Court Information

Ontario Court of Justice 311 Jarvis Street, Toronto

Court File: CFO-06-11286-A2 Date: 2014-05-23

Parties

Between:

Children's Aid Society of Toronto Applicant

— AND —

L.L. Respondent

Before the Court

Justice: Heather Katarynych Decision Released: May 23, 2014

Counsel

Ms. Danielle Szandtner ..................................................................... counsel for the applicant

Mr. Andreas Solomos ................................................................... counsel for the respondent

Ms. Fatma Khalid ........................................ counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

KATARYNYCH, J:

The children are J.A., born […], 2003 and C.A., born […], 2005, the now 10½ and 9 year old sons of L.L. and M.J.A. Their father is deceased.

This decision disposes of competing claims for disposition of a protection case under Part III of the Child and Family Services Act first before this court in mid-February 2012, and then amended in late November 2012 and most recently on July 23, 2013.

On August 27, 2013, a "need of protection" finding under the "consent inability to care" ground of the Act was endorsed for each boy by Justice B. Weagant of this court, together with the required statutory identification findings. See CFSA ss. 37(2)(l) and 47.

The most recent "need of protection" finding is the second "need of protection" finding made for these children in relation to her parenting of them. On April 19, 2007, on the basis of an agreed statement of facts executed by both parents and the society, Mme Justice Ellen Murray of this court had endorsed a finding of their need of protection under the "risk of physical harm" ground of the Act (see CFSA s. 37(2)(b)) and ordered a five month temporary wardship for each boy.

In this most recent litigation, the society seeks a Crown wardship for both boys, with no attachment of an access order to that Crown wardship.

The Crown wardship stance is supported by counsel for the boys, but she is not content to have their access to their mother left to the society's discretion under s. 59 of the Act. She wants an access order attached to the Crown wardship.

The mother seeks a return of both boys to her care and custody under specific conditions that she herself proposes in her plan for that care.

Judgment has been on reserve until now.

THE LEGAL PRINCIPLES BROUGHT TO BEAR ON THE EVIDENCE

The particular legal principles brought to bear on the trial evidence are threaded through this decision and reflected in certain of the subtitles on the pages that make up the decision.

Overarching those specifics is the fundamental principle of Ontario's child protection legislation that Crown wardship for any child is an option only if there is no lesser custody and care order within the available statutory options that is likely to promote the child's best interests, protection and wellbeing.

Each child is entitled to an adjudication tailored to his specific interests, protection and wellbeing.

The approach to the decision-making is dictated by the statute.

The children's need of protection has already been judicially found, and is an important backdrop to what is now needed for the children.

The issue now is whether a court order under this statute is necessary to govern their future care and custody. If the answer to that is yes, then the choice must be drawn from the available statutory options. See CFSA s. 57.

The option selected for each child must be not only available, but "appropriate" for the child; in the sense that it is consistent with the statutory principles governing the adjudication and likely to promote both the short and long term best interests, protection and wellbeing of each boy.

What informs that choice is what the evidentiary record as a whole yields about life as the children have experienced it to date, life as they are presently experiencing it, and life as they are likely to experience it within the various scenarios advanced as best management of their life in both the short and long term future.

So it is that I have organized this judgment.

FINDINGS

I begin with the children.

REALITY FOR THESE BOYS

At the time of this judgment, the older child is approximately ten and a half years old and the younger child, nine years of age.

Backdrop to their "present" circumstances is a history that is relevant to properly informed assessment of their current needs and interests. I begin with that.

Life Before Their Most Recent Admission to Foster Care

For children this young, both boys have experienced some very tough times over the course of critically important years in their growth and development.

Most prominent were the following features:

1. Their father was in their life for a time, then not in their life, then in their life again, then in a condition of deteriorating health, and then he was gone altogether.

Their father died on January 1, 2011. The older child was just seven years old. The younger was a few days away from his 6th birthday.

Although he had not always been a continuing presence in their life (for a time in 2004, their father had been in jail because of his assault of their mother), he and their mother had reconciled in the fall of 2005, and then subsequently lived apart from each other.

Over the course of time, this father had become a meaningful person in their life. When he became ill with cancer, he moved in with the mother and children. He had been their primary parent over the summer of 2010, and then again in the fall of 2010 when the mother needed to attend to her own treatment needs.

The boys were also caught up in the mother's reaction to the death of their father.

They were in the care of a neighbour when their father died. Mother never did come to collect them as arranged. Within a couple of weeks, they went from the neighbour's home into foster care because of deterioration in their mother's own wellbeing.

2. Substantial chunks of their growing years were being spent in the care and nurturing of persons other than their mother.

Their mother had been struggling with alcohol abuse for a long time.

While she tried time and time again to manage that problem, the boys toggled between her parenting and foster care parenting, and at times, her parenting and their father's parenting, and at still another time, her parenting and a neighbour's parenting. They were expected to acclimatize themselves without controversy to the parenting styles and expectation of each "new" or "renewed" caregiver.

The "back and forth" and "to and fro" ultimately stopped after their most recent admission to the society's "temporary" foster care in August 2011. Although that admission was intended to be "temporary" and the projection was a return to their mother's parenting, real life for the boys is that they are still in that foster care.

These repeated relocations of them disrupted their routines, whatever attachments they had been developing in their mother and her community and as they aged forward, and in due course, their school life.

3. The Children's Aid Society was becoming a familiar presence in their life.

The Children's Aid Society foster care system was in fact the primary parenting for them over much of their life before 2011, but for a period of stability in mother's care that I address in due course.

CAS intervention, in fact, had been a feature in their life from the time of the older child's infancy.

On the Needs of the Older Child

This boy has not presented any extraordinary needs over the course of his foster care.

