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

DATE: April 16, 2014

COURT FILE NO.: Toronto CFO 10 10411-B3

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO, Applicant,

— AND —

C. J. and J. C., Respondents.

Before: Justice Ellen Murray

Heard on: December 3, 4, 5, 9, 10, 11, 12 & 13, 2013; January 22, 2014; February 19, 20, 21, 2014; March 3 – 4; 19 – 20; 24, 25, 26, 2014

Reasons for Judgment released on: April 16, 2014

Counsel

Ms. Yvonne Fiamengo — counsel for the applicant society

Ms. Jean Hyndman — counsel for the respondent mother

Ms. Zeenath Zeath — counsel for the respondent father

Mr. Louis Alexiou — counsel for the Office of the Children's Lawyer, legal representative for the child K.A.D.C

Ms. Deborah Stewart — counsel for the Office of the Children's Lawyer, legal representative for the child I.J.D.C

MURRAY, J.:

1. Introduction

[1] This is my decision after trial on an application brought by the Society, seeking an order of Crown wardship for the child K.A.J. (born 1998), and I.C. (born 2006). The children were found to be in need of protection on July 7, 2011. The Society's plan for K.A.J. is long term care, progressing to independent living if she stabilizes. The Society's plan for I.C. is adoption.

[2] The respondents, Ms. J. and Mr. C., are the parents of the children. They lived in a common law relationship, and have been separated since January 2009.

[3] In her plan of care, Mother requested an order that the children stay in Society care for a further 6 months, during which time she proposed that a "reunification plan" to return the children to her be developed. At trial Mother requested an immediate order returning the children to her under Society supervision. Father's plan of care requested an order keeping the children in Society care for a further 6 months, until he was released from immigration detention or until Mother was able to care for the children. At the outset of this trial, counsel for the federal Ministry of Security and Emergency Preparedness attended and advised that Father would be removed from Canada pursuant to an order of deportation when this trial is concluded. The plan which Father pursued at trial was his alternate request that I.C. be placed in his care pursuant to a section 57.1 order, and move with him to Angola. Father had also proposed to take K.A.J. to Angola, but since she does not wish to go there, he indicated that he would not include her in his plan.

[4] Each parent requests an order for access if an order for Crown wardship is made.

[5] The children are represented separately. Until shortly before trial, K.A.J.'s position was that she did not consent to but did not oppose an order for Crown wardship. She did not propose a return to the care of either parent. At the outset of trial, K.A.J.'s lawyer advised that she wished to be placed with Mother. If K.A.J. stays in care, she wishes to have access to each of her parents, and to I.C.

[6] I.C.'s lawyer advised as follows:

• I.C. does not express a clear and consistent preference for any plan. He has expressed a desire to live with Father, if Father could remain in Canada, but does not wish to be removed to Angola.

• I.C.'s clear and consistent wishes are to maintain contact with his father and K.A.J., and, to a lesser extent, with his mother. His lawyer requests an order for access to all three.

• Based on an analysis of I.C.'s best interests, she supports the Society's request for Crown wardship.

[7] The Society opposes any order for access by either child to each parent, or to each other. The Society says, however, that it plans to facilitate contact between I.C. and Father and I.C. and K.A.J. as long as that contact does not undermine the stability of the plan for I.C.'s adoption.

2. Witnesses and Evidence

[8] Evidence in chief from witnesses who are Society employees went in by way of affidavit, subject to cross-examination; these witnesses were Family Service Worker Jaclyn Kelland; former Family Service Worker Greg Martyniuk; Children's Service Worker Alexis Totino; and Adoption Worker Mary Allan. I received viva voce evidence from other witnesses called by the Society: Psychologist Dr. Daniel Fitzgerald, who assessed both children; Joey Gareri, manager of the Motherrisk drug testing laboratory, who gave evidence about the results of Mother's hair tests for drug and alcohol consumption; Malcolm McKell, coordinator of the Society's Child Access Program; G.R., Father's former spouse; A.L., I.C.'s foster mother; and Sarah Singer, the Family Service Worker for a male client who is an associate of Mother.

[9] I heard evidence from Father and from S.B., who was hired by Father as a babysitter for I.C. I also received viva voce evidence from Father's sisters C.D. and R.F. and his aunt, L.G., who live in and were testifying by remote technology from Angola.

[10] I heard evidence from Mother and witnesses called by her, Sandrine Tonoukouin, her counsellor at the Canadian Centre for Victims of Torture (CCTV), and Elizabeth Machan, Mother's aftercare counsellor from the Homestead program.

[11] After argument and for oral reasons given at the time, I received evidence of hearsay statements from both children contained in evidence from Ms. Kelland, Ms. Totino, and Ms. A.L. I.C.'s lawyer submitted a brief with documents which were said to describe conditions in Angola, which she sought to have admitted into evidence as a subject of judicial notice. For reasons given separately, I did not take judicial notice of the information set out in these documents.

3. Protection Finding

[12] On July 7, 2011, the case management judge, Justice Paulseth, heard a summary judgement motion and made a protection finding for each child pursuant to sections 37(2)(b) and (l) of the Act. An additional finding was made pursuant to section 37(2)(a) with respect to K.A.J.

[13] The evidence which Justice Paulseth found was the basis for the protection finding is summarized below:

• Mother has demonstrated a pattern of emotional instability that has prevented her from parenting the children adequately.

• Mother drinks alcohol to excess and this pattern of abuse contributes to her inability to care adequately for the children.

• Mother has struck K.A.J. several times.

4. Background Facts

[14] Both parents were born in Angola. Father joined the military there when he was sixteen, and served for two years before deserting. When he was 18 years of age in 1995 he went to South Africa to complete secondary school, where he met Mother, who was attending university.

[15] Mother and Father lived together in Angola from approximately 1997 to sometime in early 1999. At that time, Father either went to Namibia for six months to escape further military service, or he was imprisoned and tortured by the Angolan military. The first scenario reflects his evidence before this court, supported by his sisters and aunt; the second scenario reflects what he has told Canadian immigration authorities since 2004, and reflects Mother's evidence before me and her evidence to the Immigration and Refugee Board in 1999. Regardless of which story is accurate, it is clear that Father did not see Mother or K.A.J. after early 1999 until he came to Canada in 2004.

[16] Mother, who is now 37 years of age, came to Canada via the United States as a refugee with K.A.J. in the summer of 1999. As a child, Mother suffered abuse by her stepfather and neglect and abandonment by her mother and stepfather. Her evidence is that, as a young adult, she was raped and otherwise physically abused by the military, after they removed Father from the family home. Mother's refugee application was approved, and she now has permanent resident status in Canada, as does K.A.J. Mother assumed care of her younger half-siblings, S. and Z.M., in 2001 when they came to Canada from Angola.

[17] Father, who is also 37 years of age, left Angola in 2000, in an effort to join Mother and K.A.J. He lived illegally in Belgium and then in the Netherlands. Using a false passport, he came to Canada in November 2004 and claimed refugee status. He and Mother cohabited on and off from his arrival in Canada until January 2009, when they separated for the last time. Father began dating G.R. in 2009; they married in June 2012 and separated two months later.

[18] Father's refugee application was rejected in 2006, and, seeking to remain in Canada, he made a humanitarian and compassionate application, which was rejected in 2012. Ms. G.R. applied to sponsor him, but withdrew her sponsorship after their separation. Since May 2013 Father has been in detention awaiting deportation. He has launched a further humanitarian and compassionate claim. That claim will take 2-3 years to process, and will be dealt with only after he is deported. Father would prefer to remain in Canada, but since that is not currently possible; he proposes to care for I.C. in Angola.

[19] K.A.J. was born in Angola, and was one year old when she came to Canada with Mother; K.A.J. has never returned to Angola. I.C. was born in Canada, and has never been in Angola. He is a citizen of Canada and of Angola. Portuguese is the language primarily spoken in Angola. I.C. does not speak Portuguese, and K.A.J. speaks the language poorly.

5. Credibility

[20] The evidence left me with serious doubts about the credibility of Father, and about the credibility and reliability of Mother.

5.1 Father

[21] Father testified that he lied repeatedly and while under oath over the past ten years in his efforts to be permitted to remain in Canada. He offered immigration authorities a detailed account—which according to his evidence now was almost entirely false—of deserting from the army, of being falsely accused of aiding the rebel forces in Angola, of being imprisoned and escaping from prison, and of suffering brutal torture while in prison. Father enlisted friends from Angola living here and his sister C.D., who live in Angola, to write letters supporting this story. Father testified that he lied to a psychiatrist who, based on his lies, wrote a report for use in proceedings at the Immigration and Refugee Board which diagnosed Father as suffering from post-traumatic stress disorder as a result of torture suffered in Angola.

[22] Father admitted that, despite telling this court that he lied in his story of persecution in Angola that he is still relying upon that story in his most recent humanitarian and compassionate application, which asks that he be allowed to stay in Canada.

[23] Father has also lied or failed to disclose significant facts to the Society.

• When I.C. was apprehended from Mother's friend S.T. in March 2013, Father told Ms. Kelland that he had left the child with Mother's sister, Z.M., and did not know how the child came to be with Mr. S.T. This was not true; Father later admitted that – in violation of a court order-- he had left I.C. with Mother for the entire March break period.

• Father told Ms. Kelland that this was the only time that he had breached the court order which provided that the children only have supervised visits with Mother. This was not true; as will be seen below, other reliable evidence established that Father had breached this order on a number of occasions.

• When I.C. was apprehended for the second time in November 2010, Father told the Society worker that he was out of the province and therefore could not plan for I.C. This was not true; Father was incarcerated at that time.

[24] I do not conclude that all of Father's evidence is untruthful, but his lack of credibility means that I must carefully assess his evidence in the light of other evidence that supports or fails to support his testimony.

5.2 Mother

[25] Assessing Mother as a witness is a more complicated exercise than assessing Father. During the trial it was established that:

• Mother has often been inconsistent in the stories she tells to different people at various times;

• Mother's evidence clashed directly with the evidence of other credible witnesses;

• Mother's evidence often was not internally consistent.

