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 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: 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.
45(9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: November 10, 2015
Court File No.: Toronto CFO 12 11051
Between:
Children's Aid Society of Toronto, Applicant
— AND —
K.S. and J.L., Respondents
Before: Justice P. J. Jones
Heard on: December 1–3, 2014; December 8–12, 2014; March 9, 11, 12, 2015; June 15–19, 2015; July 14, 17, 2015 & September 23, 2015
Reasons for Judgment released: November 10, 2015
Counsel
Ms. Michelle Cheung — counsel for the applicant society
Mr. Ed Rice — counsel for the respondent
Mr. Arthur Brown — counsel for the respondent
Ms. Julia Tremain — counsel for the Office of the Children's Lawyer, legal representative for the child
REASONS FOR JUDGMENT
JONES, P. J. J.:
Introduction
[1] This is my judgment after trial on an amended status review application dated August 21, 2014 concerning the child J.L. (the child) born […], 2007.
[2] The original status review application was issued on September 23, 2013 and it seeks to review the order of Justice Murray dated June 11, 2013, wherein the court found that J.L. was a child in need of protection pursuant to s. 37(2)(b) of the Child and Family Services Act, R.S.O. 1990, c. C.11 as am (the Act) and made J.L. a Society ward for a period of four months.
[3] In the amended status review application, the Children's Aid Society of Toronto (Society) seeks a final order of crown wardship without access for the purposes of adoption.
[4] The mother, K.S. is seeking an order placing the child with her under a supervision order and is agreeable to abide by such reasonable terms of supervision as ordered by the court. In the alternative, if the court makes a crown wardship order, the mother seeks an access order.
[5] The father, J.L., seeks the immediate return of the child to his care with or without a supervision order. If a supervision order is made, the father is agreeable to abiding by reasonable terms of supervision as ordered by the court. In the alternative, if the court makes a crown wardship order, the father seeks an access order.
[6] The Children's Lawyer is advocating the child's wishes. As such, she supports the claims made by the parents as her client has expressed the wish to either return to live with his mother, return to live with his father, or return to live with both parents. If crown wardship is ordered, she urges the court to make an access order in favour of her client (as access holder) to both the mother and the father.
[7] J.L. is the first child born to this father and the second child born to this mother. The mother's older child is being raised by her father and his family. J.L. is currently in the care of the Society.
Background Facts
[8] J.L. spent the first four years of his life in Toronto, Ontario in the care of both parents. According to the father, even when J.L. was a baby, he was the primary caregiver as the mother was using street drugs, prostituting herself to pay for those drugs, and absenting herself from the home for days at a time leaving the child care primarily to him. While the mother agreed that she was using drugs for part of this period, she noted that the father was also abusing drugs at the time, but not to the same extent. When she was not under the influence of drugs, she indicated that she co-parented with the father. During this time, she and the father co-operated with the Society on a voluntary basis to ensure that J.L.'s needs were being met in a satisfactory manner.
[9] The mother agreed that, in 2011 she was not in control of her addiction. The father, in the hope of starting a new life for himself and J.L., relocated to British Columbia in October, 2011. J.L. resided in his father's care until he was placed into the care of the B.C. Children's Services in June 2012, for five days, was returned to his father only to come back into care on July 23, 2012.
[10] J.L. came into care because of his parents' problems with drugs.
[11] In June, 2012, K.S. took the bus to British Columbia to celebrate J.L.'s fifth birthday. While she was there, J.L. misused his prescription pain medication (fentanyl patches) by boiling the patches and self-injecting the liquid. The mother did the same; unfortunately, given her reduced tolerance to this drug, she overdosed and was rushed to the hospital where the lethal effect of the drug overdose was reversed.
[12] At the hospital, the father was confused and upset and forgot that he had left the child with a neighbour. He called the police to search for the child thinking that the child had wandered away from the hospital's waiting room. The child was subsequently discovered at the neighbour's home. When the police came to report that the child had been located, they discovered the father "passed out from stress" in his home. Given concerns about the father's condition, the B.C. child welfare authority took J.L. into care. When the mother agreed to return to Ontario, J.L. was returned to the care of his father. About a month later, the child was brought into care with the expectation that the father would seek treatment for his pain management and addiction issues.
