WARNING

The court directs that the following notice shall be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

where the court is of the opinion that publication of the report 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.

(8) Prohibition: 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) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: Toronto C50903/10 Date: 2012-02-27 Ontario Court of Justice

Between:

CHILDREN'S AID SOCIETY OF TORONTO, Applicant

— AND —

N.C., P.C. Respondents

Before: Justice Curtis

Heard on: 1, 2, 3, and 6 February 2012

Reasons for Judgment released on: 27 February 2012

Counsel:

• Michelle Cheung for the applicant Children's Aid Society of Toronto
• James Herbert for the respondent P.C.

CURTIS, J.:

Index

1. Introduction
2. Background Facts
3. Litigation History
4. Family History
5. The Grandchildren Currently in the Maternal Grandmother's Care
6. Maternal Grandmother's History With Child Protection Agencies
   • i. Maternal Grandmother's History with Child Protection Agencies Regarding Her Children
     • 1. Admissibility of Evidence of Past Parenting re the Maternal Grandmother
     • 2. Details of the Maternal Grandmother's History with Child Protection Agencies Regarding Her Children
   • ii. Maternal Grandmother's History with Child Protection Agencies Regarding Her Grandchildren
7. The Maternal Grandmother's Transience
8. The Maternal Grandmother's Changing Family Constellation
9. The Parenting Capacity Assessment
10. Disposition
    • i. Plans and Options Available at Trial
      • 1. The Plans for the Child
      • 2. The Maternal Grandmother's Plan
    • ii. Disposition Legal Principles
      • 1. Crown Wardship Analysis
      • 2. The maternal grandmother's strengths
      • 3. J.1
      • 4. Examination of the Maternal Grandmother's Plan
      • 5. Evaluating the Options
    • iii. Access
      • 1. Access Legal Principles
      • 2. Access Analysis
      • 3. Access to J.1
11. Conclusion and Orders

Introduction

[1] This is the decision in a four day crown wardship trial regarding the child J.1 (1½ years old).

[2] The Children's Aid Society of Toronto ("CAST") is seeking crown wardship, no access, for the purposes of adoption. The maternal grandmother P.C. ("the maternal grandmother"), (born 1960 (51 years old)) opposed this and asked that the child be placed in her care. The mother filed an Answer, but did not offer a plan for the child and did not participate in the trial. On 4 August 2011, Sherr, J. ordered that there is no male parent for J.1 within the meaning of the Child and Family Services Act, R.S.O. 1990, c. C11, as amended ("C.F.S.A.").

[3] The trial dealt only with disposition. On 12 August 2011 the mother and the maternal grandmother consented to a finding that the child was in need of protection under s. 37(2)(b) C.F.S.A., in an Agreed Statement of Facts signed 10 and 11 August 2011.

[4] The issues for decision are these:

1. Is it in the child's best interests to be made a crown ward, or can some less intrusive protection order be made?
2. If the child is made a crown ward, is access between the child and the maternal grandmother meaningful and beneficial to the child, and if so, would access impair the child's future opportunities for adoption?

Background Facts

[5] The mother is N.C., ("the mother"), born 1983 (29 years old at trial). The father is B.Y.. Neither the mother nor the father offered a plan for the child's care.

[6] The mother has five children:

• J.2, born 2001 (10 years old at trial), living with the maternal grandmother;
• N., born 2004 (7 years old), living with the maternal grandmother;
• C.1, born 2007 (5 years old), a crown ward in Alberta (since February 2011) who has been adopted;
• S., born 2008 (3½ years old), a crown ward in Alberta (since February 2011) who has been adopted; and,
• J.1, born 2010 (1½ years old).

[7] None of the mother's five children are in her care.

Litigation History

[8] J.1 was apprehended at birth in 2010. The protection application seeking crown wardship was started on 30 April 2010, and identified the following issues:

a. none of the mother's other four children were in her care (two of her children were then in the maternal grandmother's care, and two were then in the care of Alberta Child Protective Services);

b. she had a history of involvement with children's aid societies as a child and as a parent;

c. she had not received support to address the trauma she experienced due to domestic violence;

d. she had not received treatment or support for her symptoms of schizophrenia; and,

e. she had made minimal progress addressing longstanding protection concerns.

[9] On 7 December 2010, Zuker, J. granted the CAST's motion for summary judgment, found the child to be a child in need of protection, and ordered crown wardship, no access, for the purposes of adoption. The maternal grandmother, who was not yet a party to the case, had requested an adjournment of this motion, which request was refused.

[10] On 2 May 2011, Backhouse, J. extended the time for the mother to appeal the decision. On 3 May 2011, the parties consented to an order allowing the appeal, returning the case to the Ontario Court of Justice for determination, and adding the maternal grandmother as a party.

[11] On 11 May 2011 Brownstone, J. dismissed the maternal grandmother's motion for access to J.1.

Family History

[12] The family history is complicated. As the maternal grandmother is the only person planning for the child, it is her history that is relevant, and it is her plan that the court must consider and evaluate.

[13] The maternal grandmother has six children, a stepson, and fifteen grandchildren. She has been a caregiver for many of her grandchildren, at various times, and continues to do so. These are her children and grandchildren (those in bold are part of this case):

• K.1, born 1977 (34), has three children:

  • M.1 (18);
  • K.2 (15);
  • K.3 (11);

• N.2, born 1980 (31), has two children;

  • N.3, born 1998 (13), lived her entire life with the maternal grandmother, until summer 2011;
  • I., born 2011 (11 months);

• N., born 1983 (29) (this mother and the child J.1 are the subject of this trial) has five children:

  • J.2, born 2001 (10), living with the maternal grandmother since late 2004;
  • N., born 2004 (7), living with the maternal grandmother since late 2004;
  • C.1, born 2007 (5), adopted in Alberta;
  • S., born 2008 (3½), adopted in Alberta;
  • J.1, born 2010 (1½), in foster care;

• C.2 (known as T.), born 1983 (28), has four children:

  • E., born 1998 (13), living with the maternal grandmother (from birth);
  • C.3, born 2000 (11), adopted through Peel CAS;
  • R., born 2001 (10), in care through Peel CAS;
  • D., born 2005 (7);

• A.2, born 1986 (25), has one child:

  • L. (6);

• J.3, born 1988 (23).

