor condition. She said that it smelled of urine, was dirty and that dishes would be piled up in the sink. Subsequently, the mother acknowledged that the home was significantly damaged. She blamed this on B.P. The maternal grandmother acknowledged that there were damages to the home at that time. She said that B.P. had broken a window and M.J.G. had broken a door.

c) The mother claimed that she attended Pinewood because she was "addicted to B.P.". She didn't seem to recognize that she was referred to Pinewood because her alcohol and substance abuse had contributed to her multiple hospitalizations.

d) She claimed that she is the only person who can calm JS down. There was considerable evidence from multiple witnesses that the mother struggles with managing JS's behaviour at visits. He behaves much better at school and in the paternal grandparents' home.

e) She has been quick to make baseless allegations, threaten to call the police and overreact. Examples are as follows:

(i) She asked for a change in her first society family service worker, claiming that the worker had a personal relationship with the maternal grandmother. At trial, she struggled to explain why she would feel this way.

(ii) She has accused the current family service worker of having a personal relationship with JSP's paternal family.

(iii) On February 8, 2019, she accused the worker of tripping JS deliberately and insisted on obtaining surveillance video, despite JS telling her he hadn't been tripped. The mother continued to scream and yell at the worker in front of JSP and JS.

(iv) On June 4, 2019, she felt that JSP and JS had been violated by society workers, based on newspaper articles of unrelated cases that she had read.

(v) On August 8, 2019, RS had a rash. She called 911 from the society offices to have paramedics attend. They assessed RS and left.

(vi) On November 18, 2019, (after the first day of this trial) she called the society's emergency after-hours department expressing concerns about B.P.'s contact with JSP and JS and threatened to call the police on the society.

f) The mother claimed that:

(i) She has never acted inappropriately at visits.

(ii) She has never made inappropriate comments in front of the children at visits.

(iii) She is very accommodating to the society at visits.

(iv) She feels that she is exceeding the society's expectations.

(v) JSP and JS have never asked her to stop yelling at society staff.

(vi) The children have never been scared when she gets angry at visits.

(vii) She has good relationships with more than half the society staff.

The evidence from multiple witnesses established that the mother's claims had no connection to reality. It is troubling to the court that this is her perception of events. In the face of overwhelming evidence about her conduct at visits, the court would have expected the mother to acknowledge much of it, perhaps explain why she acted that way and set out what she is doing to ensure that the conduct is not repeated. Instead she chose to deny all of it.

3.2 The Maternal Grandmother

[93] The court treated the maternal grandmother's evidence with considerable caution.

[94] The maternal grandmother was in a difficult position at trial. It was very apparent that she wanted to do what she could to support the mother. She spoke about how angry the mother had been at her from July 2017 until about March of 2019. Her relationship with the mother has improved and she understandably doesn't want that to change.

[95] The court found that the maternal grandmother frequently minimized or rationalized the mother's bad conduct. She struggled answering questions that she perceived would place the mother in a bad light. An example was where she vacillated on whether she ever called the police and the mother was arrested. She initially denied this but then admitted it when presented with a police occurrence report in cross-examination.

3.3 The Paternal Grandmother

[96] Although she has a vested interest in the outcome of this case, the court found the paternal grandmother to be a strong witness.

[97] The paternal grandmother provided balanced evidence. Despite having some challenges in her dealings with the maternal grandmother, she was very generous in her descriptions of the maternal grandparents' relationship with JSP and JS. She has facilitated significant access with the maternal grandparents despite no court order requiring her to do so.

[98] The paternal grandmother was able to recognize both deficiencies and positive qualities of the mother.

[99] The paternal grandmother was able to give detailed and thoughtful evidence about both JSP and JS.

3.4 The Society Witnesses

[100] The court found the evidence of the society workers to be reliable and credible.

[101] The society workers kept contemporaneous notes of events. The court found that the workers readily admitted positive qualities of the mother and tried to directly answer questions to the best of their ability.

[102] The evidence of the society workers was very consistent.

[103] The court preferred the evidence of the paternal grandmother, society witnesses, the mother's counselor and the information contained in the hospital records where it conflicted with the evidence of the mother and maternal grandmother.

Part Four – The Finding in Need of Protection for RS

4.1 Legal Considerations

[104] The society seeks a finding that RS is in need of protection pursuant to subclause 74 (2) (b) (i) of the Act. This subclause reads as follows:

74 (2)

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

[105] The society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.

[106] Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, inadequate shelter or food are common circumstances leading to findings of physical harm or risk of physical harm.

[107] The risk of harm under clause 74 (2) (b) of the Act must be real and likely, not speculative. See: Children's Aid Society of Rainy River v. B. (C.), 2006 ONCJ 458; Children's Aid Society of Ottawa-Carlton v. T. and T., [2000] O.J. No. 2273.

[108] Factors that can lead to a finding that a child is at risk of physical and emotional abuse include:

a. Repeated conflict between the parents, witnessed by the children.

b. Numerous police calls relating to misconduct and aggression between the parents, at times in the presence of the children.

c. Long-standing instability of housing and caregiving arrangements for the children.

d. Verbal abuse, aggression and inappropriate situations the children have been exposed to.

e. The physical and emotional distress the children have each experienced; the parents' contribution to that distress; and the parents' inability or unwillingness to appropriately respond to that distress.

See: Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, at para. 380.

[109] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W., [2001] O.J. No. 5754 (Ont. Fam. Ct.); Children's Aid Society of Toronto v. R.M., 2019 ONSC 2251; Catholic Children's Aid Society of Toronto v. A.T., 2019 ONSC 3191. The parties had disclosure of the relevant evidence in this case.

[110] At paragraph 94 of Children's Aid Society of Toronto v. R.M., supra, Justice Carolyn Horkins wrote the following:

94 In many child protection matters the risk that is identified at the outset changes as the application progresses. The risk may be under control or resolved when the protection hearing proceeds. Depending on the type of risk, it may return. Multiple factors may be responsible for the control or resolution of the risk. Every risk is different, and some are more serious than others. A risk that is not present on the hearing day may nevertheless justify a protection order. It all depends on the facts.

[111] Many of the risk factors for RS arose out of the mother's past parenting of JSP and JS. Section 93 of the Act permits the court to consider the mother's past parenting of these children. It reads as follows:

Evidence

Past conduct toward children

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

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

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

[112] The more recent the past parenting evidence, the more probative it is. See: Children's Aid Society of Simcoe County v. B.D., [2014] O.J. No. 1641; Children's Aid Society of Toronto v. S.C., 2017 ONCJ 240.

4.2 Mental Health and Risk of Harm

[113] It does not automatically follow that a child will be in need of protection just because a parent has mental health challenges. Many parents with mental health issues parent their children well – others can't. There is a wide range of mental illnesses that affect parents differently and, by extension, affect their children differently.

[114] The court needs to assess several factors to determine if a parent's mental illness places a child at risk of harm and if so, whether a child can still be placed in the parent's care. These factors include:

a) The type of mental illness the parent has.

b) The severity of the mental illness.

c) The frequency of the parent's mental illness symptoms – whether they are situational or chronic.

d) The impact of the mental illness on the parent's functioning.

e) The impact of the mental illness on the parent's parenting.

f) Other risk factors impacting on the mental illness, including substance abuse, difficulties with interpersonal relationships, domestic violence and other stressors such as unstable housing and financial problems.

g) The impact of the mental illness on the children.

h) The insight of the parent into their mental illness.

i) The ability of the parent to meaningfully engage with supports to address the mental health issues.

j) Whether the parent is compliant with treatment recommendations.

k) The strength of the parent's support system, the insight of those support persons into the parent's mental health issues and the ability of those persons to prioritize a child's needs to those of the parent's and to protect the child.

l) Whether the children have any needs that make them more vulnerable to compromised parenting.

[115] The court will be assessing these factors throughout this decision.

4.3 Analysis

4.3.1 Mother's Position and Evidence

[116] The mother submitted that RS is not a child in need of protection.

[117] The mother claimed that the protection concerns that led to JSP and JS being placed in society care no longer existed when RS was born. She said that RS only came into care due to her previous diagnosis of cannabis induced psychosis. She submitted that this mental health issue was situational due to the stresses she had been under arising from B.P.'s abuse of her, the lack of financial support from the fathers of her children, a car accident and the maternal grandmother's unavailability.

[118] The mother claimed that she had been doing an excellent job parenting JSP and JS prior to her hospitalizations in 2017. The evidence did not support this. In particular:

a) The mother described the children having been exposed to considerable domestic violence and parental conflict.

b) The mother testified that the police were frequently called to the home.

c) The mother testified that she spent a night in jail and entered into a peace bond with respect to B.P.

d) The paternal grandmother testified that the mother's home was kept in very poor condition.

e) The paternal grandmother testified that the mother would yell and scream a lot and be confrontational with people.

f) The mother said that everything began to collapse after the maternal grandmother was hospitalized in 2016.

g) The paternal grandmother testified that the mother often left JS in the playpen instead of playing with him.

h) JS came into care with significant behavioural concerns. He constantly screamed, yelled and was defiant. He was a very troubled child.

4.3.2 The Protection Order Made for JSP and JS

[119] The evidence was overwhelming that RS has been a child in need of protection from the day he was born until today.

