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.: C24291/03

Date: 2012-06-12

Ontario Court of Justice

Toronto North Family Court

Parties and Counsel

In the Matter of a Three-Times Amended Protection Application Respecting J.Y. (2), Born on […], 2010, Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Between:

Catholic Children's Aid Society of Toronto (Applicant)

Marshall Matias, for the Applicant

- and -

C.T. and J.Y. (1) (Respondents)

John Silvester, for the respondent, C.T. Sheri J. Richardson, agent for Bernard Varcoe, counsel for the respondent, J.Y. (1)

Heard: June 5-7, 2012

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought a three-times amended protection application seeking a finding that J.Y. (2) (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)(i) 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, C.T. (the mother) and J.Y. (1) (the father), are the child's parents. They ask that the society's application be dismissed as they submit that the child is not in need of protection.

[3] The parties plan to raise the child together. At trial, the parents asked the court, in the event it made a finding that the child was in need of protection, to make a disposition order that the child be made a society ward for three months, followed by an order placing the child in the father's care, subject to society supervision, for a period of six months.

[5] The child has been in the care of the society since he was apprehended from the hospital at birth.

[6] On November 8, 2005, three other children of the parents were made crown wards without access. It is the society's position that the protection concerns that necessitated that order being made continue today. The society called six of its employees to testify at trial.

[7] The mother is currently in jail. She is serving a two-year sentence arising out of fraud charges. She hopes to be paroled by the end of August of 2012.

[8] The parents testified on their own behalf at the trial of this matter. They called no other witnesses.

[9] 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 his best interests?

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

[10] The trial of these issues was heard over three 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 – The Evidence

2.1 Background of the Parties

[11] The mother is 38 years old. She was born in Calcutta, India and came to Canada when she was twelve years old. She has been a Canadian citizen since 1995.

[12] J.Y.(2) is the mother's sixth child. She had two children whose father is J.T. These children are now 16 and 18 years old and have lived with J.T. since 2004. The mother testified that before she went to jail in August of 2011, she would see the children on alternate weekends.

[13] The mother stated that the last time she worked was at Tim Horton's five years ago. After that, she supported herself with Ontario Disability Support Payments prior to going to jail. She testified that she received these benefits as she has fibromyalgia and type 2 diabetes.

[14] The parents had three children together before J.Y. (2). These children would now be 9, 7 and 6 years old. All three children were made crown wards without access on November 8, 2005.

[15] The father is 46 years old. He is originally from Ghana. The father has had four children with the mother. He is also the father of four other children, from three different mothers. He has a son, age 22, who lives with his mother in Quebec City, a daughter, age 15, who lives with her mother in Nova Scotia, and two girls, ages 8 and 16, who reside with their mother in Brampton. The father testified that he rarely sees the two children who live outside of the Toronto area, but that he often sees the two children who live in Brampton.

[16] The father has been employed in the warehouse of a shipping company for the past year. He said that he earns net income of about $2,400 per month.

[17] The parties stated that they have had a relationship for about 17 years and have lived together on and off during that time. The mother estimated that they have spent about 8 of those years living together.

2.2 Child Protection History Up Until Crown Wardship Order

[18] The parents have a long child protection history. On August 8, 2001, the Peel Children's Aid Society (Peel CAS) was involved with the mother due to a referral by the Peel Police who reported chaotic and unsanitary home conditions. The mother agreed to place her two children with her sister for one week until she cleaned up her apartment and made it safe for the children to return home. Peel CAS closed its file on September 13, 2001.

[19] On May 26, 2003, Peel CAS reopened the file after they had been contacted by a social worker from the Trillium Health Centre. The mother had been presenting at the hospital for prenatal medical attention for her third child (the baby) and the medical staff had concerns regarding the status of her mental health and her ability to care for the baby and her two other young children.[1]

[20] On May 28, 2003, the Peel Children's Aid Society transferred the mother's file to the society as the mother had relocated to Toronto. At that time, there were ongoing concerns about the mother's mental health, fraud, stealing, having no stable place of residence and need of ongoing support. In June of 2003, the society assigned a Health Specialist to work with the mother.

[21] I received evidence from Heather Henry, who was the society's family service worker for this family from June of 2003 until the end of 2004. Ms. Henry deposed that the society had multiple concerns about the mother, including about her possible developmental delay, the baby's medical needs, the mother's difficulties in following through with medical treatment for the children in a timely manner, the mother's difficulties in managing her finances, the lack of amenities in her home[2] and the mother's apparent history of providing inaccurate information and withholding information from the society and service providers. She said that the mother was unwilling to provide information about the father.

[22] Ms. Henry deposed that the society classified the file as "high risk".

[23] On November 24, 2003, the mother's three children were apprehended due to the baby having a severe leg fracture and the mother providing multiple versions regarding how the fracture happened. The baby had fractured her leg the evening before and the mother did not take her for medical treatment until the following morning.

[24] The mother was also accused of coaching the older children to lie about how the baby broke her leg.

[25] On Nov. 26, 2003, the mother was charged with aggravated assault and attempt to obstruct justice.

