WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: Toronto: CFO 10657 04

Date: 2013-07-24

Ontario Court of Justice

Between:

Children's Aid Society of Toronto, Applicant

— AND —

D.B.-S. and J.B., Respondents

Before: Justice Ellen B. Murray

Heard on: April 16-18, April 23-26, May 17-19, 2013

Reasons for Judgment released on: July 24, 2013

Counsel:

• Ms. Nicole Horwitz for the applicant society
• Ms. Elizabeth Julien-Wilson for the respondent mother
• Mr. Bradley F. Berns for the respondent father

REASONS FOR JUDGMENT

MURRAY, E. B. J.:

Introduction

[1] B.B.-S. was born on […], 2009. D.B.-S. is his mother. J.B., D.B.-S.'s partner, has acted as B.B.-S.'s father since his birth, and is a "parent" to B.B.-S. as defined by the Act. In this decision, I refer to D.B.-S. and J.B. as B.B.-S.'s parents.

[2] B.B.-S. was found in need of protection on consent pursuant to s. 37(2)(l) of the Act on January 19, 2010, and was placed with D.B.-S. pursuant to Society supervision on March 20, 2012. In this status review application, the Society seeks an order of Crown wardship without access for B.B.-S.; its plan is to place him for adoption. D.B.-S. and J.B. want B.B.-S. returned to their care under an order of supervision.

[3] At the outset of the trial, J.B.'s counsel raised an alternate disposition that the court might consider, an order placing B.B.-S. in J.B.'s legal custody alone (although living in a household with D.B.-S.).

Evidence Heard

[4] At this trial, I heard evidence from three Society workers, Amanda Parker, who has been the family service worker since August 27, 2012, Claire Molloy, the children's service worker since October 29, 2012, and Melissa Vres, the children's service worker for B.B.-S. from August 16, 2012 to November 1, 2012, and for D.B.-S.'s older son P. from May 29, 2012, to November 1, 2012. None of these workers had contact with the parents or with B.B.-S. before his apprehension on August 16, 2012, except for Ms. Vres, who had some peripheral contact with the parents for a brief period by virtue of her contact with P. The Society also called evidence from psychologist Dr. Daniel Fitzgerald, who assessed B.B.-S. and P.; from Joey Gareri, the laboratory manager at the Motherrisk program at the Hospital for Sick Children, which conducted hair tests for alcohol and drugs on D.B.-S.; and from Constable Thomas Black. Both D.B.-S. and J.B. gave evidence, and D.B.-S. called evidence from her counsellor from the North Toronto Support Services, Tara Lee Corriveau, and from J.L., the supervisor of the day care program which B.B.-S. attended while he lived with his parents.

[5] I also received documentary evidence submitted by the Society, which included criminal records, occurrence reports, as well as findings of fact made by Justice Penny Jones on January 14, 2013, on a summary judgment motion requesting an order of Crown wardship without access for P.

[6] When the parents closed their case, I had not heard from J.B.'s sister, J.W., an expected support for the family. J.B.'s lawyer explained that he had not called J.W. because her husband had died recently. I indicated to counsel that I would like to hear evidence from J.W., as well as evidence about other supports that the parents might have in their new residence. (They had moved from Toronto to Grand Valley.) The matter was put over, and on resumption of the trial I heard evidence from J.W. as well as from J.B. and D.B.-S. on the issue of supports available for them in the community.

[7] The Society did not call reply evidence.

1. History of Proceedings

[8] B.B.-S. was apprehended at birth. The Society's application asked for 6 months' Society wardship. The initial without prejudice order made B.B.-S. a temporary ward of the Society, and provided for access at the Society's discretion. Access occurred twice a week, and was fully supervised at the Society's offices.

[9] On July 26, 2010 the Society amended its application to seek Crown wardship, with a plan to place B.B.-S. for adoption.

[10] J.B.'s sister and brother-in-law, J.W. and G.W., approached the Society with a plan for B.B.-S., a plan supported by D.B.-S. and J.B. B.B.-S. was placed with the W.s under a 12-month supervision order on January 19, 2011. The order provided that access to D.B.-S. for any "extended period" was to be supervised.

[11] In January 2012, B.B.-S. was placed with his parents under a temporary order, pursuant to the Society supervision. A final 12-month order was made on March 20, 2012, placing the child with them pursuant to supervision.

[12] On August 16, 2012, B.B.-S. was apprehended by the Society. The Society issued an early status review application, seeking Crown wardship with a plan for adoption. On November 9, 2012, a temporary order was made, placing the child in the Society care, with supervised access to the parents.

2. Statutory Framework

2.1 Disposition

[13] Section 64(2) of the Act provides that a Society having "care, custody or supervision of a child" may apply to the court for a review of the child's status at any time. Section 65 of the Act sets out the court's powers under a status review application:

(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

• (a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;
• (b) order that the original order terminate on a specified future date;
• (c) make a further order or orders under section 57; or
• (d) make an order under section 57.1.

[14] Section 57 of the Act provides that where a finding that a child is in need of protection is made, that if the court is satisfied that an order is necessary to protect a child in the future, that the court shall make one of the following orders in the child's best interests:

1. Placement with a parent or other person under Society supervision for a period of between 3-12 months;
2. Society wardship for up to 12 months;
3. Crown wardship;
4. A period of Society wardship, followed with a return to a parent or other person, the total period not to exceed 12 months.

[15] On a status review, the court is required as a threshold issue to consider whether the child continues to be in need of protection. I find that B.B.-S. continues to be in need of protection, for reasons that follow.

[16] Section 37(3) of the Act provides as follows:

"Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child's physical, mental and emotional level of development.
3. The child's cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child's views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance."

[17] In a previous case I described the Act's scheme in dealing with a parent's plan in the assessment of a child's best interests:

"S. 37 does not weight or prioritize these factors. Four factors -- numbers 5, 6, 8 and 11 -- relate to a child's relationship to her family and the parental plan. It is trite to say that in making a disposition decision, it is necessary to consider the best interest factors not in isolation, but in the context of the purpose of the Act and other relevant provisions of Part III of the Act. What emerges from such an analysis is the principle that a parent's plan will be preferred under the Act to other plans-- such as adoption -- as long that plan does not undermine the Act's paramount objective: "to promote the best interests, protection and wellbeing of children", both in the short-term and the long-term.

The Act's support for the placement of children with their parents if such placement meets this objective is evident at many points:

1. The secondary purposes of the Act, conditional upon their being consistent with the primary purpose, include:

   • "to recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit", and
   • "to recognize that the least disruptive course of action that is available and appropriate in a particular case to help a child should be considered".

2. The temporary care provisions of the Act contain a presumption that pending a finding, a child shall remain in the care of the parental figure in the child's life (the person who had charge of the child before apprehension), unless the Society establishes that there is a risk of likely harm to the child and that the child cannot be adequately protected under a supervision order.

3. S. 57(3) of the Act provides that before a court makes an order that has the effect of removing a child from the care of this parental figure, the court must be satisfied that there are not less disruptive alternatives -- such as a supervision order with conditions -- that would be adequate to protect the child if she was returned to her parent.

4. S. 57(2) of the Act provides that a court is required before making an order of disposition to consider what efforts the Society has made to assist the child while in the care of the parental figure in her life, before Society intervention. There are cases where a court has refused an order of wardship because a Society has failed in its duty to assist parents in dealing with difficulties that impair their ability to care for children.

5. Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether it is possible to place the child with a relative or a member of the child's community or extended family.

These provisions all underscore the importance of support for a parental plan within the scheme of the Act."

[18] As Justice Heather Katarynych has observed: "No order can so profoundly affect the lives of the people involved than that of Crown wardship, without access. That a child would be 'better off' in another home is not the test. A child's family should be maintained for her if, on the whole of the evidence, the court finds it likely that her best interests, protection and well-being will be promoted in that fashion, over both the short and the long term."

2.2 Section 70 Time Limit

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

"(70)(1) Subject to subsections (3) and (4), the court shall not make an order for Society wardship under this Part that results in a child being a Society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for Society wardship; or

(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for Society wardship."

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

[21] In calculating the allowable period for a child to be a Society ward, the Act provides that any time a child has spent in care under a temporary order shall be counted. B.B.-S. has been in care more than 29 months, a period which far exceeds the applicable 12 month limit.

[22] It is imperative that B.B.-S.'s next placement provides him with a secure and stable home.

2.3 Other Considerations on Disposition

[23] Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act, which is to promote the best interests, protection and well-being of children. A court is required before making a disposition to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent's care. In this case, after B.B.-S.'s second apprehension the Society offered no services other than supervision of access visits. As will be seen below, communication between the Society and the parents ground to a halt shortly after the apprehension. The Society says that the parents identified no needs, so no services were offered. Although the parents did need services, they were mistrustful of the new the Society team assigned to the case, and did not communicate these needs.

[24] Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child's best interests, and, if it is not possible to return the child to the parent who cared for him prior to the apprehension, whether it is possible to place the child with a relative or member of the child's community or extended family. No plan other than that of the Society and of D.B.-S. and J.B. was put before the court, although in her evidence J.W. said that if it was necessary—in other words, if B.B.-S. could not be placed with D.B.-S. and J.B. – that she would want to care for him.

3. Background

3.1 Background: D.B.-S.

[25] D.B.-S. is 47 years old and African-Canadian. She has a troubled history. She was born in England, and came to Canada with her family as a young child. Her maternal family has roots in Guyana.

[26] D.B.-S. was sexually abused by her father when she was 12 or 13 years old. Although she told her mother about the abuse, she was not believed. D.B.-S. began using alcohol, and left home when she was 15 years old.

[27] D.B.-S. began using drugs, primarily cocaine. At 17 years of age, she had her first child. While caring for the child, she managed to complete high school, with the support of her grandmother, I.R. After a year and a half, D.B.-S. recognized that she was not in a position to care for a child. She agreed that the child would be adopted.

[28] D.B.-S.'s cocaine use continued, on and off, for over 25 years. Her cocaine use was accompanied by binge drinking of hard liquor. She sold drugs periodically, and eventually sold herself, working as a prostitute. Over those years, she had seven more children before giving birth to B.B.-S.

[29] None of those children were raised in her care. Some went to live with their fathers; some have been adopted, either through private adoptions or after being made Crown wards. Two of D.B.-S.'s children were adopted by a relative in the U.S. According to D.B.-S.'s evidence, she "fought" to keep one of those children, D., many years ago, and lost. In the case of the others, she consented to their placement.

[30] D.B.-S. made efforts over the years to stop using cocaine. She enrolled in treatment programs, and attended support groups. She never followed through for long. D.B.-S. accumulated a long criminal record for relatively minor offences, starting in 1987. She amassed convictions for assaults, thefts, and drug-related offences, and received short terms of incarceration or probation.

[31] In 2004 D.B.-S. formed a relationship with V.S., and they married. They had a child, P., on […], 2005. D.B.-S. testified that V.S. was physically abusive to her, and that he led her into heavier drug use. In May 2006 P. was apprehended after an incident in which V.S. was arrested for assaulting D.B.-S. D.B.-S. was treated in hospital, and found to be intoxicated; she later tested positive for cocaine. In December 2006 the child was returned to V.S. under a supervision order which provided D.B.-S. was to have only supervised access. V.S. was the supervisor.

