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 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: C51940/10

Date: 2013-06-19

Ontario Court of Justice

North Toronto Family Court

47 Sheppard Ave. E., 2nd floor Toronto, ON M2N 5X5

Parties

Between:

Catholic Children's Aid Society of Toronto

Marshall Matias, Counsel for the Applicant

- and -

K.N., mother

Lorelee Messenger, Counsel for the mother

Reasons for Decision

Justice H.P. Brownstone

Introduction

[1] These are my reasons for decision in the disposition stage of an amended protection application regarding the child A.N., born[…], 2012. The trial proceeded before me on June 17, 2013.

[2] The child was found to be in need of protection pursuant to s.37(2)(b)(i) of the Child and Family Services Act ("the Act") by Justice Carolyn Jones on March 13, 2013 after a summary judgment motion heard on December 19, 2012. The Applicant Catholic Children's Aid Society ("the Society") is seeking an order making the child a Crown ward without access, so that the child can be adopted.

[3] The mother acknowledges that she is not in a position to adequately parent the child at this time. She is seeking an order placing the child in the care of her friend T.C.. She is also seeking access to the child.

[4] There is no father participating in this case. On July 26, 2012 Justice Stanley Sherr made an order finding that the child has no male parent.

Decision

[5] For the reasons that follow, A.N. shall be a Crown ward without access.

Background Facts

[6] The child was apprehended at birth and has been in foster care for over 16 months. The factual foundation for the finding that the child is in need of protection are set out in the first 22 paragraphs of Justice Jones' summary judgment decision, and need not be repeated here. Further, as the mother is not asking to have the child placed in her care, it is not necessary to set out all of the protection concerns which have been identified throughout this proceeding as a result of the mother's choices and behaviour.

The Society's Plan

[7] The Society submits that the least intrusive option that will meet the child's best interests is to make her a Crown ward so that she can be placed for adoption.

The Mother's Plan

[8] The mother has to date proposed three plans of care for her child. On February 27, 2012 she told her Society worker that she was planning to raise the child jointly with V.P., the mother of her then partner R.P.. At that time the mother was living with V.P. and R.P. On March 13, 2012 the Society embarked on a kinship assessment of V.P. and decided to complete a full parenting capacity assessment in order to properly evaluate the mother's joint parenting plan with V.P.. Unfortunately, V.P. withdrew her kinship plan on May 30, 2012 after the mother moved out of V.P.'s home.

[9] On August 7, 2012 the mother served an amended Answer and Plan of Care proposing her friend S.B. as caregiver for the child. Throughout the Fall of 2012 the mother's Society worker made heroic efforts to make contact with S.B. and several meetings were in fact scheduled, but S.B. never appeared for these meetings. To date S.B. has never initiated contact with the Society in order to pursue her plan.

[10] On May 13, 2013 the mother told her Society worker that she had a new proposed caregiver for the child, but she refused to provide the person's last name or any contact information. When I was told this at the Trial Management Conference on May 28, 2013 (at which the mother did not attend), I made an order requiring the mother to provide the Society with the proposed caregiver's name and contact information by 4:30pm that day. I also ordered that, if such information were provided, the Society was to meet with the person by 4:30pm the next day. Given that the trial was about to commence in less than 3 weeks, I considered it urgent for the Society to be able to investigate the mother's plan of care as much as possible before the trial.

[11] My order was complied with, and the Society was given the name of the mother's proposed caregiver (T.C.) on May 28, 2013. The mother's Society worker met with T.C. in her home on May 29, 2013. The meeting went well, and the matter was referred to the Society's kinship department. On June 12, 2013 the Society's kinship worker met with T.C. in her home. The meeting went reasonably well. However, it was clear that T.C. was not aware of the history of this matter, and the mother did not sign a consent permitting the Society to disclose to T.C. the details of its protection concerns (containing personal information about the mother) until June 14, 2013, literally the day before the trial.

