WARNING

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

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

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

The court may make an order:

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

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

(8) Prohibition: identifying child.

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

(9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Court File No.: C46/11

Date: April 11, 2014

Between:

Children's Aid Society, Region of Halton

Applicant

— AND —

A.M.R. (mother)

B.K.H. (maternal grandmother)

Respondents

Before: Justice Roselyn Zisman

Heard on: March 7, 21 and 26, 2014

Reasons for Judgment released on: April 11, 2014

Counsel:

• Diane Skrow — counsel for the applicant society
• Maria Sirivar — counsel for the respondent A.M.R. (mother)
• Novalea M. Jarvis — counsel for the respondent B.K.H. (maternal grandmother)

Zisman J.:

1. INTRODUCTION

[1] This is a temporary care and custody hearing wherein the society is seeking an order that the child, S.B.R. born […], 2010 ("S." or "the child") continue in its temporary care and custody.

[2] The respondent, B.K.H. ("the maternal grandmother") seeks an order placing S. in her care subject to the supervision of the society or in the alternative, expanded unsupervised access in her home.

[3] The respondent A.M.R. ("the mother") supports the position of the maternal grandmother. The mother was not present for this motion but her counsel was present. Counsel advised that her client was temporarily in a witness protection program as there has been a threat against her related to her alleged kidnapping.

2. BACKGROUND FACTS AND RELEVANT CHRONOLOGY

[4] S. is the biological child of the mother. The name of the father is unknown and he has been found not to be a parent. The mother's partner was D.P. at the time of the child's birth and up to the apprehension. Their current relationship is unknown.

[5] The mother has a long history of substance abuse since the age of 15 and has had two previous children removed from her care. One of them resides with his biological father and the other resides with the maternal grandfather.

[6] While pregnant the mother was actively using cocaine and was living a chaotic lifestyle. As a result of a third party report to the Children's Aid Society in Toronto about her pregnancy, an alert was sent out but the mother could not be located.

[7] The mother gave birth in the Oakville-Trafalgar Hospital and as a result of the alert the Halton Children's Aid Society became involved. S. was placed voluntarily with the maternal grandmother on August 15th, 2010.

[8] S. was born with significant medical issues due to the mother's use of drugs while pregnant.

[9] The society undertook to complete a kinship assessment of the plan proposed by the maternal grandmother. In February 2011, the society's kinship assessment was completed. Based on the concerns raised, on February 18th, 2011 the society apprehended the child from the care of her maternal grandmother.

[10] On February 23rd, 2011 Justice O'Connell ordered the child back into the care of the maternal grandmother under terms of supervision. One term required the maternal grandmother to obtain a crib for the child as there was a safety concern about her co-sleeping with the child.

[11] During the course of the protection application, the mother took significant steps to address her addiction and worked with the professionals to address S.'s needs.

[12] By May 2011 the mother's day access was increased to overnight access.

[13] In July 2011, the mother was involved in a domestic incident with her partner D.P. that resulted in him being charged with assault, mischief and utter threats to cause death or bodily harm and breach of probation. The mother assured the society worker that her relationship with D.P. was over.

[14] On July 21st, 2011 the child was placed in the care and control of the mother, subject to supervision for 7 months. The order also provided that the maternal grandmother would have access a minimum of 7 days a month to include overnight access and that if the arrangement broke down, the society would consider placing the child with the maternal grandmother.

[15] On May 12th, 2012, on consent the supervision order was terminated. The mother had continued with follow up assistance for her addiction, her hair follicle tests were negative and she had continued to work co-operatively with the society and professionals in dealing with the child's developmental delays.

3. EVENTS LEADING UP TO CURRENT APPREHENSION

[16] In October 2012, the society received a report that the mother was using illicit substances; the concerns were investigated but not verified.

[17] In December 2012, the society received another report that the mother was using illicit substances; the concerns were investigated and as the mother passed a clean urine test the concern was not verified and the file was closed.

[18] In February 2013 the society received a report that the mother and D.P. had exposed the child to domestic violence in the home. These concerns were not verified and the file was closed.

[19] On March 11th, 2013, the society received another report from the police that the mother had been observed holding an alcoholic beverage, appeared visibly intoxicated and admitted to drinking since the day prior and not sleeping. The mother advised the police she had been struggling for the past two years and had been close to relapsing on crack cocaine. The mother stated that in her attempt to stay clean of crack cocaine she had substituted it with alcohol and now is an alcoholic.

[20] As a result the society worker attended at the home the next day, the worker explained the information she had received from the police which the mother denied. The mother said that she only had a couple of beers and always made alternate plans for someone to care for the child if she drinks. The child appeared well. The mother's urine screen tested negative and the mother co-operated with providing a hair sample. The child was left with the mother.

[21] On March 14th, the society worker spoke to the mother who advised her that she had contacted a drug program, she was looking into attending a day drug program and she contacted her counsellor as the relationship with D.P. was escalating and she feared it would become abusive again.

[22] On March 15th, the society worker obtained the results of the mother's hair follicle test and spoke to Judy Klein of Drug Testing Consultants who interpreted the results as follows:

a. The mother's cocaine use was in the medium range;

b. the benzoylecgonine and norcocaine were in the normal range;

c. there was very little alcohol consumption which did not indicate excessive use; and

d. the cocaine results indicate regular usage at least 2 to 4 times on average per week.

[23] The society also obtained information that the child had not been attending daycare since February 2013.

[24] Based on the results the mother's history of drug abuse, a decision was made to apprehend the child. The worker attempted to contact the mother at her home and by telephone but could not locate her.

[25] On March 19th the worker again attended at the mother's home with a police officer. At about the same time the police and society worker received information that the mother had been arrested in Toronto and the child had been left with a babysitter. As the child and babysitter were both at the police station a child protection worker was sent to apprehend the child.

[26] The worker was subsequently advised by the police that the mother left the child with D.P. on March 15th and told him she was going to buy some milk. Seven hours later the mother texted D.P. that she would be gone awhile. The mother sent several further texts over the next few days saying she would be back in a while.

[27] On March 18th, D.P. had an appointment so he took the child to his sister's to watch and when she couldn't care for the child, he took her to his ex-girlfriend's. Later on March 18th, the mother returned home and D.P. reported that she was under the influence of crack cocaine and that she had been drinking and driving. The mother flew into a rage when she found out D.P. had left the child with his ex-girlfriend and hit him in the face. He called the police because he felt he could not control the mother's behaviour. The mother was charged with assaulting D.P.

[28] The police advised the society worker that the mother was crying hysterically and admitted that she was under the influence of crack cocaine, that for the past two months she had been using $300 to $600 worth of crack cocaine daily.

[29] On March 18th, a child protection worker from Toronto handed the child over to the society worker for Halton. The child was crying and appeared tired and hungry. The mother had advised the worker that the child needed to take medication twice daily for her seizures and that she had not taken her medication that morning. The mother was carrying the medication that was prescribed on March 4th and the bottles had not yet been opened. The mother also advised that she wished the child placed with her mother.

4. HISTORY OF CURRENT PROCEEDINGS

[30] The Children's Aid Society of Toronto commenced a protection application seeking a finding that the child was in need of protection pursuant to section 37 (2) (b) (i) due to a risk of physical harm and it sought an order placing the child in the care of the society for six months.

[31] On March 25th, 2013 a without prejudice order was made placing S. in the care and custody of the society with access to the mother at the discretion of the society. The court proceeding was transferred to this jurisdiction. This case has been case managed by myself and all proceedings have been before me.

