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: 2014-08-20

Court File No.: Chatham, Ontario 44/10

Parties

Between:

Chatham-Kent Children's Services, Applicant

— AND —

L. A.

C. M., Respondents

Judicial Officer and Counsel

Before: Justice Stephen J. Fuerth

Heard on: April 29th and 30th, 2014

Reasons for Judgment released on: August 20th, 2014

Counsel:

• M.J. Moynahan — counsel for the applicant society
• J. Rehner — counsel for the respondent L.A.
• C.M. — on his own behalf

Decision

Fuerth, J.:

Introduction

[1] This was a trial of the issue with respect to the child CM, born […], 2010. The Order directing the trial of the issue was part of a decision on a summary judgement motion brought by the applicant for an order for Crown wardship with no access for the purpose of adoption.

[2] The trial was conducted with respect to the issue of disposition. The position of the Society remained that an order for Crown wardship with no access ought to be made. The mother's plan was for the child to be placed in the care of her mother, pursuant to a custody order.

[3] The issue for this Court was to decide on these competing plans having regard to the child's best interests.

[4] The father did not take part in this trial although he was served with the application and had filed an answer. The trial took place in his absence.

Background

[5] The child CM was born to the mother and father on […], 2010, and was placed in foster care at the time of birth and has remained in the care of the foster parents to the date of trial.

[6] The mother had a previous child, TD who was born on […], 2008. On February 21st, 2013, the Court found TD to continue to be in need of protection, and ultimately placed the child in the care and custody of the maternal grandmother TS-S hereinafter called the grandmother. The child has remained in her care since that time, and lives with the grandmother and her spouse SS in the County of Perth. It is relevant to note that the initial finding of a need for protection had been made in March of 2011, at which time the child was placed in the care of the grandmother. Based on the totality of the evidence, TD has lived with her grandmother since 2010, or over 4 years at the time of trial.

The Law

[7] The child's ultimate placement must be determined in accordance with the child's best interests, as defined by section 37(3) of the Child and Family Services Act. I will review the evidence in the context of the consideration of each of these criteria.

[8] The child has been in care for in excess of 12 months under Court order, and it was not possible to consider a further period of Society wardship for the child. Section 70 of the Child and Family Services Act required that either the child be made a ward of the Crown, or in the alternative, that the child be placed either with the parent from whom the child was taken, or with another person where it was determined to be in the child's best interests.

[9] In particular Section 57(4) was central in this case. It provided as follows:

[10] "(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person."

Evidence

[11] Jelena Kovacevic was the children's services worker assigned to CM shortly after his birth. She confirmed that CM has remained in foster care since his discharge from hospital.

[12] She observed the child to be quite at ease with the foster mother, and described her observations of a normal and healthy relationship within the foster home. She noted no concerns.

[13] She was present for a few visits between the mother and CM. She observed on these occasions that the child was somewhat reluctant to see his mother, but with some encouragement would go to her and display affection.

[14] She was unaware of the claim by the grandmother to put forward a plan for CM until there was a request for a kinship assessment, but she said it may have been discussed after October 2011.

[15] Jennifer Hart was the family services worker assigned to the child protection file involving the mother's sister and her child C. On May 7, 2012, she was contacted by the maternal grandmother and advised by her that the child C had been left in her care by his mother, and that she was prepared to care for C for the long term. Oxford County Children's Aid Society was contacted. A request was made to open a kinship file. However, by May 15, 2012, the child C was delivered to the care of the agency by the grandmother who was accompanied by her fiancée and TD. She was observed to say her goodbyes to the child. C was later returned to the care of his mother.

[16] She also said that the grandmother left a voicemail on May 14th, 2012 saying that it was too stressful having C in her care and also having TD in her care. She denied that there was any discussion by the grandmother of a concern about C bonding with her when the Society wanted to return C to his mother.

[17] Brianne Baptista was the family services worker for the family from Sept 6, 2011 to August 6, 2013.

[18] She said that during late 2011 and early 2012 the grandmother advised she was unwilling to supervise the mother during her visits with the child TD, but was willing to bring the child to Chatham for supervised visits. Arrangements were made on that basis in December of 2011, but by April of 2012 the grandmother was no longer willing to do the transportation of TD to Chatham, but would agree to supervision of the visits in London or Ingersoll.

[19] On June 12, 2012, during a phone conversation, the grandmother said that if CM were made a Crown Ward, she would present a plan for him to be in her care instead.

