WARNING

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

This is a case under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and is subject to one or more of subsections 45(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.

45(8) Prohibition on publication of identifying information

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.

45(9) 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) Offence

A person who contravenes subsection 45(8) (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

Windsor Registry No.: FO-12-0000196-0001

Date: 2015-08-24

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant

— And —

C.M. and D.M., Respondents

Before: Justice Barry M. Tobin

Heard on: 25 & 30-31 March 2015; 1-2 & 20 April 2015; and 1-4 June 2015

Written submissions received on: 20 & 27 July 2015

Reasons for Judgment released on: 24 August 2015

Counsel

Frank W. Philcox — counsel for the applicant society

Courtney M. Rubin — counsel for the respondent mother, C.M.

No appearance by or on behalf of the respondent father D.M.

Judgment

[1] Introduction

JUSTICE B.M. TOBIN:— On this status review application, the society seeks a finding that S.R.M. (born on […] 2009), now five years of age, and L.L.M. (born on […] 2010), now four years of age,[1] remain in need of protection. The disposition order sought is that the children be made wards of the Crown without access.

[2] Respondent Mother's Position

The respondent, Ms. C.M., is the mother of both children. She asks that the children be placed in her care subject to terms of supervision.

[3] Respondent Father's Position

The respondent, Mr. D.M., did not participate in this case. Service upon him was dispensed with by order of Justice Douglas W. Phillips dated 4 June 2013.

[4] Issues to be Decided

The issues to be decided in this case are:

1. Do the children remain in need of protection?

2. If the children remain in need of protection, what disposition order should be made in their best interests?

[5] Blended Proceeding

On the consent of the parties, this hearing was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in determining whether the children remained in need of protection.

1: DO THE CHILDREN REMAIN IN NEED OF PROTECTION?

1.1: Position of the Parties

Society's Position

[6] The position of the society is that the children remain in need of protection because the respondent mother has not addressed those factors that gave rise to the children's being found in need of protection at first instance.

Mother's Position

[7] The respondent mother's position is that she has addressed those factors that gave rise to risk.

1.2: Finding the Children in Need of Protection

[8] On 26 October 2012, Justice D.W. Phillips gave his reasons on the child protection application initiated by the society. The reasons followed the filing of a statement of agreed facts signed by the respondent mother. It is necessary to review these reasons and that statement of agreed facts in some detail as they inform the analysis of the evidence of what followed since the making of the order. The reasons and agreed statement of facts describe what the situation was at the time that the finding was made as well as expectations for the respondent mother that must be considered in order to determine whether the children remain in need of protection.

Legal Test for Status Review

[9] In Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M., [1994] 2 S.C.R. 165, Justice L'Heureux-Dubé set out the test required under the Act then in force on a status review application as follows:

[36] The question as to whether the grounds which prompted the original order still exist and whether the child continues to be in need of state protection must be canvassed at the status review hearing. . . .

[37] The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. . . .

Original Findings and Agreed Facts

[10] The reasons and statement of agreed facts disclosed the following:

1. Both children were apprehended on 28 March 2012 and remained in care.

2. The respondent mother is the mother of five children, including S.R.M. and L.L.M. The other three children are not in her care.

3. The society became involved with the respondent mother with respect to S.R.M. and L.L.M. because of her:

   • (i) lack of parenting skills;
   • (ii) transience;
   • (iii) involvement in domestic conflict coupled with inappropriate discipline; and
   • (iv) inability to protect the children.

4. The children manifested serious behavioural issues, including attention-seeking behaviour such as banging their heads off floors and tables and pronounced sibling conflict — biting and bruising by S.R.M. of L.L.M.

5. An assessment report dated 11 June 2012, appended to the statement of agreed facts and relied upon by the court, contained significant conclusions:

   • (i) the mother had limited knowledge and understanding of developmentally appropriate parenting strategies;
   • (ii) the mother had a history of difficulty in managing her emotional state, including her state of anger, depression and interpersonal relationships, which tended to be characterized by conflict and misunderstanding;
   • (iii) the mother's problems were severe, long standing and resistant to change; and
   • (iv) the mother did not have the capacity to parent the children on an independent basis.

