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 Information

Court File No.: Toronto C52823/10

Date: 2013-11-28

Ontario Court of Justice

Between:

CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— AND —

S.A. and O.E.A.

Respondents

Before: Justice Curtis

Heard on: 23, 24, 26, 30 September 2013

Reasons for Judgment released on: 28 November 2013

Counsel

Lynda Ross . . . . . . . . . for the applicant Children's Aid Society of Toronto

Lawrence Geffen . . . . . . . . . . for the respondent mother S.A.

No-one appearing . . . for the respondent father O.E.A.

CURTIS, J.:

INDEX

1. Over-view
2. Background
3. Litigation History
4. The Mother
   • a. The Mother's Mental Health
   • b. Services Accessed by the Mother
   • c. The Mother's Support Network
5. Evidence about the Children
6. Disposition
   • a. Plans Proposed at Trial
   • b. Alternative Plans for the Care of the Children
   • c. Disposition Legal Principles
   • d. The Mother's Access History
   • e. Analysis re Disposition
   • f. Why Not a Supervision Order?
7. Access
   • a. Access Legal Principles
   • b. Access Analysis
8. Orders

Over-view

[1] This is the decision in the four day trial of a protection application regarding the children O.S. and M.O. (5 and 4 years old). The Children's Aid Society of Toronto ("C.A.S.T.") is seeking crown wardship, no access, for the purposes of adoption. The mother opposes this, and wants the children returned to her care, subject to a supervision order.

[2] The trial dealt only with disposition. On a summary judgment motion, on 4 July 2013, Sherr, J. made the following orders (among others):

a) The necessary statutory findings for the children pursuant to s. 47(2) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended ("C.F.S.A.");

b) The children are found to be in need of protection pursuant to ss. 37 (2) (b), (g), and (i) of the C.F.S.A.;

c) There is no triable issue with respect to the father's alternate plan. Only the mother's plan should be considered at trial;

d) The balance of the society's summary judgment motion is dismissed;

e) Findings of fact are made as set out in paragraphs 8-24, 41-42, 55, 62 and 76-78 of the summary judgment motion decision; and,

f) Subject to the direction of the trial judge, the issues for trial are those identified in paragraph 72 of the summary judgment motion decision.

[3] The additional issues for determination are these:

a) Do the children continue to be in need of protection and, as a consequence, require a court order for their protection?

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

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

Background

[4] S.A. is the mother ("the mother"). She was born in 1977 and is 36 years old. O.E.A. is the father ("the father"). He was born in 1977 and is 36 years old. The parents are Nigerian. They were married in 2005 in Nigeria and came to Canada in February 2009.

[5] The parents have two children:

• O.S. ("O.S."), born in 2008, in Nigeria (5½ years old); and,
• M.O. ("M.O."), born in 2009, in Canada (4½ years old).

[6] The mother receives benefits from the Ontario Disability Support Program ("O.D.S.P."), due to her status as HIV positive, a diagnosis she first learned of in 1993. She is undocumented in Canada, and her current immigration status is unresolved, as she is awaiting a hearing on the appeal on her refugee claim, which was denied.

[7] The parents are not separated, although they live far apart. The father is currently living in Spain. He wants to come to Canada, but is unable to get a visa. The mother talks to the father every day.

Litigation History

[8] These are the facts as found by Sherr, J. in the decision on the motion for summary judgment, and as agreed at the trial in a signed Agreed Statement of Facts.

[9] The children were in care from apprehension from December 2010 until August 2011.

[10] The children were apprehended from the care of the mother for the first time on 26 December 2010. The reason for the apprehension was that the mother was having a mental health breakdown which included a psychotic episode that required hospitalization.

[11] On 31 December 2010, Zuker, J. made a temporary order placing the children in the care of C.A.S.T., with access to the mother in their discretion.

[12] The mother enlisted a number of services and showed significant improvement in her mental health in the ensuing months. She regularly saw a psychiatrist and was compliant with her medication. She worked well with a mental health worker, a public health nurse and a counsellor. Her access to the children was gradually increased until they were returned to her care.

