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.: Toronto CFO-10-10717-00A4

Date: 2012-07-04

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto

Applicant

— AND —

M.M.

Respondent

And J.N.

Respondent

Before: Justice E.B. Murray

Heard on: February 28, 29, March 1, 2, 5-8, May 4 and 16, 2012

Reasons for Judgment released on: July 4, 2012

Counsel:

Ms. Lauren Stringer — for the applicant(s)

Ms. Deborah Stewart — for the respondent M.M.

Mr. Louis Alexiou — for the respondent J.N.

REASONS FOR JUDGMENT

MURRAY, E.B., J.:

[1] Application and Background

[1] The Society applies for an order of Crown wardship without access to allow L.M. to be adopted. L.M. was born on […], 2010, and is the child of M.M. ("M.M.") and J.N. ("J.N."). L.M. was found to be a child in need of protection pursuant to section 37(2)(l) of the Act on November 22, 2010.

[2] L.M. has been in the Society's care since he was released from hospital, five days after his birth.

[3] The Society says that Crown wardship for the purpose of adoption is in L.M.'s best interests for three reasons:

1. M.M. has been violent to J.N. in the past, and the evidence does not provide any comfort that this violence will not recur.

2. M.M. and J.N. are unable to maintain a home for L.M. that meets minimum sanitary standards.

3. M.M. and J.N. are unable to adequately and safely parent L.M., and are unable to learn how to parent.

[4] M.M. and J.N. ask that L.M. be returned to their care, either as a couple or separately.

[5] M.M. and J.N. say that the Society, based on inadequate information, decided very early in the case that they were unable to parent because of their cognitive limitations, and that Crown wardship would be sought. M.M. and J.N. say that all the observations of Society workers after this decision are tainted. Further, they say that the Society has failed to give them adequate assistance and adequate opportunity to parent. They assert that they are able to safely parent L.M.. They acknowledge that at the time L.M. was born that their apartment was not suitable for a child, but say that they have rectified the situation, and that L.M. can now live there safely, after a little child-proofing is done. They acknowledge that there was domestic violence between them in the past, but say that work M.M. has done and better communication between them means that such violence will not recur.

[6] If the court does not see fit to return L.M. to the care of either or both of his parents now, M.M. and J.N. request that the Society wardship be extended for six months, and that the Society be directed to provide a program of therapeutic access operated by an agency other than the Society. If that request is not granted and Crown wardship is ordered, M.M. and J.N. ask that an order of access be made.

[7] Since L.M. has come into care, M.M. and J.N. have had access to him for 1 1/12 hours two days each week. That access has always been fully supervised by a Society worker.

[8] J.N. is pregnant with another child, due to be born in late June 2012.

1. STATUTORY FRAMEWORK

1.1 Options on Disposition

[9] Section 57 of the Act provides that if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, that the court shall make one of the following orders, or an order pursuant to section 57.1, that is in the child's best interests:

Supervision order

1. That the child be placed with or returned to a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.

Society wardship

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

Crown wardship

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

Consecutive orders of Society wardship and supervision

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

[10] All parties agree that a further order is required to protect L.M. in the future.

1.2 Section 70 Time Limit

[11] In this case, Section 70 of the Act limits the available options for disposition. Section 70 is a statutory recognition that permanency planning is of paramount importance for children. Section 70(1) provides as follows:

"(70)(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."

[12] Section 70(4) provides that this period may in the Court's discretion be extended by a period "not to exceed six months if it is in the child's best interest to do so".

[13] In calculating the allowable period for a child to be a Society ward, the Act provides that any time a child has spent in care under a temporary order shall be counted. L.M. has been in Society care since he was apprehended from the hospital on August 12, 2010, and thus he had been in the Society's care in excess of 21 months at the conclusion of this trial on May 16, 2012.

[14] No plan for L.M.'s care other than the plans offered by his parents and by the Society were put forward. Thus, the options open to the court are limited to returning L.M. to the care of one or both of his parents under a supervision order or making him a Crown ward, unless a case for an extension of a period of Society wardship could be made out.

1.3 Other Considerations on Disposition

[15] Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and well being of children. A court is required before making a disposition to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent's care. Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child's best interests and whether it is possible to place the child with a relative or member of the child's community or extended family. No member of J.N. or M.M.'s families stepped forward to offer a permanent home for L.M..

[16] M.M. urged the Society to place L.M. with his aunt, V.M., if the child could not be placed with him or J.N.. Ms. V.M. and M.M. are virtual strangers. She has not seen M.M. since he was an infant, and has never met L.M.. Ms. V.M. is a licensed foster parent, employed by a children's aid society. Ms. V.M. advised the Society that she was not willing to apply for adoption or custody of L.M., but that she would be willing to act as a foster parent of the child for the Society. However, given the Society's statutory mandate to seek permanent placements for children such as L.M., long-term foster care was not an option.

1.4 Best Interests

[17] The decision as to disposition must be based on what is in the child's best interest. The Act provides that in determining best interests the Court shall take into consideration the following circumstances that are considered to be relevant:

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

2. BACKGROUND FACTS

[18] There is little dispute about the facts in this case. The dispute concerns what conclusions should be drawn from these facts. I set out the background facts below.

[19] M.M. is 28 years of age and J.N. is 23 years of age. They began cohabiting in M.M.'s apartment in August of 2009. Both M.M. and J.N. receive benefits under the Ontario Disability Support Program. Both M.M. and J.N. have the assistance of adult protection service workers (APSW'S). In order to be eligible for such assistance, an individual must be diagnosed with some type of disability – physical, cognitive, or psychiatric.

2.1 Family History

[20] Both M.M. and J.N. had difficult childhoods.

[21] M.M. was raised by his mother, L., with assistance from his grandmother M.. The apartment in which M.M. lives, a two-bedroom unit in a Toronto Community Housing building in downtown Toronto, is the same apartment in which he has lived his entire life. L. is cognitively disabled and was a client at Surrey Place Centre during M.M.'s childhood. Surrey Place provides help for individuals with developmental disabilities. I heard almost nothing about L.; she moved from the apartment in 2005 and apparently now plays no role in her son's life. M.M.'s grandmother M. lived in the same building as he and L., and played a large part in his upbringing. In 2003 she moved to a nursing home. M.M. visits her daily.

[22] J.N. was placed with her grandmother at birth by a children's aid society. J.N.'s mother suffered from severe depression, and her father was developmentally delayed. J.N. was physically abused by her grandmother, R.N.. When J.N. told R.N. that she was pregnant with L.M., R.N. was angry, protesting that she would not care for the child.

[23] Neither J.N. nor M.M. has family members or friends who can offer them significant support as parents.

2.2 Cognitive Abilities

[24] Each parent's cognitive ability was an important issue in this trial. It was clear that the initial assumption of service providers was that the fact that each parent enjoyed the services of an APSW meant that the parent had cognitive limitations. That assumption proved correct with respect to J.N., but doubtful as far as M.M. is concerned.

[25] J.N. qualified for the services of an APSW based on a diagnosis of "mild intellectual disability", resulting from a brief consultation with Dr. Lauren Shewfelt of Surrey Place in July 2010. A later more comprehensive assessment by Dr. Oren Amitay referred to later indicates that J.N. is of "extremely low intelligence".

[26] The evidence did not make clear how M.M. qualified for the services of an adult protection worker. At the time he was accepted into the program in 2004, he suffered from severe hearing loss, which has since been rectified by surgery. The hearing loss may very well have been the basis for his admission into the program. The evidence at trial indicates that M.M. is of low-average to average intelligence. He has a significant learning disability; he processes visual information very slowly. This affects not only his ability to discriminate among such information, but his short-term visual memory and attention.

[27] M.M. and J.N. met when they were high school students in a program for students with learning "exceptionalities". (M.M. took some special education classes, and some classes in a regular stream, with accommodation.) Each party completed secondary school; M.M. required seven years to do so. The evidence did not indicate how long J.N. took to obtain her diploma.

[28] After graduation from secondary school, M.M. enrolled in a community college program for child and youth workers. He had great difficulty with the course work, despite receiving accommodation. He completed the first year of the program after five years. M.M. was then placed on an academic probation. L.M. had been born, and M.M. was unable to fulfil the terms of the probation. M.M. says that it is still his dream to be a child and youth worker, and he intends to do everything that he can to fulfil this dream.

[29] The evidence establishes that each parent likely has a significant mental health problem, M.M. with anxiety and J.N. with depression. Neither parent has undergone a thorough psychiatric assessment.

[30] More will be said in the analysis of the evidence about each parent's cognitive abilities, and their mental health, and the effect of these factors on their respective parenting abilities.

2.4 Life Experience

[31] Aside from a co-op placement and a summer job in secondary school, M.M. has not held employment. Neither has J.N..

[32] M.M. was active in student activities when he was enrolled in community college. He has in the past 18 months also volunteered with an agency serving refugees, Sojourner House; his work consists of supervising children in an after-school program, and helping with homework. J.N. also worked with children at Sojourner House for a short period.

2.5 M.M.'s Older Child

[33] L.M. is J.N.'s first child. M.M. has an older child, A.[1], born in 2004 to his then-girlfriend, A.[2]. A.[1] was the subject of a protection case, and was initially in the Society's care, and finally placed with the maternal grandfather, Mr. M.. While there was a protection case ongoing, M.M.'s visits with A.[1] were supervised, first by the Society staff and later by Mr. M.. Ultimately, the Society terminated its case when Mr. M. obtained an order for custody of the child, with access to the parents as agreed by himself and that parent.

[34] M.M.'s access to A.[1] stopped in February 2010, after a dispute with Mr. M.. M.M. testified that Mr. M. was angry with him because he was a witness in a trial of A.[2] on a charge that she assaulted A.[1]. M.M. did not want to be involved in a conflict with Mr. M., and resolved this problem by withdrawing from visits. He now regrets that decision.

