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.: Toronto C53108/11

Date: 2012-06-22

Court: Ontario Court of Justice

Address: 47 Sheppard Avenue East, 2nd Floor, Toronto, Ontario M2N 5N1

In the Matter of: The Child and Family Services Act, R.S.O. 1990, Chapter C-11, as amended, and The Evidence Act, R.S.O. 1990, Chapter E-23, as amended

And in the Matter of: An Amended Protection Application under the Child and Family Services Act related to L., A. (female, born […], 2010)

Before: Justice Marvin A. Zuker

Trial Heard: May 28, 29, 30, 31, June 1, 4, 2012

Reasons for Judgment Released: June 22, 2012

Counsel

Nancy Thompson — for the applicant society, The Children's Aid Society of Toronto

Ajit Soroha — for the respondent mother, Mrs. J.L.

Ravinder Mann — for the respondent father, Mr. W.L.

Decision

ZUKER J.:

Introduction

[1] This is a trial of an Amended Protection Application ("APA") brought by the Children's Aid Society of Toronto (the "Society"), dated January 20, 2012. The Society seeks the following orders:

1. The statutory findings for A.L., born […], 2010, as set out in the APA;

2. A finding that A.L. is in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act ("CFSA"); and

3. A.L. be made a ward of the Crown and placed in the care and custody of the Society, with no access order being sought so as to release A.L. for adoption.

[2] Mrs. J.L. and Mr. W.L., A.L.'s parents, are not consenting to a finding and seek an order returning A.L. to their care. No alternate plans of care have been presented.

[3] The Society submits that, on December 17, 2010, A.L. was a child in need of protection pursuant to section 37(2)(b)(i) of the CFSA when she was apprehended from her mother's care and placed in foster care. They further submit that A.L. continues to be in need of protection, largely due to the same factors that led to her coming into care: ongoing concerns about Mrs. J.L.'s mental health and the issue of domestic abuse within the parental relationship. Further, it is submitted that both parents have demonstrated a consistent lack of overall parenting capacity to provide their daughter with adequate protection and care. They have been unable and/or unwilling to acknowledge their deficits so as to permit them to learn new skills to address these inadequacies.

Background Facts

[4] A.L. was apprehended by the Hamilton Children's Aid Society ("Hamilton CAS"). Mrs. J.L. reported concerns about her mental health, her inability to care for A.L. and domestic abuse by Mr. W.L.

[5] On December 22, 2010, Hamilton CAS commenced the initial Protection Application for A.L. Justice Pazaratz made a temporary order placing A.L. in the care and custody of Hamilton CAS, with access to the parents at the discretion of Hamilton CAS, supervised in its discretion, on a without prejudice basis.

[6] On or about January 17, 2011, the file was transferred to Toronto. A.L. has remained in care since her apprehension on December 17, 2010.

[7] On April 18, 2011, Justice Brownstone terminated Mr. W.L.'s access to A.L. Mr. W.L. indicated at that time that he wanted A.L. to be made a Crown ward and adopted. His access was subsequently reinstated on May 25, 2011.

[8] On September 28, 2011, the parents brought a motion seeking to have A.L. returned to their care and custody. Justice Brownstone ordered that A.L. remain in the care and custody of the Society.

[9] The Society commenced an Amended Protection Application on January 20, 2012. The Society continued to have concerns regarding Mrs. J.L.'s mental health, domestic conflict/violence between the parents and the ability of the parents to meet A.L.'s needs and protect her adequately.

[10] Mrs. J.L. herself identified issues of domestic violence, her unstable mental health and the parenting capacity of both her and the father.

[11] Mother submits that there was no evidence or testimony during the trial relating to violence or behaviour on the part of the parents that did or could harm A.L. emotionally or physically in any manner. Both parents argue that they are extremely motivated. Mother has been treated for her mental health symptoms, which, she submits, owed mainly to post partum depression consequent to the delivery of A.L.

[12] Mrs. J.L.'s position is that all issues raised by the Applicant CAST are fully resolved now and are no longer of concern as reflected in the reports of the experts and the evidence at hand.

[13] The parents wish that A.L. be returned to them without supervision.

Analysis

Society's Position

[14] Mr. W.L. submits that the evidence of most of the witnesses indicates that A.L. will not be at any risk, emotional or physical, in the custody of her parents. The parents further submit that A.L. was not suffering from any physical or emotional harm at the time when CAS Hamilton was called by the mother on December 17, 2010. There is no risk to the child going forward.

[15] They submit that the Society has acted in bad faith. They submit that from the evidence the Society never provided overnight access to the parents.

[16] Mr. W.L. further submits that it is in A.L.'s best interest that she be raised in her own community. The parents are able to meet the physical, mental and emotional needs of A.L. The CAST simply failed to understand the parents.

[17] The evidence presented by the parents, according to Mrs. J.L., confirms that the parents are now better equipped to take care of A.L. The father has completed several programs: Dads Connection, PARS, Caring Parenting, Marriage Counselling and Psychological Assessment, to address the concerns of the Society. The mother has also completed various programs and assessments. There are better prospects for A.L. as they have developed new abilities to parent her.

[18] The trial was conducted on May 28, 29, 30, 31, June 1, 4, 2012.

Witnesses

[19] The Society called the following witnesses:

a) Brandy Lantz, Hamilton CAS Intake Worker;

b) Shelita Bhikhai, Hamilton CAS After Hours Emergency Worker;

c) Victoria Lang, Society Family Service Worker;

d) Julie James, Society Children Service Worker;

e) Shannon Deacon, Society Therapeutic Access Program Co-ordinator;

f) Susan Oley, Society Foster Parent Support Worker;

g) H.H., A.L.'s foster mother;

h) Dr. Ariel Shafro, Psychiatrist from Trillium Health Centre, qualified as an expert in general psychiatry; and

i) Adele Gagnon, Psychotherapist.

[20] Mr. and Mrs. L. testified on their own behalf. They also called the following witnesses:

a) Gurjit Kaur (Dhillon), Mrs. J.L.'s supervisor at work;

b) Dr. Peter Waxer, Psychologist, qualified as an expert in conducting psychological assessments;

c) Dr. Mohammad Hack, family doctor for both Mr. and Mrs. L.;

d) Dr. Esmail Arfai, Mrs. J.L.'s psychiatrist, qualified as an expert in general psychiatry;

e) Dr. Latchman Narain, Director of the Anger Management Centre of Toronto, Inc.;

f) Mr. George Hartwell, Psychotherapist; and

g) Pastor Tim Melnichuk, The Prayer Palace Church.

[21] In addition to the witnesses, a number of reports and other documents were entered as exhibits.

Factual Findings

Prior Incidents

[22] On January 8, 2008, Mr. W.L.'s ex-wife, M.J.W., reported a domestic incident involving Mr. W.L. to police. Ms. M.J.W. indicated that Mr. W.L. was very angry at her and threatened to "mash up" her house if she did not have their kids ready for his visit. Mr. W.L. in his testimony admitted this incident had taken place.

[23] On December 22, 2009, March 30, 2011, and April 24, 2011, Mr. W.L. called police, reporting domestic incidents, verbal disputes and conflict between him and Mrs. J.L. Mrs. J.L. testified that her relationship was deteriorating at the time that Mr. W.L. contacted police. She did not appreciate his calling the police on her.

Mother's Mental Health History

[24] Dr. Ariel Shafro, psychiatrist at the Trillium Health Centre ("Trillium"), and Dr. E. Arfai, Mrs. J.L.'s psychiatrist, gave evidence that Mrs. J.L. had emotional problems growing up. She was raised by her grandparents, her father was an alcoholic and her mother's mental health was unstable. Mrs. J.L. disclosed to him being sexually assaulted by a relative as a child. Mrs. J.L. disputes this.

[25] On July 17, 2009, Mrs. J.L. disclosed suicidal thoughts and police apprehended her under the Mental Health Act. She was taken to Humber River Regional Hospital ("HRRH"). She was seen by Dr. Oleg Bendz, who noted that Mrs. J.L. had been prescribed Amitriptyline for depression. She was not, however, taking the medication. Mrs. J.L. testified that she was not compliant with this medication. Mrs. J.L. was released from HRRH on July 27, 2009.

