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.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

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

Court Information

Court File No.: Goderich 10 12

Date: 2012-01-03

Ontario Court of Justice

Parties

Between:

Huron Perth Children's Aid Society, Applicant

— AND —

B.M.[1], B.M.[2], E.A.J. and B.J.M., Respondents

Before: Justice Brophy

Heard on: 24, 25, 26, 27 and 28 October and 7, 9, and 10 November 2011

Crown Wardship Disposition Order made: 3 January 2012

Reasons for Judgment released: 27 March 2012

Counsel

Barbara Tuer — for the applicant society

Mary E. Cull — for the respondents B.M.[1] and B.M.[2]

David A. Reid and Michael G. Blackburn — for the respondent E.A.J.

James C. McIlhargey — for the respondent B.J.M.

Sarah C. Wisking — for the Office of the Children's Lawyer, legal representative for the children X.F.M. and M.S.M.

INTRODUCTION

[1] The Huron-Perth Children's Aid Society (herein the Huron Perth Children's Aid Society, Society or CAS) seeks an order for crown wardship with access in favour of the grandparents pursuant to Bill 179, so that the children X.F.M., born […], 2004, and M.S.M., born […], 2006, can be placed for adoption, pursuant to section 57(1) paragraph 3 of the Child and Family Services Act, R.S.O. 1990, Chapter C.11, as amended (herein the Act) (section references are to the Act unless otherwise stated).

[2] The Respondents B.M.[1] and B.M.[2], born […], 1951 and […], 1953 respectively, are the paternal grandparents of the children. They had custody of the children pursuant to a section 57.1 Order prior to their apprehension. The grandparents have now accepted that they can no longer look after the children and have agreed with the CAS that they should have access pursuant to the Child and Family Services Act a minimum of once per month. B.M.[2] and B.M.[1] played no role thereafter as parties in the trial and their counsel withdrew.

[3] The Respondent E.A.J., born […], 1983, is the biological mother of the children. She seeks their placement with her subject to supervision, or an independent order for unsupervised access.

[4] The Respondent B.J.M. (known as B.J.M.) born […], 1979, is the biological father. Separately from the Respondent mother he asks for the placement of the children with him subject to supervision, or an independent order for unsupervised access.

PROCEDURAL HISTORY

[5] The children were apprehended from the grandparents on 25 January 2010 as a result of bruising on them observed by a CAS worker. A without prejudice temporary care and custody Order was made on 29 January 2010 by MacKenzie J. placing the children with the Huron Perth Children's Aid Society subject to access. The without prejudice was removed by MacKenzie J. on 12 March 2010.

[6] The children had been in the care of their paternal grandparents since October of 2008 as part of a Child and Family Services Act proceeding in the Halton Region. On 30 April 2009 the grandparents obtained a section 57.1 custody Order.

[7] The paternal grandparents also have three other grandchildren in their care. These children are B.M.[3], born […] 2001, E.M., born […] 2003, and K.M., born […] 2006. They are the children of another son, D.M., and his former partner N.C.. These children were also apprehended on 25 January 2010, but were returned to the grandparents on 29 January 2010 by Order of MacKenzie J. and the child protection proceedings with respect to them has since been discontinued.

[8] The section 47(2) statutory findings with respect to the children who are the subjects of these proceedings were made 24 October 2011 as follows:

• The children are X.F.M., born […], 2004, and M.S.M., born […], 2006
• They have no established religion and are not native.
• Their mother is E.A.J., one of the Respondents
• B.J.M. is recorded as the father of X.F.M. and B.J.M. is noted as the father of M.S.M.. That person is the same person as B.J.M. (B.J.M.), one of the Respondents.
• The apprehension took place at the Wingham Hospital in the County of Huron.

PROTECTION FINDING

[9] At the commencement of the trial on 24 October 2011 the grandparents agreed to a finding that the children were in need of protection on the basis that they could not look after the children, pursuant to section 37(2)(l). A Statement of Agreed Facts was signed by all of the parties supporting that finding and an Order was made to that effect.

ISSUES

[10] The sole issue is disposition.

[11] The CAS is of the view that crown wardship is necessary. Further the CAS is of the view that the paternal grandparents should be granted access pursuant to the amendments to the Child and Family Services Act set out in Bill 179. The CAS Plan of Care is that the children both be made crown wards and that the children should have access with one another and that B.M.[2] and B.M.[1] should have reasonable access to each of the children at least once per month.

[12] The Office of the Children's Lawyer supports the CAS position with respect to crown wardship, but submits that the parents should have access and that the children should have access to one another in the event they are not placed in the same home.

