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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (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 File and Parties

Court File No.: 68/2009

Date: 2012-06-14

Sault Ste. Marie

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma

Jennifer Mealey, for the Children's Aid Society of Algoma

— And —

S.L.

David Stone, for S.L. (mother)

M.R.

Eric McCooeye, for M.R. (father)

Heard: September 26, 27, 29, 30, October 3, 4, 5, 16, November 16 & December 5, 2011; January 23, 24, 26, 27 & February 1, 2 & 3, 2012

Before: Kukurin J.

REASONS FOR DECISION

[1] Introduction

These are the rather lengthy Reasons for my decision in this child protection case which involves two children: V., now age four and one-half years, and J., now age three and one-half years. These children were apprehended from their parents on March 3, 2009, a little over three years ago. They have been in the same foster home which is located in Bruce Mines, forty five minutes by automobile from Sault Ste. Marie, throughout all of this time.

[2] Change in Society's Position

The society's initial claim was for a six month wardship order. However, that disposition became impossible because of the time in society care limitations contained in the Child and Family Services Act (the Act), the statute that governs child protection proceedings. Its claim changed to one of Crown wardship, without access, for both children. Its plan is for these children to be adopted.

[3] Parental Circumstances

At the time the children were apprehended, they lived with their mother, S.L., and their father, M.R.. However, these parents did not stay together much longer. By January 2010, the father had relocated to Parry Sound. The mother remained in Sault Ste. Marie.

[4] Litigation History and Trial

This child protection case followed a lengthy litigation route that culminated in a contested 16 day trial. The mother's request at trial was for a return of the children to her care and custody with a supervision order in favour of the society. The father, although separated from the mother for over two years, supported her efforts to have the children returned to her. He no longer sought placement of the children with himself. He was seeking an order that would allow his ongoing access, regardless of the outcome on placement and disposition.

FINDING IN NEED OF PROTECTION

[5] Threshold Test

Before the court can make any final protection order, it must make a threshold finding that these children are in need of protection. The CFSA sets out in section 37(2), an exhaustive list describing a number of circumstances, any one of which, if satisfactorily demonstrated on the balance of probabilities, can serve as a ground for such a finding.

[6] Grounds Sought by Society

In this case, the society is seeking a finding, with respect to both V. and J., under section 37(2)(b)(i) and section 37(2)(b)(ii). The mother conceded, in the trial submissions of her counsel, that a finding could be made based on the factual circumstances existing at the time of apprehension. The father did not make this same concession although it might be inferred from his position at trial that placement with the mother with a supervision order was the appropriate disposition.

[7] Court's Discretion in Making Findings

Where a child protection application is made to a child protection court, the CFSA places a statutory obligation on the court to hold a hearing to determine the issue of whether the child involved is a child in need of protection. The court is not limited to the specific ground or grounds relied upon by the applicant society. It may make such a finding on other grounds found in section 37(2), either instead of, or in addition to, those identified by the society. Nor is the court limited by an agreement of the parties as to such findings, although any such agreement may be a factor in the court's determination of this issue. Moreover, the court is not limited to making a finding on factual circumstances that existed at the time that the child protection proceeding was started, or those that predated it. The court can rely on findings of facts that arose well after the proceeding was commenced, so long as those facts support a ground for any of the findings set out in section 37(2) CFSA.

[8] Circumstances Supporting Finding

In the present case, there were a number of circumstances that the society relied upon cumulatively to justify its apprehension of the children. Most of these have been substantiated by the evidence at trial. They support a finding that V. and J. are children in need of protection. Justice Gregson adverted to many of these in her written Reasons released following the temporary care and custody hearing in October 2009.

[9] Enumerated Circumstances

Included among these were:

• low levels of intellectual functioning by both parents, but primarily the mother who was the primary caregiver;
• lack of recognition of children's cues, and of their physical and emotional needs;
• the mother's inability to cope with both children and provide adequate childcare to both;
• parental inability to properly budget, leading to food shortages, disorder within the household, and stress;
• inadequate addressing of medical care and dental hygiene of the children;
• home safety and cleanliness;
• inappropriate caregivers and frequent guests/visitors, some of whom were objectionable;
• parental conflict, with the father being the aggressor;
• parental, especially maternal, lack of insight into parental deficiencies, and poor attitude towards correction, recommendations and advice.

[10] Section 37(2)(b)(i) - Risk of Physical Harm

Section 37(2)(b)(i) refers to circumstances that give rise to a likelihood of physical harm befalling a child because of the failure of the child's caregiver to adequately care for, provide for, supervise or protect the child. The existence of the risk of the likelihood of some physical harm is not that difficult to establish. Nor is it necessary to show what specific physical harm may materialize. Showing that a child has already suffered some physical harm would, in most instances, support the existence of a risk of further physical harm in the future.

[11] Caregiver as Source of Risk

Somewhat more difficult to show is that the caregivers of the child are the source for such risk of likely harm, and, more specifically, their inadequacies in parenting, or, in terms of the statutory wording, in caring for, providing for, protecting and/or supervising.

[12] Evidence Supporting Finding

In this case, there was an abundance of evidence from which a finding under section 37(2)(b)(i) could be made. This evidence supports inferences of no oral hygiene or dental care, smoking in the home despite warnings (and despite symptoms exhibited by V. such as persistent coughing, running nose, congestion and vomiting), poor nutrition and feeding practices, irregular or non-existent medical care and follow-up on appointments, and mismanagement of the family income, resulting in significant consequences such as eviction, disconnection of utilities and insufficient funds to purchase diapers and other child needs.

[13] Parental Relationship

The relationship of the parents was, in retrospect, relatively dysfunctional. The father was of almost no help to the mother in "hands-on" childcare responsibilities. She accused him of wasting their scarce family funds on marijuana which he had been using for years. He minimized but did not deny his drug use. He accused her of wasting money playing bingo. He would get angry and yell at the mother. Ultimately, they separated because of his multiple infidelities.

[14] Supervisory Concerns

While caring for and providing for the children were the major focal points of parental inadequacy, a risk of harm also arose from questionable supervisory practices and, to some degree, from poor choices of persons with whom these children had contact. There was one acquaintance of the parents, for example, who was known to be a child sexual offender.

[15] Pattern of Neglect

In summary, there is ample evidence from which a risk of likely physical harm can be inferred for both children. Moreover, the factual evidence did not suggest that the risk of physical harm arose from isolated events. On the contrary, it suggested that theirs was an established lifestyle and that their parenting practices formed a pattern characterized by neglect which gave rise to this risk of physical harm.

[16] Court's Finding

Accordingly, I find that the grounds for finding V. and J. to be children in need of protection are satisfactorily demonstrated under section 37(2)(b)(i) as well as under section 37(2)(b)(ii) CFSA.

DISPOSITION

[17] Disposition Phase

Once the court finds that a child is in need of protection, it must make some kind of order with respect to where the child is to be placed, and in what circumstances. This is the "disposition" phase of a child protection case.

[18] Disposition Options

The court has a number of choices in the disposition it may make. If the basis for the protection concern has disappeared or abated sufficiently, it may simply return the child to its usual caregiver and custodian. Where there are still protection concerns, however, the court has several options, with increasing levels of intrusiveness. In such cases, the court would make a protection order. As a result of recent amendments to the Act, the court may now choose to grant custody of a child found to be in need of protection to one or more persons, with their consent, instead of making a protection order. The society is mandated to remain involved only if a protection order is made.

[19] Available Options in This Case

In the present case, there are realistically only two options between which the court may choose. One is return of the children to their mother, S.L., subject to a supervision order by the society, and containing terms and conditions to address whatever protection concerns are found to exist. The other is to make the children wards of the Crown.

[20] Father Not Suitable

Placement of the children subject to a supervision order in this case would be an option only with respect to the mother. The father is not a suitable candidate, on the evidence, to have care and custody, and he is not making such a claim in any event. There are no "kin" being put forward on the maternal side of the family. Neither is there a kin placement suggested from the father's extended family.

[21] Temporal Limitations on Supervision Orders

A disposition of placement subject to a supervision order, whether with a parent or some other person, is statutorily time limited. This kind of protection order must be at least three months, and not more than 12 months in duration. Why this temporal restriction? There is no reason given in the Act. However, some inferences can be made, at least with respect to why the Act prescribes a 12 month maximum for society supervision orders made pursuant to section 57(1).

[22] Status Review Requirement

Firstly, the statute requires the society to bring a status review proceeding prior to the expiry of the supervision order term. The court's mandate in such cases is to review the "status" of the child. Moreover, any order it makes on such status review must be made in the best interests of the child. This is the same criterion that the court must have used when it made the supervision order being reviewed. Therefore, the objective of the status review should be to look at the evidence to see what changes have taken place since the order was made, and to decide whether these changes warrant some change to the existing order. The underlying premise is that some changes should have taken place during the term of the supervision order.

[23] Purpose of Supervision Order

Secondly, the expectation of the statute is that intervention by the society in a family by way of a formal supervision order has some purpose. There is an added expectation that that purpose will be achieved, and will be achieved within a specified time. Moreover, it is the logical inference that whatever plan of care is filed by the society, it will describe services to be provided during the supervision order term that addresses the reasons why the child was found to be in need of protection. It is an express statutory requirement that the society's plan of care state the criteria by which it will decide when its supervision will no longer be necessary.

[24] Judicial Expectation

Thirdly, a supervision order is made by a judge in a child protection proceeding. It is the judge who decides the length of the supervision order. Moreover, this judge is statutorily required to state the plan for the child's care that the court is applying in making such supervision order. It seems logical to conclude that there exists a judicial expectation that the plan, if followed, should eliminate, or at least attenuate the need for supervision within the length of the time that is chosen.

[25] Supervision Not Meant to Be Permanent

The upshot of the foregoing is that a supervision order is appropriate, where there is an expectation that, within some reasonable time, the need for society supervision and the need for court imposed conditions to protect the child will end. Twelve months may turn out not to be sufficient time. The CFSA permits further supervision orders to be made, but each always subject to a maximum term of 12 months. It is not an expectation of the statute that a supervision order will be a long term mechanism for protecting children who are in need of protection and are not in care of a society. In short, the society's involvement by way of supervision is not meant to be forever.

