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.

(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.

(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 File and Parties

DATE: May 17, 2022 COURT FILE NO.: C30782/19

ONTARIO COURT OF JUSTICE

B E T W E E N:

CHILDREN’S AID SOCIETY OF TORONTO, APPLICANT JULIA O’BYRNE, for the APPLICANT

• and -

N.G. and W.L., RESPONDENTS DAVID MILLER, for the RESPONDENT, N.G. RENATTA AUSTIN AND DEBORAH STEWART, for the respondent, W.L.

HEARD: MAY 9-11 and 13, 2022

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This Status Review Application is about N.G.-L. (the child). The child will turn three years old in […] 2022.

[2] The child is presently in the care of the applicant, Children’s Aid Society of Toronto (the society). The respondents (the parents) are having in-person visits with the child at the society office twice each week and having virtual access with the child once each week.

[3] The society seeks an order that the child be placed in extended society care. It seeks an order that the respondents have access with the child, in its discretion, a minimum of once each month. It proposes that the parents and the child both be access holders and access recipients.

[4] The society also seeks an order that the child have access to her sibling (A.), in its discretion, a minimum of 12 times each year, with the child being the access holder and A. being the access recipient.

[5] The respondent W.L. (the father) seeks an order that the child be placed in his care and custody pursuant to a 6-month supervision order. In the alternative, he seeks a transitional order that the child remain in interim society care for up to two months, followed by a supervision order. If the child is placed in extended society care, the father seeks access with the child a minimum of twice each week, with such further and other access to be in the society’s discretion.

[6] The respondent N.G. (the mother) supports the father’s position. She seeks as much access with the child as the court will permit, whether the child is placed in extended society care or with the father. She seeks an order for her access to be in the discretion of the society as to frequency, duration and the level of supervision required, with access taking place a minimum of once each week in-person and once each week virtually.

[7] In the event that the court decides to place the child with the father, the society supports the court making a transitional order, with the child remaining in interim society care for two months, followed by a period of society supervision.

[8] This trial was heard over 4 days. The court heard from three society workers, the child’s foster father, the mother, the father, a support person for the father (T.G.), the Manager of the Central Intake for Shelters for the City of Toronto (Central Intake) and the Senior Manager of the Family Residence Shelter (FRS) in Toronto.

[9] The father had a French interpreter assist him throughout the trial.

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

a) Is intervention through a court order necessary to protect the child in the future?

b) If so, what dispositional orders are in the child’s best interests?

c) If the court determines that it is in the child’s best interests to make the supervision order sought by the father, does the court have jurisdiction to make a transitional order for this placement, and should it make that order?

d) If the child is placed in extended society care, what access orders are in the child’s best interests?

e) If the child is placed in the father’s care and custody,

(i) What terms of supervision are in the child’s best interests?

(ii) What access orders are in the child’s best interests?

Part Two – Background facts

[11] The mother is 37 years old.

[12] The mother testified that she has led a very difficult life. She has had significant involvement with the child protection system. She was in and out of foster care starting when she was 9 years old. She said that her mother was an alcoholic who was emotionally abusive to her. She said that she was sexually molested as a child by an uncle. The mother said that she left foster care when she was 16 years old, briefly returned to live with her mother and then lived on her own.

[13] The mother testified that she has had a drug abuse issue since she was a teenager – mostly cocaine use. Six of her children have been made crown wards (now extended society care). [1]

[14] The mother gave birth to A. on […], 2022. The mother concealed this pregnancy from the society and lied to the society when she was asked if she was pregnant. The mother testified that she took cocaine while she was in labour with A.

[15] The society started a protection application and A. is in the temporary care and custody of the society. A.’s case is in its early stages and he is not the subject of this trial. The mother has not identified A.’s biological father. It is not W.L.

[16] The mother is in receipt of Ontario Disability Support payments (ODSP). She lives in an apartment in Toronto. Her 20-year-old son is presently staying with her.

[17] The father is 56 years old. He was born and raised in the Democratic Republic of Congo. His first language is Congolese French. In 1996, he came to Canada alone as a Convention Refugee.

[18] The father has a 36-year-old son who lives in the Democratic Republic of Congo (the son).

[19] The father works part-time in food preparation. His income is supplemented by ODSP as he has a hearing impairment. He is otherwise in good health.

[20] The father presently lives with a friend and his friend’s girlfriend in a one-bedroom apartment in Toronto.

[21] The parents gave very different accounts about the history of their relationship. The mother deposed that they had been together for 17 years. The father said that they have had an off and on relationship for 12 years. He estimated that they had a relationship for about half that time. He said that they have only lived together for about three years in total.

[22] The parents agreed that they resided together in the apartment where the mother presently resides from the time the child was born until early February 2022. They have lived separate and apart since then.

[23] The child is the only child that the parents have had together.

[24] The child was brought to a place of safety by the society at birth due to the mother’s longstanding history with substance abuse, lack of prenatal care and lack of readiness for the child.

[25] On June 27, 2019, the child was placed in the temporary care and custody of the society with access to the parents in the society’s discretion.

[26] The parents worked cooperatively with the society and took positive steps to address the protection concerns. The society agreed to return the child to the joint care of the parents.

[27] On February 25, 2020, the parties entered into a consent order. Statutory findings were made regarding the child. The child is not First Nations, Inuk or Métis. The child was found to be a child in need of protection pursuant to subclause 74 (2) (b) (i) (risk of physical harm) of the Child, Youth and Family Services Act, 2017 (the Act). The child was placed in the joint care of the parents, subject to society supervision for a period of six months.

[28] The parties filed a Statement of Agreed Facts that formed the evidentiary basis for this order. Some of the important facts agreed to were as follows:

a) The parents were cooperative and met regularly with the society worker.

b) The parents were consistent in attending visits with the child. Initially the visits took place at the society office. They moved to Ujima House [2] in September 2019. The length and frequency of the visits were gradually increased.

c) The mother was observed to be the more confident parent, while the father required a little bit more support to parent the child. The father showed improvements as he continued to attend for access and incorporated the feedback by the Ujima House staff.

d) By the beginning of October 2019, the visits became semi-supervised and in November and December 2019, community access took place. Later in December 2019 an extended visit took place.

e) The society met with the parents and their supports on December 18, 2019 to develop a safety plan for the child. This plan included:

(i) The mother attending Narcotics Anonymous meetings weekly.

(ii) The mother being sober while caring for the child.

(iii) The mother contacting the father and a support person if she relapsed,

(iv) The mother enrolling in the Parenting in Early Years program about child development.

(v) The supports checking in with the parents.

f) The parents were working well together in their goal to co-parent the child.

g) The society would continue to work with the mother on connecting with and sustaining her participation in programs that could sustain her sobriety.

h) The mother was reporting that she was remaining sober.

[29] On August 12, 2020, the society issued a Status Review Application seeking a further 6-month supervision order with the child remaining in the joint care and custody of the parents.

[30] On October 27, 2020, the society’s family service worker conducted a home visit. She observed that the child appeared healthy, happy and well cared for. The mother reported to the worker that the family was doing well and that she was managing well. The parties were working towards finalizing a further four-month supervision order. Everything appeared to be going well.

[31] On November 24, 2020, the society received a referral from the Toronto Police Service that the mother had been arrested for possession of cocaine. She was not charged.

[32] The society worker met with the mother. The mother advised her that a friend had left drugs in her apartment. She also told the worker that it was the father who had been selling drugs to meet their financial needs. She told the worker that the drugs found by the police belonged to the father, the father was always yelling at her and that he was not caring for the child properly. She said that she did not want him to stay in the apartment. The mother admitted to the worker that she had relapsed about a week before. The mother had not contacted her supports as agreed upon in the safety plan.