[13] The parents separately present plans that the children be placed with one parent alone. Those plans are in opposition to the plan of the CAS and are in competition with one another, although they each say that if they fail then they support the opposite parent. If they both fail each of them asks for an access order.

FACTS

[14] The children came to be in the care of the paternal grandparents because the parents were unable to look after them because of drug addiction issues.

[15] The history is that the parents started a relationship in 2002 after having known each other through mutual high school friends. They soon began living together and X.F.M. was born in 2004.

[16] The Respondent mother had an older child, R., born […], 2002. He was living with Ms. E.A.J. mother, A.B., having been placed with her by the Respondent mother in 2003 when R. was approximately one year old.

[17] The couple lived in various residences in the Oakville area, where most of their family was based, and ultimately had a second child M.S.M. in 2006.

[18] Their relationship was clouded by cocaine addiction issues. The explanation offered is that B.J.M. had suffered a back injury and gradually developed an addiction to Percocets for pain management. Somehow this migrated into a cocaine addiction that was shared by the Respondent mother. The addictions began to cause a great deal of stress and dysfunctionality in the family unit and there were incidents of domestic conflict. At the same time there was a brief attempt to integrate R. into the home.

[19] The children lived with the mother of Ms. E.A.J., A.B., for a number of months in 2006, but this was not successful as Ms. A.B. was not able to look after all three children and X.F.M. and M.S.M. came into the care of the Halton CAS on 5 October 2006.

[20] On 29 March 2007 the children were found in need of protection and made society wards for seven months.

[21] In the fall of 2008 in a Status Review Application the Halton CAS decided that it was time to seek crown wardship for the children after the Respondent father tested positive for cocaine on both 1 April 2008 and 16 July 2008. The evidence is also clear that Ms. E.A.J. was continuing to use cocaine during this period, and indeed her last use of cocaine that is admitted was in December of 2009.

[22] After the Halton CAS sought an order for crown wardship the paternal grandparents offered a home for the children. On 1 October 2008 the children were placed with B.M.[1] and B.M.[2] and on 7 December 2008, after receipt of a favourable Kinship Assessment, they were placed with the grandparents pursuant to a supervision Order.

[23] It is important to note that the Respondent mother agreed with the facts in support of the finding that the children were in need of protection and consented to the placement with the grandparents. The Respondent father had not filed an Answer and was noted in default and the matter proceeded in his nominal absence, albeit with the children placed with his parents.

[24] In the spring of 2009 the matter went back to court in Milton and the grandparents obtained a section 57.1 custody Order on 30 April 2009. In this instance both of the biological parents consented to the Order.

[25] B.M.[1] was born in 1951 and B.M.[2] was born in 1953. They were 57 and 54 respectively in 2008. Their thoughts had turned to retirement and in furtherance of that idea in 2006 they purchased a home near the Village of Wroxeter, a small rural community in Huron County. Their plan was to move to that residence as they gradually retired. The evidence of B.M.[2] is that the plan to move to Wroxeter was known to all family members. In fact they did move to Wroxeter in the fall of 2008 with all five of the children in their care.

[26] After the move to Wroxeter the contact between the children and the parents dropped off. B.M.[2] never got along with Respondent mother and now that the children were living with the grandparents', the Respondent mother's access was awkward and limited. In addition Ms. E.A.J. had great difficulty arranging for transportation from the Oakville area, approximately a two hour drive away from Wroxeter. As for B.J.M., he had a falling out with his parents in this time period and only saw the children on rare occasions.

[27] The children exhibited challenging behaviours and the grandparents accessed a number of services to help them. In particular, they worked with the Huron Perth Centre for Children and Youth and specifically Shirley Brooker, a counsellor with that children's mental health agency. X.F.M. especially displayed problems, including sexualized behaviours, and there was a great deal of conflict and exaggerated competition between X.F.M. and M.S.M.

[28] The children were apprehended from the grandparents on 25 January 2010 as a result of fears that the children were at risk of physical harm. This decision was made because of observations by a Society worker that suggested the children had been hit by the grandparents.

[29] Although the physical abuse allegations were never definitively proven it is clear that the grandparents were frustrated by the level of care the children needed. At the same time B.M.[1] was experiencing serious health difficulties. Service providers at the Huron Perth Centre and the Howick Central Public School expressed concerns that, although well intentioned, B.M.[1] and B.M.[2] were overwhelmed by the care of five young children.

[30] B.M.[2] testified that she and her husband, given their other obligations and B.M.[1]'s failing health, are simply unable to look after X.F.M. and M.S.M.. They have agreed that the children are in need of protection as a result. They intend to remain involved with the children and to promote a relationship between them and their cousins. In fact the children have long enjoyed regular unsupervised access with the grandparents and their cousins in the home of the grandparents.