[26] Society's Position

The society's argument is that the mother in this case, will never be able to effectively parent on her own. It maintains that she will never be able to make up her deficiencies in parenting to the point that the children will be adequately protected in her care. This is despite any number of successive supervision orders that the court may make. The society insists that it cannot provide the high level of supportive services that this mother would need to be able to take proper care of her children.

[27] Mother's Position

The mother's response is that she doesn't require the high level of supervision that the society currently insists upon, namely, almost total supervision of any contact she has with the children by a society approved supervisor. She proffers her family, primarily her mother and stepfather, as support persons to assist her in parenting of these two children. She acknowledges that she does require some assistance and direction from time to time and welcomes the involvement of the society in her life by way of a supervision order. She disagrees with the contention that society involvement should have any time limits. The function of the society, she insists, is to assist persons in situations like hers to help her parent her children as best she can. She does not see society involvement in her family as being one of co-parenting. Moreover, she opposes the society's argument that she will never be able to parent independently, or that, if the children are returned to her, successive supervision orders will be required until the children are in their mid-teens.

[28] Statutory Framework

The Child and Family Services Act, the statute governing child protection cases creates a procedural framework for the court to follow once a child has been found in need of protection. This is found in section 57, and also more recently, in section 57.1.

[29] Prior Efforts to Assist

Section 57(2) requires the court to make inquiries about efforts made by the society and any other community agencies to assist the children prior to the commencement of a child protection case. This inquiry was answered in the evidence of the society. Even before the family's relocation to Sault Ste. Marie, the Sudbury Children's Aid Society was involved on a voluntary basis to assist the parents in parenting and to monitor the care of the child V.. The Algoma society continued this role following the family's arrival in this city. Among the community services recommended to the parents were Healthy Babies – Health Children program, medical care to complete immunizations, and for regular check-ups, dental care from professional dentists, and budgeting assistance from local credit counselling. However, the parents were either resistant to, or very slow to start accessing such assistance locally.

[30] Least Disruptive Alternative

Section 57(3) CFSA creates a statutory preference for the least disruptive protection order that will adequately protect the child. This statute imposes on the court the obligation to canvass all alternatives to removal of the child from the person who had charge just prior to the society's intervention. In this case, the alternatives to removal of the children from their parents were limited to only one, namely, to leave the children in their care. There were no other alternatives available at the time that were offered as reasonable. Leaving the children in their home and with their parents was not an appropriate option, and this was recognized and confirmed at the temporary care and custody hearing held following the apprehension.

[31] Consideration of Kin Placement

Section 57(4) imposes a further obligation on the court once it has decided that removal of a child from the child's caregivers is necessary, and before it makes a disposition. This requires the court to consider the possibility of placing the child with a relative, neighbour, extended family member, or some other member of the child's community.

[32] Alternative Placements Considered

There has been considerable evidence in this case about a variety of placements put forward since the removal of the children. Accordingly, the court has had ample opportunity to consider these alternative placements. Except for one, all of these have involved placement with one of the parents and another person. All of these placements options have been tendered by one or the other of the parents.

[33] Sequential Placement Proposals

A return of the children to both parents became impossible once they separated for the final time. Thereafter, there were the following suggested placements:

(a) with the mother, residing with the maternal grandmother;

(b) with the maternal grandmother and her partner (now husband) Mr. R.A.;

(c) with the father and his new partner Ms. J.P.;

(d) with the mother and her next partner Mr. J.S.;

(e) with the mother, residing with the maternal grandmother and her husband;

(f) with the mother and her next partner Mr. W.S., and

(g) the current placement suggested by the mother, namely, with herself (and presumably her new infant child), with support primarily from her mother and stepfather.

[34] Parenting Capacity Assessment

These placements were clearly not contemporaneous alternatives. Rather they were sequential and put forward as circumstances changed. Nor were these suggestions taken lightly. In fact, the society sought and obtained an order for a parenting capacity assessment of the mother, father, maternal grandmother and her spouse Mr. R.A., to better assess the placement proposals. Circumstances, however, continued to change. By the time the assessment got underway, the maternal grandmother and her spouse had withdrawn from contention and both mother and father had new partners they were proposing to be their co-parents. The assessment shifted (without judicial authorization) to include these new partners.

[35] Placements Withdrawn

Ultimately, by the time of trial, none of these proposed placements was any longer on the table. The grandmother and her spouse had withdrawn. The father and his partner split up. The mother and her partner (Mr. J.S.) also parted company. So also did the mother and her subsequent partner (Mr. W.S.) although not before he impregnated her. What was left for the court to consider was placement with the mother alone, with "support" from the maternal grandmother and her husband, Mr. R.A..

[36] Section 57(5) - Not Applicable

Section 57(5) does not apply in this case. This section imposes placement restrictions on the court where the child who is the subject of the case is Indian or native. Neither of the children, V. or J., is Indian or native.

[37] Custody Order Alternative

The foregoing are statutory obligations that call for a judicial determination prior to the making of a protection order. There is one other option that the court is not obligated to consider, but may do so. This is the making of a custody order under section 57.1 as an alternative to the making of a protection order. This option is viable only where the custody candidate has consented to accept custodial rights and responsibilities, and the court decides it would be in the child's best interest to make such an order instead of a protection order.

[38] No Suitable Custody Candidates

For V. and J., there are no candidates to whom their custody can be entrusted. No one is consenting to accepting custody, except the mother, S.L.. And this court cannot find that it is in the best interests of either child to simply grant sole custody to her.

[39] Binary Choice

Where the judicial alternatives reduce down to only two, and only one of them can be chosen, the role of this court becomes very clear. Pick one and reject the other. This case presents a not atypical scenario where the choices are return to a parent with a supervision order, or make the child a ward of the Crown. From a practical perspective, Crown wardship should be a last resort in the sense that all other alternatives that are available have first to be considered and dismissed. Ultimately, this is the reason for these Reasons. They are to state which alternative was chosen, and which was rejected, and why this was done.

[40] Decision for Crown Wardship

My decision in this case is to choose Crown wardship for both V. and J.. This choice is necessarily one that must be in the best interests of these two children. And, in my view, it is so. These Reasons will review the several circumstances in section 37(3) of the Act that the statute requires the court to consider when making a Crown wardship order. However, the choice of Crown wardship as a disposition is more because the alternative was unacceptable from a 'best interests of the child' perspective. In a sense, Crown wardship is all that was left. In explaining why the order for Crown wardship is in the best interests of these children, it is more logical for these Reasons to explain why the only other alternative was not.

[41] Summary Judgment Motion

This is not a case where the decision was anywhere close to a foregone conclusion. In fact, the applicant society brought a motion for summary judgment in this case for both a finding in need of protection, and for the disposition of Crown wardship. It was not successful in this motion. There were clearly issues in this case that required a trial. Being both the summary judgment motion judge and the trial judge, I can say, in retrospect, that the evidence at trial was much more comprehensive, and provided a great deal of very relevant information that was just not present in the evidence on the summary judgment motion. More importantly, the trial process permitted an opportunity to consider the evidence on all sides tested by cross-examination.

[42] Evidence Categories

The court is statutorily obligated to include in its Reasons for its decision "a brief statement of the evidence on which the court bases its decision..."

In this case, that evidence, although comprehensive, can be described in categories as follows:

(a) evidence of events that pre-dated the apprehension;

(b) evidence of changes in circumstances since the children were apprehended;

(c) evidence of maternal, paternal and grandparental family supports;

(d) professional expert evidence relating to parental capacity; and

(e) evidence of the plans being proposed for the future care of these children.

(a) Pre-apprehension Circumstances

[43] Low Intellectual Functioning

If any one thing can be identified as the main reason for protection concerns for these children, it is the low level of intellectual functioning of both parents, but especially of the mother S.L.. This has remained a constant and continues to be at present. Risk of harm to children results not just because their parents' intellectual functioning happens to be low. Rather, it is because virtually everything that such parents do, or fail to do, is tied inextricably to how they function intellectually. It is their conduct that creates the risk of harm for these children.

[44] Timeline of Society Involvement

V. was born in 2007. The Sudbury society was involved with the family for seven months, until the family relocated to Sault Ste. Marie in approximately May 2008. Thereafter, the Algoma society became involved. However, it was not until March 2009, some nine or ten months later, that it apprehended both children (J. was born in 2008). During this period of roughly 16 months, many behaviours of the parents became apparent to both societies. The maternal grandmother, D.L., was in frequent contact with the parents and the children throughout most of this time, and in fact, lived with them for a considerable portion of it. She confirmed, in her testimony, many of the factual allegations made by the society about the parents and their parenting.

[45] Pre-apprehension Evidence

The evidence of this pre-apprehension period was characterized by:

(a) poor handling of limited family financial resources, occasional to frequent shortages of food and diapers, at one point, eviction from their premises, threats from their creditors, and unwillingness and inability to create and follow even a simple budget;

(b) poor parental attitude towards accepting advice and assistance; they verbalized that they didn't need help and would not follow any advice or recommendations, even from the maternal grandmother;

(c) attendance to cleanliness, hygiene, physical and healthcare that often bordered on negligence – poor housekeeping, non-existent dental hygiene, ignorance about the need for regular baby checks, smoking in the home despite persistent coughing, congestion, running nose and vomiting symptoms in V.; and

(d) a dysfunctional parental relationship with the father as the verbally aggressive partner who undertook little, if any, of the work around the home or of the childcare responsibilities, who was a regular user of marijuana, and who was prone to becoming moody and angry; and

(e) instability in most aspects of family life: residential, financial, relational, parental and personal.

(b) Changes in Circumstances after Apprehension

[46] Parental Separation

Following the apprehension in March 2009, the relationship between the parents withered, and by December 2009, they had separated for good. It was the mother's behaviour thereafter that was more relevant to the issue of disposition in this case than was the behaviour of the father. He dropped out of sight for awhile, resurfaced with a new partner, also for awhile, and basically became an access parent, and not a very faithful one.