[26] The parents were not living together at this time.

[27] Ms. Henry met the father for the first time on Dec. 4, 2003. Ms. Henry deposed that the father told her that he had been having regular contact with his child (the baby) during the time the society file had been open. Ms. Henry deposed that he claimed to be unaware that the mother was involved with the society or that the baby had medical problems. He stated his intention to put forward a plan for his child.

[28] Ms. Henry deposed that she met with the father again in January of 2004. The father reiterated his intention to plan for the baby. She says that the father told her that the mother has mental problems, constantly lies to him and needs help. Ms. Henry deposed that she told the father that the society would not support a plan with the mother in the home due to concerns about her cognitive functioning and her outstanding criminal charges.

[29] On April 8, 2004, the older two children were found to be in need of protection under clause 37(2)(b) of the Act and the baby was found to be in need of protection under clauses 37(2)(a) and (b) of the Act. The two older children were placed with J.T., their biological father, subject to society supervision and the baby was made a society ward for six months.

[30] Ms. Henry deposed that it took the father six months to put together his plan of care. He had been in Ghana for one month during this period. She was concerned that his plan was for the parents to live together.

[31] The parents had two more children together, born in 2004 and 2005. Both of those children were apprehended at birth and placed in the care of the society.

[32] Ms. Henry deposed that the father was unable to put forward a realistic plan for the children. She felt that he didn't seem to grasp the society's protection concerns or appreciate the mother's limitations. She said that the father had few supports and didn't want the society to contact the mothers of his other children.

[33] Audrey Gauthier, a society employee who supervised visits for the parents, testified about the quality of the parents' access to their children from March of 2004 until October of 2005. Her evidence can be summarized as follows:

a) The mother's access with the children was very problematic. She required a lot of redirection and couldn't seem to maintain what she had been taught. She tended to ignore her older children and focus on the baby. She would often sit on a chair and not engage with the children. She was often observed to handle the children roughly, had trouble reading their cues and showed little affection to them, such as giving hugs and kisses. She was also observed not to consistently ensure the safety of the children.

b) The quality of the father's access with his children was much better. Although he was initially apprehensive and required a lot of direction, he quickly made gains. He interacted with his children in a gentle and affectionate manner and was able to implement what he learned. He ensured that the children were safe and was attentive to their cues.

[34] Ms. Gauthier deposed that the mother cancelled many of her visits. She found her to often be confused around visit times and felt that she would misinterpret verbal information. She also deposed that the mother would often provide her with false information.

[35] Ms. Gauthier deposed that she was concerned because the father would miss many scheduled access visits, despite the society rearranging the visits to accommodate his work schedule. She said that there were often long gaps where he would not come and see the children, sometimes weeks or a month at a time. She said that he wouldn't call to explain his absence and provided multiple excuses.

[36] The parents did not contradict the evidence of Ms. Henry and Ms. Gauthier. I accept the evidence of Ms. Henry and Ms. Gauthier as accurate and reliable.

[37] On November 8, 2005, the parents' three children were all made crown wards without access. I was not provided with the reasons for decision, which would have been helpful.

2.3 2005 - Child's Birth

[38] The court received very little evidence about the parents from the end of 2005 until the child was apprehended.

[39] The parents testified that they lived together on and off during this time.

[40] On June 29, 2006, the mother was convicted of fail to provide necessaries of life and attempt obstruct justice, arising out of the fractured-leg incident with the baby in November of 2003. She was sentenced to a conditional sentence of two years in jail, less one day, concurrent on each charge, with one year of probation. The charge of aggravated assault against the mother was withdrawn.

[41] The society led no other evidence about the parents leading up to the apprehension (save and except about the mother's criminal behaviour, set out below). It would have been helpful to have received evidence from their intake worker who apprehended the child at birth. I received no evidence of attempts to assist the parents prior to the apprehension (other than the evidence from the prior child protection case).

[42] The apprehension appears to have been entirely based on the past parenting history of the parents.

[43] On […], 2010, Justice Marvin Zuker made an order placing the child in the temporary care of the society, with access to the parents in the discretion of the society.

2.4 2011 - Present

[44] The court heard evidence from Yogesh Patel, who was assigned as the family service worker for the parents after the apprehension. The parents did not really dispute Mr. Patel's evidence and I found it, for the most part, to be accurate and reliable.[3]

[45] Mr. Patel deposed that he met with the parents on January 13, 2011. He described the father as "being very up front" with him, telling him that he was not available to parent his children in the past due to a number of commitments which required his attention, including visiting Ghana.

[46] Mr. Patel deposed that on January 14, 2011, the mother told him that she had not seen any psychiatrist, psychologist or social worker, or taken any course to improve her parenting since the crown wardship order was made in 2005. The mother confirmed this evidence.

[47] At this time, the mother was also facing criminal charges for various fraud allegations and was out on bail.

[48] Mr. Patel advised the parents that the society was not prepared to place the child with the mother but would work with the father to assess his plan.

[49] Visits were set up at the society office for the parents to see the child twice each week for two hours. The visits went well.