[26] In assessing Mother's testimony I concluded that Mother sometimes lies in an effort to escape the consequences of her actions, but that often she simply did not remember an event or conversation, and was constructing what at the time appeared to her was a probable version of reality. There was evidence that Mother may suffer from problems with memory. Society workers said that Mother often appeared to forget very recent conversations or appointments, and Ms. Tonoukouin testified that memory problems are common in individuals who are victims of torture. It was notable, however, that the version of any event which Mother offered in her evidence at trial was the version which cast her in the best light.

[27] Some examples of the issues with Mother's veracity and/or reliability are set out below.

• In conversations with Society workers over the past 3 ½ years, Mother denied consuming alcohol on many occasions, occasions for which there was reliable evidence from third party observers that she exhibited clear signs of intoxication. At trial, Mother finally admitted to drinking on some of those occasions.

• Mother denied at trial that conditions of her bail or probation related to her charge of impaired driving last year required her to attend an alcohol treatment program. Her counsellor Ms. Tonoukouin testified that Mother told her the opposite—that she was required to attend such a program because of bail or probation conditions. Ms. Tonoukouin is a witness who is sympathetic to Mother, and I consider her to be a reliable reporter.

• Mother testified at trial that she "never" missed visits with the children, saying that this would be "impossible" because she loved them so much. Evidence which I consider to be reliable from several Society workers and from the children established that Mother missed many visits.

• In 1999 Mother told psychiatrist Dr. Ruth Baruch and the Immigration and Refugee Board that before she fled Angola, Father had been seized from their home by the military, that she had never heard of him again, and that she feared that he might be dead. In evidence before me, Mother testified that she had received information from a relative in the military before she left Angola that Father was safe, and that this report was later confirmed--before she met with Dr. Baruch-- in a telephone conversation with her mother.

[28] I am very cautious about relying upon Mother's evidence, and wherever her evidence conflicts with that of other reliable witnesses, I prefer the evidence of those witnesses.

5.3 Other Witnesses

[29] I found all the professionals who gave evidence--Society workers, therapists, counsellors, the foster mother, Mr. Gareri, and Dr. Fitzgerald—to be reliable. They did not overstate their evidence, admitted the limitations in the evidence, and showed no animus against either Mother or Father. I also found Ms. G.R. to be a reliable witness. Despite her separation from Father, she was careful to note positive as well as negative aspects of his parenting and behaviour. In addition, Ms. G.R.'s evidence was consistent with the evidence of both children with respect to Father's behaviour.

[30] I also found the evidence of the children to be ultimately reliable where it conflicted with the evidence of either parent. The children's evidence was received in hearsay from statements made to either the family service worker Ms. Kelland or the children's service worker, Ms. Totino. In those statements either or both of the children reported that in the period after Father separated from Ms. G.R. that Father had at times left them alone in the evenings, sometimes for the whole night; that Father had left I.C. in Mother's care on many occasions, in violation of the supervision order; and that both Father and Mother attempted to conceal this from the Society. In concluding that these hearsay statements were reliable, I considered the following factors.

• All reports are that I.C. is a bright and truthful child, a child who "blurts things out" spontaneously.

• As for K.A.J., while workers report that she may sometimes lie in order to get herself out of trouble, they testify that she will tell the truth when pressed.

• Neither child has demonstrated animus against either parent. The children love and are loyal to their parents, and take pains not to do or say anything that will mean trouble for them.

• Many of the statements made by the children were confirmed by other reliable witnesses (such as Ms. G.R.), or ultimately admitted in whole or in part by one or both of the parents.

6. History of the Proceeding

[31] This litigation was preceded by a 6-month period in 2008 during which the children were in care on a temporary care agreement when Mother was suffering a mental health crisis.

[32] The children were apprehended on May 10, 2010, after Mother was charged with assaulting K.A.J. by punching her in the head several times. At trial, Mother testified that she had drunk "a little too much" that evening, but denied assaulting K.A.J. I discount that denial, given Justice Paulseth's finding of fact on that point in making the protection finding, a finding that was not appealed, and given K.A.J.'s statement to police.

[33] The Society's original application asked for a protection finding, and requested 6 months' Society wardship. Mother was charged, and her bail conditions provided that she was to have no contact with K.A.J. The children were taken into temporary Society care. Each child has suffered several changes in placement since that time. These changes in placement, and the orders made by the court are summarized below.

• On September 9, 2010, K.A.J. was placed in the temporary care of her maternal aunt Z.M. and her husband, subject to Society supervision.

• On October 18, 2010, I.C. was returned to Mother's care because of progress she appeared to have made addressing her alcohol abuse and mental health problems. Initially the return was styled as an "extended access visit", and on November 12, 2010 a temporary order was made placing the child with Mother under the Society supervision.

• On November 18, 2010, I.C. was re-apprehended and returned to temporary Society care after staff at I.C.'s school contacted the Society, advising that Mother's emotional state was such that they could not release the child to her. I.C.'s teacher also reported that Mother presented as if she were intoxicated. Mother denied drinking, but Mr. Martyniuk noted that she was unfocussed and incoherent, and almost fell asleep mid-sentence.

• On December 8, 2010 the court reviewed Mother's plan for treatment and evidence of her support in the community and ordered that I.C. be returned to Mother's temporary care.

• In January 2011, at K.A.J.'s instigation, Father came forward with a plan to care for K.A.J. Mother supported his plan. K.A.J. moved to her father's home on February 25, 2011.

• The Society was investigating Father's plan when the principal of I.C.'s school called on March 1, 2011, advising that Mother had arrived to pick I.C. up from school and was "clearly intoxicated". She was slurring her words and unable to stand upright. A Society worker investigated quickly and Mother denied drinking. The Society apprehended I.C. and placed him in Father's care that night.

• On the Society's motion, an order was made on March 4, 2011 placing both children in Father's temporary care, subject to Society supervision. On the same day, the Society amended its protection application to request an order placing both children in Father's care under supervision for 6 months.

• In June 2011 K.A.J. advised the Society workers that she was unhappy at Father's home, although she did not allege any protection concerns. Late that month K.A.J. left Father's home and stayed with a friend's family.

• On July 6, 2011 police attended at Mother's residence because of a reported disturbance. They found K.A.J. there, although Mother was to have no contact with the child because of her bail conditions. K.A.J. told police that Father had hit her on the back, and that she would not return to him. K.A.J. was taken into care that evening, and returned to the same foster parents who had previously cared for her. A temporary order returning K.A.J. to the Society's care was made on July 11, 2011.

• On July 7, 2011 the protection findings were made.

• On July 11, 2011, the Society amended its protection application with respect to K.A.J., seeking a 6 month order of the Society wardship.

• In June 2012 K.A.J. indicated that she wished to return to Father's care, and she did so on July 4, 2012 on an extended visit.

• Father had been dating G.R. since 2009, and they had been spending numerous evenings and weekends together. They married on June 21, 2012, and moved with K.A.J. and I.C. and G.R.'s son G. (who is the same age as I.C.) into a new residence on July 1, 2012.

• On August 13, 2012, a temporary order was made placing K.A.J. in Father's care pursuant Society supervision.

• Ms. G.R. left the home she shared with Father on September 9, 2012, but was in and out of the house for the next few weeks. In late October, 2012 she and Father advised the Society that they had separated, although Father hoped for reconciliation.

• On November 6, 2012, the Society amended its application to seek a custody order pursuant to section 57.1 of the Act, placing both children in Father's custody. The Society also sought a restraining order against Mother to prevent her from attending at Father's home, alleging that Mother was disrupting the children's placement with Father.

• In early December 2012 K.A.J. came into care again, making allegations of neglect by Father and of sexual advances being made by Father's male roommate, Paolo. These allegations were not verified by the Society, but K.A.J. did not return to Father's care. An order placing K.A.J. in the Society's temporary care was made on December 10, 2012.

• On March 18, 2013, I.C. was apprehended from a man named S.T., a friend of Mother's. Father had allowed Mother to care for the child during March Break, in violation of the conditions of supervision and of the restraining order. Mother had left the child in Mr. S.T.' care, and was arrested for drinking and driving after being involved in a collision. Mother was incarcerated for a period of time.

• A temporary order placing I.C. back in Society care was made on March 21, 2013.

• Father was arrested by immigration authorities in early May 2013, and he has remained in detention since that time.

• On July 17, 2013 the Society amended its application again, seeking an order of Crown wardship for both children.

7. Statutory Framework

7.1 Options on Disposition

[34] Section 57 of the Act provides that if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, that the court shall make one of the following orders, or an order pursuant to section 57.1, that is in the child's best interests:

Supervision order

1. That the child be placed with or returned to 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 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.

[35] Father's position is that if I.C. is placed in his care and goes with him to Angola, that no further protection order is required, although he states that he and his family would voluntarily comply with any conditions placed on him by this court.

7.2 Section 70 Time Limit

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

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

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

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

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

[38] In calculating the allowable period for a child to be a Society ward, the Act provides that any time a child has spent in care under a temporary order shall be counted.

[39] By the time this trial concluded, both children had been in the Society care for a period in excess of the statutory limit – K.A.J. for approximately 36 months and I.C. for approximately 25 months.

7.3 Other Considerations on Disposition

[40] Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and wellbeing of children. A court is required before making a disposition to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent's care. I am satisfied that the Society fulfilled its duty to attempt to assist both Mother and Father.

[41] Evidence from Ms. Kelland and Mr. Martyniuk is that they frequently indicated to Mother that they could make referrals and could assist her in accessing programs and treatment to deal with her problems with alcohol and with her mental health. Mother's response was usually that she had the required information, and was (or soon would) get the help she needed. Sometimes Mother refused to sign consents for the Society workers to speak with agencies or individuals that she said were providing her with treatment, and this hampered the Society's ability to assist her. For example, when this trial started, Mother had just advised the Society that she wished to enter another treatment for alcohol abuse at the Centre for Addiction and Mental Health (CAMH), but that there was a waiting list; she refused, however, to sign a release allowing Ms. Kelland to contact CAMH and advocate for her to move up the wait list.