[32] The matter returned to court on April 11th, 2013. The mother sought and was granted an extension to serve and file responding materials. The maternal grandmother was present at the hearing but did not seek any relief or request access. The matter was adjourned to May 2nd, 2013 for a temporary care and custody motion or to be spoken to.

[33] On May 2nd, 2013 the mother was not present. The court was advised that the mother had only attended one access visit and she had not filed any materials. The maternal grandmother was present and the society indicated that as the maternal grandmother was presented a plan to care for S. a kinship assessment was being conducted to assess her plan. The society was prepared to arrange separate access for her to the child. The matter was again adjourned to await the results of the kinship assessment.

[34] On June 20th, 2013, the mother was again not present. The society advised the court the kinship assessment was completed and the society was not supporting the maternal grandmother's plan. The society advised that due to S.'s special needs and the need for long term permanency planning, it would be amending its protection application to seek an order for Crown wardship. On consent, leave was granted to the society to amend its application and to add the maternal grandmother as a party to the proceedings.

[35] The matter was again adjourned from September 12th to October 31st, 2013 to accommodate counsel retained by the maternal grandmother.

[36] On October 31st, 2013, the society advised that it had not been able to serve the mother with its amended application and the maternal grandmother had also not been able to serve the mother with her Answer to the amended application. At the time, the grandmother was only seeing S. at the society's offices for 1 ½ hours per week, my endorsement states that assuming the grandmother's home is appropriate the society should consider access being increased and to take place at her home and that the grandmother should be invited to attend the child's various appointments. It was recommended that the society obtain further information about the grandmother's medical conditions in view of the various medications she is taking.

[37] On December 10th, 2013 the matter was again before the court. The society was granted leave to dispense with service on the mother in view of the numerous attempts it had made to serve her. The court was advised that the society intended to conduct questioning on Dr. Knowles, the grandmother's family doctor and counsel for the grandmother was considering conducting questioning of the kinship worker.

[38] As the child was in the hospital, the society indicated it had no problem with the grandmother visiting her at the hospital every day. The parties entered into a consent that the grandmother could visit on Sunday and Monday from 9:00 a.m. to 5:00 p.m. and for the rest of the week from 1:00 p.m. to 5:00 p.m. The grandmother was to notify the society if she was unable to attend. The matter was adjourned for a temporary care and custody motion to January 30th, 2014.

[39] On January 22nd, 2014 the society brought a motion to vacate the January 30th date scheduled for the temporary care and custody motion, except for the issue of expanded access to the maternal grandmother and sought an order to set the matter down for an expedited trial to take place in February or March 2014. It was submitted that due to the Christmas holidays and unavailability of counsel and Dr. Knowles, the society had not yet been able to conduct its questioning and counsel for the maternal grandmother wished to question several society workers which had also not yet taken place. It was submitted that the child had been in care for almost a year without a finding being made, that the days required for questioning and then argument on the temporary care and custody motion would be better spent by simply proceeding directly to trial. Although the court indicated that an early trial date could be arranged, counsel for the maternal grandmother wished to proceed with the questioning and the temporary care and custody motion. In the circumstances of this case, the issue of the grandmother's ability to care for the child on a temporary basis had not been argued on its merits and I held that if the grandmother wished that opportunity she should be entitled to proceed with the temporary care and custody motion. The date of January 30th was therefore vacated and a new date set for the motion.

[40] On January 22nd, 2014 the mother attended court and indicated she was in the process of retaining counsel and needed an extension to file her Answer which was granted. The mother had resurfaced and the society became aware that the mother was living in the same building as the grandmother. The society therefore served the mother with its amended application on January 7th, 2014 and advised her of the court date.

[41] The society relies on its Notice of Motion, Amended Protection Application and Plan of care and the following affidavits:

1. Affidavit of Grace Chanicka sworn March 22, 2013;

2. Affidavits of Nadine Stasko sworn March 20, April 30, September 29, December 5 and December 6, 2013 (with kinship assessment attached as an exhibit) and January 17, 2014.

3. Affidavits of Linda Cummins sworn September 11, 2013 and February 11, 2014; and

4. Affidavit of Catharine Dowds sworn February 18, 2014.

[42] The maternal grandmother relies on her Answer and Plan of Care, Amended Answer and Plan of Care and the following affidavits:

1. Affidavits of the maternal grandmother sworn October 22 and December 6, 2013 and January 21 and February 21, 2014;

2. Affidavit of Dr. Holly Knowles sworn December 5, 2013;

3. Affidavit of T.C. sworn December 2, 2013;

4. Affidavit of W.G. sworn December 2, 2013;

5. Affidavit of D.R. sworn December 3, 2013;

6. Affidavit of Stephanie Donnelly, law clerk to Ms. Jarvis, sworn January 21, 2014.

5. PROCEDURAL RULINGS

[43] In addition, transcripts were filed of the questioning of Dr. Knowles by society counsel and of the questioning of Catharine Dowds, who prepared the kinship assessment, by maternal grandmother's counsel. A Request to Admit by counsel on behalf of the maternal grandmother and Response by the society was also filed.

[44] During the first day of argument, counsel for the society made several submissions, based on her questioning of Dr. Knowles, who is the maternal grandmother's family physician, regarding Dr. Knowles' lack of knowledge of the facts of this case. Specifically she questioned whether or not Dr. Knowles was told by the maternal grandmother that the mother used crack cocaine while pregnant and whether the maternal grandmother ever expressed concern about the care the mother provided to the child prior to the apprehension. The answers provided were somewhat ambiguous.

[45] When the hearing resumed on March 21st, counsel for the grandmother attempted to introduce an affidavit from her law clerk with a letter from Dr. Knowles explaining and clarifying some of her answers on the questioning.

[46] It was submitted by counsel for the maternal grandmother that she felt the court wished this information, that the court has the discretion to permit this evidence to be admitted and that the court should have the best information available and that counsel only became aware of the issue as a result of the submissions of the society's counsel. Society counsel objected to the admission of this evidence in the middle of the hearing. It was submitted that contrary to counsel's submissions that she only wrote to Dr. Knowles, Dr. Knowles' letter states that they also had a discussion. Further, it is submitted that if this affidavit is permitted to be filed then the society would be asking for leave to file a reply affidavit.

[47] I ruled that the affidavit with Dr. Knowles' letter would not be permitted to be filed. It was impermissible to attempt to rectify Dr. Knowles' evidence in the middle of this motion. Counsel for the maternal grandmother could have requested permission to re-examine Dr. Knowles during the questioning if there was any ambiguity in her responses. Further, permitting this evidence to now be filed would have required a further delay as the society would then have been entitled to file a reply.

[48] As part of her reply submissions, counsel for the society requested permission to file responses to the undertakings given by Ms. Dowds, the kinship worker, during her questioning. I was advised that both counsel had discussed this issue prior to the commencement of the motion and as counsel for the maternal grandmother objected, society counsel did not raise the admissibility during her submissions as at the time she did not anticipate that the information was not essential to her case. However, based on the submissions on behalf of the maternal grandmother, society sought to file the responses to the undertakings on reply. Leave was granted, as I would have permitted this evidence to be filed along with the transcript of the questioning if I had been asked.

[49] It was proper reply as the maternal grandmother's counsel emphasized that the maternal grandmother was unaware of any concerns about the mother's care of S. prior to apprehension and that S. was seen by professionals and no one raised any concerns. The evidence tendered by the society in reply indicated that the maternal grandmother did know as did other members of the public who reported their concerns to the society. Counsel also objected to the information tendered by the society regarding what the maternal grandmother knew based on the fact that it was double hearsay. But this submission goes to what weight the court should attribute to the evidence and is not relevant to its threshold issue of admissibility.