The very serious, sober, somewhat rigid and inflexible seven and a half year old boy of March 2011, so protective of his brother despite his brother's aggression towards him, and so concerned about his mother's wellbeing, has emerged as a well-functioning 10 year old.

He manages the activities of daily living effectively, displays good adaptive and coping skills, and even leadership qualities amongst his peers. This is important development in a child soon to approach adolescence.

There has been play therapy available to him to help him deal with the death of his father and the instability in his life that has resulted in so much foster care time over the course of his growing years.

It is plain from the school report cards in evidence in the trial that he has done very well both academically and socially throughout the school life aspect of his foster care.

He is deeply invested in his foster family, deeply invested in community activities, deeply invested in the sporting activities that are part and parcel of life in the foster family, including their summers in northern Ontario, and at an age and stage where his friendships with his peers are an ever increasing interest.

Over the course of time, the strong bonds with this foster family have fuelled his desire to remain in this family over the long term.

It is not surprising that this older boy has sunk roots in this family. This is a household rich in its nurturing ability. The foster mother has laid down 35 years experience in the fostering of children, and what shows prominently is her careful mix of sensitivity, sensibility and "smarts". This is the solidity and seasoned parenting that has fed the development of these two boys.

The household is a family of boys. Three of the boys are children adopted by this family. The other three, including these brothers, are fostered.

The mother herself has identified her son's bonds of affection with the older boys in the foster family, in noting to society family services worker Furtado that this child is likely to have some difficulty adjusting to a return home.

From mother's perspective, the transition is nonetheless manageable.

I have considered that carefully.

This Child's Wishes for His Future

What is in evidence is this older child's clear articulation that he wants something different than his mother's full time parenting at this time in his life.

He wants to remain in his foster family.

That wish signals both ability and desire to separate his own needs and interests from those of his mother.

It is important achievement for him. It is also stark contrast from his presentation at the beginning of this most recent admission to foster care.

For this child, the loss of his father in 2011 had escalated worry about his mother's wellbeing.

In the course of psychological assessment conducted in March 2011, he indicated that he found himself thinking about her a lot, and unable to concentrate on his school work.

He explained to the psychologist that he and his brother were in foster care because mother was "sick" and was asked how he knew that she was sick, he indicated that his mother would sleep all day, couldn't go to meetings and was not able to take care of her children. It was the psychologist's impression from this boy's articulations that he was very worried about his mother and "would stay home from school to help her out". He expected to return home to her "when she is finished getting help for her sickness".

She herself had not been able to "be there" for either boy in the wake of the father's death because her own mental health was in crisis. He was expressing a need to be there for her. He was preoccupied by concern about his mother's ability to manage.

By the time of the psychological assessment on May 29, 2013, the expectations of this child, then 9 years, 9 months of age, had shifted. He now expected to continue to have visits with his mother, but did not want to return to live with her, giving as explanation, "because she has trouble looking after her children". He indicated that she sleeps a great deal, and would not always be available when he and his brother needed her. He also pointed out that she was unable to control his younger brother who was very aggressive and would bite him. He also pointed out that he has been in and out of foster care for much of his life and has spent "the last 5 years mostly in foster care".

By the time of this trial almost a full year later, his desire to remain in this foster family remains firm.

That she does not hear him is a problem at his age and stage in life.

It sends a message to him that she really does not understand how hard it has been for him to try to manage both his life and her "sickness", and why it would matter to him to want to offload the burden of her "sickness".

If he is sent home to his mother, he comes reluctantly. For him it is a loss of all that has given him an "ordinary" childhood experience of family life.

The issue is not so much his ability to "adjust" back into his mother's care. It is whether it is fair to him to ask him to do it at all, given his opportunity to remain in the parenting that he has found so fulfilling.

The bottom line is that for this boy, his mother has been a significant source of stress.

I took from his wish, the message that to ask him to try a return to mother's parenting again is to load onto his shoulders a stress that he does not want to bear.

From what has remained in his memory of life with his mother and his experience of her during his access visits, he does not see his mother yet able to parent him and his brother.

He recalled in the course of the psychological assessment that his mother sleeps a good deal, and would not always be available when he and his brother needed her.

He told the psychologist that he had been in and out of foster care for much of his life. In his calibrating of the time, the "last five years" have been "mostly in foster care."

Whether his perceptions are objectively grounded or not, the reality for mother – and for him – is that this is how he saw life through his eyes.

In his eyes, whether objectively grounded or not, she does not protect him from his brother. His measure for that assessment is his experience of the foster family. He pointed out to the assessor that his foster parents do protect him.

He is greatly affected by the aggression of his brother towards him. It plays out as particular misery when the two boys are being transported by car to and from their mother's home for access visits. He complains that his mother does not make much effort to stop his brother's provocative behaviours when they are on visits and that she allows the younger brother to dictate the course of the visit.

This is a child who has not found it within himself to resist his brother's physical aggression. He is hurt when his brother flings out rejecting words at him, but "takes" that, too.

That tendency to set aside his own needs requires a careful watch.

On the Needs of the Younger Child

On the whole of the evidence relevant to this boy and his needs, as real life plays out for both this boy and those in his vicinity, whatever their role in his life, this younger child is a stressor.

This younger child in fact creates considerable stress for anyone in charge of him, whether parenting figure, school teacher, his slightly older brother, or others in the community who need him to be able to manage his temper.

This younger child has had great difficulty regulating his behaviour. He is impulsive, bullies others, has difficulty making and keeping friends because of his self-centred approach to things, and has no meaningful insight into the problems that he creates for both himself and others by his behaviours.

That is worrying conduct in a child who is now nine years old.