[120] Subsection 101 (1) of the Act sets out that the court must be satisfied that intervention through a court order is necessary to protect a child in the future before it makes a disposition order. Less than two weeks before RS was born, the mother consented to the disposition order for JSP and JS, placing them in the custody of the paternal grandmother for 6 months. In doing so, she acknowledged that a protection order was necessary to protect them. Even more importantly, she consented to the very restrictive requirement for her access to JSP and JS to be approved by the society and at their discretion and agreed that this order was in the best interests of JSP and JS at that time.

[121] If a court found that JSP and JS required that level of protection from the mother just two weeks before RS was born, surely a vulnerable infant was also at risk of physical harm - nothing had changed in the intervening two weeks.

4.3.3 Concerning Behaviour of the Mother Leading Up to RS's Birth

[122] The mother was continuing to demonstrate concerning behaviours leading up to and after RS's birth, including:

a) Without any basis in fact, she would accuse society workers of poisoning her food, and workers of going through her personal belongings and stealing her things at the society office.

b) The week before RS was born, the mother was extremely agitated at a visit and observed to be acting in an irrational manner. This included the mother's overreaction to JS falling, claiming that the worker had tripped him, and her insistence on looking at video surveillance. She was crying and shouting at the worker to stop hurting her babies. The worker noted how JSP appeared scared by the mother's behaviour. She was sitting on the sofa with her knees drawn up to her chin and covering her face.

c) She kept telling people that RS would be coming home with her, even when it had been clearly explained to her that RS would be placed in the society's care when born. She was telling people that the plan to place RS with her had been approved by the CEO of the society and approved by directors of the society. This was not the case.

d) She was making claims at the hospital that people were sneaking in and holding RS without her knowledge.

[123] This evidence must be looked at in context given the serious mental health issues the mother experienced in 2017 and early in 2018 and informs the court that the mother was not stable enough to safely care for a child when RS was born.

4.3.4 Continued Concerns About the Mother's Behaviour After RS's Birth

[124] The mother's behaviour has continued to be very concerning since RS was born. She is frequently unable to regulate her emotions at visits. She resists efforts by society workers to give her direction. She screams and yells at workers. She makes false accusations against them and threatens to call the police. She demeans them and is rude to them. The mother lacks impulse control and acts in an aggressive and volatile manner.

[125] The mother has also continued to have had a distorted view of reality. Many examples were set out in paragraph 92 above.

[126] It is common for child protection litigants to be angry at child protection workers. If the mother limited this conduct to private meetings with society workers, it would be concerning, but on its own it wouldn't be a basis to find a child in need of protection. See: Children's Aid Society of London and Middlesex v. A.W., 2015 ONSC 2224.

[127] However, what makes this conduct so problematic, is that it takes place in the presence of the children and negatively impacts them. Society witnesses set out how troubling this behaviour is for the children. JSP and JS often plead for the mother to stop yelling at society workers. At times, JSP curls up on the couch in a fetal position when the mother starts escalating. JS's behaviour often becomes very agitated when the mother gets agitated. Further, when the mother becomes upset, she does not notice JSP and JS when they are trying to get her attention and ignores them as she rants against the society. The mother is unable to see or acknowledge how her behaviour upsets the children.

[128] Examples of the mother's more recent concerning behaviour are as follows:

a) On April 9, 2019, the mother became upset because JSP started discussing the FAME program that she was attending. She yelled at JSP who began to cry. She shouted at and argued with the workers during the visit. She made inappropriate statements about the paternal grandparents. The society could not calm the mother down. At one point, the maternal grandmother huddled with the children in the corner as they were crying, trying to console them. JSP was so upset that she curled up in a ball on the couch. The mother ignored JSP and JS for much of the visit.

b) On April 16, 2019, the mother brought sparring gloves to the visit. She put them on and went up to the observation window, saying in front of JSP and JS, "you know how mom always feels like everyone's punching bag, well not today, I am changing things and we are going to spar". She told the worker "we can spar all day" and continued to clap her fist to her hand. JSP and JS were observed to be uncomfortable and upset about the mother's behaviour. The worker supervising the visit said that she felt intimidated by the mother.

c) On May 3, 2019, JS began crying over a toy. The mother claimed that he was crying because the visits are too short (the mother often attributes this as a reason for why JSP or JS are upset, even if there is no basis for doing so). She carried JS over to the worker and shouted, "you explain to him whey we don't have enough time to do things!" She accused the worker of laughing at her and told her she was "sick, sick" in front of JSP and JS. At this visit, the mother called M.J.G. and asked JS to speak to his dad. This was confusing for JS, who thought B.P. was his father.

d) On May 14, 2019, the mother started talking at the visit about police and social workers and statistics regarding their family problems. She discussed in front of JSP and JS how the workers have a lot of problems with their own children and their marriages and are "messed up" and they "get what they ask for".

e) On June 4, 2019, the mother was agitated and paced back and forth during the visit, trying to call her lawyer. She claimed in front of the children that she was doing this for "all the children who don't have a voice". She spoke on the phone to her lawyer's assistant and said in front of the children:

There was news published about Scarborough CAS workers violating boundaries….Here is my concern: my kids have been coming here for a couple of years and been crying about it when they leave so now I know why… it's because they have been violated. I don't know who has been charged but I do not feel safe here.

The mother was preoccupied with this issue during the visit and was unable to engage with JSP even when JSP tried speaking with her. She told one worker that she was going to call the police on the society.

f) On July 22, 2019, the mother began talking loudly to the maternal grandmother about being bullied. She ignored JS's attempts to get her attention. She started getting so agitated that security had to be called. Again, the maternal grandmother and JSP and JS huddled together as the children were upset by the mother's agitation. During this visit, she told JS not to talk to society workers, "they don't care about you". She also told the access supervisor not to speak to her. At one point in the visit, JSP asked the mother to stop talking.

g) On August 2, 2019, the mother took JSP and JS into the kitchen and closed the door. She began yelling at the worker who tried to open the door. JSP began whimpering and went to lay down on the couch. JS tried to calm his mother down. Subsequently, the mother yelled at the worker in front of JSP and JS and the worker had to caution her that the visit would be cancelled if she continued to do this. JS then became very agitated. After the visit, the worker tried to speak to the mother, but the mother was so angry she just yelled over the worker. It was after this visit that the society decided to reduce the mother's visits to once each week for JSP and JS.

h) On August 8, 2019, JS had a rash. The mother tried to give him Benadryl and the worker had to intervene twice to stop her. The mother then called 911 and paramedics came to the society office. They saw no problem with the rash and left.

i) On September 24, 2019, the mother became upset again and accused the worker of laughing at her. She repeatedly called the worker a liar and encouraged JS to do the same. He eventually joined in calling the worker a liar.

4.3.5 – Mother's Lack of Insight Into the Protection Concerns and Failure to Obtain Services

[129] The risks posed by the mother's mental health issues and conduct are increased by her total lack of insight into them. She denied to workers prior to RS being born that she had any mental health issues. She was resistant to discussing Dr. McDermott's report with them. She told workers that she would not show Dr. McDermott's report to any service provider because she did not agree with it.

[130] The mother continued to show a lack of insight into her mental health challenges at trial. She conceded that she didn't really understand Dr. McDermott's report. She did not see any concerns with her behaviour at visits or towards society workers. She felt that the counseling she needed was to address the trauma she had suffered from having been in a relationship with B.P.

[131] Whenever the mother was asked at trial about her understanding of the society's child protection concerns, she couldn't say what they were, instead deflecting the questions by criticizing the society.

[132] The mother had no treatment for her mental health issues prior to RS being born. She had turned down opportunities to see psychiatrists when she attended at hospitals. She rejected medication prescribed for her.

[133] The mother still has had no treatment for her mental health issues, despite her claim in her trial affidavit that she received intensive counseling. The counselor she saw was prepared to start Cognitive Behavioural Therapy with her, but the mother felt that this was not appropriate for her and individual counseling never took place. The mother set up one appointment with a psychiatrist but she missed it.

[134] The mother denied having any substance abuse issues despite being hospitalized for substance induced psychosis and subsequently being taken to the hospital by police on January 14, 2018 reporting that she had been drinking and taking drugs since New Year's Day. She said that she attended Pinewood due to her addiction to B.P.

[135] The evidence shows that the mother's mental health issues have been significant and have been unaddressed. Until these issues have been meaningfully addressed, any child in her care would be at risk of physical harm.

[136] It will be set out later in this decision that it is very important that RS's caregivers be able to effectively work with service providers because of his feeding and health issues. The evidence informs the court that the mother will be resistant to any advice she does not agree with and that she will not work effectively with service providers. This places RS at an unacceptable risk of neglect of his physical needs.

4.3.6 Mother's Instability

[137] The mother has had unstable relationships and housing since JSP and JS came into society care, raising a protection concern about her ability to safely parent RS.

[138] The mother testified that she was in an abusive relationship with B.P. that she had difficulty extricating herself from. She said that she was abused in January 2018 by a friend who she had thought might be RS's biological father. JS's father has been in jail. The mother said that she visits him but does not know why he is in jail. The maternal grandmother testified that M.J.G. had broken a door in the mother's home in 2017.

[139] The mother's relationship with her primary support, the maternal grandmother, had deteriorated as of RS's birth to the point where the mother was preventing her from seeing RS and accusing her of being bipolar. The mother proposed K.C. as an access supervisor in 2019 but this quickly fell apart when K.C. asked her to leave the apartment after a physical altercation.

[140] No other family members or friends testified on the mother's behalf at trial.

