WARNING

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

45.— (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.

45.— (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 Information

Court File No.: C51951/10

Date: 2012-06-11

Ontario Court of Justice

Toronto North Family Court

In the Matter of an Amended Protection Application Respecting K.P., Born on […], 2010, Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Parties

Between:

Catholic Children's Aid Society of Toronto

Robin Vogl, for the Applicant

Applicant

- and -

M.M. and J.P.

Respondents

Lance Carey Talbot, for the respondent, M.M.

The respondent, J.P., acting in person

Hearing and Decision

Heard: May 28-31, June 1st and 4th, 2012

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought an amended protection application seeking a finding that K.P. (the child), born on […], 2010, is a child in need of protection pursuant to sub-clauses 37(2)(b)(i) and (ii) of the Child and Family Services Act (the Act). At trial they also asked the court to make a finding that the child is in need of protection pursuant to clause 37(2)(g) of the Act. The society seeks a disposition order that the child be made a crown ward, without access, for the purpose of adoption.

[2] The respondents (the parents), M.M. (the mother) and J.P. (the father) are the child's parents. They ask that the society's application be dismissed. In the alternative, if the child is found to be in need of protection, they ask that she be placed with them, subject to society supervision. In the further alternative, the father asks that the child be placed with him, subject to society supervision. In the event that the child is made a crown ward, both parents ask that the court make an order for access.

[3] The child has been in the care of the society since she was apprehended by them on September 2, 2010. The parents currently have supervised access to the child each Sunday, for five hours.

[4] The child has two siblings, V.P. (age 14) and J.P. (age 12), (the siblings). M.M. is their mother. The siblings lived with the parents and the child until August 29, 2010, when they went to live with their father (P.P.). The siblings have lived with P.P., subject to society supervision since then. Their status will be reviewed by this court in September of 2012. The mother has had limited contact with the siblings since they left her home.

[5] The central protection issue in this case was the level of the parents' use of alcohol and the impact this has had and might have in the future on their parenting of the child. The respondents do not believe that their alcohol use justified or continues to justify society intervention, and to the extent that it does, they believe that this protection concern can be adequately addressed through terms of supervision. The society contends that the parents' use of alcohol placed all of their children at considerable risk of harm, and the inability of the parents to adequately address their alcohol issues since the child was apprehended, make the risk of returning her to their care far too high and contrary to her best interests.

[6] The primary issues for me to decide are:

a) Is the child in need of protection pursuant to the Act?

b) If so, what disposition order is in her best interests?

c) If the court makes an order that the child should be a crown ward, should an access order be made?

[7] The trial of these issues was heard over six days. On consent of the parties, this trial was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in determining if the child was in need of protection.

Part Two – Factual History

2.1 The Mother's Background

[8] The mother is 36 years old. She was born and raised in Toronto. She said that she is of Acadian-Irish heritage on her mother's side and part Scottish and part Ojibway on her father's side. She said that she is not a status native, but is in the process of applying for this.

[9] The mother described a very troubled childhood. She said that her father was an alcoholic who physically and emotionally abused both her and her mother. She no longer has a relationship with him. She also no longer has a relationship with her mother. She expressed bitterness that her mother permitted her father to abuse her. Further she felt that her mother was not supportive when she was raped by a stranger at age 14 and had betrayed her by making false allegations about her parenting to the society.

[10] The mother testified that she turned to drugs and alcohol and had significant behavioural problems when she was a teenager. She said that her mother sent her to a rehabilitation clinic in Minnesota when she was about sixteen years old.

[11] The mother testified that her life improved once she returned to Toronto. She completed a general education degree and then worked at Native Child and Family Services doing street outreach for youth coming to the city, talking to schools and arranging youth programs. From there, the mother went to work at another social service program (Youthlink), where she did similar work and also prepared reports for funding. The mother left this program and went back to school at the Adult City Learning Centre. This was interrupted when she became pregnant with her first child. The mother left school (this was 1997) and moved in with P.P.

[12] The mother stated that she stopped using alcohol from age 17-22, before she began drinking socially again.

[13] The mother lived with P.P. until they separated in 2000. They had the two children together. The mother testified that she did not drink alcohol when she was pregnant or nursing the children and only drank socially at other times. The mother described a troubled relationship with P.P. She felt that he was emotionally abusive and controlling. She said that he abused prescription drugs.

[14] The mother also described a fractious relationship with P.P. after the separation. She issued an application in this court for custody and child support in 2005. On January 3, 2006, Justice James Nevins awarded the mother sole custody of the siblings and child support. P.P. was granted access, with restrictions as to his drug use. Further, any access over four hours had to be supervised. In 2008, P.P. was charged with assaulting the mother and in 2009, he entered into a peace bond with respect to this charge.

[15] The mother testified that parenting V.P. was a struggle. She said that he was colicky as a baby. He had significant behavioural problems. He was aggressive (particularly to J.P.) and was frequently suspended from school. He exhibited sexualized behavior. The mother took V.P. to various treatment agencies, with no apparent success.

[16] The mother stated that she met the father on July 1, 2006. They moved in together in December of 2006. They have continuously resided together except for a two month separation shortly after the child was apprehended. They are not married.

2.2 The Father's Background

[17] The father is 40 years old. He has not married and has no children other than the child.

[18] The father also described a troubled childhood. He was raised by his mother, who was often ill. He said that he was in the care of the society from ages 5-7, after his mother was severely beaten by a boyfriend. He described himself as a troubled teenager with bad influences. As a young adult, he was convicted of criminal offences, including break and enter, theft and driving a vehicle while impaired. The father testified that he moved to British Columbia for ten years to get away from the bad influences in Toronto. In British Columbia the father was regularly employed building industrial air-handling units.

[19] The father moved back to Toronto to care for his mother who died shortly after his return. The father went to school at George Brown College. He has worked steadily as a sheet metal worker for the past nine years (at times as a supervisor) and said that he has been active in his union. He said that he has earned up to $100,000 per annum, and currently earns between $65,000-70,000 per annum.

[20] The father had no involvement with the criminal justice system again until 2010.

2.3 Events Leading Up to the Apprehension

[21] In the siblings' child protection case the parties entered into two statements of agreed facts. I will be treating the admissions in those statements as findings of facts, as I received no evidence that dissuaded me from drawing this conclusion. The first statement of agreed facts, dated July 27, 2011, contained many of the facts leading up to the apprehension of the child, including:

a) The society had three previous file openings with the family relating to allegations of drug and alcohol abuse by the parents, domestic violence and behavior issues with V.P.

b) The society opened a file in May of 2010 due to similar allegations and the file remained open. J.P. made allegations of sexualized behavior against V.P. that he denied. The respondents and P.P. were told not to leave the children alone without supervision.

c) The siblings both reported that the mother often became intoxicated while in a care-giving role for them. The mother denied this allegation.

d) On August 29, 2010, P.P. called the police to report that he had been receiving calls from the siblings stating that the mother was drunk and hitting them. The police attended the home and found the mother to be drunk and uncooperative. The police asked P.P. to take the siblings. They left the child with the father. The siblings reported that the mother had started to drink in the afternoon with their step-father and friends.

e) On September 2, 2010, a police officer and society worker attended the parents' home. The mother did not wish to provide any information. The parents' home had several safety risks and the mother became increasingly belligerent when these were discussed. The mother contacted a friend who attended and agreed to take the child and then changed her mind when advised that a kinship assessment would subsequently take place.

f) Due to the allegations and the mother's lack of cooperation, as well as the perceived risk of harm to the child, the child was apprehended.

g) The society worker and police met with the siblings separately. As a result of the interviews, assault charges were laid against the parents with respect to their treatment of the siblings. The parents denied the allegations.

h) The parents were prohibited from contacting the siblings as terms of their release.

i) On September 14, 2010, the society commenced a protection application, seeking to find the siblings in need of protection, and placing them with their father, P.P., subject to society supervision.

j) The siblings were in need of protection under sub-clause 37(2)(a)(i) of the Act, as they had suffered physical harm, inflicted by the person having charge of them, or caused by that person's failure to care for, provide for, supervise or protect them.

k) The siblings were in need of protection under sub-clause 37(2)(a)(ii) of the Act, as they had suffered physical harm, inflicted by the person having charge of them or caused by that person's pattern of neglect in caring for, providing for, supervision or protecting them.

l) The siblings were in need of protection under sub-clause 37(2)(b)(i) of the Act, as they were likely to suffer physical harm inflicted by the person having charge of them or caused by that person's failure to care for, supervise or protect them adequately.

m) The siblings were in need of protection under sub-clause 37(2)(b)(ii) of the Act, as they were likely to suffer physical harm inflicted by the person having charge of them or caused by that person's pattern of neglect in caring for, providing for, supervising or protecting them.

n) It was in the best interests of the siblings to be placed with P.P., for a period of six months, subject to terms of society supervision, with access to the mother to be at the discretion of the society, in consultation with the parents and in consideration of the siblings' wishes, and in accordance with any conditions of bail imposed upon the mother.