6. STATUTORY FRAMEWORK AND APPLICABLE LAW

[50] Temporary care and custody hearings are determined pursuant to s. 51(2), (3), (3.1), and (3.2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (hereinafter referred to as "CFSA") the relevant portions which state as follows:

Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

(a) reasonable terms and conditions relating to the child care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services. 2006, c. 5, s. 8 (3).

[51] The onus is on the society to establish, based on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the child is returned to the parents, it is more probable than not that she will suffer harm. Further, the society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order.

[52] As indicated, the mother is not at this time putting forward a plan to have the child returned to her care.

[53] The onus of proof on the society does not change regardless of the order being sought.

[54] Both counsel agree that the plan presented by the maternal grandmother must be considered under section 51(2)(c) and that section 51(3.1) applies that is, the test is the best interests of the child.

[55] Section 37(3) provides guidance in relation to determining a child's best interests:

37(3) BEST INTERESTS OF THE CHILD

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.

[56] I have considered these criteria and that section 37(3)5 and 6 in particular supports the plan of the maternal grandmother whereas section 37(3)7 supports the society.

[57] I have also considered that the overarching principle of the Child and Family Services Act is to promote the best interests, protection and well-being of children and that any decisions that are made should consider whether a less intrusive order, than a society plan for temporary care, can be made. The court should protect the autonomy and integrity of the family wherever possible and to respect a child's need for continuity of care and for stable relationships within a family.

[58] Counsel for the maternal grandmother sought an order striking many portions of the affidavits filed on behalf of the society as it was based on hearsay and the fact that the affiants sometimes did not identify by name the person spoken to or state that the affiant verily believed the information to be true as required.

[59] Section 51(7) of the Child and Family Services Act permits a court on a temporary care and custody motion to admit and rely on evidence that it considers credible and trustworthy.

[60] Section 50 of the Child and Family Services Act permits a court to admit and rely on proceeding, and in any part of a proceeding under Part III, the past conduct of a person, such as the mother or the grandmother in the case, towards any child at any time in the past. In doing so, any report or statement, written or oral, that the court considers relevant is admissible into evidence.

[61] Further, since a temporary care and custody order is made on motion, Family Law Rules subrule 14(18) and 14(17) are applicable and permit the court to consider hearsay evidence.

[62] Therefore, the standard of evidence that a court can consider at this stage of the proceeding is much lower than would apply at a trial. I therefore find no merit to the objections raised by counsel regarding the nature of the evidence relied upon by the society in its affidavits. Most of the hearsay evidence that the society is relying on is evidence from medical personnel relating to the child's health issues, the child's foster parents regarding the child's needs, daycare personnel, other professionals involved with the child's care and interpretations of drug results from an expert. Unless otherwise referred to in this judgment, I find that the hearsay the society seeks to rely on is credible and trustworthy.

7. RELEVANT EVIDENCE ABOUT THE CHILD

7.1 Circumstances of the child upon admission into care

[63] When S. was admitted into care on March 18, 2013 she was two years and seven months old. She has global delays and suffers from seizures and there is some speculation that she may also be autistic.

[64] The following observations were made of S. upon her admission into foster care:

a. she was not walking, but could crawl, described as a bunny hop more than a four-point crawl;

b. she could not self-feed, did not touch her food and expected to be fed;

c. she would sometimes hold her bottle;

d. she still required a soother;

e. she struggled to fall asleep on her own and did not sleep through the night;

f. she did not talk or have words, but said the sound "MMMM";

g. she smiled and had good eye contact;

h. she screamed and cried for hours on end, especially in the evening hours; and

i. she came into care with little clothing that was either too big or too small.

[65] Ms. Cummins, the child's worker, obtained information that the worker from Community Living, an agency that supports children with special needs in daycare settings, terminated its involvement in November 2012 as the child was not attending daycare.

[66] Ms. Stasko, the child protection worker, contacted the daycare and was advised that although S. was enrolled for fulltime daycare, she "never came" and so she was dropped to part-time but her attendance continued to be poor. The last time S. attended daycare was on February 28th, 2013.

[67] Ms. Cummins met with staff from Erin Oaks, a facility that offers services to children with special needs, which reported that the child had been previously assessed and that she required ongoing assistance from occupational therapy, speech therapy and physiotherapy. S. required orthotics and possibly a walker to assist with her mobility.

[68] The staff from Erin Oaks reported that they had met with the mother once or twice only to complete the child's initial assessment in October 2012. Once the assessment was completed, eight appointments had been arranged. The mother cancelled one and failed to attend the other seven appointments. The staff at Erin Oaks then tried to contact the mother to setup more appointments and she only attended one appointment in January 25th, 2013 and then failed to attend the further appointments booked in February and March.

7.2 Drug test results

[69] On April 22, 2013 the society obtained the results of the drug tests for the child. Julia Klein of Drug Testing Consultants explained the results as follows:

a. The results were positive for cocaine. The levels were in the medium range for adult use indicating cocaine use of 2-4 times a week for an adult;

b. The results indicate that the child had ingested cocaine and that this was not just second hand smoke exposure; and

c. The child's ingestion could have occurred on a regular basis (2-4 times weekly) or one massive ingestion.

[70] The society had requested that Ms. Klein re-test the child's hair in a segmented fashion to determine if the drug ingestion was over time or on a one-time basis.

[71] On April 26th, 2013, the society received the segmented hair test results that indicated the child tested positive for cocaine and benzoylecgonine throughout the 3.0 centimetres of her hair that was tested. Although an official interpretation had not been received, the initial interpretation was that it confirmed regular ingestion of cocaine by the child.

7.3 Developmental and medical concerns arising subsequent to admission to care

[72] The society arranged an appointment with a paediatrician and a further consultation with another paediatrician at Erin Oaks. Within a few months of being in foster care, it was noted that the child had made some progress with her motor development. She also looked better, had gained some weight and was eating better.

[73] At the time of the assessment, S. was 2 years and 9 months but was functioning at about an 8 month level with respect to her fine motor skills, about 9 month level with respect to gross motor skills, about the 9 to 12 month level with respect to receptive language skills and expressive language skills below that. Between June and August, 11 appointments were arranged for various specialists and therapy sessions.

[74] Unfortunately, at the beginning of June, the child had to be moved from her first foster home due to an illness in that home. The new foster home reported great strides by S. As a result of being fitted for leg braces and with the use of a walker, S. was able to walk short distances. She was able to sleep through the night and no longer cried or was fussy. She was using a fork and spoon and was mostly able to feed herself. She loved being outside and was able to enjoy playing.

[75] In about July 2013, the child's seizures began to increase. The maternal grandmother reported that she had been doing some research and it was her understanding that the child was not wearing sunscreen and that a reaction to the sun with her medication could have caused an increase in the seizures. The grandmother also reported that if S.'s hair is tied too tight that this also could have caused an increase in the seizures.

[76] The foster mother was asked to follow up with the child's paediatrician. The paediatrician increased the dosage of the child's medication. The doctor confirmed that the seizures were not a result of sun exposure or tightly tied hair but rather were due to abnormal electrical discharges in her brain.

[77] Over the next several months, child continued to have seizures and a referral was made to Dr. Yim, a neurologist. It was discovered that S. had previously been seen by Dr. Yim but he had closed his file due to the number of missed appointments. Dr. Yim agreed to see S. as she was now in foster care. Dr. Yim saw S. over the next several months and put her on a number of different medications that had only limited or short term success.

[78] On November 18th, 2013, Dr. Yim requested that S. be admitted to the Trillium Hospital in Mississauga. It is the expectation of the hospital that adult caregivers be present at all times (24 hours, 7 days a week) when a child is admitted to the paediatric floor.