[26] On December 17, 2010, Mrs. J.L. called Hamilton CAS reporting thoughts of self-harm, domestic conflict between her and her husband and concerns about her ability to care for her daughter. Mr. W.L. had dropped Mrs. J.L. and A.L. off at approximately 3:00 p.m. at the maternal grandparents' home, for family support. Mrs. J.L. had few supplies for A.L. and no crib. Mrs. J.L. disclosed to Hamilton CAS Intake Worker Brandy Lantz that the maternal grandparents' home environment was unstable and that she felt isolated and without support. She confirmed that she had recently seen her family doctor due to concerns about her mental health. She was waiting to see a psychiatrist.

[27] On December 17, 2010, Mrs. J.L. and A.L. were taken to M. House shelter due to Mrs. J.L.'s disclosures. Shelter staff was instructed to contact Hamilton CAS should Mrs. J.L. attempt to leave. Shortly after Mrs. J.L. arrived at the shelter, she indicated her intention to leave with A.L. Mr. W.L.'s whereabouts were unknown at the time; however, both Mr. and Mrs. L. testified that he was out with friends that evening. As a result, Hamilton CAS worker Ms. Shelita Bhikhai apprehended A.L., when she determined that Mrs. J.L. was emotionally unstable, unable to provide adequate care for A.L., and had no supports or an alternative plan of care for A.L.

[28] On December 20, 2010, Mrs. J.L. saw Dr. Arfai, who suggested she be taken to hospital. Mr. W.L. subsequently took Mrs. J.L. to Trillium Health Centre ("Trillium") due to her behaviour and possible post partum depression. She was assessed first by the Trillium Crisis Intervention Team and then the emergency room doctor who placed her on a Form 1. While at Trillium she was followed by psychiatrist Dr. Ariel Shafro, who subsequently placed her on a Form 3. She was detained in hospital for nine days.

Parental Conduct During Access

[29] Testimony was provided by Ms. Lantz, Ms. Bhikhai, Ms. Lang, Ms. James, Ms. Deacon and Ms. Gagnon that Mr. W.L. presented as aggressive, intimidating and controlling to Mrs. J.L. and to them during access visits.

[30] Mrs. J.L. testified that she left Mr. W.L. for approximately one month. Her perception at the time was that Mr. W.L. was not treating her well.

[31] According to Mrs. J.L., she and Mr. W.L. are in this unfortunate situation because of her post partum depression, her jealousy towards him because of his concern for the children from his first marriage, and her own family's lack of support of her because of their dislike of Mr. W.L.

Mother's Recovery Claims

[32] Mrs. J.L. claims and submits that Dr. Arfai and Dr. Hack both agree that she has been fully cured of her post partum depression since May 2011. She returned to work as a registered nurse practitioner in September 2011. Ms. Gurjit Dhillon, her supervisor, testified in support of Mrs. J.L. being fit and healthy.

[33] Mrs. J.L. claims that her jealousy was just a passing phase and pretty natural. She has got over it completely. Her intention is now a settled one: to live like a healthy family with Mr. W.L. and A.L.

[34] Mrs. J.L. also claims that her own family has now accepted Mr. W.L. as a member of their family and this was attested to by the presence of her mother, grandmother and other friends and relatives on the last day of trial June 4, 2012.

[35] Mr. W.L. gave evidence that he was always supportive of Mrs. J.L. although proactive about protecting himself from the then aggressive mother-in-law and a sick wife. He tried to use whatever knowledge he had for the benefit of Mrs. J.L. and A.L.

Expert Evidence for Parents

[36] Dr. Arfai took over the follow-up responsibility of Mrs. J.L. from Dr. Shafro. Mrs. J.L. submits that, throughout some 24 meetings with her, Dr. Arfai found her progressing to a fully normal person. He specifically said, "Any normal parent could have put the feeding bottle in the child's ears under such pressure and coercive circumstances." Since she has not done that, she is much better than any normal parent. Dr. Arfai also asserted that his experience of over 50 years in four countries cannot go wrong.

[37] Dr. Hack, as a physician of the parents, viewed Mr. and Mrs. L. as "very effective parents." Dr. Hack increased the dosage of sertraline from 50 mg to 75 mg on or around January 14, 2011. On February 18, 2011, he was informed by Mrs. J.L. that she has discontinued the use of prescribed sertraline as she was feeling better. Dr. Hack did not find anything wrong with this discontinuance.

[38] Mr. W.L. testified that when Mrs. J.L. was hospitalized in December 2010, he visited her every day and brought food for her. According to Mr. W.L., "We have lots of supports in place from friends, from church, family doctor, Dr. Arfai, mother's psychiatrist, other friends and friends at work. There is more communication, lots of counselling has been done and it has made us realize about our behaviour." He is confident about Jasmine [Mrs. J.L.].

Society's Concerns

[39] The Society submits:

a) Mrs. J.L.'s mental health deteriorated significantly following A.L.'s apprehension. She was detained under a Form 1 and later a Form 3 at Trillium Health Care Centre for nine days.

b) She was not fully compliant with the treatment plan. She stopped taking her prescribed medication without consultation with her treating psychiatrist or family doctor.

c) She has been non-compliant with prescribed medication on two known occasions and stopped taking said medication without advising her treating physician.

d) She has not been able to acknowledge or accept the instability of her mental health.

[40] The Society submits that Dr. Arfai's clean bill of mental health for Mrs. J.L. was based on a lack of relevant information and half-truths provided by both Mr. and Mrs. L.

a) More specifically, Mrs. J.L. disclosed to several Children's Aid Society workers that Mr. W.L. had physically abused her. She recanted those disclosures.

b) Mrs. J.L. left Mr. W.L. in April 2011 only to return to him later.

c) Mr. and Mrs. L. have been unable to deal effectively with conflict within their relationship. Police records indicate that Mr. W.L. called police on three occasions following a domestic incident between him and his wife.

d) Mr. W.L.'s ex-wife filed a report with police in 2008 that Mr. W.L. threatened to "mash up her house" if she did not comply with his access request to his two sons.

e) Both Mr. and Mrs. L. were unable to demonstrate a consistent ability to read A.L.'s cues so as to provide her with adequate protection and emotional and physical care. This was evidenced by their attendance at two Therapeutic Access Program assessments, with unfavourable results, in addition to a year and a half of fully supervised access visits.

Expert Evidence Analysis

Dr. Shafro's Evidence

[41] Dr. Shafro testified that Mrs. J.L. presented with a profound lack of insight. He testified there was a disconnect between her affect and the context of what she was discussing. Dr. Shafro provided evidence that Mrs. J.L.'s avoidant tendencies would be quite typical of someone who had experienced early life trauma such as sexual abuse.

[42] Dr. Shafro concluded that in order to prevent a relapse, it would be critical for Mrs. J.L. to have insight into her illness and a close relationship to her psychiatrist in order to manage her mental health.

[43] Mrs. J.L. testified that she stopped taking the medication within one month of her discharge from Trillium, without consulting her family doctor, Dr. Hack, or her psychiatrist, Dr. E. Arfai.

[44] Dr. Arfai produced two psychiatric assessments for Mrs. J.L.: one dated July 15, 2011, and the second dated September 15, 2011. In the first, Dr. Arfai diagnosed Mrs. J.L. with Adjustment Disorder with mixed emotional state triggered by childbirth and multitudes of family and psycho-social problems. No treatment plan or medication was prescribed. In the psychiatric re-assessment completed less than two months later, the doctor found that Mrs. J.L. no longer carried the diagnosis of Adjustment Disorder with mixed emotional state. Dr. Arfai confirmed that Mr. W.L. was present during the majority of Mrs. J.L.'s sessions with him, despite knowing that issues of domestic conflict/violence existed between them.

Access

[45] Since January 2011, Mr. and Mrs. L. have attended access visits with A.L. at least once or twice a week for a minimum of 1.5 hours fully supervised.

[46] Mr. and Mrs. L. attended the Society's Therapeutic Access Program ("TAP") on two separate occasions: February 1 to May 30, 2011, and September 21 to November 25, 2011. Neither TAP assessment, the Society submits, was favourable to the parents.