[13] Both parents have had a lengthy history of using and abusing drugs.
The Mother's Drug History
[14] The mother admitted to using drugs from the age of 12. She testified that her longest period of abstinence from drug use was likely no more than one year. The mother has attended a series of drug treatments centres including the Jean Tweed Centre, Women's Own and Stonehenge but has never been able to maintain abstinence. For many years she has been under the care of an addiction doctor as well as a psychiatrist who specializes in supporting patients with addiction issues. The mother has abused heroin, cocaine, marihuana, as well as prescribed medication, when available.
[15] From 2012 to date, the mother has suffered numerous relapses on her road to recovery. There have been at least three or four relapses since this case began which have affected her interactions with J.L. and her ability to put forward a realistic plan for him.
[16] I heard that there were times when the mother would call and cancel her visit because she was under the influence of drugs; I heard evidence that there were times she attended access under the influence of drugs, and the visit would be cancelled. Her demeanor on other visits, as described by the access supervisors, suggested to them that her level of functioning was being adversely affected by drugs. She was described as "sleepy, tired, slow-moving, incoherent, slurring and unfocused" during certain office visits.
[17] The mother testified that her most recent drug relapse occurred between November 2014, and March 2015, when she was using heroin; during that time, the mother suffered three overdoses which required hospitalization. She is apparently back on a methadone maintenance program.
[18] It was clear during cross examination of the mother's treatment providers that the mother had not been forthright with her doctors concerning this recent usage, and had not told them that she had experienced three overdoses in the very recent past. Her psychiatrist, Dr. Buckley indicated, that now that she is aware of the extent of the mother's recent drug use, she will recommend to the mother that she attend a further period of in house drug treatment as the mother was clearly not in control of her addiction issues. In the circumstances, Dr. Buckley testified that it would now be her goal to stabilize the mother over the next year. She noted that drug addiction is a life-long condition subject to lapses and relapses. In the mother's case, the addiction issues are further complicated by her anxiety and depressive illness.
The Father's Drug History
[19] The father had a very unfortunate childhood and was raised in foster care from the age of 7 years. He testified that he never felt he belonged or was accepted as a member of any family while in foster care, and that he moved frequently from one foster home to another. At an early age, he began stealing and became involved in the juvenile justice system. At age 14, he began experimenting with drugs. When he aged out of the juvenile system, he moved into the adult corrections system. Apparently, he was in and out of jail until he reached the age of 23 (he referred to himself as institutionalized) for such offences as assault, theft, break and enter, robbery, drug related offences and fail to comply.
[20] Along the way, he became seriously involved with drugs. Over the years, the father has used/abused cocaine, heroin, marihuana, fentanyl patches, methadone and other opioid medications.
[21] At about age 23, the father moved to Ontario where he enjoyed a relative period of stability until he suffered a work related injury.
[22] Around this time the father began to abuse street drugs and prescription medication, became homeless and was living in the Toronto shelter system. While residing at Seaton House men's hostel, he met the mother who was temporarily residing at Street Haven, a women's shelter. They began a relationship; J.L. was born in 2007. They resided together until the father moved to British Columbia in 2011.
[23] When J.L. came into care in B.C. in 2012, the father decided to return to Ontario to deal with his pain management and his drug abuse issues. Back in Toronto, he resided in the shelter system and struggled with his addiction issues.
[24] Between June 2013 and July 2014, the father began to stabilize his life and his pain management treatment was monitored by Dr. Gupta and Dr. Chan. The evidence from the Society workers who came into contact with the father during that period suggests that he was, on occasion, under the influence of a drug or substance and often appeared unbalanced, with his eyes heavy; sometimes he appeared to be sweating profusely and in obvious discomfort. Whether these physical symptoms arose from a methadone withdrawal as asserted by the father, or arose because of a misuse of prescription medication or street drugs as postulated by the Society, is unclear.