[33] The child was brought to a place of safety on November 24, 2020. She was placed in the same foster home she had previously lived in. She has remained there since.

[34] On November 25, 2020, the society worker spoke to the father. He claimed that he was unaware that the mother had relapsed. He denied ever having used or trafficked in drugs. He did not know why the mother had alleged that he was doing this.

[35] The society worker spoke with the mother again on November 25, 2020. The mother recanted her allegations against the father. She said that she had been mad at him and had lashed out. She also said that she had panicked after she was handcuffed by the police and the child was screaming. She still admitted that she had relapsed the week before.

[36] On November 27, 2020, a temporary without prejudice order was made by Justice Melanie Sager, placing the child in the care and custody of the society.

[37] A temporary care and custody hearing was heard on December 23, 2020. The decision was reserved. On January 6, 2021, Justice Sager ordered that the child remain in the temporary care and custody of the society. She further ordered that the parents have access to the child in the society’s discretion.

[38] On April 1, 2021, the parties consented to a 5-month interim society care order for the child. Since the child had been in the care of the society in excess of the statutory time limit of 12 months [3] the parties agreed to the extension of the time limit pursuant to subsection 122 (5) of the Act (an extension order).

[39] The parties filed a Statement of Agreed Facts that formed the evidentiary basis for this order. This included the following agreed upon facts:

a) The society had received two anonymous referrals in July 2020 and October 2020 alleging that the mother was using drugs and leaving the child in the care of others. The society investigated and was unable to verify the allegations. Both parents had denied drug use.

b) A support person for the parents reported to the society that she had no concerns and was impressed by the mother’s parenting.

c) The society observed that the child was well bonded to her parents. Her basic needs appeared to be met. In November 2020, the society observed that the child was appropriately dressed for the weather and appeared to be healthy and happy.

d) The society arranged a conference with the parents and their supports in February 2021. The parents presented a plan where the child would be returned to the father’s primary care once both parents were fully engaged with supports. The mother agreed to attend in-person drug treatment. The father agreed to connect with supports. The society accepted this plan.

e) Access between the parents and the child was going well. The parents consistently attended visits. The mother came prepared for visits and engaged well with the child during their time together. The father often took photos and videos of the child.

[40] The visits between the child and the parents progressed well. In May 2021, the visits were moved to Ujima House.

[41] On August 10, 2021, the society issued this Status Review Application seeking a disposition of extended society care for the child. However, the society was concurrently assessing the plan to place the child with the father.

[42] On October 27, 2021, the society decided to move the child’s visits into the family home.

[43] On December 1, 2021, the society decided to permit overnight visits at the parents’ home. One of the conditions was that the mother would move out of the family apartment and live with a friend who had an apartment in the same building. The mother was permitted to spend the day with the child. She was not permitted to sleep in the apartment with the father and the child overnight.

[44] The child’s visits with the parents went well.

[45] The society brought a motion, returnable on December 20, 2021, to place the child in the temporary care and custody of the father. Justice Sager did not grant the order. She adjourned the motion and expressed concerns in her endorsement that:

a) Access in the home while positive, had only been taking place since November 22, 2021.

b) There was not a lot of information provided by the society about the interactions between the child and the father at the visits.

c) The society worker had expressed suspicion about possible drug dealing by the father when she had observed two visits.

d) The society had raised suspicions about the mother being pregnant. The mother had denied to the society worker that she was pregnant.

e) The parents had been late joining the court attendance and the father advised the society worker who had called him that he had just woken up.

[46] The society agreed to the parents having an extended 10-day visit with the child over the winter holidays. The mother was directed again by the society not to stay overnight in the apartment. She stayed overnight at the apartment at least once during the extended visit in contravention of this direction.

[47] The child returned to the foster home sick at the end of the extended visit. She tested positive for COVID-19. As a result, the parents did not have another in-person visit with the child until January 26, 2022.

[48] On […], 2022, the mother gave birth to A.

[49] The parents cancelled their visit with the child on January 31, 2022. They did not advise the society that the mother had given birth to A. The society learned about this from the hospital.

[50] The father separated from the mother a few days later. He testified that the mother had been telling him that she was not pregnant – she had only been gaining weight. He was upset that the mother had a child with another man and said that he could not accept this.

[51] The society has placed A. in the same foster home as the child.

[52] On March 15, 2022, Justice Sager noted the father in default for this Status Review Application as he had not filed an Answer/Plan of Care.

[53] The father then retained counsel. Justice Sager set aside the March 15, 2022 order on April 1, 2022. She gave the father an extension until April 11, 2022 to file his Answer/Plan of Care. He served and filed his Answer/Plan of Care within the timeline.

Part Three – Legal considerations on disposition

[54] The society has brought this application pursuant to section 113 of the Act.

[55] The society filed, and the court considered, the society’s plan of care pursuant to section 100 of the Act. That plan is consistent with the position it took in this case.

[56] Section 114 of the Act provides that where a status review application is made under section 113, the court may, in the child’s best interests, vary or terminate the original order made under subsection 101 (1), make a further order under subsection 101 (1) or make an order under section 102 of the Act.

[57] 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. The importance of taking this step in a status review application was set out by the Ontario Court of Appeal in Children’s Aid Society of Oxford v. W.T.C., 2013 ONCA 491.

[58] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act, as set out in subsection 1 (1), which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1 (2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available. See: Children’s Aid Society of Toronto v. H.F., 2020 ONCJ 526, per Justice Roselyn Zisman.

[59] Subsection 101 (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.

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

[61] 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.

[62] 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.

[63] In determining the appropriate disposition, the court must decide what order is in the child’s best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. That 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.

[64] An order placing a child in extended society care 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. 4th 79 (SCJ- Family Branch); Catholic Children’s Aid Society of Toronto v. G.O., 2014 ONCJ 523.

[65] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a parent, provided that the standard used is not contrary to the child’s best interests. See: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

[66] 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 (Ont. C.J.).

Part Four – The child

[67] The parties and the witnesses described the child in very positive terms. She is a happy and healthy child who is meeting all of her developmental milestones. The child has no special needs.

[68] The child was described as bright, inquisitive and very active.

[69] The parents spoke with pride about the child. It was apparent to the court how deeply they love her and how much they want to give her a good life.

[70] The child was described by the society witnesses as being very bonded with the parents – particularly with the mother. The parents often described the child as a “mommy’s girl”. She is excited to see them at visits and interacts naturally and affectionately with them.

[71] It was agreed that the mother is the more confident and experienced parent and that she takes the lead when the parents visit the child. The child will gravitate to the mother when both parents are visiting her.

[72] The child was described as having a close connection to A. The witnesses said that the child adores him.

[73] The child has done very well at her foster home. Her physical and emotional needs have been met there. The parents expressed their appreciation for what the foster parents have done for the child.

Part Five – Services provided by the society to assist the parents and the child

[74] The court finds that the society has made significant efforts to support the parents and the child. These efforts have included the following:

a) When the child was placed in society care, it set up family planning meetings to support the return of the child to the parents.

b) The society connected the father with Ujima House and to CAFCAN (Canadian African Canadian Social Services). The father engaged in programs provided by both of these service providers.

c) The society arranged for access to take place at Ujima House.

d) The society wrote a support letter for the mother to participate in an assessment at the Metro Addiction Assessment Referral Service at CAMH for in-patient treatment.

e) The society provided the father with information about shelters and offered to call the shelters for him.

f) The society offered to help the parents complete the daycare subsidy application for the child.

g) The society provided the child with a Children’s Service Worker.

h) The society helped facilitate visits in the parents’ home during the fall of 2021 and made a serious attempt to reintegrate the child with the father.

Part Six – Is intervention through a protection order necessary to protect the child in the future?