[20] In November of 2012, the society received a letter from Oxford County CAS advising that they were closing their kinship files with respect to TD in December of 2012. The letter was an exhibit to her affidavit and indicated that the agency had done their original kinship assessment in March of 2010. Since that time, the author of the letter had supervised that kinship placement. She said that the family continued to do well, and that there were no protection concerns.

[21] On November 29th, 2012, Ms. Baptista had received the Parental Capacity Assessments of the parents undertaken by Dr. McGrory. She contacted the grandmother to advise that based upon the recommendations of Dr. McGrory, the Society had decided to seek permanent placement of CM elsewhere. The grandmother told Ms. Baptista that she "absolutely" wanted the child placed with her, and confirmed to Ms. Baptista that she could send a kinship referral to Oxford County CAS requesting an assessment. The request for a kinship assessment was filed as an exhibit, dated November 29th, 2012, addressed to the CAS Oxford County.

[22] By letter dated December 17th, 2012, CAS Oxford acknowledged the receipt of the requested assessment. The letter from the kinship worker, and also signed by the Services Manager, raised issues about the interagency funding for the family, particularly as it related to financial support for transportation for access. The author said "as part of the kinship assessment, supports from the CK CAS will have an impact on the decision whether CM should be placed with his grandmother and her spouse. In the four years I have worked with this family, your Agency has provided little supports. This will need to be troubleshot in advance."

[23] A written response by the applicant was made on January 9th, 2013 by Ms. Baptista and her supervisor. Firstly, the letter referred to an oversight by Ms. Baptista to respect to a voice mail message left by an Oxford CAS in December of 2012. The letter explained the current access arrangements. The applicant essentially said it was not providing any funding to the family, and instead suggested that they access financial programs such as the Temporary Care Allowance, "and any other government assistance available to kin parents in Ontario". The letter also requested Oxford CAS to assist the family in obtaining information around other available resources in its jurisdiction should the child be placed there.

[24] The letter also said that the society was pursuing a permanency plan seeking placement of the child in a kin home if appropriate with no unsupervised access to the mother or father. "Should (TS-S and SS) have a favourable kinship assessment and pesent a permanent plan for the child, we would move forward a plan to transition the child to their care. In the alternative, our plan is to secure a Crown Wardship Order without access for the purpose of an adoption."

[25] On January 16th, 2013, Ms. Baptista had a phone conversation with the mother who was upset. She had learned that the agency wanted to give custody of the child to her mother. A conversation ensued with discussions about Dr. McGrory's report, and about alternate arrangements for supervision of the mother's access.

[26] On January 17th, 2013, an email was sent by Heather Rennalls, the Kinship worker with CAS Oxford County, saying that the grandmother had left a message cancelling the appointment for that day as she had to work. "(TS-S) reported that she will be putting everything on hold, not filling out the paper work until the next court date. Apparently there was some misunderstandings going on in Chatham as (the mother) was not aware this was happening as they forgot to mention this to her. Until court on the 30th, (TS-S) will put things on hold and will not pursue this until they know what happens in court to see if they will go through with this to get (CM)."

[27] Ms. Baptista said she left a voicemail with Ms. Rennalls in response on the 17th of January, advising that the mother was aware that the Society was not supporting the child returning to her care, and asking for a telephone conference to discuss the matter further. Ms. Rennalls replied on the same date by voicemail, saying that she would like the mother and grandmother to participate in the telephone conference due to previous miscommunications. She also said she could not move forward with the assessment as the grandmother had placed it on hold.

[28] Ms. Baptista said she next contacted Ms. Rennalls by phone on the 28th of January, 2013. She said that during the conversation she told Ms. Rennalls that the Society had been very clear with the mother and grandmother about its position, and therefore wanted to know what the agenda for their participation would be. She said that Ms. Rennalls advised she was not sure, but there was nothing more she could do at that point.

[29] There was a further letter from the CAS Oxford County kinship worker on January 28, 2013 to the applicant, again co-signed by the Services Manager. The text of the letter said as follows: "This letter is to confirm out telephone conversation on January 28, 2013. As I informed you, I see no reason for the two agencies to have a telephone case conference without (the grandmother and the mother) present. As I previously mentioned, (TS-S) has put the kinship assessment on hold until she finds out what is happening with court. I had suggested that all parties to meet for the case conference so that everyone is on board and knows that is happening. However, you stated that (TS-S) has received information in writing and you feel that is not necessary. This letter is also to remind you that although a referral was made to the CAS of Oxford County on December 5, 2012, to conduct a kinship assessment of (TS-S and SS), (TS-S) put this assessment on hold on January 17, 0213. Since no further assistance can be offered from us at this time, the Society will close this file."

