WARNING

The court directs that the following notice shall be attached to the file:

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

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

The court may make an order:

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

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

(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

Court File No.: Toronto C57882/12

Date: 2014-04-29

Ontario Court of Justice

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— AND —

A.D.1, also known as A.D.1 and A.D.2

Respondents

Before: Justice Curtis

Heard on: 3-7, 10-14, 18, 28 February 2014

Reasons for Judgment released on: 29 April 2014

Counsel

Fatima Husain . . for the applicant Catholic Children's Aid Society of Toronto

Arthur Brown . . . . . . . . . . . for the respondent mother A.D.1

Daniel Boiani . . . . . . . . . . . . for the respondent father A.D.2

Gilead Kay . . . . . . . . . . . . . . . . . . . . . . . . . for the child B.F.D.

CURTIS, J.:

INDEX

1. Over-view
2. Background
3. The Protection Finding
4. The Child
5. Litigation History
6. Disposition
   • a. Plans Proposed at Trial
   • b. Alternative Plans for the Care of the Child
   • c. Disposition Legal Principles
   • d. The Child
   • e. The Mother's Plan and her Evidence
   • f. Report from the Children's Lawyer in the Custody and Access Case
   • g. Evidence regarding Disposition
   • h. Analysis regarding Disposition
   • i. Why Not Supervision Order?
   • ii. Access
7. Orders

1. Over-view

[1] This is the decision in the 12 day trial of a protection application regarding the child B.F.D. (almost three years old at the trial). The trial dealt with both the protection finding and disposition.

[2] The Catholic Children's Aid Society of Toronto ("C.C.A.S.") is seeking a finding that the child is in need of protection and a disposition of crown wardship, no access, for the purposes of adoption. The mother opposes this, and wants the child returned to her care, subject to a supervision order (if required). The father consented to the protection finding, and to crown wardship without access. The child's counsel supported the request for the protection finding and for the disposition of crown wardship.

[3] The issues for determination are these:

a) Is the child in need of protection and, as a consequence, does she require a court order for her protection?

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

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

2. Background

[4] A.D.1, also known as A.D.1, is the mother ("the mother") of the child in this case. She was born in 1993 and is 20 years old. A.D.2 is the father ("the father") of the child. He was born in 1990 and is 23 years old. The parents were married on 3 March 2011 and separated on 31 July 2011.

[5] The parents have a child, B.F.D., born in 2011. The parents were young when she was born (the mother was 17 years old, the father was 20).

[6] Both parents came from difficult families and had difficult histories.

[7] C.C.A.S. has been involved with both the mother and the father as children, with respect to concerns regarding their own parents.

[8] There were numerous concerns regarding the paternal grandmother and grandfather. The paternal grandmother was killed when the father was a child (three years old). The father was largely raised, along with his older sister, by his grandmother, and he has continued to live in his grandmother's home. Until very recently, the mother and the child also resided in this home.

[9] There were and continue to be numerous concerns regarding the maternal grandmother and grandfather. Until recently, C.C.A.S. had an open file with respect to the maternal grandmother. The mother has had a history of documented conflict with the maternal grandmother. There were concerns as well noted in the previous agency's records regarding the maternal grandfather.

[10] The mother had a relationship with S.M. ("Mr. S.M.") from late 2011 to February 2013. She included Mr. S.M. in her plan for the child during their relationship. Criminal records indicate that Mr. S.M. had been caught by police in possession of substances, and there were allegations of drug trafficking. In addition, he has some charges regarding theft. Their relationship ended in February 2013.

3. The Protection Finding

[11] C.C.A.S. was seeking protection findings pursuant to s. 37(2) (a),(b), and (g) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended ("C.F.S.A."):

Child in need of protection

(2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[12] At trial, the father consented to the protection findings and the mother did not. The Statement of Agreed Facts at trial contained adequate evidence to support protection findings under both ss. 37 (2) (b) and (g) of the C.F.S.A. . On the basis of the evidence in the Statement of Agreed Facts, and on the consent of C.C.A.S., the father and child's counsel (but not the mother), the court made a finding on 3 February 2014 (the first day of the trial) that the child was in need of protection, pursuant to ss. 37 (2)(b) and (g) of the C.F.S.A. . The findings that the child was in need of protection are easily supported by the evidence regarding the ongoing conflict between the parents, the conflict between the parents and their respective families, the domestic violence and the drug testing of the child at age one, which produced positive tests results for marijuana and cocaine.

[13] The test of the child's hair was done at a time when she was in the care of either her mother or her father (as the parents were separated then). The conclusion is unavoidable that the child was exposed to cocaine and marijuana in the care of her parents. The mother refused to acknowledge that the child was at risk of harm due to her exposure to cocaine and marijuana.

[14] On 6 February 2014 (the third day of the trial) the father, C.C.A.S., and the child's counsel entered into a consent for crown wardship without access for the purpose of adoption, regarding B.F.D.

[15] This significantly narrowed the issues to be determined at trial. The only matter remaining for decision was whether the child should remain in care, and become a crown ward, or whether the child could be returned to her mother's care, with or without supervision.

4. The Child

[16] The foster mother gave evidence about the child. When the child was ordered into care (she was 20 months old), her behaviour was described as wild and pretty unusual. She was not talking, and knew no words (other than "no"). She did not make eye contact, and she did not respond to her name. She was very defiant and oppositional. She did a lot of screaming and yelling. She did not have a routine. She threw a lot of tantrums, threw herself to the ground, and banged her head on the ground. She loved television, did not want to be away from the television, and would scream and throw tantrums if required to leave the television. She would scream at doctor's appointments.

[17] The child was assessed by Dr. Vallance, an expert for the purposes of giving opinion evidence, on consent, regarding child development, clinical child psychology and attachment theory. Dr. Vallance produced a report, dated 28 January 2014, which was filed in evidence, and gave oral testimony. Dr. Vallance's evidence is that the child is a complex little girl. She continues to be oppositional and defiant. She tends to be controlling and bossy. She can become significantly distressed with transitions and changes in routine. She requires supervision in the home and in the community. She is indiscriminately friendly.

[18] Dr. Vallance gave evidence that the child is likely suffering from Reactive Attachment Disorder, which is the product of the inappropriate and inadequate care provided by the preferential caregiver to the child in the first one and one half years of her life. The mother was the preferential caregiver during this period of time, and this disorder is directly attributable to the inadequate care the child received while in the care of the mother.

[19] Dr. Vallance testified about concerns regarding the child's speech and language development, as well as concerns regarding her symptoms of Post-Traumatic Stress Disorder and Attachment Disorder. This could be traced back to her exposure to traumatic events, including frequent incidents of domestic violence and high conflict. The child demonstrates significant behavioural, emotional, functional (i.e., wetting and soiling), and attentional regulation difficulties, as well as developmental concerns, mainly in the area of communication. She has difficulties with self-regulation and omnipotent behaviours. She lacks an attachment relationship with a preferential caregiver. She is experiencing some symptoms of post-traumatic stress disorder and is in fact demonstrating high arousal levels and anxiety levels.

[20] The C.C.A.S. health specialist (a registered nurse) said that saw the child with her mother, and testified about concerns around safety issues and stimulation, as well as other parenting concerns.

5. Litigation History

[21] C.C.A.S. has been involved with this family since the spring of 2011, initially due to concerns regarding several incidents of domestic violence. There was an incident in the fall of 2010 between the mother and the paternal grandmother, as well as an incident in April 2011 between the mother and the maternal grandmother.

[22] From May to July 2011, there were multiple referrals to C.C.A.S. regarding incidents of domestic violence in the child's presence.

[23] There were also incidents of domestic violence reported that occurred between the parents. The mother was charged with assault on 16 and 31 July 2011, both incidents in relation to domestic violence between the parents. She was arrested in relation to the second incident on 31 July 2011. The child was exposed to violence in the home, but according to the mother, was not present in the room during the incident of 31 July 2011.

[24] After the arrests regarding the incidents in July 2011, the parents separated, and have remained separated since that time.