Initial Disposition Order

[11] The disposition ordered by Justice Phillips, and which was made on the consent of the respondent mother and the society was for society wardship for a period of six months. The mother was granted significant access consistent with a plan to try to return the children to her care: 3 to 4 times per week for 3 to 4 hours per visit, supervised by the society at its premises or at her home.

Plan of Care

[12] The society's plan of care, which the court found to be appropriate, included the following services:

1. a parenting program;
2. anger management counselling;
3. an updated parenting capacity assessment;
4. a psychiatric assessment;
5. domestic violence counselling; and
6. mental health services for the children.

1.3: Circumstances Subsequent to Order Finding Children in Need of Protection

Mother's Engagement with Services

[13] Subsequent to the making of the society wardship order, the respondent mother did engage in a number of services and co-operated with the society. As well, she attended access on a regular basis.

[14] The respondent mother participated in eight parenting classes and seminars, an anger management course and attended an introductory domestic violence counselling program. The respondent mother also participated in a mental health assessment and attended a mental and physical well-being course. She attended with her family doctor and psychiatrist. She understands, from her psychiatrist, that she suffers from a mild mood disorder. Although she did not attend the counselling service recommended to her by her doctor, the respondent mother did attend for related counselling with her pastor.

Resolution of Transience

[15] Transience is no longer an issue for the respondent mother. She has resided in the same premises since November 2013.

Assessment of Parenting Skills Development

[16] Determining whether the children remain in need of protection as submitted by the society requires a consideration of how effective the services engaged in by the respondent mother have been. Has the respondent mother gained the parenting skills necessary to care for, supervise and protect the children adequately?

Children's Needs and Observations

[17] The parenting skills needed by the respondent mother must take into account the needs of the children. Since the children were made society wards, they have had three children's service workers assigned to them whose responsibilities include visiting regularly with the children and their foster parent. These workers have the opportunity to observe the level of development and needs of the children. All three child services workers gave evidence on this hearing. Their names and period when each had carriage are as follows: Anne Quinn (30 March 2012 to 12 November 2012), Joanne Jacobs (12 November 2012 to 19 July, 2013) and Colleen Reaume (19 July 2013 to present). I accept their evidence as it pertains to their observations and assessments of the children, particularly Ms. Jacobs and Ms. Reaume. On the basis of their observations, I find that both children have high needs associated with their behaviour. They can present with behaviour that is difficult to manage. These young children have engaged in self-harming behaviour, tantrums and physical aggression with each other. Going to and returning from access visits was intensely troubling for these children.

Foster Mother's Observations

[18] Ms. Ba., the children's foster mother, described the extreme emotional instability the children exhibited — anger, aggression and self-harm — on days access took place. I accept her evidence.

Mother's Ability to Manage Children's Behaviour

[19] I find the children continue to challenge their mother's ability to manage their behaviour during supervised access. This is the case even though the respondent mother has had many positive visits that are well-planned by her. I accept the evidence of access workers who have described many positive arrivals and departures, some affectionate interaction and some successful attempts to manage behaviour. However, I find the respondent mother is not able consistently and effectively to manage the children's behaviour during supervised access visits despite the services she participated in.

Access Supervisor Observations

[20] Access supervisor Clarissa Wheeler, whose evidence I accept, states that the respondent mother attempted to implement parenting strategies but not always successfully. She, at times, focused more on S.R.M. leaving L.L.M. to play independently. This latter observation was also made by access supervisor Renee Soulliere.

[21] Access supervisor, Dorota Manka observed — and I accept her evidence — that the respondent mother was easily frustrated when attempting to manage the children's behaviour and was usually short with them when they misbehaved. She also observed the children rarely acknowledged her direction without several reminders. This access worker also provided feedback requested by the respondent mother who would generally try to implement the advice on the next visit.

[22] Access worker, Leah Raia, observed the respondent mother raise her voice with the children and on occasion was not able to handle a child having a tantrum.

Children's Behaviour is Manageable

[23] This evidence does not lead to a finding that the children's behaviour is unmanageable by anyone. Ms. Ba. gave detailed evidence that demonstrated the skill and patience she employed in managing the children's extreme behaviour and ensuring they are properly supervised and protected.

Mother's Implementation of Strategies

[24] The respondent mother was able to describe some of the strategies she learned in her parenting courses. Although able to identify ways to help her deal with the children's behaviour, I find implementation on a consistent basis is not something she is able to do.