The issue is not cognitive ability. Although on the psychological assessment conducted shortly after his admission to foster care in 2011, his intellectual ability fell into the 'average", the most recent assessment of him in 2013, has his cognitive ability in the superior range.

He has been diagnosed with Attention Deficit/Hyperactivity Disorder and with medication has improved his coping abilities in a number of facets of his functioning, including his ability to manage his schooling.

He is also a child who has made quite remarkable gains over time.

The school reports contained in the Society's Request to Admit are frank testament to the success of the individual education plan drawn for this boy by the Durham District School Board, and the dedication of those both within the school setting and the fostering family who have been part and parcel of its implementation.

He is nonetheless a difficult child to manage, and is likely to continue to be challenged by behavioral difficulties in the years ahead.

The idyllic picture painted by mother in her evidence in chief is not borne out by the evidence as a whole in relation to this boy.

Although the mother would have this court find otherwise, the evidence as a whole indicates that this child was exhibiting behaviour problems long before he entered his present foster family, and long before he was diagnosed with ADHD.

It is plain on the whole of the evidence relevant to mother's attempts to parent this boy, that his behaviour was becoming increasingly difficult for her to manage.

There was a lot more to contend with than his perseveration about chasing butterflies. She herself described at various times, the stress triggered by this boy, including flashback to times in her own childhood where she felt suicidal.

It is also plain that since his entry to school while in mother's care, this little boy was finding it difficult to manage the expectations of the classroom.

The bottom line for this child is that what his mother does not see, or is not able to see, others do see.

That mother does not see this behaviour when he is in her care during access is a problem. Her older son does see it and experiences it and is painfully affected by his younger brother's behaviour difficulties. The younger child's aggression with his older brother is a problem that goes back many years. "Safety" in the presence of his younger brother has been and continues to be a fixture of sorts in the older child's life. It is telling that the older child points to the ability of his foster parents to keep him safe from his mother as one of his reasons for wanting to remain in their family.

This younger child is largely dependent on the strength and will of the adults in charge of him to do that regulation for him.

On the whole of the evidence, the stress that this boy generates is not something that arose in foster care.

His inability to manage his behaviour goes back many years. Whatever the trajectory for the future, he cannot be positioned in a manner that risks a slide backwards.

He is at the beginning stages of learning to make and keep friends in his school.

He has made impressive gains in his coping skills in other areas of his life. He is not yet able to sustain a community based activity without getting kicked out of it because of his behaviour.

This child requires astute management by a parenting figure who can manage day in and day out the stress generated by him.

The task is now to keep him moving forward. His success in school and in the community depends on that movement forward to better understanding of the impact of his aggression on others, and motivation kept alive in him to behave in a manner that does not hurt others.

The offer to give him permanency within this foster family would give this child continuity in the care that has stood the test of time in these most recent years of this boy's life.

ON MOTHER-CHILDREN ACCESS

Mother's counsel pointed out that there have been some 1000 access visits between the children and their mother since their most recent admission to foster care, that those visits have been in her home, and unsupervised, but for a few "observation" visits, put in place as the case moved closer to trial.

I paid attention to that. Although it is substantial time, it is one day out of seven each week in the life of the children and their mother. It provides a measure of opportunity for the children and mother to get a pulse on one another.

The evidence in relation to these visits yielded starkly different perspectives on the visits. The older child's impressions differ markedly from the mother's impressions.

The older boy has difficulty with the use of time during his access visits. From his perspective, the desires of his younger brother dictate what the mother and children do.

The observation visits, few though they were, echoed the concerns of the older boy.

He has been quite critical of his mother in what he conveys about access.

The younger boy spends the bulk of his time during access in solitary play with his videogames. That use of access time has also been observed by society social worker Gillian Aitken.

Also observed is the mother's indulgence of this boy's resistance to her on issues that need his respect for her direction.

On one occasion, for example, this boy refused to leave his mother's home until she paid him money that he believed was owed to him from a lottery ticket that she has purchased for him. The driver was significantly delayed while attempts were made to bring the boy under direction. This is the sort of behaviour that risks loss of the driver altogether. That in turn risks the access itself.

That mother could not see problem in her son's behaviour is worrying. Attempt to explain his extraction of himself from the car seat and running about as the fault of the safety lock in the car, is also worrying. If this child cannot heed his mother's direction, and she finds the fault not in him, but in the seat belt mechanism, it raises real question about the readiness of either of them for 24/7 life together.

Also lifting from description of relatively recent access visits by those observing them in 2013 is this mother's indulgence of the younger boy in what he will eat or drink. For instance, as part of the management of his ADHD, he is not to have pop. Mother was present in the medical appointment when that subject was discussed. That mother served him pop as part of his lunch makes no common sense.

In his meeting with his foster care worker, the older child has pointed out discrepancy between what really happens with respect to the young brother's eating habits during access than what mother sends back in her log for the foster mother.

The older boy has on occasion resisted access with his mother.

For example, last summer, he was so aggravated that his mother insisted on his return to Toronto from the foster parents' summer cottage so that the children and mother could visit, that he refused to go to that visit altogether.

He has also resisted a recent visit with his mother because he was intent on carrying through a sleepover plan with a friend. Mother indulged him in that regard.

At his age and stage, I did not find this development surprising for his age and stage. It reflects the extent to which he is rooting himself in the friendships that he has acquired over his time in foster care.

Sibling Relationship

The ability of these boys to manage each other has long been a work in progress. It is fractious interaction and needs careful management.

This younger child is a bully. His older brother is a prime target for that bullying behaviour.

The older child has learned over time to "take" the bullying, but is hurt by the behaviour, both physically and emotionally.