[30] On February 14th, Ms. Baptista said she contacted the grandmother to discuss the kinship assessment. During the conversation the worker asked why she wanted the assessment on hold as the society would now be proceeding with Crown wardship no access. The worker said the grandmother replied "she did not want the child to be made a Crown Ward and that Ms. Rennals told her that (CKCS) had put the assessment on hold, and she was not sure why this had happened. She wanted the assessment done, and she "definitely" still wanted the child in her care. She said the mother was willing to sign custody of both children to her, and that the mother was going to discuss this with her lawyer."

[31] On February 20th, 2013, a request was sent by the applicant to CAS Oxford County to conduct a home assessment for a Kinship Service Placement.

[32] On February 20th, 2013, the grandmother called the worker asking what had happened with the assessment, and wondered what was going on with it. She said she called back and told her she had sent the referral that day, and expected the Oxford CAS to be in contact with her shortly.

[33] She said she was in Court on February 21st, 2013, when the Agreed Statement of Facts was signed and the final order was made by Justice Kowalyshyn awarding custody of TD to the grandmother. Indeed the documents reflect that the grandmother was present in Court, and all parties signed the documents on February 21st, 2013.

[34] Ms. Baptista said on March 6, 2013, a worker with the applicant had called CAS Oxford asking for an update on the kinship assessment sent on February 20th.

[35] On March 11, she called the grandmother to see if the assessment had started, and was told by her that she had heard nothing from Oxford CAS. She asked for access to CM.

[36] On March 12th, she called CAS Oxford and left a voicemail for Julie Barlett asking for an update. She received a return voicemail saying that CAS Oxford had not received a referral from the applicant, and the file was closed. She then contacted Ms. Barlett, and advised that the fax confirmation said it had been successfully transmitted but that she would resend it.

[37] On March 20th, 2013, she arranged for the grandmother to have access with CM on that date.

[38] On April 3rd, she again contacted Julie Bartlett for an update who said a manager would call her by April 5th.

[39] On April 9th, she was advised by the supervisor that she had received information from CAS Oxford that there had been an oversight in assigning the assessment, but that it would be assigned shortly and expedited.

[40] Her evidence was that on April 16th she was contacted by a worker who had been assigned the assessment file, and who asked for further information. The assessment was received on May 31st, 2013.

[41] Ms. Baptista detailed the failure of the grandmother to request access to CM. She said she met with the mother and grandmother on Sept 18, 2011 when TD was present. She said neither of them asked to see CM during this visit.

[42] In a telephone call on October 27th, 2011, the grandmother that if the children TD and CM were not returned to the mother, she wanted both children with her.

[43] On November 9th, 2011, the grandmother said she was coming to Chatham November 11, 2011 for the mother to see TD. She did not ask for access to CM.

[44] On December 9th, 2011, the grandmother confirmed her intention to travel to Chatham for access with TD every other Friday, The Supervised Access Center confirmed visits occurring on 6 separate occasions up to the end of March 2012. The grandmother did not request to see CM.

[45] On May 7, 2012, the grandmother asked to be allowed to supervise a visit between CM and his mother on Mother's Day, May 13th. On May 9th, the worker told the grandmother the Society was not prepared to have the mother's access outside of the Supervised Access Center. The grandmother then told the worker that the mother would attend at her home for a visit on mother's day with TD.

[46] On February 5, 2013, she received a request from the mother to have access to both TD and CM supervised by the grandmother on February 21st, 2013. This was approved from 4 to 6 p.m.

[47] A visit was arranged for March 20th, 2013, for 4 hours with the grandmother and CM, and another access visit on March 30th for 4 and ½ hours, both of which took place.

[48] On April 2nd, 2013, the grandmother asked for overnight visits. On April 5th, 2013, the worker denied this request on the basis that the grandmother's access had been far too sporadic.

[49] The worker also said that she was informed that the grandmother attended court in Chatham on April 23rd, but did not ask for access to CM while she was in Chatham.

[50] On June 7th, 2013, the grandmother requested overnight access to CM for the weekend of June 21st, 2013. This access was denied as well for the same reasons as on April 5th.

[51] Ms. Baptista also included in her affidavit her position related to the kinship assessment that was received by her in May of 2013. It was clear that based upon her interpretation of the assessment, the Society was opposed to a placement with the grandmother on the basis that it was not a "permanent plan" for the child CM as the recommendation was for a placement with 6 months of supervision.

[52] The file was transferred to another worker, Ms. Ottagalli, in August of 2013.