[32] D.B.-S. stabbed V.S. in a violent incident in 2007. She was arrested, pled guilty, and spent more than a year in jail.

[33] In March 2008 the supervision order with respect to P. was terminated. The child continued to live in V.S.'s care under a custody order.

[34] Even after her release from jail, D.B.-S. saw little of P., as access was at V.S.'s discretion.

[35] D.B.-S. testified that upon her release from jail in 2008, she obtained work and got an apartment. Within a few months, however, she became the victim of a serious assault. She almost died, and had a long period of recovery. In surgery, a steel plate was inserted in her head. D.B.-S. testified that since this surgery, she has suffered from periodic debilitating headaches.

[36] According to D.B.-S., this experience motivated her to make another try at stopping her use of cocaine, and changing her life for the better. She began treatment, and received support from the Elizabeth Fry Society. She obtained a room at a supportive housing facility, and cut ties with the associates she had formed over the years who accompanied her in drug-use and partying.

[37] D.B.-S. had been prescribed oxycontin to manage the pain resulting from her injury. She was afraid of becoming addicted to the medication, and approached her GP, Dr. Shirali, asking for alternatives. He approved her to receive medical marijuana. She testified that she uses marijuana regularly, in small doses, to control the pain. As a result of this injury, D.B.-S. qualified to receive Ontario Disability Support payments (ODSP).

3.2 Background: J.B.

[38] J.B. comes from a different world than D.B.-S. He is now 59 years old, and was born in England. He has had a satisfying life in many ways. J.B. began working as a teenager, first in the merchant marine, then in a printing shop, and later as a concrete truck driver. After immigration to Canada in 1998, J.B. worked as a factory supervisor, and most recently as an independent concrete truck driver. While working, he always made a comfortable income—up to $150,000 annually. J.B. has two children in their twenties from a marriage which ended in divorce. He remained close to those children after the divorce.

[39] J.B. has no history of drug or alcohol abuse. He has no criminal record, except for a conditional discharge received 7 years ago for a minor offence.

3.3 The Relationship and B.B.-S.'s Birth/Apprehension

[40] In the summer of 2008, D.B.-S. met J.B. as they stood in line at a Tim Horton's. She noticed his British accent, and turned to chat. They began seeing each other, but the relationship did not develop quickly. J.B. worked very long hours. Besides, he and D.B.-S. were both cautious about entering a new relationship. They maintained separate accommodation.

[41] D.B.-S. had become pregnant in late 2008. Although her relationship with J.B. was not exclusive at this point, both she and J.B. both thought that he was the father of the child she was carrying. By the time B.B.-S. was born, their relationship had evolved into a more serious one.

[42] D.B.-S. realized that because of her history, the Society would likely apprehend B.B.-S. at birth. She contacted the Society to advise that she was pregnant, and told them what steps she was taking to put herself in a position to parent.

[43] B.B.-S. was apprehended at birth on […], 2009. After his birth, visits were supervised, and at the Society's discretion. D.B.-S. visited regularly, twice each week. Because of his long work hours, J.B. was able to visit less often. The Society initiated a DNA test, which showed that J.B. was not in fact B.B.-S.'s father. J.B. was taken aback. He thought it over, and realized that he was "already in love" with B.B.-S. He decided that he wanted to remain in B.B.-S.'s life as a father, and D.B.-S. agreed. B.B.-S.'s biological father has never had a role in his life, and service on him was dispensed with throughout the proceedings.

[44] D.B.-S. and J.B. began to live together in January 2010. J.B. supported D.B.-S. in her efforts to rehabilitate herself. D.B.-S. engaged in a variety of treatment programs to deal with her crack cocaine. She was able to reduce her use to a point where, by the fall of 2010, she tested as "negative" on hair tests for the substance. However, her progress was recent, and the Society did not support a return of B.B.-S. to her at that time.

3.4 B.B.-S.'s Placement with the W.s: January 2011

[45] J.B. proposed his sister and brother-in-law, J.W. and G.W., as a placement for B.B.-S. The Society's kinship department investigated, and approved the home. B.B.-S. went to live with the W.s in January 2011, pursuant to a supervision order. The order provided that any access to D.B.-S. for "an extended period of time" was to be supervised. The order did not specify who was to provide supervision. The Society's plan was that if all went well, it would consent to a custody order to the W.s.

[46] The W.s lived in Shelburne, Ontario. D.B.-S. and J.B. travelled to Shelburne every weekend to see B.B.-S., where they stayed with the W.s; J.B. was able to get his employer to give him Saturdays off for this purpose. When D.B.-S. and J.B. came on the weekends, the W.s turned over care of B.B.-S. to them. J.W. and G.W. remained in the house over those weekends.

[47] After about 6 months, the family service worker at the time agreed that D.B.-S. and J.B. could bring B.B.-S. with them to Toronto for a visit every weekend. They did so, driving to pick the child up every Friday evening, and returning him on Sunday evening.

3.5 J.B.'s Injury

[48] In the summer of 2011 J.B. suffered an injury to his back. He took time off, and later attempted to return to work. He was not successful. He has been advised by his doctors that it is unlikely that he will ever be able to return to demanding physical labour of the type he has done all his life.

[49] J.B. has "bad days" when he must restrict his physical activity, but is generally able to function well at home. He disliked using the strong pain-killers which had been prescribed, and now uses medical marijuana sparingly, as he does not like smoking. When J.B. had to stop working, he first received payments from a private insurer, and later qualified for ODSP payments. J.B. has been home full-time since August 2011.

4. B.B.-S.'s Placement with D.B.-S.: January 2012

[50] By January 2012, the Society was willing to consider placing B.B.-S. with D.B.-S., who had demonstrated success in turning her life around. Tests showed she had not used cocaine for over a year. Her relationship with J.B. appeared stable. She and J.B. had appropriate housing -- a small two-bedroom townhouse in a city housing complex on C[…] Avenue in Toronto. D.B.-S. was attending a dental hygienist program during the day from Monday to Friday.

[51] B.B.-S. came to live with D.B.-S. and J.B. in January 2012, pursuant to a temporary order placing the child with D.B.-S. under supervision. On March 20, 2012, at the Society's request, B.B.-S. was placed in D.B.-S.'s care under a 12-month supervision order. The conditions in the order are set out below:

a. D.B.-S. and J.B. will ensure that they maintain stable housing. D.B.-S. and J.B. shall notify the Society at least seven days prior to any change of address or telephone number.

b. D.B.-S. and J.B. shall sign consents for the release of relevant information as requested, to facilitate the exchange of information between the Society and community or service providers involved with the child and/or family.

c. D.B.-S. and J.B. shall permit Society workers to attend the home for scheduled and drop-in visits.

d. D.B.-S. shall attend for random hair screen and urine screen testing, as requested by the Society.

e. D.B.-S. shall continue to use supports and services that enable her to remain drug and alcohol free.

f. D.B.-S. and J.B. will obtain a day care placement for the child, B.B.-S.

[52] D.B.-S. and J.B. and B.B.-S. found a daycare placement for B.B.-S. at a centre at H[…] School, and B.B.-S. began settling in with them.

[53] Meanwhile, P. was apprehended from V.S.'s care, following allegations of serious neglect. The Society began planning to place P. with D.B.-S. Overnight weekend visits by P. to D.B.-S. and J.B. started in the late spring of 2012.

[54] In July 2012, D.B.-S., with J.B.'s consent, arranged for her grandmother, I.R., to come live with them. I.R. suffers from some dementia, and was in a nursing facility in which she was not, in D.B.-S.'s opinion, well-cared for. D.B.-S. arranged for a hospital bed and other necessary equipment, and for personal support workers to come to the home to assist with I.R. for several hours each day. I.R. occupied a corner of the ground floor in the townhouse. There was some delay in arranging for payments for I.R. from the Public Guardian and Trustee after I.R. left the nursing home. This delay put some financial pressure on the family, but D.B.-S. eventually got the situation rectified.

[55] On August 16, 2012, the Society apprehended B.B.-S., and told D.B.-S. and J.B. that visits with P. were being suspended. The Society alleged that D.B.-S. was abusing alcohol, and suggested that there was conflict between her and J.B. It hinted that she might be neglecting B.B.-S.

5. Care of B.B.-S. Before Apprehension

[56] All the evidence indicates D.B.-S. and J.B. provided good care to B.B.-S. before the August 2012 apprehension, both on weekend visits when the child was placed with the W.s, as well as the period January to August 2012, when he was placed with D.B.-S.

[57] Although the Society called no evidence on this issue, the Society's actions indicate that it was well satisfied with the care. The Society brought the matter forward in January 2012 to request the temporary order placing B.B.-S. with D.B.-S., and was enthusiastic in requesting the final supervision order in March 2012. A further indicator of the approval by Society workers at the time of the care provided by D.B.-S. and J.B. was the Society's plan to re-integrate P. into D.B.-S.'s care.

[58] J.W. testified that she and her husband had ample opportunity to observe D.B.-S. and J.B. care for B.B.-S. during the first six months that the couple spent weekends with them. She said that both parents were involved in his care, and that they were attentive, loving, and appropriate. In her view, they both had good parenting skills. In the latter period during which D.B.-S. and J.B. took B.B.-S. to Toronto for weekends, J.W. observed no problems with the child when he was returned to her care on Sunday evenings.

[59] The Society had releases from D.B.-S. to speak with B.B.-S.'s daycare facility, the child's doctor, and Ms. Corriveau, D.B.-S.'s counsellor. There is nothing in the evidence led by the Society which indicates a problem in the care which B.B.-S. had from his parents after he was placed with them in January 2012.

[60] Besides the evidence of J.W., D.B.-S. called evidence from J.L. and from Tara Lee Corriveau with respect to the care that she and J.B. provided for B.B.-S.

[61] J.L. is the supervisor of the daycare site that B.B.-S. attended; she has worked as a day care provider for over thirty years. She spoke well of the care which she observed B.B.-S. to receive from his parents, and observed no "red flags" which suggested that something was amiss at home. J.L. testified that B.B.-S. was happy and healthy. He was brought to daycare on time, and missed no days except for two, when he was reported ill. D.B.-S. or J.B. brought snacks and diapers and a change of clothes daily for the child. J.L. said that B.B.-S. interacted well with other children, and presented no behavioural problems, unlike some of the other children under her care.

[62] J.L. reported that it was usually D.B.-S. who dropped the child off and picked him up, although sometimes she saw J.B. (D.B.-S. does not drive, so J.B. transported her and B.B.-S. to and from the centre.) She testified that D.B.-S. was friendly with staff, inquired appropriately as to B.B.-S.'s progress, and sometimes stayed a while to participate in activities with him. J.L. said that she was very surprised when the Society staff called her to say that they would be apprehending B.B.-S.

[63] Ms. Corriveau is an addiction support worker, with degrees in criminology and social work, who is working in a doctoral program in addictions and mental health. She began working with D.B.-S. in January 2012, and met with her weekly, often at her home, until December 2012, when D.B.-S. and J.B. moved from Toronto. The meetings there usually involved contact with J.B., and sometimes gave her the opportunity to observe D.B.-S. with B.B.-S.