[79] Initially, as it was not known how long the admission would be and the grandmother's access was not changed. Ms. Cummins and the foster mother tried to do the majority of the supervision. But as time went on, other supports had to be put into place and the grandmother was permitted to visits daily in accordance with the consent executed in court on December 10th, 2013.

[80] S. was in the hospital from November 18th, 2013 to January 14th, 2014 a total of 57 consecutive days. The mother grandmother made various complaints about the care S. received but based on the evidence in the affidavit of Ms. Cummins I do not find any merit in her complaints.

[81] As of December 10th, when the grandmother was permitted to exercise daily access to S., she only attended on 13 out of a possible 37 occasions. She advised that she was not able to attend for a variety of reasons, she was ill, in hospital herself, she was unable to obtain arrange transportation or a family member unexpectedly visited.

[82] The second foster mother cared for S. from June 3rd, 2013 to December 10th, 2013 at which time the foster mother advised that she was unable to give S. the care she deserved due to her increased medical needs. At the time she advised that:

a. S. could not be left unsupervised at all during her waking hours due to the number of seizures;

b. S. was not walking and therefore she needed to be carried many times a day and she was getting heavy and this could be exhausting;

c. S. wasn't able to verbalize her needs;

d. S. was not toilet trained, therefore she needed to be changed and needed full supervision with hygiene tasks such as bathing, teeth brushing;

e. During mealtimes, depending on her seizures, S. needed a great deal of assistance with feeding;

f. S. was on a great deal of medications and at times, was quite stubborn about taking them; and

g. S. had and would continue to have numerous medical appointments, both inside and outside the Halton region, and this had been a strain on the foster family.

[83] Prior to S.'s discharge from the hospital, a new placement was found with Oakville Children's Homes that works with medically fragile children in a foster home setting. Each foster home has support staff. The foster parent began to attend at the hospital to obtain instructions about caring for S. Unfortunately, as the grandmother did not attend the visits she was not able to meet the foster mother.

[84] Upon the child's release from hospital, Dr. Yim shared the following information:

a. S. was required to take about 10 different medications;

b. S. was diagnosed with generalized seizures but he wanted to do some follow up genetic testing. S. does not have convulsive seizures and there is no change in her breathing. Her seizures involved head dropping. Her seizures were medically stable and had improved since admission to the hospital but she still had cluster seizures. He explained that the seizures did not affect the brain unless they are continuous for 20-30 minutes. The caregiver was instructed to give S. a rectal injection if her seizures are non-stop for 10 to 15 minutes. S. is at more risk if she has flu, fever or is sleep deprived;

c. A referral was made to the Sick Children's Hospital with respect to a Ketogenic diet which very invasive and will require a further admission to the hospital. The diet is very strict and must be administered by the caregiver.

[85] S. appeared to be adjusting to her new foster home but the society has not been able to find a new daycare that would accept S. due to her limitations and seizures.

[86] On January 21st, 2014, the maternal grandmother attended at the society's office for an access visit. She was updated on S.'s care and her progress in the new foster home. She was provided with an updated list of all of S.'s appointments. She had previously in November 2013 been given such a list so she could attend the appointments.

[87] The grandmother did not attend the appointment at Erin Oak for the child's therapy on January 23, 2014 or February 3, 2014.

[88] But the grandmother did attend the appointment on January 27th with Dr. Yim. Dr. Yim advised that it was possible that S. could outgrow her seizures or it could be she would not get any better than how she was currently. He further confirmed the appointment at the Hospital for Sick Children and how the diet could or couldn't work.

[89] The grandmother did not attend the appointment on February 4th, 2014 at the Hospital for Sick Children despite leaving a voice mail message that she would be attending. At the appointment, the hospital staff unexpectedly advised Ms. Cummins that they wanted to admit S. to review her medications and ongoing seizures before considering her for the new diet.

[90] As a result, S. was admitted to the hospital. The maternal grandmother was advised of the admission and told that the society would honour the previous court order and she would be permitted to visit daily.

[91] S. was in hospital from February 4th to 13th, 2014. The maternal grandmother did not visit due to her own health related issues. The grandmother only attended on the discharge date when she was also in Toronto to see her own family doctor.

[92] Upon discharge from the Hospital for Sick Children the following information was provided regarding the child's condition:

a. She demonstrated some autistic feature;

b. Upon admission she exhibited persistent seizures of 50 per hour lasting 10-30 seconds; during a seizure her head drops and she becomes laconic; despite testing a variety of drugs upon discharge the frequency of her seizures persisted;

c. She was assessed as not being suitable for the ketogenic diet;

d. She was referred to the neurology department and followed by the epilepsy team; a corpus callostomy, which is a palliative surgical procedure, was recommended to manage the epilepsy to take place sometime in the spring of 2014.

8. RELEVANT EVIDENCE REGARDING THE MOTHER

[93] Although the mother has not filed any pleadings and is not putting forward a plan for the child to be placed in her care at this time, a brief review of her involvement and her meetings with the society worker is important. The mother did meet with the society worker several times. Her statements to the worker are relevant to this motion as it is necessary to assess the issue of the relationship between the mother and maternal grandmother and the maternal grandmother's inability to protect the child from the mother.

[94] After the apprehension of S. the mother did meet with Ms. Stasko on April 4, 2013. The mother advised Ms. Stasko of the following:

a. she had not yet connected with her drug counsellor because she had been in a car accident;

b. she was looking into some inpatient treatment but as had already attended Hope Place for inpatient treatment twice and would "like to try something different";

c. when asked to explain the positive drug tests, she said "we thought we could do it and get away with it"( referring to herself and her ex-partner D.P.);

d. she referred to herself as an "addict";

e. she advised that she had last used crack cocaine one week previous because she felt sorry for herself; and

f. when asked about her relationship with her mother who was proposing a kinship plan, she replied that "you guys know all about my mother", that they had issues in the past and that she did not want her mother having control over S.; she added that her mother treats her "like a piece of shit".

[95] The mother did attend for her first supervised access visit on April 9th, 2013. S. looked visibly excited to see her. The visit went reasonably well although the mother seemed distracted and had to be asked several times not to use her cell phone during the one hour visit.

[96] The mother was required to call to at least one hour before a visit to confirm the visit or it would be cancelled. The mother did not call or attend any other visits.

[97] On April 24th, 2013, when the worker was finally able to reach the mother on her cell phone, the mother explained the missed visits by saying that she had "smoked up" and she was" messed up". When advised about the results of S.'s positive hair test results and the interpretation of the results, she did not sound surprised or saddened. She explained that she and D.P. were in the house using. When the worker again explained that the results indicated that it was not second hand smoke but that the child had ingested cocaine, she replied that she did not know how this could have happened. She then said that, "we were doing it a lot in the house…like two three times per week" (referring to herself and D.P.).

[98] On January 6th, 2014 Ms. Stasko received a telephone message from the mother, who she had not heard from since April 2013. When Ms. Stasko called back, an unknown male picked up the phone and handed it to the mother, who told her that she had been "clean and sober for 20 days." A meeting was arranged for the following day.

[99] The mother advised that:

a. She had been driven to the appointment by B., the superintendent in the maternal grandmother's building (he is also a friend of the maternal grandmother and he also sometimes drove her to appointments);

b. She had been kidnapped and some people tried to kill her and that this incident was in the news; one of the women who reportedly kidnapped her had been arrested and charged with intent to commit an indictable offence;

c. This was a wake-up call for her and she decided to get "clean and sober" and had an appointment with a drug counsellor and would be meeting with someone about in patient treatment; she wanted to look for long term treatment;

d. She had been seeing her mother and that she saw her around Christmas as well;

e. She had no fixed address but she has been seeing her mother or staying at B.'s apartment (in the same building as the maternal grandmother);

f. She requested access and when advised of the society's position regarding crown wardship she also asked about ongoing contact; she was served with the amended court documents and advised of the next court date; and

g. She indicated that she would advise when she had a new cell phone and a fixed address and in the meantime left B.'s contact information if the society needed to get in touch with her.