[141] The mother lost her housing when JSP and JS came into society care. The maternal grandparents sold the property. In November 2018, the mother lived in a small room and shared a washroom and kitchen with other tenants. No overnight guests were allowed. In February 2019, the mother moved in with a cousin. However, that cousin was unwilling to be part of a plan for RS. The mother did not have accommodation for RS when he was brought to a place of safety.

[142] The mother moved again in March 2019 into a friend's home. In May 2019, the mother moved in with K.C. She was asked to leave in July 2019. The mother says that she is now living in an apartment with a friend. However, she and the maternal grandmother have refused to provide the society with the address or the name of the friend, despite Justice Sager's order requiring her to notify the society of any change in address. The mother plans to move again if the children are placed in her care.

4.3.7 – Conclusion on Finding for RS

[143] For the numerous reasons set out above, the court finds that RS is a child in a need of protection pursuant to subclause 74 (2) (b) (i) of the Act.

Part Five – Disposition – Legal Considerations

[144] Subsection 101 (1) of the Act provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.

[145] Subsection 101 (8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.

[146] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[147] In determining if a protection order is necessary to protect the child in the future, the importance of emotional ties between a child and the child's caregiver are an important consideration. In Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2. S.C.R. 165, the Supreme Court expressed, at para. 37, that the Child and Family Services Act "seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the time recognizing that the best interests of the child must always prevail". Because of this goal, the best interests of the child is "an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[148] If a court order is determined to be necessary to protect a child in the future, the court shall make one of the orders set out in subsection 101 (1) or subsection 102 of the Act in the child's best interests. Subsections 101 (1) and 102 (1) of the Act read as follows:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:

Supervision order

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

Interim society care

2. That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

Extended society care

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

Consecutive orders of interim society care and supervision

4. That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[149] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part V of the Act.

[150] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1 (2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[151] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.

[152] In determining the appropriate disposition, the court must decide what order is in the children's best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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.

[153] In Children's Aid Society of Toronto v. S.B., 2014 ONCJ 518, this court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:

[112] The major protection issue is the mother's ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

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

[155] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children's Aid Society of Toronto v. D.S..

[156] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853.

Part Six - Is Intervention Through a Court Order Necessary to Protect the Children in the Future?

[157] Subsection 101 (1) requires the court to ask this question before turning to the disposition options in the Act. If the answer is no, then the child must be returned to the person who had charge of them prior to society intervention under Part V of the Act.

[158] For all the reasons set out in Part 4.3 of this decision, and the reasons that will follow below, the court finds that intervention through a court order is necessary to protect the children in the future.

Part Seven - The Children

[159] The children were described with affection by all the witnesses.

7.1 – JSP

[160] JSP was described by the witnesses as a warm, articulate and caring child. She was described as a child who cares about people and wants them to be happy. She is a child who wants to please everyone. She is mature and easy to manage.

[161] JSP is in grade three and is doing very well in school. She has friends and participates in many activities such as taekwondo, gymnastics and swimming. She has some artistic and athletic talent.

[162] JSP has no special needs.

7.2 – JS

[163] JS has struggled with behavioural issues. These were severe when he first came to live with the paternal grandparents. He had frequent temper tantrums. He was a very angry child who screamed, yelled and was defiant. He often lashed out at JSP physically.

[164] JS's behaviour has improved in the paternal grandparents' home in the past year. The paternal grandmother sought assistance from the Aisling Discoveries program (Aisling). She went for individual help for parenting strategies and later worked in group sessions. JS also went to Aisling for individual sessions.

[165] The paternal grandmother described many of the techniques she has found to be effective for managing JS's behaviour. She said that one of the keys is to identify situations that might trigger JS's behaviour and manage those before JS becomes upset. She has found that time-outs, clear rules, having JS breathe, reinforcement of positive behaviour and discussing JS's feelings with him have been effective in reducing his outbursts.

[166] The paternal grandmother testified that JS reacts very badly when the adults around him are not calm or raise their voices, so it is important that adults model positive behaviour for him.

[167] JS is now in Junior Kindergarten. His school has not reported any behavioural concerns to the paternal grandmother.

[168] JS is advanced in reading and math. He loves to go to the library and read.

[169] JS is very active and likes to swim.

[170] Unfortunately, JS's behaviour has continued to be problematic at visits with the mother. He often has tantrums and physically hits the mother, the maternal grandmother and JSP.

7.3 – RS

[171] RS has had many physical issues since birth.

[172] RS remained in the hospital 9 days after birth as he was very small.

[173] RS has had feeding issues that have had to be closely monitored by his treating doctors. He has been followed in the hospital's neo-natal clinic. In September 2019, he was referred to an occupational therapist to assist with this issue and his fine motor skills. Although he remains a picky eater, RS's feeding issues have significantly improved.

[174] RS started to have difficulty rotating his neck this past summer. He was referred to a physiotherapist. His foster parents testified that this is no longer a problem for him.

[175] RS will continue to be followed at the neo-natal clinic and by the occupational therapist.

[176] RS is now meeting all his developmental milestones.

[177] RS was described as an easy baby to manage. He is social and inquisitive.

Part Eight - Services Provided by the Society for the Mother and the Children

[178] The society has provided the following services for the mother and the children:

a) The mother has been provided with three different family service workers.

b) The society obtained a psychological assessment of the mother.

c) The society provided the mother with referrals based on the recommendations of Dr. McDermott.

d) The society offered to connect with the mother's family doctor to arrange for counseling. The mother did not follow up on this.

e) The society has offered parenting direction at visits for the mother. She is resistant to this.

f) The society offered the mother separate visits with JSP and JS. The mother chose not to do this.

g) The society explored alternative access supervisors for the mother. They assessed that the maternal grandmother could not safely monitor the mother. K.C. decided not to participate further after her altercation with the mother.

h) The society arranged a Family Group Conference to try and develop a safety plan for RS. However, none of the maternal family members were willing to participate.

i) JS and the paternal grandmother have received assistance for JS's behavioural issues from Aisling.

j) JSP has been participating in the FAME program.

k) RS has a children's service worker from the society.

l) RS is followed at the society's medical clinic.

m) RS has received occupational therapy.

n) RS has received physiotherapy.

o) RS has had a family support worker to assist with his feeding issues.

[179] There has been a limit to what services the society can provide to the mother. She does not trust the society. She has made it clear that she does not want its assistance and would not go to any service provider it suggests.

Part Nine – Community or Family Plans

[180] The society found and supported an excellent family plan for JSP and JS.

[181] The society asked the maternal grandparents if they were willing to care for JSP and JS before placing them with the paternal grandparents on July 28, 2017. The maternal grandparents indicated that they couldn't do this.

[182] The society also explored with the maternal grandparents if they were willing to have RS placed in their care in August 2019. The maternal grandfather did not return the society's calls when it tried to assess this plan. Subsequently the maternal grandmother asked the society to put its assessment of this plan on hold as the maternal grandfather had been in a car accident. She has not asked them to start this process since then.

[183] The maternal grandparents did not ask to have any of the children placed in their care at trial. The maternal grandmother is prepared to have joint custody of the children together with the mother. However, the children would live with the mother.

[184] No other family or community plan has been presented for RS by the mother.

Part Ten – Assessment of the Plans of Care

10.1 The Society's Plans of Care

10.1.1 – JSP and JS

[185] The society's plan is for the paternal grandparents to have custody of JSP and JS.

[186] The society seeks an order that the mother have supervised access to JSP and JS once each month at the TSAC together with one phone call each week.

[187] The evidence indicates that JSP and JS have thrived in the care of the paternal grandparents. The paternal grandparents have provided these children with a safe, secure and structured home. JSP and JS have fully integrated into this home.

[188] JS has made significant behavioural gains in the paternal grandparents' care.

[189] The paternal grandparents have ensured that all of JSP's and JS's physical and emotional needs are met.

[190] JSP and JS are both doing well in school.

[191] JSP and JS are both involved in many activities that they enjoy.

[192] The paternal grandmother actively sought out services for the children. She was proactive in seeking services to assist her in parenting JS.

[193] The paternal grandmother testified and showed that she was very attuned to JSP's and JS's needs and committed to meeting them.

[194] The paternal grandparents provide structure and rules for JSP and JS and they have (and in particular JS) responded well to this.

[195] JSP and JS feel safe, secure and loved in the paternal grandparents' home.

[196] JSP and JS have also developed positive relationships with the extended paternal family. The paternal grandparents' son (not B.P.) and his partner live in the home and they help out with the children.

[197] The mother claimed that the paternal grandmother is inappropriately undermining her relationship with JSP and JS. The evidence did not support this. The paternal grandmother has demonstrated that she is very committed to supporting JSP's and JS's relationship with the mother and the maternal grandparents. JSP and JS come to every visit with the mother. The paternal grandmother does not question them about the visits. Despite the absence of a court order, she has facilitated weekly visits with the maternal grandparents and was complimentary of them.

[198] JSP and JS are achieving their potential with the paternal grandparents.

[199] The mother claimed that the paternal grandparents are not protective of JSP and JS by permitting B.P. frequent contact with them. The evidence did not support this. The paternal grandmother testified that B.P.'s access is fully supervised. She called the police when he came home drunk in 2018 and has established firm rules and boundaries for him. The society trusts her judgment and her ability to be protective of JSP and JS. The court does too.

10.1.2 – RS

[200] The society's plan is to have RS placed in extended society care for the purpose of adoption.

[201] The society's adoption worker testified that RS is very adoptable. She says that a number of families are viable candidates to adopt him.