[64] Ms. Corriveau had a holistic view of her role in supporting D.B.-S. in her efforts to abstain from the use of cocaine. She was active in supporting D.B.-S. in working out difficulties with her ODSP payments, in finding housing, and in dealing with the Society.

[65] Ms. Corriveau testified that she was proud of D.B.-S.'s work in remaining free of cocaine, despite the considerable stress with which she was coping. Ms. Corriveau was impressed with D.B.-S.'s ability to multi-task and to be creative in finding services. Unlike the homes of many of her clients, D.B.-S.'s home was always clean and well organized, and Ms. Corriveau always felt comfortable visiting there.

[66] One stress in D.B.-S.'s life which concerned Ms. Corriveau was her decision to bring her grandmother, I.R., into her home. Ms. Corriveau testified that she had accompanied D.B.-S. on a visit to the home, and witnessed the substandard conditions, but she feared that D.B.-S. was taking on too much. She was relieved when she saw that D.B.-S. seemed to be able to handle this additional responsibility.

[67] Ms. Corriveau's evidence was that B.B.-S. appeared to be happy and well-cared for. J.B. participated actively in housework and in caring for B.B.-S., as well as caring for P. when he was visiting, and in caring for I.R. Ms. Corriveau said that it was clear that he and D.B.-S. worked well as a team.

[68] Ms. Corriveau was aware that D.B.-S. and J.B. both drank beer. As D.B.-S.'s addictions worker, she had no concerns about D.B.-S.'s consumption of beer. She testified that she had never seen any indication that D.B.-S. was intoxicated or abused alcohol, except on one occasion, the day after B.B.-S.'s apprehension, when she spoke to D.B.-S. on the telephone. Ms. Corriveau said that D.B.-S. was crying and extremely upset, and that she "sounded intoxicated". D.B.-S. testified that she was extremely upset that day, but had not been drinking; she said she had taken an anti-anxiety medication, Seroquel, to calm herself and that this medication caused her to slur her speech.

6. The Apprehension

[69] The weekend of August 4-5, 2012 was an anniversary for D.B.-S. and J.B. of their first meeting. D.B.-S. suggested that they get a sitter and go out; they had not been out without the children since January. J.B. didn't want to.

[70] This led to a disagreement and a period of two days during which D.B.-S. and J.B. communicated only instrumentally. It was a very hot weekend and their house was not air-conditioned. J.B. spent the evenings outside in his car. He continued to interact with the children. He came in to eat meals that D.B.-S. prepared, and they took the children swimming.

[71] D.B.-S. decided to go out on Saturday evening, to enjoy Caribanna celebrations with some girlfriends from her dental program. She arranged for B.B.-S. and P., who was visiting that weekend, to spend the evening in the care of a neighbour, B.G.

[72] D.B.-S. prepared a note for J.B., telling him that the children were with B.G., which she left on the table in the kitchen, and left for the evening. It was a hot evening, and J.B. continued to sit in his car, listening to music, with the air-conditioning on. He walked down to a neighbourhood bar, where he had some beer, and then returned.

[73] J.B. went into the house. He saw that B.B.-S. and P. were not there, and did not see the note. He did not know where D.B.-S. was. He was worried. He even thought that she might have left, and taken the children. Throughout the night, he stayed in his car, watching and hoping that D.B.-S. would return home.

[74] D.B.-S. drank to excess that evening. In her affidavit for the temporary motion, said that she had "a drink or two". Her evidence at trial was that she drank about 10 glasses of sparkling wine, and two tequila sunrises, and perhaps more. She went to her friend's apartment to "relax", had some coffee, and then took a cab home, arriving at about 6:30 a.m.

[75] As D.B.-S. walked into B.G.'s back door, she heard J.B. angrily yelling her name. She checked on the children, and went out into the yard, and in J.B.'s presence called police, reporting that "a man" was yelling at her.

[76] Why did D.B.-S. call police? She said that she did not want to interact with J.B. at that moment, and was afraid that the situation would escalate, so she called police to "act as a buffer". D.B.-S. was emphatic that J.B. has never been violent towards her, and that she did not fear violence that evening.

[77] Constable Black arrived quickly in response to D.B.-S.'s call. He testified that there was no violence apparent, and that the children were sleeping, and appeared to be fine. He talked with both parties. He said that D.B.-S. had "obviously been drinking", and was initially belligerent, although she calmed down after they talked briefly. He observed that J.B. had been drinking too, and was cooperative and calm. He suggested that J.B. take a walk for a while before returning home, and then left.

[78] While Constable Black was talking to J.B., he asked for identification. J.B. took out his driver's license, and the card of the family's last family service worker, Andrea Seymour, came with it. J.B. told Constable Black that the family was being supervised by the Society. When Constable Black returned to the station, following the usual protocol, he contacted the Society to report the incident.

[79] J.B. and D.B.-S. testified that things "returned to normal" by the end of the day on Sunday. They took the children swimming in the afternoon, and had a meal that evening. Both were sheepish about the way that they had acted, especially J.B. He testified that they had "let pride get in the way", and that this was "immature and stupid". They vowed never to act that way again, and, when they had an argument, to "clear the air" before going to bed.

[80] On August 7, 2012, Ms. Seymore met with D.B.-S. and J.B. and discussed what had happened the prior weekend. She also interviewed B.G.

[81] P. finished his visit, and returned to the foster home as scheduled on August 8, 2012. However, sometime later, a worker called to advise D.B.-S. that visits with P. were being suspended until further notice.

[82] On August 15, 2012, Melissa Vres interviewed P. about the August 4/5 weekend. Without further investigation, the Society apprehended B.B.-S. on August 16, 2012.

7. Statements by P. That Triggered the Apprehension

[83] When this trial began, the Society sought to introduce two statements allegedly made by P. to Melissa Vres for the truth of their contents. After some evidence had been heard, the Society withdrew this motion. However, all parties agree that the statements are admissible for the purpose of the narrative—explaining actions the Society took in apprehending B.B.-S. on August 16, 2012. I admit them for this purpose.

[84] The first statement resulted from an interview which Ms. Vres conducted with P. on July 19, 2012, as part of the process of the Society determining whether to attempt to place him with D.B.-S. After that interview, the Society decided to proceed with a plan to integrate P. into D.B.-S.'s care, and stepped up visits. The second resulted from an interview with P. conducted on August 15, 2012, ten days after the August 4/5 2012 incident.

[85] P.'s statements from the July 19th interview are summarized below:

• I am happy to be going back to Mom.
• She doesn't do anything to make me sad. She gives me hugs and kisses.
• She yells a lot, when I don't listen. I'm getting used to it.
• I like J.B.; he "helps us with stuff".

[86] P.'s statements from the August 15th interview are summarized below:

• It is "weird" that I haven't seen Mom and Uncle J.B. for a while; maybe they got lost.
• My great grandmother is living with Mom and she is sick and causing trouble. She yells and annoys me.
• Mom and J.B. yell, at us and sometimes at each other.
• J.B. sleeps in the car sometimes; he says he feels sick. He comes in the house when we are sleeping.
• J.B. and Mom smoke cigarettes for medicine.
• Mom drinks beer called "DAB", and then she "gets mad".
• She drinks ten bottles a day… but not every day. She drinks from a "huge bottle of something and then she falls asleep" (P. used his hands to show a length of about a foot.)
• There is no hitting between Mom and Uncle J.B. They "only hit us sometimes". Mom slapped B.B.-S. because he "didn't listen". She slaps me on the arm "sometimes".
• Mom lets us play in the park. Neither she nor J.B. is with us.

[87] The day after the Society supervisor had reviewed these statements, the decision was made to apprehend B.B.-S. The apprehension was done before any interview with D.B.-S. and J.B. about the content of the statement, and without speaking to D.B.-S.'s addictions counsellor, Ms. Corriveau, or the people in the community who saw B.B.-S. regularly, the staff at the daycare centre. Ms. Vres called the parents and explained that the apprehension took place because of "concerning information" which the child had provided. D.B.-S. cried; J.B. was furious.

[88] The circumstances and the manner in which P.'s second statement was taken are not such that I would have found that they met the criteria for threshold reliability. I would not have admitted P.'s statements for the truth of their contents.

8. Rupture Between D.B.-S. and P.

[89] Dr. Fitzgerald in his evidence said that P. believes that his mother has abandoned him. This perception stems from his experience on his first visit with D.B.-S. and J.B. after B.B.-S.'s apprehension, the visit of August 24, 2012.

[90] There are differences between the description offered by Society witnesses and that offered by D.B.-S. and J.B. of this visit. Both versions of the visit are summarized below.

• August 24, 2012 was the first visit scheduled for D.B.-S. and J.B. by the Society after B.B.-S.'s apprehension. They had not seen B.B.-S. since the apprehension, and had not seen P. since visits were "put on hold" after Ms. Seymore's August 7th interview with them.
• Although Ms. Parker thought she had told J.B. at the first court appearance that the visit was arranged for B.B.-S. and P. together, D.B.-S. and J.B. thought that it was scheduled to be only with B.B.-S.
• Upon entering the visit, B.B.-S. ran to D.B.-S. and J.B.; they were overjoyed to see him.
• D.B.-S. testified that she noticed P. sitting in another part of the room, and hugged him. Ms. Vres testified that D.B.-S. and J.B. did not go to P., and asked her, in a voice loud enough for the child to hear, why he was there.
• Ms. Vres testified that J.B. began berating P. for causing trouble and that as she separated the child from the family she heard D.B.-S. say "good, take him away".
• D.B.-S. did not agree with that recollection, but she said that she asked P. "What's going on…do you know why your brother is here too…What did you say to the worker?"
• D.B.-S. said that she asked Ms. Vres "Why is P. here?", and said that she wanted separate visits.
• P., crying, was taken out of the visit by Ms. Vres.
• P. has not seen D.B.-S. or J.B. since that time.

[91] It is unfortunate that the Society arranged to have the visits with B.B.-S. and P. on the same day. Having told the parents that P.'s statements triggered the apprehension, and knowing of their upset, more caution should have been exercised, and more preparation done before D.B.-S. and J.B. were to meet with P. again.

[92] Having said that, the Society's failings do not excuse D.B.-S. and J.B.'s treatment of P. that day. P. was a 7 year old child. Even if he had lied about the home situation, there is no justification for the insensitive treatment which he received from D.B.-S. and J.B.

[93] D.B.-S. testified that she did not want the disaster of the visit of August 24th to be the end of her relationship with P. She insisted that she and J.B. loved the child. However, she did not attempt to communicate with him further, or request a visit. When the Society brought its summary judgment motion in January 2013, asking for an order of Crown wardship without access for P., D.B.-S. filed material defending the motion. At the hearing, she withdrew her opposition. She testified at trial that she was disheartened by the Society's material on the motion, which reported that P. did not want to see her.

9. Relationship Between the Parents and the Society

[94] D.B.-S. and J.B. felt betrayed by the apprehension. They did not understand why the Society took this drastic action without speaking to them again, and without further investigation. J.B. was outraged when Ms. Vres told them that no one could meet with them to discuss the reasons for the apprehension until the following day. Hoping to allay what they understood from Ms. Vres was the Society's concern, they quickly arranged for hair-testing for D.B.-S. at Accumetrics, testing for drugs and alcohol. J.B. arranged for hair testing for himself, too, although the Society had not made any allegations of substance abuse against him.

