WARNING

The court directs that the following notice shall 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.

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

A person who contravenes subsection 45(8) 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 File and Parties

Court File No.: Toronto C52273/10

Date: 2013-07-05

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto Applicant

— And —

J.B. Respondent

Before: Justice Carole Curtis

Heard: 27-31 May 2013

Reasons for Judgment released: 5 July 2013

Counsel:

• Rachel Buhler for the applicant Catholic Children's Aid Society of Toronto
• William Sullivan for the respondent J.B.

CURTIS, J.

Index

1. Introduction
2. Background
3. Litigation History
   • a. The First Apprehension 8 October 2010
   • b. The Second Apprehension 1 March 2012
4. The Mother
   • a. The Mother's History
   • b. The Mother's Mental Health
   • c. The Mother's Support
5. Disposition
   • a. Plans Proposed at Trial
   • b. Disposition Legal Principles
   • c. The Child
   • d. The Mother's Strengths
   • e. The Mother's Plan
   • f. Changing Protection Concerns of C.C.A.S.
     • i. More Recent Protection Concerns
     • ii. Access History
   • g. Findings about the Protection Concerns
   • h. Crown Wardship
     • i. Crown Wardship Analysis
     • ii. A Supervision Order
     • iii. Examination of the Disposition Options
   • i. Access
     • i. Access Legal Principles
     • ii. The Mother's Access
     • iii. Access Analysis
6. Conclusion and Orders

1. Introduction

[1] This is the decision in the five day trial of a protection application regarding A., born […] 2010 (nearly three years old). Catholic Children's Aid Society of Toronto ("C.C.A.S.") is seeking crown wardship, no access, for the purposes of adoption. The mother opposes this, and wants A. returned to her care, subject to a supervision order.

[2] The trial dealt only with disposition. On the first day of the trial, 27 May 2013, the mother consented to a protection finding under s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, ("C.F.S.A.") (risk of physical harm). The C.C.A.S. position is that the child continues to be in need of protection, and that very little has changed for the mother in the nearly three years since A. was brought into care.

[3] The issues for determination are these:

a) Does the child continue to be in need of protection and, as a consequence, require a court order for his protection?

b) Is it in the child's best interests to be made a crown ward, or can some less intrusive protection order be made?

c) If the child is made a crown ward, is access between the child and the mother meaningful and beneficial to the child, and if so, would access impair the child's future opportunities for adoption?

2. Background

[4] J.B., the mother, was born […] 1975 and is 38 years old.

[5] On 28 June 2012, Brownstone, J. made an order that there is no male parent for A. under the C.F.S.A.

[6] The mother supports herself with income from the Ontario Disability Support Program, ("O.D.S.P."), due to her history of bipolar disorder, and depression.

[7] The mother has a history of criminal behaviour, prostitution and drug use, prior to her pregnancy, when she lived in Montreal (more details regarding this are provided later).

[8] The mother has another child, S., born […] 2002, who was removed from her care in about 2005, and was ultimately placed for adoption, unopposed by the mother, by the child protective services in Quebec.

[9] At the start of the trial, the child had been in care for twenty-nine months (about 85% of his life to date), a period that long exceeds the twelve month statutory time line permitted for a child of his age, set out in s. 70(1) of the C.F.S.A.

3. Litigation History

[10] The child has been apprehended twice (8 October 2010 and 1 March 2012), both times because the mother's mental health deteriorated into a situation of crisis, and both times requiring her involuntary hospitalization pursuant to a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7, as amended ("Form 1").

a. The First Apprehension 8 October 2010

[11] A. was first apprehended and placed in foster care on 8 October 2010, when he was three months old. The public health nurse contacted C.C.A.S. with concerns about the mother's mental health. The mother had been talking about drugs, incest, abuse, and that cameras had been watching her from the time she was young. She also talked about suicide and taking drugs to kill herself. That day, when she went to a medical clinic with the child there was a confrontation. The mother threatened the receptionist. The doctor expressed concerns for the safety of the mother, the baby, and those in the waiting area at the clinic, and the doctor called the police. When the police came, the mother became very agitated. She was taken into custody by the police, who took her to Toronto East General Hospital, where she was admitted under a Form 1. The child was apprehended and came into care.