Both boys find the car drives between their foster home and their mother's home particularly hard. For the younger child, it is a considerable time to keep one's "car behaviour" in check, and he invariably ends up making the drive quite miserable for his older brother.

The obvious question is how to manage life with mother in circumstances where in her home, the boys would be returning to a life where they are expected to share a bedroom.

I move now to the yield of the trial evidence relevant to the mother and her needs and abilities.

REALITY FOR THIS MOTHER

The Backdrop to Her Present Achievements

Her counsel properly urged this court to look at the big picture before drawing any conclusions about her readiness to resume parenting of her sons.

That task begins with a focus on what is "backdrop" to the present; in short, an eye cast back in time to the experience of her children in her parenting.

The yield was this:

In actual fact, she has had an extraordinarily difficult time managing her own wellbeing over the life of these boys. It is her fragility and resulting unavailability to provide parenting for these boys that has been at the heart of the upheaval in the life of these children.

Their mother had reached to the society for foster care for them as early as October 2006, when the older child was just three and the younger child just two years of age.

This mother's struggle with alcohol abuse loomed large in the agreed upon facts placed before the court on April 19, 2007 in support of the finding by Mme Justice E. Murray of this court that the children were in need of protection under s. 37(2)(b) of the CFSA.

The five month wardship ordered at that time fell short of what mother needed to deal with her problems. It was only some 11 months later that the boys were returned to her in September 2007.

For a time, the future looked promising. There had been sufficient success by March 2008 to justify termination of court-ordered society involvement in the family.

That expanse of time did not survive the passage of time.

In May 2010, these two children were once again in need of parenting by someone other than their mother because she had relapsed into alcohol abuse. The older child was now seven and the younger boy, now five years of age.

The society had been contacted by the education assistant involved with the younger boy in the classroom, who had become increasingly concerned about his wellbeing.

By June 2010, mother was again embarked on her quest to recover from alcohol relapse. This time it was the boy's father who provided the parenting by moving into mother's apartment. He stayed until August 2010. The mother's parenting of the boys resumed by October 2010, she was again in relapse. Father returned to the mother's home.

In late December 2010, mother left the boys in the care of a neighbour. Father was now too ill to parent the children.

It was when the mother did not return when expected to resume her parenting of them, that both boys entered society foster care once again. It was now mid-January 2011.

The foster care at that time, set to end on May 12, 2011, was authorized by a temporary care agreement under Part II of the CFSA, considered within this child protection statute to be a proper vehicle when parents need to have the responsibilities of full time parenting lifted from their shoulders for a time. It is one of the "less intrusive" measures within which the Act permits foster care, protection intervention.

Once again the boys were returned to their mother's parenting.

In August 2011, the children were again returned to foster care at the request of their mother, and to enable her to once again deal with her alcohol relapse problem. The older child was now eight, and the younger child, seven years old.

Once again, the vehicle of a temporary care agreement authorized that foster care. The agreement stipulated an end date in mid-December 2011. That foster care was then extended through renewal of the temporary care agreement to an end date of July 1, 2012.

The society's reach to the court in February 2012 that intercepted that foster care by agreement management of the life of these boys.

Now the society sought a finding that the children were in need of protection under s. 37(2)(b) of the CFSA and a Crown wardship order for each boy.

There was reason for that "approach" to the case and the Crown wardship recommendation in particular.

Time allowed by the Child and Family Services Act for "temporary" foster care had run out. See CFSA 70.

Mother was not ready to resume parenting of the children. No one else had stepped forward with a parenting plan.

Preserving the "status quo" was not an option. Both the society and the mother were in frank breach of the statute.

So it is that from mid-February 2012, the "temporary" foster care of these boys has continued by a "temporary" court order made in the 1st appearance in this long outstanding court case.

That, too, has been a breach of the statute. Some 32 months of continuous foster care had accumulated by the start of this trial. Add to that timespan, the various timespans of foster care for these young children prior to August 2011, and the total rings in at a staggering 46 months of "temporary" foster care.

So it is that these boys last had their mother as their primary parent in August 2011.

Since that time, their mother has been an "access" parent. Weekly access is provided for the children and their mother in full day visit on either Saturday or Sunday.

It is true, as mother's counsel submits, that history can recede into the background over time and ultimately be inconsequential to present decision-making for children.

The past is inconsequential when it is distanced enough from the parent's "present" to provide reasonable assurance that it is dead and not likely to resurrect.

That is so because it is not just a short term stability for the children, but the long term parenting in which they can secure their development through the remaining years of their childhood and the years of adolescence.

So it is that the past can be informative backdrop against which to consider what can reasonably be expected from a parent in the future.

Is the fragility in this mother that laid down a recurring need for child protection intervention for these children for so long, likely to reappear and spin the children back into the lifestyle that resulted in so much disruption for them?

Is it reasonable to expect that this mother's needs can tolerate a "second place" in rank, so that the ever evolving needs of these growing boys are given priority attention.

The trial evidence as a whole yielded the following response to these questions:

On Mother's Achievements

This mother has made impressive gain in her ability to keep her alcoholism under tight management.

At the time of trial, this mother had laid down an impressive track record of sobriety. The hair strand tests in evidence indicate that she has been clean of alcohol since the fall of 2012.

The society quite rightly characterizes that accomplishment as "no small feat", given the chronicity of the alcohol problem for her.

What got her there was her resolve to conquer the problem, an array of programming, some of which had to be repeated before it became effective for her, and most significantly, a shift in focus to identify and label what was triggering her relapses.

What also got her there was her positioning of herself to concentrate solely on her own needs. Others carried the day to day responsibility of parenting her children.