[53] There was an affidavit filed by Elizabeth Perry, who gave evidence by the parents at the Supervised Access Center. The record clearly showed that attendance was sporadic, and that the parents were not attending regularly for visits as ordered three times per week. The order was varied in November of 2012 reducing visits to once per week. Eventually, the parents stopped attending at all. The last visit by the mother was May 28th, 2013. The last visit by the father was September 12, 2012.

[54] Tara Ottagalli gave evidence. She was the family Services Worker from August of 2013 until trial.

[55] She said that on one occasion only did the grandmother ask for access to CM. She said that after court on September 11, 2013, the mother and grandmother attended the Society office unannounced and request a visit with CM that day. On short notice, she was able to office a visit at the Society office from 4 to 5 30 p.m.

[56] When she advised the grandmother of the arrangements, she said it was kind of late, and she would like to arrange a time with TD to also be present. She said she would call later to set up a Saturday or Sunday visit at a later date. As of trial, there had been no requests.

[57] All attempts by her to meet with the mother were unsuccessful.

[58] She said she was aware that the foster mother proposed to adopt the child when she assumed carriage of the file. She said her only contact with the grandmother was on September 11th, 2013.

[59] The mother gave evidence.

[60] The mother was asked about her plan for the children. She said that down the road she would like the children in her care, but for the purpose of this proceeding she would like CM to be with her mom. That was her plan.

[61] She acknowledged that TD had been in her mother's care since she was 15 months old. She said she exercised access on an unlimited basis, supervised by her mother. She said she took a train and stayed weekends two or three times per month.

[62] She said her relationship with her mother was typical, "we have our days", and that her mother was supporting her, and she was supporting her mother.

[63] Her plan for access should CM live with her mother was to have the same access as TD, and work towards unsupervised access.

[64] She acknowledged that while TD knew she had a brother, and that they had a couple of visits together at the access center. When access was every other Friday, the contact was dependent on when her mother could come to Chatham. Her last access at the Supervised Access Center had been April of 2013, but she corrected this on cross-questioning to May 28th, 2013. She said CM had not been to her mother's house.

[65] The grandmother gave evidence. She was the mother's mother and grandmother to the child CM.

[66] TD had been living with her for almost 4 years, with her husband SS. The child was placed with her as a kinship placement when she was 15 months old, and came into her legal custody in February of 2013.

[67] She said TD was doing very well, and was happy and healthy.

[68] She said the mother came to visit most of the time by train on weekends, when the mother could get the time off, and also dependent on her own schedule as she had to be present when visits took place.

[69] She acknowledged that at one time the child C was left with her by her daughter A, who left the child and was not seen for four days. She said she contacted Woodstock CAS and she was approved to have C stay with her. She said that she could see that C was quite an emotional baby, was quite upset, and wanted to bond with her. She was asked if she ever said that C was too much for her. In response she said that she had been up 48 hours, C was difficult to take care of, and that she had not planned to care for this baby, and had a plan to have CM live with her. She said she was told by CAS that they had spoken to the mother A, that she was going to return. She said they apprehended C, and that she would never have returned him if she had known about that.

[70] She said that she made it known on the day CM was born that she wanted the child placed with her. She said she maintained that position through three different workers that this was her plan. She said during her conversations with Brianne Baptista on several occasions she was clear that if the mother was not going to have the child returned to her, she wanted CM placed with her.

[71] She said that the worker made it clear that it was important for CM to bond with his mother, and this was the priority for CAS.

[72] She was asked about her contact with CM. She said she asked time and again to have CM and the CAS would say it was okay, but access never got arranged. She said she would call and leave messages which were not returned.

[73] She said when the kinship assessment was done, she was living outside of Tillsonburg, but had since moved in August of 2013 outside of Stratford. She said an update to the assessment was not done because it was a different county.

[74] She said she lived in a country setting in an updated three bedroom home. CM would have his own room. He would go to the same school and doctor as TD.

[75] She said that her husband now had full time work at a factory, and she worked full time at a retirement home in Stratford, working straight nights. She said they didn't need to have alternate caregivers, given the hours of work of her and her husband.

[76] She said that one of the concerns of the assessment was that the family struggled financially, but this was improved with their new employment.

[77] She said that the recommendation for a six month supervision order was explained to them as permitting the CAS to provide services should they be needed as CM adjusted to a new home.

[78] She said that the same terms of access would be in place for visits with the mother. She said that she understood that the mother had mental health issues and that it had been a concern in the past, and it was necessary for the safety of the children. She said she had seen signs of instability in the mother's life.

[79] She said that CM had never been allowed to be in her home. She said that the contact between the children was limited to one visit at the Supervised Access Center, and some occasions at the mother's home for special occasions like birthdays. She also said they were together the prior day after court, and that the children got along great.