[31] When B.M.[2] testified she was very careful in her evidence. She was mindful that her son seeks the return of the children to him. A fair reading of her evidence however is that she does not oppose the CAS request for crown wardship for the purposes of adoption, subject to an access Order in favour of herself and her husband, which would give her the ability to seek an openness Order in due course. Her evidence also suggests that although her relationship with her son has been stormy, in all likelihood he will be able to participate in some activities in the grandparents' home that would allow him contact with the children. This would not appear to be the case with the Respondent mother.

[32] The parents were not actively involved with the children when it seemed that the major point of dispute was whether the children would be returned to the grandparents. Once the grandparents settled however both parents then became actively engaged in trying to plan for the children and seeking an order of the court placing the children with them.

[33] In fairness both parents filed Answers seeking the placement of the children with them. But in the case of B.J.M. he seemed to be relying on his parents to carry the ball. With respect to E.A.J. she has always been trying to advance her case as best she could, but she has had great difficulty in establishing a plan.

[34] After the children came into care in Huron County the parents tried different stratagems to establish relationships with the children. They tried to exercise access more frequently. They both moved separately to the Goderich area in 2010. However they were not able to remain because of what they perceived as housing issues and job limitations and frankly homesickness for the Oakville area where all their connections were. The net result is that the children were disappointed by their parents' inability to attend for access visits.

[35] For example the father had 18 visits with the children in 2010 (with 14 no shows or cancellations), but none after August of 2010. In 2011 he had only 4 visits (with 5 no shows or cancellations). His dismal performance in late 2010 and all of 2011 was because he left the Goderich area. The Respondent father says this was because of lack of work. The evidence also establishes that he was having relationship problems with his partner R.H. and she left to return to the Oakville area. He soon followed her. After that transportation problems prevented him from exercising access. In all in 2010 and 2011 he attended only 23 of 40 scheduled visits. It is fair to say that the access visits he did attend were generally successful.

[36] In 2010 and 2011 the mother had 28 visits scheduled and only attended 23 times. She had 19 visits in 2010, cancelling 5 times. Her visits dropped off in August of 2010 and then in 2011 she visited once in March and once in April and then no visits until October, near the time when the trial was scheduled to start. The visits tailed off because of transportation problems and personal difficulties the mother was experiencing. Again in fairness her visits, when they did occur, were satisfactory.

[37] By way of contrast the grandparents exercised consistent regular access. In 2010 they had 19 access visits. In 2011 from January to April they had seven access visits and then starting in June they exercised access bi-weekly and then in July and August each Wednesday and Sunday and then finally commencing in September - every Sunday.

[38] Unfortunately the inconsistency and the inability to put the children first has long been a feature of both parents' relationships with their children. This is really a reflection of their difficulties in leading stable lives.

[39] The testimony of B.J.M. was revealing. He had a fairly normal upbringing and testified that he was successful in high school, although he said he was diagnosed with ADHD. Interestingly his mother B.M.[2] says that is not the case. In observing him testify, however, he clearly is a person who is constantly in motion and sometimes speaks without careful thought. He is also prone to exaggeration.

[40] For example:

(a) He says that he has been diagnosed with ADHD when his mother says that did not happen.

(b) He describes his inability to see the children because he was metaphorically a prisoner of his parents while doing renovations to their Oakville house to prepare it for sale. He tried to suggest this took weeks to accomplish and that somehow he was not a free actor to take time to visit with his children.

(c) He describes the school where R.H.'s children go to school in Hamilton, Ontario, as being almost immediately next door, when in fact it is several blocks away.

(d) He insists that he and R.H. did not separate in the summer of 2010 even though she left Goderich and went back to Oakville and took up residence with her former boy friend's mother and then went with the former boy friend and his family to a cottage for a month that summer.

(e) He accepts that it is alright for R.H. to fraudulently participate in a methadone program so that she can support him as he goes through that process.

(f) And as a final example he was one hour late for the first day of this trial because he was at a local pharmacy to participate in that same methadone program.

[41] It is also clear that he does not pay attention to rules. He has been charged twice in the last year with driving while under suspension. He also has a criminal record. In 2004 he was convicted of assault with a weapon. In 2005 he was found guilty of theft under $5,000.00 and breach of probation.

[42] Some of these incidents are more significant that others – but cumulatively they suggest someone who is finessing the truth to accomplish goals. They do not allow the court to have any faith in him as a reliable witness, nor as a person who can be consistent and dedicated to doing what is right for the children.

[43] R.H. is B.J.M.'s partner. She testified at the trial. On the surface she appeared to be calm and collected. However in the past she has experienced some mental health difficulties.