[50] The mother saw the child regularly until July of 2011. Mr. Patel acknowledged that she was interested in the child.

[51] The mother was incarcerated in August of 2011. In November of 2011, she was sentenced to two years in jail plus six months pre-sentence custody for multiple fraud convictions and a conviction for fail to comply with recognizance. The mother acknowledged that the frauds involved significant sums of money and multiple victims. The mother said that her fraudulent activity occurred from 2006 to 2008.

[52] The mother stated that she is going before the parole board at the end of August of 2012. She is hoping for an early release from jail. She said that if this is denied, her mandatory parole date is at the end of October of 2012.

[53] The mother has not seen the child since August 3, 2011.

[54] The father's access with the child went very well. It was interrupted when he returned to Ghana for one month in the winter of 2011.

[55] Mr. Patel was encouraged by the quality of the father's access and, by March of 2011, was encouraging him to see the child more often in order to assess if the child could be returned to his care. Mr. Patel said that he asked the father to increase his visits to three times each week, but the father did not feel that he could do this, due to his commitments to work and his other children.

[56] Mr. Patel said that on April 4, 2011, he asked the father to provide him with information about possible caregivers for the child, but he has never received this information. He said that he also asked the father on this day to complete the intake process for a parenting program, but the father has never advised him that he completed this process.

[57] In July of 2011, Mr. Patel arranged for the father to attend the society's Saturday Access Program. This program provides for loosely supervised access with extended hours. Unfortunately, the father did not take the opportunity of attending this program.

[58] Mr. Patel testified that the father was erratic in attending his scheduled access visits. The father acknowledged missing many visits.

[59] The father last saw the child on February 10, 2012.

[60] Mr. Patel deposed that the father told him in early March of 2012 that his father had died, that he would be leaving shortly for Ghana and would return to Canada prior to March 30, 2012.

[61] The father said that he went to Ghana on March 13, 2012. He testified that he did not see the child in the month before he left because of illness and because he was sad about the events in Ghana. He continued to go to work during this time.

[62] The father did not return to Canada until May 26, 2012.

[63] The father acknowledged that he did not contact the society or inquire about the child's welfare after he left for Ghana. He said that this was his mistake.

[64] The father did not contact the society after his return to Canada. He made a request on June 4, 2012, through counsel, to see the child.

[65] The father stated that he was evicted from his residence for failing to pay rent after he left for Ghana. He acknowledged that he presently does not have suitable accommodation for the child.

[66] The father's plan is to live with the mother once she is released from jail, although he promises that he will arrange to have her contact with the child fully supervised. The plans of care will be discussed in more detail in the disposition section below.

[67] The father did not attend at court on the first day of trial. He went to work instead.

Part Three - Finding in Need of Protection

3.1 Legal Considerations

[68] The society seeks a finding that the child is in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(i) 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;

(i) the child has been abandoned, the child's parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child's care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child's care and custody;

[69] The court has the 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."

[70] This principle is relevant in this case. The society did not plead that the child was in need of protection under clause 37(2)(i) of the Act, but in closing submissions asked the court to make a finding 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. In fact, counsel for the parents acknowledged in closing submissions that it was not in the child's best interests to be immediately returned to the father.

[71] 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.

[72] Subsection 50(1) of the Act permits the court to consider the past conduct of a person toward any child, and any oral or written statement or report that the court considers relevant to the proceeding is admissible into evidence.

[73] Past conduct evidence must not be permitted to suffocate evidence of a parent's current conduct, circumstances and functioning. The real relevance of past parenting evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed. Waterloo Region v. Rachele C. and Merlyn S., [1994] O.J. No. 2955 (Ont. Prov. Div.); Catholic Children's Aid Society of Toronto v. C.S., 2010 ONCJ 656, [2010] O.J. No. 5831 (OCJ).

[74] The admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge or determinative of the result. However, where a parent's previous children have recently been made crown wards, there is a tactical burden on the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that was found to exist in relation to the earlier children. See: Children's Aid Society of Niagara Region v. D.P. and S.B. (No. 3), [2003] O.J. No. 619 (Ont. Fam. Ct.); Catholic Children's Aid Society of Toronto v. L.M., 2011 ONCJ 146, [2011] O.J. No. 1361 (OCJ).

3.2 Analysis

[75] The flexible approach of hearing evidence related to the finding issue up to the date of trial is appropriate 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 his apprehension on the grounds pleaded by the society, the evidence shows that the child has continued to remain in need of protection, not only under the grounds originally pleaded, but pursuant to clause 37(2)(i) of the Act.