[80] She was asked about extended family. She described a rather typical set of family relationships, getting together for family functions.

[81] She said she wanted CM because he was her grandson, and TD's brother, and she didn't want them separated.

[82] She acknowledged having received a rude text from the mother in October of 2011. She also acknowledged that access was changed because she was no longer willing to transport TD to Chatham.

[83] She said she had 4 visits with CM before the kinship assessment, and three to four visits after that day. She said she called regularly asking for visits, and that it would take two weeks for the CAS to call back with arrangements.

[84] She said that the visit that was arranged for September of 2013 didn't take place, because it was confusing for TD to have a visit, and not have CM show up. She acknowledged that she didn't call at Christmas 2013 for visits, because she understood that it had to be supervised.

[85] She said that she understood the mother's plan that maybe someday she will be ready to take custody of her children. She seemed to agree to that plan.

[86] Gisele Piche was called by the Court as a witness for the purpose of giving evidence about the kinship assessment. This permitted both parties to cross-examine the witness.

[87] She was asked about the need for a supervision order, and was asked about the risk of harm. She said there was a difference of opinion between the applicant and the grandparents, but no evidence of any protection concerns from the school, the doctor, or the CAS files.

[88] She said the concerns were about financial resources, and also the lack of family supports for the family. She reported some tension between the stepfather and his brother.

[89] She said that if the child were placed under a supervision order there would be a temporary care allowance from Ontario Works of $240.00 per month plus benefits. She said this would not be available if custody order were made.

[90] She was asked about her report of the FISS program available through the Ontario Early Years Center that was designed to address attachment issues if they arose, but was unsure if she discussed this with the grandmother, nor was she aware if it were available in Perth County where the grandmother now resided.

[91] She was asked about the return of C, which she had noted in her report, as a concern. Her source of information with respect to that event appeared to be from the grandmother.

[92] She was asked about report of frequent visits with CM currently on an unsupervised basis. She said her source of information was the grandmother.

[93] She was asked about the statement that she hoped that CM would adjust. She acknowledged that she was not an expert on the topic.

[94] It was significant that the worker engaged in a thorough discussion in her report about the positive and negative factors to be considered, many of which were likely more appropriate for the Court to consider. In any event, she approved the home study.

Discussion

[95] It is necessary to examine the several criteria having regard to the child's best interests.

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

[96] The child is now 4 and ½ years of age, and has the needs one would expect of a child about to enter the education system. The child's needs are those most immediate in his daily care, including the love and affection, supervision and nurturing that a child of 4 would require. In this respect, the evidence of the foster mother confirmed how the child has responded to his current environment, the only home he has known since birth.

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

[97] There was evidence of the child's difficulties in ambulation which required a thorough medical assessment and subsequent treatment and review. The concerns about his difficulties were addressed by the intervention sought by the foster parents.

[98] Similarly there was a brief period of stuttering exhibited by the child, for which the child was taken for assessment. As a result of the investigation, it was determined that his speech was age appropriate and expressive, and that the concerns would improve with normal development over time.

The child's cultural background.

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

[99] There was nothing remarkable in the family history that raised an issue about either cultural or religious faith as factors in his best interests.

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

[100] This factor was an important factor to consider for CM. It was fundamental to CM's progressive development that he enjoy the stability and security on a consistent basis of a home and with parents who met his needs. Since birth he has enjoyed that stability, residing with the foster parents and their three adopted children. It was clear from the evidence that he has been nurtured and benefited from the consistency and stability of his home environment.

The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

[101] The child's relationship with his parents has been sporadic at best. In the case of his father, the visits were sparse, and he has not seen his father in a considerable period of time. In the case of his mother, the frequency of access was somewhat better than with the father, but again, the frequency was reduced over time by reason of the mother's failure to attend at access. Eventually, the mother stopped her visitations with him in May of 2013. There was no evidence to indicate that he had any emotional tie with either parent. The evidence of the foster mother in particular was that CM was fully integrated as a member of their family, despite the sporadic access that was exercised by his parents since his birth.

[102] The child has seen his grandmother at most about 7 or eight times since his birth. He has had more frequent contact with his sister TD, and there was some evidence that at one point in his life he recognized that sibling relationship.

[103] The most recent visit between the child, and his mother, the grandmother and step grandfather, and TD, took place in the Supervised Access Center on April 29th, 2014, after Court. He did not refer to TD as his sister. Even accepting the description of the visit by the grandmother as accurate, what she described as a wonderful visit included evidence of the child's shyness, initial lack of identification of the persons present in terms of their relationship to him, and an eventual playful involvement with those present. The Society evidence about that visit was less enthusiastic, but also confirmed that child's withdrawal and shyness initially, and the fact that he did not identify TD by reference to their blood relationship as "sister".