I say that because history shows that when she was trying to manage both herself and the needs of the children, she could not do both. To her credit, she recognized that. So it was that she repeatedly reached to others to care for the children so that she could dedicate her entire energy to the quest of getting the relapsing into alcohol problem under control.

On the Issue of Likely Further Relapse

On the Issue of Likely Relapse to Alcohol Use

It is not an unwarranted concern, viewed through a lens that must take into account the past.

This is not the first time that mother has laid down impressive timespan of sobriety, only to have that sobriety slide out from under her.

She had made an impressive effort to stabilize herself during the eleven months of foster care given to the children in their preschool years, although the timespan was more than double the anticipated time agreed upon in April 2007.

When her then soon-to-turn-four year old child and the then three year old child were returned to her, that parenting "held" in place for the boys with a court-ordered society supervision and conditions on the parenting so successfully that court-ordered supervision of her parenting was ended on March 19, 2008.

Something then slid. In 2010, she was once again unable to parent the children because of her struggle with alcohol abuse.

So it is that the society worries about the likelihood of relapse, and looks for a safety plan from the mother in the event that it should happen.

As a matter of common sense, the risk of relapse to alcohol abuse is there, as it always will be. It is the nature of alcoholism.

That said, the risk is likely considerably reduced if she stays within her present approach to her health care needs.

There is, however, a feature in this mother's life at this point that is pivotal, on her own evidence, to her ability to sustain her sobriety and protect her overall health and wellbeing.

That is the need for her careful management of her now diagnosed post-traumatic stress disorder.

I move to that now.

On the Post Traumatic Stress Disorder

Present and ahead for the mother is the real life day to day task of managing the PTSD condition.

On the mother's evidence, and as it plays out in the choices that she makes about things, what triggers deterioration in the post-traumatic stress disorder is stress in her life. She takes great care to protect herself from excessive stress.

Over the course of their most recent foster care, the boys have already been affected by their mother's need to keep stress at bay.

Throughout this foster care, and but for her dedication to access with the children, this mother has not been able to involve herself in the life of the boys.

That is a problem in her case.

Her unavailability has been an emanation of her concern about the safety of her emotional health, her phobia about travel, whether by car or by public transit outside what she considers to be her safety zone, her perception that she needs to steer clear of situations and interchanges that might tip her into stress, which in turn she fears will tip her into relapse of her alcoholism.

So it is that this mother has not participated in events and meetings that would have given her a tangible role in planning for them.

This mother has declined to attend meetings convened to discuss the needs and accomplishments of the children, declined to be an active participant in the various efforts made to help the younger child with his coping difficulties in the classroom, declined invitation to meet with the foster parents in the foster home and be an active part of initiatives to encourage the development of each boy.

She expresses a phobia about travelling, whether by private vehicle or public transit. She has declined the society's offer of a drive to facilitate her attendance at various events relevant to the boys, because car driving stresses her, too.

She expresses a phobia about heights.

The result is that she knows these boys only from her experience of them during access and from what others more "hands on" with the boys have conveyed to her about them. In that latter regard, she prefers to rely on her own opinion of their needs.

On the Mother's Ability to Shield the Boys from Her Fragility

It is not an operative part of her at this point in her life or the life of either boy.

At this time in her life she sees these sons through rose-coloured glasses.

Neither child can afford that.

Whether attributable to the PTSD or otherwise, this mother has developed a real mistrust of the society over the course of the last couple of years; notably, from the time of the society's reach to the court for a Crown wardship of these children.

Reality is that through the bulk of 2013, she has insisted on her self-appointed advocates at her side as a condition precedent to her willingness to meet with the society staff involved with her children and responsible for planning for them.

Return of a child to a parent under a court-ordered society supervision of the parenting requires attention to the ability of the parent and society to work together responsibly to implement the order.

Whatever has driven her mistrust of the society over the most recent years of the boys' foster care, and a constellation of factors arise from the whole of the evidence relevant to that timeframe, reality is that she is likely to continue to need, for her own emotional safety, as she phrased it in her evidence, an advocate at her side in her engagements with the society staff responsible for implementation of any court-ordered supervision of her parenting.

That is a climate for the children that has already proved quite problematic.

The mother's growing mistrust has diminished considerably the likelihood that this mother can forge relationship with the society within the timeframe required by these children.

This is not a case where she can be eased into trust over time. Her comfort is needed now. The children cannot be held in suspension while she works on her mistrust.

The needs of the children cannot circle around her needs any longer in the life of either of them. Her children have needs quite distinct from her own and quite distinct from each other. It is their needs that must take centre stage on a go forward basis.

I took into account the mother's preparedness for a court-ordered supervision of her parenting if the children are returned to her care.

It begins with ambivalence in her initial Answer of March 30, 2012 about her preparedness for a court ordered supervision and monitoring of her parenting at all. The supervision order "box" is ticked in her Answer, but her narrative makes plain that she wants the society's application dismissed. In her Answer filed December 11, 2012, she then asserts that she "has no objection" to court ordered supervision of her parenting. In her most recently filed Answer, she proposes a return of the children to her with eight conditions for a supervision order in addition to any other conditions deemed necessary by the court.

Set in the context of the whole of the evidence, the assertions ring quite hollow.

On the whole of the evidence, her mistrust seeds the court's mistrust of her ability to manage the stress of the interaction needed to properly implement the order.

The mother needs to be kept free of parenting responsibility if she is to stay well herself.

I say this, taking into account the timespan that she has succeeded in keeping herself sober, the strengths within herself that she has laid down over time, the epiphany that came with the discovery that her alcohol abuse was emanation of a post-traumatic stress disorder, and her network of community based supports.

It is undisputed and undisputable that the journey towards sobriety has been long and hard for this mother. She can take pride in her accomplishments in that regard.