J.L. was the father of K.1. A.C. was the father of the other five children, and the step-son M.2, born 1972 (39). The maternal grandmother and A.C. were married from 1980 to 1995.

[14] Neither of the fathers of the maternal grandmother's children is part of the plan for J.1, nor was either involved in the trial.

[15] The family constellation is large, and the family moved around, including the maternal grandmother moving many times, and the children and grandchildren moving in and out of the maternal grandmother's home frequently and regularly.

[16] There is a family pattern of teen-aged pregnancies and teen-aged parenthood. The maternal grandmother was 17 when her son K.1 was born. K.1's oldest child was born when he was 17. N.2 was 18 when her oldest child was born. The mother was 18 when her oldest child was born. T. was 15 when her oldest child was born (15 according to the birthdates given in evidence, although in evidence she and the maternal grandmother said she was 13 when the child was born).

[17] The maternal grandmother says that the mother was diagnosed with mild schizophrenia, and that her son A.2 was diagnosed with schizophrenia.

The Grandchildren Currently in the Maternal Grandmother's Care

[18] The maternal grandmother has been caring fulltime for her grandchildren continuously for many years, since 1998. She currently has three grandchildren in her care, although until recently, a fourth grandchild also lived with her. She is the permanent caregiver of those three children, the details of which are set out below.

[19] E.: E. (now 13) is a special needs child with high needs. He was diagnosed with congenital Arthrogryposis. This is a rare congenital disorder that is characterized by multiple joint contractures and can include muscle weakness and fibrosis. A contracture is a permanent shortening of a muscle or joint, where muscles or tendons have gotten too tight for too long, thus becoming shorter. It is a non-progressive disease. In the most common type of arthrogryposis, hands, wrists, elbows, shoulders, hips, feet and knees are affected. He was born with serious deformities and has experienced significant mobility restrictions and stiffness in his wrists, elbows, shoulders, hips, knees, fingers, and ankles. His prognosis at birth was not good. He was not expected to be mobile or to walk or talk. He had clubbed feet. He cannot wear regular shoes, as they do not stay on his feet, and if he does wear them, he is prone to fall over. He has limitations in the joint range of motion in both his arms and legs, and requires some assistance with his daily functioning (he cannot put on his socks and he needs help in toileting). These issues affect every aspect of his daily living. It has been a surprise that he has done so well physically. His disability has been well-managed by the maternal grandmother. She has spent many hours doing physiotherapy exercises with him. She promotes his welfare and pushes him to achieve. CAST agreed that she has done a wonderful job at bringing E. to where he is now, and that she is to credit for her special part in having E. excel physically. He will continue to require her help to deal with his disability on a long-term basis.

[20] J.2: J.2 (10) was described by the Hamilton Children's Aid Society ("Hamilton CAS") worker as normal, content, happy and healthy. Like the other grandchildren, he is in after school programs every day.

[21] N.: N. (7) has significant social and emotional problems, and is a special needs child due to her behavioural problems. In 2010 she was demonstrating concerning behaviours, including pulling her hair, scratching her face, and putting her own feces in her mouth. In May 2011 (she was then 7), she attempted to stab a teaching assistant with scissors and bit an educational assistant. She was also observed pulling down her pants and removing her underwear while at school. There were also concerns of significant speech delay. The maternal grandmother says that N.'s father was schizophrenic and that her mother (the mother, N.C.) is also a mild schizophrenic. N. has participated in the SNAP program. She has Attention Deficit Hyperactivity Disorder (ADHD) and has been put on medication. She has a full-time educational assistant at school. She loves to read, has good reading skills, and has been described as bright. The maternal grandmother has worked collaboratively with the school and children's aid to ensure that her needs are met. She has the support of a special education program. The Hamilton CAS worker's evidence was that N. has mellowed and is calmer than when the Hamilton CAS was first dealing with the family in fall 2010. She does, however, require a lot of attention.

[22] The three grandchildren go to afterschool programs every day. One day a week, they all go to SNAP, and on the other four days they go to programs at the Hamilton Boys and Girls Club from 6 to 8 p.m.

[23] All of the grandchildren have records of absences and lateness for school. The numbers of absences and late arrivals were quite high for all the children.

[24] Apart from the evidence of the maternal grandmother and the Hamilton CAS worker, there was very little information about how the three grandchildren in her care are doing. There was almost no information about their level of achievement at school. No report cards were produced. No information was provided from teachers or other professionals involved with the grandchildren. No information was provided from any of their doctors about their health. As the maternal grandmother refused to sign the consents to allow the Hamilton CAS worker to contact others about the children, the worker did not have much information about how the grandchildren are doing, other than her own observations during her monthly visits at the home.

[25] Although the various grandchildren have been in the maternal grandmother's care for many years (about 13 years for E. and N.3, and about 7 years for J.2 and N.), she does not have legal custody of any of them. CAST attempted to help her to obtain legal custody on several occasions (in 2006, 2007, 2008, and 2009) by assisting her to start the appropriate court cases to get a court order for custody, but she did not do this. In December 2009 she told CAST that she is not interested in this. This is concerning. The mothers of the grandchildren in her care have been unreliable, unpredictable, lacking in stability and often unreachable. There are many circumstances in which a caregiver needs to be able to prove custody (e.g., obtaining medical care, health records, health cards, birth certificates, school registration).

[26] N.3: Although there are only three grandchildren currently in the care of the maternal grandmother, a fourth grandchild N.3 (13), was in her care for many years, from her birth (1998) until very recently (N.3 moved in to live with her mother in summer 2011). N.3 had long-standing behavioural problems (e.g., pulling her hair, scratching her face). While the reasons for these problems are unknown, the maternal grandmother refuses to acknowledge the possibility that these problems are related to the parenting they received.

Maternal Grandmother's History with Child Protection Agencies

[27] The maternal grandmother has a long history involving several child protection agencies, including Peel Children's Aid Society ("Peel CAS"), CAST, and the Catholic Children's Aid Society of Toronto ("CCAS"), and Hamilton CAS. She has involvement as a mother, regarding the care of her own children, and as a grandmother, regarding both her children's care of their children, and her care of her grandchildren.