[47] The Society submits that neither parent has been able to read A.L.'s cues or to place her needs above their own.

[48] It is the Society's submission that Mr. and Mrs. L. have not provided evidence of a plan of care that addresses the Society's protection concerns adequately, with or without terms of a supervision order. Further, any plan that places A.L. at a continued risk of harm is surely not in her best interests. A.L. has been in care beyond the statutory limit and as such requires the most stable and secure plan available and that plan is the Society's plan for adoption.

[49] The Society submits that a supervision order would not adequately protect A.L. given the continuing child protection concerns and the parents' denial that any exist. It further submits that Mr. and Mrs. L. have had a conflicted relationship within their marriage and with Society workers.

[50] They submit that Mr. and Mrs. L. are not able to meet A.L.'s need of physical and emotional needs for safety and security.

Evidence

[51] As already indicated, Dr. Arfai produced two psychiatric assessments for Mrs. J.L., one dated July 15, 2011, and the second dated September 15, 2011. In the first, he diagnosed Mrs. J.L. with Adjustment Disorder with mixed emotional state triggered by childbirth and multitudes of family and psycho-social problems. No treatment plan or medication was prescribed. In the psychiatric re-assessment completed some two months later, he found that Mrs. J.L. no longer carried the diagnosis of Adjustment Disorder with mixed emotional state. Dr. Arfai confirmed that Mr. W.L. was present during the majority of Mrs. J.L.'s sessions with him, even though issues of domestic conflict/violence existed between them.

[52] Dr. Arfai acknowledged he was unaware of Mrs. J.L.'s previous suicidal ideation in 2009. He did not receive a copy of the complete discharge summary from Dr. Shafro. He was unaware of any past trauma experienced by Mrs. J.L.

[53] Adele Gagnon, a psychotherapist who was providing relationship counselling for Mr. and Mrs. L., testified that she was concerned about Mrs. J.L.'s disassociated presentation during the therapy sessions. She stated that Mrs. J.L. would frequently display inconsistent and inappropriate emotional responses when relaying information. Ms. Gagnon testified that Mrs. J.L. smiled when relating stories of great sadness and confusion.

[54] Evidence was provided by the Society by Ms. Lang, Ms. James and Ms. Deacon regarding the consistent inability of both parents to read A.L.'s cues and/or placing her needs above their own, resulting in her needs not being met and, in some cases, her being placed at risk of harm.

[55] Ms. Lang, Ms. James and Ms. Deacon gave evidence that they worked with the parents on how to identify A.L.'s cues at each stage of her development and how to address her needs as she grew.

[56] Ms. James testified that up until April 12, 2012, she encouraged the parents to focus their energies on accepting suggestions and teaching so that any deficiencies could be addressed and A.L. could be returned to their care. Ms. James gave evidence that neither parent accepted the need to change their parenting, believing that there was nothing wrong in what they were doing in their care of A.L. Further, Ms. James was unable to redirect the parents from concerning behaviour, as they would talk over her and/or become confrontational.

Response to the Society

[57] Mrs. J.L. submits that the testimony of Brandy Lantz was based on an affidavit prepared some 17 months after the fact.

[58] Mrs. J.L. submits that Ms. Lantz was pushing her to sign a Temporary Care Arrangement that she did not want to sign. Workers overemphasized the need for a crib. Paragraph 18 indicated that the maternal grandmother alleged that the Respondent father was physically abusive and had punched her. These allegations were baseless and unsubstantiated and had their roots in the fact that the maternal grandmother did not get along with the Respondent father for evident reasons.

[59] Shelita Bhikhai, according to Mrs. J.L., made her own assessment of Mrs. J.L. presenting as emotionally unstable, with no supports in place.

[60] Mrs. J.L. dismisses the evidence of Victoria Lang as being devoid of reasonability, courtesy, empathy and fairness. Mrs. J.L. submits that Ms. Lang labels Mr. W.L. as abusive, arrogant and controlling.

[61] "Ms. Lang and other CAST staff around her were more into their own whims than being loyal to their job and the CAST."

[62] Ms. Deacon, in para. 11 of her affidavit, observes extremely positive strengths but goes on to negate these with the risks observed in the following paragraph. The two paragraphs seem to be extremely contradictory. Perhaps the paragraph pertaining to "risks" is tutored and a product of afterthought.

[63] The affidavit of Ms. Julie James, paragraph 11, sub paragraphs (a) to (e), the parents submit, are extremely positive, while the tone changes drastically from sub paragraphs (f) to (k).

[64] At paragraph 32, Ms. James, along with Ms. Lang and TAP Co-ordinator Shannon Deacon, noted that: "Mrs. J.L. was always on time or early for her visits, prepared with supplies, would greet A.L. warmly, was focused and attentive with A.L. and was starting to play with A.L. for short periods of time." This was May 3, 2011, when Mrs. J.L. claims to have been fully out of post partum depression symptoms. It is after this that the entire CAST staff started polarizing regarding the Respondents. Paragraph 42 shows the malicious rephrasing, going from "I would really appreciate it if you stepped outside and let me do this" of Ms. James's Case Note, to "She became very upset and asked me to leave the room" in her affidavit.

[65] Ms. Susan Oley found "everything positive" with the parents.

[66] Ms. H.H. stated that the "interactions between the parents and the child were good."

[67] Mrs. J.L. submits that, based on the testimony of the qualified Expert Psychiatrist, Dr. Arfai, and Dr. Hack, she has been fully cured of her post partum depression since the end of May 2011. She has been working as a registered nurse since September 2011, taking care of 32 patients as part of her work.

[68] According to Mrs. J.L., Dr. Waxer indicated there are no emotional, psychological or any other symptoms of any significance as far as the respondent mother is concerned. He assessed the mother as a successfully treated, forward-looking parent.

[69] Dr. Narain indicated that the two parents demonstrated nothing less than perfection during the two courses that they had with him. The Caring Parenting program was taken by both, while the father took the PARS took the direction of the CAST. They completed these courses with "flying colours." Dr. Narain also states "both parents were crying from their souls" for their only daughter.

[70] Dr. Hack viewed Mr. and Mrs. L. as "very effective parents." He increased the dosage of sertraline from 50 mg to 75 mg on or around January 14, 2011. On February 18, 2011, he was informed by Mrs. J.L. that she has discontinued the use of prescribed sertraline. She was feeling better. Dr. Hack did not find anything wrong with this discontinuance.

[71] Mr. W.L. makes specific mention of the affidavit evidence of Julie James. In her affidavit relating to the access visits, Ms. James's statements on July 15, 2011 and September 13, 2011 do not, somehow, correlate with her case notes.

[72] In paragraph 55 of her affidavit, Ms. James describes Mr. W.L. as warm, talkative and friendly. She states: overall visit very positive. This was on October 7, 2011, when the parents celebrated A.L.'s birthday. Regarding behaviour, in paragraph 81 of her affidavit, regarding their visit of March 19, 2012, Ms. James mentions that a team observed the L.s and how they responded to A.L. Ms. James states the team found the parents to be positive. Ms. James has, to a great extent, changed the words she used in her case notes and affidavit. For example, the word "suggestion" in the case note becomes "direction" in her affidavit. In para. 90 of her affidavit, Ms. James says: parents read A.L.'s cues. Ms. James did not take into consideration the parents' cultural background when dealing with them in terms of oiling the baby's hair.

[73] Shannon Deacon, the parents submit, at no time stated Mr. W.L. as being abusive.

[74] Susan Oley, Feeding Expert for CAST, states in her testimony that H.H. also had problems feeding A.L. Ms. Oley described A.L. as a strong-minded girl who would not eat what she did not want. She stated that A.L. would clamp her mouth shut if she did not want to eat. Further, she states that it is trial and error in attempts to feed A.L.

[75] "How did the parents present themselves around the teaching?" Ms. Oley: "They were very attentive and they listened to instructions." Ms. Oley had a positive interaction with the parents.

[76] The court understands and appreciates its concern with the mother's mental health, the suicidal ideation, the involuntary admission to Trillium, Dr. Shafro's evidence, his observations. The court understands and has further reviewed the exhibits and evidence regarding Mrs. J.L.'s usage and then stoppage of her prescribed medication. As far as Mrs. J.L. is concerned, she wanted to get better on her own. So she stopped taking her medication early in 2011. Mr. W.L. again called the police on or about March 30, 2011. The parties separated again.