[12] On admission to hospital, the mother was agitated and delusional. The diagnosis was a resolving acute psychotic episode, possibly in the context of a manic episode. The mother was hospitalized for a week and was released on 15 October 2010.

[13] At the time of the apprehension, the mother had been seeing Dr. Heyding, her family doctor. The mother began working with her current psychiatrist, Dr. Benes, around October 2010.

[14] Over the next several months, the mother continued to work with Dr. Benes, Centre Francophone and C.C.A.S. During access, the mother attended at the Early Years Centre. The access was increased. On 10 November 2011, the child was placed with the mother on an extended access visit. On 14 December 2011, Brownstone, J. made a temporary order placing the child with the mother subject to a supervision order. The conditions included a requirement that the child attend day-care.

b. The Second Apprehension 1 March 2012

[15] The child was apprehended a second time on 1 March 2012, when the child was 20 months old, and has remained in care since then. From the time of the child's return to the mother to the second apprehension, there were concerns identified by C.C.A.S. staff and by other professionals about the mother's parenting. In a two month period ending in February 2012, the mother missed four appointments with the child and family therapist at Centre Francophone. The mother told C.C.A.S. in February 2012 that she was not taking the child to daycare on a regular basis.

[16] On 1 March 2012, the mother took the child to a medical clinic as he was suffering from a full body rash. The mother was directed to take the child to the Hospital for Sick Children ("Sick Kids") and she did that day. Staff at Sick Kids called C.C.A.S. reporting concerns about the mother's supervision of the child in the waiting room. The mother told Sick Kids staff that she taken eight sleeping pills. Two C.C.A.S. workers attended at Sick Kids and met with the mother.

[17] The mother met with Dr. Benes at her office at Humber Regional Hospital on 1 March 2012, and Dr. Benes contacted C.C.A.S. to advise that she was very concerned about the mother's mood and she believed that the mother was delusional. A C.C.A.S. worker went to Dr. Benes' office to apprehend the child. In the presence of Dr. Benes, the mother assaulted the C.C.A.S. worker, punching her in the face, while the worker was holding the child. The mother does not remember assaulting the C.C.A.S. worker, but she is remorseful for it.

[18] The mother was detained under a Form 1 in Humber Regional Hospital for a mental health assessment. The diagnosis by Dr. Benes was a longstanding history of schizoaffective disorder and a past history of polysubstance dependence, decompensation due to discontinuation of medications, and an aggressive episode triggered by the apprehension of her child by C.C.A.S. The mother was discharged on 12 March 2012.

[19] On 5 March 2012, Brownstone, J. made a temporary order placing the child in C.C.A.S. care, with access at the C.C.A.S. discretion.

[20] When the child came into care in March 2012, the foster mother took him immediately to the doctor, as he was having a full-blown allergic reaction. The child was vomiting, he was covered from head to toe in large, red hives, he was sneezing, his eyes were swollen, he had severe diarrhea, and he had multiple scratches on his body as he was very itchy.

[21] On 11 January 2013, C.C.A.S. decided to amend the protection application to seek crown wardship without access. The mother was informed of this on 6 March 2013. The amended protection application was issued on 3 April 2013. The child had then been in care for about 27 months, long past the statutory time lines permitted.

4. The Mother

a. The Mother's History

[22] The mother is a unilingual Québécois francophone. The mother's English is improving but she is not comfortable in English yet. The previous family services worker and the current infant mental health counsellor from Centre Francophone speak French. There have been some issues around the mother speaking to the child in French, and some confusion around her use of French when correcting or disciplining the child. The mother's desire that the child be fluent in French is understandable. Two of the children residing in the foster home (the children of the foster mother, who are 24 and 13 years old) are fluent French speakers and the 13 year old speaks only in French to the child.

[23] The mother has had no contact for about 10 years with her family, who live in Quebec.

[24] The mother has a history of being physically abused by her father. She was involved with Quebec child protection services as a child and was in care and in a group home. She ran away from the group home as a teenager, and ended up on the street.