[95] The relationship between the parents and the current team has not improved since the apprehension. A number of factors have contributed to continuing problems with the relationship, problems which meant that the Society has not received sufficient information about the parents' situation, and has not been able to fulfill its mandate to provide services to the parents and allow B.B.-S. to be returned home, if a return can be safely accomplished.

9.1 Miscommunication Between Workers

[96] One factor which contributed to the difficulties in the relationship between the parents and the Society is the view of the current service team that the parents, and particularly D.B.-S., had a track record of violating conditions of prior supervision orders, an issue distinct from the issue of whether she had been drinking to excess. The evidence established that prior Society workers had known of and approved certain activities for the parents, which the current service team regarded as violations of conditions. The particulars are set out below.

[97]

1. Supervision of D.B.-S. on visits. Ms. Parker in her evidence suggested that (during the time that B.B.-S. was placed with the W.s) the visits which D.B.-S. and J.B. had in Toronto for the last six months of the placement violated conditions of the order that D.B.-S.'s access for extended periods be "supervised".

   D.B.-S. and J.B. testified that a prior worker, Nikki Holland-Green, had known and approved this plan as visits progressed. J.W. testified that it was her understanding from the worker at the time that visits could be supervised by J.B. and conducted in Toronto. No evidence was called by the Society to contradict this evidence. I accept the evidence of D.B.-S. and J.B. and J.W. on this point.

2. Use of medical marijuana. The affidavit of Society worker Melissa Vres (B.B.-S.'s service worker from the day of the apprehension until November 2012) filed in the trial refers to D.B.-S.'s use of marijuana as if her use was clandestine, hidden from the Society. However, other documentary evidence filed established that a prior family service worker, Lucille Colthrust, knew prior to B.B.-S. being placed with D.B.-S. that she used marijuana for medicinal purposes.

   There is no evidence that any the Society worker communicated an expectation was communicated to D.B.-S. before the apprehension that she was not to use medically-prescribed marijuana.

3. Consumption of beer. Ms. Parker testified that, based on the conditions in the supervision order; it had been the Society's expectation that D.B.-S. would consume no alcohol of any type at any time. However, D.B.-S. and J.B. both testified that two of the family service workers (Nikki Holland-Green and Sarah Singer, who had been on the file when B.B.-S. was placed with them), were well aware that D.B.-S. as well as J.B. drank beer. They both testified that each worker had noticed beer in the home, and asked them if they drank; they responded that they drank beer in moderate amounts; the workers indicated that this practice was not of concern.

   The Society's evidence did not refute this.

   D.B.-S. testified that she had interpreted the order to focus on prevention of use of crack cocaine, and, to the extent she considered it, thought that the term "alcohol-free" referred to use of hard liquor—the type of alcohol with which she had previously experienced problems, tied in her experience to the use of crack cocaine.

   Society counsel suggested that it was "beyond belief" that a Society worker would countenance consumption of beer by D.B.-S. given this condition in the order. I do not agree. Experienced workers may take what they view as a pragmatic approach to enforcement of conditions that may be overly-broad, or that they do not see as "essential", if they consider a parent to be doing well in important aspects of care. I accept the evidence of D.B.-S. and J.B. that two prior workers were aware of D.B.-S.'s consumption of beer—in what they had been told was in moderate amounts—and that they raised no objection.

9.2 Misinformation About J.B.

[98] Miscommunication between workers about important issues has continued.

[99] For example, in December 2012, Society worker Claire Molloy interrupted a visit, and handed J.B. a new plan of care prepared by the Society for B.B.-S. The plan referred to J.B. as an abuser of drugs and alcohol, an allegation for which there is no foundation. J.B. was very upset, and confronted Ms. Molloy. After some checking, she apologized, acknowledging that there was no basis for the accusation.

[100] However, the misinformation was repeated and amplified. The recent report by Dr. Fitzgerald on B.B.-S., prepared in February 2013, refers to background information provided by Ms. Molloy, who reported that "the child's parents" drink heavily, and that he was neglected in their care.

9.3 Difference in Workers' Approach to Case

[101] Another factor which contributed to difficulties in establishing a good working relationship after the apprehension between the Society and the parents was the difference in the approach to the case taken by Ms. Parker and that taken by prior family service workers, Ms. Holland-Green and Ms. Singer. Ms. Parker in her evidence made it clear that she did not approve of the decision of prior workers to place B.B.-S. with his mother. She did not think they had been sufficiently cautious. D.B.-S. and J.B. interpreted this difference in approach as a lack of support.

[102] The parents are of the view that the Society's current team is biased against them. They point, for example, to a paragraph in Ms. Parker's trial affidavit about a home visit in which she comments that there was a "smell of urine" in the house. Ms. Parker acknowledged in cross-examination that the house was in good order, that I.R. (D.B.-S.'s grandmother) was elderly and suffered from dementia, that it was only in I.R.'s bedroom that a smell of urine was detected, and that D.B.-S. should not be criticized for this. Ms. Parker had no explanation as to why she chose to report on this smell of urine in her affidavit for this trial.

9.4 Restrictive Attitudes Towards Family Contact for B.B.-S.

[103] The parents, allege, with some justification, that since the apprehension the Society has taken positions which are inconsistent with its duty to preserve B.B.-S.'s relationships with his parents and family, pending the resolution of its claim for Crown wardship. For example, at the temporary care motion in October 2012, the Society opposed any unsupervised contact between J.B. and B.B.-S., even though protection concerns had never been raised with respect to J.B.'s behaviour. Despite a duty to explore family placements for B.B.-S., after the apprehension the Society did not even contact the W.s to see if they would care for B.B.-S., despite the fact that they had been previously been approved for kinship care.

9.5 Lack of Flexibility in Communication

[104] As a result of the parents' distrust of the current service team, they refused to communicate with the Society by phone, and requested that communication be by email. They also resisted home visits, saying that they didn't see the need for them, since B.B.-S. was not in their home. They said that home visits would just provide an occasion for Ms. Parker to gather negative evidence. They proposed visits in the office. The Society did very little to accommodate their concerns.

[105] Society protocol discourages email communication, and Ms. Parker was guided by that policy. Eventually she agreed to use email in a limited fashion.

[106] Society guidelines mandate monthly home meetings. A lawyer for the parents suggested office meetings, but the Society did not agree. Two home visits have taken place since the parents moved to Grand Valley.

9.6 Result of Difficulties in Relationship Between Parents and the Society

[107] The breakdown in the relationship between the parents and the Society's current service team has meant that very little information about the parents' current situation has been provided to the Society. D.B.-S. and J.B. were not forthcoming about pertinent facts in their dealings with the Society. Even though D.B.-S. signed consents, the Society sought little information from collaterals, such as the family doctor or Mrs. W. or the day care centre. Ms. Parker testified that D.B.-S. had refused to sign other consents, such as consent to speak to her counsellor in Grand Valley. The evidence indicated that at the time Ms. Parker requested this consent, D.B.-S. had no counsellor—she was still following through on referrals to set up the counselling, (which she now has in place) so that there was no counsellor to contact. D.B.-S. did not advise Ms. Parker of this, and she did not advise her when she in fact started counselling.

[108] At trial, D.B.-S. testified that she would sign any consents requested by the Society in the future, and she signed consents for the Society to speak with her current counsellors. However, these consents came too late for the Society to independently verify the particulars of her current programs.

10. Access Visits

[109] After the apprehension in August 2012, a temporary order provided that access was to be supervised. D.B.-S. and J.B. saw B.B.-S. on supervised visits at Society offices twice a week for 1 ½ hours. In October 2012 there was a gas leak in D.B.-S. and J.B.'s townhouse. The leak was fixed, but D.B.-S. and J.B. were not happy with the management's approach to safety issues in the complex. They decided to move. They chose to go to the Shelburne area, where they would be near J.W. and her family. The move took place on December 23, 2012. After the move, visits were reduced, at the parents' request, to once a week.

[110] Society counsel stated at the outset that there was no issue that B.B.-S. has "a healthy relationship" with his parents, and that visits have generally gone well. Ms. Parker went so far as to say that, except for one occasion, the visits were "wonderful". She described B.B.-S. as "really happy" to see his parents, running towards them, smiling, jumping into J.B.'s arms. D.B.-S. and J.B. are attentive, bring good snacks, and play appropriately with B.B.-S. Ms. Parker said that (except on one occasion) both parents recognized B.B.-S.'s cues, and this guided their interaction with him. B.B.-S. was sad when visits were at an end, and asked if he could stay with "Daddy". Both Ms. Parker agreed that the relationship she observed between B.B.-S. and his parents could be described as "beneficial and meaningful" to the child.

[111] Visits may be good, but J.B. and D.B.-S. have missed approximately 1/3 of those scheduled. Most of these missed visits have occurred since they moved to Grand Valley, which is about 1 ½-2 hour drive from Toronto, depending on the weather and traffic conditions. D.B.-S. and J.B. had various explanations for the missed visits—illness on the part of one or the other, miscommunications with the worker, or weather problems. A comment from J.B. led me to believe that the cost of the trip is a serious concern, given their current constrained financial circumstances.

11. B.B.-S.

[112] B.B.-S. is described by everyone who comes into contact with him as a sociable child, who always appears to be happy. He is healthy, of average intelligence, and is meeting all his milestones. He has been through a number of transitions in his short life. Since August 2012 he has been cared for by his original foster mother, Ms. Reyes.

[113] Ms. Reyes has described two puzzling changes in B.B.-S.'s behaviour since he returned to her care. He pulls out his hair, has begun to eat "non-stop", and will ingest not only food, but objects such as hair, sand, and brick. J.W., who cared for B.B.-S. from January 2011 to January 2012, testified that she had not observed this behaviour when he was in her care. Neither had D.B.-S. and J.B.

[114] Psychologist Dr. Daniel Fitzgerald believed that the behaviour described by Ms. Reyes signalled signs of "anxiety and dissociation". Dr. Fitzgerald observed: "It is now extremely important that he have an opportunity to establish a secure, stable long-term attachment with primary caregivers who can meet his needs."

[115] There is no dispute that, if B.B.-S. is made a Crown ward, that he will be adoptable. His foster mother has no plans to apply to adopt him if he is made a Crown ward.

12. D.B.-S.'s Drug and Alcohol Use

12.1 Why Testing?

[116] D.B.-S. and J.B. (at his initiative) were both tested for use of alcohol and drugs.

[117] D.B.-S.'s use of alcohol is the focus of the Society's current protection concerns, and the focus of expert evidence I received resulting from hair tests. Some of those tests also monitored cocaine and marijuana use.

[118] The test results for J.B. did not indicate consumption by him of cocaine or other drugs (with the exception of medical marijuana), or of excessive consumption of alcohol. No further mention will be made of J.B. in this section, as the Society does not allege that he had a problem abusing substances of any type.