2.6 J.N.'s Pregnancy

[35] Soon after M.M. and J.N. began living together, J.N. said that she wanted them to have a baby. M.M. was not sure that this was a good idea so early in their relationship, but he ultimately agreed, and J.N. quickly became pregnant.

[36] J.N. was conscientious in seeking out pre-natal care with Dr. Pattini at Sunnybrook hospital, who worked on a team with a nurse, Jennifer Stannard. J.N. advised Ms. Stannard that the SPCA had warned her that she must remove her cat from the apartment in which she and M.M. lived because the premises were not fit for an animal. Ms. Stannard recognized that the unsanitary condition of the apartment would likely be a barrier to J.N. and M.M. having L.M. placed with them.

2.7 Early Protection Concerns: Hygiene and Sanitation

[37] With the family's permission, Miss Stannard contacted the Society. In March 2010 Society worker Alana Miller met with the parties, M.M.'s APSW, Hasem Ally, and Miss Stannard, to make a plan to assist J.N. and M.M. in preparing for the baby and in making the apartment habitable. The plan involved assistance from Mr. Aly and from other agencies. Ms. Miller became the family's family service worker.

[38] Ms. Miller and Emma Thomas, a worker from Community Resource Connections, visited the apartment. Ms. Thomas had already been working with the family for a year. They found it filled with clutter and garbage. There were cockroaches and bed bugs. J.N. and M.M. had lice; J.N. also had scabies.

[39] J.N. and M.M. obtained treatment, and got rid of the lice and scabies.

[40] Ms. Miller contacted city public health and property standards officers to obtain assistance in dealing with the sanitary problem. She was able to arrange funding for an intensive cleaning of the apartment by "Extreme Clean", a program offered by Visiting Homemakers Association (VHA) for vulnerable individuals, usually individuals in danger of being evicted or institutionalised because of the condition of their residence.

[41] Staff from Extreme Clean spent three days cleaning the unit in May 2010; the condition was much improved by the time they left.

[42] Within a couple of months, the apartment reverted to its former state.

[43] By July 2010 Ms. Miller advised J.N. and M.M. that the Society intended to apprehend the baby apprehended at birth. On July 27, 2010 a family-centred conference was held involving all the major supports for the family. In addition to M.M. and J.N. and Ms. Miller and her supervisor, the conference was attended by Ms. Stannard, Dr. Pattini, Mr. Aly, and Zsuzsanna Toth, (J.N.'s recently appointed APSW). Further plans were made to support the family. Ms. Miller advised that the Society needed to see two things before the baby could go home:

1. The apartment had to be clean and sanitary;

2. The Society had to confirm through observation of M.M. and J.N. with baby that they could parent the child safely.

[44] When L.M. was born, the Society arranged for J.N. to spend five days in hospital in order to start learning how to care for the child. M.M. stayed with her.

3. PROCEEDINGS IN THIS CASE

[45] L.M. was apprehended on August 12, 2010. The Society commenced an application, seeking a finding that L.M. was in need of protection and an order for the Society wardship for 6 months.

[46] On August 17, 2010, a temporary order was made on a without prejudice basis placing L.M. was in Society care, and providing for access to the parents at the Society's discretion, and supervised at its discretion, a minimum of twice each week.

[47] M.M. and J.N. never moved to request a change in this temporary order.

[48] On September 27, 2010, the Society held an internal high risk conference in which it was recommended that an order of Crown wardship for the purpose of adoption be pursued.

[49] The evidence of Ms. Miller is that, despite the recommendation of the high risk conference and the later amendment to the Society's application, that the Society's workers at all times worked with the family to support them in their efforts to parent L.M.. She described this practice as "concurrent planning", reflective of the Society's dual obligations to assist parents and to pursue permanency planning for children.

[50] On November 22, 2010, a finding was made on consent that L.M. is a child in need of protection pursuant to section 37 (2)(l) the Act. The agreed statement of facts acknowledged that the apartment was in an unsanitary condition and that J.N. had been diagnosed with a "mild intellectual disability". The statement also noted that the Society's special needs worker, Erin Sclisizzi, was working with the parents to teach them basic care routines – feeding and changing the child and holding the child safely.

[51] In January 2011 the Society advised J.N. and M.M. and their lawyers that it intended to amend the application to seek Crown wardship for the purpose of adoption. That amendment was made on February 15, 2011.

[52] On January 13, 2011, M.M. was charged with assaulting J.N. with a weapon, a broom. His conditions of release required that he have no contact with J.N.. Until he resolved these charges in June 2011, their visits would L.M. were exercised separately.

[53] On June 6, 2011, M.M. pleaded guilty to assault with a weapon. He had already completed a domestic violence counselling program, and was sentenced to three years probation. The terms of probation allowed him to have contact with J.N. if she gave written consent. She did so almost immediately, and they resumed cohabitation in M.M.'s apartment.

[54] On October 6, 2011, the Society brought a summary judgement motion which was dismissed. A 9-day trial was scheduled, to commence on February 28, 2012.

[55] On October 31, 2011, M.M. brought a motion requesting a parenting capacity assessment to be conducted by Dr. Oren Amitay. J.N. and the Society supported the request, and the order was made, specifying that the report be completed by January 13, 2012.

[56] On February 1, 2012, M.M. requested an adjournment of the trial because Dr. Amitay's assessment was not going to be completed by; the trial date. I refused that request, noting that L.M. had been in care for a time which already exceeded the statutory limit, and that it had been open to the parties to request an assessment for over a year.

[57] At the commencement of this trial, the Society advised that Dr. Amitay had completed his assessment and partially completed a report which contained conclusions. His partial report was disclosed to the parties and the court. Society counsel asked that Dr. Amitay be given permission to testify, a request opposed by the parents. I did not give that permission, but directed that when all evidence except that of Dr. Amitay had been heard, that the trial would be adjourned to allow him to complete the report and give evidence at a later date. Dr. Amitay gave his evidence on May 4 and 16, 2012.

4. EVIDENCE AND ANALYSIS

[58] I begin my analysis of the evidence with the observation that "an order for Crown warship is the most profound order that can be made by a family court. The order should be made 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'".

[59] I do not find an order of Crown wardship for L.M. justified based on two of the protection concerns raised by the Society. I do not consider that domestic violence is likely to be a future concern between J.N. and M.M.. I am of the view that it is likely that the sanitary condition of the family's apartment is likely to be a recurring concern, but that if the parents were otherwise able to safely parent that this concern could be managed with an appropriate supervision order.

[60] However, based on the remaining protection concern raised, I have concluded that the Society has met its onus and demonstrated that the order which is in L.M.'s best interest is an order of Crown wardship. There is no less disruptive option available that will allow L.M. to live safely in a permanent home. I have reached this conclusion because in my view:

• J.N. and M.M. have not demonstrated an ability over the past 21 months to parent L.M. at a minimum adequate level, and

• there is no persuasive evidence that–even with the assistance of a therapeutic access program with a new service provider as suggested by parents' counsel– their parenting abilities are likely to significantly improve within the brief period of time that Society wardship for L.M. might be extended.

[61] I intend to comment initially on the strengths of the parents, and summarize the evidence with respect to L.M.. I will then explain the conclusions which I have reached in reference to the evidence.

4.1 J.N. and M.M.

[62] Almost everyone who worked with J.N. and M.M. who gave evidence at trial agree that they are polite, pleasant, and co-operative, and that they have tried very hard to put themselves in a position in which they could parent L.M.. Their efforts to do so are described below.

• J.N. faithfully attended for prenatal medical care, and also attended prenatal classes.

• J.N. and M.M. successfully completed a treatment for lice, and J.N. also successfully completed a treatment for scabies.

• M.M. and J.N. co-operated with the Extreme Clean team in May 2010 and in July 2011.

• J.N. has received personal counselling from time to time from Dr.Shewfelt.

• J.N. and M.M. have met regularly with their APSW's and with workers from the Society. They have sought assistance from them in obtaining advocacy to have the building management assist in making the apartment habitable, and in accessing programming that would be helpful to them as parents.

• J.N. and M.M. completed the "Right from the Start" parenting program recommended by the Society, which was conducted for an eight-week period in late 2010.

• J.N. and M.M. have regularly attended access visits on time. In fact, they are usually early for visits.

• When M.M. was charged with assaulting J.N., he quickly sought out and began attending a 16-week program for perpetrators of domestic violence. He completed the program, and a letter from the program facilitator confirms his active participation.

• M.M. sought out further parenting programs to assist him and J.N.. He identified at least two programs – one at Surrey Place and one at Aisling Discoveries Child and Family Centre – in which they were not able to participate, because the programs required that the child be in the care of the parents.

• With some information from his APSW, Amy Harrison (who replaced Mr. Aly), M.M. arranged for he and J.N. to attend a second parenting program offered by the YWCA. They completed the eight-week program and a letter from the program facilitator indicated their active participation.

• M.M. tried to deal with the unsanitary conditions in the apartment. For example, in order to control the bedbugs, he put all clothing in plastic bags before treatment and then laundered the clothes. The bedbugs have not returned.

• J.N. and M.M. started couples' counselling with the Family Service Association in the fall of 2010. That counselling was suspended because of the domestic violence charge. It resumed this past summer, but was again put on hold because the counsellor believed that J.N. should first pursue individual counselling. J.N. is waiting until this trial is completed and until the delivery of the child she is carrying before she attempts this counselling.

• M.M. started individual counselling with the Family Service Association in the summer of 2011.

• J.N. and M.M. have signed all the consents to release information requested by the Society. They have co-operated with workers' requests to the best of their ability

[63] I have no doubt that J.N. and M.M. would have participated in any other programming recommended by the Society that they were eligible to attend.

[64] M.M. and J.N. have strengths that are relevant in the assessment of their ability to parent:

• M.M. and J.N. have demonstrated they have some ability to learn, with appropriate accommodation, albeit at a much slower pace than many others.