[25] In August 2011, the father started a custody and access case. At this time, the child was in his care due to the mother's arrest for assaulting him.

[26] The custody and access case was quite acrimonious. Each parent made serious allegations about the other. Each parent accused the other of being a danger to the child, of being violent towards them and of using drugs while in a caregiving role.

[27] On 31 August 2011, the court appointed the Office of the Children's Lawyer to conduct an investigation in the custody and access case, and the child was placed in the temporary care of the mother. The father was granted week-end and overnight interim access on a weekly basis. The father continued to exercise week-end access until the child was placed in care.

[28] Both parents have accused the other parent of using drugs, including cocaine and ketamine.

[29] The mother acknowledges that she uses marijuana recreationally and, she claims, only during times when she is not in a caregiving role to the child.

[30] In October 2011, the father attended for a hair strand analysis screen that he had asked C.C.A.S. to fund. His screen was positive for marijuana (cannabinoids) and cocaine.

[31] In November 2011, the mother attended for a hair strand analysis screen at the C.C.A.S.' expense. This screen was positive for marijuana. The screen notes that her hair was dyed at the time.

[32] In November 2011, the mother was charged, in conjunction with others, with robbery and conspiracy to commit an indictable offense, in relation to a robbery she participated in that occurred in her building.

[33] C.C.A.S. became involved again in December 2011 due to concerns regarding domestic violence, high conflict between the parents, and between the parents and their respective families, inadequate parenting, unstable housing and concerns about the parent's drug use.

[34] In January 2012, the mother was arrested for failing to appear in criminal court. These charges were disposed of by way of a plea to a lesser charge and an 18 months probation order, which included community service. The probation order ends in April 2014.

[35] In March 2012 the Office of the Children's Lawyer produced a report (in the custody and access case) outlining 12 recommendations, including the following:

a) Temporary custody to the mother (emphasis added);

b) Continued C.C.A.S. involvement to ensure the child's safety (emphasis added);

c) Daily programming for the child's social and emotional development;

d) The parents should accept and follow through with the C.C.A.S. recommendations with respect to services;

e) The parents should attend counselling and seek services to address the issues and behaviours that adversely impact their parenting;

f) The parents should not be under the influence of drugs while caring for the child; and,

g) The child should be taken for a drug hair strand test.

[36] In March 2012, the child's hair sample was screened for drugs. The results were positive for cocaine and marijuana.

[37] In June 2012, there was another incident of domestic violence between the mother and the maternal grandmother while the child was in the home. The mother and the child had to leave the maternal grandmother's home.

[38] From July to November 2012, C.C.A.S. was unable to monitor or supervise the child while in the mother's care, as the mother was unco-operative in meeting with the C.C.A.S. worker.

[39] The mother missed a court date in November 2012 in the custody and access litigation.

[40] On 15 November 2012, C.C.A.S. brought a protection application, seeking an order of supervision placing the child in the care of the mother.

[41] The identified concerns then were domestic violence, the mother's unco-operative behaviour, concerns about the mother's parenting ability, and on-going concerns about the parents' drug use and unstable housing.

[42] The protection case was first heard on 20 November 2012, and the mother was not present. The case was adjourned to 22 November 2012 to allow the mother an opportunity to attend. The mother did not attend court that morning. The father was present for both court appearances. The mother arrived at court in the afternoon on 22 November 2012, with the child, after several attempts by the C.C.A.S. worker to contact her. By the time the mother arrived, the court had already made an order. Although the mother asked for the order to be set aside, the court did not do so.

[43] On 22 November 2012, Murray, J. refused to make the supervision order that C.C.A.S. sought, and placed the child in C.C.A.S.' care, on a without prejudice basis. Murray, J. cited the following reasons for deciding that a supervision order would be ineffective to address the significant protection concerns, and that the child needed to be in the temporary care of C.C.A.S.:

a) the mother's non-compliance with recommended services;

b) the mother's substance abuse;

c) the mother's anger management and criminal record;

d) the mother's lapses in judgment;

e) the mother's lack of appropriate supervision of the child, which gave rise to safety concerns regarding the child; and,

f) the mother's failure to comply with the recommendations of the Children's Lawyer's Report.

[44] On 20 December 2012, the parties argued a temporary care and custody motion. The child was ordered placed in the temporary care and custody of the C.C.A.S.

[45] On 31 January 2013, the court appointed the Office of the Children's Lawyer in this case (the protection application). The court also ordered, on consent, production of police records of the father, the mother, and Mr. S.M., on motion brought by C.C.A.S.

[46] In March 2013, both parents attended for a permanency planning conference at the C.C.A.S. offices.

[47] The mother attended, at her own expense, for a hair strand analysis drug screen in May 2013. The results were positive for marijuana. The results note that her hair was dyed. The mother states that her hair was partially dyed.

[48] In November 2013 both parents attended for a family centred conference at the C.C.A.S. offices. A day later, the father admitted to having relapsed and used illegal substances.

[49] To date (3 February 2014) the father has not yet attended for a second hair strand analysis drug screen.

[50] The child has remained in the continuous care of the C.C.A.S. since 22 November 2012. At trial, she had been in foster care for 15 months. The mother's access is once per week, supervised at the C.C.A.S. offices, and once per week at her home.

[51] When the trial began, the parents were each presenting a separate plan to care for the child.

6. Disposition

a. Plans Proposed at Trial

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

a) C.C.A.S.'s plan is that the child be made a crown ward without access for purposes of adoption; and,

b) The mother's plan is to have the child returned to her care, with or without a supervision order.

b. Alternative Plans for the Care of the Child

[53] Section 57(4) of the C.F.S.A. requires the court to look at community placements, including family members, before deciding to place a child in care. At the trial there were no alternative plans, from family or community, presented for the care of the child.

c. Disposition Legal Principles

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

[55] Section 57(1) of the C.F.S.A. sets out the types of orders available to the court after a child is found to be in need of protection:

Order where child in need of protection

57. (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1) ; 2006, c. 5, s. 13 (1-3).

[56] The decision process on a disposition hearing, following a finding that the child is in need of protection, has been set out by Perkins, J. in Children's Aid Society of Toronto v. T.L. and E.B., 2010 ONSC 1376 (Ont. Sup. Ct.), para. 25, as follows:

1. Determine whether the disposition that is in the child's best interests is a return to a party, with or without supervision. If so, order the return and determine what, if any, terms of supervision are in the child's best interests and include them in the order. If not, determine whether the disposition that is in the child's best interests is society wardship or Crown wardship (Section 57);

2. If a society wardship order would be in the child's best interests, but the maximum time for society wardship under section 70(1) has expired, determine whether an extension under section 70(4) is available and is in the child's best interests. If so, extend the time and make a society wardship order. If not, make an order for Crown wardship.

[57] Section 57(1) is limited by section 70 of the C.F.S.A., which provides that the court shall not make an order for society wardship that results in a child being a society ward for a period exceeding twelve months, if the child is less than six years old on the day the order is made, unless the time is extended as provided in section 70(4) of the C.F.S.A.

[58] Section 70, which sets the time limits for society wardship orders, should not be interpreted as a maximum time for parents to improve their parenting skills. Rather, it should be interpreted as a ceiling for the length of time which a child may remain in foster care: Children's Aid Society of Hamilton v. M.A.M., [2003] O.J. No. 1274 (On. Sup. Ct.), para. 157.

[59] The child is under six years old and has been in care for more than one year (about 15 months, at trial). This is beyond the statutory timelines in C.F.S.A. s. 70. An order for society wardship is not available for her, unless the court makes an order extending the time period allowable under s. 70 C.F.S.A. . The court can only make such an order if it is in the best interests of children to do so. This child needs certainty, finality and permanence. It is not in the best interests of this child for her status to continue to be unresolved.

[60] Section 57(3) of the C.F.S.A. requires the court to consider less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless these alternatives would be inadequate to protect the child. For reasons set out below, returning the child to the mother, even with a supervision order, would not be adequate to protect the child in this case and would not be safe.

