WARNING

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

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

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

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

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

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

(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

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

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Toronto v. J.P., 2015 ONCJ 190

DATE: 2015·03·11

COURT FILE No.: Toronto CFO 11 11161

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO,

Applicant,

— AND —

J. P., T.F., O.Y., C.C.

Respondents.

Before Justice P. J. Jones

Heard on June 16, 17, 18, 19; 23, 24, 25; October 28, 29, 30, 31; February 23, 2015 and March 10, 2015

Reasons for Judgment released on March 11, 2015

Mr. Anthony Macri .............................................................. counsel for the applicant society

Mr. Peter Carlisi ............................................................... counsel for the respondent, Ms. P.

Mr. Louis Alexiou ...................................... counsel for the Office of the Children’s Lawyer, legal representative for the child

JONES, P. J. J.:

[1] This is my decision after trial on the dispositional phase of an amended protection application relating to the child J.C. (J.C.) who was born […], 2008. In the application, the Children’s Aid Society of Toronto (the Society) seeks an order of Crown wardship with no access as it is their contention that J.C. is adoptable and that an access order would impair this child’s future opportunities for adoption.

[2] J. P. (the grandmother), who was the child’s custodian prior to his apprehension pursuant to a section 57.1 custody order made under the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the Act), seeks the immediate return of J.C. to her care. If the court were to make the child a crown ward, she seeks access to the child.

[3] Neither the mother nor the fathers participated in this proceeding and the case management judge had previously noted them in default.

[4] The Children’s Lawyer indicated to the court that the child wishes to be returned to the care of his grandmother. In the event the court were to make the child a crown ward, he urges the court to grant his client a right of access to his grandmother and to his sister N.Y. so that his client, in the event he is placed for adoption, would be entitled as an access holder to make an openness application, if so advised. See section 145.1.1(2) of the Act.

[5] This protection application relates to two children, namely J.C. and his older half-sister N.Y. (N.Y.), born […], 2003. Both children were apprehended from the care of the grandmother on December 6, 2011.

[6] The original protection application was dated December 12, 2011 and requested a finding that the children were in need of protection pursuant to section 37(2)(b(i) and 37(2)(g) of the Act and a six months society wardship order.

[7] Justice Katarynych, the case management judge, on consent, made a finding on May 25, 2012, that both children were in need of protection pursuant to section 37(2)(l) of the Act. The matter of disposition was not dealt with at that time.

[8] On April 22, 2013 the Society filed an amended application seeking an order of crown wardship for both children with access in the discretion of the Society to the grandmother.

[9] On October 2, 2013, the application was further amended to claim crown wardship for both children with access to N.Y. only, no access to J.C., as it is the plan of the Society to place J.C. for adoption.

[10] J.C. has been continuously in the temporary care of the Society since apprehension. His sister N.Y. remained in the temporary care of the Society until June 16, 2014 (the first day of the trial) when, on consent of the parties, I made a nine month supervision order placing her in the care of her grandmother subject to supervision on terms agreed to by the parties.

[11] No parent has put forward a plan for either child and no parent has exercised regular access to either child. The only blood relative who has shown a consistent and abiding interest in these children is the grandmother.

[12] The children’s maternal grandmother seeks the return of J.C. to her care. Although I am being requested to make a dispositional order for J.C. only, as the grandmother currently has N.Y. in her care, in arriving at my decision relating to J.C., I must consider the needs of both children and the ability of the grandmother to meet both children’s needs on a daily basis.

[13] Both children have experienced significant trauma, abuse and instability in their short lives. Based on the evidence I accept, I am satisfied that both N.Y. and J.C. have complex emotional, social, and behavioural-management needs which will place heavy demands on any caregiver.

N.Y. AND HER IDENTIFIED NEEDS

[14] N.Y. is now 11 years old. She was conceived when her mother was 14 years of age. For the first 4 years of her life she lived with her mother and her grandmother. When N.Y. was four years old, her mother moved out of the grandmother’s home to live with a new boyfriend, Mr. C. (the father of J.C.), and she took N.Y. with her.