[25] The mother worked as a prostitute and used drugs from the age of 15 in Montreal and Quebec City. She used heroin, cocaine, crack, pot, hash, and mescaline, and described herself as an addict. About six years ago she decided to stop using drugs and to stop working as a prostitute. She was involved in therapy to help her end her addiction. She was in a methadone program in Montreal. She has not used any street drugs for six years.

[26] The mother has a substantial criminal record, with convictions for prostitution, the sale of drugs, assault, vehicle theft and fraud. Although she gave evidence about her criminal record, she did not produce her criminal record at the trial. She had 45 charges regarding prostitution, and 15 convictions, including jail time for these convictions. She served at least three different sentences for selling drugs (one year, six months and four months, separately). She served four months in jail for a vehicle theft conviction (and, was in jail for this as recently as 2010).

[27] The mother came from Montreal to Toronto in December 2009 when she was two months pregnant with A. She had then been clean for 18 months. The mother took a drug test in May 2010 that was negative. A. was tested for drugs at birth, and the results were negative.

[28] When the child was born, the mother needed assistance and education around child development and managing the child's daily needs. Although she was connecting with various community supports at that time, she was isolated. Also, she expressed concern about not having enough money. She was then working with public health, the family home visitor and her family doctor.

b. The Mother's Mental Health

[29] The mother's diagnosis is bipolar disorder and schizoaffective disorder. She was first diagnosed after A. was born. This appears to be the first time she has been treated for her mental health.

[30] The mother has been seeing her psychiatrist, Dr. Benes, since October 2010, and currently sees her once per month. She was consistent in visiting Dr. Benes, who was monitoring her medications. According to Dr. Benes, the mother was stable, calm and there were no signs of delusions. This is a successful and supportive relationship for the mother.

[31] There have been various changes in the mother's medications. Now she is taking sustena injections every three weeks, epival and seroquil.

[32] The mother's mental health condition appears to be stable. According to Dr. Benes, compliance with the recommended drug regime is, however, essential to her general well-being. It is also important that she continue to have psychotherapeutic support at the Centre Francophone.

[33] There were four letters by Dr. Benes filed as evidence with the court (two were written in 2013 and were current). The evidence of Dr. Benes was not contested in any way by C.C.A.S. Dr. Benes identified the following about the mother:

a) Factors which would affect the mother's parenting abilities negatively are:

i. Her very difficult background with lack of good role models;

ii. Her history of polysubstance dependence;

iii. Her mental illness, if unstable; and,

iv. These factors may affect her coping mechanisms and make her more vulnerable to stress.

b) Factors which would affect the mother's parenting abilities positively are:

i. Her very strong motivation to get well for her child's sake;

ii. Her willingness to engage in the various treatment modalities;

iii. Her acceptance of the help offered;

iv. She has good insight into her past difficulties;

v. She loves her child very much;

vi. She always talks about him in very positive terms; and,

vii. She feels much more ready to be a mother now than she was years ago when she had her daughter.

c) The mother continues to do well from a psychiatric point of view. Her mood has been stable, and her affect and mood are normal. She has not exhibited any episodes of hypomania, mania, or psychosis. Her speech and thought form are normal. She has not exhibited any delusional thinking in the last six months. She has been following recommendations with regard to treatment and her compliance has been good. She comes to the hospital for regular injections of her antipsychotic medication. She has good insight into her illness and is able to recognize her past grandiosity as a symptom of her illness. She is less likely to stop her medications than in previous years; and,

d) The mother has the support of Centre Francophone. She sees Catharine Desjardins, her psychotherapist and she feels very comfortable with her therapist. She sees Violetta Arce, her case manager.

c. The Mother's Support

[34] The mother has made good connections with several service providers, and has particularly successful relationships with some of them. She had a particularly successful relationship with the previous family services worker, and has a successful relationship with Lisa Ihnat, the infant mental health counsellor from Centre Francophone. These are the professionals who are currently or have previously worked with her:

a) Violetta Arce, the mental health outreach worker and case manager from Centre Francophone, has helped the mother with education and employment issues;

b) Kathleen Patterson, infant mental health counsellor from Centre Francophone;

c) Lisa Ihnat, infant mental health counsellor from Centre Francophone;

d) Dr. Benes, psychiatrist;

e) Dr. Heyding, family doctor; and,

f) The mother is in individual psychotherapy with Catherine Desjardins, a psychotherapist, at Centre Francophone, to help her with stress management.