[61] Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. C.C.A.S. has been working with the mother and the child since the child was three months old, a period of almost three years. The mother continues to demonstrate an inability and unwillingness to work co-operatively and productively with service providers towards addressing the protection concerns. Her reactions to service providers have ranged from outright hostility, to an inability or unwillingness to follow through with recommendations. A range of service providers (within and outside C.C.A.S.) gave evidence of their difficulty working with the mother and of the mother's inability to work co-operatively with them towards addressing any of the protection concerns.

[62] In applying these provisions, the court must determine what is in the best interests of the child. The criteria to determine the child's best interests are set out in s. 37(3) of the C.F.S.A.:

Best interests of child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

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

3. The child's cultural background.

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

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

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

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

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

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

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

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

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

13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3) ; 2006, c. 5, s. 6 (3).

[63] A crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies: Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J) (1997), 23 R.F.L. (4th) 79 (Ont. Ct. [Gen. Div., Div. Ct.]).

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

[65] The significance of the child-centered approach is that good intentions are not enough. The test is not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There is not to be experimentation with a child's life with the result that in giving the parents another chance, the child would have one less chance: Children's Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man. C.A.). There has to be some demonstrated basis for a determination that the parents are able to parent the child without endangering his or her safety: Children's Aid Society of Brockville, Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Ont. Sup. Ct.).

[66] An order for crown wardship is a final order of powerful and long-lasting consequence. It changes forever the life of the child who becomes a crown ward, and it changes forever the life of the parent. No one in the family is untouched by this order, and no one will ever be the same. It is an order that is not to be made lightly, or without careful thought and consideration regarding all the options available for the child. Crown wardship is the capital punishment of family law. It is a decision that is the most serious and important decision any court can make.

d. The Child

[67] The child is a physically healthy toddler with developmental delays (concerns about speech and language issues) who can exhibit challenging behaviour at times. She was described as a challenging child, who has difficulty with change, and who is often defiant and requires calm re-direction. She is a demanding child who requires constant supervision and assistance to manage her moods. There was evidence from those who observed the mother with the child that the mother found it very difficult to provide the type of calm, consistent, developmentally appropriate re-direction and parenting style that was required by the child in order to meet her needs.

[68] The child has made progress. Dr. Vallance, the foster mother, and the original children's services worker (now the adoption worker who evaluated the child recently) all testified as to the child's progress. According to Dr. Vallance, the child is now demonstrating an improved ability to self-regulate, as well as some attachment behaviours, which are an extremely positive sign of her progress and stabilization, while she is maintained in a consistent environment where she is receiving appropriate care.

[69] The child needs patient care-givers who can work with professionals and have realistic expectations of her, and as well, she needs a stable environment and clear structure and routines. She will likely continue to present behavioural challenges in the future, given her sensory and other undetermined issues.

[70] Dr. Vallance's evidence is that she requires caregivers who can provide structure, consistency, limits and routine within the home. She requires caregivers who recognize her significant developmental and emotional needs, as she requires special services, and she will likely continue to require services in the future to meet her special needs. She requires a caregiver who is able to provide consistent and reliable caregiving in order to meet her developmental and emotional needs, especially when she is distressed, hurt, and ill, in order to facilitate an attachment relationship.

e. The Mother's Plan and her Evidence

[71] It is clear that the mother loves the child and wants to care for the child. She has been consistent in her desire to resume full-time care of the child.

[72] In spring 2012, the mother attended 7 of 9 of the COPE Parenting Program sessions through Yorktown Child and Family Centre, and she attended 9 out of 10 sessions of the Beyond the Basics Parenting Group through Aisling Discoveries Child and Family Centre. The mother received certificates in relation to these programs. Both programs terminated in June 2013. The mother has also received certificates for Nutrition and Kids have Stress, Too programs. She also completed an anger management program in fall 2012.

[73] The mother made some progress in her situation in 2013 and some improvements in some areas. She ended her relationship with Mr. S.M. in March 2013. She completed a parenting course in April 2013. She secured new housing in May 2013. By June 2013, the C.C.A.S. observed some improvement in terms of her level of co-operation and her access visits, in that she was more prepared for the visits, demonstrated an improved ability to manage the child's behaviour, and appeared better able to implement some structure and routine within the visits.

[74] The mother started school in January 2013, and at the trial was in her third semester. The mother plans to return to school in fall 2014 to university, and to take summer courses. She described not finishing high school as "a big, big mistake".

[75] The mother called only three witnesses (other than herself) to testify on her behalf: her grandmother, her father and the C.C.A.S. children's services worker, Ms. Nathan.

[76] The mother said repeatedly in her evidence that she does not think she has an anger problem. When the mother was asked about the conflicted relationships she had with almost every person, in either a professional or personal relationship, she insisted that none of the conflicts were her fault. Throughout her testimony the mother assumed no responsibility for the breakdown in any of her relationships with the two family service workers, the anger management counsellor, her probation officer, the C.C.A.S. health specialist, the foster mother, her aunt, her former spouse Mr. S.M., her own mother and the father.

[77] The mother does not believe that any of the difficulties with C.C.A.S. were due to her conduct. She refused to acknowledge any parenting deficiencies. She admitted not taking the child for her 12 and 18 month immunization shots.

[78] The mother admitted that she and the father had arguments and that there was physical violence between them. She said that the child was not present during these arguments (in that the child was present in the home, but not in the same room). She admitted that the child was always there when there were arguments or fights between her, the father and the paternal great-grandmother, which she said happened very, very often, and that the child was present during her arguments with the maternal grandmother.

[79] In response to questions about the numerous missed access visits, the mother alleged that none of her missed access visits were her fault. Her explanation for not attending the weekly access visits at the C.C.A.S. office was that she did not want her two year old daughter to see her at the C.C.A.S. offices and that she would, therefore, rather not see the child at all. Her cancellation of her weekly supervised access visits is another instance of the mother putting her comfort and feelings before the child's need to see her mother on a consistent basis.

[80] The mother repeatedly said in evidence that she would "do anything it takes" to get her child back. She said this at least five times.

[81] The mother stated outright that the child should be returned to her care because she (the mother) "needed her (the child)." She said "you have no idea how much I need her. I don't have any friends. I just want her back".

[82] The mother admitted that she lied a lot to the police, and that she lied to the police about her mother assaulting her, and scratched herself so the police would think her mother had done that to her. She said that she hated C.C.A.S. and disliked the workers she dealt with (except for children's services worker Ms. Nathans). She said she was not used to anyone telling her what to do with her child, that she did not want anyone to be in her life and that she just wanted C.C.A.S. to be out of her life.

[83] In her evidence the mother made a number of surprising and somewhat unusual accusations against the C.C.A.S., its workers and the foster mother. Among these accusations were that the foster mother had taught the child to throw tantrums, that the foster mother was not feeding the child adequately, that C.C.A.S. had conspired to keep the child's hair strand test results a secret from her, and that the C.C.A.S. worker lied to her about the child's hair strand test results.

[84] The maternal great-grandmother testified that she had a close relationship with the mother, but had no knowledge of the mother's involvement with the criminal justice system, when her current involvement with C.C.A.S. had begun (which was more than one year before the child was ordered into care), the fact that the mother used drugs, or details of her involvement with the C.C.A.S. as a child. The maternal great-grandmother said she was speechless to learn that the maternal grandmother was involved with C.C.A.S. until quite recently regarding her care of Lucas, the mother's younger brother. The maternal great-grandmother said that she has never cared for the child alone. It was unclear how the maternal great-grandmother would be able to play any instrumental role in caring for the child, given her age, her health and her very limited facility with the English language (the maternal great-grandmother speaks no English and the child does not speak Spanish). She said that she speaks to the child in Spanish, and that the maternal grandfather speaks to the child in Italian. She admitted that she was not sure that the mother would "follow the rules" if the child was returned to her care.