[100] The mother contacted Ms. Stasko again on January 10th, 2014 as she had told the mother she would consult with her team about the mother's request for access. Ms. Stasko advised the mother that the society was not prepared to grant her access based on her previous inconsistency. The mother stated that she understood and agreed to meet with the worker to give her information about the child's social history and background.

[101] Ms. Stasko met the mother at B.'s apartment and confirmed that she had continued to live in the same building as her mother. The mother attempted to call her mother but there was no answer and when the worker knocked on her door there was no answer either.

[102] The mother has not contacted the society again and has not appeared during this motion.

9. RELEVANT EVIDENCE REGARDING THE MATERNAL GRANDMOTHER

9.1 Circumstances of the maternal grandmother

[103] The maternal grandmother is currently 56 years old. She was married when she was very young and had two children, the mother and she also has a son who resides in Kingston. Her marriage lasted 10 years but it was a turbulent and physically and verbally abusive relationship. According to the maternal grandmother, her husband was in and out of jail and abused both alcohol and drugs. The maternal grandmother did not report any abuse to the police and the children were exposed to this domestic violence. After they separated, the children went to live with their father and the maternal grandmother did not see her children for five years. She re-married and found herself in yet another abusive relationship. Since 2000, she has lived on her own.

[104] When the mother was a young teenager, she began to live with the maternal grandmother. But there is a significant history of the child welfare agencies involvement and their relationship was volatile and dysfunctional. There was a pattern of the maternal grandmother not being able to manage her daughter's high risk behaviours such as illicit drug use, self-harm, truancy and sexual promiscuity.

[105] Based on the grandmother's affidavits, I find that the nature of that relationship has not changed.

9.2 The maternal grandmother's knowledge and concerns regarding the mother

[106] According to Ms. Dowds, as part of the kinship assessment, the maternal grandmother relayed many concerns regarding the care S. was receiving from the mother. Those concerns were:

a. the child's lack of stimulation (leaving the child in her crib for hours at a time, no trips outside);

b. leaving the child with unknown babysitters for days at a time;

c. the child not attending daycare consistently;

d. the mother drinking excessively;

e. incidents of domestic violence between the mother and her partner;

f. the mother's apartment smelling of mould;

g. the mother dropping the child off at her home with no diapers, clothing or seizure medication; and

h. suspicion that the mother had begun to use crack cocaine again and her suspicions that the child's seizures were increasing be cause the mother was not consistently administering the medication.

[107] However, in her affidavit the maternal grandmother tried to minimize and distance herself from these concerns or explain her failure to report these concerns.

[108] The grandmother deposed that the concerns she had initially outlined to Ms. Dowds as part of the kinship assessment only related to one occasion and that it happened only two weeks before the apprehension. She also deposed that prior to the apprehension she did not report her concerns to the society or the police because she had no proof her concerns would be verified and she feared the mother would retaliate and terminate her access. She deposed that although she was seeing S. at least once a week, she was usually dropped off at her home by B.J., her friend and the superintendent of her building and she did not attend at the mother's home so she was unaware of what was occurring in the mother's home.

[109] However, based on the information filed by the society, in October 2012, the paternal step-grandmother reported to the society concerns about the mother. The paternal step-grandmother reported that the maternal grandmother had contacted the paternal grandfather and reported that she suspected that the mother was using cocaine again; that the mother had left the child with the maternal grandmother for several days and had not provided the child's seizure medication. The paternal step-grandmother felt that the child was not safe in the maternal grandmother's care due to her own historical substance abuse issues nor should the mother be caring for the child. Despite the double hearsay nature of this evidence, I find this evidence to be credible and trustworthy. The paternal step-grandmother is the person that reported her valid concerns about the mother when she was pregnant. Her concerns are also consistent with the reports the society received from a friend of the mother's, from B.J. and from the police in the months prior to the apprehension expressing concerns about the mother and her ability to care for the child. If other people were aware and concerned about the mother's ability to care for the child, it lends credence to the maternal grandmother, who was in closer contact with the mother, also being aware about these concerns.

[110] The maternal grandmother reported on several occasions that she intended to obtain a restraining order against the mother but has never done so.

[111] Ms. Dowds stated, during her the questioning, that the maternal grandmother told her that she did not contact the police or the society because she was afraid of her daughter and feared for her own safety. She told Ms. Dowds that she feared one of the drug individuals that the mother associates with would come and kill her.

[112] The maternal grandmother deposed that as recently as December 2013, the mother attended at her residence and was verbally abusive to her and threatened her, that she called the police and asked for a restraining order. But as of this date, there is no proof that the grandmother ever followed through and obtained a restraining order.

[113] However, the maternal grandmother also deposed that she no longer feared the mother and would have no problem making sure that she did not attend at her apartment if the child lived with her.

9.3 Health issues

[114] The maternal grandmother suffers from a number of medical issues and has been in receipt of disability income for many years as a result of a diagnosis of Lupus.

[115] Several letters were filed on behalf of the maternal grandmother by her family doctor Dr. Holly Knowles. Dr. Knowles also swore an affidavit that is filed in these proceedings and spoke to Ms. Dowds as part of the kinship assessment and was questioned by society counsel.

[116] Dr. Knowles has been the maternal grandmother's physician since 2004 and has been treating her for chronic non-malignant pain and for anxiety. She confirmed that she has never seen the maternal grandmother display any signs of intoxication or used substances other than her prescribed medications and that she has adhered to their treatment plan that was sanctioned by a pain specialist. She acknowledged that she was aware the maternal grandmother had been charged with "double doctoring" about seven years before but that the charges were dropped.

[117] Dr. Knowles deposed in her affidavit and stated in her letters that there is no medical impediment to the maternal grandmother caring for her grandchild. She further deposed that the maternal grandmother had attended many appointments with S. and she was always impressed with her ability to care for S. and even after S. was returned to live with the mother, she remained involved in S.'s care and expressed concerns about her medical conditions.

[118] As a result of the questioning it became clear that Dr. Knowles saw the maternal grandmother an average of every two months for about 15 minutes. She had not seen the maternal grandmother with the child since the child was returned to live with the mother in July 2011. Dr. Knowles agreed that from about August 2010 to July 2011, she would have only seen S. a total of four or five times.

[119] Dr. Knowles, in her questioning also outlined all of the maternal grandmother's medical conditions that had not been previously detailed in her affidavit or in her letters. Dr. Knowles outlined all of the maternal grandmother's medical issues as follows:

a. Degenerative disc disease of the spine and as a result has chronic back pain, arthritis and osteoarthritis in her back; she also may have a loss of range of motion at the back and pain with certain movements;

b. Fibromyalgia that results in diffuse body pain and fatigue;

c. Intermittent abdominal pain;

d. Chronic obstructive pulmonary disease that was referred to historically as emphysema; it is typically related to damage caused to the lungs from smoking; the symptoms are shortness of breath, coughing and recurrent lung infections. The maternal grandmother's symptoms are generally only lung infections that she gets one or twice a winter; the grandmother continues to smoke;

e. Anxiety was diagnosed prior to the maternal grandmother becoming her patient and she continued the medication she was receiving; her anxiety is well controlled and proportionate to the issues she has;

f. Vaginal dysplasia that is not related or an issue at the present time;

g. She has had in the past had diverticulosis and when it gets infected it becomes diverticulitis; she may have had a mild case in February 2014. The condition is treated with antibiotics and in severe cases it requires surgery which she had on 1996; it can be life threatening but the grandmother is aware of the symptoms and knows to obtain medical treatment if the symptoms become severe;

h. Irritable bowel syndrome is a condition that results in alternating constipation, diarrhea and abdominal pain and it is treated with life style modifications; and

i. The maternal grandmother was diagnosed with lupus but Dr. Knowles questions this diagnosis.