[42] Father did not present a plan until 2011. Ms. Kelland took K.A.J. for an intake appointment with Delisle Youth Services to initiate counselling for her and Father when they had difficulty in their relationship. The family had reached the top of a waiting list with East Metro Youth Services to receive intensive support in the home when K.A.J. left in December 2012. The Society also funded individual psychotherapy for K.A.J. in early 2013, when there was still a chance that she might return to Father's care. The Society arranged for I.C. to get the services of a social worker at school, and was willing to arrange therapy for the child, but Father did not think that was necessary. Father did not tell the Society that he needed services—such as counselling, or childcare assistance-- for himself.

[43] Father did not indicate to the Society until August 29, 2013 that he was likely to be deported and that he was pursuing a plan for I.C. to accompany him to Angola. When he did so, Ms. Kelland asked International Social Services (ISS) to contact Father's relatives in Angola in order to assess this plan. ISS replied that they do not have a relationship with any agency in Angola which could offer this service.

[44] Ms. Kelland testified that one difficulty the Society had in providing appropriate service to each parent was the parents' failure to be truthful. She said that many clients have difficulty being open with the Society, but that she usually can find a way to work with them. She testified that the failure of these parents to be honest about the basic facts about the children—who they were living with, and whether the parents were living with each other—presented a major obstacle to working effectively with either parent.

[45] Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child's best interests and whether it is possible to place the child with a relative or member of the child's community or extended family. At different times family members indicated they wanted to offer a plan for K.A.J. or for I.C. None of these individuals followed through.

7.4 Best Interests

[46] The decision as to disposition must be based on what is in the child's best interest. Section 37(3) of the Act provides that in determining best interests the Court shall take into consideration the following circumstances that are considered to be relevant:

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

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

• The child's cultural background.

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

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

• The child's relationships by blood or through an adoption order.

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

• 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.

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

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

• 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.

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

• Any other relevant circumstance.

8. The Evidence

8.1 Mother

[47] Mother has a partially acknowledged history of abusing alcohol, and, to a lesser extent, drugs, that may be related to trauma of some type. I say "may be related" because there is no expert evidence on this point. Although Mother's behaviour suggests mental health problems, there is no diagnosis or evidence from a mental health professional about Mother, except for the 2000 report from Dr. Baruch. That report does not mention substance abuse as a problem for Mother. Ms. Tonoukouin is not a mental health professional, but has experience counselling refugees who have suffered torture. She testified that Mother's history of alcohol abuse is typical of the self-medicating behaviour of other refugees with whom she has worked.

[48] Mother does admit that at times she has used alcohol to excess. According to her evidence, the first time she considers herself to have drunk to excess was in November 2010. She testified that Jean Claude Nedio, her surety (on the charge of assaulting K.A.J.), led her into this behaviour. She blames other occasions on which she says that she has "slipped" on Mr. Nedio or on others with whom she socializes, or on other traumatic events, such as the death of her brother S. in 2013.

[49] Mother says that the Society exaggerates the extent of her difficulties with alcohol. She argues that, whatever the problems she has had in the past, that there is no evidence that either child suffered in her care. She maintains that she is well on the road to recovery, and that she is able to parent both children now.

8.1.1 History of Substance Abuse and Treatment Attempts

[50] When did Mother's difficulties with substance abuse develop?

• The evidence is clear that Mother's functioning was negatively affected – either by prescribed medication or by alcohol—soon after she arrived in Canada in 1999. Mother says that the deleterious side effects of lorazepam, an anti-anxiety medication, often incapacitated her. Father says that before he arrived in Canada, Mother admitted to him that she had problems with alcohol, and said that she was attending AA. In her evidence at trial, Mother described her state prior to Father's arrival in November 2004 as "like a vegetable".

• In 2003, when she was providing care for her younger brother, S., the child suffered an injury. Mother was arrested and S. was apprehended by the Society, and placed with Z.M. The evidence did not establish whether Mother was impaired when the incident occurred. S. returned to Mother's care after two years. The criminal charges against Mother were withdrawn.

• Mother acknowledged in her evidence that she was unable to provide adequate care for K.A.J. when Father arrived in 2004, and that Father had to provide most of the care. Mother testified that by 2005, she had stopped using lorazepam.

• Society records indicate that in 2007 Mother fell down a flight of stairs while under the influence of alcohol, that she was hospitalized, and that the children were cared for by a family friend. After this incident, the Society kept an open file on the family. Mother denies that she was drinking on this occasion, but I do not accept this denial.

• As noted above, in January 2008 the children went into care under a temporary agreement. At the time of the agreement, Mother acknowledged that her alcohol consumption interfered with her providing care for the children. (She denied this at trial.) Mother was hospitalized, and upon release from hospital she went to a shelter, but was told to leave because of her drinking. She enrolled in Breaking the Cycle, a substance abuse program for mothers. The children were returned to her in June 2008, and the Society kept an open file.

• The Society received reports about excessive drinking by Mother just one month before the children's apprehension in May 2010; workers contacted her to investigate.

• Although Mother denied at trial that she was intoxicated on May 10, 2010, the night of the apprehension, she admitted to her family service worker at the time, Mr. Martyniuk that she had been drinking to excess that night.

[51] Since the apprehension in May 2010 Mother has made sporadic efforts to seek treatment for alcohol abuse and/ or any mental health problems she may have, but failed to follow through with any plan until she completed the Homestead residential program in June 2013. Unfortunately, she has failed to take sufficient steps since that program to maintain sobriety, and has relapsed more than once.

• In the fall of 2010 Mother advised Mr. Martyniuk that she was motivated to "make changes in her life". She had contacted rehabilitation programs in which she planned to enrol, and said she was counting on the support of others from her church congregation of Jehovah's Witnesses.

• Mother later suggested to Mr. Martyniuk that her behaviour was really the result of trauma to the brain, the result of abuse by her step-father, and not intoxication. The Society urged her to have this theory investigated, but Mother took no steps to do so.

• The Society strongly recommended that Mother obtain a psychiatric assessment. Mother testified that she did not obtain a psychiatric assessment because that would "take too long". Instead, she went to her family doctor, who recommended that she use herbal remedies and drink chamomile tea.

• Although Mother did finally attend for intake for a mental health assessment with a psychiatrist, a Dr. Arbitman, in 2013, she failed to follow up. The assessment could not be completed.

• There is no evidence that Mother participated in any treatment programs for alcohol abuse or for mental health problems in 2010 and 2011. In late 2011 Mother started the intake process at Elizabeth Fry to receive service, but she did not follow through to connect with programs.

• Mother started the intake process at CAMH for an alcohol treatment program in April 2012, but stopped attending.

• In April 2013, as a condition of her bail on the impaired driving charge, Mother began a residential alcohol treatment program at Homestead offered by the Salvation Army, and completed this program in June 2013.

• Mother failed to complete the steps set out in her Homestead aftercare program within the expected timeframe, but did complete some of these steps by the conclusion of the trial.

• Part of Mother's aftercare protocol required monthly urine screens; she cooperated in only one such screen.

• Part of Mother's aftercare program provided that she would participate in counselling with Ms. Tonoukouin of CCTV, whom she had started to see in the spring of 2013. Ms. Tonoukouin directed her to a CAMH program, for additional support.

• At trial, Mother testified that the CAMH program did not suit her, and that she needed "discipline". Instead of pursuing that program, Mother has attended services at Kingdom Hall more frequently than before, and has gone to various drop-in counselling services. She continues to see Ms. Tonoukoiun infrequently.

• Mother acknowledged at trial that she has not been honest with either of her aftercare counsellors, Ms. Machan at Homestead and Ms. Tonoukouin of CCTV, about the extent of the relapses into alcohol use she has had since completing the Homestead program. Both counsellors testified that a lack of candour about her alcohol use was an obstacle to their providing effective support.

[52] At trial Mother acknowledged that she has relapsed several times since she completed the Homestead program. She testified that the last time she had a drink was sometime in January 2014. No evidence from hair or urine tests was offered to support this assertion. Mother said that she is confident that she will be able to abstain from alcohol because she has the support of her religious community and because she has security in her new job, a permanent position with benefits, cleaning Go-train cars. Mother said that if K.A.J. and I.C. are placed in her care, that will be a powerful motivation for her to stay sober.

8.1.2 Alcohol and Mother's Behaviour

[53] Throughout the entire almost four years since the children were first apprehended in May 2010-- with the exception of a few weeks after Mother completed the Homestead program--there have been regular reports that Mother has been intoxicated on visits and in interviews with Society workers and in the community. K.A.J. is the first to detect this, and has confronted Mother about her behaviour; for some periods, K.A.J. has refused to attend visits because of her disgust with this behaviour. When intoxicated, Mother is distracted, inattentive, sometimes angry, and sometimes has fallen asleep during the visit. There have been a number of occasions on which visits have been terminated because of Mother's intoxication.

[54] Workers testified that Mother had also come intoxicated to office meetings and even to court. When asked, Ms. Kelland testified that she could detect that Mother had been drinking because of her manner—flustered, inarticulate and dishevelled—e.g., with the front of her garment open, exposing her chest.

[55] Ms. Kelland testified that Mother's behaviour after she finished the Homestead program was a glimpse into what she could be like when she was not drinking. She described Mother as being organized and articulate, not slurring her words or unsteady on her feet, as she had often been in their previous interactions.

[56] Unfortunately, this change in behaviour only continued for a month. By August 2013, Mother attended at the Society offices in a condition which indicated that she was drinking again. Her sister Z.M. complained to the Society that she had shown up at her home in an intoxicated state. In the same month, K.A.J. again detected on visits that Mother was drinking again. A visit on September 23, 2013 had to be terminated because of Mother's intoxication.

[57] Society worker Sarah Singer testified that in October, 2013 she made an unannounced visit to a client whom I will call C.J. and his children. While Ms. Singer was there, Ms. J. came to the home in an intoxicated state; she was "swaying", supporting herself by the wall as she made her way to the washroom. Ms. Singer understood that Ms. J.'s unwanted attendances at their home was a problem for the family, and asked her to leave. Ms. J. reacted aggressively, but complied. The Society subsequently obtained an order restraining Ms. J. from attending at the family's home.