[15] From all accounts, Mr. C. was physically and verbally abusive to N.Y., and less than one year after moving out with her mother, N.Y. returned to live with her grandmother. She returned to her grandmother’s home after Mr. C. was arrested for assaulting her with a belt, and her mother elected to continue living with Mr. C. After the charge was withdrawn, N.Y., at age 51/2, was transitioned back into the home of her mother and Mr. C. and her new baby brother J.C..

[16] When N.Y. was 61/2 years old both N.Y. and her brother J.C. were removed from her mother’s care and placed in foster care for a week and then placed with their grandmother.

[17] According to the history contained in a report prepared by the Thistletown Safe-T program dated September 20, 2011 and filed on consent as an exhibit at the trial, the children were removed from the mother’s home in 2010 for a number of reasons including: concerns about inadequate supervision: allegations relating to physical violence towards N.Y. by her mother and step-father: concerns about N.Y. exhibiting sexualized behaviours: and concerns related to their mother’s mental health (their mother was hospitalized for three months for issues relating to her mental health and was diagnosed with schizophrenia at that time.)

[18] Upon hearing that the children were in foster care, the grandmother returned to Canada to care for them. (She had relocated to the United States where she was engaged to be married, but abandoned that plan because she felt her grandchildren needed her.)

[19] When the children came to live with the grandmother, they presented with significant challenges. For example, N.Y. required assessment and treatment for her sexualized behaviours.

[20] The Safe-T report referred to above, described the presenting concerns on page 3 as follows:

“According to Peel CAS documentation and verbal reports, N.Y. has been involved in a number of sexualized behaviours, initially with her same-age cousin, K, and subsequently with her younger brother, J.C.. The sexual behaviours reported include repeated sexual talk, genital touching and oral sex between N.Y. and her cousin on multiple occasions and forceful kissing with her brother. During the clinical interviews, N.Y. also reported engaging in oral, vaginal and anal sex with her cousin…..”

[21] As well, her grandmother reported to the Society that N.Y.’s behaviour prior to apprehension was problematic and included lying, stealing and hitting her brother.

[22] The children came into care as a result of an allegation made by N.Y., echoed by her brother, that their grandmother had “beat them with a belt”. The allegation was denied by the grandmother who said that N.Y. was lying (although she did admit to hitting the children on “the bum” when they misbehaved). The grandmother was so angry about this allegation that she beat her grandchildren with a belt, that she suggested that N.Y. be placed in care. Given the nature of the allegation and the angry reaction of the grandmother, the children were apprehended on December 6, 2011.

[23] Since December 6, 2011, N.Y. has been in three foster homes. Her stay at the first two foster homes was for periods of less than one week on each occasion. The third home was a specially selected treatment foster home where N.Y. lived from December 19, 2011, until she went to live with her grandmother in June, 2014.

[24] I was advised that the Society had to choose between returning N.Y. to the home of her grandmother and finding another foster home as her third foster home placement had broken down. Given that the Society saw improvements in the grandmother’s parenting, and in the relationship between N.Y. and her grandmother, and given that the Society was of the opinion that N.Y. would not readily accept a placement with anyone other than her grandmother, the Society made the decision (with some trepidation) to return N.Y. to the home of her grandmother.

[25] From all accounts, N.Y. is not an easy child to parent. She has been diagnosed with both ADHD and Oppositional defiant disorder.

[26] N.P., one of N.Y.’s foster parents in the specially selected treatment foster home where N.Y. resided for approximately 2 ½ years, testified about the challenges she faced parenting her.

[27] She described a child who was hyperactive and aggressive—a child who was prone to lying and stealing and who, although intelligent, was a behavioural problem at school.

[28] She also told the court that N.Y. exhibited sexualized behaviour and had attended for counseling at the Safe-T program until December 2013. Notwithstanding the counseling, Ms. N.P. felt more counseling was required because N.Y. continued to exhibit concerning behaviors by dressing and acting provocatively and by showing a prurient interest in pornographic images.

[29] Ms. N.P. described the types of supports offered to N.Y. and to her treatment foster home. She noted that for the last 2 1/2 years, a support child and youth worker had been present in the home for up to 20 hours per week from 4-8 p.m. to assist them in managing N.Y.’s behaviour. As well, until recently, N.Y. spent every third weekend in a relief foster home. As well, N.Y. was on medication for her ADHD and had been in counselling for her sexualized behaviour.

