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 Information

File No.: C52598/10

Date: 2012-10-09

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties and Representation

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

And In the Matter of: H. A., born […], 2007

Between:

• Children's Aid Society of Toronto (Applicant)
• A. (mother) and Y. I. (father) (Respondents)

Before: Justice Robert J. Spence

Trial Heard: 27 and 28 September and 1 October 2012

Reasons for Judgment Released: 9 October 2012

Counsel:

• Ms. Samantha Levenson — for the applicant society
• Ms. Carolyn Chambers — for the respondent mother
• The respondent father, in default and not appearing other than as a witness

Nature of the Case

[1] This is an amended child protection application brought by the Children's Aid Society of Toronto ("society") seeking a finding that the four year-old child is in need of protection, and an order that the child be made a crown ward, so that he can be placed for adoption.

[2] The mother, who was represented by counsel at trial, is opposed to the society's request, both for finding in need of protection, as well as the disposition. The mother's primary plan is that the child be placed with the paternal aunt, subject to a society supervision order or, in the alternative, that the child be placed with herself, subject to a supervision order.

[3] The father did not participate in the trial as he was previously noted in default.[1]

Background

[4] The society first became involved in July 2010 when it was contacted by a parent support worker from the Macauley Child Development Centre. That Centre had been working with the mother for approximately two years to assist in providing for the needs of her then two year-old child. The worker stated that the child had special needs, and the mother was unable to control the child's behaviour; additionally, there were safety hazards in the home.

[5] The support worker attempted to persuade the mother that the child required certain interventions to address his behaviour issues, but the mother was not responsive to the worker's efforts. The support worker had made a referral for the child to attend the Hincks-Dellcrest Centre, but the mother did not follow up with that referral. Nor did the mother cooperate with attempts made by the Public Health Nurse to contact mother and work with her on these issues. Similar attempts were made to refer mother to Surrey Place.

[6] The support worker was also concerned that the child, who was by then more than 2-1/2 years old, was not using any words. She thought the child possibly required a speech and language assessment.

[7] For her part, the mother acknowledged that although she sometimes felt overwhelmed by the child's behaviour, she did not feel there was anything "wrong" with the child. Nor did she acknowledge the attempts that had been made to refer her to Surrey Place, the Public Health Nurse, or Hincks-Dellcrest. In fact she even refused to acknowledge that she had been working with the Centre for two years.

[8] When the society worker attended the mother's home in September 2010, the worker observed the following:

1. The child's right leg was curved inward;
2. The child babbled with only a few clear words being decipherable;
3. The bathroom ceiling and above the basin was covered in mould;
4. The walls were dirty;
5. The bathtub, sink and toilet were filthy and appeared not to have been cleaned in a long time; and
6. There were a lot of items packed into the bathroom tub.

[9] The society made numerous efforts to persuade mother to follow through with recommended services, but mother was inconsistent in her ability to do so. The home continued to be dirty and on one visit in November, had a strong smell of urine. Mother stated that she had difficulty taking the child to the doctor as she had to restrain him from running onto the street.

[10] The child's doctor reported to the society that the child had missed his 18-month immunization as the mother failed to make an appointment to bring the child to the doctor's office. The doctor had expressed concern that the child was possibly autistic. The mother's view was that the child was fine and all that was required was "patience".

[11] The society had wanted to try to work voluntarily with the mother to address the numerous concerns, and it asked mother to enter into to a Temporary Care Agreement. It was clear to the society from its extensive investigations that the child had a number of special needs. However, mother was unwilling to enter into a voluntary agreement with the society.

[12] The society made it clear to mother that the child's needs required assessment and if mother did not agree to a voluntary placement, the society would apprehend the child. When it became obvious to the society that it had no other option, it obtained a warrant and apprehended him on November 26, 2010. The child has been in the continuous care of the society since that date, more than 22 months.

Was the Child in Need of Protection at the Time of the Apprehension?

[13] At the time of the apprehension, the mother was noticeably overwhelmed by her responsibilities to care for her child. She had allowed the home in which she and the child lived to become very unsanitary and unsafe.

[14] The mother herself complained to the society that she was "depressed", stating, "how could I not be depressed since I'm always in the home with my son and his difficult behaviour".