[47] Mother as Faithful Access Parent

The mother, by contrast, became a very regular and a faithful access parent. Her access was supervised and observed by the society. The access was relatively generous for the parents prior to their separation – 18 hours per week. This gave the mother an ample opportunity to demonstrate her parenting abilities. It also gave the society an ample opportunity to observe her while parenting V. and J..

[48] Mother's Need for Support

There are some inferences that can readily be made from the evidence from all of the witnesses. Firstly, the mother did not wish to parent on her own. She brought some "support" person with her to most of her access visits. She made no secret of the fact that she had difficulty managing the two children on her own without assistance, despite the almost universally held view that V. and J. were extremely compliant and well behaved children. Her plan for caring for these children was never to care for them alone. Her plan involved co-parenting with someone else, although who that someone else might be changed over time.

[49] First Relationship - Father

Secondly, and related to her intention to not be a single mother, is the mother's history of partner relationships. Her first with M.R., the father of her children, was, by all accounts, not very happy or fulfilling. If she had any expectations that he would share in the parenting of either child, it was unfulfilled. He withdrew more and more from parental responsibilities, and would often become angry when asked to do some chore related to the children. His relationship with them, according to most observers, was as a playmate. M.R. did not treat S.L. well. The maternal grandmother, D.L., often disapproved of him and his behaviours, and there was always some friction between her and him. M.R. had been a roofer but had injured his back. He was not the traditional family breadwinner. The evidence is not clear about the extent of his use of marijuana, but he was regular user, and this was a source of domestic discord with S.L., a non-user. He was not monogamous in his common-law relationship with S.L., at least after the apprehension. His multiple infidelities marked the end of their relationship.

[50] Second Relationship - J.S.

The second relationship of the mother S.L. was with J.S. who was the boyfriend of M.[1], one of S.L.'s sisters. This was not a development that was welcomed in the family. M.[1] was understandably upset. So was the maternal grandmother. Nevertheless, S.L. and J.S. continued with their relationship and were soon living together. J.S. was almost immediately proffered as S.L.'s co-parental candidate. He attended access visits and was, in fact, one of the subjects of the parental capacity assessment done for this case. However, his candidacy was of relatively short duration. He ended his relationship with S.L. and resumed his boyfriend-girlfriend relationship with her sister M.[1].

[51] Third Relationship - W.S.

Her third relationship, with W.S., followed on the heels of that with J.S.. S.L. jumped into bed, both literally as well as figuratively with W.S., and he became her new candidate to co-parent her children. She entered this relationship very quickly and with virtually no knowledge of W.S.'s background. That background turned out to be a relatively unsavoury one. He had lost two children at least, one to adoption and one to Crown wardship. He had a lengthy history of problematic relationships with a series of women, including the mothers of his two children. The relationships were characterized by petty thefts, frauds, harassments, restraining orders, threats, some violence, arrest warrants, and plenty of police involvement. Not surprisingly, the mother's relationship with W.S. was short lived. He had involvement with the police locally. He was using illegal drugs. He liked to drink and he, also, did not treat S.L. very well. He was eventually asked to leave the apartment of the maternal grandmother and her husband, where he and the mother had been living, and he did leave, but only after getting the mother S.L. pregnant with her third child.

[52] Pattern of Poor Partner Selection

The inference from this history of the mother's failed relationships combined with the oft expressed intention to co-parent with someone else, is that she will continue with this pattern of choosing partners who are unable, unwilling, unsuitable and/or unacceptable as child caregivers and custodians. Moreover, her choice of partners is likely to be impulsive, poorly thought out, and contrary to the advice of her family members.

[53] Mother Not Amenable to Learning

Thirdly, the mother is not amenable to learning. There are several dimensions to this inference. The mother was a special needs student. She was identified as early as grade five (at age 11) to have "a mild to moderate level of global development delay", a very low range of functioning. A subsequent assessment when the mother was age 18 came to the same conclusion. Her achievement scores were mostly in the first to fifth percentiles, with an age equivalent "thinking ability" of someone eight years two months of age. She carried this intellectual handicap into her adult life and, in fact, is a recipient of ODSP benefits, specifically because of her learning disability. The Parenting Capacity Assessment report (PCA) assessor, Dr. J. Phillips arrived at very similar and consistent conclusions. The cognitive abilities assessment of the mother, S.L., at age 24 showed her to be in the "extremely low" range of cognitive ability with performance levels at the first percentile or lower. In academic terms, the assessment found the mother to be functioning at a level consistent with functional illiteracy.

[54] Unteachable Spirit

In addition to this very significant obstacle to learning in her own mental functioning, the mother demonstrated what I consider to be an unteachable spirit. There are many references in the evidence to her attitude towards learning. The maternal grandmother, D.L., refers to the mother's wilfulness and insistence on doing only what she wants to do. She refers to the mother's gesture of rolling her eyes at her, the same observation that was made by more than one maternal access supervisor when trying to help the mother with advice at access visits. Society access supervisors are fairly consistent in their evaluations of the mother's responses to their efforts to help her in her parenting of the children. References are made to the mother simply ignoring such attempts, or responding negatively, or rudely, sighing and rolling her eyes, often outright refusing to follow recommendations made, or making dismissive retorts. The mother was difficult to engage and not very open to discussion. According to her mother's partner (now her stepfather), he advised against a relationship with W.S.. She didn't listen "until she got her eyes opened". The mother's attitude to taking advice has persisted to date.

[55] Third Child on Horizon

Fourthly, there is now on the mother's horizon, the advent of a third child with an ETA in June 2012. The mother's intention is to parent this child without assistance of W.S., the child's biological father. This new infant will represent a significant impediment to the mother's plan to parent all three of her children. There is sufficient evidence, including her own acknowledgement, that she has problems managing with two children. I believe that the care of a totally dependent, completely vulnerable newborn is generally conceded to be a major challenge for two parents working cooperatively. For this mother, to be sole caregiver of three children, one a newborn, would be unimaginable.

[56] Summary of Post-Apprehension Developments

In summary, the foregoing developments which have taken place since apprehension have not been favourable. The trial evidence with respect to these happenings has validated and solidified the protection concerns that existed when the apprehension took place.

(c) Family Supports

[57] Maternal Sisters

The mother S.L. has two sisters, M.[1] and S.[1]. Both had their own apartments in the same apartment building as did the maternal grandmother, D.L.. Both sisters have helped the mother S.L. with care of V. and J. in the past, and this included attendance at some maternal access visits. However, neither sister is a suitable person to parent these two children either as "kin" or together with the mother. Their value as support persons for the mother is, in my view, minimal.

[58] Sister S.[1]

S.[1]'s only child M.[2] was apprehended at birth. In December 2007, she was made a ward of the Crown without access. The main basis for this was S.[1]'s limited intellect and her inability to demonstrate or to learn and apply new skills.

[59] Sister M.[1]

M.[1] had a son born in 2004. He was apprehended at birth by the society in Sudbury and ultimately was made a ward of the Crown without access. In the child protection proceeding in which this order was made, M.[1] advanced a plan that her son be placed in the care of her mother, D.L.. That plan was rejected by the court.

[60] Family Relationship Patterns

Of some interest, S.[1] did not continue a relationship with the father of her child. M.[1]'s relationship with the father of her child was short-lived as well. D.L. is no longer in a relationship with her partner of that time.

[61] Current Family Dynamics

S.[1], and the mother S.L. are somewhat estranged. S.L. lived in S.[1]'s apartment for a time with her partner W.S.. The arrangement caused friction and S.[1], with police assistance, made them leave. M.[1] is back in a relationship with J.S. and is somewhat less supportive of S.L. than she had been in the past. M.[1] also has some serious physical health issues. She is apparently blind in one eye and her sight is failing in the other. Both M.[1] and S.[1] are functioning intellectually at extremely low levels.

[62] Main Support Persons

The main support persons that the mother S.L. identifies in this case are not her sisters, but rather her mother, D.L., and her stepfather, R.A.. These two persons, she argues, will be there to assist her in parenting her three children.

[63] Problems with Grandmother as Support

The mother's plan is to parent as a single mother but with the help of the maternal grandmother and the mother's stepfather. However, there are some significant problems with the proposition of the maternal grandmother, D.L., as S.L.'s main support person.

[64] Grandmother's Withdrawal from Assessment

At one point, D.L. and R.A. were proffered as "kin" suitable to entrust with care and custody of both V. and J.. In fact, the parenting capacity assessment ordered by this court was to assess their capacity to parent as well as those of the mother and the father. However, D.L. and R.A. were never assessed. They withdrew as prospective long term caregivers and declined to participate in the assessment. This was after they had consented to undergo the assessment.

[65] Reasons for Withdrawal

There may be more than one reason for these developments. At the time, the society had extended to D.L. and R.A. their own time with the children by way of a series of access visits independent of those involving either the mother or the father. D.L. and R.A. attended at a half dozen of these, then unilaterally stopped, advising the society that they wished to discontinue these visits. Contemporaneous with this was S.L.'s budding relationship with J.S., and her change of plans, namely, that she and J.S. would become the primary caregivers of the children. This may have influenced D.L. and R.A. to change their minds. What D.L. and R.A. did vocalize at the time was that they no longer wanted to be the primary caregivers; they wanted to have a more traditional grandparental relationship with the children. That has not changed to date.

[66] Inference from Refusal to Participate

Whatever the reason, there was an order made for a parenting capacity assessment of D.L. and R.A. in which they refused to participate. That assessment was ordered pursuant to section 54 of the Act. The court is permitted to draw any inference it considers reasonable from a person's refusal to undergo such an assessment.

[67] Adverse Inferences - Superficial Commitment

I do make several inferences from their refusal to participate, most of which are "adverse". Firstly, I infer that their commitment to long term care of these children was superficial. They unilaterally stopped their visits with the children. When they saw another plan being developed by the mother, S.L., they backed off completely with their own plan. Their expression of wanting a classic grandparental role corroborates this inference.

[68] Adverse Inference - Assessment Would Find Them Wanting

Secondly, I infer that the assessment would have found them wanting in their proposed role of primary caregivers and custodians.