[120] Overall, Dr. Knowles stated that the maternal grandmother's medical conditions with proper medical management would not reduce her life span. She further stated that the grandmother's physical functioning had actually improved over the last 18 months. Dr. Knowles acknowledged that stress could adversely affect pain, the abdominal system related to irritable bowel syndrome and an anxiety disorder.

[121] With respect to the narcotic pain and anxiety medications the maternal grandmother was prescribed, Dr. Knowles explained that although the prescriptions are written every couple of months, the medications are dispensed weekly. Dr. Knowles recalled that the grandmother told her once that the mother had stolen her medication so weekly prescriptions insure medications is not stolen or lost. Dr. Knowles stated that she did not recall and her notes do not reflect that she told Ms. Dowds, during her interview as part of the kinship assessment, that the reason the medications were dispensed weekly related to an issue of "double doctoring" and that historically the maternal grandmother had taken more medication than prescribed.

[122] Dr. Knowles also stated that she did not recall nor do her notes reflect that she told Ms. Dowds, "off the record" that she felt that apart for the prescription drug use, that the maternal grandmother's lifestyle was too chaotic for S. especially considering the volatile relationship between her and her daughter. When questioned Dr. Knowles stated that she had a "moderate degree of confidence" that the maternal grandmother could stand up to her daughter if S. was with placed in her home.

9.4 Condition of the home

[123] During the kinship assessment a home visit was arranged to the maternal grandmother's apartment. MS Dowds expressed concerns about the maternal grandmother's apartment not being suitable for S. from a safety or developmental perspective. It is a small 2 bedroom apartment that is cluttered with antique furniture and many breakable decorative items. There was very limited space for S. to practice her newly acquired skill of crawling. Ms. Dowds discussed with the maternal grandmother how to safety proof the apartment. But despite this, the maternal grandmother did not take any steps to safety proof the apartment for S.'s subsequent one hour access visit that was part of the kinship assessment. During the access visit, S. had limited space to move and for most of the visit the maternal grandmother kept S. wedged between her knees in an effort to help her stand in a cluttered space.

[124] In the questioning of Ms. Dowds, she stated that the maternal grandmother was provided with a standard list of things that needed to be done to safety proof her home. The maternal grandmother was told that she needed to do these things if she wanted home visits regardless of whether or not the child was to be placed in her care.

[125] Ms. Dowds concluded that the maternal grandmother presented as unwilling or unable to recognize the potential safety risks for S. in her home. It appeared that the grandmother was more invested in displaying her many decorative items than creating a safe, child friendly environment. There was also a concern that the maternal grandmother had not followed the society's direction about providing a safe sleeping environment for the child and had continued to co-sleep with her during the past two years.

[126] The society attempted in early June 2013 to arrange to view the maternal grandmother's home and advised her that visits would have to continue at the society's offices until her residence was approved for visits. The maternal grandmother cancelled the planned home visit as she told the worker she needed to work all week at her friend's antique shop where she volunteered and she was in the middle of painting her apartment. She cancelled various other appointments because she was ill, a friend died or she had other appointments. Ms. Stasko advised the maternal grandmother that she expected the apartment to be clear of objects that could hurt S., or that could fall on her if she pulled on it. That there should be an appropriate sized space that had been cleaned out so that S. could move around and that wires would have to be covered and socket covers were required.

[127] It was not until December 2nd, 2013 that the grandmother did not cancel an appointment and finally permitted Ms. Stasko to attend her apartment. Ms. Stasko deposed that although some of the objects had been removed there were still numerous hazards in the apartment and there was no space for S.to move around. When the hazards were pointed out to the maternal grandmother she responded that she would be with S. all of the time. But the worker pointed out that this would not always be possible such as when she was preparing a meal. The maternal grandmother stated that it was hard for her to distinguish what was a safety concern. She also stated that she needed help setting up the crib for S. She shut the door to her bedroom so Ms. Stasko was unable to inspect the room as she said there would be no reason for S. to go into her bedroom. The maternal grandmother asked her to come back the next day as her son would be helping her remove some of her objects. She told Ms. Stasko that the superintendent had told her she could move some of her things into storage. The maternal grandmother was to call Ms. Stasko the next day to arrange a time for her to return to the apartment but she never called.

[128] The maternal grandmother deposed in her affidavit sworn December 6th, 2013 that she did remove a number of tables and cabinets from her apartment and that she made all of the changes requested by the society. She was waiting for her son to assemble the crib and that is the reason she did not call Ms. Stasko. She further blames Ms. Stasko for not following up with her to arrange an inspection of her apartment.

[129] The grandmother deposed that another appointment for a home visit was arranged for January 28th, 2014 but then in her affidavit sworn February 21st, 2014 she does not mention any home visit taking place. During submissions, counsel stated that the grandmother could not afford to leave her belongings in storage and moved them back but would be prepared to move them out again if S. was permitted to reside with her. She also submitted that the grandmother was on a waiting list for a 3 bedroom apartment.

9.5 Ability to co-operate with the society

[130] The society raised concerns about the maternal grandmother's ability to work with the society and in particular her truthfulness regarding her relationship with her daughter.

[131] It was not until the maternal grandmother's affidavit sworn December 6th, 2013 that the society became aware that the mother had attended at her apartment. Ms. Stasko deposed that she has asked the maternal grandmother on numerous occasions to call her if she had any contact with the mother.

[132] It was the mother that advised Ms. Stasko that she had been living in the same apartment building as the maternal grandmother, that she had been speaking and seeing her mother and that the maternal grandmother had shared pictures of S. with her. When confronted with this information, the maternal grandmother did not dispute it was true and confirmed that she knew the mother was living in the building.

[133] In her affidavit sworn February 21st, 2014, the maternal grandmother deposes that there was no order that she had to advise the society about the mother's whereabouts, there is no order that the mother not attend at her home and that she cannot control where her daughter resides.

[134] A further issue raised in the kinship assessment is with respect to the maternal grandmother's criminal record check. According to the assessment, the grandmother was required to produce a recent criminal record check and did not do so. The maternal grandmother deposed that she had provided it when the first kinship assessment was done in 2011 but the society was not able to locate it and in any event according to Ms. Dowds another one would have had to be produced for the present assessment.

[135] The issue as to whether or not the maternal grandmother was charged in 2001 with fraud relating to "double doctoring" and whether or not those charges were withdrawn was not verified. Further, Ms. Dowds reported in the kinship assessment dated April 2013 that the maternal grandmother was convicted in 2005 of defrauding the Ontario Ministry of Health and Long Term Care of money, by unlawfully obtaining authorizations for a controlled substance from practitioners, while in receipt of the Ontario Drug Benefits Plan. It was reported that the maternal grandmother received a conditional sentence of six months that is, house arrest and probation for 18 months. Despite this report now being almost a year old, the maternal grandmother did not file her police record check that could have clarified this issue.

10. POSITION OF THE PARTIES

[136] It is the position of the society that the child should remain in the care of the society. It is submitted that the maternal grandmother cannot follow through with the directions or orders of the society, that she is unable to protect the child from harm especially from the mother and that she is unable to meet this child's needs for any extended length of time. Although this is a temporary care and custody motion nevertheless the child's long term needs for stability and permanency planning need to be considered.