[76] The evidence was overwhelming that the child was in need of protection at the time of the apprehension for the following reasons:

a) Even though the past parenting evidence dates back to 2005, the protection concerns were severe and resulted in five children being found in need of protection and three children being made crown wards, without access. The evidence raised significant concerns about the mother's ability to safely parent any child[4] and the father's commitment to safely plan for a child.

b) A child was severely injured in the mother's care. This injury is still unexplained and the mother was convicted of fail to provide the necessaries of life and attempt to obstruct justice arising out of this incident. The mother gave a different version at trial about how the baby fractured her leg in 2003 than the three (at least) different versions that she provided to the police and the society at the time.[5] She claimed not to know what had happened to the baby when she spoke to the police and the society in 2003, yet in her version at trial, she said that her children had told her what had happened to the baby before she took her to the hospital and before she spoke to the society and the police. She denied telling the children to make up a story about how the baby was hurt, but pled guilty to attempt to obstruct justice. The mother's evidence was not credible. The injury to the baby and the mother's role in the injury remain unexplained and clouded.

c) The mother also delayed in getting the baby medical treatment in 2003. At times in her testimony, she admitted that she was wrong, but at other times she minimized her actions. She blamed hospital staff for telling her that she couldn't take her other children with the baby to the emergency department. She also said that the baby didn't seem to be in pain the evening that she was injured. This seems unlikely given the severe nature of the injury. It creates a real concern about the mother's ability to recognize a child being in distress and her judgment in responding to such distress.

d) It would be incumbent on the mother to show that she has taken fundamental steps to address her parenting deficits before a child could safely be placed in her care.

e) The mother acknowledged that she took no steps to address her parenting deficits after her three children were made crown wards in November of 2005, and prior to the apprehension of the child. There was absolutely no basis to believe that the child protection concerns about her had abated.

f) The mother has continued to be involved in criminal activity. Her criminal record was filed as an exhibit. In 2002, she was convicted of fail to attend at court and sentenced to one day in jail. In 2003, she was convicted of fraud over $5000 and fraudulent use of a credit card and received conditional sentences. She was convicted of the serious fraud offences in November of 2011 and remains in jail. She has been unavailable to parent this child since August of 2011.

g) I found that the mother tended to minimize her criminal behaviour. She would blame her co-accused for her current frauds. When asked how many people she defrauded, she first answered a couple. She then changed that answer to a few people, "by my way of thinking". When pushed on cross-examination, she said "maybe four, maybe a little more" and when pushed even further, she said "maybe, between 8 and 10". The mother claimed that she committed these frauds for her children, but this made little sense, since she had no children in her care at this time. She committed these crimes for herself. The mother claimed that she was taking responsibility for her actions, but I was left with considerable doubt about this and was left to wonder about whether she will eventually return to a criminal lifestyle and the instability such a lifestyle would pose to any child in her care.

h) The father's lack of insight into the mother's parenting deficits in 2003-2005 was a significant protection concern at the time. Despite being told to provide a separate plan by the society from 2003-2005, his plans would include an active, if not dominant, parenting role by her. At the time of the apprehension, the parents were planning once again to live together. This posed an unacceptable risk of harm to the child.

[77] This evidence alone was sufficient to justify a finding in need of protection as sought by the society. Events that have occurred since the apprehension have only crystallized the risks to the child, including:

a) The mother has been in jail since August of 2011 and is unavailable to care for the child.

b) The mother has not seen the child since July of 2011 and no longer has a relationship with him.

c) The father acknowledged to Mr. Patel that he couldn't find the time in 2003-2005 to make the necessary commitment to safely parent his children. This was a significant protection concern when his other three children were made crown wards. This pattern has repeated itself since the child was apprehended. The father missed many access visits and he turned down opportunities for more access that could have improved his chances of having the child placed in his care. He did not follow through with the parenting course offered by the society. Most importantly, he has not seen the child since February 10, 2012, or even called about his welfare. He didn't even attend court on the first day of trial. The child requires a stable and consistent caregiver who will prioritize his interests. Otherwise he remains at an unacceptable risk of harm.

d) The father acknowledged that the child could not be returned to his care at this time. He estimated that he needs two months to organize his plan. He has no residence for the child and no real plan for how to care for him. Combined with the fact that the mother is in jail, this supports a finding that the child is in need of protection under clause 37(2)(i) of the Act.

e) The father's plan still includes the mother playing a prominent role with the child. He said that he wants to heal her. He continues to lack any insight into the protection concerns about her. This is a repeat of the pattern from 2003-2005.

[78] I find that the child is in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(i) of the Act.

Part Four – Disposition

4.1 Legal Considerations

[79] 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).

[80] 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.)

[81] Subsection 57(1) of the Act is limited by section 70 of the Act, which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding 12 months, if the child is less than six years old on the day the order is made, or a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless the time is extended as provided in subsection 70(4). This subsection of the Act gives the court discretion to extend the time periods above by six months, if it is in the child's best interests to do so.

[82] The parents are asking the court to use subsection 70(4) to grant an extension of the timeline in section 70 of the Act. The court would need to first grant this extension to make the order requested by the parents (society wardship followed by a supervision order) since the child has been in care for almost 18 months.

[83] The application of subsection 70(4) was discussed in Children's Aid Society of Carleton v. K.F. [2003] (Ont. Sup. Ct.- Family Ct.) O.J. No. 2326 which set out:

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

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

c) The factors in subsection 37(3) of the Act must be considered.

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

[84] There is conflicting case law as to whether the court has jurisdiction to extend society wardship for a child under six years of age, if that extension results in the child being in care in excess of 18 months. Simply put, the issue is whether the operation of the 6 month extension runs from the expiry of the 12 month time limit or from the date of the trial decision - is there a hard statutory cap of 18 months for a child under the age of six?