Maternal Grandmother's History with Child Protection Agencies Regarding Her Children

[28] The maternal grandmother has seven grown children (including a stepson), now ranging in age from 23 to 39. All six of her own children, and her stepson, had involvement with children's aid societies as children, and five were placed in foster care at some point, including one child who was a crown ward.

Admissibility of Evidence of Past Parenting re the Maternal Grandmother

[29] There was a voir dire held at trial about the admissibility of records proffered by CAST under s. 50 C.F.S.A. as evidence of the maternal grandmother's past parenting. The records sought to be admitted were historical records from two children's aid societies, CAST (starting in 1980) and Peel CAS (starting in 1994). The maternal grandmother conceded the relevance of the records, but opposed their admissibility on the basis that the records did not meet the tests of reliability and necessity.

[30] Section 50 C.F.S.A. provides a wide exception to the hearsay rule:

Evidence

Past conduct toward children

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

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

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1999, c. 2, s. 12.

[31] In Catholic Children's Aid Society of Toronto v. J.L., [2003] O.J. No. 1722, para. 40, Jones, J. posed the following questions in determining what historical documents should be admitted:

(1) What is the nature of the evidence? Given the circumstances in which the evidence was created, are there any guarantees or significant indicia of reliability?

(2) What is the purpose for which the evidence is being tendered? To prove current state of affairs or historical backdrop?

(3) What is the importance of the evidence to the issue to be decided? That is, does it go to the very issue to be decided? In that case, the test in The Queen v. Khan would be used.

(4) What limits could be placed on the evidence that would have the effect of buttressing reliability? For example, limiting the admission to first-hand hearsay and discounting second and third-hand hearsay and disregarding opinions.

(5) How extensively were the records used in cross-examination and to what effect?

(6) What effect would the refusal to admit the evidence have on the trial proceedings? Here multiple witnesses would be required to cover the period from 1991 to 1997. Although relevant, would this be a good use of scarce trial time?

[32] Just because the evidence is about past parenting does not mean that it will be admitted. It must be relevant. The probative value must be tested against the possible prejudice. The reliability must be clear. Durham CAS v. R.B., 2005 O.J. No. 3794 (SCJ).

[33] The past parenting evidence must not suffocate current parental conduct. The factors of reliability are: the completeness of the evidence; has it been tested; the age of the information; the extent to which it is supported by direct observation of the parent; are there any guarantees of the reliability; what limits can be put on it, such as limiting second or third hand hearsay. It must be fair and reliable. CAS Waterloo v. C.R., 1994 O.J. No. 2955 (OCJ).

[34] In Catholic Children's Aid Society of Hamilton v. C.R., the court admitted parenting capacity reports with respect to prior children and stated that:

"Neither the fact that the reports were originally created for use in an earlier court proceeding concerning the appellants and another child nor the fact that the authors of the reports have not sworn an affidavit for use on this proceeding is a bar to admissibility. The legislature has expressly created a special evidentiary rule applying to a proceeding under this part of the Child and Family Services Act to permit the admission of such documents."

[35] Section 50 sets out a unique and distinctive procedure. It gives the court a wide discretion to consider any relevant written statements about a person's past conduct towards children.

[36] But the court must still consider the following, set out in Children's Aid Society of Toronto v. CM, CH, PH, 2006, (Toronto, C11241/04), unreported (Ont. Ct.), para. 13:

a) the nature of the evidence;

b) the circumstances in which the evidence was created;

c) the purpose for which it is being tendered; and,

d) any indicia of inherent unreliability.

[37] The records sought to be introduced are kept in the ordinary course of business, and even if it were possible, it would be extraordinarily impractical to call the evidence of so many staff who covered more than 20 years of history with the maternal grandmother. Hearings with respect to children must be timely. It is now a legislated part of the C.F.S.A. scheme to take into account the age of children in the litigation process. It would be very far-reaching and unmanageable to collect the direct evidence of every contact social service professional for the 20 year history of one party. It would also focus too much attention on one aspect of the matter and unduly advantage the children's aid society with too much court time for their position. CAST v. CM, CH, PH, supra, para. 15, 21. The test of necessity for filling these records is met.

[38] Regarding reliability, sufficient guarantees of reliability are illustrated by the mandatory nature of the record-keeping, the mandatory requirements of third party professionals to report concerns to children's aid societies, and the availability of the maternal grandmother to respond to this evidence in her evidence. CAST v. CM, CH, PH, supra, para. 20. The maternal grandmother is a party and will be a witness at the trial, and will have the opportunity to comment on or refute the evidence contained in the records.

[39] The court also considered what would happen in the trial if these records were not admitted. If the records were not admitted, and CAST decided that this evidence was essential to their case, then they would be attempting to call the individuals who had created these records. There is no question that this would be difficult, but assuming it was possible, the court would then have to rely on the memory of all these individual witnesses. There is no doubt that the recordings are a far more reliable historical record than the witnesses' individual memories.

[40] For these reasons, the evidence was admitted. Any limitations with respect to reliability will go to the weight to be given to them.

Details of the Maternal Grandmother's History with Child Protection Agencies Regarding Her Children

[41] These are the details of the evidence about the maternal grandmother's involvement with child protection agencies regarding her own children:

a) M.2: The maternal grandmother's first involvement with a children's aid society was in 1983 and related to her care of her stepson M.2 (born 1972). There were investigations in both 1983 and 1987. The child was not removed from their care and no protection applications were started.

b) K.1: The maternal grandmother's son K.1 (born 1977) was a crown ward, with access. There was an investigation in 1980 (no apprehension and no protection application). K.1 was in care as a crown ward from 1986 to 1993 approximately, and returned home to the maternal grandmother to live when he turned 16. The maternal grandmother did not explain the details of the children's aid involvement other than that she sought the assistance of children's aid, that K.1 was involved in delinquent behaviours and that she agreed with the intervention.

c) N.2: N.2 (born 1980) was the only one of the maternal grandmother's children to not ever be in foster care. N.2 disclosed that her father A. had touched her inappropriately and there was an investigation in 1993, and children's aid did not verify this. The child was not removed from their care and no protection applications were started. N.2 made these disclosures again in January 1994. The maternal grandmother reported this to the family doctor, who contacted the children's aid society. There was an investigation, and children's aid did not verify this. The child was not removed from their care and no protection applications were started. However, the maternal grandmother ejected her husband from her home, and the children's aid society provided voluntary services. In February 1995 the maternal grandmother sought assistance from children's aid regarding N.2's behaviour problems. The child was not removed from her care and no protection applications were started.