• M.M. and J.N. can cooperate with service providers, and are reliable in attending appointments.

• M.M. and J.N. are patient, even in circumstances that would anger other parents (such as the Society's failure to bring L.M. for a planned visit for his first birthday).

• M.M. and J.N. have supported and expressed appreciation of the care which L.M. has received from his foster parents.

• M.M. and J.N. obey court orders.

• M.M. and J.N. – especially J.N. – are honest, even when it may appear to be against their interest to be so. J.N. was candid in the parenting capacity assessment in admitting that her depression would be "a problem" in her parenting L.M..

• M.M. and J.N. have shown insight into some childcare risks. For example, they acknowledged before L.M. was born that it would be unsafe for him to live in the apartment at that time in its unhygienic state.

• M.M. has shown initiative and ability in seeking out services

4.2 L.M.

[65] L.M. is a happy and energetic toddler who is meeting all his developmental milestones. He runs, climbs and explores. At this stage, he requires close monitoring to insure his safety.

[66] L.M. enjoys his visits with his parents, whom he calls "dada" and "mama". He dances and laughs, and plays with musical instruments on visits.

[67] There is a 50/50 chance that L.M. has inherited a chromosomal defect from M.M.. This defect is sometimes associated with a mild intellectual disability. Given that the testing for this defect is quite intrusive, L.M.'s doctor has recommended that the testing not take place as long as he appears to be developing normally.

[68] L.M. suffers from kidney reflux. His doctor expects that he will outgrow this condition.

[69] The evidence gives no basis to think that L.M. is not adoptable.

4.3 Evidence Related to Domestic Violence

[70] As set out above, the Society has a concern about domestic violence in this family, violence perpetrated by M.M. against J.N..

[71] In January 2011, J.N. sought help from the Society's child services worker Tania Lewis, saying that M.M. had hit her with a broomstick in the groin area. She said that M.M. had hit her several times before.

[72] M.M. was charged and very quickly sought out and started an anger management program, which he completed in June 2011. He believes that he has learned important lessons from this program--and from the personal counselling he began in July 2011—about how to deal with conflict, about controlling his anger, and about communicating with J.N.. Ms. Toth commended M.M. for taking responsibility for his actions by pleading guilty to the charge of assault with a weapon.

[73] Both M.M. and J.N. testified that there have been no further assaults by M.M. against J.N. since they resumed cohabitation in June 2011. Given J.N.'s candour in admitting other facts that did not support her position in this case, I believe her. I think that J.N. would have reported violence between her and M.M. if that had taken place.

[74] None of the Society's workers observed any indication of violence between M.M. and J.N. after the January 2011 assault.

4.3 (a) Evidence from Other Service Providers

[75] Many professionals who deal with J.N. and M.M. do not believe that violence will recur in this family.

[76] Amy Harrison testified that she did not seen M.M. as an individual who perpetrated coercive, controlling violence. She sees M.M. and J.N. as a couple who previously did not know how to deal with conflict and how to communicate. Ms. Harrison's information from M.M. was that, prior to the January 2011 assault, J.N. had often initiated physical violence when the parties fought; J.N. acknowledged this in her evidence. Ms. Harrison was of the view that M.M. had learned a lot, and that he was unlikely to be violent to J.N. again.

[77] Ms. Harrison's view of the cause of the violence which took place between J.N. and M.M. was echoed by Jennifer Stannard. Ms. Stannard believed that the couple's lack of experience in dealing with conflict had led to the violence between them. She is working with them now because of J.N.'s current pregnancy. She has heard no reports of violence between them, and she believes that they have improved their ability to communicate.

[78] J.N.'s APSW, Zsuzsanna Toth, is of the opinion that M.M. is an important support for J.N.. Ms. Toth's evidence is that J.N. is more likely to speak up for herself when M.M. is around, and that M.M. assists her in many activities. Ms. Toth testified that in her view, M.M. showed strength of character by quickly starting treatment and pleading guilty when he was charged. Ms. Toth is disappointed that J.N. has not yet followed up on the referral she made for domestic violence counselling for her. J.N. says that she is involved in a lot of appointments with the new baby coming and this court case, but that she intends to take this counselling.

[79] Dr. Amitay observed that M.M. has benefited from his anger management counselling.

4.3 (b) The Society's Doubts

[80] Despite these encouraging signs, the Society is not so sure that domestic violence will no longer be a problem in this family. The Society notes the parents' evidence that they still argue from time to time, and observes that under the stress of raising a young child, violence may recur. The Society points to the fact that this is not the first time that M.M. has admitted to assaulting an intimate partner and claimed that he is rehabilitated. In the protection case involving M.M.'s son A.[1] in 2007, M.M. admitted that he assaulted the child's mother. His evidence at that time was that he had completed an anger management course and was confident that domestic violence would not be a problem in his life again.

4.3 (c) Changes That Have Been Made

[81] M.M.'s evidence is that he has been more successful now in changing his behaviour than he was in 2007 for two reasons:

1. The domestic violence counselling he took in 2011 was one-on-one counselling. He was able to learn much better in this situation than in the group course he took in 2007.

2. He has been further assisted by his personal individual counselling which he began in July 2011, which continues today.

[82] M.M. testified that these programs have taught him that, with effort and focus, he can change his behaviour.

[83] J.N. agrees that both M.M. and she have made changes in their behaviour since June 2011 that have improved their relationship. She testified that both she and M.M. have learned how to walk away and cool off if an argument gets too intense. Although they still argue, and although M.M. does not always listen to her, she feels that they are better able to work as a team to solve problems.

(d) Conclusion

[84] In my view, domestic violence is not a current protection concern in this family. It has been over a year since any violence between M.M. and J.N.. M.M.'s explanation of why treatment has been effective for him rings true. J.N. describes positive changes in their relationship, changes that have led to better communication and to the strengthening of her role in the relationship. Three professionals involved with the family do not have concerns about domestic violence as an ongoing problem for J.N. and M.M..

4.4 Evidence on Ability to Maintain a Sanitary Home

[85] When this case began in 2010, M.M.'s apartment was unsanitary—extremely cluttered, extremely dirty, and plagued by bedbugs and cockroaches. M.M. and J.N.'s personal hygiene was poor—workers described them as "malodorous and unkempt". To put the issue in perspective, it should be noted that Ms. Simone of the city public health department (who saw the apartment at its worst) testified that although it was extremely cluttered and dirty that she did not consider it to constitute a health hazard for the occupants or neighbours. However, M.M. and J.N. themselves acknowledged that the state of the apartment was so bad that L.M. could not safely live there.

[86] In November 2011 the city of Toronto issued a work order because of the clutter and dirt in the apartment.

[87] By the time the case came to trial, the bedbugs and cockroaches in the apartment were eliminated. M.M. and J.N.'s personal hygiene had improved. However, the work order was still in place; M.M. was finally successful in having it vacated mid-trial.

[88] M.M. and J.N. testified that, with the work order lifted, the apartment would be fit for L.M., after certain child-proofing measures, which can quickly be put in place, are completed. They assert that they are now able to keep their home in a condition which will allow L.M. to live with them.

[89] The Society argues that the apartment is not even now in condition that is safe for a toddler. The Society further submits that there have been improvements in the condition of the apartment in the past, but that M.M. has always allowed it to slip back into disarray, and that there is little reason to think that the current improvement in the state of the apartment can be maintained.

[90] I review below some history with respect to M.M.'s efforts to put the apartment into a sanitary state. I refer to "M.M.'s efforts" because it was clear from the evidence that the parties consider that the responsibility of maintaining the unit is primarily his. They also consider laundry and food preparation to be primarily his responsibility.

[91] J.N. has been physically unable to deal with many of the tasks involved in cleaning the apartment, because she has allergies, and because she was pregnant with L.M., and now with a second child.

4.4 (a) Past Efforts to Maintain the Apartment

[92] It has long been a challenge for M.M. to maintain a sanitary home. Erin Sclisizzi testified that in 2006, when the protection case about A.[1] was proceeding, M.M. had problems with personal hygiene and with maintenance of sanitary living conditions. M.M. obtained assistance from Extreme Clean then to deal with the state of his apartment.

[93] Since February 2010, M.M. has known that he must make the unit fit for a child to occupy.

[94] M.M. has had significant assistance in his efforts to make the unit habitable.

• Both Society workers and each party's APSW have assisted M.M. and J.N. in their efforts to make and keep the unit sanitary. This assistance has involved counselling and strategizing; advocating with building management; purchasing of cleaning supplies; and, in the case of the APSW's, even physically assisting with the de-cluttering and cleaning of the unit.

• Individuals from other agencies have also assisted M.M. and J.N. with the apartment. They include Jennifer Stannard of Sunnybrook hospital, Emma Thomas of Community Resource Connections, and Melissa Simone of the city public health department.

• Extreme Clean has serviced the apartment twice. In May 2010, cleaners spent three days in the unit. In 2011, the service came in again, for a shorter period.

• The landlord brought in pest control services in 2010 to rid the unit of bedbugs and cockroaches.

[95] For over two years, from February 2010 to the commencement of this trial, M.M. attempted to deal with the "problem" of the apartment. He tried to reduce clutter. He ripped up the unsanitary wall-to-wall carpet. He attempted to clean. He tried to fill holes in the walls where rodents entered. He co-operated with pest-control services provided by management on at least two occasions.

[96] By 2010, the bedbugs and cockroaches were eliminated. It was not until the fall of 2011 that the apartment was rid of rodents. However, clutter and basic sanitation remained a problem. Despite M.M.'s efforts, he could not attain his goal of having a child-habitable apartment.