[12] At the start of the trial, the mother filed an amended Answer and Plan of Care proposing T.C. as the caregiver for her child.

The Mother's Proposed Caregiver

[13] I had the benefit of seeing and hearing T.C. testify at the trial. T.C. is a pleasant, soft-spoken 22-year-old young woman. She is raising her 5-year-old son as a single parent (the child's father is not a regular presence in his life and does not pay child support). They reside in a small basement apartment but she says she has been approved for a 2-bedroom Community Housing apartment, although she is not certain at this time which building she will be moving into or when this move will occur. She provided no documentation confirming that she will be moving, and the Society has not been given enough time to investigate whether this is in fact the case.

[14] T.C. has a grade 11 education and is currently in receipt of social assistance. She says she has no criminal record. She says she was briefly involved with the Toronto Children's Aid Society when her child was very young. She signed consents for the Society to obtain the necessary records to properly investigate her criminal justice system and child protection system histories, but those records have not been delivered to the Society as yet.

[15] T.C. says she has been accepted as a full-time student at G[…] College in the Culinary Arts program, and will be starting school in the Fall. No confirming documentation was provided. Her plan is to place her son in daycare before and after school (he will be in school full-time in September), so that she can be free to attend College. If A.N. is placed in her custody, she hopes to utilize the same daycare services for this child.

[16] T.C. says that she has the support of her mother, who is self-employed in the printing business. This person did not testify; nor did she provide an affidavit stating that she is willing to assist in T.C.'s parenting plan. Clearly T.C.'s statement that her mother is prepared to assist her is inadmissible hearsay, as it was being adduced to prove the truth of its contents. The question of whether T.C. might have some reliable support in caring for the child in addition to her own child is a very important one, and cannot be addressed by the admission of self-serving hearsay. When asked why her mother didn't come to court to testify or provide an affidavit, T.C. simply responded, "it's really not up to her". This response suggests that T.C.'s decision to offer herself as the child's caregiver was made without much concern for whatever role, if any, her mother might have to play in the parenting plan.

[17] Even if the court were to overlook the hearsay problem and accept T.C.'s assertion that her mother has agreed to assist her when necessary, the facts appear to suggest otherwise. It is rather telling that T.C. was unable to avail herself of her mother's assistance during the trial. T.C. kept her son out of school and brought him to court because she had no one to take him to school and pick him up while she testified. She was planning to have her 5-year-old child sit in the body of the courtroom and watch her testify. It was only when I stated that I did not consider it appropriate to have the child observing the proceedings, that a Society worker volunteered to take care of the child outside the courtroom while his mother testified. It had not occurred to T.C. to make alternate arrangements for her son so that he would not miss school. Nor had it occurred to T.C. to ask the Society for assistance in this regard. While this incident in itself should not preclude T.C. from being considered as a caregiver for the child, it raises concern not only about her judgment, but also about how realistic T.C.'s assertions are that she can rely on her mother for assistance.

[18] T.C. says she has known the mother for 7 years. However, they lost contact for some time and "met recently on the street and reconnected" about 6 or 7 months ago. She allowed the mother to move in with her. She testified that she agreed "2 or 3 months ago" to present a plan to care for the child, but had no explanation for not contacting the Society to pursue this until she was finally contacted by the Society worker on May 29, 2013. As of the date of the trial she had not even met the child; nor had she even requested an access visit. The mother moved out of her home 2 weeks ago. No explanation was given for why she moved out, but it is interesting that her initial plan when she moved in with T.C. was to co-parent the child with T.C. One might reasonably infer that the mother moved out of T.C.'s home when it became clear to her that a joint plan would not be looked upon favorably by the Society. This leads one to wonder whether it might be the mother's long-term plan to eventually move back in with T.C. if the child were placed with T.C.. Clearly there are some unanswered questions that require further investigation and clarification before consideration could be given to placing the child in T.C.'s care.