[85] The mother has lived since December 2013 with the maternal grandfather (now 53 years old) and they share expenses. The mother said that she made a lot of money from the Ontario Student Award Program, and that she lived on that money. The maternal grand-father testified that he saw the child about once a month, and that he intended to support the mother financially as best he could. Although the maternal great grandmother said that the maternal grandfather speaks to the child in Italian, his evidence was that he speaks to the child in English. He admitted that he has previous involvement with York Children's Aid Society, Peel Children's Aid Society, and C.C.A.S.. He acknowledged that the mother often did not listen and had done "many wrong things". He also acknowledged that the mother did not follow his advice to co-operate with C.C.A.S., to stop using drugs, and to comply with C.C.A.S.' and the court's expectations in order to have the child returned to her care.

[86] The mother acknowledged that the child might be adopted because of her own failure to follow through with the court's and the C.C.A.S.' expectations. She acknowledged that she should have stopped using illicit drugs, that she should have gone to all the access visits, and that she should have followed through with the C.C.A.S. referrals.

[87] The mother was a difficult witness, and her presentation as a witness was uneven and inconsistent. At times she was quite unengaged, and hard to hear and understand, even when told repeatedly that she could not be heard. At times she was confrontational, volatile, hostile, sarcastic, flip, dismissive, condescending and disrespectful, even when being questioned by her own lawyer, during her evidence in chief. She often answered questions with another question. She had to be prompted to answer some questions that she did not like. It was unclear whether the mother did not understand the severity of the crown wardship trial process, or if she did understand, that she did not take the process seriously.

f. Report from the Children's Lawyer in the Custody and Access Case

[88] The clinical investigator (a social worker) prepared the Report for the Children's Lawyer dated 28 March 2012 in the custody and access case. The report was released eight months before the protection application was started by C.C.A.S.. She made numerous detailed recommendations and she gave evidence at the trial, as follows;

a) She saw this case as a child protection case, not a custody and access dispute between warring parents;

b) She had significant concerns about both parents;

c) She recommended temporary custody (not final custody), something she has never done before, although she has prepared 50 such reports, and with the continuing involvement of C.C.A.S., as she was concerned about the child's safety. She has only recommended that a children's aid society should remain actively involved twice in her 50 reports;

d) The mother did not accept that she had any areas of caregiving that needed improvement. In fact, she was defiant about it. She told the social worker "I am not afraid of anyone, or the courts. I'm a good mother and the baby cannot be taken away from me";

e) The mother told her that although C.C.A.S. had recommended counselling and that she attend programs, that she did not want to go and was not going to go;

f) The mother referred to the child as sexy;

g) She believed that her recommendations were giving the mother a chance to follow through with the C.C.A.S. recommendations, and that if the mother did not do so, that the child should be placed in foster care. Her time frame for the mother following through with the C.C.A.S. recommendations was a couple of months;

h) She was concerned that the mother was not open to these suggestions, and that the mother did not feel that the recommendations of the C.C.A.S. or the Children's Lawyer seemed to matter; and,

i) She noted that parents are often on their best behaviour when involved in an investigation and report by the Children's Lawyer.

g. Evidence regarding Disposition

i. The Mother's Anger

[90] Several C.C.A.S. workers and several other professionals gave evidence of the mother's response of anger and defiance at any attempt at intervention with her regarding her parenting.

[91] The mother's level of anger remains a concern. The mother refuses to acknowledge the existence of any problem in her parenting or her care of the child, and shifts the blame for any concerns on to the father or others involved in the child's care. Her response to any efforts to change this belief is anger. Her anger with C.C.A.S. intensified after the child was removed from her care.

[92] There was evidence that the mother is unable to communicate with authority figures around necessary issues, as shown in her failure to comply with her probation order and her failure to comply with the C.C.A.S. expectations. The evidence of her probation officer was that she went to great lengths in order to help the mother, about whom she was sympathetic, and whom she viewed as a struggling young mother. During the trial, the mother was in breach of the terms of her probation order. The probation officer even held off charging the mother with breach of probation for a significant period of time, when the mother was not in compliance with the terms of her probation order.

[93] The evidence of the C.C.A.S. workers was that the mother either ignored or avoided them, or that she was openly hostile and aggressive towards them. The mother's inability to effectively communicate with service providers is a reflection of her unaddressed anger issues. She testified that her anger led her in January 2013 to scream at the family services worker and then to refuse to allow the child to come into her home for her scheduled access visit, even though the child had travelled in a car for two hours through a snowstorm to have her visit. The mother did not check to see if the child was alright, if she was hungry, or if she needed changing. This evidence was quite startling. Even now, at the trial, the mother did not have an explanation or apology for this behaviour, and in fact, conducted herself as though this behaviour was acceptable and appropriate. Who exactly was being punished by the mother's decision to cancel the access visit in these circumstances? The mother was clearly unable to control herself that day, and was unable to put the child's needs ahead of her own. At times her anger governed her actions and decisions, even when those actions and decisions affected the child's well-being or her ability to convey necessary information to authority figures.

ii. Unwillingness to Work Co-operatively with C.C.A.S.

[94] The mother continues to be unco-operative in her dealings with C.C.A.S.. Many C.C.A.S. workers (seven) gave evidence about their dealings with the mother, and all described confrontations, hostility, rudeness, and unco-operative behaviour from the mother. One C.C.A.S. worker (a parental support worker) described the mother as close-minded and one of the most hostile parents she's ever dealt with in the last 20 years, and in dealing with more than 1,000 parents.

[95] Several C.C.A.S. workers described the mother as uninformed about child development, resistant and unreceptive to constructive suggestions about how to care for the child, and dismissive of any assistance offered in caring for the child. The mother told workers she was not interesting in learning new parenting techniques as she had no problems with the child before the child came into care. Suggestions made to her by workers were firmly contradicted with a statement of why it would not work. She was not open to implementing any of the suggestions or recommendations made to her, nor was she willing to make changes. The C.C.A.S. health specialist (a registered nurse) gave evidence that the mother was dismissive of her suggestions, said that she knew everything (about parenting), and that her mother had told her everything. The health specialist said it was difficult for her to assess whether the mother was even listening to her.

[96] The foster mother testified that the mother's notes to her in the communication book were abusive, and that the abusive comments led her to ending her written communication with the mother.

iii. The Mother's Involvement in Criminal Activity

[97] The mother participated in a robbery in November 2012 while the child was in her care. The mother acknowledged that Mr. S.M. also was involved in some criminal activity, and acknowledged that he had criminal charges during their relationship. Despite these admissions, the mother takes the position that the child remained safe and unharmed at all times while in her care.

[98] The mother does not recognize the impact of her actions or these situations on the child. She does not acknowledge the impact on the child of being exposed to frequent police attendance at the home, frequent adult conflict, frequent moves, and the real danger posed by the persons she at times associated with or invited to her home. She testified that she made no move to leave with the child or call the police when her friends stated that they planned to rob another friend of hers. She testified that when they were finished, she opened the door and invited them back inside with the stolen goods, when they knocked. In her view, even during the robbery incident, her daughter was completely safe and well cared for while in the apartment. She expressed no understanding or remorse about the impact that her behaviour might have had on the child, nor any recognition that the child may have been at risk to be present during the planning, execution and aftermath of this criminal behaviour.

iv. The Mother's Transience and Instability

[99] There are concerns around the mother's transience and instability, partially arising from her history of conflict with her family members and others. She lacked a stable residence until recently, and at trial she was living with the maternal grandfather (who was a witness for her). She has maintained an appropriate, stable residence since May 2013.

v. The Mother's Limited Family Support

[100] The mother has limited family support. At trial the maternal great-grandmother and the maternal grandfather gave evidence that they were willing to help the mother. They both clearly love the mother (and the child) and want to support the mother. But the mother did not tell her family members, who are her closest supporters, about the details of the protection concerns, nor did she enlist them and use their help in a meaningful way in order to address the concerns. Neither the maternal great-grandmother nor the maternal grandfather knew much about what was happening regarding the mother's involvement with C.C.A.S.. They did not know about the protection concerns. They did not know much about the mother's recent life, including her recent criminal charges and involvement.