[44] She has two older school age children and an infant son with B.J.M.. She lives with him and the children in Hamilton. She has access to a motor vehicle that belongs to her mother and with that motor vehicle provides legal transportation for B.J.M., who does not currently have a licence. The evidence of B.J.M. and Ms. R.H. make it clear that she is the key to his plan for the children.

[45] Ms. R.H. has made some decisions that are difficult to understand.

[46] First, she voluntarily entered in to the same methadone program as Mr. B.J.M. without any reason for doing so. She admits that she acted fraudulently by telling the managers of the program that she had a substance abuse problem when she did not. Her reason for doing so is obscure. She says that in part it was to support B.J.M. through the process and it was also to gain the experience of being involved in a drug treatment program because it is her ambition to be a drug treatment counsellor. All of which is bizarre at best, but totally inexplicable when B.J.M. says that he does not have a drug problem and was in the methadone program because of pain management concerns with respect to his back injury.

[47] Next, while actively engaged in the methadone program she allowed herself to become pregnant twice, the first pregnancy resulting in a miscarriage, even though by her own evidence she says that any pregnancy she has is high risk.

[48] Then in the late spring and summer of 2010 she decides that she can no longer abide living in the Goderich area and she returns to the Oakville community where she moves in with the mother of her former abusive boyfriend. She spends the summer there and even goes to a cottage with the ex boyfriend and his family for an extended holiday. Notwithstanding these facts at trial she insisted, as did B.J.M., that she and B.J.M. had not broken up and that they were at all times a family unit. In the same breath she then says that in the fall of 2010 the former boyfriend became abusive again and she cut off all connection with him and at that point she and B.J.M. resumed their ordinary relationship, moving in together once again.

[49] They initially set up home in the Oakville area but soon moved to Hamilton, so as to be closer to where B.J.M. was working in construction.

[50] It is noteworthy that during all of these moves – from Oakville to Goderich to Oakville to Hamilton – in 2010 and 2011 – only two years - her two older children have attended seven different schools.

[51] E.A.J. also has a dysfunctional history. She testified that she left her mother's home for the first time when she was approximately 14 years old and lived in youth shelters and on the streets. She returned to her mother's home periodically and Ms. A.B. helped her during her first pregnancy. Her complaint with respect to her mother was that she partied all the time and lived with different men.

[52] As a youth she was convicted in 1998 of two counts of break and enter, in 2001 of theft under, and in 2002 of possession of property obtained by crime and breach of probation. As an adult in 2005 she was convicted of theft under. Her employment history is almost nonexistent. The Halton CAS had some contact with her about the care of her son R. and she found it necessary to ask her mother, A.B., to look after him, even though she seems to have very little respect for her. R. continues to live with A.B. and Ms. E.A.J. continues to return to her mother's residence from time to time, sometimes to see R. and sometimes as a place of refuge. Notwithstanding all of the complaints Ms. E.A.J. has about her mother she and the Respondent father actually asked A.B. to look after all three children shortly before the final intervention of the Halton CAS.

[53] After the apprehension of the children in January of 2010, Ms. E.A.J. moved to Goderich and lived in the Women's Shelter. She was also approved for Second Stage Housing in Goderich but decided that she would not be able to cope with the minimal social assistance that would have been available. She went back to Oakville and then returned to Goderich in March or April and stayed in the home of J.H., a new friend she had made in Goderich.

[54] She fell in with some people who wanted to party and she described going to Sauble Beach for the 24 May 2010 long weekend. While there she says she was drinking and depressed and someone slipped her some ecstasy and she ended up in a conflict with the police and was charged and plead guilty to obstruction. It was this ecstasy that a drug test result obtained by the Huron Perth Children's Aid Society revealed, along with marijuana. In a side note Ms. E.A.J. suggests that the marijuana result is not important because almost everyone she knows uses marijuana.

[55] In June of 2010 she was driving the motor vehicle of J.H., who was too drunk to drive, and she was pulled over by the police and charged with a drinking and driving offence and breach of an undertaking not to consume alcohol. She ended up in Stratford court and was found guilty in November of 2010 and served the equivalent of 11 days in jail.

[56] In the interim in July of 2010 she became drunk and took a $200.00 cab ride with her boy friend E.T. from Goderich to her mother's residence in Oakville arriving around 11 pm. Her mother objected and threatened to call the police and there was a physical confrontation and the neighbours ended up calling the police. Ms. E.A.J. was charged with assault and breaching her release terms with respect to alcohol consumption. Fortunately the assault charge was withdrawn but she did plead guilty to the breach and served 7 days at Vanier.