[35] None of these people gave evidence, except Lisa Ihnat, and there were some letters from Dr. Benes produced.

[36] Lisa Ihnat gave evidence about her work with the mother and the progress she believes the mother has made. She has spent a great deal of time with the mother and the child and in various settings. This appears to be a very successful professional relationship for the mother. Ms. Ihnat said that in her first six months working with the mother that the mother struggled with knowing how to respond. It was the mother's view that discipline and limit-setting were not going to be beneficial to her relationship with the child. Ms. Ihnat observed that if the mother lacked confidence in a parenting approach, that the child responded by acting out (she had also observed almost all of the difficult behaviours by the child that are itemized below). She said she saw the mother become more confident with the child. She started to notice a big change for the mother around September 2012.

5. Disposition

a. Plans Proposed at Trial

[37] There were two plans proposed at the trial:

a) C.C.A.S.'s plan is that the child be made a crown ward without access for purposes of adoption; and,

b) The mother's plan is to have the child returned to her care with a supervision order.

b. Disposition Legal Principles

[38] Once a finding is made that the child is in need of protection, the court must determine what order for his care is in his best interests.

[39] Section 57(1) of the C.F.S.A. sets out the types of orders available to the court after a child is found to be in need of protection:

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

Supervision order

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

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).

[40] The decision process on a disposition hearing, following a finding that the children are in need of protection, has been set out recently by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

Determine whether the disposition that is in the child's best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship. (Section 57)

If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

[41] Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. The mother specifically did not take the position that C.C.A.S. had not done enough to assist her. C.C.A.S. has been involved with this mother since 19 July 2010, three days after the child's birth. C.C.A.S. liaised with public health, mental health care providers, and other resources used by the mother (particularly those at Centre Francophone). There were numerous and repeated efforts by C.C.A.S. to try to support the mother in caring for the child and in learning new skills to care for the child. Access was increased and the child was returned to the mother's care in November 2011. After the child returned to care in March 2012, access was increased again. The mother has had extensive and generous access to the child over a period of more than two and one-half years.

[42] Section 57(3) of the C.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the person who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For the reasons articulated below, returning the child to the mother, even with a supervision order, would not be adequate to protect the child in this case.

[43] Section 57(4) of the C.F.S.A. requires the court to look at community placements, including family members, before deciding to place a child in care. There are no alternative or family placements for the child. None were proposed.

[44] Section 57(1) is limited by section 70 of the C.F.S.A., which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the C.F.S.A. The mother did not ask the court to make such an order. The child has been in care for a total of about 29 months at trial. He is well beyond the prescribed time limits permitted for him to remain in foster care with no permanent placement. A further order for society wardship is not available for him, nor was one sought. The only options now available for the child are to return to his mother's care (or someone else's care) under a supervision order, or a crown wardship order.

[45] In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child's best interests are set out in s. 37(3) of the C.F.S.A.:

Best interests of child

37. (3) 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:

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

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

c) The child's cultural background.

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

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

f) 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.

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

h) 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.

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

j) The effects on the child of delay in the disposition of the case.

k) 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.

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

m) Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3).

[46] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997), 23 R.F.L. (4th) 79 (Ont. Ct. [Gen. Div., Div. Ct.]).

[47] The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety. Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup. Ct.).

[48] An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a crown ward, and it changes forever the life of the parent. No-one in the family is untouched by this order, and no-one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and important decision any court can make.

c. The Child

[49] A. is a bright and engaging child, very likeable, loving and affectionate. He is a very active boy who runs and climbs and touches everything. The child is a very busy, demanding child. He is attention-seeking and defiant, and can be challenging. He frequently breaks toys rather than playing with them. He is confident, independent, and charismatic. He is a lovely, energetic and beautiful boy.

[50] A. has allergies to wheat, gluten, barley, blueberries and peas. Some of the allergic reaction symptoms for this allergy are diarrhea, vomiting, stomach cramps, swelling.

[51] The child walks primarily on his tippy-toes and with his toes pointed inward. He is clumsy and stumbles and falls a lot.