vi. Neglect of the Child

[101] There continues to be concerns about neglect of the child. There was evidence about the mother not supervising the care of the child, both before and after the child was ordered into care. When the child first came into care, she was very used to having a pacifier constantly, was used to watching a lot of television, and appeared to be unable to self-regulate without the television. The mother failed to recognize safety concerns for the child, both physical concerns (such as those resulting from hazards in the home, which took some time to be addressed), and concerns resulting from dangerous situations that she exposed the child to (including having persons in the home who planned a robbery with the mother, and then brought the proceeds from the robbery into the mother's home). There were concerns about the child being left alone with inappropriate caregivers, and that the child did not receive adequate stimulation and adequate medical care. There are concerns that the child does not receive adequate stimulation at the visits with the mother.

vii. The Child was Exposed to Domestic Violence and Conflict

[102] The child was repeatedly exposed to violent incidents while in the parent's care, and was exposed to high levels of conflict between the parents and their respective families of origin. There were numerous incidents of conflict between the mother and others to which the child was exposed. This level of conflict exposes the child to a risk of emotional harm. The mother could not acknowledge that exposure to this level of conflict and violence is harmful to the child.

viii. Drug Use by Both Parents

[103] Both parents admit to drug use over a period of time, and both tested positive for drug use. The child was exposed to substances in her first year of life, and she tested positive for cocaine and marijuana while in the mother's care and the father's care (they were separated at the time), when the child was one year old. Neither parent attended for a further hair strand analysis drug screen, as requested by C.C.A.S. (until the mother produced recent positive drug screen tests at the end of the trial).

[104] The father admitted to issues with substance abuse that remain largely unaddressed. Since the child was ordered into care, he has not taken any steps to address his substance abuse issues. He denies that he has a substance abuse issue and denies that he requires any treatment. He admits, however, to using cocaine as recently as November 2013. He refused throughout this period to provide further hair strand test samples to establish the degree and severity of his substance abuse.

[105] Joey Gareri was qualified, on consent, as an expert in clinical pharmacology, toxicology and analytical toxicology, for the purposes of giving opinion evidence. He is a scientist who is the laboratory manager and project investigator at the Motherisk Laboratory in the Hospital for Sick Children, and he gave evidence about the hair strand drug testing done on the mother, the father, and the child.

[106] Mr. Gareri gave the following evidence about the drug testing:

a) Hair colouring impacts the ability to detect drugs. Coloured hair is often positive, but studies have shown that concentrations of drugs in hair can be lowered by cosmetic treatments, particularly excessive cosmetic treatments;

b) if children have frequent exposure to drugs in their environment, it can be detected in their hair. There are several possible manners of exposure for children;

i. Smoke exposure (exposure directly to second hand smoke, which contains the drug, and attaches to the child's hair);

ii. Exposure to drug residues in the home environment; and,

iii. Frequent handling by care-givers who are using drugs on a regular basis.

c) the implications for a child of a positive drug test result in child hair are these;

i. The child has a caregiver who is a regular user of the drug in question;

ii. The child's home environment is contaminated with drug residues or smoke; or,

iii. The child may be at risk for drug ingestion or inhalation.

d) direct smoke exposure carries with it not just the risk of how is the parent's behaviour influenced by their drug use, but also is this drug actually posing a pharmacological risk to the child of toxicity? Drugs can be highly toxic to children in very small amounts, and can very easily kill a toddler;

e) Toxicology cannot tell the degree of impairment that a person will exhibit from using a drug, because that is highly subjective to the individual; and,

f) The child's hair sample was positive for cocaine, indicating long-term and frequent exposure to cocaine in her environment during the months prior to the hair sample collection.

[107] The mother's level of drug use, and her attitude about this, is a continuing concern. The mother admits to using marijuana on an ongoing basis. The mother has failed to attend for a second reliable hair strand analysis drug screen. Mr. Gareri identified the following effects of marijuana use (among others):

• Impaired gross motor skills;

• Impaired fine motor skills;

• Altered perception;

• Impaired functioning;

• A sedating effect; and,

• Reduced response time.

[108] All of the effects of marijuana use identified by Mr. Gareri in evidence are effects which would have negative consequences for a parent or caregiver, particularly for a parent caring for a toddler.

[109] The mother says she was willing to attend for the hair strand drug screen, but the C.C.A.S. wishes her to attend when her hair has not been dyed for a minimum of four months to ensure an accurate screen. Mr. Gareri's evidence is that a completely uncoloured hair segment is the most reliable for drug testing purposes, as hair dye will often create a false negative test result, by deteriorating the drug that's in the hair. He said that a completely clean hair sample with no question as to whether it has been encumbered by hair products would require that one wait a full period of three months to allow the hair to grow out and be untreated. Despite an order by Paulseth, J. on 2 May 2013 that she stop dying her hair to facilitate a reliable hair strand drug test, the mother continues to dye her hair, including dying her hair during the trial.

ix. The Mother does not Comply with Expectations

[110] The issue to be determined at this trial is whether the mother has taken sufficient steps since the child was ordered into care on 22 November 2012 to establish that her unco-operative and oppositional behavior has been sufficiently modified so that a supervision order could adequately protect the child from any risk of harm.

[111] Before considering a return of the child to the mother's care, the mother was to meet a number of expectations in order to ensure that the child would be safe and properly cared for. The expectations of C.C.A.S. and the court were articulated in the C.C.A.S. plans of care, and were reiterated by the C.C.A.S. workers and service providers, as well as by the court, on numerous occasions. These expectations included the following:

a) Work cooperatively with C.C.A.S.;

b) Attend recommended parenting programs on a regular and consistent basis;

c) Demonstrate the skills and knowledge about child development gained from attending parenting program and working with the society's parents support worker;

d) Demonstrate that she can respond appropriately to the child's needs and behavioural challenges;

e) Refrain from dying her hair in order to attend for a hair strand test;

f) Abstain from using drugs unless prescribed by a physician for medical reasons;

g) Attend anger management counselling and demonstrate that she can manage her anger and problem solve conflict issues in an appropriate manner;

h) Demonstrate that she can place the child's needs ahead of her own;

i) Attend all scheduled access visits; and,

j) Comply with the terms of court orders, and refrain from any further criminal activities that may lead to further criminal charges.

The evidence at trial clearly demonstrates that since November 2012 the mother has failed to meet any of these expectations.

[112] Work cooperatively with C.C.A.S.: The details of this are set out above. Murray, J., in oral reasons and in written reasons for the temporary care and custody motion, released on 21 December 2012, specifically "encouraged the mother to demonstrate that she could engage and communicate appropriately with C.C.A.S. in order to facilitate the child's return to her care". The access order made by Murray, J. was specifically intended to "allow the mother to demonstrate that she can do what she says she can – communicate and co-operate with C.C.A.S.". The order was for two weekly visits, at C.C.A.S.' discretion, supervised at their discretion, and one visit at the mother's home once per week for four hours (with the option for C.C.A.S. to suspend one of the office visits if the child's participation is required at a parenting program).

[113] Since the child was ordered into care, and despite promises by the mother to "do whatever is required" of her, the mother has failed to comply with even the most basic requirements:

a) She was told not to dye her hair, to allow for an accurate hair screen test regarding her substance use, but she failed to do so until late October 2013, and was still dying her hair during the trial;

b) She was asked to participate in anger management counselling, but she failed to attend for counselling to any sufficient degree to allow the counsellor to address the issue;

c) She was repeatedly reminded of the importance of consistent attendance at access visits, both for the child's sake as well as to support her plan, yet from the outset, her attendance at access visits was extremely inconsistent, with a high number of missed visits;

d) She stated that she realized her failure to communicate with C.C.A.S. was in part responsible for the child being placed in care, and that she was now willing to communicate promptly with C.C.A.S. in relation to issues relating to the child, yet she failed to demonstrate that willingness over the past year. She not only failed to communicate with C.C.A.S., she also failed to communicate with her probation officer, as a result of which, her probation officer stated in evidence that she was considering breach of probation charges; and,

e) Although she agreed that she was capable of completing the C.C.A.S. expectations, she consistently continued to make no real effort to do, in fact, anything that was required of her.