[77] When Mrs. J.L. was involuntary detained in December 2010 and subsequently discharged some nine days later, Dr. Shafro provided her with a "significant discharge plan." As far as Dr. Shafro was concerned, in December 2010 Mrs. J.L. suffered from a "major depressive disorder." Post partum depression would not account historically for any suicidal ideation.

[78] Dr. Arfai, to whom Mrs. J.L. was referred to by Dr. Hack, her family physician, saw her after Dr. Shafro, in 2011 in particular. Dr. Shafro did not agree with Dr. Arfai's conclusions relating to Mrs. J.L. Mrs. J.L. also gave evidence that her prescribed medication made her ill. She complained about headaches. She slept a lot.

[79] According to Mr. W.L., he stated at trial that he has seen many positive changes in his wife. They now visit regularly with her grandmother and, at the very least, some of the mother's family have accepted their marriage. The parents submit they have many supports in place.

[80] Again, even as late as March 30, 2011, Mr. W.L. called the police because his wife was supposedly hysterical and would not let him see their child.

[81] After some three weeks of separation, in April 2011 the parents reunited.

[82] Dr. Waxer in some ways concurred with Dr. Arfai. He found overall that there was no pathology. It was a case of situational phobia. He did not do a parenting assessment. He acknowledged that he was not aware of mother's history when the police were called. In any event, Mr. W.L. did not appear crazy. No treatment or intervention was required.

[83] Similarly, Dr. Narain, a family counsellor, certainly no expert in marriage counselling, worked with the parents to help them improve their parenting skills. He was of the view that, because of the parents' culture and background, the same word literally can be interpreted differently. He did not believe the parents were acting out.

[84] Dr. Arfai, on consent accepted by the court as an expert in general psychiatry, had his first out-patient consultation with Mrs. J.L. early in 2011. He saw her February 3, 2011, and in March and April 2011. He gave evidence he has seen her some 20 times since May 2011. He never tested her formally until May 16, 2012. Dr. Arfai acknowledged not being aware of her suicidal ideation or earlier hospitalization.

[85] George Hartwell, described as a couples therapist, took issue with Adele Gagnon, "another" parents/couples counselling therapist. Mr. Hartwell gave evidence that Mr. W.L. was quite passionate about his wife and nothing he saw supported Adele Gagnon's impressions of them. He suggested that Mrs. J.L.'s training and culture would in no way make her submissive to her husband.

[86] It was apparent in cross-examination by the Society, that Mr. Hartwell was aware of very little historically. I find that his curriculum vitae can be described, at the very least, as misleading.

[87] Mrs. J.L. described to Ms. Gagnon that there was no disconnect between her and her husband. Mrs. J.L. also described to Ms. Gagnon that she, Mrs. J.L., had had a traumatizing sexual encounter growing up. Ms. Gagnon described Mrs. J.L. as being fragmented. She would smile and giggle and display inappropriate emotions.

[88] Ms. Gagnon expressed the opinion that Mr. W.L. was very angry. He did not want to co-operate. He felt cheated. He felt victimized by the Society.

[89] Mr. W.L.'s counsel suggested that Ms. Gagnon's approach to the parents was negatively influenced by Ms. Gagnon's discussions with Victoria Lang. This was denied. Three more hours of work was done with the parents before her final report was prepared.

[90] Dr. Shafro gave evidence that when he saw Mrs. J.L. on December 21, 2010, she presented as "dysphoric." He further described her as an "unreliable historian" who minimized the symptoms. She had described to him a history of sexual assaults growing up. She later recanted these statements. He acknowledged that, even though Mrs. J.L. did not follow through the discharge plan, her prognosis was still difficult, certainly not assured. Dr. Shafro commented on the two reports dated July 15 and September 5, 2011, by Dr. Arfai, suggesting that Dr. Arfai was either unaware of her suicidal ideation or omitted it. Dr. Shafro suggested possible outpatient psychiatric help in the future.

[91] According to Victoria Lang, the Society Family Service Worker, Mrs. J.L. simply did not understand A.L.'s cues, when to feed her, when not to feed her. Either too little or too much. There were two therapeutic assessments to help the parents. Neither were very positive. According to Ms. Lang, Mrs. J.L. could not or would not follow the schedule of the foster mother, Mrs. H.H. Ms. Lang felt as well that Mr. W.L. was very aggressive and intimidating.

[92] Shannon Deacon for the Society also made several feeding suggestions to the parents. She acknowledged that feeding A.L. was also a problem with the foster mother. It was further suggested that if Susan Oley, the Foster Parent Support Worker, could not feed A.L. without problems, how could the parents? Ms. Oley's first visit to the foster home on December 16, 2011, presented A.L. as a very tiny little child and a very strong-minded child who knew what she wanted or didn't want. Ms. Oley described Mrs. J.L. and Mr. W.L. as being very receptive in January and then in March 2012. She suggested that the feeding of A.L. was not the parents' fault.

[93] Mr. and Mrs. L. are both registered practical nurses. Gurjit Kaur, a co-worker of Mrs. J.L., gave evidence that, in the four years they have worked together, Mrs. J.L. always spoke highly of her husband. Mrs. J.L. was on maternity leave at the time of her hospitalization in December 2010. Julie James, a CAST Children's Service Worker, gave evidence that, although there were confrontational visits, as they were described, there is much more interaction now, much more playtime now. Ms. James has worked with the family a year and a half.

[94] It was Ms. James position that the parents were not accepting of feedback. It was suggested that between her and Victoria Lang, the parents were confused by mixed messages from different workers.

[95] The Society would have preferred Mrs. J.L. to be assessed without her husband being present. The suggestion being that Mrs. J.L. was quite vulnerable because of the history of domestic violence.

[96] It was apparent from Ms. James's notes that Mrs. J.L. could follow instructions and she could feed A.L. properly. The passage of time has resulted in less need to read A.L.'s cues, something not easy for anyone. That was reflected in lack of weight gain for some three months. A.L.'s skin problem was another issue that the Society and the parents were at issue about.

[97] Ms. H.H., the foster mother for A.L., described A.L. as very easy to take care of. She is a very happy, sociable, but independent child.

Domestic Violence

[98] Mrs. J.L. described her husband as being very supportive of her. He visited her every day in the hospital. Mrs. J.L. returned to full-time work on September 29, 2011. Mrs. J.L. responded to several calls to the police presumably based on conflict between them by suggesting that the calls to the police were because of her behaviour. The last time he called the police was March 30, 2011. They separated for three weeks and she returned to him. Mrs. J.L. describes their relationship as strong and supportive. Mr. W.L. did not dispute his historical conflict with his ex-wife. He indicated that he has moved forward as evidenced by the extensive counselling he has taken.

[99] Mrs. J.L. submits that at the time she made statements of abuse, in December 2010 and April 2011, she was confused.

[100] When questioned regarding the police reports, Mrs. J.L. stated that there were no valid reasons for the four calls. Mrs. J.L. explained them. The first one was in July 2009, due to her family's not accepting the relationship with Mr. W.L. The second one, in December 2009, was due to jealousy of Mr. W.L. and his children from his first wife.

[101] When asked about her nine days' stay at Trillium Hospital, Mrs. J.L. stated that, during that time, Mr. W.L. was always there to visit her, he would bring her food. When asked about medication that was prescribed, she stated that her psychiatrist, Dr. Arfai, was aware that she had stopped taking medicine. When asked about the parenting program, she stated that she did it because it would help her case and also it is good knowledge.

[102] Mr. W.L. testified that, when Mrs. J.L. was hospitalized for nine days, he visited her every day and also brought food for her.

[103] Mr. W.L. was questioned regarding how Mrs. J.L.'s refusing medication presented a risk to A.L. Mr. W.L. responded by stating that Dr. Arfai states that Mrs. J.L. is fine, there is no risk.