There is, however, more to consider than that.

The need to deal with the PTSD was at the heart of the litigation limbo into which these children were thrust after the mother was given that diagnosis in 2010.

She attests in the affidavit that forms part of her Answer to the society's case that she "understands that a gradual reintegration of the children to her care will only be possible once I have dealt with my personal difficulties which I now recognize and am prepared to face head-on". The date of this affidavit is March 30, 2012. By December 2012, in response to the society's amended application filed on November 23, 2012, seeking a Crown wardship in order to implement an adoption plan for the children, the mother attests that she is still seeking treatment for her PTSD symptoms that she has learned through her psychiatrist is at the root of her alcohol abuse.

At that point the children had accumulated a whack of temporary foster care arranged to give mother opportunity to face her difficulties head-on.

There was a clock ticking. Mother never heard it.

On the Utility of the Mother's Supports

The support system that mother has in place for herself falls considerably short of what is needed to serve the needs and interests of her children.

The friends advanced as persons who could be called upon to respond to a need for emergency care of the boys were persons with heavy responsibilities of their own. Those who were community professionals did not have this expectation as part of their job descriptions.

One aspect of that "support" was particularly unhelpful for these children and their mother.

It rested in the mother's concern and the sort of advocacy that she attracted for herself about the society's "approach" to the case.

Two of the mother's supports – and ones in whom she has made considerable investment of herself took it upon themselves to call into question the society's "approach" to the case.

Both the psychiatrist and the community based social worker had penned "To whom it may Concern" letters to express and echo the mother's own concern that the society's approach to the case was ill-informed and even reckless. Those letters are part of the evidentiary record. Both women also testified in this trial on the mother's behalf, echoing the concerns expressed in their letters.

Informed criticism of the society can sometimes be very helpful for decision-making about children entrusted to the society's foster care system and services, and I paid careful attention to their concern.

The whole of the evidence yielded the following findings relevant to the merits of the criticism:

The concern about the society's "approach" emerged with the society's reach to the court, rather than temporary care agreements with the mother, to dictate decision-making for the children.

The mother's investment in the criticism has been particularly pronounced over the course of 2013 and as the case moved towards trial.

This mother, who had been given foster care of her children so often and for periods that kept pace with her own needs, was not ready for disruption of that "approach" to her and her family. Her own needs had been dictating the provision of foster care for her boys for a very long time. She was looking for extension of foster care because she was frankly not ready to resume parenting of the boys. She made that plain to the society, and more than once.

The society held firm to its revised "approach" to the case. Reality for both the mother and the society was the statutory deadline for temporary foster care. Mother was wanting more foster care, in order to better position her health for the return of the boys to her parenting, and the society was not able to give the additional time without being in flagrant breach of the law governing their responsibilities to the children.

A "waiting" for service problem does not stop the clock from ticking towards the end of allowable "temporary" care for a child whose parent has not been able to start the necessary assessments and treatment as early as that parent would have wished.

Whether the delay in the solving the children's "need of protection" was due to "trying as early as September 2011 to get a referral to CAMH", administrative problems within that resource, line-ups and waiting lists", as noted in the mother's affidavit of March 30, 2012, the bottom line for the children is that the clock kept ticking.

The reason for the delay is not the statute's focus. The focus is the impact of delay on the children waiting for their parent to solve her problems, and their entitlement to long term planning within a timeframe sensitive to their ever evolving needs and interests.

It was plain on their evidence in this trial that neither she nor her psychiatrist nor her community social worker had any understanding that the reason for the society's shift in approach was statute-driven.

The unbridled "opinion" about all manner of things that emerged in the evidence of the two women, including their wondering about the society's understanding of the children's needs, and its seeming undervaluing of the mother's accomplishments, had, as its base, ignorance of the law governing the society's "approach" and decision-making.

Neither advocate displayed, either in the "To whom it may concern" letters that each had penned supporting mother's complaints about the society approach to its work or in their testimony in this hearing, even a minimal understanding of the society's mandate or the fundamental principles of law and regulation and Ontario's public policy that governs decision-making for these children. Their knowledge of the law governing the decision-making of both the society and the court was non-existent.

Their own "knowledge" of the children was perilously thin. The children had been in the society's continuous foster care since 2011. Neither had had any involvement with the children over the course of that time.

Their knowledge of information bearing on decision-making for the children was even thinner. The society had tried to get its psychological assessment reports of the boys into the hands of the mother's treating psychiatrist, with the goal of giving the psychiatrist a context for aspects of the society's decision-making. Neither the mother nor her psychiatrist took the benefit of that offer.

This uninformed, and quite deliberate blindness, since the evidence is replete with examples of the efforts made by society staff in the case to enlighten the understanding of the mother and her advocates with the goal of having them join in the effort to serve the children's needs, actually harmed this mother.

The influence of these two women over this mother, and it is substantial on the mother's own evidence, distracted her considerably from the approach to this litigation that was needed by her children.

It secured her in unreasonable belief that she could get what she wanted when there was no ability to give it to her.

It also harmed the children.

Foster care drift now had an added component: litigation drift.

The boys continued in the "temporary" care of the society with the breach of the statute widening by the day.

The "need of protection" claim in the litigation, obvious on the record from the start of the case, went unresolved for an unconscionable period of time.

At the very time that they needed their mother to be drawing closer to the society to collectively plan for their future, this mother was distancing herself further and further away.

That she insisted on completion of her CAMH treatment plan was sensible decision from the standpoint of her own needs and interests.

Reality for the boys is that it left them dangling in the wind.