[85] Justice Craig Perkins stated the following in Catholic Children's Aid Society of Toronto v. N.B., 2010 ONSC 615:

8 Section 70(4) seems to me to permit a total period of society wardship of only 18 months for a child of this age. See R.L. v. CAS of Niagara, [2002] O.J. No. 4793 (C.A.), at para. 5; CCAS of Hamilton v. M.A.M., [2003] O.J. No. 1274 (S.C.J. Fam. Ct.), at para. 157; J.C.J.-R. v. CAS of Oxford, [2003] O.J. No. 2208 (S.C.J.), at pars. 18-19. Other cases take the view that there is not a fixed maximum: CAS of Toronto v. K.B., [2007] O.J. No. 5090 (O.C.J.), at para. 38; CAS of Toronto v. L.U., 2007 ONCJ 741, [2007] O.J. No. 5549 (O.C.J.), at para. 12, affirmed without reference to this legal issue, [2008] O.J. No. 2170 (S.C.J.); CAS of Sudbury v. P.M., [2002] O.J. No. 1217 (O.C.J.).

9 However, even if a further period of society wardship were available in this case, the decision whether to extend the time under section 70 is a discretionary one to be made in the child's best interests: CAS of Toronto v. L.U., [2008] O.J. No. 2170 (S.C.J.), at para. 8. Where the ordinary time has already been significantly exceeded, the discretion would be exercised only in an exceptional case: CAS of Toronto v. D.S., [2009] O.J. No. 4605 (S.C.J.), at paras. 70-72.

[86] In Children's Aid Society of Toronto v. T.L., [2009] O.J. No. 6422, affirmed on appeal (on other grounds), Children's Aid Society of Toronto v. T.L., 2010 ONSC 1376, [2010] O.J. No. 942, I wrote as follows:

55 The statutory time limits in subsection 70 of the Act reflect the need for timely permanency planning for children. Their futures cannot be left in limbo while parents struggle to change their lives and try to put forward a viable plan. Children's Aid Society of Toronto v. Y.B. 2008 ONCJ 800, [2008] O.J. No. 5698 (OCJ). Time is particularly of the essence in child protection cases, especially when adoption is being considered. Children's Aid Society of Niagara v. D.P. and S.B., [2007] O.J. No. 1058 (Ont. Div.Ct.). The longer the children have remained in care, the more cautious the court should be to apply subsection 70(4); this is especially so with respect to Kt., who has been in care for long in excess of the statutory time limit for her.

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

57 None of the fact situations described above, or any other that would warrant making an extension order, applies here. There are no unusual, exceptional or equitable considerations that justify the granting of an extension order. The evidence does not indicate that either parent could safely parent the children in the near future and it is not in the children's best interests to delay permanent planning for them any further. The significance of the child-centered approach to the Act is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance. See: Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.).

[87] 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.

[88] 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.

[89] Subsection 57(4) of the Act requires me to look at community placements, including family members, before deciding to place a child in care. Mr. Patel asked the parents to put forward alternative family or community plans. None were presented.

[90] 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.

[91] 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).

[92] 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.).

[93] 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 The Child

[94] The society's children's service worker deposed that the child is doing very well in foster care. He is healthy, happy and developing normally. He is fully mobile. He was described as an easy child to care for and mild-mannered. He was described as a good eater. He is a fast learner, curious and has good motor skills. He has a vocabulary of about 20 words.

[95] The parties agreed that the child is adoptable.

4.3 Services Provided to the Family and Reasonable Opportunity to Parent

[96] It appears that no services were provided to the family prior to the apprehension.

[97] The parents argued that they were not provided with any assistance by the society and in effect, were not given a reasonable opportunity to parent the child. They claim that the society was in breach of its statutory mandate set out in clause 15(3)(c) of the Act that states one of the functions of the society is as follows:

(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

[98] The failure of the society to provide an opportunity to parent can be a factor in extending the time limit under subsection 70(4) of the Act. See: Children's Aid Society of Hamilton v. M.N.; Catholic Children's Aid Society of Toronto v. A.M., 2007 ONCJ 743, [2007] O.J. No. 4651 (Ont. C.J.).

[99] The society probably could have been more proactive with the parents. They could have provided the mother with therapeutic access, where she would have received direct parenting support. They could have taken steps to better understand her parenting limitations and strengths, with some form of assessment. However, there is a reciprocal obligation on parties to obtain services. The mother was represented by counsel throughout this process. She never took steps to see a professional to assess her issues (until she went to jail). She never sought more access. In any event, the issue quickly became moot for the mother in August of 2011, when she went to jail.

[100] The society could also have been more creative with the father's access. They could have arranged access for him on Sundays, when he wasn't working. However, this is far from denying the father a reasonable opportunity to parent. The society made efforts to increase the father's access in order to assess a placement with him. The father did not take advantage of these opportunities. He turned down additional weekday access. He did not go to the Saturday Access Program after this was arranged for him. He never brought a motion for more access. He certainly didn't comply with his mutual obligation to obtain services. He removed himself from the child's life after February 10, 2012.