[97] M.M. suggested that one reason for the delay in making the apartment habitable was the landlord's failure to respond to requests for service. The evidence on this point was conflicting. There was evidence from Ms. Toth that the landlord was tardy in attending to necessary maintenance and repairs. However, there was also evidence from Ms. Miller that the landlord was stymied in providing service because M.M. failed to complete basic cleaning that was necessary before workers would enter the apartment.

[98] It is clear to me, even assuming some delay by management in completing repairs, that M.M. failed to take the steps that were open to him to put the unit in a sanitary condition and maintain that condition in any time frame that could be described as "timely".

[99] M.M. himself acknowledged in his evidence that the state of the unit was "up and down" until the last few months.

4.4 (b) The Work Order

[100] M.M. testified that he has been more successful in maintaining the unit since November 2011, when a city property standards officer placed a work order against the apartment, triggered by a complaint from the landlord about the clutter and dirt.

[101] That work order appears to have been a wakeup call for M.M. and his APSW, Amy Harrison. Ms. Harrison had been working with M.M. to improve the condition of the apartment since she was appointed his APSW in June 2011.

[102] After the work order, Ms. Harrison changed her approach to working with M.M. on the "apartment problem". She helped M.M. organise the clean-up task into short, doable chunks, so that he would not be "paralysed by the enormity" of the task. She helped him create a chart in which he broke down the elements involved in keeping the apartment sanitary, identified the barriers to accomplishing these tasks, and identified solutions. M.M. testified that he finds this approach helpful. He has a schedule for cleaning and for laundry, which he has labelled "Mind over Mood". He is confident that he will now be able to keep the unit sanitary.

[103] Amy Harrison testified that M.M. did a better job with the apartment when she regularly prompted him; if M.M. was working on another issue, the apartment would suffer. Ms. Harrison testified that M.M. would likely need regular monitoring and prompting to keep the apartment in its current state.

[104] As set out above, M.M. finally managed to get the work order lifted, but only after over four months, when this trial had progressed for five days.

[105] Ms. Harrison left her employment at VHA in February 2012. M.M. has had a new APSW appointed, but had no experience working with this individual at the time of trial.

4.4 (c) Ability to Maintain Apartment in Future

[106] I am satisfied that the apartment is now in habitable condition. The surface of the floor is not smooth (a result of M.M. removing previous broadloom), and may require sanding and finishing. The Society asserts that this constitutes a protection concern, because L.M. would not be able to walk barefoot on the floor. I do not agree with the Society's position. The parents could put down an area rug, and insure that L.M. wears shoes.

[107] As M.M. acknowledges, there have been "ups and downs" in his ability to maintain the apartment after it has been cleaned. Will M.M. and J.N. be able to sustain the current gains they have made in the future?

[108] It would be easier to answer this question if it was clear why they were unable to accomplish this task in the past.

[109] M.M. had no real explanation for why it has taken him two years to put the apartment into an adequate sanitary condition. He said that "there was a lot going on" in his life.

[110] The evidence indicates that M.M.'s untreated problem with anxiety has been a significant obstacle to maintenance of the apartment.

[111] Ms. Harrison testified that in her view there are "underlying issues" with M.M. that need to be addressed before he will be able to maintain the unit in a sanitary condition on his own, without regular oversight and prompting. She believes that M.M. requires professional assistance to control his anxiety, and that when his anxiety is better controlled that he will be able to prioritise, make decisions, and consistently implement a plan to maintain the apartment.

[112] Anxiety was also identified as a problem for M.M. in 2007, in a psychological assessment by Dr. Joel Landau in order to assist M.M. in educational/vocational planning. Dr. Landau questioned whether M.M. had a generalised anxiety disorder, and recommended a psychiatric assessment to explore the issue; I discuss that assessment at more length below. M.M. has never arranged for that assessment.

[113] J.N. has had a role in contributing to the unsanitary condition of the apartment. For example, J.N. deposits used toilet paper on top of surfaces in the bathroom, rather than in the toilet. She puts used sanitary napkins in the closet, rather than in the trash. It was not established whether her behaviour results from a lack of knowledge, or from an unresolved emotional issue. As will be seen below, it has been strongly recommended that J.N. begin individual therapy, but she has not yet done so.

4.4 (d) Conclusion

[114] I find that if the apartment regressed to its earlier extremely cluttered and dirty state, that this regression would raise a protection concern. L.M. is an active toddler, who could be expected to run about the apartment and to touch objects in the apartment and to put his hands in his mouth.

[115] The inordinate length of time that it took M.M. and J.N. to put the apartment into a habitable state raises a further protection concern about their lack of ability of to organise themselves around the tasks involved in day-to-day living, and what that might mean for their ability to do what is needed to care for an active child. That concern is discussed below, in the evidence about the parenting ability of J.N. and M.M..

[116] It is too early to conclude that M.M. and J.N. will be able on their own to maintain their apartment in its current condition.

[117] If J.N. and M.M.'s basic childcare skills and awareness were otherwise adequate, I would have been prepared to place L.M. with them under a supervision order. I would have required that M.M. and J.N. obtain psychiatric assessments and appropriate treatment. I would have directed the Society as part of their supervisory plan to insure that someone worked with the parents to regularly monitor the condition of the apartment and prompt them about required tasks to maintain the premises.

5. Evidence on Parenting Ability: Society Position

[118] The Society's position is that, even after 21 months of work with the parents, that they are unable to provide a safe and nurturing environment for L.M., either individually or together.

[119] The Society acknowledges that the parents, and especially M.M., have made some gains in being able to carry out certain tasks involved in instrumental care, such as feeding and diapering, although regular prompting of both parents is still required.

[120] Despite these gains, the Society submits that:

• There remain serious safety concerns with respect to both parents. Whether because the parents lack the ability to focus, or the ability to retain and apply lessons learned, L.M. is at risk of injury if left alone with either or both parents. Ms. Miller's evidence was that the Society had looked for one visit in which staff intervention was not required, in order to move to allow semi-supervised and eventually unsupervised visits between L.M. and his parents. There has never been a visit in which the staff has not been required to intervene to insure L.M.'s safety.

• There remains a concern about each parent's failure during visits to read L.M.'s cues and to provide him with social stimulation and emotional support.

[121] The Society submits that its position is supported by the evidence of all the workers who have observed M.M. and J.N. with L.M., as well as by the conclusions of Dr. Amitay and the conclusions of Dr. Joel Landau.

[122] Before turning to this evidence, I will review the efforts which the Society made to support M.M. and J.N. in parenting L.M..

5.1 Efforts to Assist the Parents

[123] The Act directs me to consider efforts by not only the Society but by other agencies to assist the M.M. and J.N. in preparing themselves to parent. As noted above, M.M. and J.N. have had the assistance of adult service protection workers and of the Extreme Clean program through the VHA, and of Community Resource Connections, and of Jeninfier Stannard from Sunnybrook hospital. Each parent's APSW referred him/her on to other services. The APSW's co-ordinated their efforts with the Society.

[124] The Society initially planned to assist M.M. and J.N. through two specialised programs, but was unable to proceed with this plan.

[125] At the time of apprehension in August 2010 the Society planned for J.N. and M.M. to conduct their visits in the Therapeutic Access Program. The program offered intensive teaching and modelling for parents during visits with their child. Typically, a parent was required to develop a plan for a visit, and after a visit their performance was evaluated. Visits in the program could be longer and more frequent than those usually scheduled by the Society in the normal course of events. M.M. and J.N. could not participate in this program because it was cancelled by the Society. (The premises in which the program was held were flooded, and the Society did not take steps to continue the program elsewhere.)

[126] In September 2010 the Society investigated whether the parents could work with the Interface program at Thistletown children's mental health centre. This program involves observation of parents in a residential setting over several days. During this time, parenting specialists assess parents and work with them to improve parenting skills. However, parents must be able to meet minimum safety criteria in order to be accepted into the program. Ms. Miller testified that Thistletown was not willing to accept M.M. and J.N. in September 2010, and suggested that the Society work with the couple further before this intensive program was attempted.

[127] The Society did not apply to Thistletown again. M.M. and J.N. and their lawyers did not ask the Society to ask Thistletown to reconsider.

[128] In October 2010, the Society arranged for its special needs worker, Erin Sclisizzi, to work with the parents and provide advice for the workers is supervising their visits. Ms. Sclisizzi has 30 years experience working with special needs parents and children, and has a graduate degree in child development. Although I was not asked to qualify Ms. Sclisizzi as an expert, she has been so qualified in other cases in the fields of child development and child assessment.

[129] Ms. Sclisizzi testified that when she works with parents such as J.N. and M.M., she follows a program developed by Surrey Place for dealing with developmentally delayed adults. The program is designed to deliver instruction in a number of different modes geared to reach individuals with different learning styles and different disabilities. Ms. Sclisizzi described the method as involving these principles:

1. Show;

2. Do with;

3. Tell, using one-step instructions;

4. Prompt, both verbally and physically.

[130] Ms. Sclisizzi testified that this method employs "task analysis" -- -- the breaking down of a task into small bites, progressing step by step. She used this method in the 14 visits which she supervised when she worked with J.N. and M.M. between November 2010 and June 2011. She shared these techniques with the workers who supervised most of the visits: Alana Miller, Tania Lewis, Kim Donegan, and Silvia Intellisano. Ms. Sclisizzi observed these workers when they were interacting with J.N. and M.M. on visits, and testified that they implemented this teaching technique in their work. I heard evidence from all these workers except Ms. Donegan.

5.2 Society Workers' Observations

[131] All the workers who gave evidence agreed that, despite constant modelling and prompting, the parents, and particularly J.N., struggled with basic childcare tasks such as diapering, feeding, and diaper-changing. Ms. Sclisizzi testified that there was some improvement in these areas during her work with the parents, but that frequently skills learned one week seemed to be lost the next time she saw them. This was particularly true in J.N.'s case.