[13] Prior to the children being placed in the care of the mother and subject to a supervision order made by Brownstone, J. on 2 August 2011, the children were with the mother on an extended visit from 30 May 2011.

[14] When the children were placed with the mother on an extended visit on 30 May 2011, she was able to demonstrate progress by securing daycare for the children and ensuring they attended regularly, continuing to work with the public health nurse, the Babies Best Start Program and her mental health worker, and by attending school to help gain computer skills (to make her more employable).

[15] On 2 August 2011, Brownstone, J. found the children to be in need of protection pursuant to clauses 37 (2) (b) and (i) of the C.F.S.A. and placed them in the care of the mother, subject to society supervision, for a period of six months.

[16] The mother maintained positive mental health and the supervision order was terminated, on consent, on 24 January 2012. C.A.S.T. continued to work with the mother on a voluntary basis.

[17] C.A.S.T. provided voluntary services until the children were apprehended again on 24 April 2012.

[18] The children were apprehended from the mother's care for the second time on 24 April 2012 following another mental health breakdown. The mother's landlord contacted the police that day because the mother was throwing things off of her balcony, including a television. The police forced their way into the apartment and found the mother sitting and chanting with a rosary in her hands, with loud music playing. The children were sleeping at this time. The mother was apprehended under the Mental Health Act, R.S.O. 1990, c. M.7, as amended ("Mental Health Act"), and taken to the psychiatric unit of the hospital.

[19] On 30 April 2012, Zuker, J. made an order placing the children in the temporary care of C.A.S.T., with access in their discretion.

[20] The children have been in the same foster home since coming into care this second time.

[21] The mother remained hospitalized until 9 May 2012. The mother's discharge report from Scarborough General Hospital diagnosed her with schizophrenia.

[22] The mother subsequently struggled to maintain her mental health. She was having auditory hallucinations. The society received community reports about mental health concerns about the mother. At various times between May and November of 2012, she was observed by society staff to be acting in a bizarre manner at access visits. At times, she would not respond to the children at visits. For instance, on 1 November 2012, she ate throughout the entire visit and did not play with the children, even when asked. She told the society worker that she only eats when she sees the children and that she can't eat at her house. On 8 November 2012, the mother showed the children a picture of Justin Bieber (a popular singer) and told them that he was their brother. She propped the picture against the wall next to them and stared at it while she ate.

[23] The mother did not see her psychiatrist from 4 July 2012 to 10 October 2012.

[24] On 20 November 2012, the mother simply did not show up for her scheduled access visit with the children. The C.A.S.T. worker reported the mother missing as she could not locate her.

[25] The mother had several contacts with the police in November of 2012. On 24 November 2012, she was apprehended again under the Mental Health Act and admitted to the hospital's psychiatric unit. The mother remained hospitalized from 24 November 2012 until 3 December 2012.

[26] The mother was apprehended again on 18 December 2012 and admitted to the hospital under the Mental Health Act. The mother had been observed that day on an overpass walking into traffic and kicking at cars. She remained in the hospital until 10 January 2013.

[27] She was apprehended again on 11 January 2013 for causing a disturbance at a grocery store and was transported by the police to the hospital.

[28] The mother did not exercise access from November of 2012 until 4 February 2013.

[29] The mother resumed regular supervised access with the children on 4 February 2013. Once access restarted, the mother has attended access regularly and is always on time.

[30] The mother was proactive in seeking services upon being released from the hospital. She was followed by a psychiatrist and is now involved with the Canadian Mental Health Association Assertive Community Team (ACT) Program. She is followed by a psychiatrist and a mental health worker. The mother is also volunteering with the Black Coalition for AIDS Prevention three days each week.

[31] The mother's mental health has been stable since January of 2013 and it appears that she has been compliant with her medication.

[32] The mother attends punctually for all of her access visits. They presently take place three times each week and are semi-supervised at the society offices.

[33] The children have remained in care since the second apprehension. C.A.S.T. brought a summary judgment motion on 2 July 2013. Sherr, J. released his decision on 4 July 2013, and he found the children in need of protection pursuant to ss. 37(2) (b), (g), and (i) of the C.F.S.A.