The Law

[104] The Society submits that, should the court find that A.L. continues to be in need of protection, the paramount objective of disposition is to select a custody order for A.L. that, for both her short- and long-term future, is likely to promote her best interests, protection and well-being. See CFSA, s. 1 and Catholic Children's Aid Society of Toronto v. N.B., 2009 ONCJ 648, [2009] OJ No. 5774 (OCJ) at para. 5 ("CCAS v. NB"); aff'd on appeal 2010 ONSC 615, [2010] OJ No. 300 (Ont. SCJ).

[105] The CFSA, subsection 37(3), sets out a number of factors to be considered by the court in determining the best interests of each child:

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

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

c) The child's cultural background.

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

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

f) The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

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

h) The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child's remaining with or returning to a parent.

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

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

k) The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

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

m) Any other relevant circumstance.

[106] A.L. has been in foster care virtually her whole life. She is meeting her developmental milestones. She does not have any special needs, with the exception of the stability, permanence and nurturing required by all children.

[107] The Society submits that an adoptive placement would best meet A.L.'s needs.

[108] The Society submits that there is no time left to wait for the parents to address their outstanding parenting, relationship and mental health issues so as to parent and effectively meet A.L.'s needs. A.L. requires a permanent placement as soon as possible.

[109] They submit that protection concerns continue and pose a significant risk of harm to A.L.

[110] Sections 57 and 57.1 of the CFSA provide that the following orders of disposition are available on a Protection application, once a child is found in need of protection: supervision order, Society wardship, Crown wardship, consecutive orders of Society wardship and supervision, and a custody order deemed to have been made under the Children's Law Reform Act.

[111] The court must consider the least disruptive order, which must be assessed from the child's perspective. All plans begin as equal and need to be assessed to determine which plan is in the child's best interests. No one plan, whether it is that of the parents or the Society has priority.

[112] The CFSA, subsections 59(2) and 59(2.1), set out the legal test for an order of access to children who have been made wards of the Crown:

a. Termination of access to Crown ward (s. 59(2)) — Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

b. Access: Crown ward (s. 59(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:

• The relationship between the person and the child is beneficial and meaningful to the child; and

• The ordered access will not impair the child's future opportunities for adoption.

[113] Once a decision is made in favour of Crown wardship, there is a presumption that there will be no access to the parents. The burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order.

[114] The onus continues on the person seeking access to show that access would not impair future opportunities for adoption and is not upon the Society to prove that the child is adoptable.

[115] The CFSA, section 63.1, makes it clear that the legislature has determined that the best interests of children who cannot return to a parent's care lie in a permanent family placement by way of adoption or a custody order.

[116] The Society submits that A.L. continues to be in need of protection due largely to the same factors that led to her coming into care: ongoing concerns about the stability of Mrs. J.L.'s mental health and domestic abuse within the parental relationship.

[117] It is the Society's submission that Mr. and Mrs. L. have not provided evidence of a plan of care that addresses the Society's protection concerns adequately, with or without terms of a supervision order. Further, any plan that places A.L. at a continued risk of harm is surely not in her best interests.

[118] The Society submits that a supervision order would not adequately protect A.L. given its continuing child protection concerns and the parents' denial that any exist.

[119] Any consideration of an order of Society wardship would require the court to make an order extending the time that A.L. could remain in care pursuant to subsection 70(4) of the CFSA according to the Society.

[120] This is not a case, the Society submits, where the parents can parent A.L. and simply need time to ensure that the transition would be appropriate.

[121] The Society submits there is no other available and appropriate alternative plan to promote A.L.'s best interests, protection and well-being, other than an order of Crown wardship. This plan will also ensure permanency and stability as the Society's plan for A.L. is to seek an adoptive placement.

[122] The Society submits that there is overwhelming evidence that access was frequently problematic and at times harmful for A.L., given her parents' inability to read A.L.'s cues accurately and respond to her physical and emotional needs appropriately. For these reasons, access cannot be beneficial to A.L.

[123] The Society submits that the parents have not met the test to rebut the presumption against an access order should A.L. be made a Crown ward. There is no evidence that termination of access to Mr. and Mrs. L. would result in emotional harm for A.L. An order of access would not be in her best interests.

[124] The CAST requests the court make an order that A.L. be found in need of protection pursuant to section 37(2)(b)(i) and made a ward of the Crown and placed in the care and custody of the Society, with an order dismissing any claim by Mr. and Mrs. L. for access.

Section 70(4) of the CFSA

[125] Section 70(4) provides that "the court may by order extend the period permitted under subsection 70(1) by a period not to exceed six months if it is in the child's best interests to do so."

[126] Any decision to extend time must have regard to the test of the best interests of the child.

[127] I have carefully considered the evidence, including the evidence relevant to the test of the best interests of the child as defined in s. 37(3) of the CFSA.

[128] See Stayshyn J. in CAS of Hamilton v. M.A.M., [2003] O.J. No. 1274.

Extensions of time must be viewed from the perspective of the best interests of the child, consistent with the purpose of the CFSA. Stayshyn, J. states at para. 31:

Section 70(1)(a) reflects an amendment to the legislation reducing the length of time that children under the age of six years may remain in care from 24 months (pre-amendment) to 12 months (current law). That time may be extended by six months under section 70(4) in the best interests of the child. In A.M.'s case, there is no jurisdiction to extend; she has been in care for 21 months. In M.M.(1)'s case, the ceiling has not been reached. In my view, it is clear that the ceiling must be viewed from the child's perspective to be consistent with the remainder of the Act.

[129] The court must be hopeful that A.L. would be returned to her parents if they continue to show improvement in their parenting skills during any extension.

[130] I find that the parents have overcome significant problems which brought them to the attention of the Society. Mrs. J.L. appears, as I must find, to have come to terms with her problems. She had made progress with respect to parenting skills, although not sufficient progress to return A.L. to their care today or tomorrow.

[131] Existing caselaw requires unusual, exceptional, or equitable considerations to trigger an extension. The power to grant extensions should not be routinely used. The extension must be in the best interests of the child, understanding the importance of promoting stability in the life of a child. See Catholic Children's Aid Society of Metropolitan Toronto v. U.C.M., [1994] 2 S.C.R. 165; Kawartha-Haliburton Children's Aid Society v. K.M., [2001] O.J. No. 5047; Children and Family Services for York Region v. A.W.A.M.A.; Children's Aid Society of Ottawa Carlton v. K.F., [2003] S.C.J. O.J. No. 2326; Children's Aid Society of Toronto v. K.G., [2006] O.J. No. 5600.

[132] Subsections 70(1) and 70(4) of the Child and Family Services Act mandate that the court not make an order that results in a child under the age of six years being in the care of a society for longer than twelve months, subject to the ability of the court to extend that time by six months if it is in the child's best interests to do so.

[133] The paramount purpose of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended ("the Act") is to promote the best interests, protection and well-being of children; see subsection 1(1).

[134] The additional purposes of the Act, so long as they are consistent with the best interest, protection and well-being of the children, are:

1. To recognize that, while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children's services should be provided in a manner that:

   i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

   ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

   iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

   iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

See subsection 1(2) of the Act.

[135] As well, the Act and the Family Law Rules ("the rules") set out the following timelines for child protection cases. Section 52 of the Act states:

52. Delay: court to fix date. — Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether a child is in need of protection and the determination has not been made within three months after the commencement of the proceeding, the court,

(a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the just disposition of the application; and

(b) may give such directions and make such orders with respect to the proceedings as are just.

[136] Subrules 33(1), 33(2) and 33(3) provide:

33. Timetable. — (1) Every child protection case, including a status review application, is governed by the following timetable:

Step in the case	Maximum time for completion, From start of case
First hearing, if child has been apprehended	5 days
Service and filing of answers and plans of care	30 days
Temporary care and custody hearing	35 days
Settlement conference	80 days
Protection hearing	120 days

(2) Case management judge. — Wherever possible, at the start of the case a judge shall be assigned to manage it and monitor its progress.

(3) Court may lengthen times only in best interests of child. — The court may lengthen a time shown in the timetable only if the best interests of the child require it.

Subsection 70(1) of the Act reads:

70. Time limit. — (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.

And subsection 70(4) adds:

(4) Six-month extension. — Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.

[137] Clearly, the legislation reflects that it is in the best interests of a child to have decisions made about placement as expeditiously as possible. Permanency planning for a child in need of protection should take place within a year for young children. Conversely, if children are not in need of protection, then disruption to families should be minimized without delay.