[57] Mr. E.T. was on probation for a domestic assault on her and was not allowed to be in her company. He was charged with breach of that provision. Ms. E.A.J. says that he is not her boy friend and yet she texts him almost every day and speaks to him on the phone almost every second day, this after taking the trouble to get his probation Order varied so as to allow this non direct communication to be approved. She also says that after his probation Order is finished she will probably see him. It is also interesting to note that Mr. E.T. has a prior conviction for domestic assault in the mother of his children, a fact that the Respondent knows about but thinks is unimportant. E.T. is 41 years old and the Respondent mother is 28 and she has known him since 2008.

[58] Several other troubling events have happened in Ms. E.A.J. life. In May of 2011 she was staying at a shelter in the Halton Region and became drunk and threatened to jump off a bridge. EMS and police services were called and she was hospitalized for 6 days in a psychiatric ward.

[59] Ms. E.A.J. then ended up back at her mother residence in July of 2011. She had a drinking relapse and as a result was admitted in August into a voluntary residential treatment program at a facility called Womankind Addiction Services Withdrawal Management. The program was five weeks in length, but she left after three because it felt like a prison.

[60] Ultimately she moved into the Optimism Place shelter in Stratford on 28 September 2011 and with the kind assistance of service providers in Stratford she was able to obtain a subsidized two bedroom apartment on 18 October 2011.

[61] The Respondent mother now says that things have stabilized for her and she has had a number of job offers, has made knew friends and attends a United Church. Her thinking is that by living in Stratford she will have more contact with the children. It is difficult to place much faith in these statements. Ms. E.A.J., although a sympathetic witness, does not appear to be reliable, given her history of poor decisions and lack of consistency and insight.

[62] It is important to note that neither the Respondent father nor mother have attended an intensive drug rehabilitation program, notwithstanding what was an extensive involvement with cocaine that lasted for a number of years. Nor has the mother received treatment for her use of alcohol and marijuana and possibly ecstasy. The father has had an addiction to Percocets that has not been fully addressed. He is in a methadone program and he self reports that it is for pain management. There is no report from the program itself and it remains somewhat mysterious as to why he is there.

[63] It is also noteworthy that no supportive witnesses have been called by the Respondent parents, save and except R.H., and to a limited degree B.M.[2]. In particular it would have been helpful to have heard from A.B. or some of the siblings of B.J.M.

[64] The Respondent father B.J.M. has lived in 19 different residences since 2004. The Respondent mother E.A.J. has lived in 27 residences since that date. 2004 is when X.F.M. was born.

[65] X.F.M. and M.S.M. have lived in at least seven different homes in their short lives.

LAW

STATUTORY PATHWAY

[66] The case of L. (R.) v. Children's Aid Society of Metropolitan Toronto (1995), 21 O.R. (3d) 724 (Gen. Div.) sets out the proper statutory pathway on a protection application.

[67] The first consideration is the authority to bring the application. Section 40 clearly authorizes the Society to bring this application. The children were apprehended in this jurisdiction with allegations that they were in need of protection. That issue is properly before the court.

[68] Section 47 directs the court to determine the question of whether the children are in need of protection. In this case a protection finding pursuant to section 37(2)(l) was made on consent at the outset of the trial. The Statement of Agreed Facts in support thereof was signed by all of the parties. The parties agreed that the children were in need of protection because the grandparents could no longer look after the children.

[69] It then becomes necessary to decide on what section 57(1) order is to be made. On these facts section 70 prohibits a further society wardship order. The court can only make an order for supervision or crown wardship.

[70] Section 57(9) provides that there may be cases where an order is unnecessary. That is not the case here. The children are young and they cannot return to the home of their grandparents who had custody of them. An order is necessary.

SECTION 37(3)

[71] In deciding what order should be made the court is directed to consider the best interests of the child and in doing so to examine the factors set out in 37(3). Those factors include the following.

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

[72] The children are physically healthy. However they have emotional needs that are acute in that they have received many disappointments in their short lives and have been moved into many different homes. They have an obvious need for stability and consistency from caregivers who will not go away. X.F.M. may have some mental health issues. His behaviours have suggested some abnormal fixations. Both children have received counselling from the Huron-Perth Centre for Children and Youth. The foster home in Huron County has been very effective in meeting all of their needs.

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

[73] The children are developing at a normal rate, with the possible exception of X.F.M. being premature in his sexual interests. It is interesting to note that they have a heightened sense of competition with each other.

The child's cultural background.

[74] The cultural background of the children is main stream and the plan of the CAS is to place them in an adoption home that is from the same general background.

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

[75] The children do not have an established religious faith tradition.

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

[76] It is extremely important that the children be placed in a home that that is permanent and secure and that they no longer have to fear that their world will be turned upside down. They need to develop a positive relationship with parents who will remain loyal to them. Only when they have that security of place and person will they begin to trust the adults in their lives.