[119] D.B.-S. and J.B. had on their own initiative arranged for testing from Accumetrics; at the Society's request, they also attended for testing at Motherrisk program at the Hospital for Sick Children. I received in evidence test results with interpretive guidelines from Motherrisk and heard testimony from Joey Gareri, the manager of the laboratory at the Motherrisk. Mr. Gareri was, on consent, qualified as an expert in hair and urine testing for drug and alcohol usage and the interpretation and reliability of such tests.

[120] Dr. Harvey Tannenbaum, the Director of Operations at Accumetrics, was not made available to give evidence, but on consent of the parties the results of the Accumetrics test were admitted, subject to interpretation by Mr. Gareri.

[121] Mr. Gareri cautioned at the outset of his evidence as follows:

• Toxicological evidence should not be used in isolation to assess whether an individual uses alcohol to excess. That issue should be considered in the light of other evidence concerning behaviour and context.
• A test result indicating excessive alcohol use does not mean that an individual is "an alcoholic". That is a medical diagnosis, which involves consideration of many factors.

[122] Mr. Gareri prepared four reports, dated January 5, 2010, November 19, 2010, March 7, 2013, and April 1, 2013, and gave evidence with respect to the results of Motherrisk tests administered to D.B.-S. between March 2009 to February 2013. He also, on consent of the parties, re-attended and provided an oral report as to D.B.-S.'s most recent hair test for alcohol use. He also interpreted and reconciled Accumetrics reports on D.B.-S. dated November 16, 2012, July 20, 2011, August 15, 2012, and February 1, 2013.

12.2 D.B.-S.: Cocaine

[123] The Motherrisk reports from 2010 indicate that D.B.-S. used cocaine over the period covered from July 2009 to early April 2010, with use decreasing to the "low" range by April 2010.

[124] Tests administered in November 2010 and following have been negative with respect to cocaine or cocaine metabolite.

[125] This represents for D.B.-S. a record—an almost 3-year period that she has been free of crack cocaine. She is proud of her accomplishment. As set out above, D.B.-S.'s counsellor from North Toronto support services counsellor, Ms. Corriveau, observed that she was able to remain free of crack, despite having to cope with several stressful issues during the year they worked together. Ms. Corriveau had no concern that D.B.-S. would start abusing alcohol as a result of her giving up crack.

[126] D.B.-S. and Ms. Corriveau credit J.B. with giving important support to D.B.-S. in her efforts to remain abstinent from crack. J.B. introduced her to a world in which she had friends and activities that were not associated with crack usage. He steered her away from going to areas of the city frequented by associates from her drug-using days. J.B. continues to praise D.B.-S. for her success in avoiding crack.

12.3 D.B.-S.: Marijuana

[127] D.B.-S. has used medically-prescribed marijuana for almost 10 years, to assist in controlling pain from the head injury she suffered in 2003. Mr. Gareri testified that the most recent Motherrisk test shows frequent use, at a level of at least 3-4 joints per week.

12.4 Hair Testing Standards -- Alcohol

[128] Standards for hair testing for alcohol and certain drugs have been established by the International Society of Hair testing, of which Mr. Gareri is a member. He testified that there are two hair tests for alcohol consumption, the FAEE (fatty acid ethyl esters) test and EtG (ethyl glucuronide) test which have been validated by the Society as independent markers for alcohol use.

[129] Cutoff levels for both tests are determined with reference to clinical studies involving individuals whose consumption levels have been confirmed by other sources. Setting a cutoff entails consideration of sensitivity and specificity of monitoring. Motherrisk uses a cutoff level of .50, which identifies as positive 90 out of 100 individuals who consume alcohol to excess, missing 10 heavy drinkers. This cutoff level has a specificity of 90%; 1 out of 10 moderate drinkers will be mis-identified as heavy drinkers, or false positives.

[130] The clinical studies used to identify problem drinking were done on male subjects in Northern European countries in which daily consumption of alcohol is accepted as normal food intake. Mr. Gareri testified that consumption on an average of two drinks per day would not register at above the cutoff levels used by Motherrisk. A standard drink is defined as "1.5 ounces of liquor, one glass of wine, or one regular-sized bottle of beer."

[131] Each test has its strengths and weaknesses.

• The FAEE has a greater chance of a false positive result than the EtG, and that chance is much greater than 10% if the subject uses an alcohol-based hair care product, such as hairspray.
• The EtG has a greater chance of a false negative result than the FAEE, particularly with women, because other types of hair care products, such as hair dye, affect results. The EtG is not affected, however, by the use of alcohol-based hair products. Clinical studies show that with the EtG test results that are negative, one out of four subjects in fact used alcohol excessively.

[132] Accumetrics uses only the EtG test, and thus is subject to the false negatives mentioned above.

[133] Mr. Gareri's evidence is that a "negative" on either test should not be interpreted as an indication of "no consumption" of alcohol; it simply is not evidence of excessive consumption.

[134] Prior to March 2011 the Motherrisk laboratory only used the FAEE test to measure alcohol consumption. In March 2011 Motherrisk began using FAEE and ETG tests together, in cases where initial FAEE results warranted further investigation. Mr. Gareri testified that a positive result on the two tests provided a reliable confirmation of frequent excessive alcohol consumption, and that use of the tests in combination results in an error rate of "significantly lower" than 10%. He could not, however, say what that rate was.

[135] Hair tests for alcohol (unlike those for drugs) cannot provide information as to patterns of usage. However, "frequent, excessive alcohol use" is defined by Motherrisk as "repeated episodes of binge alcohol consumption (i.e., greater than 5 drinks per drinking occasion) occurring at an average minimum frequency of 6-8 times per month or chronic consumption of alcohol during this time period of an average of 4-6 drinks per day."

[136] The ETG (unlike the FAEE) test correlates with dose; in other words, the higher the result, the greater amount of alcohol consumed. Neither test distinguishes between daily drinking and binge drinking.

12.5 Test Results for D.B.-S.

[137] At the Society's request, D.B.-S. had hair testing done at Motherrisk in 2009 and 2010. Although the primary focus of that testing appeared to be cocaine use, there was testing done for alcohol use too, using the FAEE test only.

[138] The tests indicated consumption above the cutoff level – what Motherrisk now classifies as "suggestive of alcohol abuse" —for the periods May to October 2009 and early March to early July 2010.

[139] The Society did not test D.B.-S. for alcohol (as opposed to cocaine) use in later 2010, or for use of any substance after B.B.-S. was placed in the care of the W.s family in January 2011. Further tests were requested only after B.B.-S. was apprehended in August 2012.

[140] D.B.-S.'s results on the EtG test from Accumetrics dated August 15, 2012, which covers a period approximately early May to early August 2012, registered alcohol consumption at 224 pg/mg. Mr. Gareri's testified that this level of EtG is "consistent with frequent excessive consumption of alcohol" during this period, regardless of which of the commonly-used cut-off levels is employed.

[141] In 2013 D.B.-S. cooperated with the following tests for alcohol consumption:

• Accumetrics test of February 1, 2013, which covered a 120 day period from approximately late September 2012 to late January 2013 (EtG only);
• Motherrisk test of March 1, 2013, which covered the period mid-November 2012 to mid-February 2013 (FAEE only, as insufficient hair collected); and
• Motherrisk test of April 4, 2013, which covered the period late January 2013 to late March 2013 (FAEE and EtG administered).

[142] The Accumetrics test was negative. Both Motherrisk tests were positive, with results above the cutoff level. Mr. Gareri's opinion was that the Motherrisk results indicate frequent heavy average consumption of alcohol during the periods covered by the tests. Mr. Gareri's conclusion was not affected by the "negative" result on the February 1, 2013 Accumetrics test, which he testified is not inconsistent with the Motherrisk results.

[143] D.B.-S.'s evidence was that she did use hair care products, but she offered no specifics as to the type of products as to whether they contained alcohol and/or included hair colouring. In any event, Mr. Gareri testified that the use of both FAEE and EtG tests for the period late January to late March 2013 should allay concern about a false positive result for D.B.-S. because of use of hair care products. D.B.-S.'s counsel advised the court that she was not alleging that the results of the hair test were affected to D.B.-S.'s detriment by the use of hair care products.

[144] D.B.-S. is a black woman, and her lawyer questioned whether the tests, developed on a population that was mainly Caucasian males, could accurately record her consumption of alcohol. Mr. Gareri's evidence was that no tests have been completed which establish whether race or gender of a subject will affect test results, but that current evidence does not suggest that these factors are significant. However, Mr. Gareri is currently conducting a study assessing whether gender makes a difference.

12.6 D.B.-S. - History of Problem Drinking

[145] In her trial evidence and in her affidavit filed with the court soon after B.B.-S.'s apprehension denied that alcohol abuse had been a problem for her, asserting that her problems had been with cocaine, and that she had overcome that addiction. However, other evidence established that use of alcohol has been problematic for D.B.-S. for a number of years, up to at least 2009.

[146] D.B.-S. testified that she began using alcohol when she was eleven years old, after she was sexually abused by her father.

[147] As her evidence progressed, D.B.-S. did acknowledge that alcohol had contributed to her problems, and had been involved in some of the incidents which led to arrests and sometimes convictions. D.B.-S. made a point of saying that it was use of hard liquor which caused her problems, not the consumption of beer.

[148] A review of the record indicates that alcohol consumption has been identified by agencies and professionals involved in D.B.-S.'s life as a problem for many years, and that at times D.B.-S. has acknowledged this problem.

• A psychiatric note from the Centre for Addiction and Mental Health from 2004 from Dr. Pamela Stewart refers to D.B.-S.'s "longstanding history of alcohol abuse stemming back to 11 ½ years old that usually consists of binge drinking. Currently, her pattern is to start binging until she blacks out". The note refers to a suicide attempt by D.B.-S. in October 2003 and an attack by her on a boyfriend which occurred when she was intoxicated.

• In April 2006 Dr. Karl Farcnik, D.B.-S.'s treating psychiatrist, provided a report outlining progress which she had made with her mental health and addiction issues. One of his recommendations was that she completely abstain from alcohol.

• In May 2006 Rosemary Guiguire, the "Babies Best Start" home visitor who was providing support for D.B.-S., visited her at home and reported that she was drinking a beer. Ms. Guiguire said that she was drunk, her speech was slurred, and she was agitated.

• In March 2007 D.B.-S. took P. to a clinic. Staff there reported smelling alcohol on her breath and were concerned about her erratic behaviour and her rough handling of the child. Police were called and she was arrested under the Mental Health Act and taken to hospital.

• In July 2007 D.B.-S. stabbed V.S. three times; she was subsequently convicted of this assault. V.S. reported that she had been drinking at the time of the attack and that she "cannot handle alcohol and when she drinks, becomes a different person".

• D.B.-S. was incarcerated at Vanier Correctional Institution as a result of this conviction. Agreed statement of facts July 17, 2007 signed by D.B.-S. reports that she told her family service worker at the time that she "was optimistic that she would achieve sobriety". Upon release, D.B.-S. went to the Elizabeth Fry Treatment Centre. Staff there reported that she had returned to the facility intoxicated on three occasions.

• After B.B.-S.'s birth at a family/group conference involving support persons for D.B.-S. in October 2009, although one spoke positively about her efforts to change her "alcohol and crack cocaine lifestyle", two others told the family service worker that they were still concerned about her drinking. The next day, a public health nurse visiting D.B.-S. found a quantity of empty beer cans in her apartment, and D.B.-S. acknowledged that she had suffered "a bit of a slip".