[138] Justice Heather L. Katarynych stated in Children's Aid Society of Toronto v. Robin H. and Michael N., 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.):

[15] … 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; …

[139] Pursuant to 141.1(a) of the Act, the Society cannot place a child for adoption until any outstanding order of access to the child has been terminated. Therefore, if this court makes an order for access, the Society will not be able to place the children for adoption (unless and until such access order is terminated). Reference: Child and Family Services Act, R.S.O. 1990, c.C.11, as am., Section 141.1.

[140] The Society submits that permanency for A.L. can only be achieved through adoption. See Children's Aid Society of Peel Region v. W.O., R.S.B. B.H. and S.B., [2002] O.J. No. 1099, paras. 35–37.

[141] The court's decision with respect to what will happen to A.L. must be made having regard to the paramount purpose of the Act in s. 1, which is to promote the best interest, protection and well-being of children.

[142] Section 70(4) arguably seems 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 par. 5; CCAS of Hamilton v. M.A.M., [2003] O.J. No. 1274 (S.C.J. Fam. Ct.), at par. 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 par. 38; CAS of Toronto v. L.U., 2007 ONCJ 741, [2007] O.J. No. 5549 (O.C.J.), at par. 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.).

[143] 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 six-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?

[144] 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.

[145] 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.).

[146] Again, if a period of Society wardship is 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.

[147] Where the ordinary time has already been significantly exceeded, the discretion should 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.

[148] I might add that this is NOT a case where the CAS has failed to supply adequate services to the parents. Nowhere do I find that the CAS has breached its statutory duties.

[149] It is a well-established principle that a defendant is not liable in negligence unless the law exacts an obligation in the circumstances to take reasonable care. As Lord Esher concluded in Le Lievre v. Gould, [1893] 1 Q.B. 491 (C.A.), at p. 497, "[a] man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them." Duty may therefore be defined as an obligation, recognised by law, to take reasonable care to avoid conduct that entails an unreasonable risk of harm to others.

[150] The Child and Family Services Act of Ontario provides that the paramount purpose of the Act is to promote the best interests of children. This legislation aims to protect and further the interests of the child, not the child's parents.

[151] Child protection work is difficult, painful and complex. Catering to a child's best interests in this context means catering to a vulnerable group at its most vulnerable. Those who do it, do so knowing that protecting the child's interests often means doing so at the expense of the rest of the family. Yet a Society's statutory mandate is to treat the child's interests as paramount. It must be free to execute this mandate to the fullest extent possible. The result it seeks is to restore the child, not the family. Where the duties to the child have been performed in accordance with the statute, there is no ancillary duty to accommodate the family's wish for a different result, a different result perhaps even the child protection worker had hoped for.

[152] The Supreme Court of Canada has held that "the state's overriding duty [is] to ensure that children are protected." Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83 (at 87 (QL)) and persuasive case authority emphasizes the fundamental importance of child development:

A child's need for permanency planning without 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.

Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for a change in a parent that is unlikely to happen. The parent's chance to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic timeframe if damage to the child is to be minimized.

Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (QL) (at para. 16).

[153] Mrs. J.L. has been diagnosed with a disorder. She was hospitalized on more than one occasion, the last being December 2010. At the time of trial, the mother has been well, apparently, for almost a year. I can only speak positively of how the mother has dealt with her mental health.

[154] Again, section 70(4) provides that this time period may be extended "by a period not to exceed six months if it is in the child's best interests to do so." The decision to extend must be viewed from the child's perspective. (See C.A.S. of Ottawa-Carleton v. K.F., (2003), O.J. 2326 (S.C.J.).) Where the statutory time period has been significantly exceeded, the court should exercise its discretion to further extend the time only in "the exceptional case." (See C.A.S. of Toronto v. D.S., (2009), O.J. 4605 (S.C.J.).)

[155] This is an "exceptional case."

[156] A Crown wardship order is the most profound order that a court can make. To take a child from a parent is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T. reflex, (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.).

[157] In determining the best interests of A.L., I must assess the degree to which risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective. See Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, [1994] S.C.J. No. 37, 1994 CarswellOnt 376.

[158] A child's need for permanency planning within a time frame sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the Society's removal of the child from their care and has developed some new ability as a parent. See supra Children's Aid Society of Toronto v. R.H. and M.N., 131 A.C.W.S. (3d) 455, [2000] O.J. No. 5853, 2000 CarswellOnt 6170 (Ont. C.J.) per Justice Heather L. Katarynych.

[159] The parents argued that they have not been given a reasonable opportunity to parent A.L. They argue that they can parent A.L. if only the visits took place outside of the artificial confines of supervised access. The case law has established that the court should consider whether the Society has given the parent a reasonable opportunity to parent. Where the Society frustrates contact with the parent and offers no services, this consideration must come into the equation. See Children and Family Services for York Region v. A.W. and M.M. (2003), 121 A.C.W.S. (3d) 299, [2003] O.J. No. 996, 2003 CarswellOnt 936 (Ont. Fam. Ct.); Catholic Children's Aid Society of Metropolitan Toronto v. P.M., 82 A.C.W.S. (3d) 714, [1998] O.J. No. 3766, 1998 CarswellOnt 3659 (Ont. Prov. Div.); Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry v. C.K. and C.C. (2001), 102 A.C.W.S. (3d) 1107, [2001] O.J. No. 128, 2001 CarswellOnt 219 (Ont. Fam. Ct.); Catholic Children's Aid Society of Toronto v. A.M. and A.A., 2007 ONCJ 743, 2007 ONCJ 743, 89 R.F.L. (6th) 209, [2007] O.J. No. 4651, 2007 CarswellOnt 10083 (Ont. C.J.). However, the evidence is clear that this is not the case here.

[160] I do agree that Subsection 70(4) of the Act is not intended for the purpose of preserving a specific foster care placement on a long-term basis. It would be an abuse of the legislation to apply this subsection as a back-door mechanism to avoid the Act's mandate to achieve permanency planning for children through a Crown wardship order, to engage in a discussion of the benefits of long-term foster planning versus adoption, which is now precluded under the November, 2006 amendments to the Act set out in subsection 59(2.1) … or to avoid the presumption against access to Crown wards test set out in subsection 59(2.1).

[161] In a case such as this one, the decision process on a disposition hearing is 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 Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59(2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

4. Determine whether the access would impair the child's future opportunities for adoption. (Section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step.

5. 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.)

[162] The statutory scheme puts the burden on an applicant Society through steps 1 and 2 above. However, once the decision is made in favour of Crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; Children's Aid Society of Lanark v. S.W., [2004] O.J. No. 1897 (Div. Ct.); Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (C.A.); Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Div. Ct.). Sometimes a children's aid society will ease a parent's burden by being the proponent of an access order, especially in the case of an older child for whom it concludes an adoption placement is unlikely, or is unlikely to succeed, and a continuing relationship with a parent is in the child's best interests.

[163] 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?

[164] 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.

[165] What kind of plan is developmentally age-appropriate for A.L. so that particular attention can be paid to her special needs as an infant child? See, e.g., chapter 19 in James Robertson and Joyce Robertson, Separation and the Very Young (London: Free Association Books, 1989); Mark T. Greenberg, Dante Cicchetti & E. Mark Cummings eds., Attachment in the Preschool Years: Theory, Research and Intervention (Chicago: University of Chicago Press, 1990); and Solomon J. & George C. eds., Attachment Disorganization (New York: Guilford Press, 1999).

[166] The seminal research of Joan Kelly has clearly outlined that designing parenting plans for infant children involves a determination of the following points:

(a) Nature of the child's attachments to each parent;

(b) The child's comfort level with each parent;

(c) The parents' ability to sooth and stimulate development as well as provide basic physical care-taking.

(d) The length of time the child can endure separation from each parent, given the child's primitive sense of time and understanding, without undue stress or an undermining of each parent-child relationship. Joan Kelly, "The Best Interests of the Child – A Concept in Search of Meaning" (1997) 35 Fam. Ct. Rev. 380.