[30] Yet still the placement broke down.

[31] I was advised that the placement broke down when N.Y. began to physically assault her foster mothers and threaten to harm the other children in the home, including the 14 year old daughter of one of her foster mothers. I was advised that N.Y. has hit, punched and kicked both her foster mothers on separate occasions—hitting not just once, but as many as 20 times on some occasions. Ms. P. told the court that in May 2014, N.Y. had taken money out of her wallet, and when confronted, she punched and kicked her and pulled her hair.

[32] Ms. N.P. described a child who could go from “zero to 100 quickly”—a child who, without warning, could lose control and lash out. After the May 2014 incident, the foster mothers decided that they were no longer able to safely meet N.Y.’s needs and requested that another placement be found for N.Y..

[33] N.Y., who had consistently expressed a strong desire to live with her grandmother, is now living with her grandmother. Ms. P. testified that she is very happy to have N.Y. in her home. However, the transition is not without its challenges. Over the summer, while living with her grandmother, N.Y. was accused of stealing other children’s belongings at camp, and since the fall certain behavioural issues have been identified both at home and at school. Faced with these challenges, Ms. P. has indicated her desire to work with treatment providers to make the transition work.

[34] Dr. Fitzgerald, the psychologist who both assessed N.Y. and performed a parenting capacity assessment on the grandmother, commented that Ms. P.’s parenting abilities may be a mismatch with the children’s (high) needs. It was his opinion that Ms. P. should focus on N.Y. and that J.C. not be placed into the household given his high needs.

J.C. AND HIS IDENTIFIED NEEDS

[35] J.C. is now 6 1/2 years of age and has been in care since he was 3 1/2 years old. He is an attractive, very intelligent youngster. Initially, when he came into care, he was described by his foster mother as a well behaved child.

[36] Since coming into care, J.C. has been placed in four foster homes. His first foster home placement lasted about one week, his second foster home placement lasted about one year, and he lived in his third foster home for just over eighteen months. He is now living in Wasaga Beach in a treatment foster home for the last 3 months.

[37] Unfortunately, his third foster placement broke down during the trial. I was advised by his foster mother, Ms. K.S., that she has requested that J.C. be removed from her home because she can no longer manage his aggressive behaviour and she is not willing to tolerate his inexplicable (in her mind) readiness to lie about his treatment in her home. While testifying, Ms. K.S. appeared to be on the verge of tears as she told the court that she “loved” J.C. and she had treated J.C. as one of her own children but the situation is getting worse and she is simply exhausted.

[38] She testified that J.C.’s behaviour has become increasingly violent and aggressive, and his negative attention seeking behaviour has progressed to the point that he requires one to one supervision at all times. She said that she no longer can manage his behaviour. In describing his escalating negative behaviour, she gave the following examples,

• He was moved to another school in September and placed into a behavioural class for grade 1 as he could not be managed in a regular classroom. Before his move, he was constantly in the principal’s office and on numerous occasions, had been sent home because of misbehaviour.

• He has been excluded from attending a church group because of his swearing and assaultive behaviour.

• He has been told not to return to swim classes because he refused to follow directions and kept jumping into the pool even though he could not swim.

• He was told not to come back to the YMCA basketball games because he would not follow the rules and was disruptive.

• He has a tendency to break things. He has broken toys, ripped his dresser apart when sent to his room, has broken vases and dishes and the hinges off the door to his room.

• He has stolen other people’s belongings.

• He has lied about events resulting in other people getting into trouble. For example, when he was subdued by staff after attacking his grandmother at a September 2014 access visit, he accused his worker of choking him. (Apparently, many other people were present and this clearly did not happen.) When confronted with this lie by his foster mother, he said, “I’ll do you like I did Ellen (his worker)”, which the foster mother took to mean that if he became upset about what she did, he would lie about her to get her in trouble like he did when he said that Ellen had choked him.

• When he did not get his way at home, he told his teacher that his foster father had hurt his foster mother and that she was in the hospital and his foster father was in jail. When confronted with this lie, he first said that the teacher was lying, and then he said that he was joking.