[25] Given the father's history of drug addiction, effective pain management has posed an ongoing problem for his treatment providers. Since 2003, the father has been under the care of Dr. Gupta, a family doctor with a special interest in addiction issues and Dr. Chan, an anaesthesiologist with experience in pain management. Working together, these doctors have attempted to manage the father's chronic pain arising from his serious back injury. The father's treatment providers have, over the years, attempted to adjust his medications to reflect the father's success or failure in managing his drug addiction issues. For example, when the father appears to be free of street drugs, he has been prescribed opioids (opioids represent the most effective pain treatment). When the father relapses, methadone is the drug of choice (not as effective, but safer for a drug abuser).
[26] The father's treatment providers have attempted to monitor the father's consumption of drugs by urine drug screens and by self-report. It is clear to me that the father has not always been straightforward with his doctors as it relates to his drug use. For example, at trial, Dr. Gupta and Dr. Chan were surprised to hear that the father had admitted to the court that he had boiled his fentanyl patches and self-injected the liquid in B.C. in 2012, and that he had used heroin on at least two occasions in late 2014 and 2015. Both agreed that if they had known about his recent drug use, they would have adjusted their treatment plans going forward and would have taken him off the opioid medication.
[27] What is clear is that this father has a life-long drug addiction condition that poses a significant risk of relapse.
The Relationship Between the Mother and the Father
[28] Notwithstanding past assault charges and restraining orders, the parties continue to interact with one another. As recently as November 2014 to March 2015, the parties were seeing one another, staying over at each other's apartments, and using drugs together.
[29] This contact was occurring notwithstanding the mother's testimony that she is afraid of the father, that he has assaulted her in the past and that he has a volatile temper. At the same time, she described him as a "good parent" who should be allowed to see his son, and during her supervised access has spoken positively to J.L. about his father during a time the father's access was suspended.
[30] The father called the mother a "prostitute and a drug addict" in very derogatory terms, yet contacted her during the trial expressing a wish to co-parent with her. When the mother overdosed on heroin, which the father had secured for them through his dealer, the father saved her life by seeking out medical assistance for her.
[31] It is clear from the evidence that the mother and father have an unhealthy, conflictual relationship that neither appears able to terminate.
Father's Personality/Behavioural Issues
[32] Dr. Gupta has described the father as suffering from a chronic anxiety disorder with anti-social traits. According to the doctor, the father has a severe panic disorder, and when the father feels afraid or confined, he has difficulty controlling his emotions. Dr. Gupta has diagnosed the father as having poor impulse control, poor coping skills, poor stress management, poor anger control, labile moods, lack of insight, with poor judgment to the point it poses a safety issue for the father and others.
[33] This diagnosis helps to put into context much of the evidence I heard at this lengthy trial. The father was described by many witnesses as an individual who has difficulty controlling his volatile temper. He has been described as aggressive, intimidating, and challenging. For example, Ms. Devine, a family service worker assigned to this case, described the father as challenging and intimidating with his tone of voice, glaring facial expressions and his arm movement. Mr. Antwi-Boasiako, another family service worker, described interactions with the father where the father was yelling and abusive to him. Other members of the service team described the father as a person who was unable to regulate his emotions in that he was unable to keep his anger in check even at access visits. I heard he was difficult to work with and no progress was made. Even when the father agreed to attend a parenting program at CAMH, he testified that he was suspicious of the woman who ran the program and felt that he had been sent there so that she could give evidence against him. At one point in his evidence he conceded that he had a lot of trouble trusting Society workers because of his earlier experiences growing up in care in B.C. where he felt he had been very poorly treated.
[34] Dr. Wittenberg, who conducted a parenting capacity assessment, found the father to be, "hostile, disrespectful and threatening throughout the process."
[35] I had an opportunity to observe the father at trial over nineteen days. He was often fidgety, would pace about the room apparently suffering from back pain, would speak out when he did not agree with certain testimony and would glower at the witnesses with whom he did not agree.
[36] On June 15, 2015, the father attended court and refused to be searched and swore at the security staff at the front door. As such, he was refused entry to the courthouse. I spoke to the lawyers and the police, and, rather than excluding the father, I decided to allow the father to participate in the proceedings from the remote witness room in our courthouse.