Mother's Acknowledgment of Limitations

[25] The respondent mother acknowledged that she would have challenges meeting the needs of the children. In a meeting with Dr. McGrory, during which he discussed with the respondent mother the recommendations that he intended to include in his parent capacity assessment (of 27 January 2015), she acknowledged that she would be challenged in caring for the children as a single parent. Dr. McGrory reported that the respondent mother recognized that the children "likely do require a much more specialized and sophisticated level of parenting than she can provide." In cross-examination, the respondent mother was asked whether caring for the children is beyond her ability. In response, she stated, "[I]t's beyond the education that I've been granted."

Implicit Acknowledgment of Need for Protection

[26] In this case, the respondent mother asks that the children be placed in her care subject to society supervision. Implicit in this request is the acknowledgment that the children remain in need of protection. The relief she that seeks cannot be made absent the continued finding.

Legal Test for Risk

[27] The society asks that the children be found to continue to be in need of protection under subclause 37(2)(b)(i) of the Child and Family Services Act, which provides as follows:

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

(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

[28] The risk contemplated in this provision means a real, not speculative possibility. It is not necessary for the society to prove intention: Children's Aid Society of Niagara Region v. T.P..

[29] Harm that could be caused by error in judgement or inadequate parenting skills or ability comes within the ambit of subclause 37(2)(b)(i). This is the case here.

Finding of Continued Need for Protection

[30] I find that the children remain in need of protection under subclause 37(2)(b)(i) of the Act. There is a risk the children are likely to suffer physical harm caused by the mother's failure to care for, supervise, or protect the children based on the following:

1. The children's emotional and behavioural needs are beyond the ability of the respondent mother to meet on a consistent basis.

2. The mother has engaged in a number of services designed to help her acquire the skills necessary to meet the children's needs but she has not been able to apply strategies or skills learned on a consistent basis while the children have been in care — a period of over three years. The respondent mother's lack of parenting skills continues. Risk as that term is defined in the Act at subclause 37(2)(b)(i) remains because, since the order finding the children to be in need of protection on 26 October 2012 was made, improvements in parenting skills have not been sufficient or consistent.

2: WHAT IS THE APPROPRIATE DISPOSITION?

2.1: Legal Considerations

Statutory Pathway

[31] The Act provides a statutory pathway that is to be followed in a child protection application: See Rosemary L. v. Children's Aid Society of Metropolitan Toronto, and Children's Aid Society of Toronto v. Tracy L., 2010 ONSC 1376.

Necessity of Court Order

[32] If the children remain in need of protection, the court must then determine whether a court order is necessary to protect the children in the future: See CFSA, subsections 57(1) and 57(9).

[33] For the reasons that follow, I am satisfied that an order is necessary to protect the children in the future.

Disposition Options

[34] The next step is to consider which one of the orders under paragraphs 57(1)¶1, 2, 3 or 4 or section 57.1 should be made in the best interests of the children. The options in subsection 57(1) are:

57. Order where child in need of protection.— (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:

58. Supervision order — 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.

59. Society wardship — 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.

60. Crown wardship — 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.

61. Consecutive orders of society wardship and supervision — 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.

Best Interests Considerations

[35] It is necessary to consider the circumstances enumerated in subsection 37(3) of the Act when determining the children's best interests: See CFSA, subsection 57(1).

[36] 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. See Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M..

Efforts to Assist

[37] The court must consider what efforts the society or another society or person has made to assist the children before the intervention under Part III of the Act: See CFSA, subsection 57(2). In this case, the mother submits that the society failed in its obligation.

Least Disruptive Alternatives

[38] Before making an order removing the children from a parent, the court must enquire into the least disruptive alternatives that would adequately protect the children: See CFSA, subsection 57(3).

Family or Community Placements

[39] If the children are to be removed from a parent's care, the court is to consider whether there are family or community placements before making a society or Crown wardship order: See CFSA, subsection 57(4).

Statutory Time Limits

[40] Subsection 57(1) of the Act is limited by section 70 of the Act, which provides that the court shall not make an order for society wardship that results in a child's being a society ward for a period exceeding 12 months, if the child is less than six years old on the day the order is made, or a period exceeding 24 months, if the child is six years old or older on the day the order is made, unless the time is extended as provided in subsection 70(4). This subsection of the Act gives the court discretion to extend the time periods above by six months, if it is in the children's best interests to do so. In this case, the children have been in care long past the statutory maximum.