The mischief intended to be cured by the injection of statutory deadlines on temporary foster care of children was the everlasting limbo into which children were dropped when the parent had no timeframe within which to resolve the need for protective intervention that has necessitated the foster care.

A society that ignores the statutory deadlines ignores the reality that it has dropped the child into the very mischief that was supposed to be stopped. It is reasonable to expect staff at all levels of responsibility within the society's service delivery operations to recognize that, and for the sake of the child dropped into the limbo, lift that child out.

This is not new law.

This society had a duty to these children to lift them out of that limbo.

What was plain before their eyes was this:

1. a parent who had run out of time to resolve the need for protection;

2. a parent who was so "not ready" to resume parenting of the children that on the cusp of the statutory deadline, she was committing herself to a plan for her rehabilitation that would take years to unfold;

3. a parent who, when asked for an estimate of when she would be ready, declined to give one, telling the society's family services worker that she could not give an estimate, and that she would not be able to answer that question until she saw how the therapy panned out for her;

4. a parent who became increasingly intolerant of the family services worker's efforts to have her understand that the society could not stand by and wait her unfolding because the statute prohibited that indulgence;

5. a parent who, while engaged in her unfolding of herself in therapy, used the whole of 2013 to distance herself further and further from the society and information gathering about the boys, and became more and more embedded in the view of things adopted by her psychiatrist and community based social worker advocates.

The indulgence of further time, particularly when the mother, buoyed by her advocates, was expressing increasing mistrust of the society throughout 2013, should have signalled the message that a court-ordered supervision of the mother's parenting as an option for these boys was fading away. Children are not protected within their families under court-ordered supervision when the climate is one of festering mistrust.

It is reasonable to expect community based professionals to understand that the "approach" of Children's Aid Societies to their services and decision-making about children in foster care is governed by statute.

That statute does not permit the society to flagrantly ignore statutory deadlines for decision-making because a parent is on a waiting list for a much desired service.

What lifts from the mother's evidence is her dependence on these two advocates, and particularly her psychiatrist, to guide her own decisions. Her evidence yielded no confidence that she is prepared or even able at this time to wean herself from those advocates or their viewpoint.

In embedding herself in them, she has embedded herself in their ignorance and fed her own ignorance about what does and does not dictate the society's "approach" to its decision-making for the children. This uninformed advocacy floated expectations in this mother that are disconnected from the realities within which the parent and the society must work.

It is critically important that parents not be misled about the mandate of the child protection agencies.

Reality of the law is that the society's focus of attention cannot be solely or even predominantly on the parent.

This mother and her children paid a high price for her attack on the society's "approach". The attention to that fed her distancing from the society at the very time that she needed to be displaying a partnership with them in the service to her sons.

In the end, the approach of her and her advocates greatly undermined both the availability and the appropriateness of a court-ordered supervision of her children in her care and custody.

Reality is that such orders require teamwork between the society and parent and community based service providers; teamwork that keeps the eye fixed on the promotion of the best interests, protection and wellbeing of the children, teamwork that recognizes and respects the reality that the society's support of the parent cannot take on a focus that shadows the needs and interests of the children.

Reality is that this teamwork is laid down over the course of foster care by a parent's working with, not against, the society's service. It is made visible by participation in planning meetings with the society, accepting invitations for involvement in events significant to the children, mutually helpful conversation between foster parent and parent; all with an eye fixed on acquiring sufficient knowledge of the children's ever evolving growing needs and interests to ease transition of them to the mother's resumption of their care.

This mother's "approach" sent her spinning further and further away from the society at the very time that she needed to be drawing closer and closer if she was to position herself and her boys for reunification of the family.

On Services Provided by the Society

The bulk of the service provided for this family over time has been the provision of foster care for the two children.

That is a task that carries with it a particularly heavy responsibility.

So it is that the society is required to bring together at regular intervals those with responsibility for the wellbeing of the children, so that a collective pulse can be taken on what each child needs and within what timeframe and through what injection of service to respond to the need.

These two boys had all of that, and on an ongoing basis.

The parent is a part of that conferencing, but not the centre of attention. A parent who expects to have the meeting used to discuss her own accomplishments misunderstands the purpose of such meetings. It is the children, and their needs and interests, and what gets addressed is what is required by the best practices regulations and policies of the Ministry of Children and Youth Services.

It has never been the law that a society is singularly responsible for the acquisition and delivery of services to a parent whose circumstances are at the root of a child's need for protective intervention.

If there is a reasonably grounded basis for the protective intervention, parents who have the ability, are expected, within this statutory scheme for child protection, to be active participants in the resolution of the problem.

They are also expected to be active participants in the planning for their children, at the conference table during the society's plan of care meetings to keep a pulse on the ever evolving development of the children and their specific needs, and what service will be provided to respond to those needs, what is playing out for the children in real life time, what can reasonably be expected of them. All that is part and parcel of what gets put into the hopper when the task is assess the readiness of both the children and the parent for reunification of the family.

So it is that under this statute, there has always been a role for the parent in the process of resolving a judicially found need for protection intervention for that parent's children.

On the Passage of Time

The passage of real time in the life of these children loomed large in the circumstances of this case, essentially because too little attention was paid to it.

The bottom line is that, whatever the reason, these boys have been expected to hold themselves in "wait" mode to accommodate the needs and interests of their mother far beyond the span of time that, in the wisdom of the legislature, can ordinarily be expected to serve their needs and interests.

CONCLUSION

On a go forward basis, on the whole of the evidence relevant to her ability to manage the heavy responsibility of full time parenting of these children, even with the support of a court-ordered monitoring of that parenting, reality is that this mother herself requires a degree of nurturing that cannot be shared with the responsibility of nurturing these two growing boys.

Neither child can be given any "temporary" foster care. The statute prohibits it.