[22] I heard testimony from the two police officers who attended the parents' home on August 29, 2010. I found their evidence to be consistent and credible. P.C. Gill testified that the mother was intoxicated, argumentative, yelling, swearing and un-cooperative. He said that she refused to listen to what he had to say. He found the father to be cooperative. He said that the father tried to act as a peacemaker. He did not believe that the father was intoxicated.

[23] P.C. Penwell confirmed that the mother was intoxicated. She described the father as less intoxicated. She felt that the rooms in the home were messy. She spoke to the children. The society asked to have these statements introduced for the truth of their contents, and in the alternative for the purpose of establishing the state of mind of the children. The parents opposed the admission of the statements. A voir dire was conducted and I admitted the following statements of V.P., but only for the purpose of showing his state of mind:

a) He is scared of his mom and didn't know what to do.

b) He was crying.

c) He does not feel safe with his mother.

[24] The mother admitted that she was probably intoxicated that evening (although not to the extent described by the police) and that she was angry with the police officers. She expressed frustration that they were not listening to her about her concerns with P.P, and that they were blindly accepting his version of events. The mother testified that the children had been acting "obnoxiously" that evening and had been sent to bed early. She said that V.P. was upset about not having access with P.P., had no fear of her and had lied to the police.

[25] The siblings went to live with P.P. that evening. The child remained with the parents, as the police felt that the father could look after her. The police notified the society about the incident.

[26] P.C. Osborne testified that he interviewed the siblings on September 1, 2010. The society asked to admit the videotape of these interviews for the truth of their contents. In the alternative they asked to admit statements of the siblings to show their state of mind. The parents opposed the introduction of all of the statements. Another voir dire was held. In an oral ruling, I decided that the evidence could not be admitted for the truth of the contents or as evidence of past parenting under subsection 50(1) of the Act and excluded the introduction of the videotape. I also found that some of the children's statements that the society sought to introduce did not fit within the state of mind hearsay exception. I admitted the following statements of V.P. to show his state of mind at that time:

a) I was like- I was hurt mostly on the inside.

b) I don't really feel safe there anymore.

[27] P.C. Osborne and the society's intake worker, Ayleen Gutierrez attended at the family home on September 2, 2010. Ms. Gutierrez testified that the mother was uncooperative. She said that the mother admitted to her that she was drinking on August 29, 2010. The mother told her that the siblings were upset because they couldn't see their father. She denied any allegations of abuse. Ms. Gutierrez felt that the home was messy with some safety concerns.

[28] Ms. Gutierrez interviewed the siblings. The society attempted to introduce their statements for the truth of their contents or in the alternative to show the state of mind of the siblings. The admission of any of these statements was opposed by the parents. A voir dire was held. Most of the statements the society sought to introduce were excluded in an oral ruling. The following statements of J.P. were admitted to show her state of mind:

a) I don't like to be with mom a lot of the time.

b) I don't like J.P. (the father).

[29] I also admitted (to show the state of mind of the children) Ms. Guttierez's observation that both children were fearful on the day of her interview, based on their demeanour and statements made to her during her interviews with them.

[30] The child was apprehended that day. P.C. Osborne advised the parents that they would be charged with assault. As they were understandably upset by the apprehension, he told them that they could report to the police station the next morning to process their arrest.

[31] The parents did not attend at the police station the following morning. The mother testified that she overslept. The police attended at the parents' home and arrested them. The mother was charged with one count of assaulting V.P. and the father was charged with one count of assaulting J.P.

[32] The parents were released on their own recognizance. Important terms of their release were:

a) They could have no contact with the siblings and;

b) They could not consume alcohol or drugs.

2.4 Events After the Apprehension

[33] The society issued their protection application concerning the child on September 7, 2010. On that day the court made a temporary, without prejudice order, placing the child in the care of the society, with access to the parents to be supervised by the society, a minimum of six hours per week.

[34] On September 21, 2010, the siblings were placed in the temporary care of their father, subject to society supervision. The mother didn't visit with J.P. again until January of 2012 and with V.P. again until April of 2012.

[35] The parties separated for about two months at this time. They subsequently reconciled and have lived together since that time.

[36] The parents' access with the child went very well. Both of the parents were observed to be loving and appropriate with the child. They were responsive and attuned to her needs. By October of 2010 the society permitted the visits to be loosely supervised and by November of 2010, the visits were extended to 9 hours per week in the community. At the end of November of 2010, the society approved a friend of the parents to supervise the visits. The visits were increased to overnights at the supervisor's home. These visits continued until February of 2011, when the supervisor was no longer available, due to illness. The reports on the visits were all positive.

[37] The society was pleased in the fall of 2010 with the progress of the parents. They advised the father that they would likely return the child if the parents produced negative hair-strand drug and alcohol tests and agreed to have no access to the siblings.

[38] The parents attended for hair-strand testing at the Motherisk program in November of 2010. Both of the parents tested in the range of "chronic alcohol abuser". They also tested in the low end of the moderate range for cannabis use.

[39] The society's family service worker, Yogesh Patel deposed that he asked the father to obtain treatment and told him that he would need a clear hair analysis for at least a three month period. The father told Mr. Patel that he did not believe that he needed treatment, but that he would attend for treatment, if required by the society.

[40] Mr. Patel subsequently provided the father with a referral to a program for an in-depth substance abuse assessment. The father testified that he did not trust the society and would not attend a program suggested by them. Instead he went to the Canterbury Clinic, another substance abuse program. On February 3, 2011, he began individual counseling and supervised urine screens.

[41] Mr. Patel deposed that the mother was resistant to treatment and she said to him, "This is ridiculous. I am starting my work and you are asking me to do treatment". The mother did not deny saying this. Mr. Patel provided the mother with the same referral that he had provided to the father for an in-depth substance abuse assessment. The mother did not follow through with this referral.

[42] The mother testified that she also attended at the Canterbury clinic early in 2011, but quickly left, as she did not feel comfortable with the counselor.

[43] A meeting was held at the society's offices on February 8, 2011 with the parents. The father was told that since his hair analysis was very high, the society would not recommend urine screens until they received clean hair analysis results.

[44] The parents were able to find another suitable supervisor (H.L.) for their access. They had overnight access to the child at the home of H.L. from March of 2011 until May of 2011. This ended because H.L. spent her summer in Northern Ontario and was no longer available to provide supervision. Visits were moved back to the society offices and the parents looked (unsuccessfully) for another supervisor. Access took place at the society offices until November of 2011.

[45] The mother testified that she checked herself into "detox" on May 23, 2011 and the following Monday began the 21-day, day-treatment program at Jane Tweed (a well-known and well-regarded substance abuse treatment centre in Toronto). The mother's counselor from this program testified that the mother actively participated in and completed this program. She also met with the mother for counseling after the completion of the day-treatment program either weekly or bi-weekly until the end of 2011, when the counselor left her job at Jane Tweed. The counselor described the mother as open and engaged in the counseling process. The mother also has participated in a Continuing Care program that the counselor recommended, run through the Jane Tweed program.