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.

[77] The children have been in close contact with their paternal grandparents for approximately four years. It is important that they maintain that connection. The CAS plan allows for that contact on a regular and sustained basis. They have not had regular contact with their parents because of the inability of those parents to be capable or consistent. Their continued relationship with them is not vital to their best interests. They do have cousins living with their grandparents and having access to their grandparents would facilitate permit continued association with those cousins. There are no other family members or members of the community that have stood out as having significant relationships with the children.

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

[78] These children need consistent care. It is vital to their development and sense of security. Disruptions in a long term placement would cause them great harm.

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

[79] The CAS proposes to place the children in an adoptive home, preferably together. The CAS is currently of the view that the children should continue to have access to their paternal grandparents so as to honour and respect the connections that the children have had with those grandparents and to ensure that the children continue to have the support of the two persons who have been most consistently caring for them over the last number of years. The focus of the CAS plan is to have the children placed in a permanent home where they will not experience upheaval and dislocation and where they will be able to develop in a secure, stable and loving environment.

[80] The plans of the parents each propose a placement with one of them. Neither parent has been stable, financially or emotionally, in the past. They have been subject to substance abuse problems, multiple residences, job insecurity or movement, conflict with the law, hostility towards family members and unwise associations.

[81] The great danger in the plans of the parents is that they will not be able to maintain their current situations. There is a strong likelihood that the very problems that caused their inability to parent the children in the past will re-emerge. If that happens the children would be back into a world where their lives would be subject to whatever winds and storms their parents are experiencing and they would never have security and constancy.

[82] Moreover if the plans of the parents were accepted it is likely that contact with the paternal grandparents would be restricted or minimized. The Respondent mother has a very poor, indeed almost non-existent, relationship with the grandparents. The Respondent father has a conflicted relationship with his parents as is evident from the history of his family over the last five years. It is significant that none of his siblings testified in the trial and that his mother gave lukewarm support to him at best and indeed contradicted his evidence in part. Further, he was essentially estranged from his parents for a number of years. The chances of either parents being able to promote a continued relationship with the grandparents is remote. This is a negative for their plans as the relationship with the grandparents is a significant fact in the children's lives.

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

[83] There is no evidence from the children directly. However the evidence generally suggests that the children would like to live with their father. In my view this is a product of the father`s over sized personality which leads the children to have a form of hero worship that is not supported by the objective facts. It is an example of children wishing for a parent figure that exists in their hopes and dreams but not in reality.

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

[84] The children need a permanent placement as soon as possible and delay would work against their best interests.

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.

[85] There is serious risk that the children may suffer harm if they are placed with one of their parents. The problems that have plagued the parents have not disappeared and the parents are at a high risk of living unstable lives. Any children living with them are at risk of constant moves and family structure breakdown. This would be harmful to the children and would not be in their best interests.

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

[86] The issues associated with the children coming into care and the finding that they are in need of protection have been addressed in the Statement of Agreed Facts that was filed. The grandparents have acknowledged that they are not able to raise the children, although they wish to remain involved in the children's lives.

Any other relevant circumstance.

[87] There are no other relevant circumstances.

FURTHER CONSIDERATIONS

[88] Section 57(2) of the Act requires an inquiry into efforts made to assist children prior to intervention. In this case the CAS, the local school board and the Huron-Perth Center for Children and Youth were all involved with the family and offering services and resources.

[89] Section 57(3) asks about less restrictive measures and section 57(4) requires consideration of placement with extended family or community members. Here there was no option upon apprehension other than for foster care. Now that permanency planning is being done all the available placements are on the table: adoption or placement with the parents. No one else in the community or family has come forward to offer an alternative plan.

[90] Lastly, in accordance with section 57(6), a determination has to be made as to whether the circumstances of the participants are unlikely to change for up to 24 months. In this case the chances of the Respondent parents being able to solidify their lives and establish stability and demonstrate that they can be consistent is highly unlikely. They each have a history that is replete with bad decisions, disrespect for the law, substance abuse, constant changes in residence and failed relationships with parents and partners. There is nothing in the evidence that suggests that anything has fundamentally changed in their approach to managing their lives.

ANALYSIS

[91] The Society seeks a crown wardship order. A crown wardship order is probably the most profound order that a court can make and therefore it must be approached with a high degree of caution. It should only be made on the basis of compelling evidence and only after a careful examination of possible alternative remedies. See CAS Hamilton v. M., 2003 O.J. No. 1274.

[92] In determining the best interests of the child, the court must assess the degree to which the risk concerns which existed at the time of the apprehension still exist and they must be examined from the child's perspective. See CAS Toronto v. C.M., [1994] 2 S.C.R. 165.