[37] Given the importance of the issues before the court, I felt that it was preferable to allow the father to be present at trial by way of the remote witness room. The other option would have been to exclude the father, as the mother was expressing a fear of the father as were the other participants at the trial given the father's belligerent and agitated manner that day.
[38] This remote witness room is equipped with audio and visual equipment that allows the witness to see the courtroom and hear what is going on there. As well, it allows those in the courtroom to view the witness and hear his testimony or his comments. From that room, the witness would be able to request the presence of his counsel, and if he were to so request, the trial would be adjourned to allow consultation to occur.
[39] I agreed to allow the father to be present at his trial in the remote witness room on the basis that he agreed to be searched and that he agreed to stay there with security present at all times. Notwithstanding his agreement, on that first day he sat with his back to the camera, lay on the floor, put his feet on the desk, spoke out of turn, paced about and left the witness room without his security guard being present.
[40] When the father asked to be allowed to return to the courtroom the next day, I refused his request on the basis of the behaviour he had exhibited the day before and previously during the trial; he spent the remainder of the trial in the remote witness room. At one point, he threw the TV remote at the video screen and damaged one half of the screen (the audio remained functional and the screen was still useable although damaged).
Mother's Personality/Behavioural Issues
[41] According to the mother's treating physician, the mother suffers from anxiety and severe depression as well as post-traumatic stress disorder caused by childhood trauma. She also has a long-standing drug addiction condition.
[42] The mother was described as polite and likeable and, when not under the influence of drugs, as open to instruction. Other than a concern that she might pass information to the father during times that she and the father were communicating, she poses no security threat in this case.
J.L. and His Relationship with His Parents
[43] J.L. is eight years old and has been out of his parents' care since July 23, 2012. He has no medical or physical special needs but is a child who will require supports around his behavioural and academic functioning.
[44] His foster mother describes him as a "lovely, active child" who is clumsy and who can exhibit some anti-social, attention-seeking behaviour, especially towards his own aged peers.
[45] Dr. Fitzgerald, in his psychological assessment in October 2014, noted that J.L. displays high levels of hyperactivity, impulsivity and distractibility consistent with a diagnosis of ADHD and a pattern of oppositionality. J.L. is currently on medication to help regulate his emotions.
[46] Father and son have not seen each other since September 2014 when Justice Murray discontinued access due to the father's refusal to abide by the terms of access she laid down in her access orders. Prior to the suspension of access, the father attended access on a regular basis. J.L. and his father played together and they expressed love and affection for one another. I accept that the relationship between the father and the child is an important one to both and each has clearly expressed a wish to have contact with the other. Unfortunately, the father's inability to trust authority figures and to control his emotion has interfered with access.
[47] J.L. continues to visit with his mother weekly for a two hour supervised access visit. Mother and son are loving and affectionate with one another. Access supervisors testified that the mother has found it difficult to provide consistency, structure and routine at the visits but that they are continuing to work with the mother around these issues and she appears to be making some progress. I accept that the relationship between mother and son is an important one to both and each has expressed a wish to have contact with the other.
Issues
[48] 1. What dispositional order is in the best interests of J.L.?
[49] 2. If a crown wardship order is granted, should the court make an access order in favour of the mother, the father, both mother and father or the child?
The Legal Framework
[50] The parties agree there are only two dispositional choices available to the court in this case given that the child has been in care for over the two year maximum set out in section 70 of the Act for a child over 6 years of age; no one argued that this would be an appropriate case where a six month extension for a further period of society wardship would be in this child's best interests under section 70(4).
[51] J.L. must either be returned to the care of either parent or be made a crown ward, with or without access.
[52] The test that is applicable on a status review is one of best interests to be determined by considering the relevant factors set out in section 37(3) of the Act.
[53] Should the court determine that a supervision order is not in J.L.'s best interests, the only option would be to make J.L. a crown ward.
[54] If a crown wardship order is made, all previous access orders terminate. At that point the court must determine whether an access order should attach to the crown wardship order.