[167] In the Family Court Review article "Divorce in the Nursery: On Infants and Overnight Care" (Carol George, Judith Solomon and Jennifer McIntosh, 49 Fam. Ct. Rev. 521), George and Solomon reflect on questions concerning young children. George advocates for "times of intimacy" between parent and baby. These types of interactions include bathing, diapering, playing, and possible feeding. Attachment, George argues, does not depend on the second parent being the first person to see the baby in the morning or in the middle of the night. Rather, what does matter is a combination of intimacy with the baby (i.e., opportunity for the parent to be affectively attuned to the infant), sensitive response to the baby and joy and delight about the baby.

[168] George and Solomon agree that, from the attachment paradigm, what makes overnight care manageable and productive for a young child is the parents' capacity to communicate with one another, be flexible and keep the child's needs in focus. While they tolerate a bit of stress in the child in order that the child learn to self-soothe, they support the child by calming them down and making sense of their experience.

[169] To be responsive to A.L.'s psychological needs, the parenting schedules adopted for her should involve more transitions, rather than fewer, to ensure the continuity of both relationships and the child's security and comfort during a time of great change. To minimize the deleterious impact of extended separations from either parent, there should be more frequent transitions than would perhaps be desirable with older children.

[170] See What About the Kids: Raising Your Children Before, During and After Divorce, where Wallerstein outlines the following advice to parents going through a divorce in terms of what she calls "The Developmental Ladder":

By age two, if your child is developing well, and is comfortable with both of you, and if the two of you are communicating well, there is no reason he can't spend occasional overnights with Dad. Two nights in a row may be difficult until he's older. You don't want him to worry that Mommy has disappeared. But as long as the same routines are followed, I've seen curious toddlers thrive in such arrangements: it's a big achievement to go to another parent's house at this tender age. Judith Wallerstein & Sandra Blakeslee, What About the Kids: Raising Your Children Before, During and After Divorce (New York: Hyperion Books, 2003) at 48-49.

[171] Parents of children between the ages of one and three years old who had overnights, and those with more caretakers, reported that their children had fewer social and attention problems than those with no overnights. See Pruett, M.K., Williams, T.Y., Insabella, G. & Little, T.D., "Family and Legal Indicators of child adjustment to divorce among families with young children" (2003) 17 J. Fam. Psychol. 169 and Pruett, M. Ebling, R. & Insabella, G., "Critical aspects of parenting plan for young children: Interjecting data into the debate about overnights" (2004) 42(1) Fam. Ct. Rev. 39 and Barbara Fidler, "Developing Parenting Time Schedules: Conundrums and Considerations" in Martha Shaffer ed., Contemporary Issues in Family Law, Engaging with the Legacy of James G. McLeod (Toronto: Thomson Canada Limited, 2007) at 357.

[172] In Ryan v. Scott, 2011 ONSC 3277, 2011 CarswellOnt 8823 (Ont. S.C.J.), the court was asked to adjudicate the appropriate order respecting the parenting of a 16-month-old who was born after the parties terminated their dating relationship. The court went on to address the scholarship of Joan B. Kelly and Michael E. Lamb; namely, that the goal of any access schedule should be to avoid long separations from both parents. The court also referred to jurisprudence holding that in appropriate circumstances, overnight access to a parent is not restricted by the age of the child.

[173] Again, the article "Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children," authored by Joan B. Kelly and Michael E. Lamb, in the Family and Conciliation Courts Review, Vol. 38, No. 3, July 2000, 297-311. Infants begin forming attachments to their caregivers at six or seven months, continuing through to 24 months. If a child is removed from a parent to whom he or she is attached, there are negative implications.

[174] The goal of any access schedule is to have sufficiently frequent and broad contact with each parent to keep the infant secure, trusting and comfortable in each relationship. The rationale is the maximum-contact principle.

[175] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to findings 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.

[176] 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. I have considered the parents' past history.

[177] 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).

[178] The evidence is overwhelming that A.L. is in need of protection at the time of the apprehension.

[179] I further find on a balance of probabilities that A.L. continues to be in need of protection pursuant to s. 37(2)(b)(i) of the Act.

[180] In determining the best interests of A.L., I have assessed 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.).

[181] In Children's Aid Society of Toronto v. K.P. and R.S. (March 31, 2006), OCJ, North York File #C21051/02, Justice Sherr expressed the following opinion as to whether this court had jurisdiction to apply s. 70(4) where a child under the age of six had been in care for over 18 months:

There is conflicting case law concerning how long the statutory time limits can be extended by applying subsection 70(4) of the Act. A restrictive interpretation was taken in the case of Children's Aid Society of Hamilton v. M.A.M., D.L. and M.M. (2003), 121 A.C.W.S. (3d) 889, 16 O.F.L.R. 235, [2003] O.J. No. 1274, (Ont. Sup. Court-Family). Justice Stayshyn ruled that there was no jurisdiction to extend the time for society wardship in subsection 70(4) when a child had been in care for 21 months. He further stated in paragraph [157]:

[157] In my view, s. 70 which sets the time limits for Society wardship orders should not be interpreted as a maximum time for parents to improve their parenting skills. Rather, it should be interpreted as a ceiling for the length of time which a child may remain in foster care. Inherent in that analysis is the assumption that parents will work immediately to improve their parenting skills so that a child can be returned to them as quickly as possible within that 12-month period.

In Children and Family Services for York Region v. A.W. and M.M., supra, Justice Wood stated:

[31] In exceptional circumstances, the court is empowered to extend the period a young child can remain in care past the 12-month limit to a maximum of 18 months. I am satisfied that this is an appropriate case in which to exercise that discretion.

A more liberal interpretation of the subsection was taken in the case of Children's Aid Society of Sudbury and Manitoulin v. P.M., [2002] O.J. No. 1217 (Ont. C.J.), where Renaud, J. stated:

[103] Arguably, inflexible legislative time provisions may superficially appear to work contrary to the child's best interests. Nevertheless, the courts possess sufficient flexibility to address individual situations. Subsection 70(4) may permit a court to make more than one order extending time periods, provided no one single order exceeds six months. Had the intention of the legislature been to limit the power of the court to grant a further extension, it would have been easy to state so, as in the provisions of Part V of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, permitting a single refraining order upon receipt by the payor of the first notice of suspension. Such an interpretation may not be giving language its plainest meaning but, arguably, such a reading may well be more consistent with the principles expressed in section 1 of the Act and with the best interests of a child in a particular case.

[105] Thus, the prescribed time periods should be followed to the fullest possible extent as may be consistent with the paramount consideration, being the best interest of the child.

This case was cited with approval in Children's Aid Society of Toronto v. M.W., 2004 ONCJ 127, [2004] O.J. No. 3160, (Ont. C.J.), where Justice Brownstone wrote in paragraph 29, when referring to the possibility of an extension of time pursuant to subsection 70(4):

[29] … I agree that in an appropriate case this might be done where a child's best interests clearly necessitate it. No child's connection to his family should be severed solely by reason of an arbitrary time limitation. …

In Children's Aid Society of Ottawa-Carleton v. D.B., [2002] O.J. No. 4118, (Ont. Sup. Ct.), Justice Smith stated:

[52] The interpretation which would make practical sense and which would give the court flexibility in making its decision would be to allow the court the discretion to grant a further six-month extension from the date the matter comes before the court, provided the court finds it is in the best interests of the child to grant the extension.

K.P. is asking me to stretch the envelope in applying this subsection, given the length of time that M.S. has been in care. That said, I agree with taking a liberal interpretation and find that I have the discretion in subsection 70(4) to grant a 6-month extension of society wardship from the date the matter comes before the court, provided that it is in the child's best interests to do so. I find in this manner for the following reasons:

(a) The paramount consideration set out in section 1 of the Act is the best interests of the child.

(b) Arbitrary time limits should not be used to defeat the best interests of a child.

(c) If the Legislature had wished to restrict the applicability of subsection 70(4), it could have done so.

(d) This interpretation does not diminish the importance of finding a permanent placement for a child in a timely fashion. It is the clear intention of the legislation that children not languish in care. Section 70 of the Act provides direction to the court that a child under the age of 6 should not ordinarily remain a society ward in excess of one year. It stands to reason that the longer a child is in care, the more weight will be given to the factors set out in subsection 37(3) of the Act which deal with planning for a child in a timely manner when determining what order is in their best interests. Just because a court has the discretion to order an extension will not mean that it is in the best interests of a child to do so.