[75] Subsection 101 (1) of the Act 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 persons who had charge of her prior to society intervention under Part V of the Act. [4]

[76] The parties all agreed that intervention through a protection order is necessary to protect the child in the future. The relief sought by the parents contemplates continued supervision by the society of the child’s placement with the father.

[77] The mother acknowledged that she still has work to do to address her long-standing substance abuse problems. She testified that she knows that the child is better off with the father at this time. She hopes to be able to address her problems and play a much larger role in the child’s life in the future. At this point, she said that she is prepared to take a step back to ensure that the child’s placement with the father is not compromised.

[78] The father acknowledged that the mother’s drug use poses a risk to the child. He also acknowledged that concerns around his plan for the child require a protection order.

[79] The evidence established multiple reasons why a protection order is necessary to protect the child in the future. These include:

a) Although the parents acknowledged that the mother has substance abuse issues, they still tended to minimize those issues at trial. The mother claimed that she had only used cocaine twice after the child was removed from the parents’ care at birth – once in November 2020 and the second time when she was delivering A. Her evidence on this subject was inconsistent and not credible. She had told the society worker on November 24, 2020 that she had relapsed the week before and was smoking cocaine in the hallway at night about three times a week to cope. In the Statement of Agreed Facts filed for the April 1, 2021 order, the mother admitted that she had relapsed in the last week and had used cocaine in the hallway about three times while the father was with the child.

The mother was admitted to CAMH in September 2021 for four days. [5] She admitted that she had told CAMH staff that her cocaine use had been escalating over the past year and that she had recently been smoking between $400 and $500 of crack cocaine a day. The mother testified that she lied to CAMH about her drug use to improve her chances of getting admitted.

The problem is that when you keep telling lies to people, as the mother has frequently done throughout this case, the court cannot rely on any of your evidence.

The protection concern about the mother’s drug use was highlighted by her making the terrible parenting choice of using cocaine while she was in labour with A., placing A. at serious risk of physical harm. The parents both showed a lack of insight by maintaining that the mother’s parenting has not been affected by her drug use.

The mother claims to have been sober since A. was born. The court doubts this. The mother has been missing visits with the child and A. on Mondays. When asked why, she shrugged and said that it is hard for her to get going on Mondays. She said that she is often tired on Monday mornings.

The society has exhorted the mother on multiple occasions to attend residential treatment. [6] She still has not done this. She continually comes up with excuses. She left the CAMH program after a few days in September 2021 and did not attend any further program. The court finds that the mother has not taken the requisite steps to meaningfully address her serious drug issues.

b) The father claimed that he had little knowledge of the mother’s drug use after the child was born. He said that she only used drugs when he was not around. He said that he suspected that she had used one time in July 2021 and told this to the worker, but that was it. The court finds that the father likely had more knowledge of the mother’s drug use than he stated. He was living with her full-time. He was very aware of her long-standing challenges with drugs.

c) The court was also concerned at times with the mother’s presentation during the trial. The court had to recess on three separate days when the mother appeared unwell. On one occasion, she slumped below the witness table and was not immediately responsive.

d) There is a protection concern that prior to their separation in February 2022 the father would, at times, prioritize the mother’s interests over the child’s. For example:

(i) It should have been evident to the father a long time ago that the mother’s serious drug issues would imperil the child’s ability to be placed in their joint care. He was strongly encouraged by the society to take the necessary steps to plan for the child on his own. He would agree to do this and then procrastinate, hoping that matters with the mother would improve and they would remain together.

(ii) The father claimed that he did not know that the mother was pregnant with A. – that she denied it when he asked her and that she would become irritated with him for asking. At best, the father put his head in the sand. The father was familiar with how the mother looked when she was pregnant. He chose to keep this secret from the society to protect the mother. In doing so, he ended up putting A. at risk and compromised the ability of the society and the court to trust him.

(iii) The father permitted the mother to sleep over at least once when the child had an extended visit with him in December 2021, contrary to the direction from the society. The father could not explain why he breached this direction.

e) A protection concern remains about the father’s ability to extricate himself from his relationship with the mother and maintain boundaries for her if the child is placed with him. They continue to remain friends and still have a lot of contact– the worker observed that the father is often at the mother’s apartment.

The father has historically deferred to the mother. He defers to her when they are parenting the child and he has deferred to her during this case. He did not file an Answer/Plan of Care and did not even obtain counsel until after he was found in default and the case was scheduled for trial.

f) The court agrees with the society that the father demonstrated limited insight into how his own behaviour contributed to the child being in care. This behaviour included prioritizing the mother’s interests, enabling her drug use, and not taking all the steps required of him to plan for the child separately from the mother. This has contributed to instability and delay for the child.

g) The father’s plan for the child is still a work in progress. The child is not on a waitlist for daycare. The father has not applied for a daycare subsidy. He has struggled in his search for housing. [7]

h) The parents have at times not been transparent or honest with the society – particularly the mother. This increases the level of the protection concerns. The court finds that the parents have been dishonest about the extent of the mother’s drug use, the mother’s pregnancy with A. and the mother staying overnight with the father.

Part Seven – The positions and plans of the parties

7.1 The society

[80] The society submits that it is in the child’s best interests to be placed in extended society care. Due to the protection concerns set out in Part Six above, the society does not believe that supervision terms would be adequate to protect the child in the father’s care. The society submitted that the father’s plan is not fully formed, lacks specificity and is not fully implemented.

[81] The society’s plan is to obtain an adoption placement for the child.

[82] The society recognizes the close bond between the child and the parents and seeks the access orders set out in paragraph 3 above.

[83] The society also recognizes the close bond that the child has developed with A. and seeks the access order set out in paragraph 4 above.

[84] The society’s evidence included concerns that the father may be selling or using drugs. This is based on the statement made by the mother to the society worker when the mother was arrested on November 24, 2020. A society worker also became suspicious at two home visits in November 2021 when at the first visit someone came to the door and gave the father a bag and at the second visit someone kept trying to call him during the visit.

[85] The society did not pursue this as a risk concern in its submissions. The evidence does not support a finding that the father uses or sells drugs. The mother recanted her allegations against the father the day after she made them. Further, any statement made by the mother is unreliable. The mother’s statement likely coloured the worker’s perception of the events at the visits she observed in November 2021. The father explained that he had asked a friend to buy some supplies for the child, such as shampoo. This is what was dropped off. The worker acknowledged that she never saw the person at the door or what was in the bag given to the father. The father said that the person calling at the second visit was his son who was anxious to see the child. The court believed the father.

[86] The father was adamant that he does not use or sell drugs. The father’s friend T.G. confirmed this, as did the mother. The society workers have never observed the father under the influence of drugs. The father presented well at trial. He was alert, well groomed, attentive throughout and consistently on time.

[87] The court has no protection concern about the father selling or using drugs.

7.2 The father’s plan that is supported by the mother

7.2.1 The original plan

[88] The father’s plan is to have the child placed in his care and custody subject to terms of society supervision for a period of six months. The particulars of this plan changed during his testimony.

[89] The father plans to live with the child separately from the mother. He deposed that he would comply with any order that placed restrictions on the mother’s contact with the child.

[90] In his trial affidavit, the father said that he and the child will live at FRS (Family Residence Shelter). He deposed that this would give him priority access to subsidized housing, childcare, children’s programs and skills training. He said that he completed his intake for FRS in October 2021 and confirmed again on April 12, 2022 with FRS that it is prepared to take him and the child if the child is placed in his care.

[91] The father deposed that he had completed his 2021 income tax return the week before to ensure that he would be able to get the daycare subsidy for the child. He said that he had previously relied on the mother to do the paperwork to obtain the daycare subsidy and she never did this.

[92] The father said that he has a good relationship with his employer and could work flexible shifts while the child attended daycare.