[34] The evidence clearly establishes that the children were in need of protection at the time of the apprehension under all three clauses of the C.F.S.A. They were at risk of both physical and emotional harm. Further, the mother was not available to parent the children when she was hospitalized.

[35] The evidence establishes that the mother had severe mental health issues from 24 April 2012 (the date of the apprehension of the children) until at least 11 January 2013. She was hospitalized in psychiatric units under the Mental Health Act on multiple occasions during this period. She was unable to take care of herself, let alone two young and vulnerable children. The mother was not in control of her behaviour and was not able to look after the children's emotional, physical and developmental needs or provide them with a secure or safe environment. There was a risk that she might inadvertently physically harm or neglect them in her deteriorated condition. It would undoubtedly be frightening for the children to see their mother in this condition and this placed them at risk of emotional harm.

[36] The major historical protection concern about the mother has been the state of her mental health. The society acknowledged that the mother's mental health has significantly improved since January of 2013. This is evidenced by the absence of mental health concerns about the mother at visits, the fact that she is able to come to every access visit on time and is organized for the visits, and has been able to maintain a volunteer position three times a week.

[37] There are other factors that support the mother's plan to have the children returned to her care, including the following:

a) She is highly motivated to parent the children;

b) She has shown a high level of responsibility and organization attending on every visit and arriving on time. This indicates to the court that, if well, she would be able to organize the children's lives and get them to necessary appointments;

c) The mother provided access observation notes setting out positive visits with the children. The society evidence is that she comes to visits prepared with a wide assortment of food choices and treat bags for the children to take to the foster home. She also prepares for activities, bringing paint and paper, movies and toys. She has been observed to be affectionate with the children. She clearly loves them very much. The children have also been observed to be affectionate with her;

d) The mother is very open to service suggestions;

e) The mother is highly cooperative with the society. One of the society workers deposed that when mentally well, the mother presents as one of the most polite and agreeable clients she has worked with. This makes her a better candidate for a supervision order; and,

f) The mother received a positive letter from the organization she volunteers for. They wrote that the mother had demonstrated both dependability and commitment and she has gone above and beyond her duties as a volunteer.

[38] Sherr, J. also found that there was no triable issue with respect to the father's alternate plan and thus only the mother's plan required a trial.

[39] The father has no relationship with the children. He has never met the younger child and has been out of the older child's life for four years.

[40] The evidence indicates that when the father originally expressed a desire to parent the children, the society arranged for International Social Services to assess his plan. However, the father never followed through with this assessment. He subsequently advised the society worker that he could not plan for the children as he didn't have legal status in Spain and that he does not have accommodation for the children. He stated that he wanted to come to Canada but could not advise the worker when this might happen.

[41] The father also expressed to the society at one time that he would want to take the children with him and live in Nigeria. This is despite the fact that he told the worker he was "on the run from people in Nigeria" and that he and the mother had made refugee claims claiming they were in danger if they returned to Nigeria.

[42] At trial, the children had been in care 17 months cumulatively since their first apprehension on 26 December 2010.

The Mother

[43] The family services worker has been working with the mother and children since January 2011, for more than two years, and is very knowledgeable about this family. The mother was described by this worker as co-operative. The family services worker said she had a very good relationship with the mother, and that the mother always worked well with her and with the rest of the service team.

[44] Several witnesses described the mother as religiously pre-occupied, particularly when she is unwell.

The Mother's Mental Health

[45] The mother's mental health and how she manages it is the central issue in this trial.

[46] The mother says that she did not know she had schizophrenia until the diagnosis here (in Canada) in 2010. She says she did not have schizophrenia in Nigeria, and that she was never hospitalized there.

Services Accessed by the Mother

[47] The evidence of the C.A.S.T. is that the mother is very resourceful and very open to suggestions made to her for services. She was able to get well-connected to community services and clinical services in the community on her own initiative. She has, at various times, been connected to or involved with the following:

a) a mental health worker;

b) the public health nurse;

c) her own psychiatrist Dr. Siu;

d) a counsellor from Teresa Group, an organisation that helps families affected by HIV, where the mother has been attending counselling for two years;

e) the Early Years Daycare Centre;

f) the Babies Best Start Program; and,

g) a social worker at Scarborough General Hospital, Short Term Case Management Unit, providing mental health supportive services.