[15] The child had very serious needs which the mother was unable to address. Following his apprehension he was assessed at Holland Bloorview Kids Rehabilitation Hospital. The assessment was conducted in June 2011, about 7 months following the apprehension. I extract the following from the Bloorview report dated August 11, 2011:

[the child] presents with some significant delays in his fine motor skill development . . . [and] some delay in his visual motor skills and some delays in his gross motor development . . . He shows excellent potential to improve and develop these skills given his interest and motivation.

[16] In her trial testimony the mother could not describe in any detail what her child's special needs were, nor the kind of therapy that he would require to address those needs. She herself had never contacted Bloorview, nor had she gone to the school to discuss her son's special needs, in order to ascertain whether the school could provide programming specifically designed to address those needs.

[17] In April 2011, the mother was referred to the Humber River Regional Hospital for assessment of her own depression and panic attacks. The Hospital had been involved with mother as far back as 2006 when she was suffering at that time from panic disorder.

[18] The consulting psychiatrist at that assessment noted mother herself stating that she felt "sad every day" and that she "had difficulty getting out of bed", and that she was sleeping from 4:00 a.m. to 4:00 p.m. Further, mother complained of an inability to do household tasks due to low energy. She also expressed her own concern about her panic symptoms.

[19] The assessment revealed an AXIS I diagnosis of "panic disorder with agoraphobia and major depressive episode".

[20] The psychiatrist recommended medication and cognitive behavioural therapy. The psychiatrist also referred her to a social worker within the hospital for psycho-education to assist mother in determining what helps her, and what hinders her in respect of the panic disorder and depression.

[21] The mother has advanced the paternal aunt as the primary caregiver, recognizing as she apparently does that she has her own issues to address before she will be in a position to care full time for her child. When the paternal aunt testified, she stated that the child's "mother is not well, so I would like to raise him myself".

[22] On the basis of all the foregoing, I must conclude that the child was in need of protection at the time of the apprehension. The child was at risk of both physical harm as well as emotional harm. Accordingly, I make a finding in need of protection pursuant to sections 37(2)(b)(i) and (ii), and 37(2)(g) of the Act.

Plan with the Paternal Aunt

[23] I am addressing the paternal aunt ("aunt") first, as she is the mother's primary plan. The aunt lives in Toronto, together with her 18 year-old son and her 78 year-old mother ("great-aunt"). The great-aunt has significant health problems and, according to the aunt, requires "24/7 care". She was assessed by a neurologist three years ago, who noted the following medical background: "parkinsonism, depression, suspected cognitive impairment, sleep apnea, with significant cognitive impairment".

[24] The great-aunt is wheel-chair bound and requires assistance to be fed, bathed, and to go to the bathroom. Someone must be present with her at all times. The aunt testified that she receives some assistance from her adult siblings who will come to the house from time to time to help out. However, it was clear from the evidence that those siblings cannot be available all the time.[2] For example, on the day that the aunt was scheduled to testify, she was aware that she was required to be in court at 10:00 a.m., but no one was available to relieve her in a timely way, with the result that she was not able to attend court until after 12:00 noon.

[25] Notwithstanding the fact that her son is 18 years old, he appears to be very demanding of the aunt's time. For example, the aunt missed a great many access visits with the child[3] because, as she herself testified, "It's my son that I'm busy with".

[26] The end result of all of this is that the aunt lives with her own mother who needs full time care, and she also is required to devote considerable time to her own now-adult son. Between her mother and her son, I am forced to conclude that the aunt has very little time for herself, much less a four year-old child who she is proposing to care for on a full time basis and who, himself, has his own special needs.

[27] The aunt has further challenges which are reflected by the access visits which the society attempted to arrange between the child and the aunt, when the aunt was being proposed as the primary caregiver.

[28] The society began the process of attempting to connect the aunt with the child in September 2011. The society worker asked the aunt to contact the society to begin to set up these visits. The aunt did not return the society worker's calls. The society tried for three months to contact the aunt, including telephone calls and sending her a letter. It was not until the society was able to remind her, on December 1, 2011, about the upcoming court date on December 13, 2011, that the aunt agreed to come to access. The society was understandably concerned about the level of the aunt's commitment to be the child's primary caregiver, given the fact that she waited for about three months before deciding whether to even visit with the child.