[46] The mother also participated in the Aboriginal Day Withdrawal Program run through the Toronto East General Hospital. This program is geared to persons with aboriginal heritage. The mother states that she saw a counselor from this program weekly until recently.

[47] The mother testified that she was let go from her job as a waitress when she finished the 21-day program at Jane Tweed in June of 2011. She has not worked since that time and has been on social assistance.

[48] Mr. Patel testified that he wanted the father to take another hair-strand test in February of 2011, but that the father delayed in growing the necessary hair to conduct the test. In June of 2011 he was advised that the father had not attended for counseling at the Canterbury Clinic since April 26, 2011, despite having been advised by his counselor to attend the clinic twice weekly. The father confirmed this and stated that he could not attend the visits due to work commitments.

[49] The father was provided with another referral for hair-testing on June 21, 2011. He attended at Motherisk for testing on July 7, 2011, but his hair was not yet long enough for alcohol testing. He tested in the low medium range again for cannabis use.

[50] On July 21, 2011, the protection application regarding the siblings was resolved as set out in clauses (j) – (n) of paragraph 21 above. The siblings were placed with P.P. for six months, subject to society supervision.

[51] On August 25, 2011, the society amended this protection application to seek a disposition of crown wardship, without access for the child. The parents both filed Answers and Plans of Care. Each sought placement of the child with them.

[52] The father was provided with another referral for hair-testing on August 16, 2011. He delayed until November 25, 2011 to go for the testing. His test scores remained in the range of a "chronic alcohol abuser".

[53] The mother was asked by the society in June of 2011 to obtain a hair-strand test, but did not feel that she was ready. She next attended for testing on November 25, 2011. She tested again in the range of "chronic alcohol abuser".

[54] After receiving these test results the society brought a motion to reduce the parents' access to the child. This motion was heard on December 22, 2011 by Justice Marvin Zuker. The mother and father put forward a position that a former babysitter would move into their home as a nanny and supervise weekend visits. The court favoured this position and ordered temporary alternate weekend access, fully supervised by the nanny. After court, the society agreed with the parents that the access could take place each weekend.

[55] This access arrangement quickly broke down. The parents reported that the nanny was smoking in the home and having loud gatherings. They were having several arguments with her. The police became involved in this dispute. The parents did not feel that the child was safe in the nanny's care and wanted her to leave the home.

[56] On January 24, 2012, the court order was changed for access to be in the discretion of the society. H.L. subsequently agreed to supervise access again. This was approved by the society and visits have taken place every Sunday from 10 a.m. until 3 p.m., supervised by her. The access is reportedly going very well.

[57] On January 8, 2012, the father resolved his criminal charges with respect to J.P. The charges were withdrawn and he entered into a peace bond pursuant to section 810 of the Criminal Code of Canada. Terms of his peace bond include:

a) To have no contact with the siblings except with their written revocable consent, to be filed with P.P;

b) To abstain from the possession and consumption of alcohol or non-prescription drugs; and

c) Not to physically discipline anyone under the age of 16 years.

[58] The mother admitted that she and the father went out that night with friends to celebrate, and each consumed several drinks.

[59] On January 17, 2012, the mother resolved her criminal charges on similar terms as the father.

[60] The mother resumed having access with J.P. in January of 2012. J.P. is now coming on the visits with the child most Sundays. Other arrangements are being negotiated for the summer, as J.P. will be spending weekends at her father's trailer. The visits have gone well and J.P. and the child have been observed to interact very well with each other.

[61] The mother has had two visits with V.P. at the society's office since April of 2012. The mother testified that it is her understanding that V.P. does not want to continue the visits.

[62] On March 12, 2012, on status review, a further order was made for the siblings' placement with P.P. for six months, subject to society supervision. In a statement of agreed facts signed by the parties, it was agreed that J.P. wanted to spend 50% of her time with both of her parents and that her lawyer added the provision, "When it is confirmed that the mother and step-father are alcohol free."

[63] V.P. is not doing well. He is currently residing in Youthdale (a youth mental health treatment centre). V.P. has chosen to have no access with the child.

[64] In February of 2012, the mother and father both attended for a third hair-strand test. Both tested again in the chronic alcohol abuser range (although the father's testing had shown a modest reduction in alcohol consumption). The mother also tested positive again in the low moderate range for cannabis use.

2.5 Alcohol and Drug Use by the Parents

2.5.1 Evidence of Joey Gareri

[65] The level of alcohol use by the parents and its impact on their parenting was the most contentious issue in this case.

[66] The court heard evidence from Joey Gareri, from the Motherisk laboratory. On consent, Mr. Gareri, was qualified as an expert in the subject of hair-testing and urine testing for drug and alcohol usage, the interpretation of the results found and the reliability of such testing.

[67] Mr. Gareri interpreted the hair-strand testing of the parents and urine testing of the father. I found his evidence to be clear, persuasive and the best evidence of the level of alcohol and drug use by the parents during the periods tested.

[68] Mr. Gareri testified that Motherisk conducts Fatty Acid Ethyl Esters (FAEE) and Ethyl Glucuronide (EtG) testing on hair. He deposed that FAEE and EtG are alcohol by-products formed in the human body after consumption of alcohol and that either are valid in the assessment of frequent, heavy alcohol use. In the Motherisk laboratory, all positive FAEE results were subject to secondary EtG testing as of February of 2011.

[69] Mr. Gareri testified that the cut-off for positive alcohol testing in the FAEE test is .50 ng/mg (nanogram per milligram). A test above this reading is consistent with excessive alcohol consumption over several months, of a minimum of 5-6 drinks per day. A drink would be a bottle of beer, a glass of wine or 1.5 ounces of liquor. The test is designed in this fashion he said, so that any social drinker would test negative for alcohol consumption. He stated that once the testing score is over the .50 cut-off line, that the score is not necessarily proportional to the alcohol usage. However, the score allows him to measure change in the level of alcohol use over different testing periods. Also, the higher the test result is over .50 ng/mg, the less likely the alcohol consumption will be at the minimum of 5-6 drinks per day. Mr. Gareri deposed that the test cannot tell whether the alcohol is consumed daily. It only tests the intensity of consumption over the testing period – so someone may not drink for a few days, but then "binge" on the weekend.

[70] Mr. Gareri said that the cut-off for a positive test for the EtG test is 30 pg/mg (pictograms per milligram), to distinguish frequent, excessive alcohol consumption from moderate use or abstinence. Any result over .30 pg/mg is considered consistent with a minimum average alcohol consumption of approximately 5-6 drinks per day. Mr. Gareri stated that the level of the scoring under this test is more proportional to the level of alcohol usage.

[71] Mr. Gareri testified that there is a 15-20% variability rate in these tests. The tests also do not measure behavior – everyone acts differently according to their level of tolerance.

[72] Mr. Gareri also interpreted the drug tests conducted on the parents. At times the parents tested at the .20 ng/mg range for cannabis use. He said that the medium range for use is .19-.70 ng/mg. and that a drug score of .20 represents frequent use of marijuana. He testified that using marijuana less than 3-4 times each week would likely produce a negative result. He said that this result could also occur if the person was frequently exposed to this substance in their environment.

[73] The test scores of the father were as follows:

1. November 25, 2010 - FAEE (alcohol)- 1.846 ng/mg (covering the period from October- November of 2010).

2. July 7, 2011 - Cannabinoids – Positive - .20 ng/mg.

3. November 19, 2011 – Etg (alcohol) - 145 pg/mg (covering the period of early August 2011 – early November of 2011).

4. February 17, 2012 - FAEE (alcohol) - 4.274 ng/mg and Etg (alcohol) - 73 pg/mg (covering the period of November of 2011- early February of 2012).