[93] The issue is not whether the children will be better off with parents other than the natural parents. If that was the criterion for a protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned will receive a level of parenting care that is below the minimum standard tolerated in our community. See Sask. Minister of Social Services v. E.(S.), [1992] 5 WWR 289 (Sask. QB).

[94] The children require long term stability and security. They have not had that advantage in their lives so far. This is a direct result of the parents' inability to come to grips with their substance abuse issues.

[95] They have effectively removed themselves from the care of the children, leaving it to the grandparents to provide a home and when that cannot work any longer because of the stresses on those senior people the parents say we can look after the children, as if by magic they can now do something they were not able to do before, even though in their own lives they continue to exhibit the poor decision making and instability that characterized their earlier efforts to parent.

[96] The father moves constantly, has a high tension relationship with his parents, has no support from his siblings, continues to be involved with drugs through his self reported methadone program, drives without a license, finds excuses for not visiting with his children and has an unstable relationship with a woman who has two children of her own and who makes incredible decisions about pregnancy, drug use and school attendance for her children.

[97] The mother is unable to maintain a permanent residence, has an alcohol problem, drinks and drives, comes into conflict with the police, goes to jail, continues to associate with a partner who is prone to domestic abuse, barges into her own mother's home with that partner with both of them drunk, gets into a confrontation with her mother and is arrested, suffers from mental health issues, leaves a residential treatment program prematurely, and offers no guidance, support or role modeling for her older son R., and complains about her mother not being a fit parent, all the while leaving R. to be cared for by that person. And finally she cannot organize her life in a way that she can visit with the children consistently.

[98] This inconsistency in visits has caused great harm to the children. Their hopes are built up only to be disappointed time and time again. They suffer loss and grief with each missed visit. This has to stop.

[99] These facts clearly predict that the same lifestyle the parents have lived will continue and the children who are the subject of these proceedings will be caught up in the turmoil of their parents' lives if they live with them.

[100] In this case the plans presented by the parents are not satisfactory. In each case the risks the children face of instability and transience are too high. The parents have not demonstrated that they can maintain their own lives in an orderly fashion. It is extremely doubtful they can create homes for the children that will meet their needs.

[101] The inevitable conclusion is that the children need to become crown wards. 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 children the care that is in their best interests. There can be no experimentation with these children`s lives. It is not right that in giving the parents another chance, the children would have one less chance. See Children's Aid Society of Winnipeg (City) v. R., 19 R.F.L. (2d) 232 (Man.C.A.).

ACCESS ISSUES

[102] The parents and grandparents seek access. The grandparents have accepted that the children should be made crown wards and have resolved their concerns in this case by settling with the CAS on the basis that they will have access.

[103] The parents seek access if there is a crown wardship order. They do not articulate how that access is to occur, but presumably they hope that it would continue at the CAS office or in other settings as the children's live move forward.

[104] The test for access in a crown wardship situation is a two part test under section 59(2.1). The relationship between the child and the person granted access must be both beneficial and meaningful to the child and must not impair the possibility of adoption. The evidentiary onus on the parent seeking access.

[105] A beneficial relationship is one which is advantageous. A meaningful relationship is one which is significant. It is not enough that there are some positive aspects to it: it must be significantly advantageous to the child. See CAS Niagara v. M.J., 2004 O.J. No. 2872 and CAS Niagara v J.C., R.R. and S.B.(deceased).

[106] The parents have to show more than just that a child has a good time during visits. See Children's Aid Society of Peel (Region) v. S. (M.) (O.C.J.), 2006 ONCJ 523, [2006] O.J. No. 5344. More is required than just a display of love between parent and child. The Divisional Court has held that a person seeking access must prove that his or her relationship with the child "brings a significant positive advantage to the child". See Children's Aid Society of Niagara Region v. J.C., R.R. and S.B. (deceased), ibid, and CAS of the Regional Municipality of Waterloo v. P.B., [2004] O.J. No. 5823.

[107] The second element of the test under s. 59(2.1) places a burden on the person seeking access to show that an access order would not impair a child's future abilities to be adopted. It is important to note that once a crown wardship order is made, there is no obligation on the Society to prove that the children are adoptable or to identify a prospective family. See CAS Niagara v. J.C. Div.Ct.

[108] The rebuttable presumption under s. 59(2.1) is conjunctive. Both elements must be rebutted or the access cannot be ordered. Even if a parent is able to rebut the presumption, it does not automatically mean that an access order will be made. The person seeking the access still has to show that the proposed access is in the child's best interests under s. 58(1).

[109] In this case the grandparents have a meaningful, important and consistent relationship with the children. This existed when the children lived with them and has continued after their apprehension.