[93] In his trial affidavit, the father said that he would have the support of T.G. who was prepared to provide him with parenting relief on weekends and to provide him with parenting support, if needed.

[94] In his Answer/Plan of Care, the father set out 12 proposed terms of supervision if the child was placed in his care. The society agreed that these terms were reasonable if the court placed the child with him.

[95] The mother said that she was fully supportive of the father’s plan. She said that she was prepared to comply with any court order, including orders prohibiting her from seeing or contacting the child when the child is with the father.

[96] The mother has expressed concerns at times to the society about the father’s parenting ability. At trial, she testified that he wasn’t as strong a parent as she is, but she felt that with supports the father could do a good job parenting the child.

7.2.2 The evidence of the shelter workers

[97] During the father’s testimony, the court indicated to his counsel that it would be helpful to have someone from FRS testify if housing was immediately available as stated by the father. The father had acknowledged that where he is living is unsuitable for the child. If the child was to be returned to the father’s care, he needed appropriate accommodation.

[98] The court is grateful to the father’s counsel that on short notice she was able to bring the Manager of Central Intake and the Senior Manager of FRS to court to testify.

[99] The manager for Central Intake testified that Central Intake is a 24/7 call centre that provides supports for homeless people. It provides shelter space, information resources and other social supports. He said that when someone calls for a shelter space an initial assessment is done to determine the path forward. To be eligible for service, the person must be homeless [8] or facing imminent homelessness and must fit the family composition for the shelter. For instance, some shelters are for single persons, others are for victims of domestic violence. Here, to be eligible for FRS, the child must be in the father’s care. The manager discussed two family shelters in Toronto – FRS and the Birkdale shelter.

[100] The manager testified that once the intake process is done, their caseworkers will contact their shift leader who will determine if the person should go on a family tracker for a family shelter. Applicants are prioritized based on need. So, if a person has a place to stay, or has funds, they will be placed lower on that list.

[101] The manager said that the family tracker expires each day. If a spot cannot be found, then the person must call back the next day, and the following days to be placed on it again.

[102] The manager said that if a family shelter spot is not available, Central Intake will also check to see if a hotel space is available in the meantime.

[103] The manager said that the father had 13 interactions with Central Intake between October 2021 and April 12, 2022. These were either calls with a caseworker or calls for updates. He said that the father is not on a family tracker at this time.

[104] On April 12, 2022, the father called Central Intake seeking shelter space. He told the caseworker that he was seeking a space to be reunited with the child. The caseworker discussed available shared shelter spaces and the father declined them. The father was advised that he would be placed on the family tracker and was told that a single shelter space was an option. The father said that he would call back.

[105] The father next called Central Intake on April 22, 2022. He sought a referral to a single, non-family space. He advised Central Intake that he had slept under a bridge the night before. He was asked to hold but disconnected the call and did not call back. He was not placed on the family tracker. He did not call Central Intake again.

[106] The manager said that an eligible family will usually be on the family tracker (if they call every day) for between one and 15 days.

[107] The Senior Manager from FRS stated that all placements for FRS are arranged through Central Intake. She said that FRS offers “child-minding services” while parents attend their programs. They do not provide daycare for working parents. She said that FRS provides programs, including recreation programs for children in the evenings. She said that all FRS programs have been put on hold during the pandemic but will hopefully resume this summer. She said that a family generally stays at FRS for between 3 to 6 months.

[108] The father misunderstood and overstated his present status with FRS. He was not on a waitlist. He was not assured by Central Intake that he would be given space at FRS if the child was placed in his care. Daycare was not available at FRS for him to go to work each day. Further, the father testified that he has $5,000 and a place to live with T.G. for now. It is unlikely that his application would receive priority on the family tracker. At best, the date when he would receive a placement at a family shelter remains uncertain.

7.2.3 The father’s new plan

[109] The father was questioned by the parties before the court heard from the shelter witnesses. After the parties finished questioning the father, the court asked him questions. The court wanted to hear more details about his plan to live at FRS. The court asked the father what his plan would be if he could not get into FRS.

[110] The father said if the child was placed with him, he and the child could live with T.G. at her home in Toronto until they received a placement at FRS or he found other suitable accommodation.

[111] It was apparent that the father had not discussed this option with anyone other than T.G.; otherwise, someone would have asked him about it during his testimony. The father was very open in discussing the plan – the court did not believe that he had been concealing it.

[112] In closing submissions, the father presented this plan as his first preferred option. He submitted that he was also willing, as part of this plan, to go to the Birkdale shelter or to a hotel arranged by Central Intake.

[113] The father testified virtually from T.G.’s home. The court could see that it was a bright, spacious and clean accommodation.

[114] The court next heard from T.G. She said that she had a romantic relationship with the father about 18 years ago. She said that she had been a drug addict and that the father helped her get clean. T.G. said that she has been sober for the past eleven years. She said that she and the father have been friends since then.

[115] T.G. testified that she knows the mother and that they used to use drugs together over eleven years ago. T.G. said that she has not had a relationship with the mother since then.

[116] T.G. said that she is now employed as a community shelter worker and an addictions mental health counselor. She said that she also works part-time as a residential support worker with Regeneration. She said that this is a service for people who have mental illnesses and who can live on their own, but need supports.

[117] T.G. said that she works with homeless people and supports their needs.

[118] T.G. said that in July 2021, the society called her as the father had put her forward as a kinship possibility for the child. She said that she was not in a place to plan for the child at that time. She said that it was her understanding that if the mother and father took the necessary steps, the society would reunite their family. She said that she told the society that she was willing to support the parents with resources.

[119] T.G. testified that she understands that the mother and father “both procrastinated and didn’t step up”.

[120] T.G. said that the father called her two weeks before the trial for her help in getting subsidized daycare for the child and to obtain housing. T.G. said that because of the nature of her work, she has considerable knowledge of social service resources.

[121] T.G. said that she is prepared to offer housing to the father and the child until they get their feet on the ground. She lives in a finished basement of a home. She said that there are 1.5 bedrooms. She said that there is a large den that she can turn into a bedroom. She said that she had an extra bed for them. She said that she lives on the subway line and that there are schools, daycares and a recreation centre nearby.

[122] T.G. said that she has just connected the father with the Hotel Program. This is a program that can provide him with assistance to find housing. T.G. said that she will arrange for the father to meet with housing workers and that she will arrange an interpreter to help him at meetings. She said that she will come to appointments with the father. She said that she has not done this yet as she recently tested positive for COVID-19 and continues to have symptoms.

[123] T.G. said that she is prepared to provide parenting relief for the father, whether he lives with her or at a shelter space. She said that she has flexibility at work and can pick her shifts.

[124] T.G. said that her support has boundaries. She said that she is prepared to do 50% of the work, but the father has to do the other 50%. She said this “drives me crazy, drives me nuts because I know he has the potential”. She said that the father listens to her and she thinks he will step forward if given the chance.

[125] T.G. said that she will require the father to make a modest contribution to rent – $200 each month.

[126] T.G. said that a strict condition of her support for the father and the child would be that the mother cannot come to her residence. She said that the father has agreed to this condition.

[127] T.G. described the relationship between the mother and the father as toxic and felt that the father was taking a positive step separating from the mother.

[128] T.G. said that she has only met the child once. She added that the father inundates her with pictures of the child.

[129] T.G. said that she would not hesitate to call the society if the father permitted the mother to have contact with the child against the terms of a court order. She said, “this is about the child, not the parents”.

[130] T.G. said that the father and the child could stay with her as long as necessary. The father presented this possibility in his closing submissions as his second preferred option.

[131] Since these options were not presented to the society before the trial, the court offered the society a brief adjournment to permit its family service worker to investigate and for it to call further evidence.