8.1.3 Results of Hair Testing for Mother

[58] On consent, I qualified Mr. Gareri as an expert in the use of hair testing to monitor alcohol and drug use and in the effect on behaviour and judgement of the use of these substances.

[59] Mr. Gareri testified about hair tests conducted on Mother covering time periods spanning most of the time from December 2011 to October 2013. The tests monitored use of alcohol, and some other drugs, such as cocaine, cocaine derivative, and marijuana. Two markers for alcohol were employed which greatly reduced the possibility of any false negative results.

[60] The results of all three tests support a finding of chronic, excessive use of alcohol at a very high level over the period in question. The tests cannot demonstrate a pattern—e.g., tell us whether alcohol is consumed in a specific amount daily, or in more sporadic amounts—but do give information as to average usage. The cut-off level required to register as "chronic excessive" alcohol use on the test is an average consumption of 4-6 "standard" drinks per day. Ms. J.'s results on all three tests are "well above" that cut-off level.

[61] Mr. Gareri's evidence is that Ms. J.'s results are not consistent with an occasional binge episode. For the first two time periods, the alcohol consumption results indicated drinking at a level which he described as a "very high" result—among the highest reported from clinical populations. Although the results from the last test, covering the period after Ms. J.'s completion of the Salvation Army program, show decreased consumption, the consumption is still at very high levels.

[62] The first two tests, covering the period from December 2010 to February 2012, also indicated cocaine use at relatively low levels, levels which suggest infrequent use or frequent passive exposure.

[63] Mr. Gareri's evidence was that test results in themselves are not evidence of addiction; that is a medical diagnosis. He also cautioned that if results are disputed, that one should look to other indicators of consumption to assess an individual, indicators such as community reports of behaviour consistent with intoxication, in the past or current with the time being tested. In Ms. J.'s case, there are frequent reports from various individuals of behaviour indicating intoxication during this period.

[64] Mr. Gareri testified as to the likely effects on behaviour and judgement of alcohol consumption at the level indicated for Ms. J.:

• Sedation—could be difficult to arouse

• Impairment of response and judgement—when drinking and even when not (withdrawal triggers symptoms)

• Diminished impulse control

• Diminished ability to regulate her emotions; possibly increase of aggressive behaviour

• Motor impairment

• Impairment of memory.

8.1.4 Visits Between Mother and the Children

[65] Workers agree that when Mother attends visits and when she has not been drinking that her interactions with the children are positive and appropriate. The children enjoy singing, dancing, reading or simply talking with her.

[66] However, Mother has been inconsistent in attending visits, and her non-attendance has been painful and upsetting for both children. The Society took concerted steps to try to insure her attendance on visits. It obtained an order requiring Mother to call to confirm a day in advance. After several incidents on which Mother called to confirm a visit and still failed to attend, the Society obtained an order that required that she also attend at least one hour before a visit. This check–in allowed Society workers not only to insure Mother's attendance, but to monitor her sobriety. Only when Mother showed up and seemed sober did the Society call the children's caregivers to bring the children to the office for a visit.

[67] When Mother does attend visits after she has been drinking, her behaviour is upsetting to the children. As set out above, K.A.J. has had to chide her on more than one occasion for coming to a visit intoxicated. There have been repeated occasions on which Mother comes but is inattentive, even falling asleep during a visit. At other times, she insists, despite being warned against this, in telling I.C. that he will be returning to live with her soon, or she makes negative comments about the child's foster parents to him.

8.2 Father

[68] Father said repeatedly in his evidence that he knew he had lied frequently in the past, and knew that he had made mistakes, but that he was always doing what he felt he had to do to be with his children. It is painful to him that the children have often been apart from him.

8.2.1 Father's Involvement with the Children Prior to Apprehension

[69] Father and Mother had an on-and-off relationship from the time he came to Canada in November 2004 until their final separation in January 2009. Father's evidence is that they cohabited during the periods below:

• October 2004-December 2005;

• May 2006-December 2007;

• July 2008-January 2009.

[70] Mother agrees with this timeline, except to say that he moved in and out of the home from May 2006- November 2006. During some of these periods, Mother worked outside the home and Father remained at home.

[71] The parties agree that, at least during their first year of their cohabitation Father provided most of the care for K.A.J. because Mother was unable to do so, as she was incapacitated because of the effects of alcohol (according to Father) or lorazepam (according to Mother).

[72] During the parties' periods of separation prior to the children's apprehensions, the children remained in Mother's care (except for January-June 2008, when they were in care on a temporary agreement). During these periods, Father visited with the children; the evidence was unclear how regular those visits were.

[73] The parties' first separation took place in December 2005, when Mother alleged that Father slapped her during an argument about her dependence on lorazepam. His bail conditions provided that he was to have no contact with Mother. Father quickly violated this condition, with Mother's acquiescence, and he was detained until May 2006, when he resolved the charges by pleading guilty to failure to comply with his bail conditions. The assault charge was withdrawn. Father testified that he has never been violent to Mother, but that they often argued.

[74] After his release in May 2006, Father briefly joined Mother in Montreal, where she had gone with K.A.J. He returned to Toronto, she followed, and they began living together again in July 2006. Father testified that when they reconciled, Mother had her drinking under control, but that she quickly relapsed. Their separation in December 2007 occurred because Father could not tolerate Mother's continued drinking (according to Father) or because of Father's infidelity (according to Mother). Within a month of the separation, Mother had a breakdown and the children went into care pursuant to the voluntary agreement.

[75] Mother and Father resumed cohabitation when the children were returned in July 2008. Father testified that Mother's drinking was again under control, but that she began drinking more and more, and that he left for a final time in January 2009. Again, Mother testified that Father's infidelity was the reason for their break.

[76] Father worked as a carpenter in the construction industry prior to his detention by immigration authorities in May 2013. At the time the children were apprehended in May 2010, he was sharing an apartment with Paolo, a friend from Angola. From the time of the apprehension until the children were placed with him, Father, with the Society's approval, had regular, unsupervised access to the children, access which included overnight stays.

[77] Father was asked several times in cross-examination why he did not contact the Society when Mother's drinking accelerated, times when he acknowledged that she could not safely care for the children, or why he did not act to gain custody of them, and why after the apprehension he did not put forth a plan to care for the children himself prior to 2011. Father explained that as an illegal immigrant, he was afraid to engage with a government agency, a fear that he finally overcame when he saw in 2011 that Mother was unsuccessful in having the children returned to her.

8.2.2 Father's Relationship with G.R.

[78] As set out above, Father began a relationship with G.R. in June 2009. They married in June 2012, but separated in early September of that year. They attended counselling in an effort to mend the relationship, but by the end of December 2012 Ms. G.R. told Father that she would not reconcile with him. She applied for divorce, and the divorce was recently granted.

[79] Prior to their marriage Ms. G.R. and Father spent many evenings and most weekends together. After the children went into care in May 2010, time with Father (first on access, and after March 2011, on placement with him) also usually meant time with Ms. G.R. and G. The boys quickly became fast friends, and I.C. still refers to G. as his "brother".

[80] Ms. G.R. was responsible for much of the social organization on weekends—trips to parks, museums, Canada's Wonderland, and family visits. However, she had long working hours, and Father was still responsible for everything involved in the care of I.C. and K.A.J. during the week--getting the children up and out the door in the morning, making lunches, and preparing their evening meals.

[81] Mother deeply resented Ms. G.R.'s place in the children's lives, and when they began living with Father she began coming frequently to his home, unannounced, ostensibly to see the children. These "visits" were in violation of Mother's bail conditions (with respect to the charges related to K.A.J.) and the conditions of the protection order governing children's placement with Father.

[82] Mother's harassment of Father and Ms. G.R. had significant negative effects on the children. For example, on one occasion Mother stood on the street outside Father's home, yelling that Ms. G.R. was a "fat white bitch", and accusing her of stealing the children. I.C., K.A.J., and G. were present, and were very upset. On more than one occasion, Father, Ms. G.R. and the children had to vacate his apartment to escape Mother's harassment. Ms. G.R. testified as to an occasion when Father called her, asking that she come "rescue" him and the children, as Mother had gained entry to the apartment and would not leave. Ms. G.R. attended, to find Mother holding on to I.C., screaming; I.C. was crying. After a prolonged argument, Mother released the child, and Father and the two children fled with Ms. G.R., leaving Mother alone in his apartment.

[83] Father was unwilling or unable to control Mother's behaviour. He, sometimes joined by K.A.J., would try to persuade her to leave, but she would only leave when she wanted to. At Ms. Radford's urging, the Society applied for a restraining order against Mother. It was granted on December 19, 2012, but by that time, the relationship between Father and Ms. G.R. was over. At trial Father testified that he had only asked for the restraining order at Ms. G.R.'s urging, and had never really wanted it.

8.2.3 Father's Separation from Ms. G.R., and Subsequent Care of the Children

[84] After his marriage to Ms. G.R., Father began to withdraw from responsibilities for the children. He began staying away from home to party with friends until the early morning hours. Ms. G.R. testified that she "did everything" with respect to the children—enrolled them in summer activities, did the housekeeping and meal preparation, paid most of the household bills, and drove them to visits with Mother. At the beginning of the school year in September 2012 she took all three children to separate schools each day.

[85] Ms. G.R. and Father had planned a more formal wedding celebration for the fall of 2012. Their separation was triggered by an incident in September 9, 2012, an evening on which Ms. G.R. was to attend her bachelorette party. She discovered that, contrary to their arrangement, Father did not stay home with the children—he was out drinking. This was a last straw for her—she moved out with G., coming back to the home periodically over the next two months to gradually remove her belongings.

[86] Father acknowledged in his evidence that after Ms. G.R. left, he felt "lost". He drank too much, and on at least one occasion used cocaine. He left the children alone, including some nights when they were left all night without an adult in the house. K.A.J. was increasingly upset at Father's behaviour.

[87] The last time Ms. G.R. saw Father was on the evening at the beginning of March break in 2013, after he had left I.C. with Mother. He had been drinking that evening, and was upset. He asked her to reconcile, and she refused.