12.7 Evidence About D.B.-S.'s Drinking After B.B.-S. Returned to Her

[149] Other than the results of the hair tests, there is very little evidence about D.B.-S.'s consumption of alcohol in the period after B.B.-S. was returned to her in January 2012, before the night of August 4, 2012.

[150] Society counsel suggested that prior to the August 4/5 weekend, D.B.-S. had concealed her drinking from the Society workers, and that she had prior to trial taken the position that the only occasion on which she drank while B.B.-S. was in her care was the August 4/5 weekend. I found no support for that submission. In her evidence at trial, D.B.-S. testified that she and J.B. had, since before B.B.-S. was placed with them, drank beer in moderate amounts—perhaps on average 4-6 beers a week. D.B.-S.'s evidence is that she had been open about this practice with family service workers Nikki Holland Green and Sarah Singer, and that they raised no objections.

[151] There is no evidence of reports from neighbours about alcohol consumption, or evidence that police were called to the home because of reported disturbances before the August 4/5 weekend. J.L. (who saw D.B.-S. regularly from Monday to Friday when B.B.-S. was dropped off and picked up) saw nothing that caused her concern, including any indication of problem drinking. Tara Lee Corriveau, D.B.-S.'s support worker from North Toronto support services, attended at the home frequently. She was aware of evidence of consumption of beer in the home, but saw nothing that indicated excessive drinking, except on the day after B.B.-S.'s apprehension. (As set out above, D.B.-S. says that she did not drink that day, but did take an anti-anxiety medication.)

[152] J.B. testified that, other than on the August 4/5 weekend, he has never seen D.B.-S. drink to excess. His evidence as to her consumption of alcohol reflected hers—a moderate use of beer only. He testified that he was puzzled as to how his observations of her drinking could be correlated with the results from hair tests for alcohol. He said that he had considered the possibility that D.B.-S. might have a secret cache of alcohol, and had even searched their home in Grand Valley to assure himself that this was not the case. He found nothing, and said that he could not see how D.B.-S. could have acquired alcohol without his knowing.

[153] D.B.-S.'s evidence when the trial resumed on May 17, 2013 was that, although she had not previously considered her intake of beer to be a substance abuse problem, the experience of the trial, and in particular of hearing the evidence of Ms. Parker and Mr. Gareri, had changed her mind. She saw that consumption of alcohol in any form was a barrier to her ever regaining custody of B.B.-S., and a problem that she had to take seriously. She testified that she had not consumed alcohol in any form for seven weeks, and intended to completely abstain in the future. J.B. confirmed in his evidence that D.B.-S. has not to the best of his knowledge consumed any beer or other alcoholic beverage in the past "couple of months".

[154] D.B.-S. was confident that the support she received from her counselling and aftercare programs and from J.B. and J.W. would help her to remain abstinent. More information about those supports is set out further below.

13. D.B.-S. and J.B.'s Plan

[155] If B.B.-S. is returned to them, J.B. and D.B.-S.'s plan is to care for him in their home in Grand Valley. Initially, D.B.-S. testified that that she planned to enrol in a further educational program in the fall. When the trial resumed in May 17, 2012, she said that she had decided that it was better to join J.B. in staying at home to care for B.B.-S. for a period of time.

[156] J.B. and D.B.-S. are confident that their disability payments will provide sufficient income. They live in a rented farmhouse with I.R. J.B.'s sister, J.W., lives about 15 minutes away, in Shelburne. D.B.-S. and J.B. both happy expressed happiness at living in a rural/small town environment.

[157] D.B.-S. and J.B. have resourced services for themselves in the area.

[158] D.B.-S. contacted the local office of the Canadian Mental Health Association after the move, and received information about appropriate services for her in the area. She followed up on this information, went on waiting lists, and recently began attending two programs which offer personal counselling and treatment for substance abusers. D.B.-S. attends for individual counselling every Wednesday at Homewood, and for aftercare every Monday at "Celebrate Recovery", a Christian addictions support group; she has a one-on-one worker through that program. D.B.-S. has arranged for transportation for herself through a service that will take her to counselling as well as medical appointments. D.B.-S. testified that she told both programs that she had a history of crack use, and a problem with alcohol—that she had lost her child because she used alcohol.

[159] J.B. has signed up for a fathers' group at the local community centre. He and D.B.-S. both visited the local school's open house, and met some staff and other parents of children who would be in B.B.-S.'s junior kindergarten class in the fall if he is returned to them. There is school bus service available. There is a daycare facility in the same school building which B.B.-S. could attend, if the conditions of a supervision order required such attendance.

[160] J.B. testified that he and D.B.-S. know they could both call upon J.W. and other members of her family if they required assistance with B.B.-S. or with any other issue. As well, they have made a few friends in the area who would offer support.

14. Support for the Plan from J.W. and Family

[161] J.W. offers support without reservation to D.B.-S. and J.B. in caring for B.B.-S. She testified that she is available to babysit whenever needed. She can drive J.B. or D.B.-S. to appointments, or B.B.-S. to school. She has already provided transportation for D.B.-S. on some occasions.

[162] J.W. is 65 years of age, retired from a career in the vending machine business, in good health, and deeply involved in family and church. She regularly volunteers in ministry work for her church; part of her work involves counselling people with problems. J.W. had a long and happy marriage with G.W., who died suddenly in March of this year. She now lives alone in their three-bedroom home.

[163] J.B. is J.W.'s younger brother. They are close. J.W. is also close to D.B.-S. When J.B. asked J.W. and G.W. to provide foster care for B.B.-S. in 2010, they agreed without hesitation, even though they had never met the child and knew that he was not J.B.'s biological son. It was enough for them that B.B.-S. was a child in need of a home, and that J.B. and D.B.-S. had asked them to help. J.W. testified that she had hoped that D.B.-S. and J.B. would be able to have B.B.-S. returned to them, but that she had been prepared to keep B.B.-S. "long-term" if necessary.

[164] J.W. characterized B.B.-S. as "adorable", and said that she and G.W. had loved having him with them for the year he spent there. They underwent the Society's lengthy and intrusive assessment process without complaint, and were approved as a kinship placement. She and her family were "shocked" to hear that B.B.-S. had been apprehended. She was surprised that the Society did not contact her to care for B.B.-S. again after he was apprehended in August 2012.

[165] J.W. has three sons, five grandchildren, and one great-grandchild, most of whom live within a 45-minute drive. Her son M. and grown granddaughter P. live a 5-minute walk away. Her great-granddaughter C., four years old, was a playmate of B.B.-S.'s when he lived with the W.s. J.W. babysits for C. occasionally.

[166] J.W. testified that the W.s family is a close one, and there are many family events—family camping, parties, and dinners. She sees D.B.-S. and J.B. frequently since they have moved to the area—at her home, their home, or M.'s home. J.W. said that D.B.-S. and J.B. could expect help from all of the family. J.W. testified that all of her children and grandchildren met B.B.-S. when he lived with her and G.W., and they all loved him.

[167] Counsel asked J.W. whether she would contact the Society, if B.B.-S. was placed with D.B.-S. and J.B. and she observed any behaviours of concern. J.W. replied that she would. In evidence it was established that she had already done so on one occasion when B.B.-S. had been in her care, a night when J.B. and D.B.-S. had told her that they would not return B.B.-S. to her until Monday (rather than on Sunday night, the regular time approved by the Society). The child was sick and they wished to take him to the doctor before having him make the drive back. Even though J.W. thought this course of action was sensible, she testified that she was conscious of her obligation to report any breach of the Society's rules, and did so.

[168] J.W. testified that working with the Society had been somewhat frustrating, because of frequent changes in worker and lack of clarity about "the rules" which should be followed on visits by D.B.-S. and J.B. It took her some time to clarify that J.B. was considered appropriate supervisor for D.B.-S., and, later, that it was acceptable for D.B.-S. and J.B. to take B.B.-S. to their home on weekends for visits.

[169] J.W. testified that when D.B.-S. and J.B. visited B.B.-S. at her home, they had obeyed her household rules—no alcohol of any type, and separate sleeping arrangements (because they are unmarried). Since D.B.-S. and J.B. have moved to the area and been socializing with the W.s family, they have observed the "no alcohol" rule when at her home.

[170] Society counsel reviewed with J.W. in cross-examination D.B.-S.'s dismal history with prior children, and the fact that none of them were in her care. J.W. remained confident that D.B.-S. and J.B. could care well for B.B.-S. if he was returned to them. J.W.'s perception is that D.B.-S. and J.B. have a strong, supportive relationship, and that J.B. is aware of D.B.-S.'s weaknesses.

15. Argument

[171] The Society counsel acknowledged that this case turns on the evidence about D.B.-S.'s consumption of alcohol, the risk which that might mean for B.B.-S., and the effect which J.B.'s presence in the family has on the assessment of that risk. The Society submits that B.B.-S. cannot be safely returned to his parents, whether jointly or to J.B. alone. The Society further submits that:

• D.B.-S. shows no insight into the risks posed by her alcohol consumption.
• D.B.-S. has already demonstrated that she will not or cannot comply with an order not to consume alcohol.
• J.B. is not a "protective factor" in the family—he did not believe that her consumption of alcohol was problematic, despite the terms of the supervision order prohibiting alcohol consumption. He fails to accept the possibility that D.B.-S. may have been consuming alcohol in excessive amounts, despite the results of the hair tests.
• Further, J.B. and D.B.-S.'s relationship is shaky. They cannot provide a stable home.
• Last, D.B.-S. and J.B. have demonstrated that they cannot or will not cooperate with the Society, so a supervision order is doomed to failure.

[172] J.B. and D.B.-S. vigorously submit that the evidence shows that B.B.-S. has a strong and loving relationship with them, that they have always provided good care for him, and that his safety was never jeopardized while in their care.

[173] D.B.-S.'s lawyer argues that the Society was not sufficiently clear in drafting the terms of the prior supervision order, if it intended that she never consume any alcohol. Counsel questions whether it has been proven that D.B.-S. has consumed alcohol to excess, arguing that hairtests are not fool-proof, and that it is an open question whether the tests accurately measure alcohol consumption by subjects who are not Caucasian and male. Assuming that D.B.-S.'s alcohol consumption has been a problem, counsel submits that now that D.B.-S. is fully aware of the Society's views on any alcohol consumption, that she is taking steps to abstain, and that she will be successful. Counsel emphasizes that D.B.-S. has proven that she can successfully overcome addictions in the past, as evidenced by her three-year abstention from crack cocaine.

[174] As for the Society's argument that D.B.-S. and J.B. cannot cooperate in a supervision order, counsel argue that they have attempted to be cooperative with the Society, but that their caution is entirely understandable given the Society's precipitous decision to apprehend, and Ms. Parker's inflexibility in dealing with them. Counsel point out that their clients had a record of cooperation and communication with two prior family service workers, and suggest that future cooperation would be improved if there was a change in worker.