[101] In addition, the society provided the following services to the family:

a) The parents were provided with referrals to the Aisling Centre for parenting programs. The mother attempted to attend this program and was put on a waiting list. It appears that the father did follow through with this referral.

b) The society arranged for a parenting capacity assessment on the father. On consent, it wasn't admitted at trial.

c) The society provided a family service worker to assist the family.

d) The society provided a children's service worker for the child.

[102] There is no merit to the parents' argument that they did not have a reasonable opportunity to parent the child.

4.4 The Plans of Care

[103] The society's plan is to make the child a crown ward without access for the purpose of adoption.

[104] The parents' plans for the child were constantly changing, even during the trial.

[105] The parents filed a joint Answer/Plan of Care dated December 21, 2010. They proposed that the child be placed in their joint care, with the father to initially be the primary caregiver and the mother being the secondary caregiver. They indicated that the mother's brother (the maternal uncle) and mother (the maternal grandmother) would be supports. The plan was sparse and lacked the specifics required in Part 4 of the form.

[106] The father filed a separate Answer/Plan of Care on December 27, 2011. His plan states:

The respondent father states he is now putting forth a separate Plan of Care for the child, and he should not be perceived as walking in lock-step with the biological mother. The baggage that the mother has with the CAS over the years should not taint him.

[107] In this Plan of Care, the father sets out that the child will live with him and the maternal uncle. He states that once the mother is released from jail she will be allowed to exercise supervised access only, and will not live in the home alone with the child. It also states that he has arranged suitable daycare for the child while he is at work.[6]

[108] The mother did not file a new Answer/Plan of Care.

[109] The mother testified that her plan is to have the child returned to the joint care of the parents. She expected to be released on early parole in August of 2012. She said that she would then live in a half-way house for about two months. She said that the father and child would be permitted to live with her at the half-way house and she would like them to join her. She said that until then, the father would be looking for an apartment where he and the child could live. She expressed confidence that she would be out of jail by the end of October at the latest. She said that she wanted to obtain subsidized housing and live with the father and the child in Ajax. Her plan is that the maternal uncle will live with them. She says that he is an actor and usually works in the evenings. She wants the child to be in daycare. The mother plans to stay at home with the child for a couple of months and continue to receive Ontario Disability Support Payments. She then wants to work at the local community centre.

[110] The mother described what amounted to her having the primary caregiving responsibility for the child. The father would be working long shifts. She said that the father also works on most Saturdays. She did not believe that her contact with the child needs to be supervised. The mother said that the maternal grandmother would also be a support for the family. She didn't seem to think that it would adversely affect her ability to provide support that the maternal grandmother was 76 years old, didn't drive and lived in Toronto.

[111] The father's evidence about his plan was quite different. He did not feel that he was ready yet to parent the child and wanted two or three months to put his plan together. In the meantime, he wanted his access to resume, with perhaps an additional two hour visit being added each week. It was interesting that even at this point, he wasn't seeking extended day access, let alone overnight access.

[112] The father testified that his plan was for the child to return to his primary care and the mother would live with them, together with the maternal uncle. He plans to look for an apartment. He has no accommodation at this time for the child. His plan would entail a prominent caregiving role for the mother. He said that if the mother wanted to move to Ajax, this was fine with him. I question the practicality of this, as the father emphasized that it was important to him to see his other two children daily in Brampton (close to where he works).

[113] The father said that he spoke to the maternal uncle about this plan prior to leaving for Ghana and he was agreeable to it; however he had not spoken to him since he returned to Canada, and "didn't know his mind now". The father also wanted to use the maternal grandmother as a support. He said that he had not spoken to her yet about this, but plans to.

[114] The father testified that his employer was flexible about changing his work hours; however this is the same employer who he claims did not allow him to miss work for the first day of this trial. It is clear that the father works long hours. He said that he usually works from 8 a.m. to 8 p.m. on weekdays, plus extra overtime hours on Saturdays.

[115] The father said that he would arrange daycare for the child, but has not yet made any inquiries. He promised that the mother's contact with the child would always be supervised, but appeared to have given little thought as to how this would actually work, given his long work hours.

[116] The father said that he would cooperate with terms of society supervision and would permit the society to make announced and unannounced visits.

[117] The father said that he did not believe the mother's contact with the child needed to be supervised. It appeared that he was only offering the suggestion of supervision to satisfy the court. The father continues to lack any insight into the protection risks associated with the mother and I was left with no confidence that her contact with the child would actually be supervised.

[118] The mother's plan changed again in closing argument. She was now prepared to have the child placed in the father's care alone. She supported his request for an order of society wardship for three months, followed by a supervision order. She asked that the court not make an order that her contact with the child be supervised, but said that she would comply with this term, if ordered by the court. She said that she was willing to go to parenting programs and cooperate with the society.