The Mother's Support Network

[48] Several professionals who have worked with the mother, either in the past or continuing into the present, gave evidence about their contact with and relationship with the mother. She has a variety of supports in place, and has professional contacts that she sees on a regular basis. All of the following professionals gave evidence: Mary Ndung'u, Cindy Jolly, Joanne Fracassi, Marie-France Lalancette, and Dr. Anne Ferguson.

[49] Mary Ndung'u is a support worker for African Partnership against AIDS ("A.P.A.A.") and has known the mother for 3 years. She has provided the mother with informal counselling and one-on-one support. She has known the mother has schizophrenia since the fall of 2012, and has seen the mother when she is well and when she is not well. The mother attends with her once per month for counselling and once per month for a woman's support group called Women's Skills Building. Ms. Ndung'u offered to attend at the mother's home one to two times per week (for an hour per visit) if the children are returned to her, and to speak to her on the telephone on a regular basis.

[50] Cindy Jolly works for Black Coalition for AIDS Prevention ("Black CAP") as a co-facilitator for a group of members who are new to Canada. She also acts as a peer mentor to members of the group, including the mother, in a long term service group for individuals who have lived with HIV for more than 10 years. She has known the mother since 2009. She learned that the mother was diagnosed with schizophrenia only one week before she gave evidence at the trial. She gave evidence that the mother has never told her that she has a mental illness with a diagnosis of schizophrenia. If the children are returned to the mother, she is prepared to call the mother on a regular basis, and to attend at the home at least twice per week for up to two hours, as a friend and as a support person to the mother, to see how she is doing and how her mental health appears to be, to make sure the mother is taking her medication and to make sure the children are doing well and are being appropriately cared for by the mother. If the mother was unable to care for her children, Black CAP can provide respite care (by qualified and paid child care providers) for a short period of time, up to a maximum of about one week, beyond which Black CAP would notify C.A.S.T.

[51] Joanne Fracassi, a mental health social worker with the Scarborough Hospital Short Term Case Management Unit provided mental health supportive services to the mother from 5 January 2011 to 12 October 2012, when she closed her case with a transfer to long-term mental health services. As she worked with the mother for almost two years, she was providing services to the mother while the mother was well, and during the times when the mother was unwell, and described the mother during those times. She said that schizophrenics will hear voices on an on-going basis, but that it does not jeopardize their safety.

[52] Marie-France Lalancette is a vocational specialist and the mother's primary case manager with ACT (Assertive Community Treatment), a program of the Canadian Mental Health Association that has been supporting the mother since April 2013. ACT provides service to adults living in Toronto with mental health problems that are seriously affecting their lives. A team provides co-ordinated access to mental health case management and assertive community treatment. The mother is visited twice weekly by their workers and they call her twice per week to confirm the visits. They assess her mental health status and ensure that she follows her medication regimen. The service team meets at least weekly about their cases.

[53] Dr. Anne Ferguson, the psychiatrist with ACT, also gave evidence. The mother sees Dr. Ferguson about every six to eight weeks. Dr. Ferguson's evidence was that the mother has been stable recently, but she has a history of non-compliance with her medication regime. She said that it is important that the mother continue to be medication complaint, but it does not ensure or even predict there will not be a relapse. Dr. Ferguson's evidence was that the data is that even among those patients who are medication compliant, 50-70% may relapse. Dr. Ferguson also confirmed the possible negative impact of stress on a patient's well-being.

[54] These women were all impressive, as witnesses, and in their qualifications, their interest in the mother, and their commitment to helping her. The mother is lucky to have these women in her life. Although several of the women described the mother as a friend, they all have professional relationships with her.

[55] The mother has very little by way of family or friends supporting her and is quite isolated. The mother has no family in Toronto. She named no friends who would be able to assist her, other than the two women with whom she has professional relationships (Mary Ndung'u and Cindy Jolly).

Evidence about the Children

[56] The foster mother gave evidence about the children. When the children came to the current foster mother in July 2012 (they were then 4½ and 3½ years old), neither of the children could eat with cutlery, and they refused all food except French fries. They had no table manners and the concept of eating at a table was foreign to them.