Both boys need a parenting within which their needs can be given unimpeded priority.

They can love their mother. They cannot meet her needs.

The younger child needs a parenting that, having stood the test of time and the child's various "testing" behaviours, has the skillset in place to hold him steady and positioned for success as he struggles with those challenges that are part and parcel of his life.

The older child needs a parenting that is sufficiently strong to free him to enable him to priority to his needs, without worry that the parent is needing him to circle within the parent's own vulnerability.

These are real life needs of both boys if they are to be given fair opportunity to lay down a securely grounded and productive adolescence and young adult life.

There is much in this mother that is valuable to these boys; her love for these children, her love and caring of her pets, her artistic endeavours, her desire to impart in these children, the joy of creativity, her desire to help ease the stress of those perceived by her to be in circumstances more pressing than her own.

It is an imparting of value that needs to wait until both boys are at an age and stage of greater independence.

At this point they need the continuity of parenting that this mother, on the whole of the trial evidence, cannot give them.

She is well connected to her own real life needs, and can take pride in her accomplishments in that regard.

She is not sufficiently connected to the real life needs of either of these children.

She exaggerates her abilities. She undermines the needs of each child.

It is a toxic combination.

Her insight is not deep enough to provide confidence that she can manage the challenges of this parenting at this time.

If sobriety alone was the tipping point, the risk to the children could be managed through a court-ordered supervision of her parenting. Sobriety is not the only feature to be brought to bear on this adjudication.

Although she can take pride in her accomplishments, including her sobriety, there is still much to be accomplished for her own wellbeing.

Nor would I expect her to be sufficiently connected.

Her own health depends on close and careful attention to her own needs.

She cannot take on full time parenting of these children without also taking on and absorbing all the stressors, ordinary and extraordinary that are part and parcel of growing children.

She needs to continue to concentrate on her needs while these children get their own needs met elsewhere.

So it is that she and the children are positioned for reunification as adults.

So it is that both boys need to have their own ongoing wellbeing met elsewhere. The society's plan fits the bill in that regard.

For all the foregoing reasons, the following orders issue today for these children:

ORDERS

All temporary orders are terminated for each child and replaced by the following orders:

C.A., born […], 2005, is made a ward of the Crown, and committed to the care and custody of the Children's Aid Society of Toronto.

J.A., born […], 2003, is made a ward of the Crown and committed to the care and custody of the Children's Aid Society of Toronto.

The court adopts the society's plan for foster parent adoption of these children as the plan most likely to promote the best interests, protection and wellbeing of each child.

ON THE ISSUE OF POST-CROWN WARDSHIP ACCESS

Within this legislative scheme, there is a presumption against the attachment of an access order to a Crown wardship. See CFSA s. 59.2.1

Access orders permitted by s. 58 of the Act cannot be made or varied unless the court is satisfied, by the evidence, that the relationship between the person and the child is beneficial and meaningful to the child; and that the ordered access will not impair the child's future opportunities for adoption.

The onus to provide that evidence is the person seeking the access order.

Jurisprudence has interpreted a "beneficial and meaningful" relationship for a child to be one that brings "significant positive advantage" to the child.

More is contemplated in that regard than love between parent and child and some pleasant interactions on visits.

Under the CFSA as most recently amended, the society may pursue adoption for a Crown ward who is the subject of an access order.

Within Part VII of the Act is the process within which a person entitled to access as part of the Crown wardship to make application for an openness order. See CFSA s. 141.1.

What must also be shown is that the access order will not prevent an adoption or "diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption".

As a matter of common sense, the prospect of further litigation may well interfere with a child's opportunities for adoption.

In this case, the society wants to try to negotiate an openness agreement between the prospective adoptive parents and this mother.

Failure to achieve agreement leaves the right to further litigation intact.

This is not an adoption plan somewhere far off on the horizon. It is an immediately implementable plan. It is a plan that gives each boy the continuity in parenting that is contemplated by the legislation.

Each boy a voice in any adoption plan for him. Each boy's consent to his adoption is required by Part VII of the Act.

No evidence was led on how she might support the adoption plan if she was unsuccessful in her own plan. On the record as it stands, the obvious concern is the extent to which she can give the children permission to invest themselves fully in their adoption.

An access order in this case does not promote the best interests, protection and wellbeing of either child.

In whatever contact they have with their mother under their Crown wardship, it is a contact where their mother needs to go to them.

She cannot reasonably expect the boys to be brought to Toronto for their visits with her.

Although the foster mother testified to her willingness to bring the children to Toronto every three months or so for visits with their mother, that sort of access does not serve the needs of either child.

It is already plain the drives to and from access are times of misery because of the younger child's inability to manage his behaviour in the car. The foster family is relocating at the end of this school year to northern Ontario, some 12 hours driving distance from Toronto.

There are frank logistics problems.

Both the time needed for the drive and the safety of the drive is at the mercy of weather and road conditions along the very long route.

At any point in that route, driving conditions can deteriorate. That then presents the risk of these children and the driver stranded.

Neither child is old enough to travel unaccompanied.

Air travel, even if it is an affordable option – and there is no evidence that it is, is also subject to scheduling and weather related delays.

So it is that the Crown wardship order for each boy will remain silent on the issue of contact between the children and their mother on a go forward basis. The society's discretion under s. 59 of the Child and Family Services Act will govern what contact promotes the best interests, protection and wellbeing of each boy on a go forward basis.

The temporary access orders that have governed child-mother access until now are ended with today's Crown wardship for each boy.

A copy of this decision is to be released to counsel of record today, and the original made part of the trial Endorsement record.

H.L. Katarynych Trial Judge

Released: May 23, 2014.