[137] On behalf of the maternal grandmother it is submitted that she was the child's caregiver for the first year of her life and remained involved until the child was apprehended in March 2013 and there were never any complaints about her ability to care for her granddaughter. The concerns that the society has now are the same concerns it had when the child was apprehended from the maternal grandmother's care on February 18th, 2011 and returned to her care by the court on February 23rd, 2011. The society has not been able to provide a stable placement for the child and she is now in her third foster home. It is submitted that the child should be placed in the care of the maternal grandmother so that her ability to care for her can be assessed and she can prove that she would be the best caregiver for the child.

11. ANALYSIS

11.1 Can the maternal grandmother abide by court orders and directions of the society and work co-operatively with the society?

[138] It is submitted by the society that the maternal grandmother has failed in the past to abide by the direction of the court. In particular the society submits that there was a concern that the maternal grandmother was co-sleeping with the child and that this was safety concern. Unknown to the society at the time, the maternal grandmother has deposed that despite an order that she obtain a separate bed for the child she continued to allow the child to sleep in her bed during the supervision order and even since the child was returned to live with the mother. The maternal grandmother explained why she felt the child sleeping with her was appropriate. She did not accept the society's concerns that the child could roll off the bed or that due to the heavy dosage of narcotic medications that the maternal grandmother takes that it was dangerous for the child to be in the same bed. However, the maternal grandmother has agreed to abide by any terms of supervision if the child was permitted to reside with her.

[139] More concerning is the maternal grandmother's inability or unwillingness to safety proof her apartment and make it more child friendly. The state of the maternal grandmother's home is very important in this case, as although S. is 3 years old she is only functioning at about an 8 month old level of development. She is only starting to walk with leg braces and a walker and has limited balance. The need to ensure the apartment has sufficient room to let her move about and that there are no safety concerns is of paramount concern. The maternal grandmother was advised in great detail as to what changes she needed to make as part of the kinship assessment in April 2013. She was advised again on numerous occasions thereafter as what needed to be done.

[140] The maternal grandmother has strongly advocated for S. to be able to have access at her home and the court recommended on October 31st, 2013 that access take place in her home once it is deemed appropriate. Despite this, the maternal grandmother delayed for a variety of reasons the society worker's appointment to attend and inspect her home for over six months. It has now been almost a year since the maternal grandmother was told what she needed to do to have visits in her home and yet she has still not been able to make the necessary changes.

[141] It was submitted that the maternal grandmother did not take steps to make the necessary changes to her apartment because when counsel for the maternal grandmother sent a Request to Admit on January 8, 2014 to the society asking what the maternal grandmother needed to do for the society to consider placing S. in her home either full or part-time, the society responded that there was nothing she could do as they did not support placing the child with the maternal grandmother.

[142] I do not find that this submission has any merit. It is ultimately up to the court, not the society, to determine where a child is placed or if access visits can take place at home and not in a supervised setting. The onus was on the maternal grandmother to provide proof to this court that she had done what was requested to safety proof her home and then ask the court to permit access to take place there. Since I had already made that recommendation in October 2013 for visits to occur in the maternal grandmother's home, the maternal grandmother could have requested, as she did in the alternative at this motion, that even if the court did not place S. with her that at least access visits take place in her home.

[143] Accordingly, I am baffled as to why the maternal grandmother has not been able to ensure that her home was made safe for S. But this is a very clear indication of the maternal grandmother's inability to follow the direction of the society. If she is unable to follow even this simple and concrete direction for the best interests of S. it is concerning whether or not if she would be willing or able to follow any other terms of a supervision order that would be put in place if S. was placed in her care.

[144] There are also concerns about the maternal grandmother's level of honesty. The maternal grandmother did not volunteer information about contact with the mother. She led the society to believe that she did not know the whereabouts of the mother but then a few days later deposes in an affidavit that the mother attended unannounced at her apartment. She did not disclose that the mother moved into the same apartment building and was residing with the superintendent who was also her friend and support person. She did not disclose that she had visited with the mother and shared photos of S. with her.

[145] The maternal grandmother then quite remarkably deposes that there was no order that required her to tell the society where or when the mother visited her. In my view this comment shows a concerning lack of appreciation of the society concerns regarding her volatile relationship with the mother and concerns about her ability to protect the child from any interference from the mother if S. was placed in her care.

[146] The society also submitted that there were concerns about the maternal grandmother's honesty regarding her alleged criminal charges dealing with "double doctoring". Even at this stage of the proceeding, I would have expected that the maternal grandmother would have taken steps to obtain her police record as this issue was raised in the kinship assessment in April 2013. Although there is evidence of any current concerns about the misuse of pain medications I do not consider this a relevant issue at this time with respect to her ability to care for S. but it does raise concerns about her honesty and ability to co-operate with the society.

[147] The society also submits that the maternal grandmother has not been forthcoming with the nature of her health issues or her medications. It is alleged that the maternal grandmother omitted to mention several conditions she suffers from and that the letters she submitted from Dr. Knowles also did not disclose the full extent of her various medical conditions. Based on the evidence before me at this stage, I do not find that the maternal grandmother purposely tried to mislead the court or the society regarding her health issues. The more concerning issue is the extent that those health concerns impact on her ability to care for a child with such special needs.

9.3 Can the maternal grandmother protect the child?

[148] The history of this case leads me to the conclusion that the maternal grandmother has not been able to protect this child from the mother.

[149] Based on the maternal grandmother's own history, she was in an abusive relationship and unable to protect her own children. She has a long standing volatile relationship with the mother.

[150] The maternal grandmother did not report any concerns to the society or the police when she was aware the mother was pregnant although she must have been aware the mother was using cocaine and was leading a lifestyle that was not conducive to the health of the child she was carrying. It was the paternal stepmother who reported her concerns to the society.

[151] I accept the evidence of Ms. Dowds that the maternal grandmother did tell her about her concerns about the mother's care of S., that the maternal grandmother was aware of those concerns before the apprehension and now feels guilty that she did not report her concerns to anyone in authority. Much time was spent both in the questioning of Ms. Dowds and in submissions about the accuracy of Ms. Dowds' notes. I find that Ms. Dowds' evidence is credible and that her recordings were accurate.

[152] The maternal grandmother has vacillated between stating that she was afraid of the mother and that is the reason she did not report concerns about the mother's care of S. or stating that she is not afraid of the mother and she did not report any concerns because she was not aware of them.

[153] I find that it is more probable that the maternal grandmother was aware of the fact that the mother had started to use crack cocaine again, that she was drinking, fighting with her partner and generally not meeting the needs of the child.

[154] According to Ms. Dowds the maternal grandmother told her that in March before the apprehension, the mother called her in a state of panic and intoxicated and told her she and her partner were fighting and she could not care for S. the maternal grandmother contacted B.J.(her friend and superintendent) to pick up the child and yet she permitted the child to be returned to the mother the next day without ensuring that S. would be safe and never reported this incident to anyone in authority.

[155] I find that based on the statement by the maternal grandmother to Ms. Dowds, the maternal grandmother visited the mother's home every couple of weeks and also had S.in her care and was aware that S.'s needs were not being met. Although the maternal grandmother denies she told Ms. Dowds she was concerned months before the apprehension, in her own affidavit she admits that at least she had concerns a couple of weeks before and still did not report any concerns.