[175] J.B.'s lawyer submits that there is impressive evidence of the strength of the bond between his client and D.B.-S. J.B. committed to D.B.-S. and to B.B.-S., despite D.B.-S.'s discouraging history. He has continued in this commitment, despite the stress it has entailed. Counsel points out that the family has ample services in the Grand Valley area, and a strong family support system. If the court is considering an order placing B.B.-S. in J.B.'s care alone, counsel argues that this is a significantly different order than the prior supervision order, which placed the child only in D.B.-S.'s care. Under that order, J.B. had no legal authority over B.B.-S. Counsel goes so far as to suggest that the court could make an order that stipulates that if J.B. sees D.B.-S. consume any alcohol, that he shall notify the Society immediately and shall remove B.B.-S. from the home.

16. Analysis

I have considered all of the factors set out in section 37(3) of the Act in assessing B.B.-S.'s best interests. My analysis of the most significant of those factors in this case is set out below. I have also considered what "least disruptive" disposition available to me that would protect the child, as directed by section 57(3) of the Act. I am of the view that it is in B.B.-S.'s best interests to be placed with J.B., under an order of supervision by the Society, and that this is the order that I make. My reasons are set out below.

16.1 The Society's Plan

[176] Everyone agrees that B.B.-S. is adoptable. If he is made a Crown ward, the Society will do its best to find adoptive parents for him that can meet all his needs in a stable and secure home. It will try to find a placement that respects B.B.-S.'s racial and cultural background. A necessary feature of the Society's plan, however, is that B.B.-S. will be cut off from any contact with his parents or his extended family, except perhaps for contact with P. Further, an adoption placement would not provide B.B.-S. with any continuity of care.

16.2 Degree of Risk of Return

[177] The protection finding was made under section 37(2)(l) of the Act, and did not address the issue of risk to B.B.-S. However, the issue of what risk B.B.-S. would face if returned to J.B. and D.B.-S.'s care, and how that risk, if any, might be managed, is at the crux of the Society's case. That issue requires a consideration of:

• Whether D.B.-S. has regularly consumed alcohol to excess during the period in question (January 2012 to date).
• The risk to B.B.-S. posed by excessive consumption of alcohol.
• Whether D.B.-S. recognizes that there is a risk in excessive alcohol consumption, and what steps, if any, she is taking with respect to her use of alcohol.
• Whether D.B.-S. would comply with any condition not to consume alcohol; this involves a consideration of her compliance with prior conditions of supervision.
• Whether an order placing B.B.-S. in J.B.'s care, while living in a household which included D.B.-S., mitigate any risk posed by D.B.-S.

16.2.1 Has Alcohol Consumption Been Frequent and Excessive?

[178] I accept that Mr. Gareri's evidence provides very "strong evidence of frequent excessive alcohol consumption" by D.B.-S. from late January to late March of 2013. The tests administered to D.B.-S. covering this period utilized dual markers of consumption (FAEE and EtG), a procedure which reduces the error rate to one which cannot be quantified but which is "significantly below" 10%. The results indicate an average consumption of 4-6 drinks daily, a consumption level significantly higher than anything reported by D.B.-S.

[179] Tests for other time periods do offer evidence of excessive drinking, but did not employ the dual markers and are thus subject to a higher rate of error. The most which Mr. Gareri could say about the Accumetrics test result covering D.B.-S.'s drinking pattern for the 3 months prior to the apprehension was that it is "consistent with … frequent excessive alcohol consumption".

[180] There is a question about how conclusively hair tests can track alcohol consumption. An error rate of 5-10% is of concern when one is assessing the weight to be given to a test result in determining a child's future. It is possible that D.B.-S. is one of those subjects who is a moderate drinker, who tests as a false positive.

[181] However, given D.B.-S.'s unreliability in the past in reporting her alcohol consumption and her history of excessive alcohol consumption during the years prior to B.B.-S.'s birth, I find that it is unlikely that the test results were inaccurate.

[182] I find that D.B.-S. was consuming alcohol in an amount which is objectively considered to be "excessive" during much of the time from March 2012 to March 2013.

16.2.2 Risk of Frequent, Excessive Consumption

[183] What effect does "frequent excessive alcohol consumption" have on behaviour and judgment? Neither the Society nor the parents offered expert evidence about the effect of particular patterns and levels of alcohol consumption on behaviour or judgement, or on the particular skills required by a parent of a young child.

[184] Mr. Gareri, although not an expert in this area, testified that the literature indicates that the effects of what is described as "excessive" alcohol consumption vary widely, depending on the individual. As set out above, he testified that such test results do not mean that the subject is an "alcoholic".

[185] Society counsel acknowledged that there are "functional alcoholics", and allowed that D.B.-S. may be one of those individuals. The evidence as to the last two years does not indicate that B.B.-S. has ever been placed at risk because of D.B.-S.'s alcohol consumption. Even on the evening of August 4, 2012 (when D.B.-S. drank to excess), B.B.-S. was not placed at risk. D.B.-S. left him with a responsible sitter for the evening.

[186] Having said that, it is clear to me from historical evidence that, for D.B.-S., excessive alcohol consumption has been linked to behaviour that would put a child in her care at risk. Ten years ago she attempted suicide while she was intoxicated. Six years ago, P. was removed from her care when, intoxicated, she was arrested and taken to hospital under the Mental Health Act. B.B.-S. is only four years old. The danger which he would face if cared for by an intoxicated parent, caring for him alone, is obvious.

[187] I find that B.B.-S. would be at risk because of excessive alcohol consumption by D.B.-S., if placed in her care alone.

16.2.3 Recognition of Risk / Steps to Abstinence

[188] For a long time in this case, D.B.-S. insisted that "alcohol is not the problem". She had some support in this view, from professionals whom she had told that she just drank "a few beers" during the week. Ms. Corriveau in her evidence expressed the same view as D.B.-S., and focused on D.B.-S.'s cocaine addiction. Prior family service workers said that "a few beers" were not a problem. The fact that D.B.-S. was apparently able to function well despite the alcohol she was consuming served to reinforce a view that her level of consumption was not a concern.

[189] I did not hear from D.B.-S. a clear acknowledgement that she sees her alcohol consumption as a risk to B.B.-S.'s safety. However, D.B.-S. did demonstrate that she recognizes now that the Society, and in all likelihood the court, sees her alcohol consumption as a protection concern. She is acutely aware that this concern has deprived her of B.B.-S. D.B.-S. testified that she knows that she must cease consumption of alcohol if she wants to have B.B.-S. back in her care.

[190] D.B.-S.'s acceptance of the necessity of her stopping any consumption is shown by participation in two treatment programs. Further, she is willing to participate in any type of testing for alcohol consumption that the Society requests—hair and/or regular urine testing.

16.2.4 Likelihood of Compliance

[191] Will D.B.-S. comply with a condition that forbids alcohol consumption? The Society points to the condition in the March 2012 order that stated she was to "continue to use appropriate supports to remain drug and alcohol free", pointing out that she admits that she drank on during the prior supervision order. Although the condition might have been worded better, I do not agree with the argument of D.B.-S.'s lawyer that its wording refers only to the consumption of hard liquor. However, I do accept the uncontradicted evidence of both D.B.-S. and J.B. that prior workers knew and did not object to moderate consumption of beer and to the use of medical marijuana.

[192] If this court was to return B.B.-S. under a supervision order, it would be important to draft each condition to contain one clear directive. It would also be important to underline for D.B.-S. and J.B. that, if a condition is clear, the interpretation of a worker is not required and does not change its meaning. Given that D.B.-S. has experienced the apprehension of her child because she did not comply with a condition of a supervision order and given that she now agrees that she should not consume any alcohol, I expect that she would be motivated to comply with clear conditions in a future order. She has suggested that her compliance with conditions prohibiting the consumption of non-medically prescribed drugs and alcohol be monitored by regular testing.

[193] Even though D.B.-S. is motivated to comply, I must ask, will she be able to? D.B.-S. has a history of problematic alcohol use, and has started treatment programs before, and relapsed. Two factors make me think that D.B.-S. is more likely to be successful now than in the past.

[194] First, D.B.-S. has had the experience of successfully dealing one problem of substance abuse, her use of cocaine. She has remained cocaine-free for almost three years.

[195] Second, D.B.-S. has J.B.'s support; he has committed not to drink at home or in her presence, so as not to tempt her. D.B.-S. also has the support of J.W. and her family. This is a radical difference from her situation during previous attempts to deal with substance abuse, when she was living in a disorganized environment, with no positive support in her personal life.

16.2.5 Placement with J.B.

[196] I do not agree with the Society's submission that an order placing B.B.-S. with J.B.—as opposed to J.B. and D.B.-S.—would make no difference in the degree of protection offered to B.B.-S.

[197] J.B. proposed this arrangement as an alternative, and it is supported by D.B.-S. The proposal contemplates that D.B.-S. and J.B. would live together, but that it would be J.B. alone who would have the legal responsibility for B.B.-S. He would ultimately decide the rules of the household. He would be able to remove B.B.-S. from the household, if D.B.-S. did not continue to abstain. This would put J.B. in a far different legal situation than that of the prior supervision order, which gave legal authority over B.B.-S. to D.B.-S. only.

[198] J.B. demonstrated in his evidence that he is committed to doing what is required by the court to have B.B.-S. returned. While he did accept some drinking by D.B.-S. when allowed by previous workers, I am satisfied that he would not countenance drinking on D.B.-S.'s part now, and that he would take steps to protect B.B.-S. if he became aware that she was drinking. Although J.B. was reluctant to accept the test results as evidence of D.B.-S.'s drinking, I am satisfied that he would do so if directed by the court as a condition of B.B.-S.'s placement with him.

[199] I asked the Society for submissions on appropriate conditions if I made an order placing B.B.-S. in J.B.'s legal custody, subject to supervision. The Society submitted that appropriate conditions would include the following:

• J.B. to reside with J.W.;
• J.B. not to care for B.B.-S. during any period in which he was using medical marijuana;
• D.B.-S. to have no contact with B.B.-S. except as approved by the Society.

[200] The conditions are unrealistic. J.B. would be required not to use medical marijuana, which would mean returning to use of the opioid medication that he found unsatisfactory. No evidence was advanced that indicated that J.B.'s use of medical marijuana was problematic. Use of marijuana, in and of itself, does not indicate incompetent parenting, absent some evidence that the drug use negatively affects the parent's abilities. The conditions suggested by the Society amount to a restatement of the Society's position that J.B. is not an acceptable caregiver.

16.3 B.B.-S.'s Relationship with His Parents, P., and Extended Family

[201] An order placing B.B.-S. with D.B.-S. and J.B. would give the child the opportunity to grow up with his parents, and as a member of J.B.'s extended family. The Ontario Court of Appeal has recently reminded us that in assessing a child's best interests, a court should not limit it assessment to a weighing of the risks of return, but should fully consider the importance of a child's emotional needs in connection with his relationship with his parents, a child's development of a positive relationship with his parents, and the risk of harm to him if kept away from his parents.

[202] There is no professional assessment of the quality of B.B.-S.'s attachment to his parents, but all the available evidence indicates that the relationship is strong and positive. The Society counsel at the outset of the trial conceded that the relationship between B.B.-S. and his parents was a "healthy" one. Ms. Parker testified that she was "moved" by the strength of the relationship between B.B.-S. and his parents. She spoke of B.B.-S.'s delight when he is with his parents on visits. J.B. and D.B.-S. both spoke of their love for B.B.-S. J.W., who had ample opportunity to observe them with B.B.-S. every weekend for approximately a year, testified that the relationship was wonderful.