[74] Mr. Gareri testified that the results are clear evidence of frequent, excessive alcohol use by the father during the testing period and that he falls within the category of "chronic alcohol abuser". He said that the testing shows a continuum of alcohol use during the testing periods. He stated that the last test shows a modest decrease in the level of average alcohol consumption when compared to the prior three month period, however the level of alcohol use remains in the range of frequent, excessive, alcohol consumption. He testified that the EtG levels shown by the test of November 25, 2011, are consistent with someone having 10-15 drinks each day (although the precise amount, or when it was consumed cannot be provided). The FAEE results in the final test were much higher than when the father was first tested. Mr. Gareri testified that the scores show that the father is a chronic alcohol user- that his scores are well beyond the threshold of chronic heavy use.

[75] Mr. Gareri also interpreted four drug urine screens provided by the father. These tests covered December of 2011 and early January of 2012. Three of the tests were positive for cannabis and one test was negative. Mr. Gareri said that this could be consistent with occasional marijuana usage.

[76] The test scores of the mother were as follows:

1. November 25, 2010 - FAEE (alcohol) – 5.824 ng/mg (covering the period of Mid-May to Mid-November of 2010) and Cannabinoids – Positive - .20 ng/mg.

2. November 19, 2011 – EtG (alcohol) – 150 pg/mg.

3. February 17, 2012 – FAEE (alcohol) -5.184 ng/mg – EtG(alcohol)- 148 pg/mg (covering the period of November to early February of 2012) and Cannabinoids – Positive- .20 ng/mg.

[77] Mr. Gareri testified that these results show regular, excessive, alcohol consumption where the mother is repeatedly drinking to intoxication. He said that there has been no significant change in her alcohol use during the testing periods. The EtG levels show that she could be drinking over 10 drinks per day – the FAEE results show a minimum consumption of 5-6 drinks each day, with the high level of the results indicating that she is likely consuming more than that. He said that the mother's test scores are well beyond the threshold of chronic heavy alcohol use and that she is consistently in the range of "chronic alcohol abuser".

[78] Mr. Gareri testified that the mother's drug test results are consistent with frequent marijuana use.

2.5.2 Evidence of Substance Use by the Parents

[79] Both parents testified that they only drank socially before the apprehension of the child - usually at social gatherings and barbecues. They both claimed that they significantly increased their alcohol use after the apprehension. The mother testified that she was traumatized by the apprehension and drank to numb her pain, or perhaps out of boredom. The father testified that he too turned to heavier drinking to deal with the trauma of having his child stolen from him by the society. Both claimed to have reduced their alcohol consumption this year. The father described their drinking as "a bit problematic". The mother described it as "maybe problematic".

[80] The mother testified that she only drinks beer. She said that she did not drink daily prior to the apprehension, but would average drinking 2-5 beers each day, and on weekends when the children weren't with her, up to 6 beers. She said that she did most of her drinking after the children went to bed.

[81] Mr. Patel testified that the mother told her that she drank 4-5 beers daily before the child was apprehended, but only after the children went to bed.

[82] The mother's counselor from Jane Tweed reported that the mother told her that she drank 3-6 beers, but only 1-3 times per week prior to the apprehension.

[83] The mother agreed at trial that she would sometimes drink to the point of "not being sober" prior to the apprehension, but never when in a care-giving role.

[84] The mother said at one point that she did not drink during the day, but later acknowledged that she used to take J.P., after J.P. finished school, to the restaurant where she worked and would have a beer waiting for V.P. to arrive from his school.

[85] The mother couldn't remember the amount that she drank on the night of August 29, 2010, but conceded that she was likely intoxicated. She denied that her aggressive behaviour towards the police that night had anything to do with her intoxication.

[86] The mother acknowledged that V.P.'s counselors had discussed with her in the past her son's concerns about her drinking, but that she had stated to them that she did not have a problem. She testified angrily, "I'm not going to let my son dictate what I am going to do."

[87] The mother also agreed that the society opened a file in 2008 because V.P. expressed a concern about her level of drinking and that she agreed with the society to only drink after the children went to bed.

[88] The mother emphatically denied that her alcohol use affected her parenting. She was not prepared to accept the fact that her alcohol use had any impact on V.P.'s behavioural issues.

[89] The mother did not believe that her children were really concerned about her drinking or afraid of her. She felt that it was really P.P. who was concerned about her drinking and that V.P. likely intimidated his sister into expressing concern about the parents' drinking. There was no credible evidence to support her beliefs.

[90] The mother said that after the apprehension she had good days and bad days and would drink up to six beers in a day. At another point, she said maybe sometimes more than six beers.

[91] The mother's counselor from Jane Tweed testified that she met with the mother until the end of 2011. She said that the mother self-reported that she was only drinking socially. In November of 2011, the mother reported to her that she was down to 1-2 drinks per day and fully abstaining from alcohol consumption for one and even two weeks at a time. Based on her self-reporting, the counselor was under the impression that the mother had been doing well. She was very surprised to learn at court about the hair-strand testing results and confirmed that they were not at all consistent with the self-reporting of the mother.

[92] The father testified that prior to the apprehension that he would drink 3-5 beers each day, perhaps a couple more on the weekends. In a case note dated December 21, 2010, the father told Mr.Patel that he would drink four or five beers each day when he got home, then two or three more once the children went to bed.

[93] The father said that he drank more after the apprehension. He estimated drinking 8 beers each day. He said he could drink up to 10 beers, but that he only did this a couple of times. He blamed the society for his increased consumption. He expressed that it was no wonder that he drank more and later stated that if the society had done things properly, he wouldn't have drank as much.

[94] Both of the parents admitted that they were aware they were in breach of their recognizance of bail and peace bond by drinking alcohol and using marijuana. Neither of them seemed to consider this significant. The father said: "I don't think anything was horribly done that affected the community".

[95] The police were involved with one more incident with the parents in February of 2012. The parents were continuing to argue with the nanny. They wanted her to leave their home. The nanny called the police making allegations against the parents. The police attended at the home. In the police occurrence report filed with the court the police noted that the father did not smell of alcohol but that his eyes were red and appeared glazed and his speech seemed slightly slurred. He became confrontational and argumentative with the police and wouldn't let them speak with him. They also wrote that the mother became argumentative with them and started shouting at them. They noted that she also appeared to be under the influence of something, no alcohol could be smelled, but her speech was slurred and her eyes were glazed. The police cautioned both the mother and the father about their behaviour.

[96] I did not find the evidence of the parents to be reliable on the issues of their alcohol and drug use and its impact on their parenting. They reported different levels of alcohol use at different times. I find that they were minimizing their usage of both alcohol and marijuana. Where their evidence conflicted with the scientific evidence or the evidence of professionals (society workers or the police) I did not accept their evidence.

Part Three – Finding in Need of Protection

[97] The society seeks a finding that the child is in need of protection pursuant to sub-clauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act. These clauses read as follows:

Child in need of protection

37(2) A child is in need of protection where,

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

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

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[98] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See: Children's Aid Society of Hamilton- Wentworth v. K.R. and C.W. [2001] O.J. No. 5754 (Superior Court- Family); Brant Children's Aid Society v. J.A.T., 2005 ONCJ 302, paragraphs 13-26.

[99] The flexible approach is particularly relevant in this case. While I find that there were sufficient grounds to make a finding that the child was in need of protection at the time of the child's apprehension on the grounds pleaded by the society, the evidence clearly shows that the level of alcohol consumption of the parents since the apprehension has continually placed the child at a significant risk of harm if she was to be placed in their care.

[100] It was surprising that the parents contested that the child was in need of protection since they had already consented that the siblings were in need of protection not only under clause 37(2)(b) of the Act, but also under the very serious grounds in clause 37(2)(a) of the Act. The evidentiary basis for a protection finding was very similar for all of the children. Arguably the protection risk for this child was the greatest, due to her age and vulnerability.