8.2.4 Father's Immigration Status

[88] Although Father's applications to remain in Canada were never approved, there were periods when he was not subject to imminent deportation, as he is now. He has risked deportation more than once, when he failed to comply with reporting requirements, or, on one occasion, when he was arrested on driving-related charges.

• Father failed to comply with a letter requiring him to attend at immigration offices in 2006, after his refugee claim was denied. A deportation order and warrant for his arrest were issued.

• However, Father remained at large until late 2010, when he was arrested and charged with impaired driving and the immigration warrant came to light. He remained in detention for a month, until Ms. G.R. hired a lawyer and posted a bond. The lawyer submitted a humanitarian and compassionate application, which was rejected in June 2012.

• At that point Father planned with Ms. G.R. that she would sponsor him. However, the paperwork for the sponsorship application was not complete when the parties separated in September 2012, and Ms. G.R. did not go forward with the application.

• Father failed to advise immigration officials of his change of address after the separation. He missed a reporting date in April, 2013, which triggered the warrant, and has remained in detention since.

[89] Although Father told the Society in early 2011 that he was a failed refugee claimant, he assured them that he had the situation "under control". He never disclosed the facts which would have made it clear that his ability to remain in Canada was tenuous, facts which would have affected the Society's planning for the children. Equally important to me is the fact that Father, given his jeopardy, never took steps to develop an alternate plan for the children if he were to be deported until the 11th hour, in late August 2013, when he told Ms. Kelland that he wanted to take I.C. with him to Angola if he had to leave Canada. If Father had been open with the Society about his situation and had developed an alternate plan, it is possible that some means of assessing that plan in Angola could have been devised. Given his very late and only partial disclosure of this plan, no independent investigation was possible.

8.2.5 Father's Plan in Angola

[90] Evidence from Father's sisters and aunt described an impressive plan and support system for Father and I.C. in Angola. Father has four aunts and numerous cousins living in the Luanda area.

[91] Although Angola is a poor country, according to the evidence from Father's relatives, his family members enjoy a comfortable middle class or upper middle class lifestyle.

[92] Father's aunt L.G. is a lawyer employed by a multi-national company, and her husband is a geologist working for an oil company. His sister C.D. has a degree in business administration and works for GE; she and her husband own a pharmacy business. His sister R.F. owns a catering business and her husband is the chief of security for BP Angola.

[93] Their evidence was that they all enjoy comfortable incomes, own their own homes, send their children to private schools, and have their medical needs met through private medical insurance.

[94] Father only notified his family that he might be returning to Angola with I.C. in August or September of 2013. L.G., C.D., and R.F. testified that they began planning when they heard this news. R.F. contacted a child psychologist who met with the family and gave them advice about how to assist I.C. in making what would be a difficult transition—going to a new country, learning a new language, and meeting an extended family that he knows only slightly through occasional Skype contact over the past three years. R.F. and L.G. said that this psychologist was prepared to work with I.C. and the family when he arrived.

[95] The plan Father's family devised is comprehensive.

• Father and I.C. will live with R.F.'s family in their 4-bedroom condo for a transitional period. R.F.'s family speaks English as well as Portuguese.

• Father and I.C. can then move to one of several rental homes she owns in Luanda, free of charge.

• I.C. will attend the same school as R.F.'s daughter.

• Father will find employment. R.F. and C.D. testified that they believe that he could get a job with one of the oil companies based in Luanda. C.D. added that he would always be able to have a position at her family's pharmacy business.

• L.G., R.F., and C.D.'s evidence is that they have established a fund with sufficient monies to cover all of Father's expenses for the first year, including expenses for school tuition and extracurricular activities for I.C. and for medical insurance. They said that if Father needs further financial support after that time, they are willing and able to support him and I.C.

[96] L.G., R.F., and C.D. all said that they did not believe that there was a problem with personal security in Luanda, although there perhaps might be in other areas of the country. None of them believed that Father would be in any danger if he returned.

[97] C.D. was questioned about a letter she wrote in 2011, which Father used in his dealings with Canadian immigration, a letter which stated that men from the army had come to her home looking for him, and that she was afraid for his safety if he returned, because others like him, who had deserted, had "disappeared". She testified that she did not realize that the letter was being used by him in his dealings with Canadian immigration, and that in fact she had gone to a government office only two weeks after the letter was written and had been told that Father's military status was "regularized". (R.F. testified that she had made the same inquiries more recently, and had the same understanding). Father later testified that C.D. had lied—at his behest—in writing this letter. C.D. in her evidence did not say that she lied.

[98] When Father's relatives were cross-examined, it emerged that there were many things about his life in Canada of which they were unaware. They knew that Mother had a problem with alcohol, and that the Society was involved with the family because of this. They knew that I.C. had been taken back into care because Father had let Mother care for him, contrary to a court order. They said that they knew very little of Father's immigration problems or criminal convictions for impaired driving or breach of recognizance. They were unaware that he had been claiming for the past ten years to have been imprisoned and tortured in Angola.

[99] Father testified that he intends to follow the plan devised by his family, and that he is certain that he can offer I.C. a stable home and future that keeps him connected to family and to his Angolan heritage. Father said that if K.A.J. wants to come visit in Angola, he will welcome her warmly and pay her expenses. He would also like to send I.C. back to Canada to visit K.A.J.

8.3 The Children

[100] Instability has marked the lives of both these children. Both have been in and out of care on eight different occasions. K.A.J. has had 14 different placements, and I.C. has had five placements. The children have suffered frequent changes not only in their caregivers, but in their whole environment—neighbourhood, school, friendship network. This trial itself has contributed to that instability. As will be seen below, both children's mental health has deteriorated over the five months which was required to complete the case.

8.3.1 I.C.

[101] It seems that everyone who comes into contact with I.C. describes him as "charming" and "delightful". Besides I.C.'s attractive personality, two other characteristics are often noted: his high activity level and his intelligence. I.C. is a child who is "always on the go", who is impulsive, and who requires very close monitoring and supervision to insure his safety. For example, I.C.'s current school did not allow him to leave the building during recess when he started there this past September, because staff found it difficult to prevent him from running into the street. I.C.'s self-control improved sufficiently within two months that he was allowed him to participate in playground activities during recess, but he still required careful supervision.

[102] Dr. Fitzgerald reported that I.C.'s cognitive abilities are within the "high average" range of functioning. His hyperactivity and impulsivity are consistent with a diagnosis of ADHD. Although I.C. does well at school, Dr. Fitzgerald testified that the child's abilities could be better developed if his ADHD was better controlled, and if he was able to enjoy a stable home situation. Dr. Fitzgerald recommended that the child's doctor consider medication for this ADHD, and that he become involved in individual play psychotherapy to help him process and understand the difficult changes in his life.

[103] When this trial began in December 2013, I.C. had just begun taking Ritalin; it was not clear to his foster mother that the medication had much effect on his behaviour. The child was still on a waiting list to begin the play therapy recommended by Dr. Fitzgerald.

[104] Before Christmas 2013 I.C.'s emotional health began to deteriorate. He began to talk to teachers about wanting to hurt himself. He told Society workers that conflicts with children at school were the cause of his upset, and not "family stuff". The Society arranged for him to be seen by another doctor, who changed his medication, and increased its efforts to arrange play therapy. However, in February 2014 I.C. became more agitated. Outbursts at school resulted in two trips to hospital emergency to be seen by a psychiatrist. On the last occasion, I.C. had swallowed several coins.

[105] The Society became concerned that I.C.'s foster mother Ms. A.L. was being overwhelmed, and considered moving the child. They arranged for the other very high needs child being cared for by Ms. A.L. to be transferred. Ms. A.L. then seemed more able to deal with I.C. When this trial concluded on March 26, 2014, I.C. had just begun play therapy.

[106] Dr. Fitzgerald's evidence is that I.C.' s caregiver must not only have the energy to constantly monitor the child and provide him with appropriate stimulation, but must provide I.C. with a "model for self control", a model which he can internalize to deal with his impulsivity.

8.3.2 I.C.'s Relationships

[107] Evidence from Society workers with respect to visits and evidence from the foster mother, Ms. G.R., and Dr. Fitzgerald establishes that I.C. has a strong positive relationship with Father and with K.A.J.

I.C.'s Relationship with Father

[108] The Society acknowledged the strength of I.C.'s relationship with Father relationship for almost two years during which it supported his plan for the child. Workers said that Father related well to I.C., and that the child looked up to him. Since I.C. was apprehended in March 2013, workers report that Father is generally appropriate and child-centred on visits and in telephone contact. He gives I.C. "positive" messages, such as urging him to obey his foster mother.

[109] I.C. looks forward to seeing his father very much. Father's detention has meant that I.C. has had only two face-to-face visits with him since May 2013; that has been very difficult for the child.

[110] I.C. understands that his father has been "uninvited" to Canada, and that his contact with Father will be likely very limited if I.C. stays in Canada after Father leaves the country. On one occasion I.C. said that he wanted to go with Father, but he has not repeated this wish. I.C.'s lawyer says that the child is clear that he does not want to go to live in Angola. She points out that I.C. does not speak Portuguese and does not know Father's family. She says that I.C. does not want to lose contact with K.A.J. and with Mother and with the world which he knows.

I.C.'s Relationship with K.A.J.

[111] I.C.'s relationship with K.A.J. is very strong, and generally positive. Because of the difference in their ages and their difficult history, K.A.J. has in fact been I.C.'s caregiver for much of his life. Society workers testified that K.A.J. usually acts very responsibly with respect to I.C. She is child-centred and protective. Even when Mother's behaviour and lack of consistency has meant that her schedule of visits with the children has been cut back, the children have both wanted visits to continue so that they could see each other, and the Society has facilitated these visits.

[112] There is one respect in which K.A.J. has not always acted in I.C.'s best interests, and that concerns I.C.'s contact with Mother. As will be seen below, K.A.J. at times feels that she has to "save " Mother, and she will take actions which she otherwise recognizes are ill-conceived to accommodate her. Sometimes I.C. is involved in K.A.J.'s efforts. For example, on one occasion in the fall of 2012, at Mother's instigation, she kept I.C. home from school—saying that he was sick—and took the child to spend the day with Mother. On other occasions she has surreptitiously arranged telephone contact between Mother and I.C.