Permanency Planning

[41] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent: See Children's Aid Society of Toronto, v. Robin H. and Michael N..

Crown Wardship Principles

[42] In a case where the society seeks a Crown wardship order without access, Justice Stanley B. Sherr, in Jewish Family & Child Service of Toronto v. Rachel K., 2008 ONCJ 774, reviewed the following legal principles for the court to consider in making its disposition:

[67] 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, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T.. In determining the best interests of the child, I 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. See Catholic Children's Aid Society of Metropolitan Toronto v. Cidalia M.. It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests. See Catholic Children's Aid Society of Hamilton v. J.I. I.M. and V.I.O..

2.2: Services Provided — Did the Society Meet Its Statutory Obligation to Assist the Mother?

Pre-Intervention Services

[43] Before the intervention under Part III of the Act, efforts were made by the society to assist the children and the mother. From the plan of care appended to the statement of agreed facts filed in the protection application, it was disclosed that the society did try to work with the respondent mother regarding her care and management of the children. It did so by encouraging her to follow through with community resources. As well, the society provided services through the Family Well Being Program on two occasions: longer than typically offered by the program. This program provided intensive one-on-one teaching with the respondent mother.

Society's Statutory Function

[44] Clause 15(3)(c) of the Act provides that one of the society's functions is to:

(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

Post-Intervention Services

[45] The society continued to provide services to the respondent mother after its intervention under Part III of the Act. The society provided parenting advice, suggestions and redirection during supervised access visits. Plan of care meetings were convened and the respondent mother consistently was able to attend and participate in discussions related to a plan for the care of the children. A number of services were recommended to the respondent mother in many of which she participated as set out in paragraphs [13] and [14] of these reasons.

Mother's Independent Efforts

[46] The respondent mother, on her own, also attended many parenting classes through her church and the Ontario Early Years Centre.

Mother's Complaint Regarding Services

[47] The respondent mother argues that she was deprived by the society of services and a plan that would have allowed her to have the children return to her care. Specifically, she states that the society's Family Well Being Program would not become involved and access was never moved to her home.

Response to Mother's Complaint

[48] Society workers did inquire whether the Family Well Being Program could be further involved. It could not as the program was for parents whose children resided in their care. This was not the case for the respondent mother. Services for parents whose children were in care were provided.

Finding Regarding Society's Obligations

[49] I am satisfied that the society met its mandate as required under clause 15(3)(c) of the Act.

Access Supervision

[50] Regarding access, the evidence, which will be addressed in detail later in these reasons, did not warrant reducing the close supervision provided by the society.

3: PLANS OF CARE

3.1: The Society's Plan

[51] The society's plan of care is that the children be made wards of the Crown and that there be no access to the respondents.

[52] The society intends for and Ms. Ba. and her partner are committed and have agreed to be long-term foster parents to the children. Ms. Ba. and her partner are not prepared to adopt the children as they will benefit from the assistance the society can provide.

[53] While in care, both children will continue to have a children's services worker assigned whose responsibility will be to ensure that their needs are met including making required referrals.

3.2: The Mother's Plan

[54] The mother's plan is to have the children placed in her care subject to society supervision for a period of 12 months.

[55] As the children are not in her care at this time, she will try to obtain a 2 or 3-bedroom home. To this end, she has requested a Priority II housing application from Central Housing. Her society worker would need to provide documentation in support of the housing application.

[56] The respondent mother intends to live alone with the two children and will try to live in the catchment area of the school that the children now attend.

[57] In order to meet her needs, the respondent mother shall continue attending appointments with her pastor and psychiatrist. She will ensure that both children attend all appointments that they need to meet their emotional and behavioural needs.

[58] It is the mother's intention to continue to participate in parenting programs.

[59] It is her plan that the children continue to be patients of Dr. Awuku, their current paediatrician. She will ensure that they receive dental care, which can be paid through Ontario Works general dental benefits. It is also her plan that, when the children are older, they will be enrolled in age-appropriate extracurricular activities.