[101] The court also has discretion to make a finding that a child is in need of protection pursuant to a clause of the Act not pleaded, if justified by the evidence and if the parent had prior disclosure of the relevant evidence, is not caught by surprise and has had a full opportunity to test this evidence. Durham Children's Aid Society v. R.S. and J.M. [2005] O.J. No. 570 (SCJ) and Children's Aid Society of Hamilton-Wentworth v. K.R. [2001] O.J. No. 5754 (SCJ-Family Court), where Justice Czutrin stated:

"While it is better practice, and the sections are set out in the forms to plead the subsections relied on, the court cannot be prohibited from finding a child in need of protection if the appropriate box has not been checked off, especially where the facts support such a conclusion. Events in a child's life are ever evolving and not frozen to events that existed at the beginning of the court process. It is open for me to find a child in need of protection where the evidence supports the facts that fall under any subsection of s.37 where the evidence and facts have been established, and as in this case, cannot come as a surprise."

[102] This principle is relevant in this case. The society did not plead that the child was in need of protection under clause 37(2)(g) of the Act, but in submissions asked the court to make a finding in need of protection under this clause. I find that the parents had notice of all relevant evidence relating to this protection ground, were not caught by surprise by the evidence and had the full opportunity to test it.

[103] The evidence is overwhelming that the child is in need of protection for the following reasons:

a) The evidence establishes that the mother and the father are chronic alcohol abusers.

b) The level of alcohol use by the parents has continually placed the child at risk of neglect, physical and emotional harm since the apprehension.

c) While their amount of alcohol usage might have increased after the child's apprehension, I find it more probable than not that the parents were chronic alcohol abusers prior to the apprehension. I base this finding on the following factors:

1. The mother's first alcohol test covered the period up until the time of the apprehension (May-November of 2010). It showed very high levels of alcohol usage and that she was a chronic alcohol abuser. The levels set out in the testing show that she was consuming alcohol far in excess of the amount she reported and that she was frequently drinking alcohol to the point of intoxication.

2. The mother had been contacted in the past by V.P.'s counselor and the society about concerns V.P. had expressed about her alcohol usage.

3. The siblings (as set out in the first statement of agreed facts filed) reported that the mother was often intoxicated while caring for them and drinking on the day they left her care.

4. The mother was intoxicated on the day the siblings left her care.

5. V.P. expressed his fear of his mother to both the police and the society and stated that he was scared to live in the parents' home. Both siblings appeared frightened according to the society worker, Ayleen Gutierrez when she interviewed them and J.P. said that she didn't like the father and didn't like to be with her mother a lot of the time.

6. The parents demonstrated no insight into their alcohol use and its impact on their parenting. I find that they significantly understated their alcohol use.

d) I find that the alcohol abuse of the parents impaired their parenting and placed the child at risk of physical and emotional harm. I find it significant that:

1. V.P. expressed his fear of the mother to professionals and didn't feel safe in the home and J.P. also appeared frightened and said that she didn't like the father.

2. The siblings didn't want to continue living with the parents and made statements to the police that led to criminal charges against them.

3. The siblings were telling the police and the society that the mother was parenting them while intoxicated.

4. The mother acknowledged that when she was upset she could be "loud and scary". It is reasonable to assume that she acted more frequently in this manner when intoxicated. This was likely frightening to the children.

5. The mother showed impaired judgment, becoming very aggressive with the police on August 29, 2010.

6. Both the mother and the father appeared to be drinking, showed impaired judgment and were inappropriately aggressive with the police when they came to investigate the complaint of the nanny in February of 2012. Combined with the incident on August 29, 2010, this informs the court that the parents both show impaired judgment and aggression while drinking. It is not a difficult inference to make that the siblings did not feel safe when this happened and that this was a factor in their wish to leave the parents' home.

e) The level of alcohol use of the parents creates the risks that:

1. The child could be exposed to her parents' impairment. This could be confusing and frightening for the child. Children (and especially children this age) need stable, consistent, predictable and secure caregivers in order to feel safe and develop in a healthy manner. This creates a significant risk of emotional harm.

2. The parents might become emotionally unavailable and neglectful to the child when they become impaired. This could mean that the child's physical needs would not be adequately addressed. This could also be confusing and frightening for the child and adversely impact on her sense of security and development. This creates significant risks of both physical and emotional harm.

3. The evidence shows that the parents can become aggressive when drinking. This creates a real risk that the child will be exposed to an unhealthy level of conflict which can be frightening and confusing for her, again adversely impacting on her sense of security and development. This creates a significant risk of emotional harm.

4. The parents will become too impaired to be attentive to her safety or be attuned to immediate health needs. A child this age requires vigilant attention. This creates a significant risk of physical harm.

[104] I find that the child is in need of protection pursuant to sub-clauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act.

Part Four – Disposition

4.1 Legal Considerations

[105] The court's disposition options in this case are set out in subsection 57(1) of the Act. This subsection reads as follows:

Order where child 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 or an order under section 57.1, 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.

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 65.2 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 for 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. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).

[106] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:

1. Determine whether the disposition that is in the child's best interests is 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.

3. If a society wardship order is made determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests (section 58.)

[107] Subsection 57(2) of the Act requires that I ask the parties what efforts the society or another agency or person made to assist the child before intervention under Part III of the Act.

[108] Subsection 57(3) of the Act requires that I 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 I determine that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.

[109] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care.

[110] In determining the appropriate disposition, I must decide what is in the child's best interests. I have considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

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:

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

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

3. The child's cultural background.

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

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

6. The child's relationships by blood or through an adoption order.

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

8. 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.

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

10. The effects on the child of delay in the disposition of the case.

11. 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.

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

13. Any other relevant circumstance.

[111] 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, and 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 (SCJ- Family Branch).

[112] In determining the best interests of the child, I 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.).

[113] 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. Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. C.J.).

4.2 Services Provided

[114] The following services have been provided for the family by the society:

a) The society arranged and paid for hair-strand testing for the parents.

b) The society made referrals to the parents for an in-depth substance abuse assessment. The parents chose not to use this service.

c) The society assigned a family service worker to work with the parents and a children's service worker to work with the child.

d) The society arranged for access to a take place at a different society site requested by the parents.

e) The society has arranged a fetal alcohol assessment for the child to take place on July 31, 2012.

[115] The society was limited in the services that they could provide to the parents due to the parents' mistrust of them. The parents made it clear to the court that they preferred to find their own services and asked that communication with the society only take place in writing. They both (particularly the father) expressed their deep mistrust of the society at trial.

4.3 Community or Family Plans

[116] The society explored the following community or family plans:

a) On September 2, 2010, the mother asked if her friend (C.J) could take the child. Ayleen Gutierrez testified that when she explained the society's kinship process to her, C.J. decided not to proceed. C.J. did not testify at the trial.

b) On September 2, 2010, the father suggested a close family friend (B.G.) as a possible caregiver for the child. Ms. Guttierez deposed that she met with B.G. on September 3, 2010. She said that B.G. had contacted the Children's Aid Society of Durham for support in parenting her 12 year old granddaughter. B.G. described her circumstances as stressed, including financial stress. Ms. Gutierrez deposed that there was a strong smell of smoke in the home despite the fact that she was told that B.G.'s granddaughter had asthma. A decision was made by the society not to pursue this plan. This plan was never presented again. B.G. did not testify at the trial.

c) The parents then proposed a friend (R.C.) as a possible caregiver and the society asked the Hastings Children's Aid Society (where R.C. lived) to initiate a kinship assessment. This process was started. The mother then said that her plan was to live with R.C. and the child. In January of 2011, the mother advised the society that she was no longer interested in this plan, and on consent, the assessment of R.C. was discontinued. This plan was never proposed again. R.C. did not testify at the trial.

d) The society asked the mother's sister (the sister) in May of 2012 if she would consider adopting the child. The sister informed the society that she wasn't in a position to do this. The sister testified at the trial.

[117] No alternate family or community plan was presented to the court at trial.

4.4 The Plans of Care

[118] The society's plan is to make the child a crown ward without access for the purpose of adoption. It was not contested that the child is highly adoptable. The society is opposed to any order of access, as it might impair the adoption pool for the child.

[119] The society has no plan to promote post-adoption contact between the parents and the child, or the siblings and the child.

[120] The child has lived with the same foster parent since she was apprehended. The foster parent is not able to adopt the child and the child will have to be moved, if adopted.