• He began to assault the foster mother. On separate occasions, he has punched her in the back, has thrown a toy and a shoe at her, has hit her in the face with a towel when he was taking a shower, and has punched her in the chest.

• He has become very defiant. Now, when the foster mother tells him to go to his room, he will refuse to comply and often says, “You can’t tell me what to do. You are not the boss of me”.

• He has begun to act up in public to the point that the foster mother is reluctant to take him out into the community unless she is in the company of someone else to assist her in managing his behaviour. For example, recently, while she was shopping with J.C. in Walmart, after she refused to buy him a video game, he threw everything out of the shopping cart and started saying, “I hate you. Nobody loves me”, and began running up and down the store.

• During the past summer, he assaulted his grandmother at a number of access visits. The most extreme example of J.C. acting out at a visit occurred this September. On what has been referred to as “the blow up visit”, when his grandmother refused to do what he wanted done, J.C. began to kick, bite and punch his grandmother and to throw items around the visiting room. On this occasion, security had to be called to forcibly subdue him. Later that day, when he returned early to the foster home, he told his foster mother that he had had a good visit and that the reason he came home early was that his driver showed up early. It was only when the foster mother told him that she had been called about the visit, did he admit that something out of the ordinary had happened during the visit.

[39] Dr. Fitzgerald, who assessed J.C. on three separate occasions at age four, age five and age six and saw him again in the context of a section 54 parenting capacity assessment at age six described him as a very disturbed little boy, who is highly impulsive, aggressive and who may be suffering from an emerging mental health problem. (He noted that J.C.’s mother had been diagnosed with schizophrenia and that having a parent with a mental illness is a significant risk factor for her children.) He noted that J.C. had been diagnosed at this very young age with both ADHD and ODD (oppositional defiant disorder). He testified that sometimes early symptoms of a mental illness have a profile that looks like ADHD.

[40] Unlike his sister, Dr. Fitzgerald did not see J.C. as having a secure attachment to any adult. Specifically, J.C. did not appear to have formed a significant bond with his grandmother. In explaining this observation, he noted that, unlike his sister, J.C. did not indicate a preference to live with his grandmother. When asked, J.C. said he would like to live with his father, a man he apparently does not know and who does not visit him. He also said that he “hated” his sister.

[41] Dr. Fitzgerald commented that J.C. did not appear to be able to form a secure attachment to anyone because of his early experiences and trauma. It was Dr. Fitzgerald’s opinion that J.C. will require treatment so that he can learn how to build meaningful relationships. Without being able to recognize and build such meaningful relationships, Dr. Fitzgerald testified that J.C. will be unable to develop healthy relationships in the future. At present, he opined that J.C. has only a limited capacity for attachment and values his relationships for “what he can get out of them.”

[42] It was his opinion that it is unlikely that J.C. will be able to be managed at a regular foster home. Rather, J.C. will require placement in a long term therapeutic treatment residence for the next two to three years where he can have his behaviour managed by trained, professional staff. Over time, J.C. may be able to transition to a more permanent home. Whether that be a long term foster home or adoption, remains to be seen.

[43] He strongly recommended against J.C. being placed with his grandmother. According to Dr. Fitzgerald, Ms. P. would be unable to safely manage J.C.’s behaviour or meet his needs.

[44] Although the grandmother is committed to her grandchildren, according to Dr. Fitzgerald, J.C.’s needs and the grandmother’s parenting abilities are mismatched. He testified that Ms. P. did not seem to grasp the complicated nature of the problems her grandchildren were encountering, and he noted that Ms. P. had told him that “all of J.C.’s problems would disappear if he were allowed to come home and live with family.” (In fairness, he did note that even a parent trained in these issues might be devastated by the extent of the needs identified here.)

[45] It was Dr. Fitzgerald’s opinions that if J.C. were to be sent home, his presence in the home would substantially reduce the likelihood of N.Y. making a successful transition to her grandmother’s home. If J.C. were at home, he told the court that there would be a high risk of a breakdown in the placement for both children.