[202] The adoption worker testified that the society would search for a family with a cultural match for RS.

[203] The adoption worker also said that the society would reject any adoptive family that was not supportive of sibling access between RS and his siblings.

[204] The society proposes that sibling access take place as agreed upon between the paternal grandparents and RS's legal guardian, a minimum of four times each year.

[205] The society was surprised when RS's foster parents both testified that they would be willing to adopt RS. They both said that they had never been asked whether they were prepared to do this by the society. The society's children service worker testified that she had understood that the foster parents were unwilling to adopt RS.

10.2 Plan of the Mother

[206] The mother's plans for the children up until closing argument were as follows:

a) In her March 14, 2019 Answer/Plan of Care, she sought an order placing RS in her care.

b) In her July 31, 2019 Answer/Plan of Care, she sought an order that JSP and JS be placed in the care of the maternal grandparents, or in the alternative, herself.

c) In her November 15, 2019 Amended Answer/Plan of Care, she added an alternative claim for an order that RS be placed in the joint care of herself and the maternal grandmother.

d) In her opening statement, the mother sought orders that all three children be placed in the joint care of herself and the maternal grandmother – the primary residence being with her.

[207] In closing argument, the mother clarified that she was seeking orders that all three children be placed in her care, or in the alternative in the joint care of herself and the maternal grandmother. The children would live with the mother and she would share caregiving responsibilities with the maternal grandmother. If required by the court, the mother is prepared to agree to terms of society supervision for 6 months.

[208] The mother and maternal grandmother both testified that their relationship has improved considerably since March 2019. They both described their relationship as "like sisters".

[209] The mother indicated that the maternal grandparents would provide a condominium for her and the children to live in.

[210] The mother said that she hopes to work full-time. She said that she would also receive financial assistance from the maternal grandparents. The maternal grandmother confirmed that she was prepared to provide this assistance.

[211] The mother's plan is for RS to attend daycare or to have the maternal grandparents care for him while she is working.

[212] The mother hopes to find a residence near the school that JSP and JS are attending so that they don't have to change schools.

[213] The maternal grandparents have two other adult children living with them. One of these children is autistic and requires considerable attention.

[214] The mother says that she will expose the children to her Canadian Sikh background and culture as well as to the Punjabi language.

[215] The mother says that she is seeking ongoing counseling. She feels that she will be more successful in obtaining this once this court case is resolved.

[216] The mother said that she would facilitate day access between JSP, JS and the paternal grandparents.

Part Eleven – Views and Wishes of the Children

[217] Subsection 74 (3) of the Act now mandates that the court in determining the best interests of a child must consider that child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[218] RS is too young to verbalize his views and wishes.

[219] JSP has indicated that she doesn't want to make the decision about where she lives. She loves all the adults in her life and wants everything equal for everyone.

[220] JSP wants access to stay the same – not more, not less.

[221] JSP did not object to the reduction of her access with the mother this past summer.

[222] JSP would like to see RS twice each week. The witnesses testified about how JSP adores RS. She rushes to see him at visits and is very affectionate with him. She is very proud of RS and has shared pictures of him with her friends at school. The paternal grandmother testified that it would be traumatic for JSP if she could not see RS.

[223] JS does not express strong views and preferences. This is not surprising given his age. He loves his mother and enjoys his visits with her. He feels that the amount of access he is having right now with his mother is "just right". He also did not complain when the frequency of his visits with the mother was reduced.

[224] JS enjoys seeing RS but quickly goes to play with his toys without paying much further attention to him at visits.

[225] The OCL is not consenting to or opposing either the society's or the mother's claims for custody of these children.

Part Twelve – Positive Features of the Mother's Plan

[226] The evidence revealed that the mother has several strengths including:

a) She loves her children very much.

b) She is loving and affectionate with the children.

c) JSP and JS are always eager and happy to see her. They often bring her things they have made for her.

d) She is aware of the likes and dislikes of JSP and JS.

e) She praises JSP and JS for their achievements. She showed the court certificates they have received.

f) She speaks to the children enthusiastically.

g) She comes to all the visits.

h) She comes on time for the visits.

i) She comes prepared for the visits. She brings appropriate foods, toys and activities for the children.

j) JSP enjoys cooking with her mother.

k) At times, she can set appropriate limits for JSP and JS and they will listen to her.

l) She has shown that she can take care of RS's instrumental needs such as changing, feeding and soothing him.

m) She sings to and engages RS during her visits. Most of these visits are positive.

n) She can be calm and patient with RS.

o) She has developed a very good relationship with RS's foster parents. She expressed appreciation for everything that the foster parents have done. She is respectful to them. She communicates regularly and appropriately with them about RS in a communication book. Her communications with the foster parents are child focused.

p) The mother attended the Pinewood program and a woman's empowerment program in 2018.

[227] The evidence indicated the following strengths of the maternal grandmother:

a) She loves the children.

b) JSP and JS have a strong relationship with her and love her. She has been a big part of their lives.

c) She values the importance of family.

d) She has come to many visits since March 2019.

e) The paternal grandmother testified that she has no concerns about the maternal grandparents' care of JSP and JS. She said that they are "great people" and that JSP and JS are safe with them.

[228] The mother's plan also has the following positives or strengths:

a) The children would live together if placed with her.

b) The children would grow up in their Canadian Sikh culture and learn to speak Punjabi. The paternal grandparents are from a different culture. While RS's foster family is from a culture similar to the mother's, it is unknown whether the society would approve them as foster parents if RS was placed in extended society care.

c) The mother's relationship with the maternal grandmother has improved since March 2019.

Part Thirteen – Reasons Why It Is Not in the Best Interests of the Children to Place Them With the Mother or Jointly With the Mother and the Maternal Grandmother

[229] Notwithstanding the positive features of the mother's plans, the risk concerns are far too high to place any of the children in her care, or in the joint care of her and the maternal grandmother.

13.1 Review of Risk Concerns About Mother Previously Set Out

[230] Most of the risk concerns have been detailed in Part 4.3 above, but will be reviewed here as follows:

a) The mother had severe mental health issues in 2017 and in early 2018 that required multiple attendances at hospitals. She continues to demonstrate behaviours that indicate that her mental health issues are not under control. She often distorts reality, has unrealistic fears and responds inappropriately to situations. Her inability to acknowledge these issues or to obtain any treatment for them increase the risk of harm to the children.

b) The mother has had significant issues with anger, aggressiveness and impulse control.

c) The mother is often volatile and confrontational. One worker said that it was hard to know what would trigger the mother – she was unpredictable. Children need predictable and safe caregivers.

d) The mother is quick to make baseless allegations and threaten police involvement against people she is in conflict with.

e) The mother's negative behaviour often takes place in front of the children. She exposes them to inappropriate conversations, comments and adult conflict.

f) The frequency of the mother's troubling behaviour has increased since April 2019. It became so problematic that visits for JSP and JS were reduced from twice each week to once each week.

g) The mother's aggressive and confrontational behaviour may or may not be related to her mental health challenges. The court does not have to determine this – it is the behaviour and its impact on the children that poses the risk of harm to them.

h) JSP and JS often demonstrate distress when the mother becomes agitated and angry.

i) The mother often disregards the children's needs when she is upset.

j) The mother is unable to recognize the impact of her behaviour on the children. She does not notice how upset JSP and JS become at visits when she is agitated.

k) The mother has no insight into the protection concerns and is unwilling to take the necessary steps to address them. She does not believe that there are any protection concerns. This lack of insight means that she is unlikely to make the necessary changes to reduce the risks to the children.

l) The mother shows no insight into the role substance abuse has played in her mental health challenges.

m) The mother has not obtained any of the recommended treatment to address her mental health and personality challenges. She has not engaged in any long-term therapy or counseling. She is unlikely to make meaningful changes until she willingly engages in this process.

n) The mother has had unstable relationships and housing.

o) Children need parents who will exercise good judgment. The mother has not exercised good judgment for a long time.

p) The mother has shown no improvement in her ability to deal with stress or have positive relationships with society workers.

13.2 Parenting Concerns About the Mother at Visits

[231] The mother often struggles in parenting the children at visits as follows:

a) She has difficulty dividing her attention between the children.

b) She has difficulty managing JS's behaviour. He often has tantrums, yelling, screaming and hitting people. The society workers have observed that the mother often fails to set any limits for JS or correct his behaviour. He often becomes physical with JSP and the mother does nothing about this or rationalizes his behaviour, ignoring JSP's needs. There is a risk of physical harm that the mother would not appropriately protect JSP and RS from JS's aggressive behaviour.

c) She struggles managing time during visits. This means the end of visits tend to become rushed and chaotic. JS's behaviour often escalates because of this. The mother starts to feed the children or engage JSP and JS in an activity near the end of the visit when she should be preparing them to leave.

d) She was often resistant to feeding suggestions for RS and had to be reminded to follow his feeding schedule.

e) The mother sometimes has to be prompted to stimulate RS on visits. She is resistant to worker suggestions on how to stimulate RS's development. An example was a suggestion to put RS in a high chair to support a healthy feeding environment, as RS was observed to be restless and not eating well when fed by the mother in his car seat or on her lap. The mother rarely followed that suggestion.

f) The mother showed poor judgment overreacting to RS's rash in August 2019.

g) The mother often becomes angry at society workers when they offer parenting assistance. For example, one worker offered her a sheet of paper to place on the change table when she was changing RS on July 25, 2019. Her response to the worker was "I am not an idiot and don't need your help".

h) The mother has no insight into the parenting concerns. She feels that the society is just being hypercritical. She criticized the paternal grandmother for taking JS to Aisling Discoveries – she felt that the paternal grandmother should have come to her for advice on how to manage JS. This lack of insight informs the court that the mother is unlikely to improve her parenting.