[132] In Ms. Sclisizzi's view, J.N. and M.M. made very little progress over the eight months she worked with them. She does not think that further teaching would lead to more progress. This conclusion led her terminate her work with the family in June 2011. She does not believe that J.N. and M.M. can safely care for L.M., together or individually.

[133] This was not Ms. Sclisizzi's first attempt to assist M.M. in learning parenting skills. She worked with him in 2005, when A.[1] was in temporary Society care, during his supervised visits with the child. Ms. Sclisizzi's evidence is that M.M. had difficulties in learning and maintaining safe and appropriate parenting skills which are similar to the difficulties he experiences now.

[134] Ms. Sclisizzi's observations about M.M. and J.N. were echoed by Ms. Miller, Ms. Lewis, and Ms. Intellisano in their evidence. They all observed many visits between the time of L.M.'s apprehension, during and after Ms. Sclisizzi's work with the parents, and up to the time of trial. They saw no improvement in either parent's skills in the visits which occurred after Ms. Sclissizi completed her work in June 2011.

[135] Ms. Sclisizzi's two major concerns with respect to J.N. and M.M.'s parenting relate to safety and to failure to engage with the child and to read his cues.

5.2 (a) Safety Issues

[136] Ms. Sclisizzi's evidence is that each parent requires constant supervision, because neither has sufficient appreciation of the safety issues involving a child of L.M.'s age, and neither has the focus and attention to monitor a young child appropriately.

[137] A number of incidents were reported by various workers involving poor judgement or lack of focus on M.M.'s part. M.M. did not contest that these incidents occurred. Some are set out below.

• In August 2011, M.M. was pushing L.M. in a stroller in a park near a busy street during a supervised visit. M.M. took a call on his cell from his lawyer, and simply let go of the stroller, which began rolling towards the street. The worker and J.N. grabbed the stroller.

• M.M. was warned repeatedly about the danger of leaving L.M. unattended on a change table; despite this, he walked away while L.M. was lying on the change table in order to retrieve a diaper, saying only when cautioned that he "didn't think that L.M. would fall".

• When L.M. attempted to go down very steep stairs in a mall on another supervised visit, M.M. was cautioned that he should hold the child's hand, lest he fall. M.M.'s response was "he can go down stairs".

• M.M. has been cautioned repeatedly to stay close to L.M. now that he is walking in situations in which he might injure himself. Despite this, on a recent visit L.M. fell, hitting his head on a table edge; M.M., although close by, made no effort to break the child's fall.

[138] Ms. Sclisizzi noted that M.M. is able to accurately describe certain milestones in child development, but that he often does not utilise that knowledge in his dealings with L.M..

[139] Workers reported that J.N. actually seemed more cognisant than M.M. of safety risks for L.M., but that she often did not take action to deal with those risks.

5.2 (b) Failure to Read L.M.'s Cues

[140] Ms. Sclisizzi was alarmed by the paucity of interaction between J.N. or M.M. and L.M., whom she describes as an energetic and playful little boy. During visits there were long periods in which J.N. sat quietly and did not interact with L.M.; M.M. often focussed his attention elsewhere, chatting with other parents or with herself or another worker, or texting. Ms. Sclisizzi had to constantly remind them to talk to or play with the child.

[141] Other workers also observed M.M. and J.N.'s failure to interact consistently with L.M. during visits.

[142] All workers reported that both parents, and particularly M.M., have difficulty reading L.M.'s cues, which translates into difficulty in meeting L.M.'s needs. Workers reported that M.M. often focuses on moving the visit out of the office and into Dufferin mall, where he and J.N. can visit stores, despite L.M.'s cues which signal a need for a diaper change or a feeding.

[143] J.N. sometimes is more perceptive than M.M. in picking up on L.M.'s cues, but she acknowledges that she has difficulty engaging his attention. She testified that when L.M. becomes distressed, she tries to calm him, but that the child usually ignores her. The evidence indicates that M.M. has also been unsuccessful in learning and implementing techniques to soothe the child.

5.3 Dr. Amitay's Report

[144] Dr. Amitay administered intelligence and psychological tests to the parents, and observed them together and separately with L.M. on two occasions. He testified that in his opinion they cannot provide adequate care for L.M., individually or together, and that they are unlikely to benefit from further educational opportunities to improve their parenting skills.

[145] Dr. Amitay's more detailed conclusions are set out below:

• J.N. is of extremely low intelligence—at the 0.2 percentile. She has difficulty managing many tasks involved in daily living, and would not be able to learn and implement the tasks involved in caring for an infant.

• J.N. is also suffering from depression and volatile mood swings, conditions which make learning difficult. Dr. Amitay strongly recommended that J.N. undertake treatment for these conditions.

• M.M.'s intellectual capacities are higher than J.N.'s; he is average on some scales, and borderline on others. His score on the scale which measures his processing speed is very low—in the bottom 2%. That scale provides a measure of one's ability to quickly and correctly scan, arrange, or discriminate among simple visual information; it also assesses short-term visual memory, attention, and visual-motor co-ordination.

• Although M.M. has difficulty with abstract reasoning, his knowledge of general information and social norms is average.

• Psychological test results and observation led Dr. Amitay to the opinion that M.M. would have a difficult time learning and implementing adequate parenting behaviours. M.M. has an overly-positive view of his own capabilities, and is highly resistant to instruction and committed to doing things in his own way.

• Neither parent has insight into the extent of their parenting deficiencies. They are aware that J.N. takes a long time to change a diaper, but other than that, did not identify shortcomings in their parenting.

• Testing of how J.N. and M.M. would deal with typical parenting situations reveals a lack of awareness of the issues presented in the test scenarios, and a very low knowledge of appropriate parenting skills or developmental stages of a child, particularly in J.N.'s case. Dr. Amitay found this more concerning because the parents had completed two parenting courses, had the benefit of over a year of weekly instruction from Society workers, and had experience in volunteer work with children through a community organisation.

• Dr. Amitay noted in his observations of L.M. with each parent that they often failed to talk or otherwise interact with the child. Dr. Amitay testified that a parent's verbal and physical interaction with a child helps the child to develop language and social skills.

• Dr. Amitay observed that the parents also failed to appropriately control or redirect the child. For example, on one occasion when L.M. threw an electric toy on the floor repeatedly, neither parent attempted to redirect his behaviour.

• J.N.'s behaviour while diapering L.M. showed a lack of awareness of basic hygiene issues. It took J.N. 11 minutes to change the child's diaper, which contained a small stool. During the process the child touched his genital area several times, and put his fingers in his mouth. J.N. did not appear to notice this, or to understand that it was a concern.

5.4 Dr. Landau's Report

[146] During Ms. Harrison's evidence at trial it emerged that M.M. had been assessed by psychologist Dr. Joel Landau in 2007 for the purpose of educational/vocational planning. In the course of his work with M.M., Dr. Landau administered intelligence tests and psychological tests. The Society had not been aware of Dr. Landau's report during its work with M.M. until early 2012, when Ms. Harrison advised them of its existence. M.M. apparently did not think it necessary to tell the Society about the report. Dr. Amitay was not told about the report, until he gave evidence at this trial.

[147] At my request, the report was entered into evidence. No one called Dr. Landau for cross-examination.

[148] Dr. Landau's conclusion about M.M.'s intellectual ability was different than that of Dr. Amitay: "M.M.'s full scale IQ score was within the average range, at approximately the 27th percentile. In my opinion, this may be a conservative estimate because of M.M.'s past and present hearing problems, the effect of his anxiety on his concentration and memory, and his learning disabilities." Dr. Landau, however, had the same conclusion as Dr. Amitay about M.M.'s very low "processing speed".

[149] Dr. Landau expressed significant concern about M.M.'s mental health: "M.M.'s profile suggests that he is experiencing moderately severe mental health problems and that he should get a psychiatric evaluation to investigate the possibility of a Generalised Anxiety Disorder. Serious long-term personality and interpersonal issues were also suggested." Dr. Landau stated that he would not offer more detail about these problems because of the "intended use " of that assessment, but indicated that this information could be provided to a psychiatrist or other mental health provider with M.M.'s permission. Dr. Landau recommended "strongly" that M.M. speak to his doctor about "immediate" mental health treatment. He was of the opinion that "M.M.'s success at work / employability will depend upon his willingness / ability to deal with psychological issues, particularly his anxiety."

[150] M.M. has not obtained a psychiatric assessment. The evidence does not indicate that he attempted to get assistance with his mental health until last year, when he started counselling with a social worker. There is no evidence that the social worker has had access to the information in Dr. Landau's report.

6. Evidence on Parenting Ability: M.M. and J.N.

[151] M.M. and J.N.'s lawyers submit that:

• The observations of the Society workers of M.M. and J.N. were all affected by the recommendation at the Society's high risk conference for Crown wardship, formulated within weeks of apprehending L.M.. That recommendation was based on partial and inadequate information about both parents.

• The Society has failed in its duty to render appropriate parenting assistance to M.M. and J.N..

• The deficiencies in the report of Dr. Amitay are so serious that no weight should be accorded to its conclusions.

[152] J.N. and M.M. maintain that they are able to provide L.M. with good, safe care, and are able to meet his social, cognitive and emotional needs. They maintain that the Society should have arranged to have their interactions with L.M. observed by individuals who did not suffer from confirmation bias, as the Society workers do; other observers would be able to see their competence as parents. In addition, however, they maintain that their parenting skills would have improved if they had received instruction from the Society that was better geared to their "unique learning styles".

6.1 Inadequate Information

[153] Cross-examination established that for most of the time the Society worked with the parents, the only report the Society had about M.M. was a Surrey Place treatment plan developed when M.M. was 10 years old, prepared to assist his mother, who was a Surrey Place client, in managing him. This report contained almost no information about M.M.'s intellectual functioning. The Society apparently did not investigate whether there were other more recent professional assessments of M.M.. The only report that the Society had about J.N. was the brief assessment done by Dr. Shewfelt, which suggested that J.N. might have emotional difficulties. The Society had no access to Dr. Landau's report or to a parenting capacity assessment of either parent until shortly before trial.