[69] Prior Assessment of Grandmother

With respect to the grandmother D.L., the refusal to be assessed for parenting capacity turns out, in this case, to be not so critical. This is because D.L. did undergo a parenting capacity assessment in 2005 when she was being tendered by M.[1] as a potential kin placement for M.[1]'s son who had been apprehended in Sudbury. The society, in this case, tendered as part of its evidence, the 2005 assessment report done by Dr. B. Blackwell of D.L. and her partner at that time, P.V.. While the report is somewhat dated and deals with different prospective parenting partners for a different child, there are some aspects of that report that are relevant to and retain their validity in connection with the assessment of the grandmother D.L.'s capabilities as a support person for her daughter S.L..

[70] Grandmother's Assessment Results

D.L. was born in 1965. She was age 40 when assessed by Dr. Blackwell. She is almost age 47 now. Included in that assessment were a number of psychometric tests, the results of which were relied upon by the assessor in her overall summary. That summary, for the maternal grandmother, D.L., found her to be a person

"with significant ... even profound impairments in cognition, personality, and parenting."

Dr. Blackwell felt that she met the criteria for mild developmental delay. She noted impairments in D.L.'s executive functions (extremely low to borderline), thinking and reasoning (extremely low), vocabulary (borderline in receptive and extremely low in expressive vocabulary). Dr. Blackwell could not recommend D.L. as a "parent" at any level because her deficits were so profound.

[71] Relevancy and Reliability of Prior Assessment

As for the relevancy and reliability of this kind of information about the grandmother, I am satisfied on both measures. Although the grandmother is no longer being put forward as a primary caregiver for her grandchildren, she is being proposed as the mother's primary support. The mother has verbalized consistently that she relies on others for childcare giving; that she cannot do it on her own. And this was with two children. It will be inevitable that the grandmother will have to be called upon to do a great deal of parenting if the court placed the children with the mother. Accordingly, the grandmother's capacity or deficiency in parenting is very relevant in the present case.

[72] Reliability of Dated Assessment

As for the reliability of this information about the grandmother, it is clearly dated. However, this causes me to discount this information hardly at all. Partly this is because the type of testing that produced these results is fairly standardized within the profession. Partly it is because the testing was done by a professional clinical psychologist whose credentials have not been attacked. Partly it is because, at age 40, the grandmother's intellectual functioning and personality characteristics were fairly well fixed and were unlikely to change significantly over the next ensuing seven years to the present.

[73] Consistency with Life Performance

Reliability of the overall assessment of the grandmother's parenting is supported by other evidence. This evidence relates to how the grandmother has performed, especially in a parental role, in her own life. Has her performance been consistent with the conclusions of the assessment?

[74] Grandmother's Personal History

Firstly, D.L. achieved only a grade nine level of education. She was considered a slow learner. M.[1] was the product of D.L.'s teenage pregnancy (at age 15) whose relationship with the father lasted only a few days. D.L. had only a two week relationship with S.L.'s father. D.L. married S.[1]'s father, M.L., and they had an eight year relationship. Unfortunately, M.L. sexually abused all three children over several years, and D.L. was either unable or unwilling to protect them from this abuse. Ultimately, they divorced. D.L.'s next significant partner was P.V.. He had had a horrendous childhood and upbringing and became involved in criminality and excessive drinking. Although he eventually settled down somewhat, his relationship with D.L. did not work out. He became angry and verbally abusive and D.L. eventually left him. D.L.'s present partner is R.A.. Their relationship started only since she relocated to Sault Ste. Marie in 2008. They began cohabiting and have since married. D.L. also had a son, S.[2], in 1982 or 1983, with her then partner, A.G.. She was involved with the Children's Aid Society for several years over her lack of parenting skills, financial problems, domestic problems with her partner, residential instability, problems with alcohol, and inappropriate childcare. In 1984, S.[2] was made a Crown ward without access.

[75] Summary of Grandmother's History

In summary, the maternal grandmother D.L. has only minimal education, has had a succession of failed relationships with a number of different men, has herself lost one child to Crown wardship, and has raised three daughters all of whom are cognitively challenged, and two of whom have already lost their own children to Crown wardship in the past. She and her present partner put themselves forward as long-term caregivers for her two grandchildren in the present case, agreed to a parenting capacity assessment, started visits with the children, then stopped the visits, declined to participate in the assessment and withdrew themselves as candidates for a primary care giving role for these children. The maternal D.L. is far from the kind of support person that a mother like S.L. would need to enable her to provide adequate care for her children.

[76] Relationship Between Mother and Grandmother

The maternal grandmother D.L.'s personal shortcomings as a childcare provider are not the only reasons why she would not make a very good support person for the mother S.L.. The relationship between the mother and the grandmother is a factor of great importance if the latter is to be the main support for the former.

[77] Mother's Disappointments with Grandmother

The evidence does not paint a portrait of a good relationship, certainly not a good working relationship. The mother S.L. had verbalized many times her disappointments with the maternal grandmother. Most of these were in connection with the mother's expectations which the maternal grandmother did not meet. These included various things at various times:

• declining to give the mother a ride to appointments;
• not attending at some maternal access visits;
• attending visits, staying for a short time, and leaving early;
• withdrawing from contention as a long term caregiver;
• declining to participate in the parenting capacity assessment;
• terminating independent grandparental access visits;
• leaving on a cross-country trip in the middle of the trial in this Crown wardship case.

[78] Grandmother's Disappointments with Mother

This was a two way street. The maternal grandmother had her own disagreements and disappointments with the mother. The maternal grandmother disapproved of the mother's pursuit of a relationship with the father. He had been dating the mother's sister S.[1]. The mother did not heed her advice. The maternal grandmother also warned the mother against a relationship with J.S.. She again disregarded this advice. When the mother got involved with W.S., the maternal grandmother cautioned the mother to make sure she used birth control. Again, she didn't listen and told the maternal grandmother that she could decide how to live her own life. This attitude of the mother was not specific to the maternal grandmother. She displayed the same kind of "don't tell me what to do" posture to anyone trying to give her advice.

[79] Grandmother's Trial Testimony

The maternal grandmother was very forthright in her testimony at trial. She expressed her view that the mother was "quite capable of looking after V. and J. by herself". She was of the opinion that the mother did not need the maternal grandmother 24/7. She felt that the mother might well respond to her with smart remarks from time to time, but in the long run, would listen to the maternal grandmother's advice. I find that these views of the maternal grandmother were not at all supported by the evidence. The mother is not capable of looking after these two children by herself – even by her own admission – and certainly by examination of the history of her parenting of these children since their births. Nor has the mother taken the maternal grandmother's advice. In the long run, she has disregarded most of what the maternal grandmother told her, and did just the opposite – to her own detriment. There is little that persuades me that the mother will change her spots this late in the day.

[80] Grandmother's Practical Limitations

In addition to the personal shortcomings and a questionable working relationship, there is the practical consideration of just what "support" means in the context of this case. The maternal grandmother is age 47. She has diabetes, currently under control, but a source of concern in terms of physical health and ability to function. The maternal grandmother has recently married. Her husband is a long haul truck driver whose runs may take him on the road 14 days continuously, and sometimes longer depending on circumstances. Their plan is for the maternal grandmother to accompany him on some of these trips. Although he is presently employed, his plan at time of trial was to have his own business and to become an owner/operator. Should this materialize, it would remove any obstacles to the maternal grandmother going along with him on his long distance hauls. Accordingly, for the dozen or more days that the maternal grandmother would be travelling the highways of Canada with her husband, she would not be available at all for the mother S.L. or for the children.

[81] Limited Availability

The grandmother would hardly be on the road for every trip. Even if she stayed behind, the question remains as to the kind of support she would actually be to the mother. The mother's plan does not have the mother living in the maternal grandmother's home or the maternal grandmother living in the mother's home forever. There clearly would not be round the clock availability to whatever assistance the maternal grandmother might provide. I foresee the mother having to cope with two, and possible three children, on her own, even with the maternal grandmother staying in town.

[82] Grandmother's Relationship with Society

The maternal grandmother does not present as having been particularly helpful to the mother, at least not on the basis of the evidence. The grandmother has not been timid in criticizing the mother. She has a poorly disguised distain for the society, and clearly has little use for CPW Lindsay Spina, the mother's primary society worker. The presence of the grandmother would likely place the mother in the middle of an unhealthy relationship between the maternal grandmother and the society. If the children were to be returned to the mother, it is inconceivable that the society would not remain involved through a supervision order. The maternal grandmother has, in the past, created problems for the mother who was trying to work with the society. At one point, the mother had to ask the society to curtail the maternal grandmother's presence at the mother's access visits because of the maternal grandmother's interference.

[83] Grandmother Inadequate as Support

In summary, S.L. is a high needs mother. I accept the evidence that she easily and readily becomes overwhelmed when has the sole care of her two children. I find that her mother, D.L., for the foregoing reasons, would be unable to provide S.L. with the kind and degree of support that S.L. would need, at a minimum, to adequately care for V. and J..

[84] Stepfather's Limited Availability

The other main support person that the mother S.L. currently holds out is R.A., who is married to her mother D.L., and is technically her stepfather. R.A. was called as a witness at trial. He was cross-examined on his trial affidavit. He stated candidly "on my days off, I will be able to help out". These days off, at the time of trial, were four days every 14 days. As an owner/operator, my expectation is that he would have even less spare time.

[85] Stepfather's Work Priorities

Time is his biggest limitation in being a significant support for the mother S.L.. He is simply not around very much. He is very clear in stating that his work has to come first. This work is the source of the financial means of his family. In fact, these means did not appear to be particularly abundant. There were intimations that money was tight, that the maternal grandmother was a spender and that he had to take control of the family budget to rein her in. At times, there was no money to buy gas for the family automobile.