d) N.C. and T.: N. (born 1983) and C.2 (known as T., born 1983) had involvement with children's aid in 1995. T. reported to the school that the maternal grandmother hit her with a stick, and N.C. expressed fear. Both girls were apprehended and were in care from 26 October 1995 to 1 May 1996. In 1996 or 1997, T. alleged that the maternal grandmother had pulled her hair and this was reported to children's aid. Both girls were apprehended and were in care for six to nine months, and were then returned to the care of the maternal grandmother.

e) A.2 and J.3: A.2 (born 1986) and J.3 (born 1988) had involvement with children's aid in 1995, when they alleged that N.2, their older sister was abusive to them. Both boys were apprehended and placed in care for three to six months, after which they were returned to the maternal grandmother. In 1996 or 1997 both boys were again apprehended as a result of T.'s allegation that they were pulling her hair. The boys were returned to the maternal grandmother's care a few days later.

[42] This level of involvement with children's aid societies is telling and concerning. But also significant is the maternal grandmother's evidence about her children's involvement with child protection agencies. She gave very little evidence about this. Her evidence about this was vague and unclear. She had to be prompted by the court to provide even the level of detail set out above. Only the most cursory of information was offered, even though requested by the court. There were almost no explanations offered for these situations. There was almost no detail provided regarding the reasons any of the children was in care. It did not seem to be important to her, nor of any lasting significance. It did not appear that she thought it particularly relevant regarding the issue at this trial, regarding either her care of the three grandchildren currently in her care, or regarding her plan to care for J.1.

Maternal Grandmother's History with Child Protection Agencies Regarding Her Grandchildren

[43] When the maternal grandmother's children began having their own children, they, too, were involved with children's aid societies regarding their parenting.

a) The mother (N.C.) has five children, none of whom are in her care. The two oldest J.2 and N. are with the maternal grandmother. The next two C.1 and S., are crown wards and adopted in Alberta. The youngest, J.1, is in foster care and is the subject of this trial; and,

b) T.'s daughters C.3 and R. were apprehended in 2001. C.3 (who is autistic) is in care with Peel CAS. R. is a crown ward and was adopted.

[44] The maternal grandmother has been caring fulltime for her grandchildren continuously for many years, since 1998. All her contact with children's aid societies regarding her grandchildren has been voluntary, that is, there has not been a protection application started regarding her care of any of her grandchildren. Her relationship with these agencies is an interesting one, sometimes co-operative, and sometimes, less so. The workers involved said that they visited her about once per month, the minimum allowed under provincial standards. This is the history of her involvement with children's aid societies about the grandchildren:

2002:

a) The maternal grandmother became the caregiver for her grandchildren N.3 and E. in 1998. In 2002, N.3 (then 4) disclosed to T. that the maternal grandmother's son A.2 (then 16) was touching her. The maternal grandmother called the police, and there was an investigation, which was inconclusive. The maternal grandmother put A.2 out of her house. The grandchildren E. and N.3 were apprehended, and were in care about 3 to 6 months, and were returned to the maternal grandmother.

2004:

b) The maternal grandmother became the caregiver for her grandchildren J.2 and N. in late 2004. Peel CAS had become involved with the mother regarding her care of J.2 and N. in July 2004, due to concerns regarding the mother's parenting abilities and domestic violence. J.2 (then 3) was apprehended from the mother and placed in care. N. (6 months old) had been with the maternal grandmother and remained there. Peel CAS reached a voluntary services agreement with the mother and the maternal grandmother for the children J.2 and N. to be in the care of the maternal grandmother. They have stayed in her care since then. At that time, the maternal grandmother also had the following living with her: her son J.3 (then 16), granddaughter N.3 (then 4), grandson E. (then 4).

2005:

c) In February 2005, CAST began involvement with the maternal grandmother, which continued until 2010. In 2005, Peel CAS also continued to have an open file regarding the maternal grandmother. At this point, the maternal grandmother had four grandchildren in her care: N.3 (then 6), E. (then 6), J.2 (then 3½) and N. (then 9 months).

d) In November 2005, there was a period of time when the mother was living with the maternal grandmother and the children. The school noted that N.3 (then 7) was attending school on a regular basis smelling very strongly of urine. N.3 was urinating herself at school. CAST asked the mother and the maternal grandmother to send extra pairs of underwear to school with N.3. Despite repeated requests, this did not happen for some time, and until there were several requests made about this.

e) In December 2005, CAST learned that the maternal uncle A.2, along with a 50 year old tenant, were alleged to have sexually assaulted N.3 when she was four years old (and A.2 was 16), and was in the care of the maternal grandmother. A.2 was a frequent visitor to the maternal grandmother's home in 2005, and CAST impressed upon the maternal grandmother the need to ensure that he had no unsupervised contact with any child, and she agreed to do this.

f) The maternal uncle K.1 reported to CAST in December 2005 that the maternal grandmother was physically and emotionally abusing N.3 (then 7), and that there was no-one at home to receive E. (then 7, and a special needs child) on his return from school. An investigation determined that E. had been left alone inappropriately, and the maternal grandmother was cautioned about leaving the children unsupervised.

g) The CAST evidence was that the maternal grandmother was very slow to follow through on actions needed to achieve the desired goals.

2006:

h) In 2006 N.3 (then 8) showed behaviours at school whish were unpredictable and difficult (running up and down the hallways, slapping the walls of the office, trying to bite staff who tried to restrain her). N.3 said her behaviour was because she was being teased at school. In 2006, the mother moved out and the maternal grandmother assumed full-time care of J.2 (5) and N. (2). There were problems in the maternal grandmother's home with cockroaches and mice, and the school found a cockroach in E.'s (8) sandwich.

i) In 2006, N. (2) started to exhibit concerning behaviours (e.g., pulling her hair out in clumps, scratching her face). These were behaviours which were similar to those exhibited earlier by N.3. CAST recommended daycare for N., and although the maternal grandmother agreed, this did not happen in either 2006 or 2007.