[154] The Society did not know about M.M. and J.N.'s work with children at Sojourner House. The Society did not know about M.M.'s volunteer work at college. Society workers did not speak with the facilitators of the parenting programs completed by M.M. and J.N..

[155] Parents' counsel argues that this lack of information led the Society to overestimate the parents' deficits, and left the Society in the dark about what strategies would likely be successful n working with these particular parents.

[156] Ms. Sclisizzi testified that she did not feel handicapped by the lack of professional reports with respect to each parent's cognitive and learning issues. She said that the fact that the parents had been in a special education program in high school indicated to her that the parents had "learning issues". She said that in observing and working with the parents, it quickly became apparent what their particular challenges were.

6.2 Failure to Assist Parents

[157] M.M. and J.N. criticise the teaching which was offered by the Society workers, and the failure of the Society to offer outside resources to them.

[158] Parents' counsel elicited in evidence from their clients' complaints about the support services provided by Society workers during supervised visits.

• Services were not delivered in a manner that corresponded to their learning styles. Each parent described his or her learning style as one which required the breaking down information into manageable "chunks", patient repetition, and modelling , as contrasted with lecturing.

• Written lesson plans and written instruction manuals were not provided.

• The workers involved in the teaching team had no regular meetings with each other, to review progress and fine-tune learning objectives.

• No meetings were scheduled with M.M. and J.N. to review learning objectives and give feedback on performance (as opposed to delivering this information during or after a visit).

• Videotape and dolls were not used as teaching tools.

[159] Parents' counsel argue that the work of their clients by the Society staff was so deficient that it cannot be described as teaching at all—it was simply supervision.

[160] Ms. Sclisizzi testified that she believed that the Surrey Place method she used was well-suited for teaching M.M. and J.N.. In her view, instruction using written manuals and dolls for demonstration is inferior to instruction using hands-on methods with L.M., a living child who exhibited all the behaviours that a doll would not. Ms. Sclisizzi testified that she reviewed the curriculum of the parenting course which the parents were attending, and co-ordinated the teaching she did with the topics in that curriculum. She testified that although there were no formal meetings involving those working with M.M. and J.N., that they conferred with each other informally, when passing in the hall.

[161] Parents' counsel also submit that the failure of the Society to connect their clients with any resources (after the referral in 2010 to one parenting program) constitutes a further failure to assist the parents. Counsel argue that a referral should have been made to an outside therapeutic access program, and that further overtures to Thistletown should have been attempted.

6.3 Biased Observations

[162] Counsel argue that, consciously or unconsciously, Society workers were influenced by the early recommendation for Crown wardship in their observations of the parents with L.M.. It is argued that they were predisposed to see problematic behaviour, and that is what they saw.

[163] In cross-examination parents' counsel established that workers did occasionally note positive interaction between their clients and L.M., but that not all of those positive interaction were reflected in the workers' trial affidavits. Counsel argue that this is further evidence of bias in the Society workers' evidence.

[164] Counsel submit that the Society should have arranged for professionals outside the agency to observe their clients with L.M..

6.4 Dr. Amitay's Report is Fatally Flawed

[165] In arguing that Dr. Amitay's report should be given no weight, parents' counsel advance criticisms of the process he followed in forming his opinion, and of the opinion itself. I refer below to these criticisms, and to the responses from Dr. Amitay or from the Society:

1. Mistakes in Intake.

Dr. Amitay acknowledged that he accused the parents of cancelling appointments in error and did not schedule appointments with the parents in a timely manner, thus missing the deadline for completion set out in the court order for the assessment. Counsel argue that these actions increased their clients' anxiety during the assessment process.

Reply. Dr. Amitay acknowledged that these errors could have made the parents nervous prior to the commencement of the assessment. He testified, however, that they did not appear nervous.

2. Incomplete Information.

Dr. Amitay testified that he did not receive the usual background documents he usually obtains from the parties —the pleadings and recent affidavits. He asked for his information, but it was not provided. Counsel also complain that Dr. Amitay contacted few of the available collateral sources of information (e.g., he did not speak to the facilitators of the parenting program the parents had completed).

Reply. The Society says that it requested consent from the parents to release documents requested by Dr. Amitay, but parents' counsel did not reply. Dr. Amitay says that he contacted the collateral sources suggested by the parents, but did not seek out additional sources.

Both statements appear to be accurate.

3. Hasty Conclusions.

Dr. Amitay conveyed his opinion to counsel on February 9, 2012, after he had interviewed and tested the parents but before receiving information from any collateral sources. Those sources were interviewed before preparation of the final report. (Dr. Amitay followed this procedure because he had inadvertently failed to note the timeline of January 13, 2012 for completion of the report set out in the court order. The oral report was apparently an attempt to accommodate counsel and the court.)

Reply. Dr. Amitay testified that the evidence resulting from his testing of the parents and observations of them with L.M. was "so overwhelming" that he felt safe in forming his opinion before receiving further information.

4. Testing Limitations.

Dr. Amitay agreed that—with one exception-- none of the tests that he administered to the parents were developed to predict parenting abilities. The remaining test, the Parent Awareness Skills Survey (PASS), was developed to test a parent's awareness of optimum parenting behaviours, an exercise which Dr. Amitay acknowledged was not the objective of a parenting capacity assessment in a protection case such as this.

Reply. Dr. Amitay acknowledged that his report did not set out the limitations of the various tests he employed, limitations which he acknowledged on cross-examination. He agreed that none of the tests in isolation was predictive of parenting ability. He testified, however, that "as a whole" the battery of tests he used had been shown to be predictive of parenting ability. He testified that, in assessing the parents' responses to the PASS questionnaire, He used his own standard of "good enough" parenting, not the optimal standard developed for PASS.

5. Unjustified Inferences from Testing Results.

Some of the psychological tests resulted in computer-generated personality profiles. Counsel in cross-examination elicited several examples of instances in which Dr. Amitay had changed the modifying language of the computer profile to achieve a more definitive (and negative) report. For example, the computer-generated profile of M.M. stated that "a talent for exploiting the naïve may be present"; in Dr. Amitay's report, based on this profile, he stated that M.M. "can be particularly exploitive of naïve individuals".

Reply. Dr. Amitay acknowledged the changes, but did not think them significant.

6. Non-disclosure of Data Underlying the Report.

Dr. Amitay admitted that he did not provide to counsel the raw data (including questions and answers of various tests) which were the basis for the opinions he formed. Counsel questioned, given this non-disclosure, how the court could rely on the report.

Reply. Dr. Amitay testified that he was bound by contractual obligations with the test developers that prevent him from revealing this information in a report, absent a court order. (No such order was requested prior to or during the trial). The Society questioned how useful such information would be, asking, for example, how it would help a court to get the data underlying an MRI, absent evidence from an expert who could interpret the test.

7. Evidence on Parenting Ability: Conclusion

7.1 Did the Society Have Adequate Information?

[166] The evidence indicates that Society had good reason to believe when it began working with M.M. and J.N. in 2010 that they would have difficulty caring adequately for an infant and that they were "slow learners".

• The Society knew (from its work with the parents from March 2010, and from information from Ms. Stannard and each party's APSW) that the parents were having extraordinary difficulty in maintaining a sanitary and organised residence.

• The Society also knew from its work with M.M. in 2005 that he had had similar problems in the past, and that he had had difficulty learning appropriate childcare skills when his son A.[1] was a toddler.

• The Society knew that J.N. had been diagnosed with a mild intellectual disability.

• The Society knew that each parent had been enrolled in special education classes in secondary school, and that M.M. had taken a very long time to complete secondary school and his first year of college.

[167] Would more information have been useful to the Society in its work to assist the parents? Clearly, yes. In my view, the Society fell short in not making inquiries early in the case as to what other reports might exist with respect to these parents (such as Dr. Landau's report). The Society fell short in not following up on the indications that each parent had a mental health problem that might interfere with his or her ability to learn and to implement what was learned.

[168] Dr. Shewfelt had flagged J.N.'s mental health as an issue. The evidence at trial from Ms. Toth and from the workers about J.N.'s behaviour strongly suggested that she suffers from depression. J.N. in her own evidence described herself as "depressed". Dr. Landau's 2007 report and the evidence from Ms. Harrison were strong indicators that M.M. suffers from a paralysing anxiety.

[169] An assessment of the parents' mental health issues would have assisted the Society in developing better methods to educate them about child care. An awareness of the parents' mental health issues would have led the Society to assist them in obtaining appropriate treatment.

[170] It should be said that M.M. and J.N. also bear some responsibility for not obtaining treatment for their mental health problems. M.M. did not disclose Dr. Landau's report to the Society, and he did not follow Dr. Landau's recommendations to obtain assessment and treatment(except to the extent that the counselling with a social worker which he started last year can be viewed as appropriate treatment). J.N. has delayed in getting recommended mental health treatment for herself (except for the occasional session with Dr. Shewfelt).

7.2 Did the Society Fail in Its Duty to Assist the Parents?

[171] I find that the Society made efforts to assist M.M. and J.N. in parenting L.M.. I note that Ms. Sclisizzi's work with them began after the Crown wardship recommendation was made, a sign to me that the Society was conscious of its duty to assist the parents, and not shirking that duty simply because of the recommendation that Crown wardship be sought.

[172] In my view, the style of teaching used by Ms. Sclisizzi and the other workers supervising visits was the type of teaching that each parent said suited their learning style—broken into chunks, and featuring frequent repetition and modelling of tasks. J.N. on cross-examination agreed that she found the teaching techniques described by Ms. Sclisizzi satisfactory. M.M., when cross-examined about how use of written manuals or videotape would have helped him, was unable to answer the question.