[29] The first access visit was on March 30, 2012. This is what occurred following that first visit:

1. The society scheduled four visits for April 2012. The aunt did not attend any of those visits.
2. The society scheduled five visits between the aunt and the child for May 2012. The aunt attended two of those visits.
3. The society scheduled four visits for the month of June 2012. The aunt attended two of those visits, the latter on June 13, 2012.
4. For the month of July 2012, the aunt advised the society that she would be going to a wedding and would be unable to attend any visits for a month.
5. For the month of August 2012, the society tried repeatedly to connect with the aunt to arrange for more visits. However, the society was unsuccessful and no visits occurred.

[30] The result of all this was that the last visit the aunt attended with the child was on June 13, 2012.

[31] The following is some of what the aunt had to say about the access visits.

1. When asked why she took so long to connect with the society initially to commence access, she was non-responsive.
2. When asked how many times she had seen the child, she said "several times", but she denied that it was as few as five times, as suggested by the society.
3. When asked why she did not attend any visits during the month of April 2012, she replied, "I was busy with my son, taking him to tutoring, as well as I had appointments".
4. When asked about the scheduled visits for May, she stated, "I don't remember, but I was busy with my son's doctor appointments and his gym". In response to the more specific question why she attended only two of the five scheduled visits in May, she continued, "I was busy with my son" and "I had things to do".
5. When asked about how many visits the society had scheduled for her in the month of June, she answered, "I don't remember". When asked whether June 13, 2012 was her last visit she agreed.

[32] In response to all the society's evidence about repeated attempts to contact her, including telephone calls and letters, she denied seeing any letters or receiving telephone calls.

[33] Where the evidence of the society and the evidence of the aunt conflicts, I accept the society's evidence over the aunt's evidence. The aunt's responses were often vague and included such words as "don't remember". The society's evidence was based on its own notes and records which workers made contemporaneously or shortly after the events in question. Even if the aunt were to be believed that the society was not making repeated efforts to contact her, she has no explanation for why she herself failed to be proactive and take whatever steps were necessary to push for ongoing contact with her nephew. It is for these reasons that I prefer the society's evidence over the aunt's, where their evidence conflicts.

[34] The aunt's inability to attend regular access with the child is, by itself, sufficient to persuade me that she is not able to commit to a long-term plan to care for this child, especially a child such as this who has special needs and who requires close and dedicated attention from his primary caregiver. I do not state this as a criticism of the aunt, as it is apparent to me that she already has a very full schedule, just looking after her own mother and her son. Moreover, in addition to having her hands full with these time commitments, the aunt has no real understanding of the child's special needs.

[35] There was considerable evidence presented about the child's needs. The aunt herself had opportunities to see the various reports that were filed in evidence, and to obtain information directly from the society or from the mother about the child's needs. And yet, when she was asked whether she believed the child has special needs, she replied, "Not the way they are describing, no".

[36] All of this must be understood in the context of the society's kinship assessment report which was part of the evidence. I extract the following from that report (my emphasis):

The family service worker had told [aunt] about [child's] special needs, which include, a Global Developmental Delay, behavioural issues, difficulty with processing information, concerns with his social skills when interacting with both adults and children, that he would likely not be able to be independent as an adult, issues with constipation, and having to sleep with a diaper at night. [Aunt] could not recall any of the above needs that [child] experiences and stated that she thought that he runs away a lot. His special needs were reiterated to her. She was also told that [child] would require Speech Therapy through Toronto Speech and Language, a physiotherapist, and regular interaction with other children. Two weeks later [aunt] was asked about what her understanding of [child's] special needs are and what would be required to ensure his needs are met and managed. She was unable to recall and had no plan in regards to managing [child's] needs. It was evident that she lacked understanding of what it would take to raise a child with special needs and also lacked insight as to how she would manage [child].

[37] At trial, when she was asked about the nature of the child's speech problems, she stated, "They told me he has a speech problem, but I don't believe so".