2007:

j) During 2007, CAST's concerns were about the maternal grandmother's inability to recognize and respond to the grandchildren's need for stimulation and emotional stability, and that two of CAST's basic expectations (that N. be placed in daycare and that the maternal grandmother obtain legal custody of the grandchildren) were not met by the end of 2007.

2008:

k) In March 2008 CAST learned that the maternal grandmother had allowed her son A. to move back into the home. He has mental health issues and is alleged to have behaved inappropriately to N.3 when she was 4. The maternal grandmother accepted full responsibility to ensure he was never left alone unsupervised with any child in the home. He moved out several months later. No disclosures were made by the children.

l) For a time in spring 2008, the maternal grandmother's own mother stayed with her and the grandchildren. In summer 2008, the mother and child C.1 (then about 1½) stayed with the maternal grandmother, as the mother was about to give birth to another child (S.).

m) In fall 2008 the maternal grandmother agreed to place N. in daycare, and after some work, collected the necessary documents to apply for and be approved for subsidy.

2009:

n) In summer 2009, the mother left Ontario with her two children C.1 (2) and S. (1) and moved to Alberta to re-join her abusive partner. The child protection authorities in Alberta removed those two children from her care. The mother left the children in care in Alberta and returned to Toronto, leaving Alberta to consider permanency planning options for the children without input from her. In June 2009, the maternal grandmother told CAST that she wanted to plan for these two grandchildren (C.1 and S.) as well. In fact, she drove out to Alberta in 2009 (with E., J.2 and N., and with T. and her child D.) to take the mother to court there, to try to participate in the child protection case there, and to offer to plan for those children. On another occasion in December 2009 the maternal grandmother went out to Alberta without the mother, taking the train (with E., N.3, J.2 and N.).

o) CAST was not willing to support her in this plan (for C.1 and S.) as they believed the addition of any more children to her home would overload an already vulnerable situation, and that her parenting capacity was already running to the maximum in dealing with the four grandchildren in her care. This unwillingness of CAST to support the maternal grandmother in this plan resulted in a change in the relationship between the maternal grandmother and the CAST in about November 2009, and there was less co-operation by her.

2010:

p) In February 2010 the maternal grandmother decided that she no longer wanted daycare for any of the grandchildren.

q) After J.'s birth in 2010, the maternal grandmother was focused on preparing to present a plan to care for J.1. The maternal grandmother was planning to move cities.

r) In October 2010, N.3 (12) moved to live with her mother N.2.

s) In October 2010, after the family moved to Hamilton, N. (6) was exhibiting concerning behaviour:

• She was pulling her hair again;
• She scratched her face when disciplined;
• She was banging her head;
• She was taking off her shirt;
• She was not wearing underwear;
• She picked up a cigarette butt from the floor and put it in her mouth; and,
• She put a small amount of her own feces in her mouth.

t) The responsibility for this family was transferred to Hamilton CAS in November 2010, as the family was living there in a shelter. The concerns at that time were the maternal grandmother's caregiving skills, the grandchildren's high needs, the children were not attending school, there was a long child protection history, she did not have housing, and N.'s behaviour needed to be addressed.

2011:

u) On 30 May 2011, N. (7) tried to attack a teaching assistant with scissors. N. now requires the following in terms of support:

i. She has the one-to-one support of an educational assistant in her school;

ii. She is in a modified academic program because of her issues;

iii. She is connected to two different services for children with behaviour modification needs;

iv. She has required intensive school planning via meetings and conferences; and,

v. She is on the waiting list a day treatment program.

[45] At times the maternal grandmother signed consents, when asked, to allow child protection workers to get information from other sources, and at times she did not. Recently in 2011, she had withdrawn those consents from the Hamilton CAS. She had not reinstated the consents at the time of the trial, although she had been asked to do so as recently as a few weeks before the trial started.

[46] Although the maternal grandmother has worked voluntarily with several different children's aid societies for many years (for about 13 years) regarding her care of her grandchildren, she has stated that she did not feel that children's aid intervention was needed. There was no acknowledgement from the maternal grandmother that the parenting the children were receiving may have contributed to the children's behaviours.

The Maternal Grandmother's Transience

[47] The maternal grandmother has moved a great deal in the 13 years that her grandchildren have been in her care. From 1998 until April 2011 (when she moved to her present location in Hamilton), she has moved 14 times. She and the children were often living in shelters (on at least five occasions) or even a motel. There is a level of chaos associated with this much transience. This instability has affected the children in many ways, including necessitating changing schools frequently. J.2, for example, attended seven different schools between junior kindergarten and grade 5. In the two years before the trial the maternal grandmother and the grandchildren had moved at least four times, including stays in at least two shelters. The pattern of instability is unchanged.

The Maternal Grandmother's Changing Family Constellation

[48] The family constellation living in the home of the maternal grandmother is constantly changing, with family members moving in and out of the home. The children and grandchildren, and other family members, of the maternal grandmother have moved in and out of her household constantly over a long period of time.

[49] In the last seven years, there have been many changes in the family constellation. Since 2005, her children K.1, N.C. (the mother), T., and A.2 have moved in and out of her home. Her own mother moved in with them for a time. The mother's son C.1 moved with the mother into the maternal grandmother's home. N.3 moved out, returned, and moved out again. At one point, a young mother and her new baby (a friend of the mother, unrelated to the family, and also involved with CAST) moved in to live with the maternal grandmother and her grandchildren.

[50] Even now, her daughter N.2 comes every other week-end with her children N.3 and I.. And her daughter T. comes every other week-end with her two children.