4.5 Positives of the Parents and Their Plan of Care

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

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

b) The child would have the opportunity of having relationships with extended family members.

c) The parents love the child and want to parent him.

d) The child would have the opportunity of learning and being part of the cultures of his parents.

e) The quality of the mother's access in 2011 was far better than reported during the period of 2003-2005. I received evidence from Mr. Patel and access supervisors Vincent Taylor, Deanne Riber and Jayzelle Lagman. The mother's visits were described as positive. She was gentle and loving with the child. When she attended, she attended on time. She would engage the child. She had the child dressed and ready to leave. She was responsive to his cues.

f) The mother was described by Mr. Patel as an interested parent. She tried to expedite obtaining a parenting course prior to going to jail. She has also taken many programs in jail to improve herself and to make improvements to what she described as her problematic behaviour. She provided the court with a number of certificates showing attendance at group programs dealing with behaviour, faith, anger management, parenting and personal improvement.

g) The father's access was also described by the society as very positive. He was described as gentle, affectionate, attuned to the child's needs, able to handle the child's physical care, and that he came on time for visits, when he came. The witnesses all said that the child responded well to him.

h) The father seems to be a hardworking man. He is steadily employed and has no criminal record.

4.6 The Problems with the Parents' Plan

[120] 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.

[121] The parents have not provided a viable plan to care for the child. Their plans were constantly changing, inconsistent and vague and didn't provide for the safety of the child. It was apparent that the parents hadn't coordinated their plans. They knew that they wanted to live together, but had given little consideration as to how this would actually work.

[122] The mother cannot have unsupervised contact with the child. She should not be assuming a primary caregiving role for the child. The historical protection concerns about her parenting are profound and set out above. Her parenting deficits have resulted in five of her children being found in need of protection. A child was seriously injured in her care and she was convicted of criminal offences arising from this. She continues to provide new explanations about this event. She has a significant criminal record and remains in jail. She continues to minimize responsibility for her criminal behaviour. She took no steps to address her deficits between 2005 and the apprehension of the child. She would need to demonstrate change over a lengthy period of time to prove that she could safely parent a child.

[123] The parents' plan does not satisfy the court that the mother would only have supervised contact with the child. The father works long hours. He claims that his employer is flexible about his hours, but said that he wasn't allowed to come to the first day of this trial, which should have been the most important day in his life.[7] I have no confidence that the maternal uncle would be sufficiently available to supervise the mother's contact with the child. The maternal uncle has his own life and is employed. The father wasn't even sure if he was still part of the plan. The maternal grandmother is also not a realistic supervisor. The father has not even spoken to her about this. She is 76 years old, lives in Toronto and doesn't drive. The mother plans to live in Ajax. How often will the maternal grandmother be present? The mother's background gives the court little confidence that she can be trusted. She has a long history of fraud convictions. She was observed as constantly lying in the prior child protection proceedings and I find that she continues to minimize her behaviour and deflect blame.

[124] The court heard no evidence from the maternal uncle or the maternal grandmother. It was critical for the court to hear from at least the maternal uncle if he was going to be living in the home and playing a significant child-care role as proposed by the parents. At first, I heard that the maternal uncle could not attend at court because the maternal grandmother was having cataract surgery. However, in cross-examination the mother said that the maternal uncle could have attended at court in the afternoon[8], but "nobody ever asked him for any evidence".

[125] From 2004-2005, the father was observed as a good access parent, but couldn't demonstrate the necessary commitment to parent the child over longer periods and couldn't accept the mother's limitations. So what has changed? Sadly, very little.

[126] The father demonstrated no insight into the protection concerns regarding the mother at trial. He sees no need for her contact with the child to be supervised. This is a repeat of the pattern from 2004-2005. At that time, the father was told that he couldn't safely plan with the mother. He would acknowledge this and then continue to put forward plans with the mother playing a major child-care role. This has happened again with this case. The parents started off planning together. The society told the father they would not consider such a plan and encouraged him to plan alone. The father then put forward a plan, claiming that the mother would not live with him - that he was not in "lock-step with her". Then he changed this again at trial. We are back to where we were at the beginning.

[127] The father still is a good access parent, when he chooses to exercise access. However, he only exercises access in a controlled, supervised setting. He has shown no ability to be able to manage a child on a full-time basis. He was unable to effectively explain to the court how this would work. His plan heavily depends on the mother and collaterals whose level of involvement is speculative. He has turned down opportunities for extended access that would have given the court the ability to evaluate his ability to care for a young child for more than a couple of hours.

[128] The father was inconsistent in exercising access from 2004-2005. He was inconsistent in exercising access from 2010-2012. During both periods, the society tried to rearrange his access to accommodate his work schedule, yet many visits were missed. In both periods, the father disappeared for long periods of time. In both periods, the father gave multiple excuses for his absences.

[129] The father travelled to Ghana when he was planning for his children from 2004-2005. He went back to Ghana for one month in 2011 and for two months in 2012.