[57] When first in care O.S. (now 5½ years old) was extremely stubborn, willful, demanding and very sad. She was physically aggressive towards her younger sister, she fought with the neighbour's child and she pushed adults. She did not want to listen, she swore and she screamed. She answered back, and was confrontational. Initially her behaviour was so out of control that the foster mother was concerned that the school could not manage her behaviour in a regular class. She displayed challenging behaviours, such as defiance and temper tantrums, when she did not get her way at her foster home, at school and during access. She tried to control and to speak for her younger sister. She can be verbally aggressive towards her mother. There is intense sibling rivalry between the girls. These behaviours were the most challenging up to the fall of 2012. There has been recent improvement but there continues to be challenges for her and the adults who work with her. She requires constant supervision and monitoring to ensure that her sibling rivalry with M.O. remains within reasonable limits.

[58] M.O. (4½ years old) mimics her sister's behaviour. She was not toilet trained when she came to the current foster mother in July 2012, and would take her pants off and urinate in the driveway. She ate any scrap of food from the floor, garbage or the street when they were out walking. She chewed on paper and crayons. She broke toys with her mouth by biting the toys and covering them with saliva. She has learned that in order to get her mother's attention, she needs to whine constantly. She has learned that in order to get what she wants, it is necessary to wail or cry. There is significant sibling rivalry present during access and in the foster home.

[59] These behaviours in very young children (they were 4 and 3 years old at apprehension) are very concerning and can be precursors for more substantial issues as they get older. The children have demonstrated that when they are not in a consistent routine and a very structured environment, they can develop behaviours which present a challenge to any parent, much less a parent who struggles with mental health issues. They need an environment with a parent who can consistently and reliably attend to their emotional needs, adequately read their cues, and guide and redirect their behaviour.

Disposition

Plans Proposed at Trial

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

a) C.A.S.T.'s plan is that the child be made crown wards without access for purposes of adoption; and,

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

Alternative Plans for the Care of the Children

[61] 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. No alternative plans were proposed at the motion for summary judgment. At the trial there were no alternative plans, from family or community, for the care of the children. There was evidence that various persons had been proposed and investigated by C.A.S.T.. None could commit to full-time care for the two children, and any support they could offer was very limited.

[62] The mother maintains a strong belief that she is able to care for the children. She has been steadfast in her view that the children cannot and must not be cared for by anyone else and that she would never agree to the children being adopted or raised by someone else.

Disposition Legal Principles

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

[64] 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:

Order where child 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 or an order under section 57.1, 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).

[65] The decision process on a disposition hearing, following a finding that the child is in need of protection, has been set out 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:

1. 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);

2. 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.

[66] 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.

[67] The children are both under six years old and have been in care for more than one year. An order for society wardship is not available for them, unless the court makes an order extending the time period allowable under s. 70 C.F.S.A. The mother has asked the court to make this order. The court can only make such an order if it is in the best interests of children to do so. These children need certainty, finality and permanence. It is not in the best interests of these children for their status to continue to be unresolved.

[68] 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 persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For reasons articulated below, returning the children to the mother, even with a supervision order, would not be adequate to protect the children in this case and would not be safe.

[69] Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the children before intervention. C.A.S.T. has been involved with this family for nearly three years. There have already been supervision orders. The mother has been co-operative and has connected herself to community resources and to mental health resources. She has made some progress in stabilizing her mental health, at least for several months before the trial. She has participated in the Therapeutic Access Program ("T.A.P."), and has received many hours of teaching and training about parenting. But she has not made progress in managing the children's behaviours, not even in the controlled and limited supervised access environment.

[70] 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

(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:

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. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3) .

[71] 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.]).

[72] In determining the best interests of the child, the court must assess the degree to which the risk concerns that existed at the time of the apprehension still exist today. This must be examined from the child's perspective: Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

[73] 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 or her 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.).

[74] 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.

The Mother's Access History

[75] Aspects of the mother's access, when she has been well, have been described in positive terms. She arrives on time and brings a variety of food and a variety of activities for the children. She has prepared treat bags for the girls to take back to the foster home. She is affectionate with the children, and they are affectionate with her. The girls look forward to visits with their mother.