[86] Stepfather's Support Capacity

The stepfather presented as a credible witness. He was forthright not only about the work but also with respect to his relationship with the maternal grandmother and with the mother. His views are uncomplicated and somewhat simplistic. He perceives the mother as a 25 year old who has to take the responsibility for the choices she makes. If she asks him for help, he is willing to help. He is unspecific about what help he can give other than financial. At trial, he said he was in full support of the mother's plan to have the two children, V. and J., return to her, and they and the new baby would live with him and the grandmother in their apartment. Or, if that two-bedroom apartment would be too small to accommodate three adults and three children, he would look for a bigger apartment, maybe even a house.

[87] Stepfather's Limitations

The stepfather's heart is in the right place. However, he is hardly the kind of support person that the mother would need to overcome her deficiencies in parenting. He, like the maternal grandmother, sees no problem with the mother as a primary caregiver for three children. He will be absent a lot more than he will be present, so his help is bound to be minimal. He is not likely to involve himself in the practical aspects of childcare, based on his history. There is an intimation in the evidence of the stepfather that if he and the maternal grandmother are going to be supportive, the much greater part of that support will be coming from the maternal grandmother, not from him.

(d) Professional Assessment of Parenting Capacity

[88] Parenting Capacity Assessment Order

An order was made pursuant to section 54 CFSA that each of the mother, father, maternal grandmother and her partner, R.A., undergo a Parenting Capacity Assessment by Dr. Jeffrey Phillips. The mother and father, as well as their respective partners at the time, J.S. and J.P. (as they were being presented as their intended co-parenters) actually underwent the assessment.

[89] Assessment Scope Changes

The section 54 order had not included these partners but had named the maternal grandmother and her partner R.A.. For reasons adverted to previously in these Reasons, they had dropped out of contention as prospective long-term primary caregivers. The focus of the assessment understandably shifted to persons who were then the intended caregivers.

[90] Dr. Phillips' Qualifications and Methodology

Dr. Phillips has an impressive professional curriculum vitae and was accepted as an expert for purposes of his assessment in this case. The report, as submitted to the court, was somewhat unconventional. It appears that Dr. Phillips does his professional assessment work through a business structure known as Perspectives Inc. Dr. Phillips' assessment is primarily a psychological assessment. It involves psychometric testing of intelligence, academic skills, personality and parenting. It also includes a clinical component which is very important, particularly when the assessor has almost three decades of professional assessment experience under his belt.

[91] Compartmentalized Assessment Approach

What Dr. Phillips produced, however, was only a part of the overall assessment report that was submitted to the court. The other and considerably larger (by volume) part was referred to as a "psychosocial" assessment. This was not done by him, nor was the report generated by him. In fact, as explained in testimony at trial, he was unaware of what the psychosocial portion of the report actually said. There was a purpose to this compartmentalization which does have a logical basis. Primarily, it was to avoid his part of the assessment being tainted by information or conclusions by the other part of the assessment (and although not entirely clear, perhaps also vice versa). The two assessment results, completed independently, could then be juxtaposed to see whether they were more or less congruent. If they were, this would provide an additional validity to the overall results. I am not sure what would be done if they didn't accord well.

[92] Exclusion of Psychosocial Report

I declined to qualify the author of the psychosocial portion of the report as an expert in this case. A considerable amount of time and effort was spent in interviewing the persons assessed as well as a number of collateral individuals. The results were well documented, and the quality of the psychosocial report that emerged was very good. Unfortunately, my decision is to disregard this report for purposes of this case. Firstly, the persons involved in this part of the assessment were not the persons set out in the section 54 order. Secondly, they do not meet the qualifications in section 54(1.2) of a person that the court may appoint. Thirdly, the person that was actually appointed by the court had nothing to do with the preparation of this report. Fourthly, reports prepared pursuant to section 54 are rather unique statutorily. Pursuant to section 54(6) such a report "is evidence" in the case in which it was ordered. It is simply a bad precedent to accord this psychosocial assessment report the status of a statutory report under section 54 when there are clearly some major issues in how it came about. Finally, this report contains not only factual information. It also contains a fair amount of opinion. Sometimes it is not easy to draw the line where fact ends and opinion starts. Opinion is generally inadmissible as evidence. It may be admitted if it is the opinion of a qualified expert provided it meets certain criteria. Any opinion evidence in this psychosocial report was not produced by a qualified expert.

[93] Dr. Phillips' Assessment as Evidence

What Dr. Phillips himself did, however, was done in accordance with the order made under section 54. He also testified at trial. His part of the overall report is evidence in the case. This was done by him independently of any psychosocial assessment. I understand that a fairly experienced psychometrist assisted in the administration of the test instruments. This is perfectly acceptable procedure for a professional psychologist to engage the services and expertise of a professional psychometrist. It was Dr. Phillips who interpreted the data produced by the tests. It was his professional opinion that was provided to the court based on his interpretation of the test results.

[94] Dr. Phillips' Opinion on Mother

And what was that opinion? Psychologists typically don't simply say that the person assessed for parenting capacity can or cannot parent adequately. The closest Dr. Phillips comes to a black and white opinion about the mother is:

"Ms. D.L. is seen to be highly compromised in regard to personal and parental functioning."

[95] Significance of "Highly Compromised"

That is a very relevant opinion if accepted. It is clearly adverse to the mother. The words "highly compromised" indicate that the mother's deficiencies, as a parent and as a person are substantial. Indeed, in his testimony, Dr. Phillips confirmed this opinion and further explained the basis for it.

[96] Mother's Intellectual Functioning

On an intellectual level, he found that the mother's level of functioning was very low. Her test scores placed her at or lower than the first percentile. This places the mother in the category of persons with mild intellectual delay or mild mental retardation. In practical terms, this suggests that the mother would have difficulties in functioning on a day-to-day basis. She would need help consistently. It would be difficult for her to do everyday things on her own. Her reliance on others would also open her up to being dominated or over-controlled by them.

[97] Mother's Academic Functioning

The mother has achieved grade eight in terms of her academic education according to what she disclosed in the assessment. However, in her testing for academic skills, she performed in an extremely low range, less than the first percentile (0.3 percentile) in reading comprehension skills. This translates, in practical terms, to functional illiteracy. Dr. Phillips estimated that the mother was at the mid-elementary school level academically, or, described otherwise, at a pre-adolescence level, albeit with some variances. This again puts the mother in a position of being reliant on others, making her vulnerable to the dangers inherent in such dependency relationships.

[98] Mother's Personality Testing

The mother did not fare well on personality testing. The assessor's impressions from the test data were that the mother had tendencies to be hostile, suspicious, hypersensitive to treatment by others, tense, fearful and anxious. He felt that her thought processes were likely to be marked by confusion, distractability and difficulties in concentration. He foresaw anger, resentment and anxiety as prominent features to be expected in her interpersonal relationships. She presented as a person with low self-esteem, almost with a defeatist attitude.

[99] Mother's Anger and Hostility

In testing for anger, hostility and aggression she was felt to be performing in the average range in terms of anger. However, her scores on hostility were in the high range, and on aggression in the high average range, inclining towards indirect aggression. These results suggested that the mother may feel substantial frustration in her life and experience a lot of stress.

[100] Parenting Function Testing

Regrettably, tests relating to parenting functions did not yield data that was considered reliable. This is unfortunate, particularly when the objective was to test capacity to parent.

[101] Overall Assessment Opinion

Overall, the opinion of Dr. Phillips was unfavourable in terms of the mother's ability to function as an adequate parent. He did not view her deficiencies as marginal. He felt she was highly compromised. Moreover, he had a very pejorative prognosis for change. However, Dr. Phillips made it clear that one cannot look at the interpretation of psychometric tests and his clinical opinion in isolation. It is important to look at the whole picture.

[102] Father's Assessment

The assessment of the father is, in retrospect, of lesser significance than that of the mother as he concedes that she is the candidate for care and custody, not him. The father appears to operate cognitively at an average range. However, he showed evidence of verbal learning disability, attention deficit hyperactivity disorder, as well as issues with substance abuse. His personality characteristics and test data indicated problematic functioning in multiple areas. His prognosis for developing abilities for capacities related to parenting was poor. The assessor made no recommendations for any services as the father did not feel that there was any need for him to change. The bottom line of the assessor was that the father

"... is not likely to be able to offer a high level of stability, understanding, problem solving skills, or advocacy effectiveness in regards to the children".

(e) Plans Proposed for the Care of the Children

[103] Father's Plan

The father's plan in his Answer was for a return of the children to himself and the mother, or to the mother alone. That plan changed over the course of the proceeding. After separation and relocation to Parry Sound, he entered into a relationship with Ms. J.P.. His plan then was for a return of the children to himself. That plan went south once he and Ms. J.P. parted company. At trial, his plan was for the children to placed in the care and custody of their mother, and he would continue his parenting of them in the role of an access parent.

[104] Mother's Plan

The mother's plan for care and custody of the children changed multiple times depending on her circumstances at the time. In her case at trial, her plan was for a return of the children to herself, subject to a society supervision order. Her plan was to live in the apartment of the maternal grandmother and her stepfather with the two children, and also with the new baby once he or she was born. What is somewhat unclear is whether she intended to remain living with the maternal grandmother and her stepfather long term, or whether she planned to find her own accommodations for herself and the children. In the evidence, she had mentioned that she didn't want to take any steps to move out of the maternal grandmother and her stepfather's apartment until she knew if the children were being returned to her. In fact, the evidence of W.S., an affidavit sworn when he and the mother were still together and living in the apartment of the grandmother and R.A., indicated that he and the mother were planning to get their own place once they knew the court's decision about the children. The mother was very clear, however, that she would be the primary child caregiver, but that she would rely for help on the maternal grandmother and on her stepfather.

[105] Society's Plan

The society's plan also changed. Initially, it was seeking a six month temporary wardship order. In early October 2010, shortly after the parenting capacity report had been released, the society's plan changed to one of Crown wardship with no access to either parent. It wanted to find an adoptive home for V. and J.. This remained and continues to be its current plan for these two children.