[132] The family service worker testified again on the return of the case. She had spoken to the father and confirmed that these two options were his plan. She called Central Intake who confirmed that the father was eligible for a single shelter space but the child must be in his care to be eligible for a family shelter space. She said that she spoke to T.G. and they reviewed the safety of her home if the child lived there – such as fire exits. The worker expressed no concerns about the father, T.G., or the proposed accommodation that T.G. was offering.

Part Eight – Placement analysis

8.1 Observations and events leading up to society’s motion to place the child with the father

[133] To this point in the analysis, the court has primarily focused on the protection concerns. It is against these concerns that the court has to weigh the benefits of placing the child with the father.

[134] The court also considered that the father does not have to be a perfect parent for it to find that it is in the best interests of the child to be placed in his care. He only needs to be “good enough” based on the minimum parenting standards we expect of parents. This is the appropriate standard in determining a child’s best interests when we are deciding cases involving state intrusion into the lives of a family and deciding whether to permanently sever a child from her parents.

[135] The jurisprudence talks about not applying middle-class parenting standards in assessing whether to place a child with a parent. That principle resonates in this case. The father faces many challenges. English is not his first language and this has likely been a barrier in navigating the intricacies of social service programs. [9] He is not well-educated. He is not a sophisticated litigant. He struggled at the start of the trial with the technology until arrangements were made for him to testify from T.G.’s home. He has struggled with poverty and recently was sleeping under a bridge. He presents with a quiet and passive personality.

[136] Given these challenges, it is not surprising that the father deferred to the mother in their relationship. She presents as a brash and confident person with a dominant personality. English is her first language. She is articulate and not shy to express herself. She has strong parenting skills and took control at joint visits and at meetings with society workers. The child loves her deeply. The father wanted them all to live happily ever after together. He turned a blind eye to problems.

[137] This dynamic between the parents has been to the detriment of the child. It has led to the father’s minimization of the mother’s issues, concealing her secrets and his delay in separating from her and developing a separate plan for the child.

[138] It was understandable that the father let the mother take the lead in applying for subsidized daycare given her language skills and her experience with the social welfare system. Unfortunately, she did not make the application. Now, the father has to do this himself. He filed his 2021 income tax return recently in order to make this application, so the process has started.

[139] Although the society had asked the father to take steps for a long time to obtain a family shelter spot, it is understandable why he thought this was only the backup plan until recently.

[140] The society was supporting a different reunification plan in 2021. That plan involved the mother moving out of the apartment and the father and the child living there. However, that plan also involved intensive involvement by the mother, who would live in an apartment in the same building and spend the daytime with them.

[141] Further, as we learned during the trial, the father was not eligible for a family shelter placement unless the child was in his care. The Central Intake manager described a complex process that required a fair bit of questioning by the professionals to understand. The court can easily appreciate how the father could have misunderstood this process and what was explained to him. He tried. He called Central Intake 13 times between October 2021 and April 2022.

8.2 The society’s motion to place the child with the father

[142] Despite its protection concerns, including about the father’s lack of insight into them, his prioritization of the mother’s interests, his inability to separate from the mother, his possible drug involvement, the possibility that the mother was pregnant and the father’s delay in obtaining day-care and separate housing, the society still felt it was in the child’s best interests to place the child with the father on a temporary basis when it brought its motion for this relief returnable on December 20, 2021. The society felt that supervision terms were adequate to address its protection concerns.

[143] The society had many good reasons for taking this position that still apply today including:

a) The father and the child were closely bonded.

b) The father adored the child.

c) The increased visits in November and December 2021 were positive.

d) The father, although not as strong a parent as the mother, was capable of meeting the child’s instrumental needs, such as feeding, clothing, hygiene and her medical needs.

e) The mother testified that the father worked when the child resided with them. When he came home, she said that he helped out with all aspects of child care.

f) The society witnesses testified that the child was very comfortable in the father’s care. She interacted easily with him. He was gentle with her and engaged with her. He was attuned to her needs and cues.

g) The society witnesses testified that the father was open to parenting direction. They saw him incorporate suggestions and improve his parenting.

h) The father was open to improving his parenting. He took the Super Dad’s Super Kid’s program at Ujima House and attended programming at CAFCAN. [10]

i) The only criticism of the father’s parenting was that he was too lax about saying no to the child and would indulge her.

j) There was no concern that the father would be physically or emotionally abusive to the child.

k) The father had no mental health issues, substance abuse problems or cognitive limitations that might adversely affect his ability to parent the child. He was not involved in criminal activity.

l) The society expressed no safety concerns about the child being with the father or about any safety issues in his home.

m) The father consistently expressed a commitment and desire to parent the child.

n) The father was consistent in exercising his access.

o) The father was always polite and cooperative with society workers.

p) The father was always polite, cooperative and appreciative of the foster parents.

q) The apartment was appropriate for the child, although there were concerns about the mother’s proximity.

r) The society apparently felt that the father’s parenting ability was “good enough”.

[144] The motion was adjourned by Justice Sager for the reasons set out in paragraph 45 above.

[145] Despite the adjournment and its protection concerns, the society still agreed to the child spending ten days with the father over the winter holidays. The worker testified that she put in a safety plan but it was a low-maintenance safety plan that only required check-ins. The foster father made two phone calls to the parents to see how things were going. No one from the society visited the home during the extended visit.

[146] The circumstances surrounding A.’s birth, the separation of the parents and the slow development of the father’s plan appear to be the major reasons why the society changed its position.

[147] However, the separation of the parents is probably a positive development. Due to the mother’s addiction issues and the dynamics of their interpersonal relationship, the plan for the parents to work closely together to parent the child was likely doomed to fail. A plan where the father can primarily parent the child, with supports, and with the restricted involvement of the mother at this time, has a real chance to succeed.

8.3 Housing and poverty issues

[148] This led to the related issues of housing and poverty. Could the father find adequate accommodation for the child in time, given that the child has been in care well past the statutory timeline of 12 months? [11]

[149] The jurisprudence sets out that children should not be permanently removed from a family just because of poverty and housing issues. See: Children’s Aid Society of Toronto v. S.T., 2019 ONCJ 76. [12] Parents should not be punished for poverty. See: Children’s Aid Society of Brant v. K.A.W., 2022 ONCJ 33. In Kawartha Children’s Aid Society v. AR and DB, 2019 ONSC 4191, the court found that in order to reach a conclusion that is balanced, fair, and just, the court should give very little weight to the concerns about poverty, lack of housing and personal hygiene that were directly a consequence of the poverty that the parents have experienced.

[150] In Kawartha- Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, the court wrote at paragraph 69:

Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. If we do not face up to this reality we risk forgetting the hard-learned lessons of the past by exacerbating pre-existing inequities and harms. The miscarriages of justice outlined in the Report of the Motherisk Commission (2018: Ontario Ministry of the Attorney General) speak, by way of example, to the significant imbalance between parents and Children’s Aid Societies, noting that parents, even when represented by counsel, were “simply overpowered” (at p. 121). Fairness in the child protection context demands recognition of these dynamics.

[151] The Court of Appeal in Kawartha was talking about parents like the father.

[152] The court finds that the father’s plan for housing is not ideal but it is good enough. The child should not be placed in extended society care due to the father’s poverty and his plan for housing.

[153] T.G. has testified that she will provide accommodation for the father and the child for as long as they need it. This accommodation is suitable. It is a bright, clean and spacious apartment. There are schools, daycares and recreation facilities near the home. The society expressed no safety concerns with the home. The court is confident that the father and T.G. will obtain the necessary supplies for the child.

[154] If the father is able to secure a shelter placement, there will be supports and programming available at the shelter to assist him.

[155] Now that the society and the father have a better understanding of how the shelter system works, they can work together to optimize obtaining a family shelter placement. Thanks to T.G., the father is no longer facing a housing crisis.