[46] J.C. was removed from the K.S. foster home in November 2014 at the request of the foster parents and placed in a “treatment” foster home. I understand he is currently on a waiting list (for first assessment, and if approved, treatment at Aisling Children’s Mental Health Centre for latency age children). According to the evidence I heard, J.C.’s behaviour at the new foster home is improving, although he continues to have considerable behavioural problems at school and is in a special behavioural class.

DISPOSITION

Crown Wardship

[47] Ms. P. reluctantly acknowledged that J.C. was not ready to come home at this time.

[48] However, she was not prepared to consent to a crown wardship order notwithstanding the fact that J.C. had been in the temporary care of the Society for almost three years (now over three years), a period well over the two year maximum set out in section 70(1)(b) of the Act for a child over six years of age. She asked that the court make a 6 month society wardship order under section 70(4) of the Act. She argued that it would be in the child’s best interests to do so. Section 70(1), 70(2) and section 70(4) read as follows:

70(1) Subject to subsections (3) and (4), the court shall not make an order for society warship under this Part that results in a child being a society ward for a period exceeding,..

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

70(2) In calculating the period referred to in subsection (1), time during which a child has been in a society’s care and custody under…

(b) a temporary order made under clause 51(2)(d) shall be counted,

70(4) Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child’s best interests to do so.

[49] In this case, I see no reason to extend the period otherwise permitted for making a society wardship order. As Justice Murray indicated in paragraph 69 of the Children’s Aid Society of Toronto v. N.M. [2012] O.J. No. 4858, this section may have some applicability where a “custodian’s plan is promising, but further work is required and that work can be accomplished within 6 months”. In such a case, it is arguably in a child’s best interest to extend the time for the making of a temporary order beyond the statutory limit to see if reunification is possible. In this case, I am satisfied that J.C. cannot safely be returned home now or in the foreseeable future. Any further delay in making the Crown wardship order is not in his best interests. Quite the contrary, it is in this child’s best interests for the Society to begin to plan long term for this child and to put the necessary treatment plan into place as soon as possible.

[50] Accordingly, I make an order that J.C. become a ward of the Crown

Access Request

[51] Ms. P. seeks an order for access to her grandson J.C., including day time access in the community and over night, access at her home. The Children’s Lawyer requests that J.C. be granted an access order to his grandmother and to his sister N.Y., consistent with his treatment needs.

[52] Now that a crown wardship order has been made, all existing access orders are terminated under section 59 (2) of the Act. Section 59(2) reads as follows:

59(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

[53] In order for the court to make an access order to a Crown ward, the applicant for the access order has the onus of rebutting the presumption against access contained in section 59(2.1) of the Act by pointing to evidence before the court that would satisfy the two prong test set out in that section. See: Children’s Aid Society of Toronto v D.P. 2005 34560 (ON CA), [2005] O. J. No 4075 (Ont. C.A)

[54] Section 59(2.1) reads as follows:

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.

[55] Given the evidence I relied upon in granting the Crown wardship order, I propose to begin my analysis by considering whether any access order would impair the child’s future opportunities for adoption.

(i) Would an access order impair J.C.’s future opportunities for adoption

[56] The Society adoption worker Ferdinand Herrera testified that it was his opinion that J.C. is adoptable.

[57] He testified that he had identified three families in June, 2014 that were possible matches for J.C., but, given the length of time this case has taken to try, all three families have already been matched with a suitable child.

[58] He described J.C. as an attractive, intelligent, six-year-old boy with ADHD. He noted that J.C. appeared to be “an affectionate child who relishes one-on-one attention”. He also described him as “distractible, oppositional, with a tendency to confabulate.” He testified that he had spoken with J.C. and he presented as a well-spoken boy with good language skills apparently above his years. He noted that he had seen J.C. with his foster parents and he was described as “likeable”. He said that he would search his case load and if he was not able to find a match he would ask his colleagues to search their data base. Failing a match, it was his intention to seek out a suitable family through “Wendy’s Wonderful Kids”.

[59] Mr. Herreara testified that J.C. needed a permanent, nurturing home where he would be able to form a secure attachment to adoptive parents.