[156] It is submitted on behalf of the maternal grandmother that she should not be held to a higher standard as there were three separate society investigations and no reports from the daycare or the child's doctor or staff at Erin Oaks about any concerns about the mother's care of the child prior to the apprehension. I do not accept this submission. The maternal grandmother was aware of the mother's history, aware of the special needs of S. and had constant contact with both the mother and the child. She was in the best position to protect this child. One would have expected that she would have been vigilant in ensuring the child was attending her medical and therapy appointments and attending daycare. One would have expected that she would be vigilant in ensuring that the child was receiving her medications and was properly dressed and fed and generally well cared for.

[157] It was submitted that the maternal grandmother could not have done checked up on the mother as she could not directly contact the daycare, the doctors and so on. Although I accept this, she could have for example asked the mother about the appointments and asked to accompany her, if she had done that she would have discovered for example that the mother was not taking the child to Erin Oaks or taking her to daycare.

[158] I find that on the evidence that I accept that there is credible and trustworthy evidence that the maternal grandmother was aware that the mother was neglecting the child's needs and did not report her concerns to the police or the society because she was afraid of the mother. I also find for the same reason the maternal grandmother has never obtained a restraining order against the mother.

[159] Based on the results of the hair follicle tests, there is credible evidence that the child ingested cocaine while in the care of the mother during the few months prior to the apprehension. By not being more vigilant and not reporting her concerns to the society or police, the maternal grandmother failed to protect the child.

9.4 Can the maternal grandmother meet the needs of the child?

[160] There is no doubt that the maternal grandmother loves S. There are no serious concerns with respect to her ability to meet the child's needs for short visits.

[161] I have outlined in considerable detail the special needs of S. and the maternal grandmother's current health issues. The society does not dispute that during the first year of the child's life the maternal grandmother was able to meet the physical needs of the child. The society also concedes that despite the concerns in the first kinship assessment once the child was returned to the care of the maternal grandmother the society did not have any concerns about her care. However, this was only a transitional plan and the child was returned to live with the mother.

[162] However, as S. has become older the full extent of her delays and medical needs have become clearer. She requires a caregiver that is available to fully supervise her 24 hours a day 7 days a week. She requires a caregiver that can ensure that she attends all of her therapy appointments, her medical appointments and daycare. She requires a caregiver that can physically meet her needs due to her lack of mobility and her limited ability to feed and care for herself.

[163] Since S. was apprehended over a year ago, she had been in hospital for two periods of time, from November 18th, 2013 to January 14th, 2014 and from February 4th to 13th, 2014. This was the time she needed a devoted and available caregiver. It is extremely concerning that despite the maternal grandmother complaining that S. was being cared for my strangers, despite the complaints that the society was curtailing her ability to spend time with S. that when given the right to spend every day with her granddaughter the maternal grandmother was simply unable to do so. The maternal grandmother was only able to arrange to spend time with S. for 13 out of a possible 37 days from December to January 2014 and then for none of the 10 days in February 2014.

[164] The maternal grandmother tries to explain this by deposing that the society was aware that she could not attend every day as the consent order provided that if she could not attend then she was required to give 24 hours notice. She then explains that there were legitimate reasons for her non-attendance, she was in the hospital herself from January 19 to 20th, 2014 with a partial blockage in her bowels, there was bad weather, she had transportation issues and had respiratory flu on and off over the Christmas holidays. During the child's stay in the hospital in February, the maternal grandmother deposed that she possible had diverticulitis and had such severe abdominal pains and diarrhea that she was unable to travel to Toronto to see S. The maternal grandmother even states that it was her lawyer who asked for daily access not her. She further states that she was sicker this winter due to the severe conditions.

[165] But the simple fact is the maternal grandmother was not available for whatever reason. Despite the many supportive affidavits filed on behalf of the maternal grandmother and her statements that she has many supports to assist her with transportation, she was unable to arrange to see her granddaughter. The society worker had asked her to look into public transportation but she neglected to do this. Dr. Knowles stated that the maternal grandmother's health had improved in the last 18 months. If S. had been in the maternal grandmother's care this last year, it is clear that she could not have managed to meet her needs. The maternal grandmother has also not been able to attend S.'s various appointments despite indicating that she wished to be involved in her medical care.

[166] Counsel for the maternal grandmother submits that the evidence of Dr. Knowles is unchallenged and a great deal of weight should be placed on her opinion that the maternal grandmother's health issues do not prevent her from caring for S. despite her special needs and that there are no concerns that the narcotics she takes to deal with her chronic pain impede her ability to care for S. The statements Dr. Knowles allegedly made to Ms. Dowds wherein she expressed concerns about the maternal grandmother's ability to care for S. are challenged as being inaccurate.

[167] At this stage of the proceedings, I find that Dr. Knowles has become an advocate for her patient rather than providing objective information to the court. Dr. Knowles' opinions are based on very limited and dated observations. I do no find that at this stage of the proceedings I can put much weight of her opinions as it is clear that the maternal grandmother's health issues over this last year have in fact impeded her ability to meet S.'s needs.

[168] It is also submitted that if S. was in the maternal grandmother's care, the maternal grandmother would be provided with special transportation for S. Although this is undoubtedly correct, if the maternal grandmother was herself ill, she would still be unable to transport S. to her various appointments and if she was ill she could not provide S. with the constant supervision she needs.

[169] The society has had a great deal of difficulty obtaining a stable foster placement for S. but currently she is in a specialized foster home that is able to meet her needs. The risk of moving her now given the many concerns raised about the maternal grandmother's ability to meet her needs is simply too great and not in her best interests.

[170] The status quo arrangements are an important factor in considering the temporary placement of any child. As stated by Justice Annis in Children's Aid Society of Ottawa v. E.S. at para. 17:

…unnecessary changes in care of the child should be avoided and that therefore, the frequency of changing the child's residency and its impact can be very relevant in an interim care and custody motion. This is all the more so if the de facto care situation has been in place for a number of months and the final hearing is fast approaching.

[171] The court is being asked to move S. now as this is the only way the maternal grandmother can prove that she is able meet S.'s needs. The maternal grandmother has had almost a year to prove that she would be able to meet this child's special needs and has failed to do so.

[172] S. requires a permanent plan. The court continues to be in a position to accommodate an early trial. It may be that after a trial with the opportunity for all issues to be explored and the evidence to be fully scrutinized that the maternal grandmother's plan is the most appropriate to meet S.'s long term needs but at this stage to move S. would jeopardize her already fragile condition.

12. CONCLUSION

[173] I find that the society has met its onus of proving that on a balance of probability that it is this child's best interests to remain in the care and custody of the society. As both counsel expressed that they wished to review the decision prior to determining if an expedited trial would be pursued the matter will be adjourned to bespoken to determine the next steps.

[174] As the respondent A.M.R. has not filed an Answer or Plan of Care though served with the documents on January 7th, 2014 I am only prepared to further extend her time to do so for a further 30 days. If nothing is filed, then subject to hearing further submission, it is my intention to find her in default. I expect that the finding of need of protection will be made either on an unopposed basis or on consent at the next court hearing.

[175] Therefore, there shall be a temporary order as follows:

1. The child, S.B.R. born […], 2010 shall be placed in the temporary care and custody of the Children's Aid Society, Region of Halton.

2. Access to the Respondent, B.K.H. shall be in the discretion of the society at a minimum of once a week. The society shall have the discretion as to the location, level of supervision, if any, and the length of the access.

3. The Respondent, A.M.R.'s time to serve and file an Answer and Plan of Care is extended to June 12, 2014.

4. The matter is adjourned to be spoken to on June 12, 2014 at 10:00 a.m. If counsel are not available on that date or wish an earlier date, the trial co-ordinator should be contacted.

Released: April 11, 2014

Signed: "Justice Roselyn Zisman"