8.4 T.G.

[156] The court finds that T.G. is a very positive part of the father’s plan. Her credibility was bolstered by the balanced nature of her evidence. She did not hesitate to discuss the father’s flaws – specifically his procrastination and his inability to extricate himself from his relationship with the mother. She had a good understanding of the protection concerns. She set out very reasonable expectations for the father and reasonable boundaries for the mother that will give the father’s plan the best chance to succeed. She convinced the court that she will put the child’s interests first and report any concerns to the society in a timely manner. She will also do her best to ensure that the father is compliant with court orders.

[157] T.G. explained how she can use her skills to assist the father. She identified how the father’s English has been a barrier to him obtaining services (or understanding how services operate). She is involved with the homeless community and familiar with housing supports. She is willing to go to meetings with the father and to assist him in completing forms, such as for the daycare subsidy.

[158] T.G. will be available to provide the father with parenting assistance and support when needed.

[159] The father has a very good relationship with T.G. It is a mutually respectful relationship. The court is confident that the father will accept and be appreciative of T.G.’s assistance.

[160] The concern remains about whether the father can set boundaries for the mother. The mother is forceful and despite her stated intention to step back, there is a real possibility that she will try and insert herself into the child’s life and pressure the father to breach any court order restricting her contact with the child.

[161] The court finds that T.G. will be an added protective factor in enforcing boundaries for the mother. It remains to be seen how well the father enforces them. Understanding that he might lose the child permanently if he does not enforce those boundaries should be sufficient motivation for him.

8.5 Are supervision terms adequate to protect the child?

[162] The society argues that due to the parents’ dishonesty, a supervision order is not viable. There is some merit to this submission but this is not a situation where the father has been consistently dishonest with the society. For the most part, the father has been cooperative with the society. He is polite and respectful. He is open to society direction. He signs necessary consents. He voluntarily told the society about his suspicions about the mother using drugs in July 2021. He was open with the society about his economic challenges in finding affordable housing and in navigating the shelter system.

[163] This trial has undoubtedly been a frightening experience for the father. The society has asked to permanently remove his child. The potential consequences of breaching a court order are now very clear to him. The father is very motivated to parent the child. The court finds that a strict supervision order will be adequate to protect the child.

8.6 Summary of best interests considerations and disposition

[164] In summarizing the relevant best interests clauses in subsection 74 (3) of the Act, the court finds that:

a) The child is not old enough to verbalize her views and wishes. However, her reactions to and interactions with the parents reveal that these are very important relationships to her.

b) The father has the ability to meet the child’s physical, mental and emotional needs with the support of T.G., the society and community supports. The child does not have special needs that would require an enhanced level of parenting to meet her needs.

c) The father has the ability to meet the child’s physical, mental and emotional level of development with supports from T.G., the society and community supports.

d) Placement with the father would provide the child with a better understanding of her Congolese culture and heritage. The child does not receive that education in her foster home. The foster parents are Jamaican-Canadian. The foster parents have tried to expose the child to the French language, but the child would receive much more French education if she lived with the father.

e) Placement with the father, with access to the mother, would give the child a better opportunity to learn about her mother’s culture and heritage than if the child was placed in extended society care.

f) Placement with the father would give the child a greater connection with her extended paternal family. When she is with the father, the child has video chats with the father’s son and the father’s brothers who live overseas. The father said that the child enjoys these calls with family members.

g) The child has an established relationship with the parents. An extended society care order would diminish those relationships and the child’s relationships with her extended family members. In the short-term, the child would likely be distressed by this.

h) There is a concern that if the father’s plan fails, the child’s need for stability and continuity will be adversely affected. Permanency planning would have been delayed. However, the court finds that with appropriate supports, the father can provide continuity and stability for the child.

i) The court finds that the risks that led to the child coming into care and subsequent risks that have developed since the child came into care can be adequately addressed through a supervision order.

[165] Balancing all of these factors and subject to the transition terms that will be set out below, the court finds that the least disruptive alternative, consistent with the best interests of the child, is to place her in the care and custody of the father, subject to the supervision of the society.

8.7 Supervision terms

[166] The society was agreeable to the supervision terms suggested by the father in his Answer/Plan of Care in the event that the child was placed with him. It seeks a further supervision term that the father not supervise the child’s parenting time with the mother. It suggests that it make the arrangements and supervise any in-person or virtual parenting time for the mother.

[167] The court will order these terms as they will mitigate the risk concerns. The father will have enough challenges without also having to manage the child’s access with the mother.

[168] The court will order additional supervision terms to ensure that the society can meet with the child and obtain third party information from service providers. It will require the father to make daycare and housing applications. The father will be required to attend all plan of care meetings organized by the society. These are important meetings for the society to meet with the parents to discuss the child’s needs and how they can best be addressed. The father has not been attending these meetings regularly.

[169] The court will also make it a term of supervision that the father is to immediately contact the society if the mother attempts to contact or see the child outside the times arranged by the society. He must also immediately contact the society if the mother attends at T.G.’s home or at any shelter he is living at with the child. These are very important supervision terms. The father is expected to fully comply with them to protect the child. He won’t be in trouble for reporting this to the society, but he will have troubles if he does not report this.

Part Nine – Transition terms

[170] The father made an alternate proposal for the child be transitioned into his care for up to the next two months, followed by a supervision order.

[171] The society asked the court to make a two-month transition order if the court decided to place the child with the father.

[172] The mother submitted that the court has jurisdiction to make this order. The society supported that position.

[173] A transition order in these circumstances is essentially a further interim society care order followed by a supervision order. Consecutive orders of this nature are contemplated by paragraph 4 of subsection 101 (1) of the Act.

[174] However, there is conflicting case law on the ability of the court to make an extension order pursuant to subsection 122 (5) of the Act that will keep a child under the age of six in society care for more than 18 months. [13] Some courts take the approach that subsection 122 (5) creates a hard cap of 18 months for a child to remain in society care – it cannot be extended beyond that. Other courts interpret subsection 122 (5) more broadly and have found that the 6-month extension may be calculated from the date of the hearing, even if the child’s total time in society care exceeds 18 months. This conflicting law was discussed by Justice Sheilagh O’Connell at paragraphs 306 to 313 of Children’s Aid Society of Toronto v. A.L., 2021 ONCJ 258.

[175] In Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, Justice Ellen Murray wrote at par. 162:

I prefer the more liberal approach to interpretation of the subsection. The paramount purpose of the Act is promotion of the best interests, protection and well-being of children. I do not accept that if, for example, an extension of two months was required to facilitate a return home which everyone agreed was in a child’s best interests that the inflexible interpretation of 122(4) should prevent that result. If the Legislature had meant to so severely restrict the court’s discretion in this manner, it could have used more explicit language, such as that used in s. 35(21) of the Family Responsibility and Support Arrears Enforcement Act, which limits the extension of a refraining order to one period of 3 or 6 months.

[176] Justice O’Connell found in the A.L. case that it is more consistent with the overall purposes of the Act to apply the more expansive interpretation of subsection 122 (5). She found that the court has the ability to make successive 6-month extension orders if it is in the child’s best interests. Justice O’Connell wrote the following at paragraphs 308 to 311 of her decision:

[308] The more liberal interpretation of section 122(5) would permit multiple extensions of time, for no more than six months at a time, in appropriate cases. The court in Catholic Children’s Aid Society of Toronto v. S.S and C.A.P., 2011 ONCJ 803 endorsed this approach, holding that while the importance of permanency planning must be kept in mind, an inflexible approach to the extension of time limits should not be permitted to block a resolution that is a child’s best interests.

[309] This is in keeping with the remedial nature of the legislation and the broad interpretation of the Act that has been endorsed by the Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415.