[110] Maintaining that relationship between the children and their grandparents is important. It allows the children to continue with family connections that have existed for approximately four years. The children are also able to continue their friendship with their cousins who are their contemporaries and ongoing playmates. This provides context to the children's lives. This is all to the good. In my view the access to the grandparents meets the test. It is both beneficial and significant. It gives to the children a significant advantage in that it allows them to be with the adult persons they have had the most contact with over the last four years in the home where they lived and with the cousins with whom they had constant contact.

[111] With respect to the parents` desire for access, there is nothing in the evidence that their relationship with the children is both beneficial and meaningful.

[112] The most the father can rely on is that the children express a desire to live with him. That is a fanciful wish on their part. They love their father because he is a large buoyant personality. When he does come to visit it is fun and exciting. That however is not the same as bringing a significant positive advantage to the children. There is nothing in his behaviours over the last two years that would suggest any consistency on his part. He would inevitably disappoint them. He would not be able in an access relationship to bring anything to them that provides them with some advantage in life. His access, if he showed up, would be at the CAS office. This is not a setting that works to the advantage of the children.

[113] He may be able to see the children when they are visiting his parents, if he can be on good terms with them. That is not necessarily problematic because it will be under the auspices of the grandparents. They will be able to supervise and control those visits and they do not have to agree to him being in their home if they think it unpleasant or harmful to the children. In other words any contact he had with the children would be as permitted by the grandparents and would not be a matter of right.

[114] To a lesser degree this is the same situation with respect to the mother. Her personality is not as forward as the father`s. The children do not have as good a time. There is nothing that she can offer the children in terms of a larger plan. They would stand a high risk of being disappointed in her absences. Her access would in all likelihood be at the CAS office or in the community with supervision. It would be time limited and unnatural. This cannot be an advantage to the children.

[115] The overwhelming concern is that the placement of the children in an adoption home is important to their well being. The adoptive parents might be content to have concerned grandparents involved, but it is hard to see how they would be pleased with the children they were adopting having to attend access visits with parents that offer no help and act as distractions to what the adoptive parents will be trying to create in their home. Granting access to the parents may impede an adoption placement.

[116] It should be noted that the access provided to the grandparents is no longer a legal impediment to the placement of the children. Bill 179 now allows children to be placed for adoption with access orders outstanding. After the adoption placement takes place the grandparents will be put on notice of the placement and then an opportunity is afforded to them to make representations with respect to whether the access should continue and whether an openness agreement can be reached. The goal remains the same – seeking permanency for the children in a nurturing and loving home where they are secure.

[117] It is the intention of the CAS to place the children in the same adoptive home. However if that is not possible I have determined that a sibling access order would not be in their best interests. These two children are intensely competitive. The evidence is that they have significant, albeit immature, antipathy towards one another. X.F.M. has serious behaviour problems. If they can be placed together that may be the best plan, notwithstanding their aggressive rivalry with one another. If that is not possible it may be that the adoptive homes will be content to have the children see each other on an ad hoc openness basis. That would be acceptable. If the grandparents maintain their access then the children would be able see each other on those access visits. If however the adoptive homes are not able to accommodate sibling access or if the grandparents' access plan falls apart, I do not believe that the futures of both children should be inhibited by an outstanding sibling access order.

[118] With the advent of Bill 179 and its amendments to sections 141.1 and 143, the grandparents will now be given the option to apply for an openness order if the children are to be adopted. It seems to me that this is will be a useful forum in which to assess the question of sibling access and whether it is in the best interests of the children.

[119] The CAS can continue to support sibling access and indeed the children can apply for access to one another pursuant to sections 58(1) and (2) and even after adoption pursuant to section 160. In my view it is best to remain silent with respect to sibling access so as not to limit the options available to the CAS to promote inter-sibling access while at the same time trying to find an adoption placement for the children. See CAS of Niagara v J.C., R.R. and S.B. (deceased), ibid, para 25 – 28.

CONCLUSION

[120] For the forgoing reasons, I am of the view that the children should be made crown wards and that the grandparents should have access as agreed upon, subject to the provisions of Bill 179.

ORDERS

[121] As expressed 3 January 2012, the following orders are therefore to go:

[122] The children X.F.M., born […], 2004, and M.S.M., born […], 2006, are made crown wards pursuant to section 57(1) paragraph 3 of the Child and Family Services Act;

[123] B.M.[1] and B.M.[2] shall have reasonable access to the said children, such access to occur a minimum of one visit each month; and

[124] There shall be no access to the children by either of the parents B.J.M. and E.A.J.

Released: 27 March 2012

Signed: "Justice Brophy"