[52] The child has many challenging behaviours: head banging, tantrums, yelling, kicking, hitting, biting, punching, spitting, pretending to pee on everyone in the room, throwing himself on the floor when frustrated, jumping on furniture, smearing feces, throwing toys, breaking toys, throwing things, drawing on the walls and the floor. The mother said the child was stubborn. The mother attributed his behaviour to being in care.

[53] When the child does not get his way, he takes off his shoes and socks and clothes (including in public, as in, on the bus).

[54] The child has little ability to self-regulate. When directed or redirected he throws himself on the ground, screams, kicks, and when this elicits no immediate response, he begins head-banging. He head-bangs on the floor, the wall, a chair or his crib. He strikes out to hit and kick and spit. He throws things constantly. He frequently has tantrums without an apparent cause. He constantly self-soothes by masturbating, and at times he aggressively pulls his penis.

[55] The child smears his feces. He takes off a dirty diaper and plays in it. He has been found covered in feces, in his hair, his ears, his eyelashes, arms, legs, and the crib. The mother described feces smearing as normal behaviour for kids.

[56] The child's behaviour is unpredictable around other small children, and he can be very aggressive around them. He has difficulty sharing. He grabs toys, pushes them down, slaps out at them, throws things at them, spits on them, and bites them.

[57] The child's behaviour started to escalate after the overnight visits started. From November 2012 to the present, these concerning behaviours have increased in intensity as well as frequency.

[58] There are some possible delays for the child around speech and language. His speech has been assessed by Erin Oaks Kids, and there was no recommendation for speech therapy services for him, although there were some exercises suggested. Despite these recommendations, the mother thinks the child speaks "properly" for his age, and she has not followed the recommendations for helping the child with his speech during her time with the child.

d. The Mother's Strengths

[59] The mother has overcome a lot in her life. She has made a dramatic change in her life since leaving Montreal. She is motivated. Her determination in the face of many challenges and a complicated history to achieve mental health wellness should be recognized.

[60] The mother attended access regularly. It was evident she cared a lot for the child. She demonstrated her love of and commitment to her child.

[61] The mother was open to receiving support. She worked co-operatively with C.C.A.S. and with other professionals. She has not turned away C.C.A.S. She has provided medical evidence on request regarding her mental health. She has always been open to C.C.A.S. speaking to her psychiatrist.

e. The Mother's Plan

[62] The mother lives on her own in a two bedroom subsidized apartment in Toronto. She plans to continue to support herself with income from O.D.S.P.

[63] The mother does not plan to live with anyone, and there is no-one else that is part of her plan for caring for the child. She plans to have the child attend daycare daily. Until that occurs, she plans to attend the Early Years Centre with the child. She plans to continue to work with the Centre Francophone, with both her personal counsellor Catharine Desjardins, and the infant mental health counsellor, Lisa Ihnat. She plans to continue to see her psychiatrist, Dr. Benes.

[64] She has no family in Ontario. Her family is in Quebec but she has not had any contact with them in ten years.

f. Changing Protection Concerns of C.C.A.S.

[65] Different protection concerns have been the focus of C.C.A.S. at different times. Initially following the first apprehension, C.C.A.S.' focus was on the mother's mental health, liaising with professionals in that context, and ensuring that the mother was well. After some ups and downs it appeared that her mental health was stable, and she appeared able to care for her son (then one and one half years old), and he was returned to her care. However, there was a further mental health crisis in March 2012, and he was apprehended again.

i. More Recent Protection Concerns

[66] As time passed and the mother continued to engage with her psychiatrist and other community supports, and to take medication, her mental health stabilized and C.C.A.S. was less concerned about this issue (although C.C.A.S. is not unconcerned about it). However, there remained persistent and serious concerns about her parenting, and about the child's emotional and physical reactions before, during and after access.

ii. Access History

[67] The mother has had extensive and generous access to the child over a period of about two and one-half years. The evidence about the access by the C.C.A.S. workers who observed visits was largely undisputed by the mother.