[76] However, the visits were described as very chaotic. The children are crying at the visits to get the mother's attention. The mother does not adequately supervise the children, and does not respond appropriately to the children's level of upset or inappropriate behaviour. She has a difficult time managing the children's behaviour. She often appears to be at a loss and overwhelmed with how to manage the children's negative behaviours. When challenging behaviours occur, she ignores it, tells the girls to stop, ineffectively questions them as to why they are behaving in such a manner, or offers affection (such as hugs and kisses). However, the behaviours continue. She has struggled to read the children's cues and to intervene or prevent the negative behaviour before it became out of control.

[77] The mother is not able to provide them with structure and stability during the visits. She has a difficult time attending to the children's emotional needs. Often the children cry for no apparent reasons and she gives in to their demands and fails to provide them with structure. She is not able to talk to the children when they are experiencing a tantrum. The inconsistency she shows the children in discipline causes them confusion and encourages negative behaviour.

[78] In visits this year, the mother was spoon-feeding both children (now 5½ and 4½ years old). She is unable or unwilling to have the children eat their dinner before they have their dessert at the visits.

[79] During a very recent visit (28 August 2013) the mother was cleaning M.O.'s toenails with an open razor. Then the mother cleaned her own toenails for about 20 minutes with an open razor during the visit. This is concerning, given the mother's HIV positive status.

[80] The mother has physically pulled on the children by the arm during access in ways that might hurt the children. She is not able to take suggestions made to her and apply them to the visits. She often appears angry and frustrated with the children. She is unable to hear about concerns but rather denies the concerns or makes excuses.

[81] In May 2013 the mother was referred to the T.A.P., based on the behaviours demonstrated by the children in access and the mother's ability to attend to them. She participated in the program from 17 July 2013, for 9 weeks of access, totaling approximately 65 hours of parenting and teaching time.

[82] These are the concerns about the mother's parenting identified and observed by the workers at the T.A.P:

a) the mother was unable to consistently set clear, safe limits with the children and attend to their behaviours;

b) she struggled to set limits for the children. It was difficult for her to supervise and discipline them safely;

c) she sometimes pulled the girls by the arm to get them to comply;

d) even with support she was unable to redirect inappropriate and rude behaviour, nor set consistent limits for the children;

e) she struggled to recognize and respond to the children's emotions and was unable to demonstrate that she was able to consistently address the children's emotional needs;

f) she struggled to help the children when they became stressed;

g) she had a difficult time attending to the girls' emotional outbursts and needs;

h) she was unable to intervene when the girls were fighting with each other;

i) she was unable to model for the children how to manage feelings, by keeping her own feelings in check and using a calm voice; and,

j) she acknowledged suggestions from the supervisors, but did not implement the suggested techniques. The T.A.P. workers who gave evidence did not observe significant improvements in the mother's parenting during the visits, and said that she did not seem to benefit from the teaching that was offered to her while she was involved with T.A.P.

Analysis re Disposition

[83] In the summary judgment decision Sherr, J. set out these questions about the mother's mental health that are the foundation for the issue the court must consider:

a) Has the mother made sufficient mental health and personal gains since her last hospitalization in January of 2013 to adequately parent the children?

b) Does the mother have sufficient insight into her mental illness to adequately reduce this risk factor?

c) Does the mother have adequate personal and professional supports to reduce the risks of mental health relapses?

d) Does the mother have an adequate safety plan in place to protect the children if she suffers a mental health relapse?

e) Does the mother have the necessary parenting skill to adequately meet the children's mental, developmental and emotional needs and to ensure their safety?

[84] The mother has a serious mental illness. She had five involuntary hospitalizations in about two years (26 December 2010; 24 April 2012; 24 November 2012; 18 December 2012; 11 January 2013). On each occasion, the police were called to respond to her behaviour, which, at times was dangerous and frightening, and to take her to the hospital. The mother was not in control of her behaviour. She was unable to take care of herself, and she was unable to take care of her children. Her children are very young and cannot take care of themselves. Her behaviour was potentially harmful to herself, to others and even potentially harmful to her children, whom she loves.