I.C.'s Relationship with Mother

[113] I.C. does not express the same level of interest in seeing his mother as he does in seeing his father or K.A.J. With one exception, he has never indicated a wish to live with her. He does not talk about her or ask to see her when she is not present.

[114] Father describes the child's relationship with Mother as "strong", but this view is not shared by other observers. Workers who supervise visits report that there are positive moments between them, but that too often Mother has simply not attended visits, or when she is present has been distracted or "out of it", falling asleep or sitting slumped and unengaged while K.A.J. plays with I.C.

[115] This is not to say that I.C. does not have love for Mother. In December, 2013, he told her on a visit that he loved her "to infinity". Several witnesses testified as to the importance of "family" to I.C., and he is clear that his family includes Mother.

8.3.3 K.A.J.

[116] K.A.J. has had even more changes in her home life since 2008 than I.C. has endured. She has had 14 placements since she was ten years old. Even when she has been officially placed with one person, she has in fact spent periods living with others—with Mother, or with friends.

[117] K.A.J. has many strengths. Ms. Totino knows her well, and described her as a "very sociable" child who makes friends easily, who is insightful, who is loyal to her parents and to I.C., and who sees herself as an advocate for others.

[118] Dr. Fitzgerald found that K.A.J. suffered from chronic depression, and has strong unmet dependency needs and significant doubts about her own worth as a person.

[119] K.A.J. was assessed by Dr. Fitzgerald as having low average cognitive abilities. She has had difficulty in school, and the Society has been providing a tutor for her.

[120] Dr. Fitzgerald's evidence is that K.A.J. requires a caregiver who is consistently available, who understands the features of her depression, and who is vigilant in monitoring her tendency to act out in self-harming behaviours. K.A.J.'s caregiver must be able to advocate for appropriate services and work well with service providers to support the child.

[121] K.A.J. has not been able to settle while in care. In her placements, K.A.J. follows a pattern of pleasant and compliant behaviour at first, followed by failure to follow house rules and less pleasant behaviour, leading to a request by her to change the placement. K.A.J. has been living in a therapeutic group home for girls since August 2013. That placement has followed the pattern of previous situations. Immediately prior to the commencement of this trial, K.A.J. AWOL'ed for several days. She was found at Mother's home.

[122] When Ms. Totino testified on February 21, 2014, she reported that K.A.J.'s situation had become even less stable. There are frequent lengthy AWOL's from the group home. On these occasions, the Society sometimes does not know where K.A.J. is for days. She may go to friends, or to Mother. On one occasion, she ran to the home of a volunteer driver, Ms. Livingston, and asked if she could stay with her. The Society approved this as a place of safety, and began to assess the placement, but it quickly broke down.

[123] K.A.J.'s instability has meant that she has not been attending school, and that the Society has been unable to arrange for counselling for her. Ms. Totino testified that her best hope for K.A.J. was that the prospect of independent living would motivate her to "stay put" for a while. Ms. Totino has told K.A.J. that the Society will seriously consider this option, if K.A.J. stabilizes in her current situation. K.A.J. has told Ms. Totino recently that she wants to pursue this goal. Ms. Totino believes that the child may be able to do this, when this trial is completed.

8.3.4 K.A.J.'s Relationships

K.A.J.'s Relationship with Mother

[124] Mother was K.A.J.'s only caregiver for the first six years of her life, and her primary caregiver for most of the next five years. K.A.J.'s relationship with Mother is very, very strong.

[125] K.A.J. has shown that she has a keen appreciation of her mother's difficulties with alcohol abuse and mental health. She is usually the first to discern that Mother has been drinking. She has repeatedly confronted Mother about her failure to deal with her drinking and related behaviour. But, as indicated above, K.A.J. is loyal. She sometimes feels guilty about "abandoning" Mother. At those times, she thinks that she is the only one who can support Mother to stop drinking. K.A.J. sometimes recognizes that if she becomes Mother's caregiver, she is damaging her own development. For example, last summer K.A.J. wanted to obtain the Society's consent to a change in placement, K.A.J. wrote to her worker that if the Society agreed to her proposed change that she would "stop trying" to manage her mother.

[126] Despite K.A.J.'s instructions to her lawyer at the commencement of the trial that she wanted to live with Mother, other evidence has indicated that K.A.J.'s views on where she wants to live and whom she wants to be her caregiver change from day to day. Ms. Totino reported that in February 2014 K.A.J. told her at one point that she did not even want to see her mother, that she want to live with Ms. Livingston; later she said that she wanted to return to live with her aunt Z.M. K.A.J. has told Ms. Totino that she knows that she won't be able to "settle" or figure out what she wants while her mother is in her life: "she takes up all my energy".

K.A.J.'s Relationship with I.C.

[127] As indicated above, K.A.J.'s relationship with I.C. is very strong. It is as important to K.A.J. as it is to I.C. No matter what order is made with respect to K.A.J.'s placement, she wants to continue her relationship with I.C.

K.A.J.'s Relationship with Father

[128] K.A.J.'s relationship with Father has generally been positive, although not nearly as strong as her relationship with Mother. Since this case began, K.A.J. has twice asked to live with Father. The placements have broken down when she has asked to be moved. K.A.J. loves Father, but has expressed the feeling that when he did offer her a home, that he was doing it out of duty, and not because he sincerely wanted to care for her. After Father's relationship with G.R. dissolved, K.A.J. was very upset when Father left her and I.C. alone.

[129] When K.A.J. has been in care, she has had good visits with Father. She has continued to visit him since he has been in detention. She is clear, however, that she does not want to return to his care, and is particularly clear that she does not want to leave the country.

9. Analysis

[130] I have analyzed each plan provided for each child in the light of the best interests factors set out in s. 37(3) of the Act, and have concluded that it is in I.C.'s and K.A.J.'s best interest to be made Crown wards. My reasons are set out below.

9.1 Mother's Plan

[131] Mother's plan has positive aspects.

1. Ms. J. is the children's mother. That relationship is significant for I.C., and very significant for K.A.J.

2. Mother loves the children, and each of them loves her.

3. When Mother is functioning well, she has good interactions with the children. When she has been functioning well, she has been able to meet their needs. For example, Dr. Fitzgerald testified that I.C.'s cognitive development indicated that he had received appropriate stimulation early in life, at a time when Mother was his primary caregiver.

4. The children's heritage is Angolan and Canadian. Mother is active in the Angolan community here, and has permanent resident status in Canada. Hers is the only plan likely to give the children a connection to both Canadian and Angolan culture. She is also able to insure that K.A.J. receives Canadian citizenship.

5. Mother has stable housing. She has maintained the same apartment for the past 5 ½ years.

6. Although no plan offers the children perfect continuity of care, placement with Mother would put the children back with a caregiver very familiar to them. K.A.J. was in Mother's care (and sometimes with Mother and Father together) from birth until May 2010. I.C. lived with Mother (and sometimes with Mother and Father together) until he was 4 ½ years old. Both children have continued to see Mother on visits over the past three years.

7. I.C.'s strong wish is to remain in Canada. K.A.J.'s wish – at least some of the time – is to live with Mother. The children are clear that they want and need to continue to have frequent contact with each other. They also want continued contact with Father, as far as that is possible when he goes to Angola. Mother's plan would facilitate these wishes.

[132] The negatives in Mother's plan far outweigh the positives. Those negatives are:

• Mother's unstable lifestyle.

• Mother's alcohol abuse

• Mother's failure to appreciate the children's emotional needs.

[133] Whether because of her untreated mental problems or because of her drinking, Mother's situation has not been stable. Over the past three years she has been incarcerated three times, has had a number of changes of employment, has had many episodes of intoxication, and has had periods of estrangement from her only relative in Canada, her sister Z.M.

[134] Mother has a history of abuse of alcohol and/or other substances that goes back at least ten years. She acknowledges the deleterious effect that her alcohol consumption has had on her ability to parent her children, illustrated by:

• the instances on which she went intoxicated to I.C.'s school and he was apprehended;

• the times she came to visits in an impaired state, and was incoherent or fell asleep; and

• the incident just a year ago in which she was incarcerated after becoming involved in an accident while intoxicated, causing I.C. to be apprehended a fourth time.

[135] Mr. Gareri's evidence, which is undisputed, sets out the short and long term risks posed by excessive alcohol consumption by a parent, risks which can continue during withdrawal. Mother has demonstrated the behaviours he described.

• Sedation—her inability to be aroused by I.C. during a visit.

• Diminished impulse control/aggressive behaviour—her continued harassment of Father and G.R., which affected the children negatively.

• Poor judgement—e.g., the behaviour by Mother described above when I.C. was in her care; also, the messages to I.C. critical of his foster placement, and assuring him that he would return to her soon; her requests to K.A.J. to facilitate secret meetings and communication with I.C., and to lie to the Society about this activity.

[136] In the almost four years since K.A.J. and I.C. were first apprehended, Mother made no concerted effort to deal with her alcohol use until April 2013, when she enrolled in the Homestead program, perhaps motivated by the necessity to achieve a favourable resolution of her impaired driving charge. Whatever Mother's motivation, she is to be congratulated for completion of the program.

[137] However, it is far too early to tell if Mother will be successful in dealing with her abuse of alcohol. The evidence of her attendance on visits and contacts with Society workers in the fall of 2013 indicates several times that she has been intoxicated. Mother admits relapsing at least twice herself, and says that her last drink was consumed in January 2014.

[138] We have only Mother's word that this was her last drink. Mother reports that she obtained employment in January 2014, and continues to be employed. This could be some indication of progress towards sobriety. However, I note that although it was open to Mother to arrange for regular urine screens since January 2014 to confirm her sobriety, she has not done so.

[139] Mother has some support available in her efforts to remain alcohol-free from Ms. Machan of Homestead and from Ms. Tonoukouin of CCTV, but that support is of very limited value, as evidence indicated that Mother has not been forthright with them in reporting her relapses. Ms. Machan agreed that this lack of honesty compromised the value of any assistance she could offer.