[173] I do agree with some of the parents' criticisms of the Society efforts to assist them, and add a further criticism.

[174] As set out above, understanding of each parent's mental health issues would have been helpful in developing a teaching plan. The absence of that understanding may have been an important reason for the Society's failure to succeed in teaching child care skills to the parents, particularly to M.M..

[175] The teaching was uncoordinated. It does not appear that Ms. Sclisizzi developed a plan with the supervising workers—the "teachers"—and there was no structure to allow the teaching team to discuss each parent's performance and how the plan might need to be changed.

[176] Ms. Sclisizzi's time with the parents, and particularly with M.M., was quite limited. On several occasions she was present for only part of a visit (not the entire 1 ½ hours); she spent only one visit with M.M. in the last six months she worked with the couple. Ms. Sclisizzi, as the Society's only special needs worker, must ration her time among many cases. She determined in June 2011 that this case would not get more of her time.

[177] No other resources, such as a therapeutic access program, were offered to the family.

[178] I do not go so far as to say that the Society failed completely in its duty to assist M.M. and J.N., but I do find that the Society could have done a better job. I was left with the impression that the effort to educate M.M. and J.N. was undertaken with low expectation of success, and that the Society determined early on that this was not a case worthy of additional resources. I know from experience that there are cases in which this agency will, for example, contract with an outside service provider for therapeutic access. The Society determined that it would not offer M.M. and J.N. this assistance.

7.3 Were the Workers' Observations Biased?

[179] I do not accept the submissions of counsel for the parents that the Society workers observations of the parents' interactions with L.M. are unreliable, either because they were prejudiced by the early recommendation for Crown wardship or because they suffered from "confirmation bias".

[180] All the workers' notes contain positive as well as negative comments about each party's parenting behaviour. Some of these positives are reflected in the trial affidavits; I would not expect each and every instance of positive behaviour to be recounted, any more than I would expect that each and every instance of negative behaviour to find its way into an affidavit.

[181] The reliability of the workers' observations is buttressed not only by the similarity of the behaviours observed from worker to worker, but by the similarity of the behaviours observed by the workers to those observed by Dr. Amitay. Dr. Amitay in conducting his assessment did not read the pleadings or any affidavits prepared by the workers. He had no prior knowledge of the particular behaviours which had been observed by others prior to his own observations of M.M. and J.N. with L.M..

7.4 The Weight to Be Given to Dr. Amitay's Report

[182] Of all the criticisms made by the parents of Dr. Amitay's report, the ones that concern me the most relate to the use made of testing in the assessment, and the absence from his report and his evidence of information that would assist the court in determining the reliability of these tests when used to assess parenting ability and predict parenting behaviour.

[183] Dr. Amitay relied solely on his observations of the parents and the results of his testing in forming his opinion. That does not necessarily detract from the reliability of his opinion, but it does mean to me that evidence about the reliability of this testing and how predictive the testing is of future parenting ability should be more expansive and clearer than the evidence that was given before me.

[184] In my view, such evidence should be offered to establish why a court should rely upon such an opinion. Part of that evidence should deal with the strengths and weaknesses of each test when used for a parenting capacity assessment in a protection case. Counsel should have the raw data from the tests available for use on cross-examination. I understand the contractual problems involved with the release of this data; what that means is that counsel should request a disclosure order in advance of trial. I do not agree with the Society's submission that such data does not need to be disclosed because only an expert can understand the data. That may be so, but counsel should have an opportunity to review the data, and to obtain a second opinion on the analysis offered, if nothing else..

[185] Despite the concerns I have expressed, I do place some weight on Dr. Amitay's opinion. As set out above, I was struck by the fact that Dr. Amitay reached an opinion of M.M. and J.N.'s parenting abilities quite similar to that formed by Ms. Sclisizzi and the workers after months of work—without being advised of the Society's observations via the pleadings and affidavits. I was struck by the similarities of the deficits he observed in each parent's interactions with L.M. to the observations made by the workers.

8. Order as to Disposition

[186] I have noted above some respects in which the Society could have done better in fulfilling its duty to assist M.M. and J.N. in parenting L.M.. That finding cannot, however, result in a decision to place L.M. with his parents if they are manifestly unable to care for him now. In this regard, I think it relevant to cite an observation of Justice D.J. Gordon, from Children's Aid Society of Hamilton v. E.O. and S.H., in which he criticised the Society for failing to give the parents adequate assistance:

"Nevertheless, issues pertaining to services should not be left for trial. The Society and parents' counsel must review such matter early in the proceeding. Failing resolution, a motion would have been appropriate".

[187] It may be that M.M. and J.N. would have been able to learn and demonstrate more adequate parenting behaviour if the Society had employed a more coordinated teaching plan, or a different plan, or had utilised outside resources, or had arranged for an outside agency to observe them with L.M.. However, in my view, the best time to raise these issues was early in this case before the case management judge. There is no indication that this was done.

[188] J.N. and M.M. both showed a strong desire to parent L.M., and to do anything they could to attain that goal. If L.M. was placed with him, he would be in a home in which he was greatly loved. He would be raised by his biological parents.

[189] Despite the advantages to L.M. of being raised by his parents, I agree with the Society that the evidence shows clearly that:

• L.M. is at risk of physical harm if placed in the care of either or both of his parents' now;

• L.M.'s future cognitive, emotional and social development would be compromised if placed in their care.

[190] M.M. and J.N. did not show an awareness of their parenting deficiencies, other than J.N.'s slowness in diapering and the inadequate condition of the apartment. This awareness would be a precondition to successfully dealing with these deficiencies.

[191] L.M. has already been in the Society care for a period that exceeds the twelve months allowed under the Act. Should Society wardship for L.M. be extended pursuant to section 70(4) of the Act, as requested by M.M. and J.N.? Caselaw interpreting this section cautions that the Act recognises that as a rule it is not in a child's best interest to wait lengthy periods of time to be settled in a permanent home, even if a lengthy wait might mean that eventually a child was able to reside with her parents. It can only be in the exceptional case that the statutory time limits will be extended, and that extension must be for the child's and not just the parent's sake.

[192] There is divided authority as to whether the statutory time limit may be extended by more than six months in total. Some courts have held that a court has jurisdiction to extend Society wardship for up to six months, but that in any event wardship cannot be extended longer than six months more than the period set out in section 70(1). For a child as young as L.M., that would limit the period of the Society wardship to 18 months, and preclude any extension by this court. Other courts have held that a court has the discretion to extend the section 70(1) time limit by individual and separate extension of up to six months, and that the statute places no a priori limit on the maximum time that such extensions may entail. Those favouring this less restrictive intepretation observe that "no child's connection to his family should be severed solely by reason of an arbitrary time limitation" and point out that if the Legislature had intended this restrictive interpretation, it could have drafted the section of the Act accordingly.

[193] Even if this second view is correct, I do not think that it is in L.M.'s best interests to grant such an extension. Cases in which an extension is granted are cases in which there is a discrete objective that realistically may be achieved by a parent within the months allowed for an extension. For example, a parent may be about to obtain affordable housing, after having spent months on a waiting list.

[194] I am not of the view that a few more months of parenting instruction for M.M. and J.N., even under ideal conditions, are likely to lead to significant progress. Both M.M. and J.N. have mental health issues that have not been dealt with, and which likely interfere with their ability to learn. To deal with these issues, they must each obtain an assessment and engage in treatment. That is not realistically a six-month project.

[195] The order that is in L.M.'s best interest is that he be made a ward of the Crown in order that the Society's plan for adoption may proceed, and I so order.

9. Access

[196] M.M. and J.N. asked, if an order of Crown wardship is made, that access between them and L.M. be ordered. They make this request explicitly acknowledging the Society's plan to place L.M. for adoption, in order to position themselves to request an openness order.

[197] Openness is not defined under the legislation. In enacting the openness provisions, the legislature crafted terms quite separate from the Act's provisions for access. An order for access typically allows visits involving direct, exclusive contact with a child. The purpose of an openness order is the preservation of a "beneficial and meaningful" relationship for the child, while supporting the child's security in his adoptive family. An openness order does not necessarily mean that there will be direct and exclusive contact between the person who previously enjoyed access and the child. The court may order indirect contact, by means of pictures and letters. The court may allow occasional direct contact on special occasions between the child's former family and the child's new family. The court may leave the particulars of contact in the discretion of the adoptive parents.

[198] M.M. and J.N. suggest that they hope for an openness order that would at least allow for an exchange of pictures, and later, letters, between themselves and L.M. and his new family.

[199] In order to consider their request for an access order, I review the Act's provisions about access orders for a Crown ward, and the recent amendments introduced in Bill 179 affecting such access orders if a Society intends to place a child who is a Crown ward for adoption.

[200] Section 59 (2.1) of the Act sets out the test which M.M. and J.N. must meet if they are to obtain an order for access:

Access: Crown ward

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,

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

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

[201] The onus is on M.M. and J.N. to rebut the presumption against access contained in section 59(2.1), by satisfying both prongs of the test.

[202] Prior to the Bill 179 amendments, only children who were Crown wards without access were eligible for adoption (section 141.1(a)).

[203] The amendments contained in Bill 179 changed this legal landscape.

[204] Section 141.1(a) was rescinded, and a provision added that allows a Society to plan for the adoption of a Crown ward who is the subject of an access order.

[205] S. 143(1) now provides that a child's placement for adoption by a Society terminates all orders for access (including those made under Part III of the Act).

[206] When a Society intends to place a Crown ward who is the subject of an access order for adoption, it must give a notice of intent to the person who has the right of access and to the subject of the order.

[207] An individual who has a right of access may apply within 30 days of receipt of the notice for an openness order.

[208] When an openness application has been made, the Society must advise a prospective adoptive parent of this fact prior to placement of the child.

[209] The court may make an openness order if it is satisfied that,

(a) the openness order is in the best interests of the child;

(b) the openness order will permit the continuation of a relationship that is beneficial and meaningful to the child.