(e) There will be cases where, for a variety of reasons, it is in the best interests of a child to return a child to a parent, but a delay is appropriate. See Kawartha-Haliburton Children's Aid Society v. K.M., [2001] O.J. No. 5047, (Ont. Sup. Ct.). Examples of this can be a parent's needing a little more time to complete a program where participation was delayed because of waiting lists; waiting for an important support service to become available for either a parent or child; waiting for imminent housing to become available or, as in this case, to assist a child making a positive and gradual transition from a foster placement to a home placement. It would be detrimental to a child to rush this process for the sake of strict compliance with a time guideline.

(f) If a restrictive interpretation was given to this subsection, courts, to avoid offending it, might adjourn trials to allow implementation of plans that they considered to be in a child's best interests. It is a preferable practice to address the issue in a straightforward manner consistent with the best interests of the child. The court should not be constrained in being able to accommodate these situations. My interpretation of subsection 70(4) is that it provides this flexibility.

In determining whether to apply subsection 70(4), I agree with the following principles that were summarized in the case of Children's Aid Society of Ottawa-Carleton v. K.F., [2003] O.J. No. 2326, (Ont. Sup. Ct.-Family):

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

(b) The decision to extend must be viewed from the child's perspective.

(c) In determining the child's best interests, I must consider the factors set out in subsection 37(3) of the Act.

(d) I must be satisfied, balancing the factors set out 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."

Positive Findings

[182] The negative evidence about the parents was not without positive evidence about them. This evidence was as follows:

• The parents were described as having a close and loving relationship. There were no reports from the community to the contrary.

• The parents favourably impressed me with their detailed observations of how they care about A.L., both prior to her coming into care and while at access visits. It was apparent to me that both parents are better attuned to her physical and emotional needs. They have demonstrated a good knowledge of A.L.

• I am confident that the parents would provide a suitable physical environment for A.L.

• They do not miss access visits. They are punctual. This demonstrates to me an impressive level of commitment to A.L. and a degree of selflessness that will assist them to parent positively.

• The access visits have been, at least lately, described overall as positive.

• Arguably, if the parents' tendency to a rigid parenting style would come out when they are overly stressed, one might argue that a supervised setting reduces this stress. This is possible, but it seems to me that supervised visits can be very stressful. Parents are constantly being observed and evaluated. If they have not exhibited rigid parenting under these circumstances, it seems unlikely that they will act in this fashion in an unsupervised setting.

• A.L. is more comfortable with her parents.

• I find that the level of risk to A.L. has been reduced significantly due to the parents' recognition of the need to improve their parenting, and the steps they have taken to improve it.

• They have impressed me with their commitment to their family.

• They have continued to support each other during these difficult times. I observed myself during the trial the tenderness and emotional support they gave to one another. They are respectful to each other. This will provide a positive example to A.L. going forward.

• The parents are willing to do whatever is necessary to have A.L. returned to them. I have no doubt they will do whatever is required of them. They just need the proper direction.

• It was very impressive that when they did not receive clear direction from the Society, the parents took steps themselves to improve their parenting and chances of having A.L. returned to them. Their adaptive behaviour is important. The degree of risk to A.L. is considerably reduced by their commitment to seek and make use of supportive services.

• Although the parents may overestimate their family support, they do have other supports. The parents have proven they are willing to reach out for help. They do not isolate themselves.

[183] It is troubling when a case comes to trial and parents who should have had significantly greater access with their child have not. It places the court in a very difficult situation. There is no evidence before me concerning the parents' ability to manage A.L. in other than a supervised setting. Without this evidence I must project whether the parents will be successful in parenting A.L.

[184] Hindsight is 20/20, but as the evidence unfolded, it became clear to me that the parents were never given the opportunity to parent A.L. This is no fault of the Society.

[185] There were many opportunities for the Society to facilitate less restrictive access arrangements, while at the same time ensuring that they were safe for A.L., but this direction often comes from parents' counsel and then the court.

A.L.

[186] I have decided that it is in A.L.'s best interests to be returned home to her parents. I have already set out in detail why the level of risk to A.L. has been significantly reduced.

a) The Society's plan is to have A.L. adopted. A.L. is going to have to go through the distress of having her primary attachment broken whether she remains in care or goes home.

b) The legal option for A.L. is adoption with no access to her parents. In weighing the options available to me, I do not believe that the option of crown wardship with no access is in A.L.'s best interests. I believe the parents have a lot to offer A.L.

c) A.L. should have the opportunity to live with her own family if this is possible.

d) A.L. should have the opportunity to be raised in her own culture, if possible.

e) The parents should be available to give sufficient attention to meet the needs of A.L.

f) The parents have the ability and motivation to learn about A.L.'s needs and ensure that they are adequately addressed.

g) With appropriate supports, I believe that the parents will be able to competently parent A.L. If properly directed, the parents will obtain and make use of these supports.

h) The parents must be given the opportunity to parent A.L.

i) I find this decision to be the least disruptive alternative adequate to protect A.L. as I am directed to consider in s. 57(3) of the Act. I believe that the risk concerns for A.L. can be met with specific terms of supervision.

[187] I have determined that it is in A.L.'s best interests to be returned home in a transitional manner over the next four months as it will facilitate her adjustment and her inevitable feelings of loss of her foster family.

[188] This is exactly the type of case where it is appropriate to apply s. 70(4) of the Act to extend the timelines. We are not keeping A.L. in limbo (which the section addresses). We are doing exactly the opposite. We are placing her with the parents. The decision is made. We are not giving the parents extra time to achieve what they should have achieved several months ago. They are ready now to parent A.L.

[189] I am also very aware that the parents have not had unsupervised access to A.L. for almost 18 months. It is going to be a significant adjustment for them to parent on a full-time basis.

[190] They will be required by this order to work with a parental support worker from the Society who will attend at their home to provide them with one-on-one parenting assistance. They will need to deal with the Society's family service worker. They will be required by this order to continue with family counselling.

[191] A.L. shall remain a Society ward for four months and then be placed in the care and custody of her parents, subject to the supervision of the Society for six months. Her transition to her parents shall take place as follows:

a) Commencing on June 23, 2012, she will spend each Saturday and one weekday with her parents from noon to 4:00 p.m.

b) Commencing on July 14, 2012, she will spend each Saturday and two weekdays with her parents from 10:00 a.m. to 5:00 p.m.

c) Commencing on August 4, 2012, she will spend each Saturday and two weekdays with her parents from 10:00 a.m. until noon of the following day.

d) Commencing on September 1, 2012, she will spend every Friday at noon until Sunday at 6:00 p.m. and one weekday from noon until 4:00 p.m. with her parents.

e) The parties may mutually agree on amending the above schedule in consideration of the schedule of A.L. and her foster family.

f) She shall remain in her parents' care upon the completion of the last visit.

g) The Society shall provide the transportation for these visits.

[192] The following will be the terms of supervision with respect to A.L.:

a) The parents are to attend for family counselling with counsellor agreed upon by the Society.

b) The parents shall permit Society staff to make scheduled and unscheduled visits to their home.

c) The parents shall permit the Society workers access to A.L. in the community.

d) The parents shall sign any necessary consents or directions to permit the Society to communicate directly with service-providers for them and A.L. and to have information released to them.

e) The parents shall work with any parent support worker provided by the society.

f) The parents shall follow through on any medical recommendations made by the children's service-providers.

g) The parents shall follow any safety recommendations made by the Society to be made to their home.

h) The parents are to notify the Society 10 days in advance of any intention to change their phone number or address and provide this information to them.

[193] The next few months will likely be difficult for A.L. as she adjusts to her new situation. It is very important for the parents to know that they are not expected to be perfect and have all the answers to deal with A.L. When problems arise, they must let the service-providers and the Society know so that they can receive advice and support. If they ignore A.L.'s problems and don't reach out for help, A.L. will not do well.

[194] I wish to thank all counsel for their professional presentation of this difficult case.

[195] Counsel to be notified.

Released: June 22, 2012

Signed: Justice Marvin A. Zuker