[68] After the initial apprehension in October 2010, the mother's access was twice a week for two hours each visit, fully supervised. There was evidence that she was appropriate with the child, would feed him, play with him, took an interest in his well-being, and was affectionate with the child. Due to her improving mental health and the positive nature of the observed visits, on 14 February 2011, access progressed to visits in her home, twice per week, for three hours each visit. By 7 April 2011, visits had progressed to two overnights per week as well.

[69] The mother suffered a manic episode on 22 April 2011 and access was suspended. Access was reinstated, fully supervised, at the C.C.A.S. offices on 4 May 2011. The access was moved into the community at the Centre Francophone. Access was continually increased. In August 2011, access included two three-hour visits plus one over-night per week, and the C.C.A.S. plan then was to reintegrate the child back to her care gradually, provided her mental health remained stable and she continued to meet the child's needs. By September 2011, there were two overnight visits per week.

[70] The mother's access was twice weekly for two hours, supervised, at the C.C.A.S. offices, from 29 March 2012 and 26 July 2012. By order of Brownstone, J. made 26 July 2012, the visits changed to twice per week, semi-supervised, for five hours each, following a contested motion for increased access brought by the mother.

[71] The mother attended the majority of the visits during this period. Generally, she followed the directions and suggestions made by the different supervising C.C.A.S. workers. She provided for his physical needs by feeding him his snacks, changing his diaper and responding in an age-appropriate manner to his needs. She engaged with him in an age-appropriate manner by playing with him, singing to him, monitoring his independent play and speaking to him in French. She is affectionate with the child and he returns her affection. She was affectionate with him, giving him cuddles, hugs and kisses. The child always responded to her affection and would seek her out. When she interacts or plays with the child her disposition is positive, she is smiling, laughing, appropriate. Overall the visits were positive and age-appropriate.

[72] In July 2012, the plan to pursue crown wardship was put on hold and C.C.A.S. was taking a fresh look at the situation. C.C.A.S. continued to observe the mother's access and continued to work with her towards a possible second reunification. C.C.A.S. continued to assess the access and continued to work with her for a considerable period of time. In November 2012, C.C.A.S. told her that the plan was still to proceed cautiously with access, and to assess on an on-going basis.

[73] The child has several food allergies. Until 15 November 2012, the foster mother was providing all his food, including meals, for the visits, and the mother was not responsible for ensuring that the child's meals met the requirements of his allergies. C.C.A.S. wanted to assess how she managed with preparing and purchasing food for the child. The C.C.A.S. worker discussed with her the foods the child could eat, and where these foods could be purchased. The foster mother provided her with a detailed list (in the communications book) of products that were safe for the child to eat. The foster mother stopped sending food to the visits. The mother said that she did not cook meals at home, but that she ate out at restaurants for all her meals, as she believed it was more expensive to prepare meals at home.

[74] The child often has allergic reactions following the visits with the mother, and has symptoms for several days after the visits.

[75] The mother has not consistently been able to prioritize appointments and ensure that she is available and present for access. She cancelled seven overnight visits in a seven month period, two of which had already been shortened at her request. She asked on several occasions that the child be picked up from her earlier than the scheduled time (including that she cancelled the overnight portion of a visit) as she had other appointments (including appointments with her doctor). She asked that the child be returned to the foster home early on several occasions, so that she would not be providing him with his meal. On one occasion, she simply was not present, with no prior notice, when the driver came with the child to her home.

g. Findings about the Protection Concerns

[76] These are the findings about the protection concerns that support the trial decision:

a) The mother does not adequately supervise the child, even in circumstances where the child's safety is an issue, both in the home and on busy streets;

b) The mother minimizes concerns regarding the child's behaviour (such as banging his head and smearing his feces), laughs at this behaviour, and does not respond to this behaviour when the child is in her care;

c) The mother is unable to implement basic expectations about behaviour management. She must be able to apply a consistent form of behaviour management to ensure that the child's developmental and overall safety needs are met. The child's need for consistent discipline to address his behaviour is not being met while he is in her care;

d) The mother exercises and demonstrates poor judgment and questionable decision-making. She has been involved in criminal activity a great deal in the past, has been charged and convicted many times, and has been sentenced to jail on numerous occasions. She has also recently been involved again in criminal activity (e.g., her recent involvement with the fraudulent cashing of a cheque). She does not understand the impact of her decisions and her actions on herself and the child;