[121] The primary plan of the parents is to have the child placed in their joint care subject to terms of society supervision. They have recently moved into new accommodation which is appropriate for the child. The mother plans to stay at home with the child for the first two months, but then wishes to return to work, as she feels that it would give her a sense of purpose – she enjoys working. The father would continue to work and financially support the family. The parents are exploring child-care providers in their neighbourhood. The mother plans to continue with her alcohol counseling. She wants to work on the Harm Reduction Model. This means that she will not abstain from drinking, but rather that she will reduce her usage and make arrangements to ensure that the child is safe when she wants to drink. The father said that he is already using this model and hopes to continue with it.

[122] Both of the parents said that they would comply with any supervision term ordered by the court, including terms that would require that they not drink while caring for the child, or that only one parent could be drinking at a time and the other had to be sober while caring for the child. The parents are willing to continue drug and alcohol testing. The mother said that she wants to continue with her alcohol counseling. The father said that he is willing to obtain alcohol counseling, if it is a term of supervision. The parents said that they are willing to cooperate with the society and agree to announced and unannounced visits.

[123] The mother called her sister and H.L. as witnesses. Both stated that they would be willing to provide substantial support to the parents.

[124] The sister is a social worker employed by a child protection agency in the Greater Toronto Area. She testified that the mother had shut her out of her life after the child was apprehended, but that they have begun to reconnect since June of 2011. The sister is married with two young children of her own. She stated that she didn't want the child to be adopted. She has offered that the parents move into her home (this is not the parents' plan) and said that the parents can stay with her on weekends. She said that she is prepared to offer parenting relief and financial assistance if the parents ask for it. She is prepared to drop-in on the parents once each week and send email reports to the society on a regular basis.

[125] H.L. has been an excellent support for the parents. She is the mother's godmother. She works for the Government of Ontario and is a stable influence on the parents. She and her family supervised the overnight visits from March-May in 2011 and currently supervise the Sunday visits. H.L. is prepared to continue to supervise the family one day on the weekends, or even overnight, if required. She is also prepared to drop-in unannounced on the parents once or twice a week (she lives within walking distance of them). She is prepared to provide respite care for the child, if requested by the parents. H.L. said that her husband and adult daughter assist her with the supervision and would continue to do so.

[126] The father provided an alternate plan that the child be placed in his sole care. He provided no details about how this plan would work and who would look after the child while he was working. He offered no safety plan to address how the child would be protected if he was drinking. This plan was not viable.

4.5 The Child

[127] There was unanimous agreement that the child is healthy, happy and meeting all of her developmental milestones.

[128] The mother described the child as clean and organized. She credited the foster mother with providing good care for the child.

[129] The mother said that she drank before she knew that she was pregnant. The child is showing no obvious adverse signs from being exposed to alcohol in-utero, but a fetal alcohol assessment has been arranged for the child by the society on July 31, 2012, as a precaution.

[130] The child began seeing her sister, J.P. in May of 2011 at the society office. This now takes place on Sundays when the child sees the mother. The witnesses all said that the sisters enjoy each other's company and are excited to see each other. The child does not know her brother, V.P.

4.6 Positive Aspects of the Parents' Plan

[131] I make the following positive findings about the parents and their plan of care:

a) The child would have the opportunity of living with her biological parents.

b) The child would have the opportunity of having relationships with her own extended family members and community members she is familiar with (such as H.L. and her family).

c) The child would continue to have her relationship with her sister. This relationship would likely be compromised, if not terminated, if the child is adopted.

d) The parents love the child very much.

e) The access visits with the child are very positive, whether they have been in the society office or outside the society office. The parents are observed to be affectionate and gentle with the child. They are attuned to her needs and provide an organized and safe environment with the child on visits. The child also is affectionate with her parents and excited to see them.

f) The parents were able to maintain positive access when it was extended to full weekends, supervised.

g) The parents have maintained their sobriety during the access visits.

h) The parents have exhibited responsibility by attending all access visits and coming on time. On the rare times that they have been late, they have had the courtesy to call and inform the society about this.

i) The mother is able to connect with some supports. The mother developed a positive relationship with her counselor at the Jane Tweed Centre and with her counselor through the Aboriginal Day Treatment program. H.L. spoke glowingly of the parents and has been a constant support for them.

j) The mother was able to follow some directions of her counselor at Jane Tweed. She was able to organize herself to come to meetings on time. She followed her suggestion to participate in the Aboriginal Day Treatment program and submit to the hair-strand tests, despite her reservations.

k) The parents have been respectful and cooperative with the foster parent. I view it as a positive factor reflecting on the mother that she had good things to say about the foster mother's parenting of the child.

l) The parents showed an ability to put the child's interests ahead of their own when they called the society and asked them to stop the overnight visits because they felt the child would not be safe in the care of the nanny.

m) The mother showed the initiative to obtain services to assist her with V.P. This demonstrates some ability to work with service providers.

n) The parents have a number of skills to teach the child. They both enjoyed doing arts and crafts with their children. The mother is skilled in soapstone carving. The father is very skilled with his hands and in woodworking.

o) The father has been able to maintain his employment despite his alcohol use. He said, and I accept, that his job is potentially dangerous and his employer has a zero tolerance policy with respect to substance use on the job.

p) The parents presented as intelligent and articulate. They were respectful of the court process at all times despite the difficult circumstances in which they found themselves.

4.7 Limitations of the Parents' Plan

4.7.1 Need for Permanency Planning

[132] The child has now been in care for 21 months. This is far beyond the statutory time limit set out in subsection 70(1) of the Act. This is not an exceptional case where the time limit could be extended under subsection 70(4) of the Act. The child needs to have her future determined now. This court has the choice of returning the child to her parents under a supervision order or making her a crown ward.

[133] Despite the positive aspects of the parents' plan the evidence was clear that it is in the child's best interests to be made a crown ward.

4.7.2 The Mother's Drinking and Lack of Insight

[134] The overwhelming protection concern remains the level of the parents' alcohol usage and the risk this poses to the child.

[135] The society set out one clear expectation of the parents. If they could provide negative hair-strand tests, the child would likely be returned home. The society did not require the parents to stop drinking, only to reduce their drinking to a level where they could safely parent the child.

[136] Despite their numerous complaints about how the society communicated with them, the parents acknowledged that they knew this was the society's consistent expectation of them since October of 2010.

[137] The protection risks relating to the parents' level of alcohol consumption have already been set out above (clause e of paragraph 103).

[138] Despite this clear expectation and having the last 21 months to meet it, the parents have been unwilling or unable to comply with it, even with their future opportunity to parent the child at stake. The evidence shows that they have made virtually no gains with respect to their alcohol abuse since the child was apprehended.

[139] The mother is to be credited with seeking treatment. However, it became apparent that she has not been honest about her alcohol use with her counselor. Her treatment is based on self-reporting and her worker was very surprised by the hair-test results. She wasn't aware of the criminal court's prohibition on drinking or drug use as a term of her release. The efficacy of treatment is compromised when the patient is dishonest.

[140] The mother continued to minimize her alcohol problems at trial. She testified about her belief that the Harm Reduction Model has worked for her, despite all evidence being to the contrary. I find that she under-stated her alcohol usage. She wasn't willing to even consider that her alcohol abuse contributed to her parenting difficulties with V.P., or the breakdown of her relationship with the siblings. She was not willing to consider that they might have actually been afraid of her. She could not appreciate the impact that her being intoxicated could have had on her children.

[141] At no time did the mother express any personal responsibility for the rupture of her relationship with the siblings. She blamed at times, her ex-partner, her son, the attitude of the police officers and the society.

[142] The mother's lack of insight into her personal responsibility informs the court that she is a poor candidate to change her lifestyle and choices.

[143] The mother testified that she believed that she could reduce her alcohol use if her child is returned to her. This is speculative and it would be irresponsible to experiment with the child to try and heal the mother.