[203] J.W. also testified as to the positive relationship which B.B.-S. has with her and her children and grandchildren, which developed during the year that she and her husband were the child's primary caregivers. J.W. is "Nan" to B.B.-S. Her evidence is that the child is loved by everyone in the family.

[204] What is the risk to B.B.-S. if not returned to his parents' care? I have no expert evidence on this point, but an expert is not required to establish that, if a child is able to grow up safely in his parents' and have his needs met well, that it is a grievous loss for him to be separated from them forever.

[205] If B.B.-S. is returned to D.B.-S. and J.B., it is unlikely that he would be able to maintain a relationship with P. That relationship had begun to develop at the time of the apprehension; P. had then spent approximately a dozen weekends in D.B.-S. and J.B.'s home. The boys appear to have enjoyed each other's company, although there was some sibling conflict. Since the apprehension, the Society has arranged for visits between the boys on alternate Fridays. I received no evidence as to how that relationship is progressing.

[206] The Society argues that the relationship between B.B.-S. and P. should be facilitated, that an order for Crown wardship for B.B.-S. will make that possible, while return of B.B.-S. to his parents would not, given their difficult relationship with P. Litigation concerning whether there should be an access order between P. and his father is still pending. The Society plans to place P. for adoption, and hopes to place B.B.-S. with him. If that is not possible, the Society says that that it will insure that his adoptive parent "facilitates contact" between him and B.B.-S. The Society submits that D.B.-S. and J.B. could not be relied upon to facilitate such contact, if B.B.-S. was in their care. D.B.-S. and J.B. reply that they are willing to insure such contact, if P.'s foster parent is open to contact. D.B.-S. reiterated her desire to participate in a therapeutic program with P., in order to repair the relationship.

[207] I agree with the Society that it would be difficult for D.B.-S. and J.B. to foster a positive relationship between B.B.-S. and P. The Society's plan is more likely to insure continued contact between the boys. I note, however, that the Society's plan does not insure such contact, either—it relies solely on goodwill between two prospective adoptive homes. The Society's plan does not include a request for an order allowing access between the boys or for an application for an openness order after adoption.

[208] Ultimately, however, my view is that B.B.-S.'s relationship with P. is not so significant to him that continuation of that relationship would outweigh the importance of B.B.-S. being able to maintain his relationship with his parents, if a return was otherwise in his best interests.

16.4 Ability of D.B.-S. and J.B. to Meet B.B.-S.'s Needs

[209] The evidence does not indicate that B.B.-S. has any special needs. The disturbing behaviour (i.e., eating sand, hair) he has exhibited since coming back in to care is unexplained, but Dr. Fitzgerald expected that it would be resolved when he was in a secure, long-term home.

[210] There is no doubt that D.B.-S. and J.B. can meet B.B.-S.'s needs in many respects.

[211] While B.B.-S. was living with them, they were conscientious in providing all the basics—shelter, food, clothing, and medical and dental attention. They provided activities and intellectual stimulation. As required by the Society, they arranged for daycare.

[212] With respect to B.B.-S.'s emotional welfare, the evidence is that D.B.-S. and J.B. are emotionally well-attuned to the child. Ms. Parker concedes that they can read B.B.-S.'s cues, and respond appropriately to those cues. B.B.-S., like all children, has a need for love and attention; J.B. and D.B.-S. certainly provide that love and attention when they are with him.

[213] Having said that, there are two issues which caused me some concern as to D.B.-S. and J.B.'s ability to meet B.B.-S.'s emotional needs: their record with respect to missed visits, and their treatment of P.

[214] The fact that D.B.-S. and J.B. have missed a significant number of visits could raise a concern that they do not understand the importance for B.B.-S. of regular contact with them. I do not draw that conclusion in this case. The fact that they made a long drive every weekend when B.B.-S. was in J.W.' care indicates that they realize that such contact is important. The issue of missed visits has become significant only since D.B.-S. and J.B. moved to Grand Valley; their travel is now more difficult because of constrained financial circumstances.

[215] D.B.-S. and J.B.'s treatment of P. at the aborted visit last August demonstrates a failure to understand that child's emotional needs. While their treatment of P. was appalling, I do not conclude that this behaviour is indicative of how they will treat B.B.-S. in the future. D.B.-S. and J.B. have had a strong commitment to B.B.-S. since the child's birth. They were his primary caregivers for a period of time, and saw him regularly during periods when he was in J.W.' care and in foster care. They have bonded to the child. Their relationship with P. was in its early days, and much more fragile than the relationship they have with B.B.-S.

16.5 Stability of D.B.-S. and/or J.B.'s Plan

[216] The Society questions the stability of D.B.-S. and J.B.'s plan. They question the stability of the relationship, pointing to the argument of the August 4/5 weekend. They submit that D.B.-S. is impetuous, a poor planner. They say that D.B.-S.'s abstinence from alcohol is recent, and there is no guarantee that she will continue to abstain.

[217] Ms. Parker in her evidence described the relationship between D.B.-S. and J.B. as "good". The Society appears to focus on the argument that took place on the August 4/5 weekend in its submission that the relationship is in trouble. In speaking about the August 4/5 weekend, J.B. says, "We both acted immaturely that weekend. We have pledged never to do that again, and never to go to bed mad at each other." He says they have followed that rule. Both J.B. and D.B.-S. spoke in their evidence of their commitment to each other, a commitment which will continue even if B.B.-S. is not returned to them.

[218] I agree with J.B.'s characterization of their behaviour that weekend. Each of them was angry at the other, and was proud and stubborn. D.B.-S. partied, and drank to excess. J.B. sat in his car and fumed. However, I note that:

• there was no violence, or threat of violence, between D.B.-S. and J.B. and
• the children were well-cared for during the whole weekend, and not placed at risk at any time.

[219] Despite the absence of violence between D.B.-S. and J.B., if occasions like the Aug 4/5 weekend were a regular occurrence in their home, I would have a concern about a young child being in such a chaotic environment. But it appears that that weekend was a unique occurrence, and that the parties have taken steps to insure that it not be repeated.

[220] In arguing that D.B.-S. is a "poor planner", the Society points to her decision to have her grandmother, I.R., share their home, which put additional stress on the family. They point to the fact that late in 2012 D.B.-S. and J.B. had to go to a family shelter for a brief period; this occurred when they were leaving the townhouse on C[…] Avenue, and the agreement they had to rent new accommodation fell through. The decision to bring I.R. home is understandable, although perhaps not the best decision if B.B.-S.'s welfare alone is considered. However, I accept Ms. Corriveau's assessment that D.B.-S. coped well with the added challenge of accommodating her grandmother. The evidence is not clear as to whether there was any lack of care on D.B.-S. and J.B.'s part with respect to the housing problem, or whether it was just bad luck.

[221] In my view, D.B.-S. and J.B. have managed well in being able to maintain a stable residence on a low income.

[222] As for the short-lived period that D.B.-S. has been abstinent from alcohol, I agree that this is a concern. It is of sufficient concern that I would not place B.B.-S. with D.B.-S. alone, despite the good care which she has provided in the past. Luckily, however, B.B.-S. has another parent, J.B., who has no history of substance abuse, and who is very committed to B.B.-S. If the parents' hopes are not realized, and if D.B.-S. does not succeed in abstaining from alcohol, the evidence persuades me that J.B. and his family can and will provide stability for B.B.-S.

16.6 Continuity of Care

[223] Regardless of what plan is approved by the court, B.B.-S. will be changing homes. His current foster mother has not proposed to adopt him. He will either ultimately be placed in an adoptive home, or be returned to D.B.-S. and J.B.'s home. Placement with D.B.-S. and J.B. has the virtue of preserving some continuity of care. B.B.-S. has had contact with D.B.-S. and J.B. all his life.

17. Conclusion

[224] B.B.-S. has always received good care from D.B.-S. and J.B. He has a loving relationship with them, and with J.B.'s family. However, D.B.-S.'s consumption of alcohol constitutes a risk to B.B.-S.'s safety and stability. In the past, D.B.-S.'s alcohol consumption has resulted in circumstances which would be dangerous for a young child. D.B.-S.'s abstention from alcohol is recent. There is good reason to think that she will be successful in abstaining, but her success is not certain.

[225] Section 57(3) of the Act directs that I not make an order removing B.B.-S. from J.B. and D.B.-S.'s care unless I am satisfied that "less disruptive alternatives" would be inadequate to protect the child. In my view, a placement of B.B.-S. in J.B.'s legal care, subject to the Society supervision, would adequately protect B.B.-S. from any risk posed by D.B.-S. if she begins to consume alcohol again. As noted above, J.B. himself has no problem with abuse of substances. He has a strong commitment to B.B.-S., and a strong relationship with the child. His vigilance with respect to B.B.-S. will be reinforced by his sister J.W., who is in frequent contact with the family. He and D.B.-S. can count on support in caring for B.B.-S. from J.W. and her family.

[226] I aim to return B.B.-S. to his home in time to settle in before the beginning of the school year, but I am also conscious of the fact that he has had only brief periods of supervised access to his parents for the past 11 months. With that in mind, the order that I make is as follows:

ORDER

1. B.B.-S. shall continue in the Society wardship for two weeks, and then be placed in J.B.'s care for a period of 11 months, subject to Society supervision, subject to conditions set out below.

2. During the remaining period of the Society wardship, B.B.-S. shall have unsupervised access to his parents, including overnight access at their home, with a view to preparing him for the transition home.

3. J.B. and D.B.-S. shall report any change of contact information to the Society within 48 hours of the change.

4. J.B. and D.B.-S. shall allow the Society workers to make announced and unannounced visits to their home, and to meet with B.B.-S. in private.

5. D.B.-S. shall not consume alcohol of any type at any time, unless it is contained in a prescribed medication.

6. D.B.-S. shall not consume any non-medically prescribed drug.

7. D.B.-S. shall continue to participate in counselling and treatment to assist in her abstention from alcohol, and shall sign consents to allow the Society to obtain information about this counselling and treatment.

8. D.B.-S. shall participate in any alcohol or drug testing regime required by the Society, at the Society's expense, including hair testing and random urine testing, and shall sign consents so that test results shall be forwarded to the Society.

9. If J.B. becomes aware that D.B.-S. has consumed alcohol or a drug that is not medically-prescribed, or if tests results demonstrate such consumption following the date of this decision, then:

   • He shall report this fact to the Society immediately, and he shall consult with the Society as to what steps should be taken to insure B.B.-S.'s safety and stability.
   • He shall not permit D.B.-S. to care for B.B.-S. alone until authorized by the Society.

10. D.B.-S. and J.B. shall maintain close contact with J.W., and take advantage of any support offered by her. They shall sign consents to allow the Society to obtain information from her.

11. J.B. shall insure that D.B.-S. does not care for B.B.-S. while alone for periods in excess of 8 hours, and not on an overnight basis, unless previously authorized by the Society.

Released: July 24, 2013

Signed: Justice Ellen B. Murray