[114] Attend recommended parenting programs on a regular and consistent basis: The mother promised, after the child was ordered into care in November 2012, to immediately enrol in parenting courses, but she failed to do so until the spring of 2013. As well, she did not attend regularly or complete the parenting courses for which she was given additional access time with the child. The mother has only attended parenting courses of her own choosing.

[115] Demonstrate the skills and knowledge about child development gained from attending parenting program and working with the society's parents support worker: The mother showed some improvement in her parenting towards the latter part of 2013. However, C.C.A.S. workers had little opportunity to see the mother and the child together over an extended period of time and in a variety of settings to draw any inferences about any change in the mother's parenting ability.

[116] Demonstrate that she can respond appropriately to the child's needs and behavioural challenges: The mother missed over 30 of 100 scheduled access visits. As a result, the mother deprived C.C.A.S. and the court of the opportunity to assess any improvements in her parenting ability. The mother continues to demonstrate a lack of insight into the damaging and adverse impact of her own conduct on her child's development and safety, making it unlikely that she can respond appropriately to the child's needs. The mother refused to acknowledge that the child's exposure to marijuana and cocaine, domestic violence, and criminal activity in her home all placed the child at risk of emotional and physical harm. This makes her a poor candidate to change her behaviour in the future. The risk to the child remains high.

[117] Refrain from dying her hair in order to attend for a hair strand drug test: The mother refused to stop dying her hair in order to provide C.C.A.S. and the court with a reliable hair strand test, notwithstanding the fact that she was told to do so by the court in May 2013, in numerous requests of C.C.A.S. workers, and even by her probation officer.

[118] Abstain from using drugs unless prescribed by a physician for medical reasons: The mother, by her own admission, continues to use drugs and all of her hair strand test results were positive for the presence of cannabis, including the most recent hair strand test provided to the court on the last day of trial. The failure to take these tests in the manner requested (that is, with undyed hair), over a long period of time, results in an adverse inference about the test results.

[119] Attend anger management counselling and demonstrate that she can manage her anger and problem solve conflict issues in an appropriate manner: The mother has not addressed her anger management issues. She has completed some anger management counselling. The mother only sporadically attended anger management sessions, and she unilaterally terminated her anger management counselling at the end of 2013, claiming that she did not believe she had an anger management problem. She has failed to attend for the anger management counselling to which she was referred in order to address this issue.

[120] The mother continues to be antagonistic at times towards C.C.A.S. workers. She continues to engage in conflict with C.C.A.S. workers. She was confrontational and hostile during the trial, even, at times, to her own lawyer, and to the court.

[121] The mother said repeatedly in her evidence that she does not think she has an anger problem. The mother's inability to control her anger impacts on her ability to engage others in the community, and those who might help her, including service providers.

[122] Demonstrate that she can place the child's needs ahead of her own: Even when asked if she would do things for the sake of the child, for the child's care and well-being, or in order to ensure that the child could grow up in her mother's care, the mother's evidence frequently illustrated that she would be reluctant to do most of those things. For example, she stated that her failure to attend scheduled weekly access at the C.C.A.S. offices was because she did not want the child to see her "in that place", her embarrassment and discomfort, and not because the child was upset about the location. She acknowledged that it was her own discomfort that caused her to miss access visits repeatedly, despite her awareness that her attendance would benefit her daughter.

[123] The family serves worker, the children's services worker and the foster mother all testified about the adverse effect on the child of the mother's failure to attend access or to provide adequate notice of the cancellations. The reasons for the cancelled visits (when reasons were offered) reveal that the mother's priorities were her work, school, sleep, her comfort at the C.C.A.S. offices, and her personal affairs, rather than the child's access with her mother. The family serves worker, the children's services worker and the foster mother all testified that the mother never inquired as to the effect of those cancellations on the child, or apologized for the cancelled visits.

[124] Although there was evidence at trial about numerous incidents of cancelled access, the one cancelled access incident that stands out is the incident in January 2013. The mother refused to receive the child for a visit in her home, after the child had travelled two hours in a snowstorm for an access visit. Instead of having an access visit with her daughter, the mother sent the child and the driver back into the snowstorm to travel another two hours back to the foster home. This incident illustrates the mother's inability or unwillingness to place the child's needs, or even her own expressed desire to see her child, above her own need to give effect to her anger and sense of grievance. It also shows the mother's inability to control herself when she is angry. This incident is quite surprising, concerning and is very telling.

[125] Attend all scheduled access visits: The mother cancelled or missed a large number of the access visits. This was an issue from the time the child was first ordered into care. The mother's missed visits were noted by Paulseth, J. in an endorsement on 2 May 2013.

[126] The mother failed to attend over 30 of some 100 scheduled access visits. She cancelled many visits, sometimes cancelling so late that the child was already in transit to see her. Some visits were cancelled with no reasons given. The foster mother gave evidence that the child was disappointed when the mother cancelled the visits, and that the child was a child for whom everything needed to be on routine. The child did not do well when she was taken off her schedule.

[127] Several C.C.A.S. workers gave evidence that the mother was reminded continuously of the importance of attending the supervised weekly access, and that their ability to evaluate the mother's parenting and any progress she may have made in improving her parenting was compromised because she had cancelled so many visits. From August to December 2013 the mother missed almost 70% of her supervised weekly access visits at the C.C.A.S. offices. In December 2013, immediately before the trial, the mother stopped attending for the weekly office visits altogether, and chose to attend only those visits at her home.

[128] The mother admitted that attendance at visits demonstrated her ability to follow through with expectations, and maintain a consistent routine, and that the child might have wanted to see her mother. However, the mother stated that the C.C.A.S. was not monitoring these office visits, and so they served no purpose. The mother was not able to see that there were consequences for the child from these missed or cancelled visits, and was not able to put the child's needs ahead of her own.

[129] The mother admitted that her own lawyer told her to continue to attend the weekly visits at the C.C.A.S. offices. This reduced the amount of time she had the child in her care, and limited the C.C.A.S.' ability to supervise and monitor the manner in which she cared for the child and to assess the degree of risk to the child while in her mother's care. The mother said that she stopped going to the supervised weekly access visits, contrary to her own lawyer's advice, and knowing that it would undermine her ability to have the child returned to her care.

[130] Of the access visits in her home, the mother was granted an additional two hours for the purpose of attending parenting courses, which she failed to attend on a regular and consistent basis.

[131] Children need consistent and reliable parenting. If the mother cannot do this in the minimal parenting time allocated to her, how can the court be confident that she can do this on a full-time basis?

[132] Comply with the terms of court orders and refrain from any further criminal activities that may lead to further criminal charges: The mother's probation officer was quite sympathetic to the mother. She spoke to her "mother to mother". She saw her as a young mother who was determined to get her child back. She had many discussions with the mother about how to make this happen, and she gave the mother advice about this, including advice to stop dying her hair so she could take the drug screen tests. The mother told her that she didn't care about that and that she was going to continue dying her hair. The mother was disrespectful, rude, and generally not pleasant to her. The mother's probation officer gave evidence that the mother has been continuously in breach of the terms of her probation order, and in breach of multiples terms of the order, which terms the probation officer described as minimal and simple to comply with. She also described the mother as hostile, noncompliant, unco-operative and difficult. At the time she gave evidence, the probation officer said that the mother was in breach of her probation.

x. The Mother does not Accept Responsibility and Lacks Insight

[133] The mother does not accept responsibility for what has happened. She still thinks that the child is in foster care because she did not attend court on 20 November 2011, and did not attend court on time on 22 November 2011. She said "if I went to court, I believe I would never have got my child taken away". She said there is no reason why her child should've been placed in foster care. She does not acknowledge that she needs help in parenting her child. She denies any protection concerns. She does not see any problems regarding her lack of co-operation with and open hostility towards C.C.A.S., and in fact, this attitude continues and was evident in her behaviour throughout the trial. She repeatedly said that she was co-operating with C.C.A.S.. She does not accept that her parenting needs improvement, so she is unmotivated to make any changes.