[140] The risk of physical harm posed to I.C. by Mother's substance abuse are clear. He is a high energy, sometimes impulsive child who requires very close supervision. Mother cannot provide this.

[141] Mother's substance abuse does not pose the same risks to K.A.J. as to I.C., but there are still risks. Evidence shows that Mother can be angry and aggressive when drinking; she in fact hit K.A.J. on one such occasion.

[142] Either child would also be at risk with Mother if she again chose to drive after drinking, and had that child with her.

[143] An equally concerning risk to the children if in Mother's care stems from her inability to see their emotional needs. Mother's evidence demonstrates that she views both children as supports that will help her reach her goal of becoming sober, not as individuals who have their own needs.

[144] Mother's actions do not indicate an awareness of I.C.'s emotional needs. She has demonstrated this on many occasions—for example, by her aggressive and uninvited attendances at Father's home when I.C. was in his care, which upset I.C. greatly.

[145] I have already spoken of the danger that K.A.J. will simply become Mother's caregiver, to the detriment of her own development, if she is placed with Mother. What would allow this process to unfold is Mother's blindness to K.A.J.'s own needs.

[146] Despite these negatives, I seriously considered placing K.A.J. with Mother because of the risks to K.A.J. posed by her frequent AWOL's while in care, and her stated although inconsistent desire to live with Mother. Ultimately I rejected this option, as I have no reason to think that Mother can provide better oversight or support to K.A.J. than the therapeutic group home in which she is currently placed, or that K.A.J. would stay in Mother's care longer than she has in other placements. Mother has never parented K.A.J. as a teenager, and even though K.A.J. periodically lands on Mother's doorstep when she is running, she does not appear to stay long.

9.2 Father's Plan

[147] Although Father was willing to plan for K.A.J. in Angola, he did not proceed with the plan because of the fact that she is almost 16 years of age and does not wish to leave Canada.

[148] Father's plan for I.C. has many strengths.

1. Father has a strong and positive relationship with I.C. The child identifies with Father, looks up to him, and is consistently anxious to have contact with him. He worries that Father has be "disinvited" to Canada.

2. Father has shown sensitivity to the child's emotional needs, and an ability to meet those needs from time to time. Even while Father has been in detention, he has given the child appropriate support, support that focuses on the child and not on his own pain and disappointment. He asks I.C. about his day at school, his interests, and encourages him to obey his foster parents.

3. When Father has had the emotional support of a stable partner, such as G.R., he has shown an ability to provide the child with a stable home life and meet his instrumental needs.

4. Father's plan would mean that I.C. would be in a world of a big extended family. The plan developed by Father's sisters and aunt shows a careful consideration of what supports might be needed to provide the child with good quality education and health and medical care.

5. Father's plan would also show respect for I.C.'s Angolan roots and would place him in a racially homogenous family unit.

6. Father's plan would provide some continuity of care for I.C., as Father cared for the child for two years until just a year ago.

[149] Despite the positives of Father's plan, there are significant deficiencies in Father's plan for I.C. that ultimately led me to reject it.

[150] The first and most important deficiency concerns the fact that any order made by this court cannot be enforced in Angola. Accordingly, no conditions in any supervision order I might make could be enforced. Further, there is no evidence of any child protection agency or any child protection legislation in Angola.

[151] To make the order sought by Father, I would have to be persuaded that no further order, such as an order for supervision by the Society, was required to protect I.C. if placed in his care. I am not so persuaded. If I were to place the children with Father, a supervision order would be required to protect them from risk of harm. The evidence establishes that Father did not act before I.C.'s apprehension in May 2010 to protect him when he was at risk in Mother's care, and that after Father lost the emotional support of Ms. G.R. in 2012 he neglected I.C.'s needs and again put the child at risk by letting Mother care for him.

[152] There are many questions raised by Father's plan, questions which also illustrate why a supervision order would be required for such a placement.

• How real is the support offered by Father's family? These supports for Father's plan for I.C. in Angola have not been investigated by any reliable protection agency, as would any plan offered in Canada or in a country in which ISS could provide investigative services. Father's sisters and aunt appeared credible and thoughtful in their evidence as to assistance which they would offer. However, Father's own evidence established that his sister C.D. has in the past lied to assist him. Would his family dissemble now to help him bring I.C. to Angola?

• What if Father does not reintegrate successfully into Angolan society? It has been ten years since he lived in that country, and he is returning against his will. Father's history shows that if he is emotionally upset, he can subject the children to risk—e.g., his drinking, leaving the children alone after his separation from G.R. What if he finds that he does not wish to live with his sister? What if he wants to leave Angola? What will become of I.C.?

• What if I.C. does not integrate well into Angolan society or into Father's family in Angola? What are the options for him?

• What if Father decides that he should return I.C. to Mother in Canada? In Angola Father will have custody of I.C., and there would be no effective barrier to him doing so. Father has demonstrated in the past that he is susceptible to Mother's entreaties to place the child with her. For example, in explaining his decision to turn I.C. over to Mother for March break 2013, Father testified that it was not just his difficulty in finding a sitter. He said that he knew that Mother loved I.C. and wanted him with her, and that I.C. was missing his mother. Father agreed that he felt guilty that he had I.C., and that Mother was deprived of the child.

[153] Father's lawyer argued that these risks could be dealt with by Father's obtaining an order" in the Angolan court mirroring the terms of any supervision order that this court might make. This is not a solution. There is no reliable evidence that an Angolan court would make such an order, even if asked by Father. Even if an Angolan court would make such an order, who would enforce its terms? What institution or agency would supervise Father?

[154] The second area of concern with Father's plan involves risk to Father and resulting risk to any child in his care resulting from political persecution that Father might face on his return. The evidence presented to me does not conclusively establish that Father would face danger on a return to Angola, but it does raise enough uncertainty of this danger that I would be unwilling to expose I.C. to such a risk.

[155] Father for ten years has sworn that his life will be in danger if returned to Angola because of his desertion from the army, escape from prison, and suspicions of the military and the government that he engaged in treasonous activity by supporting UNITA (a rebel group). He now says that all this was a lie. From the court's viewpoint, then, Father has admitted that he has been willing to lie under oath repeatedly when it is to his advantage. How can the court be certain that he is not lying now because it is to his advantage, because he wants to insure that his son accompanies him and is not adopted?

[156] Other evidence supports a finding that Father's political history may subject him to persecution on his return:

• Mother in her evidence before me and before the IRB testified that Father was abducted by the military in Angola.

• A psychiatric assessment of Father reported that he was suffering from symptoms of PTSD consistent with persecution and torture of the type he claimed by the military.

• Although Father's sister R.F. testified that she had received some assurances from an office of the military that Father would not face persecution on his return, there is no evidence that such assurances are in fact effective in Angola, where the same individuals who controlled the government during the time that Father and Mother fled the country are still in power.

9.3 The Society's Plan: I.C.

[157] As I.C.'s lawyer says, any plan entails some loss for the child. I.C. is 7 ½ years old, and knows and loves his parents. The Society's plan has significant negatives.

• Under the Society's plan, I.C. will not be living with either of his biological parents or a member of his extended family. Even though the Society would like to facilitate contact between I.C. and K.A.J. and with Father, under the Society's plan no order would guarantee that contact, and no openness order would be possible, unless initiated by the Society. The severing of all these relationships is likely to be traumatic for the child, and will require good therapeutic support.

• Under the Society's plan, there will be no continuity of care. I.C.'s current foster parents do not plan to adopt. I.C. will be moving to a new home.

• Under the Society's plan, it is unlikely that I.C. will maintain a direct link to his Angolan heritage. The Society's adoption worker Mary Allen testified that it was likely that an adoptive placement could be found for I.C. that offers a racial match, and perhaps in which at least one parent is of African background. However, there is no reason to think that an adoptive family would be of Angolan background.

[158] What the Society's plan does offer is a place for I.C. in "a forever" family in Canada. I.C. has a great need for stability, a need that he has articulated by saying that he wants a resolution of his situation, even though he cannot articulate what resolution he favours.

[159] The Society's plan offers I.C. the prospect of caregivers who can meet his needs for careful instrumental care, for social and emotional support, and for intellectual stimulation. Ms. Allen is confident that the Society can locate adoptive parents for I.C. who will offer a home "with a high level of structure and support", who will be motivated to give I.C. the opportunity to engage in sports and extracurricular activities, and who will have the skills to "access professional and community supports" for the child. Her evidence is that I.C.'s experience in the foster home shows that he has an ability to form a meaningful attachment to caregivers. That ability, and his good academic potential, will be attractive to prospective adoptive parents.

[160] Ms. Allen pointed to the Society's good track record in placing children aged similar to I.C. in saying that she did not see his age as a barrier to adoption.

[161] I find that it is in I.C.'s best interests to be made a Crown ward.

9.4 The Society's Plan: K.A.J.

[162] There is no good plan for K.A.J. For reasons set out above, K.A.J.'s needs cannot be met by either parent. Mother agreed through her counsel at the end of the trial that given the instability in the child's situation, an order for the Society wardship effective at least until she reaches her sixteenth birthday in May is in her best interests, as it will allow her to access extended the Society support in the future.

[163] I recognize that if the court makes an order for Crown wardship for K.A.J., that her relationship and communication with Mother will not cease. That "pull" will still be there. Their communication and contact cannot be effectively controlled. I do not expect Mother will change so that she is able to see K.A.J.'s needs and put those needs first. The only thing that may change is K.A.J.'s strength to act in her own best interests—to access the counselling she needs, to stabilize enough to consistently attend school. Ms. Totino's evidence, which I accept, is that K.A.J. is interested in independent living, and that this is the Society's plan for K.A.J. when she is able to sustain a period of some stability.

[164] I find that it is in K.A.J.'s best interests to be made a Crown ward.

10. Access

[165] Section 59(2.1) of the Act provides that there is a presumption against an order for access to a crown ward, and sets out a stringent two-pronged test that those seeking an order for access must meet:

(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.

[166] The Society relies on this presumption, and opposes any order for access.