[144] The reasons for the mother's alcohol abuse appear to be deep-rooted. Otherwise, she would have met the society's expectation to have the child returned to her. She had alcohol abuse issues as a teenager and told her counselor at Jane Tweed that she has been drinking daily since she was 30. She showed some insight when she testified that she drinks to numb her pain. It was heartbreaking listening to the difficult life that the mother has had and the abuse she suffered that no child should have to endure. She painfully recounted how she has been emotionally abandoned by her own parents. It is not a great leap to infer that this is at the root of her issues. She likely needs a service provider (such as a skilled psychotherapist) with far greater expertise than a drug counselor to adequately address these complex issues.

[145] The passage of time has shown that it is unlikely that the mother will adequately address her alcohol abuse issues in the foreseeable future.

4.7.3 The Father's Drinking and Lack of Insight

[146] The father appears to be an even poorer candidate for change. It appears that he has never believed that his alcohol consumption has been a problem. He only went to the Canterbury Clinic because the society required him to get treatment to have the child returned. He told his counselor that he did not have a problem. The counselor advised him that he should attend twice each week for counseling. Instead, he was inconsistent with his weekly attendance and says he stopped going entirely by October of 2011.

[147] The father demonstrated no insight into his issues nor accepted any responsibility for his circumstances. He totally externalized the blame. He believes that the society stole his child. His evidence inordinately focused on his grievances with the society and their poor communication. He related how he insisted on meetings with supervisors, branch managers and even took them to the Child and Family Services Review Board. He blamed his increased drinking on the society –it was never his responsibility. He claimed that he was never told what to do, but he acknowledged that the clear expectation to reduce his drinking was consistently communicated to him by the society.

[148] The father blamed the society, P.P. and the siblings for the child's apprehension. He produced a letter that he wrote to the society on January 10, 2011. He was willing to prevent the child from having a relationship with her siblings due to his anger with them. He writes:

Finally with respect to all of the children involved I do not feel they have the right to visit the child until they tell the truth. I feel I am being severely punished for the lies they have told.

[149] The father casually dismissed the parents' breach of their recognizance of bail and peace bond. In his world view, their actions have been acceptable because they are causing no harm to society by drinking and using marijuana in contravention of the court orders. The fact that the father would go out drinking the same night that he signed the peace bond promising the court not to, shows that he has limited regard for court orders, unless it is a term that he is willing to go along with.

[150] The father also believed that having the child returned to him would motivate him to reduce his drinking. The possibility of the child being returned to him was unfortunately insufficient motivation to reduce his alcohol consumption to an acceptable level.

[151] I find that it is highly unlikely that the father will adequately address his alcohol abuse issue in the foreseeable future.

4.7.4 Conflict

[152] It was interesting to observe the level of conflict in the parents' lives. The mother has very strained relationships with her family. The conflict with the police in both 2010 and 2012 has been noted. The parents had intense conflict with the nanny in 2012. It was consistent with the parents' version of other disputes that this was the entire fault of the nanny. The parents have had significant conflict, at times, with the society. The mother did not like the counselor at the Canterbury Clinic. She said that she was fired by an arrogant employer. It became apparent that the parents view themselves as victims. Perhaps this makes it more palatable to deal with the obvious pain that they are in. Without insight into their role in these conflicts, it will be difficult for them to make the necessary changes to move forward and address their problems in a meaningful way.

[153] I also heard that the parents separated for two months after the separation. The mother appeared to minimize this, not initially categorizing it as a separation. The father described their current relationship as good, but that it could be greater (later he said it could be better). He said that after the apprehension they played the blame game with each other, but eventually decided it (the reason for the apprehension of the child) was not their doing. The father stated his hope that the return of the child would improve their relationship. I was left with doubt about the long-term stability of this relationship, but wish to emphasize that this factor had little weight in my decision.

4.7.5 Attitude Towards the Siblings

[154] I also found troubling the mother's lack of a relationship with the siblings after the apprehension. I heard no evidence that she took any steps to change her bail terms to be able to see them, even supervised by the society. This is routinely done in cases of this nature. She seemed to willingly withdraw from their lives. Her anger at her son was palatable. She felt that he was always a difficult child from the time he was a baby. She did not take any active steps to see him until recently. The court is left to wonder what impact her absence has had on the siblings- as the mother was not physically or emotionally available to them for at least 15 months after the apprehension

[155] V.P. has recently made allegations that he was sexually abused by a former partner of the mother's. This man has been charged with twelve counts of sexual assault. The mother was not prepared to believe that there was any possibility that her son had been sexually assaulted by this person. She stated that her son and the ex-boyfriend hated each other and she never left them alone. However, she also said that the ex-boyfriend had told her that V.P. was saying terrible things to him when they were alone.

[156] The mother's lack of emotional availability to the siblings since the apprehension (as her parents were emotionally unavailable to her) likely offers a glimpse into this child's future if returned to her care.

4.7.6 Marijuana Use

[157] The level of the parents' marijuana use is not at the level, where in isolation, it would concern me about their parenting. It is further evidence though of their tendency to minimize their reporting of substance use, self-medicate and to disregard court orders.

4.7.7 Level of Cooperation

[158] The parents promised that they would comply with terms of supervision set by the court if the child was returned to them. They could not adequately explain why they would comply with court orders now, when they haven't always done so in the past. They casually disregarded court orders about drinking and drug usage, even when their future with the child was at stake. They have little respect for the society, and in particular Mr. Patel. The mother acknowledged that she can be rude with him. They delayed in 2011 (particularly the father) in obtaining hair-strand testing. They delayed in telling Mr. Patel that they had recently moved. The father would not sign a consent for Mr. Patel to speak to his family doctor in January of 2012 because he did not want the society to know about his medical affairs. Their mistrust of the society is so high that they require communication with them to be in writing. The father stated: "I will not do anything to put me under their thumb". I have little confidence that the parents would consistently comply with terms of supervision. This is important as compliance with stringent supervision terms would be absolutely necessary if the court decided to place the child with the parents.

4.7.8 Inadequacy of the Safety Plan

[159] The mother's sister gave emotional testimony about her love of her sister, her sister's positive qualities and her desire to help her. She was clearly reaching out to her sister during her testimony.

[160] Sadly, it was apparent that the mother chose to shut her sister out of her life and has a troubled relationship with her.

[161] The mother and her sister both testified that the mother would not talk with the sister after the child was apprehended. The sister implored the mother to talk to her, but she refused. They had limited contact in 2011, seeing each other only two times and only two or three times in 2012.

[162] The sister was clearly unaware of the level of the protection concern. When asked if her sister had a drinking problem, she answered, "If she thinks she has a problem, she needs to fix it". The mother also never discussed her hair-strand test results with her sister. The sister was very surprised by the test results of both parents at trial. She also had little knowledge of the substance abuse treatment of either parent. She was unaware of the drinking or drug prohibitions in the mother's recognizance of bail and peace bond. The mother really put her sister in a difficult spot at trial by not disclosing this important information to her. This was indicative of the frailty of their relationship.

[163] The mother expressed a fair bit of anger towards her sister in her evidence. She felt that she was always the one blamed as a child, even when it was her sister who caused the trouble. She was angry that her sister had told her mother not to believe her when the police came to the home the night that she was raped at age 14. The mother expressed that she felt despite all of her material things, her house, her job, her family and her children, that her sister has always been jealous of her and has always tried to undermine her to her mother. This troubled dynamic might explain why this plan was only proposed near the end of this case, when it would have seemed logical to have the sister, who works in the child protection field, involved in her plan a long time ago.

[164] I believe that the sister's intention to help the mother is sincere. However, I was left with little confidence that the relationship could be sustained. The parents are both proud and independent and don't want to be told what to do. The sister recognized that having the parents live in her home could be problematic because there could be conflict over parenting styles. It was a significant consideration in her decision not to put forward a plan to adopt the child. It also makes a plan where the parents reside with her unrealistic.

[165] I was very impressed by H.L.'s commitment to the parents. However, she is working full-time and cannot provide a sufficient level of supervision to adequately ameliorate the risk concerns to the child.