[106] Court's Plan

The court's plan for these two children is that they be adopted, and preferably by the same adoptive family. They are highly adoptable. V. has long since caught up on the developmental lag she was exhibiting when apprehended. By all accounts, these children are exceptionally compliant, two of the least challenging children, according to one of the society's access supervisors, that she has ever seen. They have been much too long in the temporary care of the society, well beyond what is contemplated by the Child and Family Services Act. While their status screams out for a resolution that has permanency, their circumstances over the past three years have not been as unsettled as they could have been. They were fortunate to have been placed in a foster family where the foster mother, by all accounts, even the mother's, has been exceptional. They were doubly so as their foster placement did not change throughout their entire time in society care. Their access with their mother was, with relatively few interruptions, a regular occurrence in the pattern of their lives. There have been virtually no problems of any significance for either child while in foster care.

BEST INTERESTS OF THE CHILDREN

[107] Paramount Purpose of CFSA

The Child and Family Services Act is somewhat unique in that it contains a procedural code for child protection cases within the boundaries of the statute. The starting point of a child protection case should be the establishment of a global context for the case. Not unexpectedly, this is provided in the starting point of the CFSA which sets out the paramount purpose of the statute as well as other or additional purposes. These pervade both the substantive and procedural provisions in this statute and apply to every child protection case (including status review cases) brought pursuant to the statute's Part III provisions.

[108] Statutory Obligations

There are numerous obligations and restrictions imposed on societies as well as on child protection courts involved in child protection cases. These Reasons have already canvassed the temporally related limitations in section 70 which eliminate one of the disposition options in this case. Also reviewed previously are the mandatory judicial inquiries and determinations contained in section 57. A statement of plans of the parties and of the court for the care of these children, as required by section 53, is in the immediately preceding paragraphs [103] to [106]. By far the most voluminous part of these Reasons has been the "brief statement" of the evidence on which the decision of this court in this case is based, and the not insignificant requirements of section 53 of the Act.

[109] Reasons for Non-Return

Also required by the statute is a statement of the reasons why these children cannot be returned to the person or persons who had charge of them immediately before the society's apprehension. These Reasons have touched upon this critical aspect of this case in the review of the evidence. This is dealt with as well in the consideration of best interests which follows.

[110] Best Interests Test

Any final order that the court can make under section 57 (or alternatively, under section 57.1) is required by the statute to be made in the best interests of the child. This ostensibly innocuous phrase establishes a criterion that is far from simple and far from precise. The most notable aspect of the "best interests" test is the legislatively imposed obligation requiring the court to consider each of a number of described circumstances that the court considers relevant. There is no hierarchy or priority of importance established by the statute for these listed circumstances. This is likely deliberate as each child protection case differs in its factual circumstances, and what may be a critical circumstance in one case may be a marginal one in another.

[111] Clause 11 - Risk of Harm

In this case, clause 11 of section 37(3) is not only relevant but ranks highly in importance in this case. It is also tied into the statement required by section 53(1)(d)(ii) as to why the children cannot be adequately protected if in the care of either the mother or the father.

[112] Aspects of Risk of Harm

Clause 11 of section 37(3) deals with risk of harm to a child. However, as with many of the circumstances listed in section 37(3), there are several aspects to be considered in terms of the source of any risk of harm. These are:

• through being removed from a parent;
• through being kept away from a parent;
• through being returned to a parent; and
• through being allowed to remain in the care of a parent.

[113] Physical Harm Focus

The ground for a finding in this case that V. and J. are children in need of protection was risk of physical harm. For consistency, risk of harm in the context of a consideration of section 37(3), clause 11, should also be with respect to physical harm, at least primarily so.

[114] No Risk from Removal or Separation

I conclude that there is and has been no such risk for either child in having been removed from, and in being kept away from the mother or the father. In fact, the totality of the evidence is that the children have thrived while in foster care. This was not the case when they were living with their parents. Their father was relatively uninvolved in the day-to-day care of these children. The mother bore the brunt of hands-on childcare. She experienced a great deal of difficulty, at times was overwhelmed. The children were not receiving very good care. There was little residential stability in the family with an eviction in Sudbury, a relocation to Sault Ste. Marie and with several local residential changes afterwards. V. was lagging developmentally. She was also somewhat sickly, and her health was adversely affected by parental cigarette smoking in the home. She was behind in her childhood immunizations. There were incidents that could easily have resulted in real injuries: in one case, letting V. remain too close to a stove, in another, neglecting to drain standing bathwater after a child's bath, and in a third, becoming distracted and letting J. run out in a bus terminal area resulting in a bus driver having to brake to avoid hitting him.

[115] Chaotic Home Environment

The children's home in Sault Ste. Marie was actually a succession of different apartments that the mother called home at various times. Co-resident in these apartments were a succession of different people: the father, the maternal grandmother, the sister, S.[1], the new partner, J.S., the sister S.[1], again, the maternal grandmother again. The housekeeping standards of the mother and father were poor. These did not improve for the mother when she cohabited with J.S.. He left her partly because she was lazy, was not doing housework, and was being a couch potato. The children lived in environments that were chaotic with angry adult conflicts between the father and the maternal grandmother, the father and the mother, the mother and J.S., and the mother and her sister M.[1]. The mother rarely took the children out into the community. They had no family doctor in Sault Ste. Marie. They had no dentist and no dental hygiene to speak of. Their father was not the family's breadwinner. He was a regular and chronic drug user and criticized for this, and for his failure to be a responsible father. The family finances were a shambles and the children's basic needs were often not met. There was no risk of physical harm in the removal of these children. Nor was there any risk in keeping them out of the care and custody of their parents.

[116] Risk from Return to Parents

For many of these same reasons, there was a risk of physical harm inherent in returning them to either the mother or to the father. There were also other reasons why doing so, and allowing them to remain in the care of either of them, would give rise to a significant risk of harm.

[117] Father's Inadequacy

The father was, and is still is, an inadequate child caregiver. His relationship with the children was one of playmate rather than responsible parent. His departures from this area, and relocations to Parry Sound, speak volumes in terms of his commitment to the children. His access visits were interrupted by his absences. It is not as if Parry Sound offered him any employment or a lucrative salary. So far as is known, he continues to be a drug user. He has provided no evidence of any effort to address this problem – and it is a problem for parenting. Nor has he undertaken any parenting programs to improve his parenting skills. On top of all of this are the personal challenges he faces, namely, functional illiteracy, a learning disability and ADHD. His support system was J.P., a woman with three children of her own and problems of her own, who didn't stay around very long. He has no one else. His stepmother does not even come close to filling the kind of parenting support person role that he would need.

[118] Mother's Personal Handicaps

There were, and are, many other reasons which post-dated the apprehension, why returning the children to and allowing them to remain in the care of the mother would have led to a risk of harm for them. Her personal handicaps, since disclosed through the Parenting Capacity Assessment, should be sufficient in themselves to raise a significant risk of physical harm. Her extremely low cognitive functioning level, her functional illiteracy, and her ingrained pattern of coping with life all portend trouble for any child in her sole care. Combined with admitted problems and frustrations in caring for both children on her own, these personal challenges amplify the risk considerably. This is exacerbated even more by her poor prognosis for change, an opinion of the assessor which I accept.

[119] Mother's Impulsive Relationships

If these are not sufficient to raise the spectre of risk of harm, there are also the happenings in her life following the removal of the children. Prominent among these are her impulsive cohabitation relationships with male partners, both of whom turned out to be abusive, both of whom left, and neither of which was a reasonable candidate for parenting. In the case of W.S., as after acquired information made fairly clear, he was a confirmed drug user, had fathered at least two children who were made Crown wards, and had an unsavoury criminal and associated record which included serious domestic problems with a series of women. Not the kind of male role model anyone would suggest for V. and J..

[120] Clause 11 as Trump Card

In summary, in considering section 37(3), clause 11, removing the children – no risk of harm; returning the children – considerable risk of harm. Clause 11 of section 37(3) can, in some cases, be a trump over all of the other circumstances listed in section 37(3). If the return of the children results in a high enough risk of harm, consideration of any other circumstances listed in section 37(3) becomes somewhat academic. Courts do not, or should not, place children in places where they are at risk of harm.

[121] Other Circumstances

The other circumstances listed in section 37(3) should not be supposed to support a return of the children to the mother. In fact, based on the evidence in this case, most do not, or are relatively neutral.

[122] Mother's Capacity to Meet Children's Needs

The mother is not particularly equipped to handle the physical, mental and emotional needs of the children. All of the evidence points to the inescapable conclusion that she cannot handle two children, much less three on her own. It is fair to consider her "on her own". For reasons already covered (in paragraphs [62] to [86] above), I have discounted the support that might be forthcoming from the grandmother, D.L., and her husband, R.A.. The mother is greatly handicapped intellectually and academically, and I adjudge her ability to meet the mental needs of these children to be compromised.

[123] Children's Development

There was little evidence of the level of development of the two children, physically, mentally or emotionally. They appear to be functioning within normal ranges in these spheres at the present time. They are very compliant children behaviourally. The mother's persistent difficulties in managing their behaviours, even in controlled access settings over a period of three years, suggests that it is the mother who has the problem, not the children.

[124] Cultural Background

The cultural background of the children is a very peripheral consideration at best. There is nothing particularly distinctive in connection with their cultural background, at least nothing disclosed in the evidence.

[125] Religious Faith

Nor is the religious faith of the children relevant. Their faith at time of apprehension was unknown. No evidence was provided as to any affiliation they may have formed since their births. Nor is there any about the maternal or paternal families.

[126] Positive Relationship and Secure Family Place

The circumstances in clause 5 of section 37(3) should be read carefully. This has two components:

• a positive relation with a parent, and
• a secure place as a member of a family.

These are conjunctively stated in this clause which means that both must play a role in the court's consideration. Moreover, these are required to be examined in the context of their importance for the child's development.

[127] Current vs. Prospective Relationships

Considered somewhat superficially, and using common sense, a positive relationship with a parent, and a secure place in a family are almost axiomatically important for a child's development. The question in this case is which of the two competing plans, the mother's or the society's, is superior from the point of view of the development of these children. The society's plan has no parent in it, at least no present parent as defined in the CFSA. At best, its plan includes an adoptive parent (or parents), as yet unidentified and hypothetical. The mother, on the other hand, is a flesh and blood person who has an established relationship with both children. That includes not only a genetic relationship as a birth mother, but also a relationship as a primary caregiver until apprehension, and since then, as a faithful and consistent access parent over a three year period. These children know their mother and know she is their mother. They clearly have a parent and child relationship. Is it a positive relationship with a child? Taking the word "positive" as meaning beneficial to the child, I would say that the relationship with each child is positive as it presently exists. However, there are degrees of "positive". I cannot say that the maternal relationship is negative. But I do not consider it to be strongly positive.