[310] ….. In my view, the remedial nature of the legislation permits multiple extensions of the time limits for a child to remain in care, but for no more than six months at a time under section 122(5) of the Act.

[311] I find that this is the correct approach. In my view, the remedial nature of the legislation permits multiple extensions of the time limits for a child to remain in care, but for no more than six months at a time under section 122(5) of the Act.

[312] In determining whether an extension order should be made, the court in Children’s Aid Society of Carleton v. K.F., [2003] O.J. No. 2326 (Sup.Ct.) set out the factors that a court must consider as follows:

1. The decision to extend must be made in accordance with the children's best interests.

2. The decision must be viewed from the children's perspective.

3. The factors in subsection 37(3) [now 74(3) best interest factors] of the Act must be considered.

4. The court must be satisfied, balancing the factors in subsection 37 (3), that there are unusual or equitable principles in the circumstances that would justify granting an exception to the general rule, for the "child's sake."

[177] This court has long taken the same position as Justices Murray and O’Connell on this issue – that a child-focused interpretation of subsection 122 (5), taking into account the entire context of the Act, permits the court to make extension orders of up to 6 months from the date of the hearing, provided that the order is in the child’s best interests. [14] In Catholic Children’s Aid Society v. S.S., 2011 ONCJ 803, at paragraph 135 this court gave the following examples of situations where an extension order might be made:

There will be cases where, for a variety of reasons, it is in the best interests of a child to return to a parent, but a delay is appropriate. In these limited cases, the court should make the extension order set out in subsection 70(4). See: Kawartha-Haliburton Children's Aid Society v. K.M., (2001), 110 A.C.W.S. (3d) 491, [2001] O.J. No. 5047, 2001 Carswell­Ont. 4507 (Ont. Fam. Ct.). These would include cases with the following facts: where a parent needs a little more time to complete a program where participation was delayed due to waiting lists; where a parent or child is waiting for an important support service or imminent housing to become available or where a child needs additional time to make a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child in such cases to rush this process for the sake of strict compliance with a time limit.

[178] This court made transitional orders to facilitate the adjustment of the children into their new placements in Children’s Aid Society of Toronto v. D.S., 2013 ONCJ 554 and in Children’s Aid Society of Toronto v. S.C., 2016 ONCJ 234. In both cases, one-month transitional orders were made. In doing so, the court followed the lead of Justice Ellen Murray who made a two-week transitional order in Children’s Aid Society of Toronto v. D.B., 2013 ONCJ 405.

[179] The court’s position on this issue is reinforced by the changes to child protection legislation contained in the Act that came into force on April 30, 2018. These new provisions created a heightened emphasis on the best interests of the child. The importance of these changes was highlighted by the Ontario Court of Appeal in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, where the court stated that the Act is remedial legislation that should be broadly interpreted to ensure the best interests of a child.

[180] To further support this flexible interpretation of subsection 122 (5), the court looks to the United Nations Convention on the Rights of the Child (the Convention). The Convention applies to child protection cases. See: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paras 92-93; Family and Children’s Services of Guelph and Wellington County v. A.M.P. and K.D.S., 2020 ONSC 7418; Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 341.

[181] And the Preamble of the Act expressly states that the aim of the Act is to be consistent with and build upon the principles expressed in the Convention.

[182] Article 3 (1) of the Convention makes the best interests of the child a primary consideration in all actions affecting the child.

[183] Article 9 of the Convention states that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

[184] These Articles support the more flexible interpretation of subsection 122 (5) by requiring the court’s focus to be on the best interests of the child rather than on rigid time lines. A court should never sever a child’s relationship with their parents when it has found that the parents can adequately parent the child if given just a little more time to either consolidate their plan or additional time is required to ensure that the child has a smooth transition into their care.

[185] There is now appellate authority for the flexible interpretation of subsection 122 (5). In Catholic Children’s Aid Society of Toronto v. N.J., 2017 ONSC 4884, the appeal court upheld a trial decision of Justice Melanie Sager [15] where she had made a 2-month transition order returning the child to the mother, followed by a 12-month supervision order. [16] Similar to this case, the child had been in care for 26 months. The appeal court essentially endorsed an extension of the interim society care order, to be followed by the supervision order.

[186] In N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796, on appeal, the court found that the child was not a child in need of protection and, even though there is no statutory provision permitting a transition order, ordered the child’s gradual return to the mother. The case did not involve subsection 122 (5) of the Act. But in the absence of express authority to make a transition order, the court nonetheless recognized that the best interests of the child required a gradual return to the mother. The court wrote at par 142:

In light of the Child's special needs, a plan must be in place, prior to the permanent return of the Child, to ensure that he is accepted in a school, has appropriate before and after school care, that he has a pediatrician, and that arrangements have been made for appropriate supports for his special needs such as speech and occupational therapy.

[187] The approach taken by the appeal court in N.V.C. was child-focused, consistent with the Convention and was a flexible interpretation of the Act similar to the approach taken by many courts in interpreting subsection 122 (5).

[188] The court finds that here, the child’s best interests support a short period of transition of six weeks into the father’s care and the court will make an extension order for interim society care pursuant to subsection 122 (5). This will allow the father additional time to apply for a daycare spot for the child, ensure that he has the appropriate supplies and continue to explore housing alternatives with the assistance of the society and T.G. It will permit the child to transition in a child-focused manner from a home where she has spent most of her life to living full-time with the father.

[189] The court is ordering a slightly longer transition period than it did in Children’s Aid Society of Toronto v. D.S., supra and in Children’s Aid Society of Toronto v. S.C., supra. In part, this is because there may be a short delay in starting visits in T.G.’s home since T.G. was still symptomatic for COVID-19 at trial.

[190] The father and the society should coordinate a progressive access schedule, starting with longer day visits and moving to overnights. The court order will give the society the discretion to work out the details in consultation with the father. Access should not start in T.G.’s home until the society ascertains that T.G. and the father do not have COVID-19.

[191] The six-week interim society care order will be followed by a six-month supervision order placing the child in the temporary care and custody of the father.

[192] The court wishes to emphasize that if it does not have jurisdiction to make this order, it would have immediately returned the child to the care and custody of the father as opposed to making an extended society care order. A short transition order will give the father and the child the best chance to succeed.

Part Nine – Access

9.1 – Legal considerations

[193] Section 104 of the Act sets out the court’s powers in relation to access for a child not placed in extended society care. 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.

[194] Clause 114 (a) of the Act also applies on Status Review Applications. It reads as follows

Where an application for review of a child’s status is made under section 113, the court may, in the child’s best interests,

(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;

[195] The best interests considerations that are set out in subsection 74 (3) of the Act apply to access orders. The court has considered the relevant clauses in this subsection.

9.2 Positions of the parties

[196] The mother seeks an order for access to the child to be in the discretion of the society as to frequency, duration and the level of supervision required, with access taking place a minimum of once each week in-person and once each week virtually. In submissions, the mother’s counsel indicated that the mother will leave it up to the society as to what changes in access should take place to make it easier for the child – there may be reasons for more or less access during the child’s integration with the father.

[197] The father took the position that he would support and comply with any access order that the court makes regarding the mother.

[198] The society asked to be the supervisor of any of the mother’s access with the child, whether in-person or virtual. It did not object to the minimum frequency of access sought by the mother.

[199] The parties all support access taking place between the child and A.

9.3 Analysis

[200] The court has set out in detail the mother’s challenges and the risks she poses for the child’s placement with the father. It is in the child’s best interests that very clear boundaries be established for the mother’s contact with the child.