[134] The mother continues to have a confrontational attitude towards those in authority, even towards those in authority whose task it is to help her and the child.

[135] The mother continues to believe that the child should be returned to her care. She states that the child was always safe in her care, that the parenting courses she has taken have assisted her to better understand child development, and that she now has maintained stable housing for the past eight months. The mother has failed to understand or acknowledge any of the concerns, which has greatly limited her willingness to address any of the concerns. Her anger and blame of all those around her, her failure to take responsibility for her actions, and her unwillingness to work towards any real change (because she sees no need to do so) have impeded any meaningful work that could have been done over the past year to effect any change in her parenting behaviour, or her ability to comply with a court order.

[136] The mother has not been able to demonstrate that she has followed through or worked with any service providers, aside from attending a number of parenting courses. While the mother made some progress, there still remain concerns. She has not addressed all of the C.C.A.S.' concerns. She still was not forthcoming with information to C.C.A.S.. She failed to follow through with the recommended anger management counselling. She has had difficulty following through with her probation conditions. She has followed through inconsistently with other services (such as her Wraparound worker). She has largely failed to comply with C.C.A.S. recommendations to sufficiently improve her parenting, to address her substance use and anger management issues, and to co-operate with C.C.A.S., in order to sufficiently address the protection concerns.

[137] Despite extensive efforts by C.C.A.S. to work with the mother towards addressing the protection concerns, or to identify a viable alternate plan, nothing has changed since November 2012 (when the child was ordered into care) regarding these concerns. The mother has failed to make any progress during almost three years of involvement with C.C.A.S.

[138] At trial, the mother promised to do whatever is required to have the child returned to her care. It is difficult to take this promise at face value, as she has had almost three years to make changes, and as she has been very clear that nothing should be required of her. The mother has had available to her numerous supports and services that she has chosen not to pursue. While the professionals, and the court, want to give the mother every opportunity to try to parent her child, the opportunity is coming at the expense of the child.

h. Analysis regarding Disposition

[139] The mother states that she loves her child, and her child loves her. This is a significant factor. The mother's relationship with the child is extremely important and must, of course, be considered.

[140] However, in making a decision in the best interests of the child, the mother's biological relationship to her child is not the only factor to be considered. The mother's love needs to be weighed against the practical reality of her ability to care for her child, and to ensure that the child is neither harmed in her care, nor is she exposed to harm in her care (that is, what is the degree of risk). Only then can the court consider a return of any child to her care. Bald statements of her love for the child are insufficient guards against any of the real risks to the child should she be returned to her mother's care. The court must look to the mother's actions to determine if she has demonstrated an ability and willingness to first address those risks. The mother's actions, over a period of almost three years, have failed to demonstrate this.

[141] The evidence is clear. The child suffered harm as a result of the acts or omissions of her mother while the child was in her care (including repeated exposure to conflict, instability as a result of transiency, lack of stimulation and the mother's failure to enrol the child in an appropriate program to address this, exposure to criminal activity, delayed immunizations, the mother's extremely poor judgment and failure to identify risks to the child, and the child's exposure to substances, either in her mother's or father's care, or both). The mother remains unable to acknowledge or understand how her actions have affected and continue to affect the child. This is apparent from her testimony generally, but in particular, her evidence about the access visits, and her failure to recognize the detrimental affect her inconsistency with these visits has on the child.

[142] The child's speech, language and behavioural issues require a parent who will follow through with services. While the child was in her mother's care, the mother was unable to follow through with ensuring even basic medical care for the child. The mother has not demonstrated the ability to ensure she is capable of attending for necessary programs and services to meet the child's needs. Her inability to adhere to the access schedule is one example of the mother's inability to meet the child's identified needs, as well as to her lack of commitment to the child. The court has no confidence in the mother's ability to follow through with services (such as speech and language services) for the child, particularly when the mother believes that there is no problem to be addressed.

[143] The mother's plan for the child is poorly conceived, consisting largely of promises and speculation. The mother has already had many chances. Many professional witnesses testified about their attempts to engage the mother, to provide her with services, and to provide her with a chance. The professional witnesses had extensive experience in their fields, in providing counselling, in providing parenting instruction, and in providing support. Despite their efforts, the mother was not able to take advantage of their assistance, responded at times with a high level of anger, and resistance to engaging in services, and persisted in her own beliefs, despite evidence to the contrary, or attempts to explain to her otherwise (for example, her belief that extensive use of the pacifier would assist the child's jaw development).

i. Why Not a Supervision Order?

[144] One option is to return the child to the mother, subject to a supervision order. Any plan for the return of the child to the mother would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order.

[145] Has the mother taken sufficient steps to establish that her unco-operative and oppositional behaviour has been sufficiently changed so that a supervision order could adequately protect the child from any risk of harm?

[146] In order for a supervision order to be a meaningful and effective instrument of risk management, the parent subject to the supervision order must meet a minimum threshold of co-operation, and reliability. The effectiveness of a supervision order is dependent on the supervised parent's compliance with the terms of the order, as well as on the supervising agency's ability to monitor that parent's compliance. If the parent fails to meet this minimum threshold of compliance, a supervision order cannot be an effective option to protect the child from possible harm.

[147] The mother has not made sufficient progress in addressing the protection concerns to allow the court to believe that a supervision order would be effective in addressing risk to the child should she be returned to her care. The mother's oppositional and unco-operative attitude had continued unabated to the current time. The evidence clearly demonstrates that the mother has not modified her behaviour to any degree, such that a supervision order can serve as an effective instrument in managing any risk of harm to the child, were she to be placed in her mother's care. The mother's defiant and hostile behaviour, coupled with her lack of willingness to comply, and her failure to communicate as requested and with honesty, will render any court order of supervision ineffective. The court has no confidence the mother is able or willing to co-operate sufficiently with C.C.A.S. to address the risk to the child under a supervision order, no matter how strict the conditions imposed.

[148] There is no foundation for a working relationship or a supervision order under the circumstances in this case. A cornerstone of any effective supervision order is trust and clear and accurate communication between the parties. The mother was clear in her evidence that not only could she not be trusted, she did not trust the C.C.A.S. workers. Any supervision order involving the child and the mother would be an ineffective instrument for the protection and safety of the child. The mother is not a suitable candidate for a supervision order, which requires a sense of co-operation and a willingness to work with C.C.A.S.

[149] When the mother was asked if she would comply with court-ordered terms of supervision, if such terms were imposed as a condition of the child's return, her response was, "I would do it if it was court-ordered. I guess so, if I have to. I don't really want them (meaning the day-care) knowing about C.C.A.S.. Only low-lifes have C.C.A.S. involved in their life."

[150] There has been no real change in the mother's behaviour that would render a supervision order any more effective today than it would have been on 22 November 2012, when Murray, J. refused to make a supervision order and ordered the child into care. Moreover, due to the mother's failure to or unwillingness to follow through with the court's and the C.C.A.S.' expectations, returning the child to the mother's care without a supervision order is not an option.

[151] A supervision order is not a suitable option as the child would not be safe with the mother under a supervision order.

[152] The child is entitled to certainty, finality and to grow up in a safe and stable family, where she is valued and protected from harm. She will not have this if she is returned to the mother. The least disruptive alternative consistent with the best interests of the child is to become a crown ward.

ii. Access

1. Access Legal Principles

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

Access: Crown ward

59. (2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

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

(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).

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

1. If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59 (2.1) (a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step.

2. Determine whether the access would impair the child's future opportunities for adoption. (Section 59 (2.1) (b)). If so, dismiss the claim for access. If not, go to the next step.

3. Determine whether an access order is in the child's best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child's best interests. (Section 58).