[19] The mother testified. She readily acknowledged that this is a "last minute plan", and blamed herself, saying, "I'm stubborn; it took me a long time to figure out that I couldn't do it by myself." When confronted with the challenges in T.C.'s plan (ie she is a 22-year-old on social assistance, already raising a 5-year-old by herself, planning to attend school full time, with so little support that she had to make her child miss school so she could attend court), it became obvious that the mother's support of this plan rests not on her desire to ensure the best possible placement for her child, but rather, on her desire to have her child placed with someone that she knows. This is highly indicative of a parent who places the satisfaction of her own needs above those of her child.

[20] While the Society's first impressions of T.C. have been positive, it is impossible for the court at this stage to make a determination that it would be in the child's best interests to be placed with T.C. because the court does not have enough information about T.C.'s parenting skills and history. It would be unthinkable to place a child with anyone whose criminal record and CAS records have not been seen, let alone the fact that the person has never met the child! The Society needs to complete its home study. This process involves meetings, interviews, records reviews, and observations of access visits. The Society's evidence is that normally such a process would take at least three months - and that is the court's experience as well.

[21] Unfortunately the child has been languishing in foster care for over 16 months, which is beyond the 12-month statutory time limit set out in s.70(1)(a) of the Act. I am mindful that the court has jurisdiction under s.70(4) to extend the time that the child can remain in the Society's temporary care, and the mother did request an adjournment of the trial to permit the Society to complete its kinship assessment. However, I am declining to grant an extension of time, because it is not in the child's best interests to delay her long-term placement. The evidence presented about T.C.'s plan does not, on a balance of probabilities, give rise to a sufficiently realistic prospect of success to justify making the child wait any longer to be placed in a permanent home with reliable caregivers.

[22] I am also declining to grant an extension of time because in my view such an order should not be necessary. An order of Crown wardship does not require the Society to stop its kinship assessment of T.C.; in fact, the court urges the Society to complete its assessment, as this is part of the Society's obligation to the child under s.63.1 of the Act. If, following a Crown wardship order, T.C. were to be approved by the Society as a suitable caregiver, there are several options: (1) T.C. could be approved as a "kin-in-care" placement, in which case she would be a foster parent and the child could reside with her in a foster placement; or (2) T.C. could be approved as a simple "kin" (or kith) placement, in which case the Society could commence a status review application under s.65.1 of the Act to have the Crown wardship order terminated and replaced by a supervision order or a custody order under s.65.2 of the Act; or (3) T.C. could seek to be approved as an adoptive parent through the Society's adoption department.

[23] Accordingly, there is no need to delay the disposition in this case for the simple purpose of allowing the Society to complete its evaluation of T.C.'s plan of care.

The Child

[24] A.N. is a healthy, happy 16-month-old child who is meeting her developmental milestones. She has no special needs. Her Children's Service Worker describes her as "easy to care for". It seems clear that she is highly adoptible.

Best Interests Analysis

[25] In arriving at a disposition that will be in accordance with the child's best interests, the following factors in s.37(3) of the Act are in my view the most important:

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

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

[26] The mother appears to be the only family member who has expressed interest in this child. Her access visits are pleasant and positive but the child is not strongly bonded to her because her visits are so infrequent. I have considered the importance and benefit to the child of maintaining some contact with the mother, which would undoubtedly occur if the child were placed with T.C.. However, this factor is outweighed by the fact that the mother's attendance record at access visits so far can only be described as dismal. Even if the child were placed with T.C., there is no reason to believe that the mother would make herself available to the child on a consistent, sustained basis.