13.3 The Mother's Ability to Work With Service Providers for RS

[232] Although he has made many gains, RS will continue to require medical monitoring. He has appointments set up with the neo-natal clinic and the occupational therapist. He continues to have feeding issues. RS needs a caregiver who can work effectively with service providers and follow direction. The mother has shown that she is not capable of doing this unless the advice is what she wants to hear. This puts RS at high risk of having his physical needs neglected.

13.4 The Maternal Grandmother

[233] The maternal grandmother loves the children and means well.

[234] However, there are several flaws about the mother's plan with respect to the maternal grandmother.

[235] The first flaw in the plan is that the children would be living at the mother's home. The maternal grandmother would not always be present to protect the children. The risk concerns about the mother are far too serious for this to be a viable arrangement.

[236] The second flaw in the plan is that the evidence indicates that the maternal grandmother is unable to successfully manage the mother's behaviour or protect the children from her when needed. Multiple workers testified that the maternal grandmother is unable to redirect or calm the mother down when she becomes upset at visits. The maternal grandmother tends to withdraw or go to JSP or JS to comfort them instead. The mother will often get upset if the maternal grandmother offers her advice. The maternal grandmother is observed to be passive and to defer to the mother. The maternal grandmother has told workers that it is just better to give the mother what she wants when she is upset.

[237] The third flaw with the plan is that the maternal grandmother is now minimizing or rationalizing the mother's behaviour. At times, she is also now joining in and inappropriately complaining to workers in front of the children. The court lacks any confidence that she can protect the children when the mother acts inappropriately.

[238] The fourth flaw with the plan is that the maternal grandmother has been ambivalent about her planning for the children. She chose not to plan for JSP and JS when they came into society care. She did not put forward a plan to care for RS when she knew he would be brought to a place of safety at birth. The mother put her forward as the primary plan for JSP and JS in a previous Answer/Plan of Care. The maternal grandmother also told the society on August 7, 2019 that she wanted them to assess a plan to have RS placed with her. However, when the society started to assess this plan, the maternal grandfather did not return the worker's calls and the maternal grandmother then asked the society to put the assessment on hold.

[239] The fifth flaw with the plan is that the maternal grandmother expressed doubts at trial about whether she should have called the society or the police about the mother. This is despite the mother having had psychotic symptoms that required multiple hospitalizations in 2017 and despite the assault charges that were laid against the mother arising out of conflict between the mother and her in 2017. It is also troubling that the maternal grandmother has refused to provide the society with the mother's address or information about who she is living with. She is more concerned with the mother being upset with her than providing important information for the society. The court has serious concerns about whether the maternal grandmother would prioritize the children's needs and call the police or the society if warranted, or whether she would hesitate, not call them and not protect the children.

[240] The sixth and final flaw with the plan is that the mother and the maternal grandmother have had an inconsistent relationship. The mother was very angry with the maternal grandmother from July 2017 until March 2019 and their relationship was very poor. The mother was charged with assaulting the maternal grandmother in October 2017. The mother preventing the maternal grandmother from seeing RS when he was born and made baseless allegations about her as justification. The mother reacts poorly when limits are placed on her. If the maternal grandmother places limits on her, there is a good chance that this relationship will fall apart again. And if those limits are not placed on the mother, the risk of harm to the children unacceptably increases.

13.5 – The Option of a Supervision Order

[241] The court is required to choose the least disruptive disposition alternative consistent with the best interests of the children and must consider if a supervision order would be adequate to protect them.

[242] The court finds that the risk concerns remain far too high to be adequately addressed with a supervision order.

[243] Further, for the court to make a supervision order, it would need to be confident that the mother would comply with the order. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196 and this court's comments in Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227.

[244] The court has no confidence that the mother would consistently cooperate with a supervision order.

[245] The mother has a hostile and mistrustful relationship with the society. She won't even disclose her address or who she is living with to them.

[246] The mother has given the society conflicting information about the identity of RS's biological father.

[247] Despite multiple requests, the mother has not provided government documentation for JSP and JS to the society for the paternal grandparents. She still has not obtained a birth certificate for RS.

[248] The mother has also shown that she is unwilling or unable to comply with court orders. She has breached Justice Sager's order of January 30, 2019 as follows:

a) She has not advised the society about any change in address.

b) She did not complete a mental health assessment.

c) She did not refrain from physical altercations. She had one with K.C. in July 2019.

d) She did not take counseling as recommended by the society.

e) She did not provide the society with copies of the birth certificates for JSP and JS.

[249] To put it simply – no one can tell the mother what to do.

13.6 - Permanency

[250] The court has also considered that the mother is only having strictly supervised access with the children. It would be irresponsible for a court to return the children to her care until she could demonstrate that she could adequately parent the children without supervision for extended periods. Even in the best-case scenario, the court could not place the children with the mother without first testing whether she could adequately parent the children, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This would be a lengthy evaluation process given the history of this case. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child without society supports on an extended basis.

[251] JSP and JS have been out of the mother's care for over 27 months. It is time now to provide them with the stability and security of a permanent placement. That placement is with the paternal grandparents.

[252] JS has been in care for under 10 months. The statutory time limit for him to remain in care (one year) has not yet been reached. If the mother had taken any steps to address the protection concerns or even had acknowledged that there were risk concerns, the court would have considered making an interim society care order to the one-year mark. However, the mother gave the court no reason to believe that there will be any changes made by her in the next few months. In these circumstances, it is in RS's best interests to be permitted to move on with his life and be placed in a secure and permanent home as soon as possible.

13.7 – Summary of Best Interest Considerations and Concluding Comments on Disposition

[253] In addressing the relevant clauses in subsection 74 (3) of the Act, the court finds that:

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

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

c) The society's plan will better meet the children's needs for continuity and stability - in the case of JSP and JS, through an excellent family placement and in the case of RS, by a stable place in a family through adoption.

d) The risk of placing any of the children with the mother is unacceptably high. The children would be moving from stable environments to an unstable environment.

e) The society's plan will better address the children's needs than the plan proposed by the mother.

f) The society's plans for the children are the only realistic plans.

g) This case should not be delayed any further and the children should receive a permanent home as soon as possible.

[254] The least disruptive disposition, consistent with RS's best interests, is to place him in the extended care of the society.

[255] The least disruptive disposition, consistent with JSP's and JS's best interests, is to place them in the care and custody of the paternal grandparents pursuant to section 102 of the Act.

[256] The court also finds that it is in JSP's and JS's best interests to order the incidents of custody sought by the society. It is in their best interests that the paternal grandparents be able to obtain their government documentation and to be able to travel with them without complication. The evidence indicates that the mother will not cooperate with reasonable requests by the paternal grandparents to sign consents. She has shown this by refusing to provide them with government documentation for JSP and JS despite numerous requests.

Part Fourteen – Changing the Domestic Order

[257] There is presently a domestic order in existence regarding JSP made in the Ontario Court of Justice. It grants B.P. and the mother joint custody of her, with primary residence with the mother and extensive access to B.P.

[258] This court can make a custody order under the Act that has the effect of varying an existing final order made in the Ontario Court of Justice under the Children's Law Reform Act. Section 29 of that legislation sets out the legal criteria to change an order and section 28 sets out the powers of the court. See: Children's Aid Society of London and Middlesex v S.A.R., 2015 ONSC 2534.

[259] There has been a material change in circumstances affecting JSP's best interests, being her removal from the mother's care for over two years. The domestic order is no longer in JSP's best interests. The parenting terms in the domestic order will be terminated and replaced by the terms of this order.

Part Fifteen – Access

15.1 – Legal Considerations

[260] Section 104 of the Act sets out the court's powers in relation to access. It reads as follows:

104 (1) – Access order

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.

[261] Subsection 105 (2) of the Act provides that if a custody order is made under section 102 of the Act, removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child's best interests. This subsection applies to the mother's access claim to JSP and JS.

[262] Subsection 105 (4) of the Act states that where the court makes an order that a child be placed in extended society care, any order for access is terminated.

[263] Subsection 105 (5) of the Act sets out that, in considering the issue of access to a child in extended society care, the best interests of the child is the test. The court may not order access to such a child unless it is satisfied that the order would be in the child's best interests.

[264] The best interests considerations are set out in subsection 74 (3) of the Act. The court is mandated to consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be reasonably ascertained.

[265] Subsection 105 (6) of the Act sets out additional factors to be considered in determining whether an access order would be in the best interests of a child in extended society care. These subsections are applicable to RS and are:

a) Whether the relationship 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.

[266] The approach to access for children placed in extended society care has significantly shifted as a result of the passage of the Act in 2017. It is now a best interests test. Whether the child's relationship with a parent is meaningful and whether access would impair the child's opportunities for adoption, while important, are only two of many factors to consider. The presumption against access under the Act's predecessor (the Child and Family Services Act) no longer applies. See: Kawartha- Haliburton Children's Aid Society v. M.W., 2019 ONCA 316.