[85] Since the last hospitalization in January 2013 (only several months before the trial) the mother has focused on getting well. And she has had some success. The family services worker described her as in good spirits, coherent, and that she did not discuss hearing any voices, nor did she exhibit any behaviours that gave cause for alarm or concern. She appears to be compliant with the medication plan she has from the psychiatrist. Her mental health has been stable since her last hospitalization in January 2013.

[86] A person with a mental illness cannot necessarily control if and when they get sick. There are things they can do to manage their illness, one of which is regular contact with a psychiatrist and to be compliant with the treatment plan. The mother appears to be doing those things at present.

[87] Several witnesses said that when the mother relapses, it happens very fast, and that the symptoms come on very quickly. Dr. Ferguson's evidence was that the mother can deteriorate quite quickly.

[88] The mother does not have good insight with respect to her diagnosis of schizophrenia. She has unrealistic expectations about her condition and more significantly, she lacks insight into her condition. She said repeatedly in her evidence that she will not get sick again. She said that her breakdowns were caused by thinking too much, so she no longer does that (and therefore she believes she will not get sick again). She said that she is not hearing voices now, she is taking her medication and she is stable, and therefore she can have her children returned to her care. She was completely unable to acknowledge the potential for her to become ill again. She even promised several times not to get sick again. She appears to believe that schizophrenia is something that happened to her in the past (like a broken arm, or appendicitis) and that it will not happen to her again. She was asked if she understood that she still has schizophrenia, and she did not give a clear answer that she does.

[89] The mother was not concerned that the return to her care of her two young and active children might be stressful for her and might have consequences for her mental health. Dr. Ferguson gave evidence that she was concerned about this, and was concerned that the mother lacked insight regarding the job that it is to raise children. The psychiatrist felt that this was not fully appreciated by the mother.

[90] It is concerning that the mother says that she will not get ill again. If she does not accept and understand that her condition is a lifelong one that requires vigilance and care, she is at risk of not taking her illness seriously enough to manage it successfully. If she does not believe she can become ill again, what is her motivation for staying compliant with the medication regime of her treatment plan? How can the court be confident that she will continue to take care of herself so that she does not become ill?

[91] The mother is a person with schizophrenia who wants to care for small children, but who has no plans in place to manage her illness and her children if she has a relapse and another episode which results in her hospitalization, and an inability to care for her children. She does not accept or believe that she will become ill again. She has no safety plan in place, for example, regarding how she would recognize her symptoms, who she would call, and what she would do with her children to ensure that they are not at risk. None of the witnesses, including the mother's support persons, gave any evidence about a supportive or back-up plan for the mother should she become ill again or be hospitalized again. The symptoms of the mother's past illness incidents are serious, and even dramatic, and place the children at significant risk of harm and neglect.

[92] Neither the mother's Plan of Care nor the mother's evidence specifically or adequately addressed the protection concerns raised. The mother's evidence about her plan for the children was sparse. There were few details of her plan of care for the children.

[93] The mother does not acknowledge that she requires a high level of support to be able to parent the children. The mother lacks insight into her situation, which suggests she is unlikely to be able to change and that she is unable to be able to reduce the risk to her child.

[94] The mother's current plan is not a plan with an air of reality, given her history and the level of support required. The plan is not a viable, responsible or suitable plan. This plan is not realistic.

[95] The mother has no family or friends supporting her and is quite isolated. There was no evidence that there was anyone who would assist the mother in caring for the children if she became ill again, other than the evidence from two of the professionals who work with the mother, both of whom were limited and very clear about what they could and could not offer the mother.

[96] Even without concerns about the mother's mental illness and her management of the illness, there are serious concerns about the mother's parenting abilities. She has had the opportunity for teaching through the T.A.P. and the evidence of the workers from the program, and from others who have supervised her access is that she has not been able to benefit from that and implement strategies learned into her parenting. She continues to be unable to manage the girls' behaviours at access. And her children are difficult to manage and continue to be so. She is not able to provide them with structure and stability during the visits. She has a difficult time attending to the children's emotional needs.

Why Not a Supervision Order?

[97] One option is to return the children to the mother, subject to a supervision order. That is not a suitable option as the children would not be safe with the mother under a supervision order.