[27] The child has a half-sibling, L.N., who is almost 3 years old and resides with her paternal grandparents and is the subject of a separate protection proceeding. The evidence did not disclose whether any access has occurred between these siblings. The mother rarely visits with L.N. because she is not on good terms with the child's father, whose parents are the child's caregivers. I have considered that a possible benefit to the child of being placed with T.C. might be that the child might have ongoing access to her sibling L.N., although no one mentioned this at the trial. However, at this point the primary concern must be to provide T.C. with a loving, stable long-term home and family. The child's permanent placement with suitable caregivers who are committed to meeting her needs must take priority over sibling access at this time: Family, Youth and Child Services of Muskoka v. C.(N.), L.(W.) and B.(M.)(No.1), 2002 CarswellOnt 5704. It is hoped that, once she has been provided with such a placement, her adoptive parents might be open to permitting some sibling contact.

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

[28] The child has been in foster care since birth. It can be assumed that she is well bonded to the members of her foster family. If her foster parents are not planning to adopt the child, she will have to be moved to an adoptive placement when the most suitable caregivers have been found who will best meet her needs. The child is emotionally healthy. There is no evidence to suggest that she will not be able to adjust to this inevitable disruption to her life. In any event, Crown wardship for the purpose of adoption is the least intrusive and disruptive option that will be in the child's best interests. The benefits of adoption will hugely outweigh the disruption caused by a change of placement, provided the Society's adoption department finds the right adoptive parents.

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

[29] The Society is proposing to place the child for adoption. The court finds that the child is highly adoptible. For the reasons set out above, I find that this plan is the best and least intrusive plan that will meet the child's best interests.

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

[30] The child has been in the Society's temporary care for 16 months, which is 4 months longer than the law permits. It is urgent that a permanent "forever family" be found for her. Any further delay in this case would not be in the child's best interests because the plan put forward by the mother is not sufficiently promising to justify a delay.

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

[31] The mother has not asked for an order placing the child with her. However, an order of Crown wardship without access would result in a termination of the child's contact with her mother. I find that the quality of the mother's relationship with the child, although pleasant and enjoyable for both, is not sufficiently profound as to cause the child any risk of harm if it is severed.

Society's Efforts to Assist the Family

[32] In accordance with s.57(2) of the Act, I am required to inquire as to the efforts made by the Society to assist the child before intervention occurred. The Society has worked with the mother since May 2010, even before her first child was born. The Society offered numerous services to the mother to address her issues of transiency, substance abuse, domestic violence, and parenting skills. She repeatedly failed to follow through with counselling and parenting programs. The Society also made reasonable efforts to investigate and assess the mother's parenting plans. They were about to engage in a parenting capacity assessment for the mother's first proposed caregiver, V.P., but this did not occur because V.P. withdrew her plan. The worker made valiant efforts to connect with the mother's second proposed caregiver, S.B., but that person failed to attend any scheduled meetings with the worker. Finally, on the eve of trial, the Society demonstrated a sincere effort to evaluate T.C.'s suitability, as much as could be done in the very short time available before the trial commenced. In all of the circumstances, I find that the Society has made reasonable and adequate efforts to assist the mother.

Alternative Family or Community Placements

[33] Section 57(3) of the Act requires the Court to select the least disruptive alternative that will protect the child and meet her best interests. Section 57(4) of the Act requires the Court to consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family. In this case the Society took all reasonable steps to pursue any kin or kith plans put forward by the mother. I find that at this time there is no viable kin or kith plan for the child.

Disposition

[34] For all of the above reasons, the least disruptive alternative that will meet the child's best interests is that she be a Crown ward.

Access

[35] Section 59(2.1) of the Act prohibits the granting of access to a Crown ward unless the court is satisfied that: (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child's future opportunities for adoption.

[36] It takes more than pleasant encounters to constitute a "beneficial and meaningful" relationship for a child; the child must be bonded and emotionally attached to the parent before the first branch of the test in s.59(2.1) of the Act can be satisfied: Children's Aid Society of Niagara Region v. J.C., 36 R.F.L.(6th) 40; Children's Aid Society of Owen Sound and Grey County v. T.T., 16 R.F.L.(6th) 235. As Sherr J. wrote in Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803 at para. 45, "even if there are some positive aspects to the relationship between parent and child, that is not enough – it must be significantly advantageous to the child."