[38] She acknowledged that she never asked to be part of any appointments for the child in order to better understand his needs. She said that if the child were in her care he would attend the school close by her home. However, when society counsel asked whether she had gone to that school to inquire whether it could accommodate his needs, she said that she had not done so.

[39] When she was asked whether she had a plan to address his needs before the child is placed in her care, she replied that she didn't think there needs to be any such plan in place before the child comes to live with her.

[40] In fact, the aunt has so little understanding of the child's needs that when she was asked what changes she would have to make in her life or in her routine if she had the responsibility to care for the child, she replied, "there wouldn't be any [changes to her life or to her routine]."

[41] She finally stated after all of this, that if the child in fact has needs to be addressed, such as occupational therapy, or speech, "I would take him where he needs to go . .. I don't know [where or to whom] but I will find out".[4]

[42] Her lack of understanding of the child's needs or the specifics as to how should would address those needs if the child were in her care, was palpable, particularly given that these needs had been repeatedly explained to her on prior occasions.[5]

[43] I turn to the aunt's relationship with her son. When the kinship assessor from the society attended at the aunt's house in January 2012 to interview the adults in the home, she was met with opposition from the son. I extract the following from the assessor's report (my emphasis):

I briefly attempted to meet with [the son] as he is turning eighteen years of age in March 2012. He made it very clear to me that he did not wish to speak to me, that the meeting was an inconvenience, that he was not interested in a relationship with [child], that he did not care about the assessment, used inappropriate language, and exercised his power over his mother to no longer participate in the meeting . . . the adult conflict [between aunt and her son] included raised voices, intimidating body language, and demanding behaviour . . . . and [aunt] demonstrated to me that her parenting style was passive and that her son had most of the power in their relationship and within the home.

[44] The aunt, in her trial testimony characterized her son's behaviour on this occasion as, "he was giving a little bit of attitude, but that's all".

[45] The kinship assessor also testified at trial. She stated that she attended at the home on January 18, 2012 after the aunt had previously met with the society worker and after the society worker had explained in detail the nature of the child's various special needs. The assessor stated that she wanted to ascertain at that meeting whether the aunt had been able to formulate a plan for addressing those needs, which had previously been explained to her. The aunt replied that not only did she not have a plan for addressing those needs but, additionally, she could not even remember what the society worker had previously explained to her, namely, what those needs encompassed.

[46] At the same meeting, the aunt actually told the assessor that caring for her own mother was a full time job. The outcome of that visit, and what the assessor experienced with the son and learned about the aunt, was that the assessment was immediately terminated. The combination of the adult conflict in the home between the aunt and her son, the aunt's extensive time demands in caring for her own mother, and the aunt's inability to focus on the child's special needs, compelled the assessor to conclude that the aunt would not be in a position to manage the special needs of this small child.

[47] The son did attend court and he denied yelling at his mother on the day in question. He did not deny his lack of cooperation with the society worker. He did testify that he was prepared to help with "babysitting, chores and stuff" if the child came to live with them. He was distinctly passive in the way he gave his evidence, acknowledging that he knows nothing about the child, has never seen him, has never asked to see him, and doesn't know how long he has been in the society's care. The manner in which the son gave his evidence, as well as the substance of what he had to say, was perfectly consistent with what the kinship assessor experienced when she was in the aunt's home.

[48] The son's evidence persuaded me that his very presence in the aunt's home, if the child were to be living there with the aunt, would add to the aunt's challenges in caring for the child, rather than helping to ameliorate those challenges.

The Mother

[49] Following the apprehension, mother was afforded once weekly supervised access visits at the society's offices for two hours per visit. It is clear that some of the visits, for at least some of the time, were positive, with good interaction between mother and child. However, on other visits the mother seemed unable to engage her son. More problematic was mother's frequent inability to deal responsively and appropriately with the child's behaviour. Overall, there were ebbs and flows in the quality of the access visits, so that the society perceived that, possibly, there was some potential for improvement in the mother's ability to parent her child.

[50] Because of that perceived potential, the society recommended that mother participate in the society's Therapeutic Access Program ("TAP"). TAP is designed to allow the parent to spend longer periods of time[6] with her child under the direct and watchful eye of the society worker, who also provides instruction, therapy and feedback. The program is designed to improve parenting skills, with the hoped-for goal of eventually re-uniting the parent and the child.