[60] When asked whether he was aware that J.C.’s third foster placement had just broken down, he said that he was unaware of that fact. He agreed that he was not aware of the reasons why this placement had broken down, but he said that he did not think that the reasons for the breakdown would affect his opinion on the adoptability of J.C..

[61] He noted that Ministry Standards required the Society to look for adoptive homes for Crown wards, and in this case, he did not anticipate a problem fulfilling the mandate because he was confident that there were people out there who would be willing to adopt J.C..

[62] I found the evidence of Mr. Herrera, in the context of all the evidence, not credible. His opinion as to J.C.’s adoptability stands in stark contrast to the evidence as a whole and particularly to the evidence given by Dr. Fitzgerald and K.S..

[63] Dr. Fitzgerald gave evidence three times at trial. Initially, he testified in his capacity as a child psychologist who had assessed J.C. at age four and age five. Half way through the trial, I ordered a parenting capacity assessment which he agreed to perform and he then testified in his capacity as a parenting capacity assessor. At the point at which he rendered his opinion as to J.C.’s adoptability, he was aware of J.C.’s recent behaviour in the foster home, at school and at access visits with his grandmother. At the end of the evidence, I sought an update from Dr. Fitzgerald and his comments about access.

[64] It was Dr. Fitzgerald’s opinion that J.C. was a very disturbed little boy who required treatment in a long term residential treatment facility and who was not adoptable at this time.

[65] Dr. Fitzgerald described J.C. as a very angry little boy who feels that his world is out of control and who needs a treatment centre which can help him get some control over “the incredible anger and rage” that he is experiencing. Given J.C.’s assaultive behaviour, it was his opinion that “restraints” may well be necessary” for safety purposes” and “to assist him in understanding why he was getting to that point of loss of control.”

[66] According to Dr. Fitzgerald, it is his hope “that over time J.C. will learn to establish and build meaningful relationships, and take some ownership and responsibility around his role in building these relationships.”

[67] Having said that, he recognized that there were people out there who would be willing to take on the challenge. On p18 line 4 of the transcript of his evidence given on October 29, 2014 he testified,

“Well, you… would take him to either one the adoption fairs or whatever…. he’s a very attractive boy. He’s healthy in many regards. He is bright. People would say… he might be… described as having ADHD and some.. behavioural issues, would respond to a loving, caring, nurturing home environment. And people would say yes I’ll try that. You know, they’d be… willing to, people you know, often believe that they would be able to take on such a challenge, not really realizing what was involved and the types of reactions that such a child can generate internally. And anyone who might have had some involvement with him, you know, we talk about, in psychology we talk about counter-transference. Those are the feelings that you have in relation to someone else that you are… working with. And he will engender or create in, and … you might talk with people who have worked with him, the kinds of feelings that he creates in people. The kind of sense of, the, sort of a sense of anger, helplessness. You viewed yourself as being someone who is very caring and nurturing, and that love can conquer all of these past difficulties the child has had. And then to experience that that is not the case would be…is very difficult. So, in terms of not adoptable, there are ….there are people who will say that they will try this.”

[68] When asked if he thought it would be a good idea to try adoption at this time, he replied that he did not think it was a good idea for the boy (who had already had to face many failed placements) or for the family involved. He testified on page 19 starting on line 4 of the transcript dated October 29, 2014 as follows:

“Well, certainly for the family… as I said before I’ve worked with adoptive families who have… found themselves in these kinds of situation. And, you know, people will say well the people will be there to back you up, and the Society will be there to back you up. People often find themselves very alone and very isolated. And I’ve worked with families who … have adopted children who have the types of behavioral issues and mental health issues, et cetera, and it’s very, very sad and very difficult for them.”

[69] I recognize that the Society has an obligation to Crown wards to use all reasonable efforts to assist them to develop a permanent positive, secure and enduring relationship within a family. This obligation is set out in section 63.1 of the Act which reads as follows:

63.1. Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption.

2. A custody order under subsection 65.2(1).

3. In the case of a child who is an Indian or native person, a plan for customary care as defined in Part X.

[70] And although I accept the general proposition that when a young child cannot go home, a long term, “forever family” through adoption is generally in a child’s best interests, such a plan is not always in a child’s best interests. In assessing whether a Society has made all reasonable efforts to place a child in a “forever family”, the best interests of the child must always govern and each case must be decided on its own individual facts.