[210] The court in making the order shall consider the "ability" of the prospective adoptive parent to "comply with the arrangement under the openness order".

[211] It has been noted by others that these amendments do not change the test set out in section 59(2.1) for access to a Crown ward. That is facially correct. However, Justice Geraldine Waldman in Children's Aid Society of Toronto v. S.A., R.M. and S.R., 2012 ONCJ 42 commented: "The recent amendments to the Act create new considerations when addressing the issue of access and new dynamics in the adoption process." I agree with that observation. In my view, the amendments in Bill 179 have introduced new elements into the analysis required under the test for access to Crown wards contained in that section 59(2.1). The fact that a court does not necessarily have to choose between the security of an adoption placement and the prospect of a child having some contact with his biological family affects the analysis in both prongs of the s. 59(2.1) test.

9.1 Is the Relationship Beneficial and Meaningful to L.M.?

[212] Is L.M.'s relationship to his parents "beneficial and meaningful" to him? Justice Quinn addressed what this test requires in the case of Children's Aid Society of Niagara v. M.J., (2004), O.J. 2872 (S. C.):

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

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

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

The test focuses on the child's – and not the parent's – experience of the relationship in the assessment of whether it is beneficial and meaningful".

[213] Prior to the Bill 179 amendments, the assessment of the quality of a child's relationship to an access (biological) parent often involved a balancing of that relationship against the relationship which a child could have in an adoptive family. For example, in Children's Aid Society of Toronto v. M.A., 2006 O.J. 254 (S.C.), the court upheld a trial judge's decision not to order access to a child made a Crown ward; the trial judge had found that, although access visits were enjoyable for the child, that the benefits of access did not outweigh the child's need for the security of an adoptive home.

[214] The amendments mean that a court does not always have to make the choice between approving a plan for adoption for a Crown ward, and leaving the door open for contact between a child and his biological parents. The decision is not to be made lightly. The court must still be satisfied that the relationship is beneficial and meaningful for the child. An access order cannot be merely a consolation prize for disappointed adults.

[215] L.M. is just a toddler. He does not have the verbal skills to tell us about his experience of his relationship with his parents.

[216] What evidence exists about that relationship?

• L.M. recognizes and names his parents— M.M. is "dada", and J.N. is "mama".

• L.M.'s parents have been a constant in his life since he was born. Spending 1 ½ hours twice weekly with them.

• Observers' reports indicate that he is generally happy when he is with them.

• Dr. Amitay, in observing L.M. twice with his parents, noted that the child laughed, danced, and played with musical instruments.

• L.M.'s time with his parents does not impact negatively on his adjustment on his life at the foster home.

• As seen below, Dr. Amitay did not undertake a full-scale assessment of L.M.'s attachment to his parents. He was able to observe that "L.M. was reasonably comfortable with his parents during his interactions, thus there were no obvious signs of insecure or unhealthy attachments to them".

• There is no evidence that L.M. displays avoidant behaviour with his parents—e.g., twisting away from them, crying when they greet him.

[217] Dr. Amitay was asked in the section 54 order to assess L.M.'s attachment to his parents "if it can be ascertained". He reported that he could not assess "the nature of the child's attachment to his parents…adequately via the present PCA". Dr. Amitay did not explain why he could not accomplish this. Perhaps he believed that he could not take the time do so, because he had not complied with the timeline for completion of the PCA set out in the order. Although it would have been helpful to receive an assessment from Dr. Amitay addressing L.M.'s attachment to his parents, I do not hold the view that a parent of a young child must produce an expert report assessing the quality of the child's relationship to him before that relationship can be found to be "beneficial and meaningful".

[218] I am conscious of the evidence which indicates that both M.M. and J.N. have difficulty in reading L.M.'s cues and in interacting with him during visits. These difficulties may mean that they cannot parent L.M., but do not establish that L.M. does not enjoy or benefit from his relationship with his parents. As Justice Waldman observed in dealing with a request under section 59(2.1) for access by a parent with parenting deficiencies similar to those of M.M. and J.N., these deficiencies "should not be taken to mean that the child is not enjoying the visit or that the child is uncomfortable or unhappy during the visit."

[219] The evidence indicates that L.M.'s experience of his relationship with his parents to date has generally been positive for him. This is not a case in which the child's relationship with the parent has been harmful to his emotional health, as was the case in Niagara Region v. J.C., (2007), O.J. 1058 (Div. Ct.). This is not a case in which the child refuses to see a parent, as was the case in Catholic Children's Aid Society of Hamilton v. L.S 2011 ONSC 5850. This is not a case in which the parent has been an inconsistent presence in the child's life because of a history of missed visits, as was the case in Children's Aid Society of Toronto v. C.O., 2012 ONCJ 213.

[220] In determining whether this relationship is significantly advantageous to L.M., I do not think that one can ignore the fact that M.M. and J.N. are L.M.'s biological parents. The significance of this factor is recognized in s. 37(6) of the Act. Knowing one's "roots" can be an important part of a child's development. If a child can maintain a connection with these "roots' without jeopardizing the security of a permanent adoptive placement, that is an option that should be considered.

[221] Based on the evidence, I find that L.M.'s relationship with his parents is beneficial and meaningful to him.

9.2 Will an Order for Access Impair L.M.'s Opportunities for Adoption?

[222] The Society's plan for L.M. is that he be adopted. As noted above, there is no question that he is adoptable.

[223] Justice Stanley Sherr noted the potential effect of Bill 179 changes on analysis of this second prong of the test in Catholic Children's Aid Society of Toronto v. S.S. and C.A.P.: "Until recent amendments to the Act, a society was unable to place a Crown ward for adoption if there was an outstanding order for access under Part III of the Act. Crown wards with access were not eligible for adoption. Section 141.1 of the Act has now been amended to allow societies to place Crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption. Section 141.1 opens the door slightly".

[224] It has been held that "The operative words of s. 59(2.1)(b)—'will not impair'—place an onus on the parents to satisfy the court that access to the Crown ward will not diminish, reduce, jeopardize, or interfere with the child's future opportunities for adoption". Justice Sherr in Catholic Children's Aid Society of Toronto v. M.M. 2012 ONCJ 369 held that the impairment contemplated by the section includes "undue delay in the child being adopted".

[225] There are cases of claims since the amendments by parents for access to children who have been made Crown wards which have been rejected, based on a record of parents' behaviour indicating that they are unlikely to be supportive of a child's placement in an adoptive home. This behaviour has included a consistent undermining of a child's foster placement or a failure to work co-operatively with Society workers.

[226] M.M. and J.N. have presented evidence concerning their past record of co-operation with the Society and with L.M.'s foster parents.

[227] The evidence establishes that J.N. and M.M. have been cooperative with the Society's workers, and have followed the rules set down by workers for them during visits. They have been appreciative of the care provided for L.M. by foster parents. They were understanding when L.M. suffered injury in the care of the foster parents. They have made good use of a communication book to co-operate with L.M.'s foster mother. They have obeyed court orders with respect to access.

[228] J.N. and M.M.'s lawyers argue that this track record of cooperative and compliant behaviour is as good an indicator as can be provided that they are likely to support L.M. in his new adoptive home. I accept that submission.

[229] There are, however, other factors that may arise if an order for access is made which the Society argues might delay or otherwise impair L.M.'s opportunities for adoption.

[230] Would the making of an access order delay L.M.'s adoption? If an order for access is made and the Society gives notice that it intends to place L.M. for adoption, the Act provides that the Society must wait to place the child either until J.N. and M.M. have made an openness application, or until 30 days have elapsed. Thus, the maximum delay occasioned in L.M.'s placement would be 30 days. I do not consider this delay unreasonable.

[231] Would the prospect of a court making an openness order have a "chilling effect" on those who might wish to adopt L.M.? That "chilling effect" might result from nervousness at the prospect of a future court decision on an openness application, a decision which the adoptive parents cannot control. Or it might result from opposition to any type of openness arrangement.

[232] I can speculate that some prospective adoptive parents may be scared off forthese reasons. I can also speculate that there are other prospective parents who would think it an advantage if they were able to preserve their child's connection to his biological family in a way that did not diminish, but strengthened the child's place in their family, and who were willing to enter into a discussion about what type of openness arrangement would be best.

[233] I can only speculate as to whether the prospect of an openness application and hearing would be a deterrent to prospective adoptive parents, since I have no evidence about the pool of prospective adoptive parents for L.M.. In this case, it may be that an openness application by M.M. and J.N. could be resolved on consent, with the involvement of the adoptive parents. If not, there is no reason to think that the delay occasioned by the hearing of the application would not be brief. The court has already heard extensive evidence about L.M., M.M., and J.N..

[234] For the court to evaluate these arguments, evidence about the characteristics of the pool of prospective adoptive parents is required. It is the Society, and not M.M. and J.N., who has access to this data. The Society chose not to present evidence on this point.

[235] M.M. and J.N. bear the onus of satisfying me that an order for access will not impair L.M.'s opportunities for adoption. They have presented all the evidence they could reasonably be expected to marshal on this point. The Society has presented no evidence on the beliefs and attitudes of its pool of potential adoptive parents as regards possible openness arrangements for L.M., and I decline to make a finding on this point without evidence.

[236] I am satisfied based on the evidence presented that an access order in this case will not impair L.M.'s opportunities for adoption.

[237] Considering the factors set out at section 37(3) of the Act, I find that an order for access to L.M. by M.M. and J.N. is in L.M.'s best interests, and I make an order for such access. I expect that the Society may place L.M. for adoption within a short period of time. With that in mind, the Society may wish to decrease the current access arrangement. I order that M.M. and J.N. have access to L.M. of a duration and at a frequency determined by the Society, and supervised by the Society.

Released: July 4, 2012

Signed: "Justice E.B. Murray"