The Parenting Capacity Assessment

[51] Dr. Nitza Perlman did a parenting capacity assessment, on consent, under s. 54 C.F.S.A. Here are some of her findings (from her report dated 13 January 2012 and from her evidence):

a) The maternal grandmother is of normal intelligence, and shows no evidence of psychotic processes or significant psychiatric or personality disorder;

b) she has a tendency to lack insight and a tendency to deny fault, which may affect her ability to provide adequate care to the children. There is no evidence that she assumes any responsibility for the lives her children have led, and no understanding of the effect on her grandchildren of the life she was leading;

c) She is a good person who has done many good things for her grandchildren;

d) She presents as devoted to the grandchildren in her care, and they to her. Her home was tidy and the children were well-looked after and contained;

e) The children attend school and appropriate programs have been found for them. The children will benefit from support at school, structured extra-curricular activities consistent with their specific abilities and potential abilities;

f) Transience is equated with instability. The multiple moves would unsettle any child, including these grandchildren. It would inhibit or adversely affect their ability to form stable relationships and interfere with their social development and ability to benefit from their school environment;

g) in the past, while in her care, her grandchildren experienced significant instability. In the last year (before trial), there was stability in the life of the family;

h) The frequent changes in family constellation would impact the grandchildren in her care. Notions of predictability, structure and clear expectations all suffer when the family constellation changes;

i) she does not assume any reasonability for the chaotic life she and her family experienced. She feels that none of it was her fault;

j) she suffers from a significant arthritic condition. Her health is vulnerable;

k) she is using well the supports provided to her by the shelters and the children's aid society;

l) at present, the grandchildren appear to be adequately cared for. She cares for two children with significant needs, both of whom have been doing well recently. She responded to E.'s needs with devotion and commitment. E. will need encouragement, advocacy and support for the rest of his life. N. has significant social and behavioural needs, and appears to respond well to her supports in her new program. N. in particular needs stability, structure and predictability;

m) She is a single parent with limited external resources;

n) She could benefit from counselling and supervision relating to her needs and the children's needs;

o) this is a high-risk family due to a long history of instability and the high and on-going needs of E. and N., a family that is currently doing well. In the past it was problematic;

p) There are multiple risk factors affecting this family. The effect of multiple risks is greater than the additive effects of the individual risks. The effect is exponential;

q) The family is vulnerable. Dr. Perlman cannot predict her potential capacity as a parent;

r) Looking after three children, two of whom are high-needs children, would be a challenge for a well-resourced family. J.1 may also be a special needs child, who may need much support from his caregiver. Placing another child in the care of the maternal grandmother will demand much of her attention, and will likely increase the risk of failure to meet the children's needs. Placing J. in her care may stretch her abilities beyond capacity; and,

s) Placing a fourth child with her is taking a risk, for J.1 and for the three grandchildren in her care. The choice for J.1 is how much risk is too much.

Disposition

Plans and Options Available at Trial

[52] There were two plans proposed at the trial:

a) CAST's plan is that J.1 be made a crown ward without access for purposes of adoption; and,

b) the maternal grandmother's plan is to have J.1 placed in her care.

[53] These are the options that are available at trial:

a) An order for crown wardship no access of purposes of adoption;

b) An order for crown wardship with access;

c) An order placing the child in the care of the maternal grandmother, with or without CAST supervision; or,

d) An order placing the child in the care of the maternal grandmother, under s. 57.1 CFSA.

The Plans for the Child

The Maternal Grandmother's Plan

[54] The maternal grandmother lives in a subsidized three bedroom home in Hamilton, for which she pays $105 per month. She supports herself and the three grandchildren with her with Ontario Disability Support Program (ODSP), Ontario Works, and the child tax benefits. She has lived in Hamilton since fall 2010, and in this home since April 2011.

[55] The maternal grandmother completed grade 11 and regrets not completing high school. She would like to return to school and attend a business college.

[56] N.3 (13) is part of the family, visits with the maternal grandmother and stays at her home on week-ends, along with her own mother N.2 and her two year old brother I. The maternal grandmother's evidence was that she would never refuse N.3 and that she could come back to live with her at anytime. T. and her two children also visit with the maternal grandmother every other week-end.

[57] Although the mother has lived with the maternal grandmother from time-to-time, and even now comes to visit at the maternal grandmother's home every other week-end, the plan of the maternal grandmother does not propose that the mother have unsupervised contact with J.1.

[58] The maternal grandmother does not have good feelings about children's aid nor about foster care, as she believes that her own children were hurt by their experience in foster care. Both the maternal grandmother and T. gave evidence that T. ran away from foster care at 12, was raped when living on the street, and had her first child (E.) at 13. The dates of birth provided, however, show that he was born when she was 14.

[59] The maternal grandmother is alone in offering to plan for J.1, that is, she does not have a support network. None of her large, extended family is a support to her in caring for the grandchildren. In fact, she continues to be the support network for all of her children and grandchildren. Her children have, in the past, relied on her to support them in times of need and she has given that support willingly, even to the extent of major sacrifices herself (such as delaying work and education, which she clearly longs for), in order to raise four of her grandchildren. She was clear that she would not refuse to help them in the future if they needed her.

[60] The maternal grandmother acknowledged that she had moved a great deal, but says that she is now in a very affordable and suitable home, from which she does not plan to move, and that this new stability is a fundamental strength of her plan for J.1.

[61] Other than the information provided above, the maternal grandmother did not seem to be able to articulate details of her plan for her care of J.1, even when questioned about it by her own lawyer. She seemed to think that everything will just work out okay.

Disposition Legal Principles

[62] Once a finding is made that the child is child in need of protection, the court must determine what order for his care is in his best interests.

[63] Section 57(1) of the C.F.S.A. sets out the types of orders available to the court after a child is found to be in need of protection:

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

Supervision order

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

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 or a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[64] The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out recently by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

1. Determine whether the disposition that is in the child's best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57)

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

[65] Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. The mother had none of her previous four children in her care at the time J.1 was born. Most recently two of her children (C.1 and S.) had been made crown wards in Alberta and had been adopted. CAST claimed crown wardship no access in the original protection application issued shortly after J.1's birth.

[66] Section 57(3) of the C.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. The less disruptive alternative considered by the court in this case is, in fact, the plan of the maternal grandmother, the only plan being offered for the care of J.1.

[67] Section 57(4) of the C.F.S.A. requires the court to look at community placements, including family members, before deciding to place a child in care. The plan of the maternal grandmother is the only plan the court is considering at trial. CAST has considered the plan of the maternal grandmother and does not support the plan for the reasons set out elsewhere in this decision.

[68] Section 57(1) is limited by section 70 of the C.F.S.A., which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, (which time limit applies to both children in this case), unless the time is extended as provided in section 70(4) of the C.F.S.A. J.1 has been in care for a total of about 22 months at trial. He is well beyond the prescribed time limits permitted for him to remain in foster care with no permanent placement. It is not in the best interests of J.1 to delay his permanent placement any longer. A further order for society wardship is not available for J.1. The only options now available for him are to be placed in the care of the maternal grandmother (or someone else's care), or a crown wardship order.