[104] Taken as a whole, the evidence of that visit demonstrated to me that there was no particular relationship of dependency, or indeed of any particular affection, displayed by the child. Indeed, the child interacted well during the course of the visit with those around him, played, laughed and engaged with the people in the room, demonstrating that he was well adjusted and comfortable. However, there was nothing in the evidence that showed he had any real appreciation of who the people were, nor did he demonstrate any particular bond or connection with them.

[105] I was unable to conclude based on the evidence that there was any particularly important bond or relationship that CM had with his family of origin.

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

[106] It goes without saying that stability and consistency in what CM experiences in his day to day environment have been important to his successful development to date. There can be no doubt that to change residence and caregivers at this point in his life, and to remove him from the only home he has known all his life, would be quite disruptive for him. He would lose his sense of security and his primary relationships with his foster parents which has been the only parental relationship he has ever experienced. Ms. Piche was concerned enough about the potential for disruption that she recommended a period of supervision, so that issues concerning should adjustments could be addressed with services.

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.

[107] Everyone conceded that a return to the child's mother or father was not in his best interests.

[108] The Society's plan for adoption offered the least disruption in the continuity of the child's care. The foster parents have proposed to adopt CM if he is made a Crown Ward.

[109] The mother's plan was to place CM with her mother under a custody order. What was troubling about her evidence was that the plan was "for now" until she was in a better position to care for her two children. The fact was that the mother has made no progress in that regard some four and half years after CM's birth, and indeed everyone conceded that there continued to be a need for close supervision of her time with the children.

[110] What was troubling as well was the grandmother's apparent support of her daughter's plan in that regard. Did this mean that the permanent plan for CM was subject to some future change in parenting arrangements for the child if and when the grandmother was satisfied that her daughter was ready to assume control of her children.

[111] I was troubled by the apparent lack of effort to implement a plan for CM by the grandmother from the time of his birth. What I understood by her evidence was that she always intended to assume a parenting role for CM "if" it was determined that he was going to be made a Crown Ward, and adopted to another family. I did not accept her evidence that the Society prevented her from having a relationship with the children, and found that her evidence about her efforts was non-specific and somewhat evasive. She eventually conceded the very limited contact that she had with the child. It was clear reading the kinship assessment report that there had been many challenges in her recent life, that included relationship difficulties with her husband, employment and financial difficulties, and also a poor relationship with her daughter. It appeared to me that she wanted to be supportive of her daughter, but at the same time reserve a place for CM if eventually the child was not returning home.

[112] When faced with the crisis involving her grandson C, she took him into her home, but within days was overcome by his needs. She clearly blamed the Society for apprehending him, which she said she never would have agreed to. In this respect, I accepted the evidence of the family service worker who said that the grandmother returned the child to the Society because she was overcome with his care.

[113] In the meantime of course, CM was fully integrated in the home of his foster parents, and formed permanent bonds with them and their family.

[114] One of the grandmother's primary reasons for wanting placement of CM with her was to ensure that the children, CM and TD, not be separated. An order of Crown wardship does not prevent sibling access. I have heard the evidence of the foster mother who said she was prepared to accommodate that.

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

[115] There was no evidence about the child's views.

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

[116] It would be wrong to keep the child in limbo any longer in this case.

[117] This was a case where it was imperative that the family plan be put forward early, if indeed it were going to be feasible. By the time CM was born, TD had been in the care of the Society for some time, and everyone had the benefit of the parental capacity assessment done in 2008 which did not recommend a return of TD to the mother's care. By the time TD was placed with the grandmother, it ought to have been clear to everyone, including the grandmother, that surely strong consideration ought to be given to placing CM with his sister in the same household. The grandmother said in her evidence that the Society did not want to prevent the mother from bonding with CM.

[118] Placement with family members can only occur with the family member's consent. There was little done by the grandmother to put forward a plan. In the meantime, of course, CM's needs were being met by his foster parents, and the bonds were securely formed.

[119] The CFSA recognizes the importance of placing children who are apprehended at the earliest stages of a proceeding for this reason. As an example, section 51 requires the Court on a temporary care order to consider less intrusive measures for intervention, including placement with a member of the child's family. The time for this kind of planning and effort for CM ought to have been occurring at the time of his birth.

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.

[120] There was no option to consider returning the child to his parents based upon the findings of the need for protection. Given the limited contact with the child by the parents, there did not appear to be any significant harm that would come to CM by keeping him from his parents.