[201] The evidence indicates that the mother, despite her challenges, has many parenting strengths. These include:

a) She has a very strong connection to the child. She loves the child and the child loves her. The child is always excited to see her and is often upset when she leaves.

b) The mother’s access is always positive for the child. One worker testified that they have many amazing moments together.

c) The mother has been observed as being loving, nurturing and playful with the child. The child responds very well to her.

d) The mother is always appropriate with the child.

e) The child opens up to the mother and is talkative with her.

f) The mother knows the child’s cues. She knows her likes and dislikes.

g) There are no safety concerns during the mother’s visits with the child.

h) Until recently, when she started missing Monday visits, the mother has consistently attended access with the child.

i) The mother, at times, has been able to prioritize the child’s needs over her own needs. It was a child-focused decision for her not to put forward a primary plan for the child and to agree to step back and have a reduced access role.

j) The mother has been respectful and cooperative with society staff.

k) The mother has been respectful and appreciative of the foster parents. She has not undermined that placement in any way.

[202] The mother is a very good access parent.

[203] The court finds that the order sought by the mother, with the provision that only the society can arrange and supervise her access, is in the child’s best interests. The court will also give the society the discretion to reduce the mother’s minimum access during the transition period of this order, if it sees fit, to focus on the child’s integration with the father.

[204] The court will also order terms to create boundaries for the mother as follows:

a) She is not to attend at the father’s home, whether he is living with T.G. or at a shelter, or at any other location approved of by the society.

b) She is not to attempt to see or talk to the child outside the times that the society is supervising her access.

[205] It is important that the mother understand that the father will now be caring for the child – not her. If these boundaries are not set, the parents will likely revert to the problematic patterns that led to the child being placed in foster care.

[206] The court will give the society discretion over arranging reasonable access between A. and the child.

Part Ten – Conclusion

[207] A final order shall go on the following terms:

a) The child shall remain in interim society care for a period of six weeks. An extension order is made pursuant to subsection 122 (5) of the Act for this purpose. The interim society care order will be followed by a 6-month order placing the child in the care and custody of the father, subject to the following terms of supervision:

(i) The father shall permit society workers to have announced and unannounced visits with the child in the father’s home, or in the community.

(ii) The father shall reside with the child at the home of T.G., or at a shelter, or at any other location approved in advance by the society.

(iii) The father shall not reside in the same housing as the mother, whether it is a shelter or a private residence.

(iv) The father shall inform the society of any changes to his address, contact information or family constellation in advance of such changes. If such notification is not possible, he is to notify the society within 48 hours thereafter.

(v) The father shall sign, in a timely manner, all consents or releases required by the society to speak to service providers for the child and him. He shall work cooperatively with society workers.

(vi) The father shall follow all reasonable advice and recommendations made by the society and the child’s service providers about her health, education and general well-being.

(vii) The father shall ensure that the child promptly obtains a pediatrician and attends all medical appointments.

(viii) The father shall take all reasonable steps to apply for a daycare subsidy and have the child placed in full-time daycare once accepted. He is to ensure that the child attends daycare consistently.

(ix) The father shall take all reasonable steps to obtain a family shelter placement

(x) The father shall attend all plan of care meetings arranged by the society.

(xi) The father shall ensure that the child is not exposed to any illicit substances.

(xii) The father shall ensure that the child is not exposed to adult conflict.

(xiii) The mother shall not attempt to contact or see the child other than at the access times arranged through the society.

(xiv) The mother is not to come to the father’s home, whether he lives with T.G., at a shelter or any other location approved of by the society.

(xv) The father shall ensure that the child has no contact with the mother other than at the access times arranged through the society.

(xvi) The father shall immediately notify the society if the mother attempts to contact or see the child outside the access times arranged through the society or if she comes to his home.

(xvii) The father shall facilitate reasonable access between the child and A. as directed by and arranged by the society.

b) The society shall have the discretion to coordinate the details of the father’s access during the six-week interim society care period, in consultation with the father. Access should be increased quickly to permit full day visits and then overnight visits. Visits should not take place in T.G.’s home until the society ascertains that T.G. nor the father have COVID-19.

c) The mother shall have access to the child in the discretion of the society as to frequency, duration and the level of supervision required, with access taking place a minimum of once each week in-person and once each week virtually. However, during the six-week interim society care period, the society will have the discretion to reduce the mother’s minimum access with the child to facilitate the child’s integration into the father’s care.

d) Only the society or its designate shall supervise the mother’s access with the child. The father shall not be the supervisor of the visits.

e) The mother shall not attend at the father’s home. She shall also not attempt to see or talk to the child outside the specific times arranged with the society.

[208] It is very important for the parents to understand that this is their last chance to get it right for the child. They have a responsibility not to fail her again. The court expects the parents to strictly follow the terms of this order. They both need to take steps to address the protection concerns set out in this decision so that they can be the best parents they can be. The child’s ability to reach her full potential will likely depend on how well they can do this. The time for excuses and inaction is over. Fortunately, the parents have good people ready to help them.

[209] The society is to take out this order. It should share the terms of supervision and access with T.G.

[210] The child’s Status Review Application is returnable on December 21, 2022 at 10:00 a.m. before Justice Sager. It will be scheduled for 30 minutes and will be conducted by zoom videoconference.

[211] The court thanks all the counsel for their excellent presentation of this case.

Released: May 17, 2022

Justice S.B. Sherr

[1] This piece of evidence was contained in a Statement of Agreed Facts filed with the court dated February 25, 2020. [2] Ujima House is a father’s focused parenting centre. [3] This is the time limit under subsection 122 (1) of the Act that a child under the age of 6 can remain in society care. Unless this time limit is extended by the court under subsection 122 (5), at a trial, the court must either make an extended society care order or make an order placing the child with another person. It cannot make another interim society care order. Here, the calculation includes the time the child was in care from June 2019 until February 25, 2020. [4] See: Subsection 101 (8) of the Act. [5] CAMH is the Centre for Addiction and Mental Health. [6] The mother had promised to do this at a meeting with the society that was held on February 8, 2021 as part of the plan to place the child with the father. [7] The father’s challenges in obtaining these services, some of which are out of his control, will be discussed below. [8] The manager testified that there are exceptions, such as in cases of domestic violence or where a single woman is in her third trimester. [9] The court heard the father speak very broken English. T.G. commented that the father is able to speak five different languages. [10] The father remains open to participating in further programing to improve his parenting. [11] The child has been in society care for over 25 months, including the time she spent in society care after she was born and before she was returned to the parents on February 25, 2020. [12] If the poverty or lack of housing is related to other protection concerns, it may be relevant. See: Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113. [13] Section 122 of the Act reads as follows:

Expiry of Orders

Time limit

122 (1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

Calculation of time limit

(2) The time during which a child has been in a society’s care and custody pursuant to the following shall be counted in calculating the period referred to in subsection (1):

1. An agreement made under subsection 75 (1) (temporary care agreement).

2. A temporary order made under clause 94 (2) (d) (custody during adjournment).

Previous periods to be counted

(3) The period referred to in subsection (1) shall include any previous periods that the child was in a society’s care and custody under an interim society care order made under paragraph 2 of subsection 101 (1) or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a society’s care and custody.

Deemed extension of time limit

(4) Where the period referred to in subsection (1) or (5) expires and,

(a) an appeal of an order made under subsection 101 (1) has been commenced and is not yet finally disposed of; or

(b) the court has adjourned a hearing under section 114 (status review),

the period is deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 114, as the case may be.

Six-month extension

(5) Subject to paragraphs 2 and 4 of subsection 101 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.

[14] See: Children’s Aid Society v. K.P., 2006 ONCJ 598, paragraphs 111 to 117. [15] The cite of the trial decision is Children’s Aid Society of Toronto v. N.J., 2017 ONCJ 232. [16] This was reduced to 10 months on appeal as paragraph 4 of subsection 101 (1) of the Act permits consecutive orders of interim society care followed by a supervision order, but the total length of the order cannot exceed 12 months.