[69] In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child's best interests are set out in s. 37(3) of the C.F.S.A.:

Best interests of child

37. (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

a) The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

b) The child's physical, mental and emotional level of development.

c) The child's cultural background.

d) The religious faith, if any, in which the child is being raised.

e) The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

f) 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.

g) The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

h) 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.

i) The child's views and wishes, if they can be reasonably ascertained.

j) The effects on the child of delay in the disposition of the case.

k) 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.

l) The degree of risk, if any, that justified the finding that the child is in need of protection.

m) Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37(3); 2006, c. 5, s. 6(3).

[70] There is no presumption favouring a child's family of origin at the disposition stage of the case: Children's Aid Society of Peel v. M.J.W., [1995] O.J. 1308, para. 48. The only relevance of the biological relationship at this stage is in the best interests test s. 37(3)(f) C.F.S.A.

[71] A crown wardship order 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, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997), 23 R.F.L. (4th) 79 (Ont. Ct. [Gen. Div., Div. Ct.]).

[72] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

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

[74] An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a crown ward, and it changes forever the life of the parent. No-one in the family is untouched by this order, and no-one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. This is a decision that is the most serious and important decision any court can make.

Crown Wardship Analysis

The Maternal Grandmother's Strengths

[75] The maternal grandmother is an impressive woman. She is strong and confident. She is a warm and loving individual. She has a generous spirit. She undoubtedly loves the grandchildren. She is very committed to and attached to all of her grandchildren. She is very caring, and has tried her best to provide a home to her grandchildren. She tends to want to open her arms and her home to anyone who wants to come in.

[76] The maternal grandmother's daughters have had difficulties raising their children and have relied on her to help them, and she has.

[77] While there have been fluctuating concerns about the maternal grandmother's care of the grandchildren, she has been a consistent force in the life of her grandchildren.

[78] The maternal grandmother has worked voluntarily with different children's aid societies over a long period of time (since 1998 when her grandchildren were first in her care), without the necessity of court order.

[79] The maternal grandmother wants to return to school and improve her situation, so she can get a job and be a better support for her grandchildren. She has been planning this and discussing this with the CAST social worker for several years (from about 2009).

J.1

[80] J.1 has been in the same foster home since he came into care 22 months ago. He is a happy, engaging and affectionate child. J.1 was described by the foster mother as very high energy, active, and always busy. He runs everywhere, likes to climb furniture, and needs to be supervised at all times.

[81] J.1 recently began to attend daycare three days a week. Developmentally he is meeting his milestones. The foster mother and the children's services worker gave evidence that he is, however, behind in his speech. His comprehension (receptive language) is mildly (about six months) delayed. His ability to say words (expressive language) is moderately (about six to nine months) delayed. Speech therapy classes were recommended, and were set to begin in February 2012. He will require weekly individualized parent-child sessions with a speech and language pathologist, and constant speech enhancement by his caregiver to incorporate the speech exercises into his daily routines.

[82] J.1 will require a caregiver who can give him a lot of attention, and attention when he needs it.

Examination of the Maternal Grandmother's Plan

[83] The maternal grandmother is a single parent with no external supports. Her children are not a source of emotional or caregiving support to her. In fact, she has been and continues to be a source of emotional support and caregiving support for them. The dependence her extended family has on her presents a risk for the stability of J.1, were he to be placed in her care, particularly as she has been clear that she would not refuse to help her family members in need.

[84] The family in the maternal grandmother's home currently has high needs. This includes the regular needs for a family with three children at different ages and stages, combined with the high special needs of two of the children. Although she has worked hard to care for the three grandchildren in her care, she does not have a solid understanding or full appreciation about the various needs of the three grandchildren. She has no legal status as their caregiver, a problem she does not acknowledge or seem to understand. No doubt, her life as their caregiver is harder without a custody order, particularly given the number of moves, school transfers and new doctors they have gone through.

[85] The maternal grandmother describes E. as increasingly less dependent as time passes. While that may be so, E. will continue to be dependent on others for help with some very basic aspects of his daily routine. The one constant in his life is the maternal grandmother and will likely continue to be for the foreseeable future.

[86] Even at 7, N. is a special needs child because of her behavioural problems. Despite N. attempting to stab her teaching assistant, the maternal grandmother denied that she was a child who was physically aggressive.

[87] The maternal grandmother has a recent history of not being able to get the grandchildren to school regularly and on time.

[88] The maternal grandmother's many responsibilities and the challenges brought upon her, some by her own children, test and put a great strain on her parenting abilities. This results in a chaotic, unstable and unpredictable atmosphere that often borders on neglect.

[89] The family has a long history, over two generations, of mental health issues, multiple teen pregnancies, and behavioural problems.

[90] The number of moves the maternal grandmother's family has been through, and the constant changes in family constellation, has also produced chaos and instability for the grandchildren living there. There were behavioural problems and emotional issues for both N.3 and N., who lived all their lives with her.

[91] It is significant the maternal grandmother's children have not fared well as parents. For thirteen years she has been the primary caregiver for grandchildren that her daughters were unable to parent. And on three separate additional occasions, she has offered to care for additional grandchildren (T.'s children C.3 and R.; the mother's children C.1 and S.; and then J.1) that her children could not care for.

[92] The historical concerns about the maternal grandmother and her children and grandchildren have centred on sexual abuse, predators within the family, transience, instability, lack of consistent stimulation for the children, and her ability to successfully cope with the competing demands involved in caring for multiple children, then multiple grandchildren, including grandchildren with special needs and high needs.

[93] CAST and other children's aid authorities have worked with limited success with the maternal grandmother to alleviate some of these concerns and as a result, the well-being of the grandchildren currently in her care has fluctuated. Although the situation was not ideal, it was felt, on balance, that it was in their best interests to remain with her and with each other, who they saw as their nuclear family.

[94] J.1 has never lived with members of his family of origin. He has had very limited contact with them, and has had no contact with the maternal grandmother since August 2010. He doesn't know the maternal grandmother and she doesn't know him. He really has no relationship with the members of his family of origin at this point.

[95] There are multiple risks present here. The effect of multiple risks is exponential, that is, greater than the simple addition of the individual effects. The ability of the family to manage decreases as the risk factors increase.