e) The mother fails to refrain from feeding the child foods to which he is allergic, such that he continues to return to the foster home ill with symptoms, including vomiting in the car on the way back to the foster home, diarrhea, swollen eyes, itchy skin, rash on the face, a full body rash, and hives (these reactions sometimes occur for several days after);

f) During the trial, the mother demonstrated a lack of concern and a somewhat dismissive approach to the child's allergies, and the consequences for him when he eats foods he is allergic to. Despite ample evidence about the child's allergies and allergic reactions, at trial she wanted to hear from a doctor that the child actually had these allergies and she appeared to doubt the existence of the allergies;

g) The child has now been apprehended twice, both times under traumatic circumstances, and both times these events took place in the presence of the child;

h) The mother is not appropriately engaged with and attentive to the child during visits. She does not respond consistently to the child's cues;

i) The mother allows the child a lot of "screen time" (including TV, computer, DVDs, etc.) during visits, despite suggestions and comments about limiting this during visits;

j) The mother has a limited ability to provide even some areas of basic care (she is not providing diapers, wipes or clothing on the visits. The foster mother sends these along with the child, and the mother has written her notes asking for more). The child returned from access on both his second birthday and Christmas without any gifts from his mother;

k) The concerns about the mother's parenting have increased since the access moved to her home. The C.C.A.S. workers said that she managed much better with the child at the supervised visits at C.C.A.S. The child was acting out less then, and there was less lack of control;

l) There is little or no improvement in these areas, over a long period of time and with very generous access, despite the C.C.A.S. involvement and support, and the support of the services from Centre Francophone;

m) The mother has difficulty and is unable to manage the child's behaviour in public settings (i.e., public transit, resulting in her asking that the child be brought to her home for visits, so she did not have to travel with him on public transit);

n) The mother does not prioritize appointments and ensure that she is available and present for access;

o) The mother has no community supports, no family in Toronto or even Ontario, and has supports only from professionals;

p) The mother does not react in an interactive way with the child when a response is required, and she shows some degree of hesitance. She is not physically on top of the child's rambunctious nature. She reacts slowly to a child who moves very quickly; and,

q) Although the mother's mental health is presently stable, she had a serious decomposition only one year ago, and while under the care and treatment of her current psychiatrist Dr. Benes. Further, she has no safety plan in place should there be a relapse.

h. Crown Wardship

i. Crown Wardship Analysis

[77] These are the options available regarding disposition for A.:

a) An order for crown wardship no access of purposes of adoption;

b) An order for crown wardship with access to the mother; and,

c) An order placing the child in the care of the mother, with or without supervision.

ii. A Supervision Order

[78] The mother has proposed a supervision order with specific terms. In theory, her proposal contains appropriate terms of a supervision order, were one to be made. The terms proposed reflect the concerns of the C.C.A.S. and speak to the specific supports and services she would need. The terms proposed are not unrealistic and are not vague. She does not have a history of non-compliance with supervision orders, and therefore, she may comply with these terms.

[79] The child is young and vulnerable. The mother has made considerable personal gains, and has made important and impressive changes in her life. However, she has not made adequate gains in her parenting to be able to provide the child with the stability and consistency that he is entitled to.

[80] A supervision order does not adequately address the mother's inability to implement the teaching or recommendations that she receives. The evidence of Lisa Ihnat reinforces the conclusion that she has not made sufficient gains to adequately or safely parent the child.

iii. Examination of the Disposition Options

[81] The child is entitled to certainty, finality and to grow up in a safe and stable family, where he is valued and protected from harm. He will not have this if he is returned to the mother.

[82] It is not in the best interests of the child to delay his permanent placement any longer. He has been in care for 29 months, long past the statutory time permitted for staying in foster care.

[83] It is not in the child's best interests for the court to choose a disposition that will continue the litigation, leave the door open to the mother claiming a future return of the child, or risk that there might have to be another trial to determine the proper future disposition. The proper disposition for this child now is clear. The mother is not capable of caring for this child and he should not be returned to her care.