[98] The children are young and vulnerable. The mother has made personal gains, and has been healthier in 2013. However, she has not made adequate gains in her parenting to be able to provide the children with the stability and consistency that they are entitled to.

[99] The children are entitled to certainty, finality and to grow up in a safe and stable family, where they are valued and protected from harm. They will not have this if they are returned to the mother. The least disruptive alternative consistent with the best interests of the children is to become crown wards.

Access

Access Legal Principles

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

Access: Crown ward

59. (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. 2006, c. 5, s. 17 (2) .

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

1. 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.

2. 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.

3. 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).

[102] 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., 2004 CarswellOnt 3080, 132 A.C.W.S. (3d) 718, [2004] O.T.C. 665 (Ont. Sup. Ct.), para. 57; Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[103] 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.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[104] 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 (S.C.C.), p. 50; Children's Aid Society of Toronto v. D.P., 2005 CarswellOnt 4579, [2005] W.D.F.L. 4375, [2005] W.D.F.L. 4373, 19 R.F.L. (6th) 267, 202 O.A.C. 7, 93 A.C.W.S. (3d) 853, [2005] O.J. No. 4075 (Ont. C.A.).

[105] 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, 230 N.R. 201, 204 N.B.R. (2d) 1, 520 A.P.R. 1, 165 D.L.R. (4th) 58, 41 R.F.L. (4th) 339, [1998] S.C.J. No. 52, 1998 CarswellNat 557 (S.C.C.), para. 44.

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

(1) the relationship between the person and the child is meaningful to the child;

(2) the relationship between the person and the child is beneficial to the child; and,

(3) access will not impair the child's future opportunities for a permanent or stable placement.

[107] 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.), supra, 2007 (Ont. Div. Ct.).

[108] The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., 2004 CarswellOnt 2800, [2004] W.D.F.L. 510, 4 R.F.L. (6th) 245, [2004] O.T.C. 634, [2004] O.J. No. 2872 (Ont. Sup. Ct.), 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.

[109] 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.

[110] 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 (Ont. Ct.), para. 215.

[111] 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., 145 A.C.W.S. (3d) 276, [2006] O.J. No. 254, 2006 CarswellOnt 328 (Ont. S.C.).

[112] The second component of the s. 59(2.1) test places a burden on the person seeking access to show that an access order would not impair a child's future ability to be adopted. There is no onus on a Society to prove that a child for whom Crown wardship is sought is adoptable: Children's Aid Society of Ottawa v. W. (C.), [2008] O.J. No. 1151 (Ont. S.C.J.); Children's Aid Society of Niagara Region v. C. (J.), [2007] O.J. No. 1058 (Ont. Div. Ct.).

[113] 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, (Ont. Ct.), para 145.

[114] 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, 2011 ONSC 5850, [2011] O.J. No. 4512, 2011 CarswellOnt 11097 (Ont. Fam. Ct.), para. 419-421, 427, and Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, (Ont. Ct.), para 145.

[115] 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 (S.C.J.), para. 77, 80.

Access Analysis

[116] The mother has not met the onus on her to rebut either prong of the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A. The mother cannot meet the onus in s. 59(2.1) C.F.S.A. regarding access to the children.

[117] The father has not seen the oldest child for 4 years. He has never met the youngest child. He has no real relationship with either child. Access to the father is not beneficial or meaningful to the children. The father's claim for access is dismissed.

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

Orders

[119] O.S. and M.O. shall be made crown wards, without access to the parents, for the purposes of adoption.

Released: 28 November 2013

Justice Carole Curtis

Footnotes

[1] The facts as found by Sherr, J. in the decision on the motion for summary judgment are paragraphs 10-12, 15, 16, 18, 19, 21-23, 25-28, 30-32, 34-37, 39-41 of this judgment. The facts as agreed at the Trial in a signed Agreed Statement of Facts are paragraphs 9, 13, 14, 17, 20, 24, 29, 33, 38.

[2] T.A.P. is operated by C.A.S.T. with a focus on teaching and assessment. It offers access in a therapeutic setting, with individualized parenting instruction, and also offers separate training courses for parents to attend.