[60] She expects that family members and friends will provide her and the children with support. Her friend Ms. Bi. now provides her with emotional support and already has a relationship with the children.

[61] The respondent mother's plan is to work outside the home on occasion once the children are integrated into her home. In addition to occasional employment income, she expects to receive Ontario Works and other government entitlements to support the children and her.

4: THE CHILDREN

4.1: S.R.M.

Mother's Description

[62] The respondent mother describes S.R.M. as athletic, intelligent, and has a bright personality. She is seen by her mother as creative, affectionate, a leader, intuitive and as a quick learner.

Academic Performance

[63] S.R.M. is doing well academically including having an ability to read and process simple math.

Foster Mother's Observations

[64] Ms. Ba. has had S.R.M. in her care since she was 2 years old, now a period of 3 years. She describes S.R.M. as having significant emotional needs. She presents with stress and anxiety. She has engaged in self-harming behaviour.

Medical Management

[65] Dr. Awuku has been S.R.M.'s paediatrician since 5 November 2012. The child is being managed for encopresis, which the doctor describes as being, "long term involving behavioural management".

Sibling Relationship

[66] S.R.M.'s relationship with L.L.M. has been a difficult one. They had been very physically aggressive with each other to the point where they could not be left alone unsupervised. At this time, they are able to spend approximately 30 minutes together without active supervision.

Mental Health Support

[67] S.R.M. continues to receive help through Children First to address her anxiety. A social worker attends at the Ba. home weekly for sessions with S.R.M.

4.2: L.L.M.

Mother's Description

[68] The respondent mother describes L.L.M. as bright, active, though not athletic, intelligent, creative, a quick learner, affectionate, spontaneous, unique and intuitive.

Behavioural History

[69] At the time that L.L.M. was apprehended, she, like her sister, engaged in self-harming behaviour. When she became two years of age, she began to exhibit more challenging behaviour, including aggression towards her sister.

Foster Care Observations

[70] Society worker Reaume describes L.L.M. as presenting as a very bright child. However, she presented with significant behavioural problems and had troubles being still. She is described as often jumping on furniture and always running around. She also has good communication skills.

Detailed Behavioural Description

[71] Her behaviour included throwing tantrums, hurting herself by pulling her hair and banging her head, throwing herself on the floor and scratching her face. She would have "melt downs" lasting for over one hour. Though this behaviour ceased for a short period of time, it began a short while later. The worker described L.L.M. as clean, well-groomed, well-dressed and appeared happy in her foster home. She likes to look pretty and enjoyed compliments. She loves to play with table toys and Play-doh.

Medical Management

[72] L.L.M.'s paediatrician is Dr. Awuku. He last saw her on 7 January 2015. The reason for the visit was constipation and aggression. The proposed management plan was:

. . . evaluated [sic] aggression to assess significance: Keep management strategies and reassess Re: possible need for child psychiatry intervention.

4.3: Children's Behaviour Before and After Access

Foster Mother's Evidence and Mid-Trial Order

[73] Ms. Ba., the children's foster mother, gave evidence about the behaviour of the children in advance of and after access occurred. As a result of this evidence, I ordered mid-trial that the existing access order be suspended. Ms. Ba. described the difference in the children's emotions, behaviour and reactions on days when they had access and on those days when they did not.

Emotional Trauma Related to Access

[74] The access order made by Justice Phillips on 26 October 2012 provided that the mother have access as described above: 3 to 4 times per week, 3 to 4 hours per visit supervised by the society. Ms. Ba. observed and experienced the children's emotional instability, anger and aggression that occurred on days when they had access. She described in detail, painful detail, the children's behaviour, which occurred over an extended period of time. Ms. Ba. had to engage extraordinary skills to calm and soothe the children. Fortunately for the children, she was able to execute her skills expertly and unfailingly. I found that the girls suffered trauma that was severe and debilitating on access days. In one instance, Ms. Ba. described S.R.M. being in a dissociative state. It was as a result of my being satisfied that there was a connection between access visits and the disturbing behaviour of self-harm, anger, emotional instability that the best interests of the children required that access be suspended.

Systemic Failure to Address Children's Distress

[75] What was not explained in this case was why the society allowed the children to suffer so long and intensely in relation to going to and coming back from access.