[128] Deterioration of Relationship if Return

The present parent-child relationship is certainly relevant as a factor in the consideration of clause 5 circumstance. However, the more important factor by far is the parent-child relationship if the plan of the mother is put in place. This not only changes the degree of positiveness; it reverses it. The parent-child relationship is not bad, but not excellent in the controlled environment of the current access visits. In the mother's home, with her functioning as a single mother, and with the maternal grandmother and R.A. as her main supports, I would predict that the maternal-filial relationship would quickly become a negative or an unfavourable parental relationship. This is my conclusion based on all of the evidence. The relationship is bound to worsen as parenting deteriorates, as it inevitably would.

[129] Security as Family Member

As to the security of being a member of a family, if we are dealing with the present, the children, through their young eyes, see themselves as fully secure members of their foster family with whom they have lived continuously for over three years. That is an illusion, however, as foster families are by their very nature temporary. At least this one is meant to be so. In contrast, they are presently far from secure members of the maternal family, and even more so of the paternal family. Most of the attributes of "family life" are simply not there in the artificial access facility where the parents see the children.

[130] Future Security in Adoptive Family

However, as with positive parent-child relationships, a secure place as a family member is, in my view, much more relevant when weighed in terms of the future, not the present. This requires a comparison of how the plan of the society compares with the plan of the parents. In this context, the plan of the society, even though not specific in terms of which family these children will ultimately be members, is almost certainly bound to be superior to the family of the mother. An adoption family is screened and vetted long before any placement is made. Statistically, adoptive families have two parental figures who are actually living together, generally amicably. Most of the time, these are a man and woman, each of whom contributes differently and in desirable ways to the elements that make children in such families feel secure. Children placed by societies necessarily have a placement or probationary period to see if the children and the adoptive parents mesh well. Finally, the adoption order is made with judicial oversight with the ultimate decision necessarily being in the best interests of the child. In short, this court can infer that these children will find security as adopted children in their adopted family or families from the process that adoption encompasses, if not from evidence of any specific adoptive family.

[131] Insecurity in Mother's Family

In contrast, the family of the mother, in which her plan proposes the children be raised, is much less attractive in terms of offering any security. From a historical perspective, the physical relocations of the family, even before apprehension, were the antithesis of family security, especially when due to eviction. The mother's continued pattern of living from place to place to place post apprehension suggests that this is an integral part of her lifestyle, and that it will continue to be so. Of equal or even more importance to a child's feeling of security in a family is the constellation of persons who make up his or her family and how these persons relate to the child. The primary caregiver would be the most important person. In the case of the mother, while she undoubtedly loves her children, she is not the kind of person to inspire security in a child in her care. She herself is low in self-esteem, is prone to becoming frustrated, is unfocused, and rather inept as a single parent. The maternal grandmother as mentioned previously has her own difficulties, both personal and parental, and would not be a permanent fixture in the immediate family of the children. Her husband would be an occasional visitor. From the mother's history, it is likely that she would find another, or a further series of male partners, all chosen impulsively, all likely inappropriate, and all likely to depart after mistreating her and taking advantage of her.

[132] Chaotic Family Life

I foresee any family life with the mother as being chaotic, subject to fiscal mismanagement, and financial problems leading to unfilled needs of the children. All of this to say that these children are not likely to feel very secure as members of the mother's family if her plan for their care is put into place.

[133] Developmental Advantage of Adoption

From a developmental point of view, considering what the competing plans offer in terms of prospective positive parental relationships and security as family members, these children would, by far, be better off as adopted children, than living in the family of their birth mother.

[134] Relationships and Emotional Ties

Clause 6 of section 37(3) describes yet another multifaceted circumstance. It is child centred, however, as it involves the child's relationships and emotional ties to a number of persons. This must be considered in the context of the plans presented for these children, that is, in terms of their future. Probably, the strongest relationship and emotional ties each child has at the present is with the foster parent or parents. This will undoubtedly continue in the future, but not for very long if the society's plan is implemented. That plan postulates relationships and emotional ties with adoptive parents and their nuclear and/or extended families, all of which are theoretical. It is almost impossible to predict what these will turn out to be. In absence of any evidence, this is no more than judicial speculation.

[135] Extrapolation from Current Relationships

The court can, however, extrapolate from the relationships and emotional ties that these children have at present to what these will be in the future if the mother's plan materializes. To do so, it is necessary to look at the evidence of what these currently are.

[136] Paternal Ties

Paternal ties have never been strong. The father was never involved in the day-to-day care of either child in any significant way. He was not a primary caregiver. I cannot imagine that either child, especially J., who was not even five months of age when apprehended, developed much of a relationship or any substantial emotional ties with the father prior to separation. His record of parental access and the description of his interaction with the children at access visits that he did attend do not lead me to conclude that any strong relationship or emotional ties developed post-apprehension. His relationship was always rather superficial, more as an adult playmate than an adult caregiver.

[137] Maternal Attachment

The ties of the children with their mother were, and are, qualitatively different. She was a primary caregiver, for almost one and one-half years in the case of V.. When one considers relationships and emotional ties of children to parents, what immediately comes to mind is attachment. Dr. Phillips, who has authored articles on attachment, unfortunately deferred his response to question 2(f) of the order for parenting capacity assessment to the psychosocial assessment team whose report I declined to admit. I also declined to accept Ms. Chayka's opinion on attachment of the children in this case. This leaves the question of attachment to the mother without any real answer from the Parenting Capacity Assessment that was ordered. However, there is other evidence with respect to attachment. This is from Ms. Howell-Gibson whose evidence on this is encapsulated in her trial affidavit at paragraph 36:

"The parents and children had an insecure attachment because of the parents' failure to recognize and respond to the children's needs. The children's attachment to the mother and father remained insecure and did not change during the course of all of the access for which I was present.

[138] Insecure Attachment

Ms. Howell-Gibson's involvement spanned a period of 14 months immediately following the apprehension, during which, access to the children took place in the society's therapeutic access program (called at that time 'Growing Together'). I am inclined to accept her conclusions on attachment not only because of her academic and experience qualifications, which showed she has been very involved in parent-child attachment issues dating back to her post-graduate program continuously to the present, but also because she personally observed the interactions between the parents and these children and did three formal assessments in April 2009, August 2009, and May 2010. While there were some indicators of the beginnings of attachment to the mother, in Ms. Howell-Gibson's observations, these stalled out and there was not much present by May 2010. While the mother did her best and though it appears that she may have improved somewhat in the mechanics of parenting, an attachment connection just wasn't there.

[139] Limited Emotional Ties Evidence

Aside from this evidence, there was little else about emotional ties. There was anecdotal evidence from access workers of the interactions of the children with the parents at the start of, during and at the end of access, from none of which is it fair to draw a judicial inference about attachment. The parents had virtually no evidence on this issue other than that the mother loves these two children, a statement I have no hesitation to accept as true.

[140] Continuity and Disruption of Care

Continuity of care and disruption of continuity of care are the obverse of one another. Continuity of care is good if the care is good. Disruption of care or discontinuity can also be good if the care is bad, so long as the replacement care is better. In this case, the children's present care will almost certainly be discontinued. However, the reason for that will be so that the new care will be superior in the sense that it will involve permanency. Is there any assurance that this will come to pass? No, there is not. But the CFSA does not require absolutes. Terms like "risk" and "likely" carry connotations of estimations and evaluations based on accepted facts. It is fair to estimate that when the plan of the society for adoption materializes, the effects of the disruption of their present lives will be minimized as a result of their adoptive placement. I include in this not only the disruption of their foster care, but also the disruption of their access visits with their parents.

[141] Limited Disruption from Access Termination

Currently, parental care is limited to 18 hours per week in a supervised access setting. There are times when that access doesn't even happen. At others, it doesn't total 18 hours. The disruption of paternal care I estimate to be negligible if the children are to be adopted. The disruption involved in no longer having access visits with their mother, including with others who may accompany her from time to time, will be greater, but not excessively so. From almost any point of view – temporal, relational, emotional – the lives of these two children are qualitatively and quantitatively connected much more to persons other than to their mother, father and extended birth family members. The reality is that the change from the parents as primary caregivers to the foster parents are primary caregivers has resulted in the children thriving in their foster home. Access termination does not rank anywhere close to change in primary caregiving.

[142] Disruption from Return to Mother

There is also a consideration of disruption should the mother's plan be put in place. The obvious disruption would, in that case, be the move from the foster home where the children are thriving to a move to the mother's home, where their parental care is bound to be nowhere near as good as it is now. More importantly, however, is the prospect, based on history, that the mother will find another male partner who will be, in all probability, a complete stranger to these children, and likely not a great candidate for parenting.

[143] Children's Wishes

The wishes of the children cannot reasonably be ascertain. They are too young. They have no counsel of their own.

[144] Effects of Delay

The effects on the child of a delay in the disposition of the case is a circumstance, the intent and meaning of which I frankly don't understand in the context of a case like this one. There is no delay at this point. The trial has been held. There are really only two possibilities by way of disposition in this case. The only delay at this point is in making a final order following argument. The only obstacle to doing that is completing these Reasons.

[145] Statutory Review Requirements

If, however, clause 10 of section 37(3) is a reference to the making of a final order under section 57(1) that requires a review by a certain date because of a statutory requirement, it really should have been more precise in its wording. In this case, that could only be an order returning these children to their mother subject to a society supervision order for up to one year. However, if that order were to be made, it would necessarily be an order that was in the best interests of the children. If so, it would be delaying nothing as it would be the final disposition in this case. It would be inappropriate to consider a protection order that must statutorily be reviewed in the future to be less desirable than any other order simply because of the requirement of that review.