[96] Any added care-giving responsibilities could result in the maternal grandmother spreading her already limited skills too thinly, and destabilizing a somewhat precarious situation, and this would come at the expense of E., J.2 and N., and also at J.1's expense, should he be placed there.

Evaluating the Options

[97] The challenge for the court is choosing the proper disposition option for J.1. The central issue regarding disposition is the tension between the desire for certainty and finality for J.1 (which would lean towards crown wardship, no access and adoption), and the desire to see J.1 placed with a known suitable caregiver, placed with siblings, and where the court has the ability to control the placement (all of which would happen if the children were placed with the maternal grandmother, under either a supervision order or a s. 57.1 C.F.S.A. order). As well, the court is required to consider such a plan, from a family or community member, under s. 57(4) C.F.S.A.

[98] Should J. become a crown ward without access for the purposes of adoption, the court is not involved in the adoption placement. CAST has the legal right to decide where crown wards without access are placed for adoption. The court is not involved in this decision. The parents are not involved in this decision. CAST has the discretion to choose the family they want to choose in the child's best interests. Should the court choose crown wardship without access, the court gives up any ability to control or even influence the adoption placement.

[99] Crown wardship has the added advantage of certainty and finality, which the other options do not offer.

[100] It is tempting to consider a placement with the maternal grandmother, subject to a supervision order or a s. 57.1 CFSA order. If the maternal grandmother did not already have three grandchildren with her, or if the grandchildren were not high needs, this option might be suitable. But that is not the plan that has been offered.

[101] The maternal grandmother's plan is very risky for J.1. The issue is not whether the maternal grandmother is doing a good job with the three grandchildren in her care. The issue is what the risk is for J.1 of that placement, and is it an acceptable risk at this point.

[102] It is not in J.1's best interest, in these circumstances, for the court to choose a disposition that is in any way uncertain or that includes the level of risk involved in the plan of the maternal grandmother. The only option that meets these criteria is crown wardship.

[103] As the court is not considering a placement with the maternal grandmother it is not necessary to review the various options (with supervision order, without supervision order, or s. 57.1 C.F.S.A. order) and determine which of the options is more suitable. None of those options is in J.1's best interests. The risk for J.1 of this placement, no matter what the legal format, is too high.

Access

Access Legal Principles

[104] The test for access to crown wards is set out in s. 59(2.1) of the C.F.S.A.:

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child's future opportunities for adoption.

[105] The onus to rebut the presumption against access to a crown ward is on person seeking access: Children's Aid Society of Toronto v. D.P., 2005 CarswellOnt 4579, [2005] W.D.F.L. 4375, [2005] W.D.F.L. 4373, 19 R.F.L. (6th) 267, 202 O.A.C. 7, 93 A.C.W.S. (3d) 853, [2005] O.J. No. 4075 (Ont. C.A.).

[106] The onus is on the person seeking access to a crown ward to prove on a balance of probabilities that:

(1) the relationship between the person and the child is meaningful to the child;

(2) the relationship between the person and the child is beneficial to the child; and,

(3) access will not impair the child's future opportunities for a permanent or stable placement.

Children's Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.).

[107] The person seeking access has the onus of establishing all three portions of the test in section 59(2.1) of the C.F.S.A. This is a very difficult test to meet.

[108] The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., 2004 CarswellOnt 2800, [2004] W.D.F.L. 510, 4 R.F.L. (6th) 245, [2004] O.T.C. 634, [2004] O.J. No. 2872 (Ont. Sup. Ct.), para. 45-47:

What is a "beneficial and meaningful" relationship in clause 59(2)(a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[109] Section 59(2) establishes a threshold test which must be met before the court goes on to consider whether an access order is, in fact, in the best interests of the child. The determination about access for a crown ward does not start with an examination of the child's best interests. Rather best interests is the final piece for consideration, after consideration of the criteria in s. 59(2) C.F.S.A.: Children's Aid Society of Ottawa-Carleton v. T.C., [2002] O.J. No. 3711, [2002] O.T.C. 738, 117 A.C.W.S. (3d) 258 (Ont. Sup. Ct.), para 7.

Access Analysis

[110] Where there is an order for crown wardship the onus is on the person planning for the child to establish that their access is meaningful and beneficial to the child, and that it would not impede a permanent plan for this child.

Access to J.1

[111] The mother was the sole parent attending access to J.1 from May to September 2010. The father has had no contact with him.

[112] From May to September 2010, other family members from the mother's family attended some of the access visits, including the maternal grandmother, J.1's siblings J.2 and N., and the maternal aunt T.

[113] The maternal grandmother had been attending the mother's visits, and in May 2010, CAST asked that the mother come alone to every other visit, so that they could observe the mother's parenting and interactions with J.1. The maternal grandmother was not then planning for J.1, and was not a party in this case. The maternal grandmother's last visit with J.1 was on 27 August 2010.

[114] The mother stopped attending visits in September 2010. Eventually in November 2010, CAST suspended her visits until she met with a worker, which she did not do.

[115] On 11 May 2011, after the maternal grandmother was added as party (on consent), she brought a motion for access to J.1. At that point, J.1 had been in care for a year already. Brownstone, J. refused the request for access and dismissed the motion.

[116] The maternal grandmother's last visit with J.1 was in August 2010. She may love J.1, and she may want a relationship with him, but in these circumstances, it is not possible for her to argue that she has a relationship with J.1 that is beneficial and meaningful to the child.

[117] Given J.'s age, and his adoptability, the maternal grandmother cannot establish that access would not impede a permanent adoption plan for him. He is adoptable. He is in a foster placement with foster parents who are not presenting a plan for his adoption. He will need to be moved to another placement following this trial.

[118] The maternal grandmother has not met the onus upon her to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the CFSA. She cannot meet the onus in s. 59(2.1) CFSA regarding access to the child. Her claim for access to J.1 is dismissed. There shall be an order for no access to J.1.

Conclusion and Orders

[119] The statutory findings and the protection findings regarding J.1 were made on consent by order of Sherr, J. on 12 August 2011.

[120] J.1 shall be a crown ward, and there will be no access, in order that he may be adopted.

Released: 27 February 2012 Justice Carole Curtis