[76] The foster mother reported this behaviour to various family services workers and the children's services workers. That it took until the trial was underway and the foster mother testified for the court to hear this evidence and be able to act is inexcusable. The society failed to protect these children from the emotional fallout associated with getting them ready to go to and upon their return from access. Society workers, Robin Hodgson (see paragraph 13 of her affidavit); Mercy Quartey (see paragraph 7 of her affidavit); Joanne Jacobs (see paragraphs 11 and 13 of her affidavit); and Colleen Reaume, all knew (see paragraphs 30 and 52 of her affidavit). Counsel for the society advised during submissions that he knew. This court hopes and expects that the society will review how this situation as described happened and then develop and put into place safeguards so it does not happen again.

4.4: Assessment of Mother's Plan

Positive Aspects

[77] I find the following to be positive aspects of the mother's plan of care:

1. She clearly loves the children.

2. She has been steadfast in her attendance at access. She prepares for and tries to implement the strategies taught and suggested to her.

3. Her plan would allow the children to be raised by their biological parent.

4. She recognizes the need for the children's medical and emotional needs to be met with the assistance of community resources.

5. She would try to live in the catchment area of the school the children so as to minimize disruption in their lives.

6. She intends to seek out and participate in services that will meet her emotional needs.

Significant Problems

[78] The mother's plan however suffers from significant problems:

1. After three years of the children's being in foster care and the mother's participating in many programs, she still struggles at times with managing the children's behaviour. At times, she is unable to appreciate the children's emotional needs.

2. The respondent mother has difficulty in benefitting from the courses and hands-on assistance she has received over an extended period of time. She complains that the society did not provide her with enough assistance. With respect, I do not accept that argument. The evidence is clear the society, through its referrals and advice from many access workers, has provided a significant amount of assistance to her.

3. It is not certain the respondent mother will be able to secure appropriate premises for herself and the children in a timely manner. She gave evidence as to the process but not the steps taken to start this process, such as obtaining the application and enlisting the support of the worker or finding out how long the process would take.

4. The children have ongoing challenging behaviour that requires a high level of parenting skill. The mother has not been able to demonstrate consistently that she has the necessary skills. The mother recognizes this to be the case.

5. The children have been in the care of Ms. Ba. and her partner for over three years. The children's physical, mental and especially their emotional needs are being met in her home. Ms. Ba. has demonstrated a level of sophistication and patience the children need but that the respondent mother has not been able to provide.

6. The details of family and community supports expected by the respondent mother were not provided in evidence. Ms. Bi., the mother's friend, while supportive, did not appreciate the challenges and complexities that the children present. In cross-examination, it became apparent that the mother's assessment of the support she could give was overly optimistic.

7. The court recognizes the potential harm to a child's emotional well-being if removed from a long-term and secure placement. In this case, the children were resistant to mother's access and displayed emotional trauma over an extended period of time both before and after access visits.

8. The time within which a permanency plan for the children must be made, as required by section 70 of the Act, has long since passed.

9. Placing the children in the care of their mother, having regard to her demonstrated and admitted abilities, would be tantamount to an experiment and would put at risk the security of the placement they now have. As was stated in the case of Children's Aid Society of Winnipeg v. Redwood:

to give this mother another chance is to give these children one less chance in life.

Improvement Since Access Suspension

[79] Since the suspension of access, S.R.M.'s emotional health has greatly improved. The biggest difference observed with L.L.M. was that she is not seeking attention in a dangerous manner anymore. She is starting to understand her emotions. I accept the evidence of Ms. Ba. as to the improvement of the children's emotional well-being since this suspension of access. Ms. Ba. has also observed that the children are able to play together for periods of time without aggression or competition. They now appear to understand that they will each get their turn and are able to go into each other's room without there being an issue as between them.

4.5: Subsection 37(3) Considerations

[80] When taking into account the subsection 37(3) considerations relating to best interests, I find:

1. The society's plan will better meet the children's emotional needs.

2. Because Ms. Ba. and her partner are prepared to care for the children over the long term, as they have over the last three years, the society's plan better maintains the children in a secure place in that family.

3. The society's plan better provides for the continuity of care for the children.

4. The society's plan better takes into account the degree of risk that justified a finding that the children remain in need of protection.