[71] In J.C.’s case, I am satisfied that even if the Society were able to find a family ready to adopt him, it is not in J.C.’s best interests to be placed for adoption at this time or in the foreseeable future in light of his serious mental health issues and his need for long term residential treatment to address those issues. Given what is known about this child’s limited ability to form meaningful relationships, the risk of an adoption breakdown would simply be too great and would not be fair to the child nor to his potential adoptive parents.

[72] There is ample evidence in this case that J.C., at this time, is not capable of developing “a positive, secure and enduring relationship within a family” and accordingly, the Society should focus on providing treatment to J.C., so that in the future he will be able to form such an enduring relationship.

[73] Accordingly, I have concluded on the basis of the evidence I accept, that an access order by grandmother to J.C. and an access order by J.C. to his grandmother and to his sister N.Y. will not impair his future opportunities for adoption, as adoption placement now or in the reasonably foreseeable future is not in J.C.’s best interests. The term “future opportunities for adoption” must be read, in my opinion, to mean ‘foreseeable future opportunities for adoption”. To read section 59(2.1) (b) more broadly would have the effect of limiting the making of familial access orders for children “caught in the system” (i.e. not currently adoptable) simply because they might become adoptable at some future time. This could not be the intention of the legislature.

(2) Is the relationship between the grandmother and J.C. meaningful and beneficial to J.C.

[74] Dr. Fitzgerald testified that in his opinion, given his understanding of J.C.’s inability to form meaningful relationships, the relationship between J.C. and his grandmother was not meaningful and beneficial to J.C. at this time but may prove to be meaningful and beneficial in the future.

[75] Although this may be true on a purely psychological level, I did hear evidence that J.C. is always ready to go on his visits and on many occasions is affectionate with his grandmother. He recognizes his grandmother and his sister and his grandmother is the only blood relative who has shown an abiding interest in him and loves him unconditionally.

[76] When and if J.C. is placed into treatment, his grandmother will continue to be a very important person who will be there for him, who will visit him and who will “help build a foundation for some family experience for him that may become meaningful over time” (transcript Dr. Fitzgerald October 29, 2014 p. 8 line 16). Given J.C.’s emotional limitations, I find that the relationship he has with his grandmother and his sister is meaningful and beneficial to him now within the meaning of section 59(2.1)(a) even if a psychologist might disagree because of the child’s constitutional inability to form “meaningful relationships” as discussed in the literature on attachment disorders.

[77] Grandmother and his sister are his only blood relatives who visit with him on a regular basis. They are his bridge to the community. They may well be the catalyst that will allow him to recognize and build meaningful relationships in the future. As such, I am satisfied that the relationship between grandmother and N.Y. and J.C. is beneficial and meaningful to J.C. now and accordingly I am satisfied that this other prong of the two part test has been met as well.

CONCLUSION

[78] I am satisfied that the following orders should issue:

1. J.C. shall be made a ward of the Crown,

2. J.C. shall have access to his grandmother Ms. J. P. and N.Y. (if N.Y. is available) a minimum of two times per month with telephone access once per week, unless an alternate access regime is recommended by treatment provider, that is more consistent with J.C.’s treatment needs. The level of supervision, duration and location to be in the discretion of the Society.

3. Ms. J. P. shall have access to J.C. a minimum of two times per month with telephone access once per week, unless an alternate access regime is recommended by treatment provider, that is more consistent with J.C.’s treatment needs. The level of supervision, duration and location to be in the discretion of the Society,

4. N.Y. shall have access to J.C. a minimum of two times per month with telephone access once per week, unless an alternate access regime is recommended by treatment provider, that is more consistent with J.C.’s treatment needs. The level of supervision, duration and location to be in the discretion of the Society.

5. So long as J. P. continues to exercise regular access to J.C., the Society shall invite her to all plans of care and annual review meetings and shall keep her advised of issues affecting the child’s best interest, including information as to the health, education and welfare of the child.

Released: March 11, 2015 Signed: Justice P. J. Jones