[51] Between April 2011 and June 2011, the society scheduled 15 TAP visits. The mother attended only six of those visits. She missed such a high percentage of her visits that the society terminated the program because of her poor attendance.

[52] Regular supervised access visits were reinstated in June 2011. Between June 2011 and September 30, 2011, there were 12 scheduled visits. Mother attended only three of those visits.

[53] Between October 1, 2011 and August 23, 2012, the visits were scheduled to continue on a once-weekly basis. However, out of the 38 scheduled visits, mother attended only twice. She did attend two more visits just prior to trial, on September 10 and 17. The society acknowledged that the last visit went well.

[54] I had hoped that during the course of her testimony at trial I would hear something from mother that might explain why she missed the vast majority of her limited opportunities to visit with her son. However, that was not forthcoming.

[55] Dr. D. is mother's psychiatrist. Mother was referred to Dr. D. in November 2011, by her prior psychiatrist who had gone on maternity leave. The prior psychiatrist had diagnosed mother with panic disorder and depression. However, when Dr. D. saw mother, she believed that there was more to mother's mental health issues than simply that prior diagnosis. Mother had difficulty expressing all of her symptoms to Dr. D., but mother did report the presence of a "voice" that was "chatting in her mind constantly". Mother was hearing a voice "calling her name".[7] Dr. D. testified that these reports from mother are consistent with a diagnosis of auditory hallucinations.

[56] Dr. D. testified that she has met with mother a total of approximately 10 times and, in some ways mother's mood appears to be better. Also she has been more consistent in keeping her appointments with Dr. D. However, mother displays symptoms which are consistent with Obsessive Compulsive Disorder (for example, the constant washing of hands), and mother also continues to report hearing the voice, and she "argues with the voice in public".[8]

[57] Dr. D. has tried different medications, including anti-depressants and anti-psychotic medication, but these have so far failed to address mother's symptoms. Dr. D. recommended to mother that she be admitted to hospital for a thorough assessment. Such an admission would have to last for a period of 2 to 3 weeks. In terms of the outcome, Dr. D. stated that whether mother would get better and, if so, how long it would take for some improvement to occur, is difficult to predict but, at a minimum, any improvement at all would take anywhere from weeks to months.

[58] Based on all of this evidence, as well as the historical evidence leading up to the apprehension, and in the absence of any other explanation from mother herself, the only logical inference is that mother's mental health issues have likely acted as a significant roadblock, first, in her historical inability to manage her child and, second, since the date of apprehension, in her marked inability to regularly attend access visits.

[59] And all of this is consistent with mother's inability to even attend this trial in a timely way. On the morning of the first day of trial, her counsel advised the court that mother was not feeling well and could not attend the trial at all. I adjourned trial to allow mother to attend the following day. On the second day of trial, mother appeared but, again asked for an adjournment because she said she was not feeling well. I told her that we could get started and that she could have as many breaks as she needed throughout the day. All she needed to do was to ask me and I would take breaks for her as requested. She agreed to proceed on that basis.[9] On the third day, the start of trial was delayed as mother was one-half hour late in attending court for the 10:00 a.m. start time.

[60] It is clear to me that mother has very significant challenges. And although she loves her son very much and sincerely wants him to remain with his family, she herself recognized that she was not the best person to care for him at this stage of his life – and her life – and, for that reason, she was putting the aunt forward as the primary plan. Mother's demonstrated inability to consistently attend access and her inability to address her mental health issues[10] are sufficient for the court to conclude that the child cannot be returned to her full time care, under a supervision order, not even with supports in place. I will discuss the evidence of her supports in the next section of these reasons.