5. The merits of the society's plan for the children's care will better provide for their protection, wellbeing and best interests than will the respondent mother's plan.

4.6: Assessments

Overview

[81] A number of assessments were conducted in this case.

Dr. Lee's Parenting Capacity Assessment

[82] Dr. Lee conducted an updated parenting capacity assessment, which was dated 18 April 2013. Following her assessment, Dr. Lee concluded that the respondent mother continued to exhibit difficulty with internalizing tension and coping with stressful events. It was her conclusion that, at that time, the mother did not possess the capacity to parent her children on an independent basis. One recommendation was that she continues to acquire strategies needed to parent the children.

Dr. Orchard's Attachment Assessment

[83] Dr. Orchard conducted an assessment to examine the nature of the attachment of each child to the mother and provided an opinion on the impact of continued contact with her as well as discontinuation of those contacts. Her report is dated 4 April 2014. Dr. Orchard participated in oral questioning on 31 July 2014 and was examined at this hearing. The observations and opinions of Dr. Orchard that are of significance in this case are as follows:

1. The children require highly skilled, psychologically sophisticated parenting combining the capacity to be tuned into their emotions in order to teach self-soothing strategies and also the ability to provide nurturing limit setting.

2. S.R.M. most clearly presents with indicators of reactive detachment disorder in her relationship with her mother.

3. L.L.M. was observed as being anxious when in a new place and not able to see the foster mother and resorting to her head banging when stressed.

4. The respondent mother was observed to struggle in parenting both children and often resorted to impatient, hostile tone and orders rather than conversation. Her actions communicated anxiety and tension and did not serve to help the children relax and feel comfortable in her company.

5. Both children demonstrate in their own ways their insecurity in their relationship with their mother. S.R.M. melts down, precipitates confrontations and becomes very anxious.

6. It was apparent to Dr. Orchard from the interactions between the children and the respondent mother that they do not feel secure in seeking proximity to her, that she is not a reliable source of comfort and the relationship has not been a secure base for the development of the capacity to form trusting attachment to others.

7. The current foster placement (with Ms. Ba.) is meeting the emotional needs of the children and, with the support of clinicians from Children First, the foster parent is making headway in rehabilitating their capacity to form healthy attachment relationships.

8. Without stability of placement in a home capable of highly sophisticated parenting, the children are at significant risk of permanent disruption of their capacity to form healthy relationships. It was Dr. Orchard's opinion that the relationship between the mother and the two children will not promote such healthy attachment capacity.

Dr. McGrory's Parenting Capacity Assessment

[84] Dr. McGrory conducted a parenting capacity assessment, the report of which is dated 27 January 2015. The observations and opinions of Dr. McGrory that are of significance in this case are as follows:

1. The respondent mother is highly committed to the children. She has improved her parenting skills over the years but unfortunately has not been able to achieve a level of skill and sophistication required to meet the high needs which the children present.

2. The respondent mother appears to have higher developmental expectations of the children and adopts a somewhat strict impunitive parenting approach. She becomes easily overwhelmed and stressed and has a low frustration tolerance. Dr. McGrory suggests there is a real concern that, from an emotional perspective, the respondent mother would struggle significantly in the face of the high needs of the children.

3. It is his conclusion that the respondent mother would not be able to meet the high needs with which the children present.

4. As stated earlier in these reasons, the respondent mother acknowledged to Dr. McGrory that the children require a more specialized and sophisticated level of parenting than she can provide.

Accord with Observational Evidence

[85] The clinical opinions of the assessors accord with the evidence of those who have observed the children, their needs and the mother's interactions with them during access periods.

5: CONCLUSION

[86] Based on the consideration of the strengths and weaknesses of the mother's plan, taking into account the subsection 37(3) considerations, and the society's plan, I find that it is in the best interests of the children that they be made wards of the Crown.

[87] In assessing the plans of care advanced in this case, I also considered the primary and additional purposes set out in section 1 of the Act.

[88] There are no other family or community plans that were put forward or are available for possible investigation.

6: ACCESS — LEGAL CONSIDERATIONS

Statutory Test for Crown Ward Access

[89] Where a court makes an order for Crown wardship, access shall not be ordered unless the relationship between the person and the child is beneficial and meaningful to the child and the ordered access will not impair the child's future opportunity for adoption: See subsection 59(2.1) of the Act.