[267] In Children's Aid Society of Toronto v. J.G., 2019 ONCJ 333, this court wrote the following in paragraphs 81-88:

[81] When a court considers a child's best interests it should consider all relevant factors, whether they be past, present or future considerations. That is what courts do in making custody and access decisions - there is a predictive element in all of these decisions. There is no need for a court to confine itself to past or present circumstances in conducting its analysis. The new access test now permits the court to conduct a more holistic and comprehensive analysis of what is best for a child. The more expansive analysis will permit courts to make the best possible decisions for children.

[82] The new access test should also not be interpreted in a vacuum. It is the natural progression in the evolving approach towards the relationship between parents and their children who are placed in permanent care, as well as to how we view these relationships post-adoption. These changes are best reflected in the amendments increasing the availability of openness orders for families.

[83] These legislative changes, that began incrementally under the CFSA and which have been expanded in the CYFSA, reflect a reality that an outright severance of a parent-child relationship is not always appropriate and often not in a child's best interests.

[84] The Act envisions that access orders will sometimes change to openness orders. There is no need to ignore that reality. This is reflected in subsection 105 (7) of the Act that mandates the court to name who is an access holder and who is an access recipient when it orders a child to be placed in extended society care. The importance of this subsection is that only an access holder has the right to bring an openness application, if and when the society files a notice of intent to place a child for adoption under section 195 of the Act.

[86] It is also consistent with the commentary in Kawartha to consider the potential benefits of an access order that may (or may not) transition into an openness order in determining a child's best interests – the Act should be looked at as a whole. Its components should not be artificially put in silos. Whether these benefits are assessed under the beneficial and meaningful consideration or as part of the more general best interests considerations is really just a matter of form and not substance.

[87] At any openness hearing, the best interests of the child will again be the primary consideration. If an openness order is not in the child's best interests, contact with the access holder will end. At this point, the court is not considering the benefits of an openness order – rather it is merely recognizing that it doesn't have to disregard the future benefits of access just because a custody order terminates when a notice of intention to place a child for adoption is served on the parent – the openness option will still be available.

[88] While the onus is still on the mother to satisfy the court that an access order is in the child's best interests, there is no longer a presumption against access and the court is not constrained by the narrow pre- CYFSA case law in making this determination.

[268] The approach taken in J.G. has subsequently been applied in several cases including: Family and Children's Services of St. Thomas and Elgin v. B.S., 2019 ONSC 6577; Highland Shores Children's Aid Society v. J.G., 2019 ONSC 5476 and Catholic Children's Aid Society v. A.P., 2019 ONCJ 631.

[269] This court also commented in paragraph 95 of J.G. that when we are discussing the future of a 15-month-old child, whether access will impair a child's future opportunities for adoption will almost always be relevant. Permanency planning, which would be adoption, should not be delayed for the child.

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

[271] The phrase "impair the child's future opportunity for adoption" means more than just impairing a child's opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369.

[272] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters, won't, and will be ordered. See: Children's Aid Society of Toronto v. C.J. 2014 ONCJ 221; Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087; Children's Aid Society of Toronto v. J.G., supra.

[273] The challenge in making an access order for a child in extended society care is finding the fine balance between what will preserve a relationship in the best interests of the child and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the child in their new adoptive home. See: Children's Aid Society of Ottawa v. J.B., 2017 ONSC 1194.

[274] The jurisprudence has established that there are qualitative differences in the amount of contact a party will have with the child before and after an extended society care order is made, and then again after a child is placed for adoption and an openness order is made. The granting of an extended society care order means the end of any effort to return the child to the parent's care. Part of the reason for access prior to an extended society care disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After an extended society care disposition, the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. See: Native Child & Family Services of Toronto v. J.E.G., 2014 ONCJ 109; Children's Aid Society of the Region of Peel v. A.R. [2013] O.J. No. 2969 (OCJ); Children's Aid Society of Toronto v. Y.M., 2019 ONCJ 489.

[275] Openness allows for a form of contact by the biological parent or member of the biological family post-adoption. After an adoption order is made, the parent-child relationship that previously existed between the child and her biological parents and which was terminated by the extended society care order becomes vested in the adoptive parents. Thus, it is not the parent-child aspect of the relationship that is being continued post-adoption by way of an openness order. See: Re S.M., 2009 ONCJ 317; Native Child & Family Services of Toronto v. J.E.G.; Catholic Children's Aid Society of Toronto v. S.-K., 2016 ONCJ 242.

[276] 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 does not have the right to bring an openness application; the access recipient only has the right to be served with the society's notice of intent to place a child for adoption.

[277] Subsection 105 (7) of the Act recognizes the importance of the distinction between who is an access holder and who is an access recipient, by requiring such identification when making an access order to a child who is placed in extended society care.

15.2 – Access Between JSP, JS and the Mother

[278] The position of the society and the paternal grandparents is that the mother should have access to JSP and JS at the TSAC once each month. The society is prepared to supervise access until this process starts. The society also seeks an order that telephone access take place once each week. Presently, the mother calls JSP and JS every day.

[279] The mother seeks an order that the mother and the maternal grandmother have day access to JSP and JS on alternate Saturdays and a single overnight visit on alternate weekends. Subject to the wishes of the maternal grandmother, the mother seeks an order permitting her to attend at these visits. The mother also seeks daily telephone access to JSP and JS. Lastly, the mother seeks rights to information about JSP and JS as set out in subsection 20 (5) of the Children's Law Reform Act.

[280] The OCL seeks an order that JSP and JS have access with the mother at the TSAC, with the location, frequency and duration as may be available, and further access in the discretion of the paternal grandparents, taking into consideration the best interests of these children, including their views and wishes.

[281] In considering JSP's and JS's best interests, the court is first mandated to consider their views and wishes, given due weight in accordance with their age and maturity.

[282] The court heard that JSP's and JS's relationship with the mother is very important to them.

[283] The evidence is that JSP and JS look forward to the visits with the mother and enjoy them. The mother is affectionate with JSP and JS and they are affectionate with her. It is in their best interests to preserve the best aspects of this relationship.

[284] JSP and JS have expressed that they seek no changes to the present access they are having with the mother. The court has seriously taken into consideration those views and wishes – particularly for JSP who is older and is described as thoughtful and mature. She appears to have some insight into her mother's challenges and values her relationship with her.

[285] The court has considered the strengths of the mother set out in Part Twelve above.

[286] However, a critical best interests consideration for JSP and JS is that their placement with the paternal grandparents not be destabilized. This placement is their best chance for success.

[287] The evidence indicates that the mother is an extremely challenging person to deal with – particularly when limits are placed on her. She has gone through multiple society workers, many who became exhausted in dealing with her. If trained professionals cannot effectively deal with her behaviour, it becomes a concern as to whether the paternal grandparents will be able to effectively do so.

[288] The failure of the mother to appreciate the risk concerns creates a higher risk that she will not accept that the custody order is in JSP's and JS's best interests and that she will engage JSP and JS in an unacceptable tug of war with the paternal grandparents.

[289] Layered into this complicated dynamic is the mother's resentment that B.P. gets to see JSP and JS outside the society office and her perception that he has received preferential treatment by the society. The mother calling the society's emergency after-hours line and her threatening to call the police after the first day of trial demonstrates the challenges the paternal grandparents will face without the society acting as a buffer between them and the mother.

[290] The paternal grandmother recognizes this challenge. She testified that the mother will argue with her if she engages with her. She accepts her text messages but does not respond to them. She has communicated with the mother through the society.

[291] It is in the best interests of JSP and JS to minimize their exposure to parental conflict – particularly the mother's. Strict rules and boundaries need to be put into place to prevent this. The court will not overload the paternal grandparents with responsibilities in dealing with the mother.

[292] The quality of the mother's access with JSP and JS has declined over the past six months due to the mother's conduct at visits. Her supervised access had to be reduced from twice each week to once each week.

[293] Due to the mother's inappropriate conduct at visits and her inability to protect JSP and JS from conflict, it is in their best interests that access continue to be supervised.

[294] It is not in the best interests of JSP and JS to permit the maternal grandmother to supervise the mother's access due to the concerns set out in Part 13.4 above. Like the society, the court does not believe that the maternal grandmother is consistently capable of protecting JSP and JS from the mother's behaviour and is not confident that the maternal grandmother will report protection concerns.

[295] The mother submitted that if the court ordered access at the TSAC, there was a real possibility that she would end up with no access. The reason submitted was that the TSAC has strict rules about parental behaviour – the inference being that she might not follow those rules. This is the very reason why supervised access is required. It will be incumbent upon the mother to follow the TSAC rules if she wants to continue to see JSP and JS.

[296] Weekday supervised visits will no longer be available as the society ends its involvement. It is in the best interests of JSP and JS that the paternal grandparents have some flexibility in dealing with weekend access. They will want to continue JSP's and JS's visits with the maternal grandmother. JSP and JS will also have activities and events, like birthday parties that they should attend.

[297] The present frequency of access is no longer in JSP's and JS's best interests. The focus is no longer on reunifying them with the mother. The priority is in maintaining the stability of their placement with the paternal grandparents.

[298] That said, the frequency of access to the mother proposed by the society and the paternal grandmother is not enough given the importance of this relationship to JSP and JS.

[299] The court will order that the mother have access to JSP and JS on one weekend day every other weekend for two hours at the TSAC, subject to the TSAC's availability. The mother will be responsible for paying the fees of the TSAC. The mother and the paternal grandparents will be expected to arrange for an intake session right away with the TSAC and comply with all of its rules and regulations

[300] There will be a waiting period before the TSAC can start the visits. Until this can take place, access will continue once every other week at the society office, at times to be agreed upon between the society, the paternal grandparents and the mother.