The Supports

[61] To their credit, mother and aunt managed to assemble a number of relatives to come to court, all of whom professed their willingness to do whatever was necessary to assist in the care and upbringing of the child. I will discuss briefly each of those persons.[11]

[62] The biological father lives with his new wife. He came to court saying that he would do whatever was necessary to assist because the child is "my blood". He acknowledged his awareness that the child has been in care for 22 months. However, during that entire period of time, he did not once visit his child. He says the society "denied" him visits; but there is no evidence in the court record to support that bald statement. Nor is there any endorsement by a judge in this case suggesting that the father could not have access. Even if the father somehow mistakenly thought this was the case, he took no steps to ask a court for an access order in any one of the multiple court appearances which took place prior to this trial. In other words, the father was unable to demonstrate, prior to coming to testify at this trial, that he had any real interest at all in seeing his child.

[63] Father was asked if he was aware of his child's special needs. He responded, "how would I know, I was denied visits, I didn't see him".

[64] Father professes to be concerned about his child and expresses to the court an interest in being in his life to be a support person; and yet father chose to absent himself from about half the court appearances. Furthermore, father did not file any material in response to the society's amended protection application and, accordingly, was in default of this proceeding.

[65] I must conclude from the father's evidence that however sincere he himself believes he is about his ability to be a support person to either the aunt or to the mother, there is absolutely no demonstrated commitment to understanding his child's needs or to establishing a relationship between himself and his child. In my view, this is particularly disturbing given the fact that he is the child's biological father.

[66] Aunt A. also testified that she would be willing to be a support person. She was asked when the last time was that she saw the child; she responded that she had not seen him, even once, since the society apprehended him. She offered no explanation for this. And as to her involvement with the child prior to the apprehension, she responded "I have seen him several times".

[67] Aunt A. was asked what she knows about the child's special needs. She stated that she is aware he has a "speech problem" and "something else". Did she ever call the society to ask about the child? No, but she says she asked the child's father how the child was doing. In other words, she chose to make inquiries from someone who, himself, knew virtually nothing about the child's needs or the child's progress while in the society's care. For some unexplained reason, she failed to seek out this information from the most knowledgeable source, namely, the society. Again, Aunt A.'s evidence revealed a pointed lack of commitment to establishing a relationship with the child, and gaining an understanding of his special needs.

[68] And finally, Aunt M. came to court to testify. Like the father, Aunt M. testified that it was important for the child to remain within the family because he is "our blood". And she offered, "100%", to help the paternal aunt care for the child. However, the revealing questions and responses came in cross-examination.

[69] Aunt M. was asked about her knowledge of the child, including how long he had been in care, and the particulars concerning the child's needs. She said she didn't know about the child being in care until approximately one year ago.[12] She said she never called the society to inquire about the child and how he was progressing. She said the paternal aunt had never told her to call the society to inquire about the child. She has never seen the child since he came into care; nor has she ever asked the society for permission to visit the child.

[70] She was asked if she knew the details about the child's special needs. She responded, "speech, special school, more caring".

[71] Once again, although all of the supports may have come to court with the sincere wish to incorporate the child into their extended family, none of the persons who testified was able to demonstrate by their actions prior to trial any commitment to understanding the child's needs or an ability to address those needs. Nor were they able to demonstrate any real interest whatsoever in even establishing a relationship with the child by visiting with him for the 22 months that he has been in the society's care.

The Statutory Path

[72] Part III of the Act outlines the statutory path for the court to follow in a protection application. The first step is set out in subsection 47(2), which requires the court to make the jurisdictional findings. There was no issue raised as to those jurisdictional findings, which are set out in the society's amended protection application.[13] And accordingly I make those findings as set out in the amended protection application.

[73] The second step is for the court to determine whether the child is in need of protection pursuant to subsection 37(2) of the Act. I have earlier in these reasons made that finding in need of protection, pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g) of the Act.

[74] The third step, once a finding in need of protection has been made, is to decide on the appropriate disposition. Section 57 of the Act provides (my emphasis):

57. Order where child in need of protection.— (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

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

3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

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

(2) Court to inquire. — In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

(3) Less disruptive alternatives preferred.— The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

(4) Community placement to be considered.— Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

[75] In the context of the present case, because the child has been in care for more than 22 months, well beyond the statutory time limit of 12 months, the court is unable to make either a society wardship order or consecutive orders of society wardship and supervision.

[76] The remaining options are an order under section 57.1, a supervision order or a crown wardship order. However, as there are no individuals before the court who are seeking a custody order under section 57.1, that leaves only the possibility of a supervision order with the aunt or mother, or a crown wardship order.