Best Interests Test

[90] If access is ordered, it must be in the best interests of the child: See section 58 of the Act.

Burden of Proof

[91] The evidentiary onus is on the person seeking access.

Definition of Beneficial and Meaningful

[92] A beneficial relationship is one that is advantageous. A meaningful relationship is one that is significant. It is not enough that there are some positive aspects to the access — access must be significantly advantageous to the child. It speaks of an existing relationship, not the possibility of a future relationship. Even if the relationship is beneficial and meaningful, there still must be some qualitative weighing of the benefits of access or no access: see Children's Aid Society of Niagara Region v. M.J..

Stringent Test for Access

[93] The person must show more than the child has a good time during visits: see Children's Aid Society of Peel Region v. Marsha S., 2006 ONCJ 523. More is required than just a display of love between the person and the child. The Divisional Court has held that a person seeking access must prove the relationship with the child "brings a significant positive advantage to the child." See Children's Aid Society of Niagara Region v. J.C..

Impact on Adoption Opportunities

[94] The words "will not impair" contained within clause 59(2.1)(b) places an onus on the person seeking access to satisfy the court that access to a Crown ward will not diminish, reduce, jeopardize or interfere with the child's future opportunities for adoption: See Catholic Children's Aid Society of Hamilton-Wentworth v. L.S. and W.D., 2011 ONSC 5850.

7: ACCESS — ANALYSIS

Finding Regarding Beneficial and Meaningful Relationship

[95] The evidence does not convince me that resuming access will be beneficial or meaningful to either child.

Quality of Access

[96] The quality of access with both children has been variable. Many access supervisors testified. Some themes from all of these witnesses were as follows:

1. The mother and children engaged in positive greetings and goodbyes on almost all occasions.

2. The mother had thought out and planned access activities that were age-appropriate and designed to engage the children.

3. The mother tried hard to make the visits enjoyable for the children.

4. The mother struggled with varying degrees of success to manage the children's behaviour and her reactive ones.

5. The mother was unable to sufficiently improve her parenting skills during the extended period of time the children have been in care, despite trying to implement what was taught in courses that she took and from hands-on experience.

Children's Behaviour Before and After Access

[97] I also take into account the children's behaviour before and after access and the reasons that access was suspended mid-hearing.

Conclusion on Access

[98] I am unable to conclude that, after three years in care having exercised supervised access, the relationship between the mother and each child is beneficial and meaningful as those terms have been defined.

8: ORDER

[99] An order shall issue as follows:

1. The children, S.R.M. (born on […] 2009) and L.L.M. (born on […] 2010), shall be made wards of the Crown and placed in the care of the Windsor-Essex Children's Aid Society.

2. There shall be no access to either child by the respondents.

9: COMPASSIONATE CONCLUSION

[100] I know that this decision will cause Ms. C.M. much pain. I have sympathy for her as she has tried very hard to be able to meet the children's needs. It is to her credit that she was able to discuss the prospect of this outcome with Dr. McGrory and, as he noted, she was able to consider the importance of putting the children's needs before hers.

10: COSTS

Background

[101] The hearing of this matter was scheduled to start on 30 March 2015. It could not start on that day and was adjourned because counsel for the society had not complied with the court's order, made at a trial management conference, to provide its trial affidavits on the date specified. A number of days during the trial sittings were lost because of this failure to comply with the trial management order. When granting the adjournment, I directed that the issue of costs, as a result of having to delay the commencement of the hearing, be addressed at its end.

Appropriateness of Costs Order

[102] I am satisfied that this is an appropriate case for the court to signal its disapproval of a party's not complying with a court order and thereby adversely affecting the administration of justice.

Basis for Costs Order

[103] This is not a case where costs are being considered against the society as a result of steps it took in accordance with its statutory mandate. Rather, a cost order against the society is being considered because of the lost trial time occasioned by its non-compliance with the trial management order to file material that it intended to use at the hearing within the time frame ordered and not seeking a variation of that order.

Discretionary Waiver of Costs

[104] The only reason costs will not be ordered is because counsel for the mother specifically asked that the court not do so.

Released: 24 August 2015

"original signed and released"

Justice Barry M. Tobin

[1] Collectively referred to as the "children".