[301] The court will not order separate visits for JSP and JS with the mother as requested by the OCL. The mother turned down this option in the past. Further, there will be logistical challenges in arranging the access orders that will be ordered without adding to those challenges.

[302] The court also finds that it is in the best interests of JSP and JS to place boundaries around the mother's telephone access. It is a potential source for adult conflict. The society and paternal grandmother's request for a reduction of telephone access to once each week is too restrictive given that JSP and JS are used to daily calls. The court will order that telephone access take place twice each week, the times and days to be determined by the paternal grandparents.

[303] The court order will provide that the mother's access to JSP and JS is to be restricted to the TSAC. She shall not contact them outside the terms of this order without the prior written consent of one of the paternal grandparents.

[304] The court will provide the mother with limited rights of information to JSP and JS. The paternal grandparents shall provide her with their report cards and advise them of any medical concerns about them.

15.3 – Access Between JSP, JS and the Maternal Grandparents

[305] The OCL sought an order that JSP and JS have access with the maternal grandparents each Saturday, subject to each child's wishes and other activities, to be arranged between the maternal grandparents and the paternal grandparents, and such further and other access as they may agree upon, which may include overnight access. It was agreed that JSP and JS enjoy these visits and that they are important to them.

[306] This leads to the question as to whether the court should make an order for maternal grandparent access in this proceeding.

[307] The court does have the authority to make an access order to a non-party in a case. See: Windsor-Essex Children's Aid Society v. J.D., 2017 ONCJ 20.

[308] However, the court finds that it shouldn't make such an order in the circumstances of this case.

[309] First, no one involved in this case pleaded this relief. This is important, as the caregiver's consent signed by the paternal grandparents did not address this issue – only the issues of the mother's access and sibling access.

[310] Second, the paternal grandparents are not parties do this case and did not have the opportunity to obtain legal advice about this issue. This issue directly affects them. The paternal grandmother testified that she would continue the access with the maternal grandparents. However, it is not fair to expect her to make an informed decision on the witness stand about what this access should look like without having had the opportunity to first obtain independent legal advice. Further, the paternal grandfather was not present to consent to this relief.

[311] This court emphasized the importance of potential caregivers receiving independent legal advice before an order is made under section 102 of the Act in Children's Aid Society of Toronto v. C.K., 2008 ONCJ 38. The importance of a person being reasonably informed as to the nature and consequences of a consent or an agreement, and of alternatives to it, and having a reasonable opportunity to obtain independent advice before entering into the consent or agreement, is reflected in subsection 21 (2) of the Act that reads as follows:

Elements of Valid Consent or Agreement, etc.

21 (2) A person's consent or withdrawal of a consent or participation in or termination of an agreement under this Act is valid if, at the time the consent is given or withdrawn or the agreement is made or terminated, the person,

(a) has capacity;

(b) is reasonably informed as to the nature and consequences of the consent or agreement, and of alternatives to it;

(c) gives or withdraws the consent or executes the agreement or notice of termination voluntarily, without coercion or undue influence; and

(d) has had a reasonable opportunity to obtain independent advice.

[312] In Children's Aid Society of Toronto v. Y.M., 2019 ONCJ 489 and Children's Aid Society of Brant v. R.P., 2019 ONCJ 649, the courts interpreted "reasonable opportunity to obtain independent advice" in clause 21 (2) (d) of the Act as meaning an opportunity to obtain independent legal advice.

[313] Third, the maternal grandmother also isn't a party to this case. There was no indication that she received independent legal advice or was advised to obtain independent legal advice before being questioned. When questioned at trial, she said that she would like to have overnight access with JSP and JS.

[314] Fourth, weekly access to the maternal grandmother may no longer be practical and in the best interests of JSP and JS. The mother's access will no longer take place on weekdays and her weekend access will need to be accommodated. JSP and JS will also have activities and special events that they should attend. The paternal grandparents should obtain independent legal advice before entering into any agreement on this issue.

[315] Fifth, the court is confident that the grandparents can work out this issue without the need for a court order. They have successfully done this for the past two years. The paternal grandmother told the court how important the relationship with the maternal grandparents is for JSP and JS and how she wants to continue to foster it. If they can't work access out, the maternal grandparents are always free to bring an access application under the Children's Law Reform Act. The court suggests that the paternal grandparents and the maternal grandparents first try to mediate the issue before taking this step. They can use child protection mediators or the mediators available at this court.

[316] If the matter does return to court, both sets of grandparents will be parties to the case. They will have had the opportunity to obtain counsel or, at least, independent legal advice. They will have had the opportunity to consider all the access options and present their evidence to the court. The court finds that is the appropriate process to address the issue of the maternal grandparent's access with JSP and JS, and to determine what access order is in the best interests of JPS and JS.

15.4 – Access Between the Mother and RS

15.4.1 – Positions of the Parties

[317] The society's position is that it is not in RS's best interests to order access with the mother.

[318] If RS is placed in extended society care, the mother seeks frequent and specified access to him as may be deemed appropriate by the court.

15.4.2 The Adoption Worker's Evidence

[319] The adoption worker deposed that when she looks at prospective adoptive parents for a particular child, she looks at their ability to meet all of the child's needs, including openness.

[320] The adoption worker expressed confidence that she could successfully place RS for adoption. Previous placements she has been involved with for children this age have taken between 6 and 12 months.

[321] The adoption worker deposed that she would attempt to find an adoptive placement that is a cultural match for RS. This might mean that it will take longer to place him.

[322] The adoption worker felt that since RS has attached to the foster parents, given his age he should easily attach to another family.

[323] The adoption worker had been told by the children's service worker that the foster family was not prepared to adopt RS and did not assess this possibility. She said that if the foster parents make this application, it will be considered by the society's service team.

[324] The adoption worker said that the society, to her knowledge, is not keeping any statistics about how various levels of access are impacting either the pool of adoptive parents or the length of time it takes to adopt a child. She has also not been provided by the society with data about this from any other jurisdiction that has had more experience with openness orders.

[325] It would be helpful for the society and the court to have better data, as opposed to anecdotal evidence, so that more informed access orders for children being placed in extended society care can be made.

[326] The adoption worker discussed the potential benefits of openness orders for the child and for the child's prospective adoptive parents. She said that this could include the following:

a) It is very important for children to know their story, their history and where they come from.

b) Many children will want to search out their birth parents at adolescence if they have no contact. It can help them remove any fantasy about their birth parents and have a more realistic understanding of who they are.

c) It can help build a child's identity – to know who they are.

d) It can help a child be more secure in where they've come from and where they are going. It might provide the child with a greater sense of security moving forward.

e) It helps the child understand their roots, heritage, culture and religion – about foods and events that are important in their culture.

f) It helps the child understand why decisions were made about them and why they live where they live. It can inform them that they were and are loved by the birth parent.

g) It definitely promotes self-esteem and can help meet the emotional needs of the child.

h) It can provide the child with readier access to medical information. This can be very important if genetic concerns develop. This is also important information for the adoptive family to have.

i) It allows the adoptive family to reinforce the child's ability to understand their story and their history.

[327] The adoption worker described how the society provides life-books for adopted children that contain photographs of significant events in their lives.

[328] The adoption worker discussed with the court the changing nature of the adoptive parent. The traditional adoption model was the severance of the child's relationship with the birth parents – the adoptive parents had the expectation that they would not have anything to do with them.

[329] The adoption worker said that the society has engaged in educational training for adoptive parents about the benefits of openness orders. Adoptive parents are provided Adoption Readiness Training and taught about openness. She said that the society gives priority to prospective adoptive families open to openness orders.

[330] The adoption worker says that this has resulted in a change of attitude with adoptive parents – they are increasingly more willing to accept openness orders.

[331] The adoption worker also acknowledged that new provisions in the Act, as enacted in 2017, will likely result in a further acceptance of openness orders by adoptive parents.

[332] Continued education will be necessary to educate potential adoptive parents that contact with the birth parents will be happening more frequently with the new legislative provisions in the Act and that adoptive parents who accept this reality should be prioritized.

[333] Importantly, the adoption worker testified that the success of openness is usually correlated with the birth parent's ability to support the adoptive placement. If the birth parent undermines that placement, it can confuse and destabilize the child and the placement.

15.4.3 Beneficial and Meaningful

[334] The court has considered the positive aspects of RS's relationship with the mother set out in Part Twelve above.

[335] The court has also considered that the mother was able to establish a positive and respectful relationship with RS's foster parents, although the court is aware that this relationship might change if the foster parents were to be put in a position where they had to provide boundaries for the mother – she does not respond well to these.

[336] The court has considered the general potential benefits of contact with a birth parent set out by the adoption worker in paragraph 325 above.

[337] The court also considered the risk concerns set out throughout this decision, including the mother's difficulties with personal interactions, her mental health and personality challenges and her lack of insight into her personal issues. It considered the risk that the mother will not support RS's placement.

[338] Balancing these many factors, the court finds that access between the mother and RS is beneficial for RS.

[339] While RS is too young at this time to have a meaningful relationship with the mother, the potential exists for him to have a meaningful relationship with her in the future.

15.4.4 – Impairment of the Child's Future Opportunities for Adoption

[340] The court finds that the possible impairment of JS's future opportunities for adoption is relevant to his best interests and must be considered.

[341] The society submitted that it is not "hanging its hat" on this issue. The adoption worker was confident that she could find an adoptive home for RS. Although it is speculative whether they would be approved, the foster parents said that they are prepared to adopt RS. The foster mother said that she would be open to an openness order for the mother.