[155] Once there has been an order for crown wardship, the legislation reflects an intention to shift the focus away from providing services to facilitate the re-integration of the child back to the natural family, towards a focus on long-term, permanent placement, preferably through adoption: Children's Aid Society of Ottawa v. R.L., 2004 CarswellOnt 3080, 132 A.C.W.S. (3d) 718, [2004] O.T.C. 665 (Ont. Sup. Ct.), para. 57; Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[156] There is a presumption against court ordered access for a crown ward in order to facilitate permanency planning: Children's Aid Society of Niagara Region v. C. (J.), 2007 CarswellOnt 1680, 36 R.F.L. (6th) 40, [2007] W.D.F.L. 2003, 223 O.A.C. 21, 281 D.L.R. (4th) 328 (Ont. Div. Ct.), para. 22.

[157] Once the decision is made in favour of crown wardship, the burden of satisfying the court that an access order should be made, and of satisfying all the conditions for that purpose, is on the party asking for the access order. This is an extremely difficult onus for parents to discharge, but appellate authority has repeatedly confirmed that the burden is on the party seeking access: Catholic Children's Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165 (S.C.C.), p. 50; Children's Aid Society of Toronto v. D.P., 2005 CarswellOnt 4579, [2005] W.D.F.L. 4375, [2005] W.D.F.L. 4373, 19 R.F.L. (6th) 267, 202 O.A.C. 7, 93 A.C.W.S. (3d) 853, [2005] O.J. No. 4075 (Ont. C.A.).

[158] Access is the exception and not the rule in the context of a crown wardship order. Section 59(2) of the C.F.S.A. creates a presumption that any right of access is revoked: Nouveau-Brunswick (Ministre de la santé & des services communautaires) c. L. (M.), [1998] 2 S.C.R. 534, 230 N.R. 201, 204 N.B.R. (2d) 1, 520 A.P.R. 1, 165 D.L.R. (4th) 58, 41 R.F.L. (4th) 339, [1998] S.C.J. No. 52, 1998 CarswellNat 557 (S.C.C.), para. 44.

[159] The person seeking access must prove that her relationship with the child brings a significant positive advantage to the child. More is required than love, the display of love, the fact that the mother had cared for the child in the past, the fact that the mother was the biological parent, and the fact that some visits were pleasant, especially when various negative factors impacting on the child's emotional health, were identified: Children's Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.). para. 29.

[160] The test under s. 59 C.F.S.A. does not permit a judge to consider the best interests of the child when determining whether there should be access to a crown ward.

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

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

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

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

Children's Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.), para 23.

[162] The parent has the onus of establishing all three portions of the test in section 59 (2.1) of the C.F.S.A. . This is a very difficult test for the parent to meet: Children's Aid Society of Niagara Region v. C. (J.), supra, 2007 (Ont. Div. Ct.).

[163] The meaning of the phrase "beneficial and meaningful" was considered in Children's Aid Society of the Niagara Region v. M.J., 2004 CarswellOnt 2800, [2004] W.D.F.L. 510, 4 R.F.L. (6th) 245, [2004] O.T.C. 634, [2004] O.J. No. 2872 (Ont. Sup. Ct.), para. 45-47:

What is a "beneficial and meaningful" relationship in clause 59 (2) (a)? Using standard dictionary sources, a "beneficial" relationship is one that is "advantageous". A "meaningful" relationship is one that is significant. Consequently, even if there are some positive aspects to the relationship between parent and child, that is not enough - it must be significantly advantageous to the child.

I read clause 59 (2)(a) as speaking of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure his or her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while his or her mother or father learns how to be a responsible parent.

Even if the relationship is beneficial and meaningful, I think that, as a final precaution, there still must be some qualitative weighing of the benefits to the child of access versus no access, before an order is made.

[164] The test focuses on the child's, and not the parent's, experience of the relationship in the assessment of whether it is beneficial and meaningful: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850.

[165] The decision about access to a crown ward is not to be made lightly. The court must still be satisfied that the relationship is beneficial and meaningful for the child. An access order cannot be merely a consolation prize for disappointed adults: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 440 (Ont. Ct.), para. 215.

[166] Even where the access visits are generally enjoyable for the child, it is open to the court to conclude that whatever benefits and meaning may accrue to the child from the visits did not outweigh the child's need for continuity of care, and for a secure place as a member of a stable family: Children's Aid Society of Toronto v. M.A., 145 A.C.W.S. (3d) 276, [2006] O.J. No. 254, 2006 CarswellOnt 328 (Ont. S.C.).

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

[168] An access order for a crown ward no longer prevents an adoption order being made. Until recent amendments to the C.F.S.A., a society was unable to place a crown ward for adoption if there was an outstanding access order. Crown wards with access were not eligible for adoption. Section 141.1 has now been amended to allow societies to place crown wards with an access order for adoption. Under the former legislation, it was almost impossible for a parent to establish that an outstanding access order would not impair a child's opportunities for adoption: Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, (Ont. Ct.), para 145.

[169] Section 141.1 opens the door slightly. But it does not change or even reduce either element of the conjunctive test in s. 59(2.1). The court must still be satisfied that "access will not impair the child's future opportunities for adoption". The operative words of s. 59(2.1)(b) — "will not impair" — place an onus on the parents to satisfy the court that access to the crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption. The onus on parents remains high: Catholic Children's Aid Society of Hamilton v. L.S., 2011 ONSC 5850, 2011 ONSC 5850, [2011] O.J. No. 4512, 2011 CarswellOnt 11097 (Ont. Fam. Ct.), para. 419-421, 427, and Catholic Children's Aid Society of Toronto v. S.S., 2011 ONCJ 803, (Ont. Ct.), para 145.

[170] Section 59(2.1) speaks of an existing relationship between the person seeking access and the child, and not a future relationship. This is important, for it precludes the court from considering whether a parent might cure her parental shortcomings so as to create, in time, a relationship that is beneficial and meaningful to the child. This accords with common sense, for the child is not expected to wait and suffer while her mother learns how to be a responsible parent: Huron-Perth Children's Aid Society v. J.F. [2012] O.J. No. 5215 (S.C.J.), para. 77, 80.

2. Access Analysis

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

[172] The onus is on the mother to demonstrate that access visits are meaningful and beneficial to the child. The mother has not met the onus on her to rebut either prong of the presumption against access to a crown ward outlined in subsection 59(2) of the C.F.S.A. . The mother cannot meet the onus in s. 59(2.1) C.F.S.A. regarding access to the child, as she cannot satisfy the court that the relationship between her and the child is beneficial and meaningful to the child, and that access would not impair the child's prospects for permanent placement.

[173] The mother's anger and hostility, her inability to accept any placement of the child outside of her care, and her inconsistent attendance at access, all mean that any access order would impair the child's future opportunities for adoption, as it would restrict the pool of candidates available to adopt.

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

[175] There is no question that both parents had difficulties in their lives. There is also no dispute that both parents love the child very much. However, the focus of this whole process is the protection, well-being and best interests of the child. The child is entitled to have this matter adjudicated and completed. She is entitled to the opportunity to grow up in a safe and stable family, free from any risk to her safety and well-being.

7. Orders

[176] These are the required statutory findings about the child:

• B.F.D.;

• born in 2011;

• Roman Catholic faith;

• does not have Indian or Native status under the appropriate legislation; and

• was placed in temporary care and custody of C.C.A.S. by court order on 22 November 2012.

[177] The child is found to be in need of protection under C.F.S.A. ss. 37(2)(b) and (g).

[178] B.F.D. shall be a crown ward, without access to the parents, for the purposes of adoption.

Released: 29 April 2014

Justice Carole Curtis

Footnotes

[1] The facts agreed at the trial in a signed Agreed Statement of Facts are those set out in paragraphs 7-11, 13-15, 17, 18, 20-22, 24, 26-27, 29-30, 32, 34-39, 104.

[2] A meeting at the C.C.A.S. office with the parents, the C.C.A.S. workers, and any family or community members who will be assisting the parents, with a view to discussing a plan for the care of the child.