[146] Degree of Risk at Apprehension

The degree of risk that justified an apprehension of the children is not a high one. The children were apprehended on 3 March 2009. The society had been involved with this family since it moved to Sault Ste. Marie in May 2008. There was no precipitating event of any significance that led to the apprehension of the children. Whatever the risk was on March 3, 2009, was also there in January 2009 and in February 2009 and in the months previous. This society, as well as the Sudbury society, did not remove V. from the mother and the father until she was 14 months of age. It allowed the parents to bring J. home after he was born. It didn't apprehend him until he was almost four and one-half months of age.

[147] Degree of Risk at Trial

This circumstance, however, is not temporally restricted to what pre-dated the society's intervention and the filing of a child protection application. The wording of clause 12 of section 37(3) refers to degree of risk that justified the finding that these were children in need of protection. This finding has only just been made and is reflected in these Reasons which follow a lengthy trial. It comes three years after this case started.

[148] Substantial to Overwhelming Risk

By the time of the finding, much more had taken place that was relevant to risk of harm. In addition, much more was known and known with much more accuracy than was known at the time of apprehension, or in the early stages of this case. This was all made available to the court at time of trial. It would be fair to say that the degree of risk of harm in returning the children in this case falls somewhere between substantial and overwhelming.

[149] Degree of Risk and Disposition

The obvious question is what does the degree of risk have to do with the child's best interests. In the framework of the making of a protection order following a trial, it is very pertinent. The degree of risk plays an important role in the intrusiveness of the order chosen by the court. Generally, the lesser the risk, the less intrusive the order (including the terms of the order). Conversely, a higher degree of risk will normally call for a more intrusive order.

[150] Least Disruptive Alternative and Degree of Risk

The bias in the CFSA is in favour of the least disruptive available alternative that is appropriate in the circumstances. I interpret the word "appropriate" to refer to what is stated to be paramount in terms of the purpose of a child protection case, namely, the promotion of the best interests, protection and well being of the child or children in question. Where, as in this case, only two options are available, the court is required to choose returning the children to their mother subject to a supervision order unless this is not an "appropriate" choice to make. This is where the degree of risk of harm plays a pivotal role. If the degree of risk that justifies a finding is too great and it will compromise the protection, best interests and well being of the children to return them to their parent, then this option is foreclosed. The degree of risk of harm essentially determines where the line is drawn beyond which a less disruptive alternative is no longer appropriate. The location of that line may change as changes in circumstances take place and/or as more information becomes available.

[151] Likelihood of Change

In the present case, what is known is sufficient to conclude that the line is well beyond what would permit a return of the children to their mother. What is known is also enough to infer that the kind of changes that would be required before these children could be returned to their mother are very unlikely to come about. In terms of degree of risk, this involves the consideration of whether the mother could take steps to reduce the degree of risk to a level that, with appropriate court ordered conditions, and with society supervision in place, the children can be adequately protected in her care. I have concluded that she cannot. She has not done so in three years. Short of one or more miracles, she will not be able to change certain aspects of her personal functioning that pervade her entire life and lifestyle, and bear directly on her inadequacies in parenting.

[152] Other Relevant Circumstances

As a further circumstance, the court is directed in section 37(3) CFSA to consider "any other relevant circumstances". Clauses 1 to 12 appear to be very comprehensive in listing the circumstances that would reasonably be expected to bear on the child's best interests in the context of any Part III CFSA proceeding. Perhaps clause 13 was intended to permit the court to exercise its discretion to consider some exotic or esoteric circumstances, subject to the requirement of relevance, of course, that may not fit well within the descriptions of the other listed circumstances it is required to consider. None of these come immediately to mind in this case.

[153] Merits of Competing Plans

Clause 8 of section 37(3) requires the court to weigh and balance the merits of competing plans for the care of the children, specifically the society's plan (including any part of that plan that involves adoption), verses the parents' plan for return of the children to the care of their mother. I have already touched on this consideration in portions of these Reasons that deal with the background and the position of the parties, as well as in my statement of the evidence. I add the following to clarify how I view this consideration.

[154] Mother's Deficiencies and Prognosis

Firstly, the mother has fairly profound personal challenges and serious deficiencies as a parent. Secondly, she acknowledges that she needs the help of others. Thirdly, the prognosis for change in her makeup is poor and the likelihood of change in her lifestyle is low. Fourthly, I have discounted the assistance of the two main support persons she offers. Fifthly, she is expecting yet another child which, so far as can be determined, she proposes to parent. Even in the unlikely event that V. and J. were to be returned to her, it would necessarily have to involve the society supervising her care of these children. She is not all that amenable to advice or supervision. All of the foregoing are the ingredients for a recipe that would require the society to be a permanent presence in her family.

[155] Permanent Society Involvement

The merits of the parental plan necessarily involves this prospect of society intervention. Moreover, the degree of involvement of the society would be high, would be continuous and would be long term. I agree with the mother that continued society supervision is not and should not be tantamount to co-parenting by the society. However, I disagree with her suggestion that the role of the society is to remain involved with the family through a supervision order for as long as it takes. Supervision orders are, by their nature, time limited. This and the requirement of status review means that there should be a reasonable expectation that the parent's parenting will no longer require the society as a supervising presence within some reasonable time. In short, "as long as it takes" has to be considered with the added words "to do what?" For this mother, there is no end of the road in sight. She will never be able to parent adequately on her own or with persons she identifies as her supports. It is not the proper function of a society to remain in a supervision relationship with a family indefinitely. In this case, it would be. For this reason, the merits of the mother's plan are considerably compromised.

CROWN WARDSHIP AND PARENTAL ACCESS

[156] Statutory Prerequisites for Access to Crown Ward

When an order is made for Crown wardship, the Act prohibits the making of an order for access to the Crown ward unless three pre-requisites are proven to be present to the satisfaction of the court:

• the access must be beneficial to the child;
• the access must be meaningful for the child;
• the access must not impair the child's future opportunities for adoption.

[157] Opposite Preference for Non-Crown Wardship

This statutory direction for no access applies to Crown wardship orders only. For any lesser protection orders, there is an opposite preference, namely, that an access order must be made in favour of the person from whose charge the child was removed, so long as the court is satisfied that continued contact with that person would not be contrary to the child's best interests.

[158] Statutory Intent and Onus

There is obviously some statutory intent in the disparity of the statute's direction to the court when considering access orders in Crown wardship situations and in non-Crown wardship situations. This disparity has some consequences in terms of who has the onus to satisfy the court.

[159] Burden of Proof

My view of this legislation is that default position is that there should be no access to a child who is made a ward of the Crown. However, it does not apply in all cases. The exceptions are those cases where access is not only determined to be in the best interests of the child, but the access also meets the aforementioned criteria. It follows logically that the person or persons who are seeking an order for access to a Crown ward will bear the burden of satisfying the court of the foregoing. In the present case, that onus falls on the mother and on the father.

[160] Children's Adoptability

The evidence of the society is that V. and J. are very adoptable. This is a result of a number of factors: their ages, their compliant and agreeable natures, and their good health. The society's evidence shows that it has a very good record of placing Crown wards into adoptive homes over the past year. Its evidence also establishes that it has access to services such as the Annual Adoption Resource Exchange which permits societies to showcase children available for adoption. As of July 2011, the society's adoption coordinator, Ms. Patti Stefanizzi, based on her experience in this position since January 2003, was of the opinion that the society did not anticipate difficulty in securing an adoption placement for V. and J..

[161] Impact of Access Orders on Adoptability

However, her evidence at trial qualified this "opinion". It would no longer apply if orders for access were to be made with respect to these two children. The basis for her revised opinion was that prospective adoptive families would be discouraged from accepting children into their families if there remained ties with the birth families of these children. In addition, an outstanding access order would prevent the society from presenting a child at the annual fall Adoption Resource Exchange. If I understand the evidence of the society correctly, the society would not even embark on a quest for an adoptive family for a Crown ward who was subject to an order for access.

[162] Evidentiary Issues

This kind of evidence presents some problems. Some of this evidence is factual; some is opinion. The adoption coordinator of the society was never qualified as an expert. No request was ever made for this. Accordingly, this court should disregard the opinions she may have expressed. Her factual evidence, however, is not objectionable, and is admissible.

[163] Failure to Meet Statutory Requirements

It is the duty of the mother and the father to satisfy the court that making parental orders for access will not impair the future opportunities of V. and J. to be adopted. It is always more difficult to prove a negative – but this is what the Act requires. In this case, neither mother nor father provided any evidence from which the court could conclude that this requirement was met. All three requirements must be shown to exist. Failure to prove any one effectively bars the court from making an order for access.

[164] Beneficial and Meaningful Access

The mother and father must also satisfy the court that their access is meaningful and beneficial, not for themselves, but for the children. Neither has shown that their current relationships are either beneficial or meaningful for the children. Their argument seems to be that the children recognize them as their birth parents, that they are happy to see them for access visits, and that they seem to enjoy spending their access time with them. Unfortunately, this does not meet the requirement of the statute. I echo the comment of Justice Quinn in the case of M.J.:

"... Consequently, even if there are some positive aspects to the relationship between parents and child, that is not enough – it must be significantly advantageous to the child."

[165] Adoption More Important Than Access

Ultimately, this court has to decide if adoption is more important than continuation of parental access to the children, and whether adoption would be jeopardized if there was a right of access. For these children, and considering these parents and the history as recounted in the evidence, the decision is very clear. Continuation of parental relationship through access is not all that significant for these children. It should not be a factor that creates an impediment to the prospects of adoption.

[166] Access Not in Best Interests

I have concluded a lengthy analysis of which of the circumstances listed in section 37(3) of the Act apply to the issue of placement in this case, and how they do so. This same best interest test applies equally, if somewhat differently, to the issue of access. For many of the same reasons expressed, I find that continuation of parental access is not in the best interests of these children.

[167] Final Orders

Accordingly, the appropriate orders to be made in this case with respect to both children, V. and J., are orders of Crown wardship with no access.

Released: June 14, 2012

Justice John Kukurin, Ontario Court of Justice