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

[121] The risk of harm to the child was significant in this case. The psychological assessments provided the deficiencies in the mother's ability to parent which remained untreated. Her mental health problems and instability continued throughout the period of the status review, and everyone agreed that it was necessary to continue to supervise her visits.

Any other relevant circumstance.

[122] It was difficult to comprehend how the parties could not foresee the circumstance that arose in this case. At the time of CM's birth, his sister had been in the care of the Society for some time. Dr. McGrory's first assessment found that the mother had adequate knowledge and parenting skills, but that she was emotionally unfit to have the care of her child at that time. He made recommendations as to possible treatment to address the concerns. At the time of CM's birth, a final decision had not been made with respect to the permanent plans for either child, and the evidence demonstrated that the Society did not commit to the permanent placement in the grandmother's care of TD until after the 2012 report from Dr. McGrory.

[123] However, just as the Society had moved TD into the grandmother's care in 2010, well before it made its commitment to a permanent plan for TD in early 2013, why didn't they similarly move CM with the grandmother? The reasons for the lack of planning for that possibility were never clearly addressed, other than to say, "the grandmother never asked".

[124] The parties seemed to identify at the time of his birth that placement of the child CM with his grandmother was a reasonable step to take. The grandmother was asked, but she did not take steps to put forward a plan at that time.

[125] Perhaps more could have been done to foster the relationship between the child CM, his sister and his grandmother by arranging for a regular schedule of access with the grandmother. The reasons why this did not occur were not answered by the evidence. It appeared that the grandmother occasionally voiced her desire to have time with the children together, and on occasion this occurred.

[126] However, it also appeared that there were many competing issues which complicated the grandmother's commitment. The evidence concerning the placement of the child in her care, in unplanned and unusual circumstances, was that the grandmother was overwhelmed by his needs, and within the space of a few days, delivered the child to the Society in Chatham.

[127] There was also evidence of some past difficulties in the relationship with her husband, and a brief separation. There were financial pressures, and changes of employment occurring. It seems that these issues were resolved recently, after the kinship assessment, when the grandmother and her spouse obtained work in the Stratford area, and moved there.

[128] The grandmother's stated position was always the same. If the child is going to be made a Crown ward, then I want him placed with me. Interestingly, her position with respect to C was the same. She said in her evidence that had she known that the Society would apprehend C and place him in foster care, she would not have returned him.

[129] In spite of her evidence, however, she took no steps to alter what was occurring, either in the case of C by putting forward a plan for placement with her, nor in the case of CM by putting forward a plan for temporary placement with her.

[130] There was evidence as well that the obligation to transport TD was a burden for the grandmother, such that she reduced the number of times and trips she was prepared to transport the child for access by the mother.

[131] Finally there was the decision to put the kinship assessment on hold in mid-January of 2013. She said it was because the Society had failed to explain this to her daughter, and her daughter was upset about the plan. This was confirmed by the Family Services Worker who had an angry phone call from the mother who was upset at the thought of the child being placed with the grandmother. The grandmother decided to place the assessment on hold until after the next Court date. It was important to remember that while TD had been living with the grandmother for a number of years at that point, the final order for custody had not been made, and in fact was pending before the Court, and ultimately agreed to by the mother on February 21st, 2013.

[132] While I was concerned about the absence of any plan to increase access between the child CM and the grandmother, I concluded that unless and until the grandmother requested placement with her, the Society was unable to respond in any other way. There was no evidence however of a considered effort to encourage or explain the importance of doing so. The Society facilitated access between the children when they had visits with the parents, which until November of 2012 was the only option that was before them.

[133] At the same time, it must also be remembered that until Dr. McGrory's further assessment of the mother which was released in November 2012, the Society continued to pursue placement with the mother as the permanent plan. The correspondence to the Woodstock CAS requesting a kinship assessment in November of 2012 was clear that the Society had only then decided to pursue permanency planning for CM elsewhere, and pending a positive kinship assessment, was planning to transition the child CM into the care of the grandmother.

[134] I concluded that both parties were to be faulted for their inability to engage in more effective planning for CM's future, and at the very least to facilitate a more generous period of time for CM, his grandmother and his sister.

[135] In the meantime CM continued to be raised by his foster parents.

Conclusion

[136] I am mindful that a Crown wardship with no access for the purpose of adoption is decision of last resort. The cases in that regard are well known, and are not cited here, in view of the decision I am making.

[137] At the outset on the evidence as a whole, I concluded that it was possible for the child to be placed with a member of the child's family pursuant to section 57(4) of the Child and Family Services Act. The central question remained however whether such a disposition was in the child's best interests and was the central issue in this trial.