[77] A supervision order would require the court to conclude that either the aunt or the mother is capable of appropriately caring for the child on a full time basis, supervised by the society. On all of the evidence before the court, that conclusion is not possible, having regard to the best interests of the child.

[78] I have attempted to explain in some detail why neither the aunt nor the mother is capable of looking after this child on a full time basis. The child has already been in care for more than 22 months, well beyond the statutory time limit of 12 months, as mandated by section 70(1)(a) of the Act. The court cannot experiment with either of those two plans, as the luxury of time has long since vanished. The Act now requires permanency planning for the child.

[79] And apart from the statutory time limit, it would be manifestly unfair to the child to place him in a setting which the evidence overwhelmingly suggests is highly unlikely to succeed. To do so would run afoul of the legislative requirement for the court to make an order which is in the child's "best interests".[14]

[80] Given all of this, the only remaining option for the court is to make an order for crown wardship. While two possibilities exist in theory, namely, crown wardship with access or crown wardship without access, it was not suggested by either counsel that an order for crown wardship with access would be appropriate. In fact, mother's counsel explicitly stated that she would not argue in favour of crown wardship with access.[15]

Conclusion

[81] Regrettably for the mother and for the extended family, the only legislative option available for this child is to order that he be made a crown ward so that he can be placed for adoption. If parental and kin love were sufficient to prevent that from happening then this child could be placed with family. But as I and many other courts have said in prior cases, love alone is not sufficient to establish that a child will be cared for in a competent manner, and that his best interests can be met by the loving kin.

[82] While this is doubtless regrettable from the perspective of the child's family, adoption for a young child can be a life-changing opportunity. For this child, adoption into a stable family unit is something that will make it much more likely the child will be raised in a loving and capable home where his special needs can be attended to, and in a manner that will give the child the best opportunity to succeed, not only as a child, but also as an adult.

[83] There will be an order as follows:

1. The statutory findings are made in accordance with these reasons and the amended protection application.
2. The child is found to be in need of protection pursuant to sections 37(2)(b)(i) and (ii) and 37(2)(g) of the Act, and
3. The child is made a crown ward so that he can be placed for adoption.

I wish to thank both counsel for their organization and obvious hard work in the presentation of their respective cases.

Justice Robert J. Spence

October 9, 2012

Footnotes

[1] Although he sat in the body of the court throughout portions of the trial and also gave testimony

[2] The father stated that it was only about one month ago – virtually on the eve of trial - that the family got together and talked about implementing "shifts" to come to the aunt's home to assist in caring for the great-aunt. It is difficult to understand why the family waited so long given the father's testimony that the great-aunt's condition has not recently worsened. One might infer from this that this was something cobbled together by the family at the last minute in an effort to make an impression at trial. However, whether or not that is the case, it is clear that this is not something which has been long-standing and, accordingly, there is no way to predict whether it will hold together

[3] I will discuss the access visits shortly

[4] However, it was clear from her testimony, and the way in which that testimony unfolded, that she only reluctantly agreed that the child may have special needs, although knowing really nothing about those needs

[5] See the following discussion

[6] Generally about four hours per visit, rather than the usual one-to-two hours for supervised access visits

[7] The quoted words in this paragraph are Dr. D.'s words given in her testimony, based on what was related to her by mother during the course of mother's time spent with Dr. D.

[8] Again, these are Dr. D.'s words, based on what mother reported to her

[9] She did not request any breaks at all during that day, apart from the normal lunch break and the 15-minute morning and afternoon breaks

[10] Although, as I have discussed, these may be tied together

[11] Except for the paternal aunt's 18 year-old son, whose evidence I previously discussed in these reasons

[12] which would have been about 10 months after the child had been brought into care

[13] The jurisdictional findings for the purpose of this proceeding include the child's name, age, religious faith and the location from which the child was removed when he was brought into care by the society

[14] According to section 57 of the Act, supra

[15] In any event, an order for crown wardship with access would not be possible given the wording of subsection 59(2.1) of the Act, combined with the unchallenged evidence of the adoption worker who testified at trial that this child is in fact adoptable