[342] An access order for the mother should not impair the child's future opportunities for adoption if it does not create unreasonable obligations for the prospective adoptive family, limits their contact with the mother and protects them from future litigation with her.

15.4.5 Best Interests Factors

[343] The court has considered the remaining best interests factors set out in subsection 74 (3) of the Act as follows:

a) RS is too young for the court to be able to ascertain his views and wishes.

b) An access order is unlikely to interfere with RS's physical, mental or emotional needs. Having the mother play some small role in his life may actually help RS meet his mental or emotional needs – helping him to develop a deeper understanding of his identity.

c) An access order is unlikely to interfere with RS's physical, mental or emotional level of development. In fact, contact with the mother may assist him in obtaining his medical and family history.

d) An access order will help RS maintain his cultural, religious and linguistic heritage. It is unknown whether the society will place RS with adoptive parents with Sikh Canadian heritage.

e) RS will be having sibling access. JSP and JS will have access to the mother and maternal family. It might become confusing for RS and unfair to him to know that his siblings are seeing the mother but he cannot.

f) An access order, if properly structured, should not interrupt RS's continuity of care.

g) Any risk of harm to RS can be met through a strictly supervised access order.

h) An access order should not unduly delay permanency planning for RS, if it is not too extensive. It is likely that an openness order will closely resemble the access order that will be made.

15.4.6 – What Access Order to the Mother Is in RS's Best Interests?

[344] While the court finds that it is in RS's best interests to maintain some connection with the mother, the focus is no longer on seeing if he can be returned to her care. The court must balance the benefits to RS of maintaining that connection with the mother while having the security of a permanent placement.

[345] The court also has to consider that it will be ordering sibling access. The hope will be to make the sibling relationship an enduring and important one for RS, JSP and JS. This relationship will be prioritized to the maintenance of RS's connection with the mother. In ordering this cumulative access, it is also important for the court not to interfere with the security of RS's permanent placement.

[346] In reaching that balance, the court has considered:

a) The quality of RS's access and relationship with the mother, as described above.

b) The risk factors posed by the mother, as extensively described above.

c) The importance of RS having a secure placement.

d) The importance of RS's routine with his permanent family not being disrupted by their obligations to the mother - particularly since they will also need to facilitate sibling access.

[347] The court will order that the mother have a minimum of three supervised access visits each year with RS, for a minimum of one hour. It will further order that photos of RS be provided to the mother at least three times each year and that the mother be given RS's report cards, redacted for identifying information, once each year, once he starts kindergarten.

[348] The court expects the mother to stop exposing RS to conflict at the access visits. If she continues to act as she has been, it may be that access will no longer be in RS's interests. She is being given the opportunity to show that she can exercise access in a responsible manner. However, the court wants to make it clear to her that if she fails to exercise access in a responsible manner, there will be consequences. The court will give the society the discretion to suspend the mother's access if she acts in an inappropriate or disrespectful manner to its workers at the visits in the child's presence. If access is suspended, the mother will have to come back to court and show why it should be continued.

15.5 – Access Between the Siblings

[349] The society and the OCL agreed that it is in the best interests of the children to have sibling access with JSP and JS being the access holders and RS being the access recipient. The court agrees that this is in the children's best interests.

[350] The evidence indicates that JSP and JS love RS and look forward to seeing him. JSP actively engages with RS at the visits, is proud of him and shows pictures of him at school.

[351] RS now becomes excited when he first sees JSP and JS at visits.

[352] The parties do not agree on the frequency of access. The society proposes that it take place a minimum of four times each year, plus whatever other access the caregivers for the children can agree upon. The OCL seeks an order that the society use its best efforts to ensure that sibling access takes place once each week, subject to each child's wishes, schedule and other activities, to be arranged between the caregivers for each of the children. The OCL's position is that if RS is placed in extended society care and a prospective adoptive home is identified for him, the society may, in its discretion, reduce the frequency of sibling access, but access shall still take place a minimum of once each month until notices of intent to place for adoption are served.

[353] The adoption worker testified that the society won't consider adoptive parents who are unsupportive of sibling access.

[354] The court must be careful not to impair RS's future opportunities for adoption by creating an access schedule that will unduly reduce the adoption pool – particularly since the mother's access also has to be facilitated.

[355] The paternal grandmother was very supportive of sibling access at trial. She is prepared to have that access take place in the adoptive parents' home or at her home.

[356] The court sees merit in the OCL's suggestion to gradually reduce the frequency of sibling access. An abrupt reduction in frequency would be distressing to JSP.

[357] The court will order that sibling access take place at the society office once every other week for the next two months. After that, sibling access shall take place a minimum of 9 times each year to be arranged between the paternal grandparents and RS's legal guardians. The visits should be no less than one hour.

[358] The OCL asks that sibling access take place separately from any access that the children have with the mother. The court agrees. The siblings should be able to enjoy their visits with each other free from the conflict the mother has been exposing them to.

[359] This order provides for minimum sibling access. More can always be agreed to.

15.6 – Access Holders and Access Recipients

[360] The mother did not seek a specific order to be made an access holder; however, the court believes that was her intent.

[361] The court's preference is always, where it is in the child's best interests, to make the parents access holders. This gives them a say in the contact they will have with the child post-adoption and they don't have to rely on the society or the OCL (if the child is made the access holder) to determine the contact. However, in this case, the court finds that it is not in RS's best interests to make the mother an access holder.

[362] The court finds that it is not in RS's best interests to embroil prospective adoptive parents in protracted litigation of openness issues. This is likely to happen with the mother. She does not accept that there are any risk concerns and is unlikely to support the extended care order. It is also possible that the prospect of such litigation would deter some prospective adoptive families from coming forward.

[363] RS will be made the access holder and the mother the access recipient pursuant to subsection 105 (7) of the Act. If a notice of intent to place for adoption is served, the OCL will act for RS. It will determine what position to take on his behalf. This determination might depend on what happens between now and the time that the notice is served. The OCL might negotiate an openness agreement or bring an openness application. It might not take any steps.

[364] The court will make JSP and JS access holders and RS the access recipient for sibling access pursuant to subsection 105 (7) of the Act as requested by the society and the OCL.

Part Sixteen – Conclusion

[365] The court makes a final order on the following terms:

a) RS is found to be a child in need of protection pursuant to subclause 74 (2) (b) (i) of the Act.

b) RS shall be placed in extended society care.

c) RS shall have access to the mother on the following terms:

(i) There shall be three supervised visits each year, for a minimum of one hour each.

(ii) The society will have the discretion to suspend the mother's access if she acts in an inappropriate or disrespectful manner to its workers at the visits in the child's presence. If this happens, the mother may move to the court to lift this suspension on notice to the society.

(iii) Photos of RS shall be provided to the mother a minimum of three times each year.

(iv) RS's report cards shall be provided to the mother once each year, redacted for identifying information.

(v) RS shall be the access holder and the mother shall be the access recipient pursuant to subsection 105 (7) of the Act.

d) This order will replace all the parenting terms set out in the domestic order for JSP. Those parenting terms are now terminated.

e) JSP and JS are placed in the care and custody of the paternal grandparents pursuant to section 102 of the Act.

f) The paternal grandparents may travel with JSP and JS outside of Canada without the consent or written authorization of the mother or any other individual.

g) The paternal grandparents may obtain or renew government documents, including passports and birth certificates, for JSP and JS without the consent or written authorization of the mother or any other individual.

h) The paternal grandparents shall provide the mother with copies of the report cards of JSP and JS and notify her of any medical issue affecting them.

i) JSP and JS shall have access with the mother on the following terms:

(i) Until the family is accepted at the TSAC, access visits shall be supervised at the society offices once every other week, at times to be agreed upon between the society, the paternal grandparents and the mother.

(ii) Once the family is accepted at the TSAC, access shall take place on one weekend day every other weekend for two hours at the TSAC, subject to the TSAC's availability.

(iii) The mother will be responsible for paying the fees of the TSAC.

(iv) The paternal grandparents and the mother shall arrange for an intake session right away with the TSAC.

(v) The mother and the paternal grandparents shall comply with all rules and regulations of the TSAC.

(vi) Visits may be cancelled by the paternal grandparents if JSP and/or JS go to camp, on a family vacation or have a special occasion or event. The paternal grandparents should give reasonable notice of any cancellation to the TSAC. Any missed visits should be made up at the earliest opportunity.

(vii) Visits will not be made up if the mother misses a visit.

(viii) The mother shall not be present during any access JSP and JS have with the maternal grandmother. She is also not to contact JSP and JS beyond the terms of this order without the prior written consent of one of the paternal grandparents.

(ix) Telephone access twice each week at times and on days to be determined by the paternal grandparents.

j) B.P.'s access to JSP and JS and M.J.G.'s access to JS shall be in the sole discretion of the paternal grandparents, including with respect to frequency, duration, location and the level of supervision.

k) JSP and JS shall have access with RS to be arranged between the paternal grandparents and RS's legal guardians, a minimum of nine times each year. These visits should be a minimum of one hour long. JSP and JS shall be the access holders and RS shall be the access recipient pursuant to subsection 105 (7) of the Act.

l) The sibling access shall take place separately from the children's access with the mother.

[366] Counsel for the society shall prepare and take out this order.

[367] The court wants to thank counsel for their excellent presentation of this case.

Released: December 2, 2019

Justice S.B. Sherr