[167] There has been extensive judicial comment on s. 59(2.1). I summarize comment on the first branch of the test below.

• A person seeking access must provide evidence which rebuts both elements of the test.

• The claimant must demonstrate that the relationship is meaningful and beneficial from the child's perspective.

• A "beneficial and meaningful" relationship for a child is one that brings "significant positive advantage" to the child. More is contemplated than love between parent and child and some pleasant interactions on visits.

[168] With respect to the second prong of the test, until recent amendments to the Act it was virtually impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption, as the Act did not allow adoption placement if there was an outstanding access order. Section 141.1 of the Act now allows a Society to place a Crown ward who is the subject of an access order for adoption. Once notice of a society's intent to place a child for adoption is given, then any person with a right of access may apply for an openness order.

[169] These amendments did not change the provisions of section 59(2.1). A person seeking access to a Crown ward must still establish that not just that the order will not prevent an adoption, but that it will not "diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption".

[170] However, it has been recognized that the amendments allowing the possibility of an openness order for an adoptive child do affect the analysis to be conducted on the second prong of the 59(2.1) in some respects, in that a court does not have to choose at this stage between adoption and some contact between a parent and biological family. A court asked to make an access order for a Crown ward will be aware that such an order will open the door to an openness application when a society proceeds with its plan for adoption. The possibility of that litigation and such an order may restrict a child's opportunities for adoption.

[171] There is some conflict in the case law as to whether there is an onus on a society to establish that a child is "adoptable" before a parent is required to meet the second prong of the s. 59(2.1) test. I subscribe to Justice Stanley Sherr's view of the issue:

In certain circumstances, it is obvious that a child is adoptable and little evidence is required in support. At this end of the "adoptability spectrum" are infants or toddlers who are healthy and who suffer from no impairments. At the other end of the spectrum are older children with serious mental and physical disabilities. These children are the least adoptable and accordingly, the onus on the society to prove adoptability is much greater.

[172] In this case the Society accepted that, given I.C.'s age, there was an onus upon it to demonstrate that I.C. is adoptable, and argued that it had met this onus. I agree on both points. Even though I.C. is of an age that he must consent to any adoption, I find that given his yearning for a stable home, with proper preparation for a placement that it is likely that he will consent. I accept that he is adoptable.

[173] The Society argued that Mother had not met either prong of the test. Counsel submitted that although Mother and I.C. have occasional positive interactions, it cannot be said that the relationship is "significantly advantageous" for the child. Further, the evidence summarized below demonstrates that there is every reason to think that if given access, Mother will disrupt I.C.'s current and future placements.

• Mother tells I.C. her criticisms of his current foster mother.

• Mother has a history of ignoring court orders which attempted to restrict or control her contact with either child.

• Mother in her evidence was unable to even contemplate that Crown wardship and ultimately an adoption might be ordered for the child, and could not address the issue of how she might support such a placement.

[174] With respect to the request for an access order between I.C. and K.A.J. or I.C. and Father, the Society appeared to concede that the child's relationship to his sister and his father is meaningful and beneficial. However, the Society cautions that K.A.J. is "a tool" of Mother, and that Father has shown that he cannot withstand Mother's requests. The Society says that any information about I.C. that comes to K.A.J. or to Father will make its way to Mother, and that K.A.J. or Father may, despite any order forbidding between Mother and I.C., facilitate such contact, as they have in the past.

10.1 Access to Mother

[175] I have no difficulty finding that access by each child to Mother is meaningful to them. Mother is the adult who looms largest in K.A.J.'s life. K.A.J. feels responsible for her well-being, and worries about Mother even when she is angry with her for relapsing. I.C.'s relationship with Mother is not as strong as K.A.J.'s, but the evidence indicates that it is still meaningful. He is well aware that she is his mother, and family is very important to I.C.

[176] I have more difficulty finding that the relationship is "beneficial" for either child. I have addressed Mother's inability to see the children's needs as separate from her own. Her relationship with K.A.J. is a significant impediment to K.A.J.'s ability to develop into a healthy adult. Ms. Totino expressed the concern that if Mother has access to I.C. that she will have the same effect on his development as she has had on K.A.J.'s. I share that concern.

[177] However, there are other factors that persuade me that the relationship in some form is beneficial to I.C. given his current situation, and the further transitions he will soon face. Citing Dr. Fitzgerald's evidence, I.C.'s lawyer argued that a cessation of contact between the child and his family, including with Mother, would be very traumatic to the child, and would pose a risk to the viability of an adoptive placement, an objective that is in his best interests. I agree.

[178] The period following my decision will involve great change for I.C. Father will be deported soon. I.C.'s contact with Father will be very restricted—even if I make an order for access between them. Given the loss of I.C.'s relationship with Father, I am concerned about the effect on the child of a complete cessation of contact between himself and Mother at the present time.

[179] Although many forms of access between I.C. and Mother would be likely to jeopardize the viability of an adoptive placement, I am of the view that limited contact in the form of cards, letters and gifts, subject to monitoring by the Society, will not do so. Justice Thea Herman, in dealing with the issue of access between an older child and a parent who demonstrated many of the attitudes of Ms. J., found it appropriate to make a similar access order.

[180] I order that I.C. shall have access to Mother in the form of cards, letters, and gifts that may be sent by Mother to him and by him to her, subject to monitoring by the Society or its designate. I do not make a reciprocal order providing Mother with a right of access, as I do not intend that she should have the right to make an openness application when the Society proceeds with its plan for adoption. I.C. shall have this right, assisted by the Office of the Children's Lawyer.

[181] With respect to K.A.J., the second prong of the test is irrelevant, as there is no plan for adoption for this child. Given K.A.J.'s strong commitment to Mother's welfare, it would not be beneficial to K.A.J. to cut off all contact between them, even if it were possible. Is there any point in making an order for access, given the acknowledgement by all that K.A.J. will continue to have contact with Mother, regardless of the terms of any order? I have no expectation that Mother would obey any restrictions on access. To the extent that an order could prompt K.A.J. to make decisions that are in her best interests, an order would be useful. My order is simply that K.A.J. may have such access to Mother as K.A.J. and her worker determine is in her best interests.

10.2 Access to Father

[182] Based on the facts set out in the description above of I.C.'s relationship to Father, I find that the relationship is meaningful and beneficial to the child. Father has not always put I.C.'s interests first, but the relationship is strong and, from I.C.'s point of view, consistently positive. Mr. C. is the only father that I.C. has ever known, and he looks up to him and treasures the time they spend together.

[183] With respect to the second prong of the test, it is relevant to me that Father has been able to give I.C. messages calculated to support his stability in the foster home. In addition, the evidence is that, if he is not permitted to take the child with him to Angola, Father can see the benefits to I.C. of an adoptive placement. Father testified that he would access professional support to advise him how to communicate with I.C. in a manner best suited to support such a placement. Further, given Father's imminent deportation, the practical limitations on the type of contact that Father can have with I.C. also limits the risk of contact between him and the child which might jeopardize the child's placement.

[184] I have no significant concern that contact with Father would put I.C.'s prospects for a successful adoption at risk except for the fact that, as the Society asserts, information about I.C. which comes to Father is likely to flow to Mother, and may lead to her taking disruptive action. In my view, this concern can be regulated by providing that the limited access possible between Father and the child may be monitored and restricted by the Society. I order that the Society shall arrange for at least one supervised visit between I.C. and Father before Father's deportation, if this is possible given time constraints. In addition, I order that there may be contact between Father and I.C., both before and after his deportation, by telephone and Skype (if available) and by card and letter, and that this access may be monitored by the Society or its designate at the Society's discretion. This order provides a right of access by I.C. to Father and by Father to I.C.

[185] With respect to access between K.A.J. and Father, although K.A.J.'s relationship to him is not as strong as I.C.'s, I find that it is also beneficial and meaningful. K.A.J. loves Father and is loyal to him. She knows that he is a connection to her family in Angola, and family is important to her. Although K.A.J. and Father have sometimes been in conflict, she has always ultimately decided that she wants to see him. No order is necessary to maintain that contact.

10.3 Access Between K.A.J. and I.C.

[186] K.A.J. is perhaps the most important family member in I.C.'s life, and I.C. is precious to K.A.J. K.A.J. has often acted as a parent to I.C. She has been able to put the child's needs above her own and see things from his perspective more often than Mother or Father. Even when K.A.J. refused to see Mother or Father, she has always taken steps to see I.C., and I.C. is always delighted to see her.

[187] Dr. Fitzgerald testified that the sibling relationship was very important to both children, and that it would be traumatic to each of them if it was severed. Ms. Totino and Ms. Kelland gave evidence that echoed his views. It is clear that this relationship is beneficial and meaningful to each child.

[188] There are some signs that this relationship may jeopardize I.C.'s opportunities to be placed and to stabilize in an adoptive home. K.A.J. is not entirely convinced of the benefit to I.C. of an adoption. She is concerned that an adoption will mean the child has no contact with Mother and with Father. Further, K.A.J. has shown in the past that she can be influenced by Mother to surreptitiously arrange contact between her and I.C., in violation of court orders.

[189] These misgivings are overshadowed by my concern that a termination of contact between I.C. and K.A.J. would be so traumatic for the child that it would threaten the stability of any future placement. In my view, any risks that such contact represents to I.C.'s prospects for a successful adoption can be controlled by the terms of an order.

[190] I order that there shall be regular access between K.A.J. and I.C., both in person and by telephone and Skype (if available). This access shall be supervised by the Society, unless the Society and K.A.J. agree that supervision is not required. This order provides a right of access by I.C. to K.A.J. and by K.A.J. to I.C.

[191] I caution K.A.J. that any indication that she is providing information about I.C. to Mother that facilitates disruptive actions by Mother may lead to a restriction on contact between K.A.J. and I.C. K.A.J. will want to keep this in mind when deciding how much contact she should have with Mother now.

[192] I am ready to meet with K.A.J. to explain the terms of this order to her. If K.A.J. wishes such a meeting, her lawyer shall contact the judicial secretary to make arrangements.

Released on: April 16, 2014

Justice E.B. Murray