[84] It is not in the child's best interest, in these circumstances, for the court to choose a disposition that is in any way uncertain or not final. The only option that meets these criteria is crown wardship.

i. Access

i. Access Legal Principles

[85] The test for access to crown wards is set out in s. 59 (2.1) of the C.F.S.A.:

Access: Crown ward

(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

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

[86] The process for a decision regarding access, following a decision that the children should be made crown wards, was also set out recently by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

Determine whether the access would impair the child's future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

[87] Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children's Aid Society of Ottawa v. R.L., para. 57; Children's Aid Society of Niagara Region v. C. (J.), para. 22.

[88] There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children's Aid Society of Niagara Region v. C. (J.), para. 22.

[89] Once the decision is made in favour of crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165, p. 50; Children's Aid Society of Toronto v. D.P..

[90] Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the C.F.S.A. creates a presumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), [1998] 2 S.C.R. 534, para. 44.

[91] The onus is on the persons seeking access to a crown ward to prove on a balance of probabilities that:

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

b) The relationship between the person and the child is beneficial to the child; and,

c) Access will not impair the child's future opportunities for a permanent or stable placement.

[92] The parent has the onus of establishing all three portions of the test in section 59 (2.1) of the C.F.S.A. This is a very difficult test for the parent to meet: Children's Aid Society of Niagara Region v. C. (J.).

[93] The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., para. 45-47:

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

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

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

[94] The test focuses on the child's, and not the parent's, experience of the relationship in the assessment of whether it is beneficial and meaningful: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.

[95] The decision about access to a crown ward is not to be made lightly. The court must still be satisfied that the relationship is beneficial and meaningful for the child. An access order cannot be merely a consolation prize for disappointed adults: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 440, para. 215.

[96] Even where the access visits are generally enjoyable for the child, it is open to the court to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family: Children's Aid Society of Toronto v. M.A..

[97] An access order for a crown ward no longer prevents an adoption order being made. Until recent amendments to the C.F.S.A., a society was unable to place a crown ward for adoption if there was an outstanding access order. Crown wards with access were not eligible for adoption. Section 141.1 has now been amended to allow societies to place crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption: Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, para 145.

[98] Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption". The operative words of s. 59(2.1)(b) — "will not impair" — place an onus on the parents to satisfy the court that access to the crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The onus on parents remains high: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, para. 419-421, 427, and Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, para 145.

[99] Section 59(2.1) speaks of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while her mother learns how to be a responsible parent: Huron-Perth Children's Aid Society v. J.F. [2012] O.J. No. 5215, para. 77, 80.

ii. The Mother's Access

[100] It is clear that the mother loves the child. It appears, as well, that the child loves her. Undoubtedly there were a number of successful access visits. And it is certainly open to the court to conclude that the child enjoyed a number of these visits. However, none of these is sufficient to satisfy the test of "beneficial and meaningful".

[101] The mother's access to A. is not beneficial or meaningful from the child's perspective. While the access may be enjoyable, there is insufficient evidence that there is a bond between them that is important to the child. The access and the relationship are not significantly advantageous to the child.

iii. Access Analysis

[102] The mother has failed to meet the first prong of the test for access (that the access is beneficial and meaningful to the child), and that failure would be sufficient to dismiss her claim for access to the child.

[103] Even if the access were beneficial and meaningful to the child, the court must be satisfied that the mother has met the second prong of the test, that access will not impair the child's future opportunities for a permanent placement.

[104] The mother does not dispute that the child is adoptable, even taking into account the difficult issues regarding the child's behaviour. He is in a foster placement with foster parents who are not presenting a plan for his adoption. He will need to be moved to another placement following this trial. Given his age, and his adoptability, the mother cannot establish that access would not impede a permanent adoption plan for him.

[105] The mother has not met the onus on her to rebut the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A. And the mother has not meet the onus regarding both prongs of the test in s. 59(2.1) C.F.S.A. regarding access to the child.

[106] The mother's claim for access to the child is dismissed. There shall be an order for no access to the child.

6. Conclusion and Orders

[107] These are the orders resulting from this trial:

• A. shall be a crown ward; and,

• There will be no access to A., in order that he is available for adoption.

Released: 5 July 2013

Justice Carole Curtis