[138] The following considerations favour the Societies plan. Firstly, it would cause the least disruption for the child. Secondly, it will continue the care that the child has been receiving for over 4 ½ years with the foster parents. This will ensure a continuation of the child's secure place as part of that family, and continuing stability and development within that environment. Thirdly it will serve to continue the important and primary relationships he has had within that home, not only with the children in that home, but also with the foster parents with whom CM has clearly established a strong bond.

[139] The grandmother's plan had the advantages of securing the child within his family of origin. The legislation clearly made this a fundamental and important consideration in his best interests. He would have an ongoing relationship with his sister, and also under conditions with his mother.

[140] Both plans have weaknesses. The Societies plan would sever the relationship between the child and his parents. It would potentially impact upon the relationship of the child with his sibling, although the proposed adoptive parents were prepared to consider arrangements to continue the child's relationship with his sister.

[141] The grandmother's plan would disrupt the child's life as he has known it for 4 ½ years. How the child would be impacted by the loss of the only parental caregivers he has known was not addressed in the evidence, but common sense would conclude that there will be some impact. There would be a period of adjustment, and uncertainty about the child's response to the changes in his life. There was no evidence before me about the potential for emotional harm in this respect. The kinship assessor was concerned about this, and recommended that the child be moved under a supervision order, so that services might be available for the child in the event that there were adjustment difficulties.

[142] The Society argued that the plan by the grandmother did not present as a permanent plan for the child, and was concerned about the implications for the child should placement with the grandmother break down.

[143] In fact the grandmother's plan was a permanent plan. It was the assessor who thought the family could benefit from some support to ensure success with the provision of services in support of the plan.

[144] With the greatest of respect, I did not agree with the Society. In my view, the benefits to the child of maintaining his place within his family of origin outweighed the benefit of the status quo, as good and appealing as that option was. The risk of the placement being unsuccessful was low. The grandmother had successfully assumed the care of the child TD, without any concern about her welfare. The report of the assessor made this clear, not only based upon her own experience with the family, but also on review with the collateral sources.

[145] I did not question the resolve of the grandmother to provide a home for her grandson. She had demonstrated her ability to provide care to a young child with CM's sister with a positive outcome for her. There was no reason to expect a failure to care for CM or to protect him in these circumstances.

[146] The grandmother's decision to wait until it was clear that there was going to be an application for Crown Wardship did not reflect a lack of resolve on her part. In fact, the Society clearly was pursuing that as an option until November of 2012, not only for CM, but also for TD. At that point, when they made it clear that there plan had changed at that point, the grandmother responded with due diligence. The failure to proceed expeditiously with the assessment was not the grandmother's sole fault, but in fact, was more as a result of the interagency issues between the applicant and Oxford County CAS that was reflected in their correspondence.

[147] The grandmother expressed her concern about the child CM (and to some extent the child C) forming a bond with her that would impact upon the ability of the Society to effect a return of the child to the mother. She was supportive of her daughter in her efforts, and did what she could to facilitate her daughter's relationships with her children by means of transportation of TD back to Chatham to continue visits.

[148] More could have and should have been done to facilitate the child's relationship with the grandmother. There was a real danger in this case, as there always is in any case when a relative steps forward at the last minute, that too much time had passed and strong bonds had been formed elsewhere, that militated against the relative's last minute effort to save a child from adoption. In this case, all parties ought to have foreseen the dilemma, and taken steps earlier in the process to address the concern. They did not, but I can't fault the grandmother for her position in light of the fact that the Society purportedly continued to support or at least plan for the eventual return of CM to his mother.

[149] There was nothing in the legislation that would preclude a placement of the child with the grandmother under an order of supervision. I accepted the evidence of the kinship assessor that such a precaution might be warranted to access appropriate services during the transition. This should have occurred a year ago, and CM's best interests still require placement with a member of his family in this unusual case.

[150] For these reasons, I am ordering that the child CM be placed in the care of his grandmother TS-S for a period of six months, to be supervised by the Chatham-Kent Children's Services, subject to the following terms and conditions:

a. Access to the child, and to the home of the child, on an announced and unannounced basis;

b. The grandmother shall after review with her counsel sign any consent requested by the Society for a release of information from third party service providers to the child;

c. The grandmother shall notify the Society of any change of address or telephone number.

[151] Reasonable access shall be exercised by the mother, supervised by the grandmother and as arranged with her.

[152] There will be no access for the father.

[153] This was not an appropriate case for costs. There will be an order for no costs.

Released: August 20th, 2014

Signed: "Justice Stephen J. Fuerth"