[166] Even in the best-case scenario, where the relationship with the mother's sister is maintained, the level of supervision proposed by the parents is inadequate. It still leaves huge portions of time where the parents, who plan to continue to drink, will be responsible for the care of the child. The parents haven't made the necessary changes in their alcohol consumption to justify removing the requirement for the supervision of their access at this time.

[167] I also find unpalatable the parents' suggestion that one parent can drink and there will always be one sober parent available to care for the child. The parents' proposal does not address the risks to the child of being exposed to an intoxicated parent and that parent's impaired behaviour. The parents argue that they successfully used the Harm Reduction model to successfully parent the children prior to the apprehension – that together they were able to parent responsibly. The evidence indicates otherwise. This is why the children are not in their care. The history of the parents has shown that they do not have the personal discipline to create such bright lines in their drinking pattern. The child is young and vulnerable. Unlike her siblings she does not have the ability to pick up the phone and call someone to protect her if one of the parents becomes intoxicated and frightening. This suggestion of the parents poses an unacceptable risk of harm to the child.

[168] The parents have not been able to demonstrate that they could safely parent the child without supervision. There is a big difference between parenting in a controlled setting and parenting on a full-time basis, without supervision, when they have to cope alone with life's pressures. Even if the court was prepared to consider the safety plan proposed, the court would first require a significant period of unsupervised access to evaluate the parents and their level of compliance with access terms before the child could be safely returned to them. The child has been in care far in excess of the statutory time limit. The time to experiment with the child's life is long over. This is no longer an option.

[169] This court frequently deals with parents who have issues of substance abuse. Most address their issues and are eventually able to have their children safely returned to them. The court is well aware that parents who are progressing with their treatment will sometimes relapse. A safety plan may be appropriate for such a parent, who for the most part, is moving in a positive direction in addressing their issues. However, this case is not about relapse. It is about constant, chronic alcohol abuse, the lack of insight of the parents into the degree of this abuse and its impact on their parenting and their unwillingness (more in the case of the father) or their inability (more in the case of the mother) to adequately address these issues.

[170] The court believes that the parents may be able to safely parent the child for a short period of time with the eyes of the court upon them, but without meaningfully dealing with their alcohol abuse their plan would inevitably collapse. This will be at the cost of the child's safety and long-term future.

[171] The mother's counsel submitted that the parents only have to meet a minimally acceptable level of parenting. This court expects frailties in parents. However, the frailties of these parents significantly compromise the safety and long-term welfare of the child if returned to their care. Their abuse of alcohol and failure to adequately address their issues dictates a finding that they haven't met a minimally acceptable level of parenting.

[172] The parents' safety plan amounts to no more than a band-aid solution. It doesn't address the paramount risk concern – their abuse of alcohol and its potential risk to the child. This is not an adequate permanency plan to ensure the long-term security and safety for the child.

4.7.9 Factors Adverse to the Parents in Subsection 37(3) of the Act

[173] In addressing the relevant clauses in subsection 37(3) of the Act, the court finds that:

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

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

c) The society's plan will better meet the child's needs for continuity and a stable place in a family through adoption.

d) The risk of placing the child with her parents is unacceptably high.

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

f) This case cannot be delayed any further and the child should receive a permanent home as soon as possible. It is in her best interests that this be in an adoptive home.

[174] The least disruptive disposition, consistent with the child's best interests, is to make her a crown ward.

Part Five - Access

5.1 The Law

[175] Once a disposition of crown wardship is made, the Act provides for a presumption against access. The test for access to crown wards is set out in subsection 59(2.1) of the Act, which reads as follows:

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.

[176] The onus to rebut the presumption against access to a crown ward is on the parents. Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.). The parents have the onus of establishing both portions of the test in subsection 59(2.1) of the Act. This is a very difficult test for them to meet. Where a crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Ont. Div. Ct.).

[177] In The Children's Aid Society of Toronto v. T.L and E.B., supra, Justice Perkins described the two-part test as a gateway. He wrote in paragraphs 29 and 30 of his decision as follows:

[29] Section 59(2.1)(b) operates even if there is no immediate prospect of an adoption: "A court shall not make or vary an access order … unless the court is satisfied that … access will not impair the child's future opportunities for adoption" (emphasis added). How much stronger still must the presumption be if, as in this case, there is evidence that there is an immediate, existing placement ready to adopt and there are two other placements waiting in the wings?

[30] Note as well that the focus of section 59(2.1) is very narrowly on the tests of beneficial and meaningful relationship and no impairment of adoption opportunities. Best interests, including a child's wishes, are not mentioned. It is only when one gets through the narrow gateway of section 59(2.1) that the wider best interests test of section 37(3) becomes open for discussion. The new section 63.1 makes it clear the legislature has determined that the best interests of children who cannot return to a parent's care and who are adoptable lie in a permanent family placement by way of adoption or a custody order. Parents might be able to satisfy a court that future adoption opportunities for a child do not likely exist, either because the child's wishes to return to their care are so overwhelming that the child would not consent to a placement or because the child's special needs are so extreme that an adoption is not a realistic possibility. But that is far from this case, on the evidence.

[178] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family), where he said:

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

(46) I read clause 59(2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. 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 of father learns how to be a responsible parent.

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

[179] In Children's Aid Society of Toronto v. M.A., [2006] O.J. No. 254 (Ont. Sup. Ct.), the court found that even though the access visits were generally enjoyable for the child, it was open to the trial judge to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family.

[180] Until recent amendments to the Act, a Society was unable to place a crown ward for adoption if there was an outstanding access order under Part III of the Act. Crown wards with access were not eligible for adoption. Section 141.1 of the Act has now been amended to allow Societies to place crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption. Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption." The operative words of s. 59(2.1)(b) - "will not impair" - place an onus on the parents to satisfy the court that access to the crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The onus on parents remains high. See: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, [2011] O.J. No. 4512 (SCJ), paragraphs 419-421 and 427.

5.2 Analysis

[181] I find the relationship between the child and the parents to be more than enjoyable. I find it to be beneficial and meaningful. The parents have been a consistent presence in the child's life. At times they have had extended access to the child. They are more than pleasant visitors in her life. They are attuned to her needs. Their access since the separation has been exemplary. I heard that the child is affectionate to them and excited to see them.

[182] I have also considered sibling access. The child's relationship with her sister is enjoyable. However, it has been infrequent and does not rise to the level of being beneficial and meaningful as described in the case law. The child does not have any relationship with her brother.

[183] It was conceded that the child is adoptable. The onus is on the parents to show that an access order would not impair her future opportunities for adoption. The parents led no evidence to address this issue and accordingly did not meet their onus.

[184] The parents have shown a variable ability to work with service providers. While they have worked well with the child's foster parent, they have been very difficult to work with, at times, with the society. They tend to be mistrustful and at times have been inappropriately aggressive in asserting their point of view. The mother's sister recognized that the parents would always view themselves as the child's parents and want to assert themselves. This was a factor in her not planning for the child.

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

[186] The reality is that parents with this often-combative and mistrustful profile could adversely impact the pool of persons willing to adopt the child. Prospective adoptive parents may be unwilling to come forward if they will have to constantly deal with these parents. This means that even if the child can eventually be adopted, the adoption process may be unduly delayed and the child will remain in limbo. This impairs the future ability of the child to be adopted and is contrary to the child's need for permanency planning. An access order is contrary to her best interests and well-being.

[187] No access shall be ordered.

[188] This order does not preclude the society, in its capacity as custodial parent of crown wards, from permitting the family to visit with the child prior to an adoption. Children's Aid Society v. D.P. (supra). The society will have the control over who sees the child and when.

Part Six – Conclusion

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

a) The child is found to be a child in need of protection pursuant to sub-clauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Act.

b) The child will be made a crown ward without access for the purpose of adoption.

[190] I understand that this decision will be very painful for the parents and I give them my sympathies. It was clear to me how much they love her and how much they wanted to parent her.

[191] Lastly, I thank counsel for their professional, thorough and sensitive presentation of this case.

Justice S.B. Sherr

Released: June 11, 2012