[130] The father states that the child is his number one priority, but the evidence indicates this is not the case. The court understands that the father needed to go back to Ghana for his father's funeral, but it does not understand why he did not see the child from February 10 - March 13, 2012, while he was still in Canada. The father knew, or should have known, that the future of the child was at a critical stage. The child had been in care in excess of the statutory timelines. The case had been placed on the assignment court list for trial. This was the time to put his best foot forward to show that he could parent the child. Instead, the father withdrew from the child's life. He was able to go to work each day, but he did not show up for access visits. If in fact the father did not see the child because he was sad about his father, this makes the court question how emotionally available the father will be to the child when other difficult events happen in his life. He cannot just ignore the child.

[131] The child was also not the father's priority when he remained in Ghana beyond March 30, 2012 (when he told Mr. Patel that he would return). The father said that he needed to sell land to bury his father and to make arrangements for his nieces to go to school. At this point, his priority should have been the child and doing everything necessary to prove his commitment to him. It is telling that the father did not even call the society to inquire about the child's welfare during the time that he was in Ghana. He also did not call the society to advise them of his plans.

[132] The father returned to Canada on May 26, 2012. Oddly, he did not call the society to let them know he was back or inquire about the child. He waited until June 4, 2012 to ask to see the child. The father blamed the time-change and not feeling well. The father chose to work instead of coming to court on the first day of trial. How is this behaviour making the child his number one priority?

[133] The father did not seem to appreciate the emotional impact that his disappearance might have on the child. The child needs a constant and consistent parent who will prioritize his needs. Otherwise, his emotional, physical and mental development will be compromised. The court has absolutely no confidence that the father can meet these needs for the child.

[134] The father was unable to organize a viable plan for the child, despite having numerous opportunities from 2004-2005. This pattern continued from 2010-2012. The father knew that he needed accommodation for the child, but lost his apartment when he left to Ghana. The father knew that he would need daycare for the child, but has not explored available daycares. He was given opportunities to spend more time with the child and didn't take them. He has never parented the child for more than two and one-half hours at a time. He was asked to go to a parenting course and never did. He has not spoken to his collateral supports recently about what support they would provide for him. He wasn't on the same page as the mother about their plan for the child. This gave the court little confidence that he could sufficiently plan for and care for the child on a full-time basis.

[135] It is not in the best interests of the child to grant the extension order requested by the parents. There are no unusual, exceptional or equitable considerations that justify the granting of an extension order. The evidence does not indicate that either parent could safely parent the child in the near future and it is not in the child's best interests to delay permanent planning for him any further. The parents' plan barely amounts to a plan to make a plan for the child. The parents have had 18 months to take the necessary steps to plan for the child and aren't close to creating a viable one. We are already well in excess of the statutory timelines. The parents aren't on the verge of showing that they can successfully parent the child. History has shown that three or six or an indefinite number of extra months are unlikely to make any meaningful difference. The child is entitled to have his future determined now, without further delay.

[136] 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 home in a family through adoption.

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

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

f) The case cannot be delayed any further and the child should receive a permanent home as soon as possible.

[137] The least disruptive option, consistent with the child's best interests, is to make him a crown ward.

Part Five – Access

[138] 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.

[139] 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.).

[140] 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.

[141] 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.

[142] I find that neither parent met either prong of the test under s. 59(2.1). When they visited the child, the visits were enjoyable for the child. The visits were certainly beneficial and meaningful for the parents. However, it is clear that they fell well short of being beneficial and meaningful for the child as interpreted in the case law. The parents had limited supervised access to the child. Now, he has not seen his mother since July of 2011 and has not seen his father since February 10, 2012.

[143] The child is highly adoptable. The parents led no evidence that access would not impair the child's future opportunities for adoption.

[144] There will be an order for no access to the parents.

Part Six – Conclusion

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

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

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

[146] The parents were able to communicate to me their love for the child when they testified. I am very aware that this decision will be painful for them to accept. I give them my sympathies.

[147] I thank counsel for their professional presentation of this case.

Date: June 12, 2012

Justice Stanley Sherr

Footnotes

[1] The facts in paragraphs 18 and 19 come from an agreed statement of facts signed by the parents dated July 29, 2004.

[2] Ms. Henry deposed that she visited the mother's home on August 19, 2003 and she had virtually no furniture in her apartment; the children were sleeping on blankets on the floor and there were no toys for them to play with as the family belongings were still in storage (there had been a fire at her prior residence in July of 2003).

[3] One exception was Mr. Patel's evidence about the parents' attendance at access visits. He provided a chart about visits attended and missed. It was misleading as it did not account for visits cancelled by the society. In an effective cross-examination by the mother's counsel, Mr. Patel conceded that the mother may have come for 90% of scheduled visits.

[4] As set out in paragraphs 20-24 and paragraphs 33-35 above.

[5] These versions are set out in paragraphs 56 and 62 of the affidavit of Ms. Henry sworn on October 25, 2005.

[6] In fact, this was not the case and the father acknowledged that Mr. Patel had been asking him for information about daycare arrangements.

[7] I strongly suspect that the father was not being candid and that he made little effort to attend at court on the first day of trial. It made little sense that the employer would give him indefinite leave to attend the balance of the trial as stated by the father, and not give him permission to attend court on the first day.

[8] The out-patient surgery was purportedly scheduled for the morning.