[37] The original access order dated February 16, 2012 made by Justice Robert Spence was for the mother to visit with the child at least 3 times per week for 2 hours, supervised. The mother's record of attendance at access was appalling. She barely attended 50% of her visits, and was frequently at least 20 minutes late for the visits she did attend. Because the mother rarely called to cancel her visits (of the 54 visits she missed, she called to cancel only 13), the child was being needlessly transported to and from access visits with such frequency that the Society brought a motion to reduce the mother's access. Even after the mother was told on August 9, 2012 to call the Society at 9:30am on scheduled access days to confirm that she would be attending, her attendance did not improve. On October 17, 2012, Justice Stanley Sherr granted the Society's motion and reduced the mother's access to at least once per week for 2 hours, supervised at the Society's discretion. He further ordered that, if the mother attended consistently to the end of November, her access would be increased to a minimum of twice per week. The mother failed to meet that condition, with the result that her access has remained once weekly, fully supervised. Her attendance record has remained very disappointing: from February 22, 2012 to June 10, 2013, she has attended only 69 visits out of 123 scheduled visits, which constitutes an attendance rate of 56%. Of the 69 visits she has attended, she was at least 20 minutes late for 16 visits. At no time has the mother ever provided anything approaching a reasonable or satisfactory explanation for her poor access attendance record.

[38] Although the mother's parenting skills during access visits have improved over time, and although she has demonstrated the ability to provide basic instrumental care to the child at access visits, her commitment to the child can only be described as ambiguous at best. Given this fact, and having carefully considered the nature and quality of the access visits from the child's perspective, I have concluded that the relationship between the child and her mother is not "beneficial and meaningful" to the child in the way contemplated by the legislation and jurisprudence. The mother herself actually has the insight to understand that this is the case: on April 29, 2013 she attended an access visit after having been absent from the child's life since March 11, 2013, and upon arriving she wondered aloud whether the child would even recognize her.[1]

[39] As the first branch of the test in s.59(2.1) of the Act has not been met, it is not necessary to address the second branch of the test. In any event the onus is on the mother to show that an access order would not impair the children's future opportunities for adoption. She must satisfy the court that access will not diminish, reduce, jeopardize or interfere with the children's future opportunities for adoption; this is a heavy onus: Catholic Children's Aid Society of Hamilton v. S.(L.), 2011 ONSC 5850, paras 419–421 and 427. The mother led no evidence to address this issue and accordingly did not meet her onus.

[40] Accordingly, no access to the mother shall be ordered.

Sibling Access

[41] The child has a half-sibling, L.N., born August 29, 2010. Although the evidence is silent in this regard, I suspect that these children are complete strangers to one another. Perhaps the Society can rectify this in due course so that these half-siblings may be able to have a relationship. However, the primary concern at this point must be to provide the child with a permanent placement in a stable, happy and loving home; this must take precedence over sibling access at this time: Family, Youth and Child Services of Muskoka v. C.(N.), L.(W.) and B.(M.)(No.1), 2002 CarswellOnt 5704. For this reason, and also because no evidence was adduced to address the issue of what is in the best interests of both children regarding contact with one another, I am not making any order specifying sibling access: CAS Niagara Region v. J.(M.), 4 R.F.L.(6th) 245. However, the law is clear that the Society has inherent discretion as legal parent of the child to arrange contact with anyone they deem appropriate as being in the child's best interests: CAS Toronto v. P.(D.), 19 R.F.L.(6th) 267.

Order

1. The child shall be a Crown ward with no access.

[42] Finally, I wish to thank counsel for their professionalism, sensitivity, efficiency and child-focussed approach throughout this trial.

The Honourable Mr. Justice H.P. Brownstone

Released: June 19, 2013

Footnotes

[1] Affidavit of Society worker Cho Kan Cheng, paragraph 51.