[55] Section 59(2.1) sets out the criteria to be applied when deciding whether to make an access order. Section 59(2.1) reads as follows:
59(2.1) A court shall not make or vary an access order 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.
[56] Under the legislative scheme, there is a rebuttable presumption against the making of an access order unless the court finds that both prongs of the test have been satisfied. See Children's Aid Society of Toronto v. D.P..
Crown Wardship vs Supervision Order
[57] Although I am satisfied that J.L. loves his parents and that they love him, and that the family wishes to be reunited, the tragedy of this case is that sometimes love is not enough.
[58] On the facts that I accept, I find that neither parent has the ability to care for this child on a full time basis for the following reasons:
Both mother and father have long-standing drug addiction conditions that are currently not under control. When under the influence of drugs, neither parent is fit to care for the child and when under the influence of drugs they pose a significant risk to J.L.'s wellbeing. From November 2014 to March 2015, the mother was abusing heroin, sometimes on a daily basis, and suffered three near fatal overdoses. The father, during the same period, admitted to using heroin on at least two occasions.
The mother's drug addiction is currently seriously out of control. According to her treating physician, the mother may require in-patient treatment in order to stabilize her condition.
The mother and father are involved in a dysfunctional and conflictual relationship which has resulted in charges and restraining orders that have not been sufficient to keep these parties separate and apart. When they are together they abuse drugs, and when they are frustrated with one another, they resort to physical violence.
When crafting a plan of care for the child, both parties identified the other as someone with whom they might co-parent. Surprisingly, the father, who called the mother a drug addict and a prostitute, reached out to her during the trial and proposed a joint parenting arrangement. The mother, knowing what she does about the father's propensity to lose control of his emotions and to lash out, was seriously considering this proposal until she was involved in another physical altercation with the father in March, 2015. That the parents even contemplated such a solution demonstrates, in my opinion, both how desperate they were and how poor was their judgment.
Unfortunately, the father's personality does not allow him to work successfully with authority figures. According to his physician, he suffers from a chronic anxiety disorder with anti-social traits. He suffers from poor impulse control, poor coping skills, poor stress management, poor anger control, labile moods, lack of insight with poor judgment to the point it poses a safety issue for the father and others.
Given J.L.'s challenges as identified by Dr. Fitzgerald, he will need a parent able to assist him to successfully navigate through childhood. He will need a parent who will be able to meet with teachers, doctors and social workers and be prepared to take their advice and work co-operatively with them in J.L.'s best interests. Given the father's personality and his distrust of authority figures, he would not be able to be the parent J.L. needs. Similarly, given the mother's out of control drug addiction issues, she would not be able to be that parent.
The mother has an out of control drug addiction. It would not be in J.L.'s best interests to see his mother using drugs or to be dependent on her while she was using drugs. Her plan to have her sister available at all hours to assist her in caring for J.L. should she suffer a relapse is patently inadequate.
[59] In all the circumstances, I find that it is in J.L.'s best interests to become a crown ward. J.L. needs stability and predictability in a home where he may grow to his full potential. Unfortunately, it is very clear to me that neither parent would be able to provide such a home for J.L.
Crown Wardship With or Without Access
[60] The parents and the child are seeking an access order to be attached to the Crown wardship order. The Society seeks a no access order with a view to placing this child for adoption.
[61] Before making an access order, the court must answer the following two questions in the affirmative, namely:
Is the relationship beneficial and meaningful to the child?
Will ordered access not impair the child's future opportunities for adoption?
[62] The onus of establishing that the test set out in section 59(2.1) has been satisfied lies with the person asserting the claim. The statutory path is "clear and mandatory." The parent seeking access must first prove that the relationship between the parent and child "is beneficial and meaningful to the child." See Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638, para. 58.
Prong 1: Is the Relationship Beneficial and Meaningful to the Child?
[63] What constitutes access that is meaningful and beneficial to a child has been the subject of a great deal of judicial interpretation. Justice Joseph Quinn's interpretation of the first branch of the test as set out in Children's Aid Society of Niagara v. M.J. is frequently cited:
"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 creates, 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."
[64] In order to establish that the relationship is meaningful and beneficial, the court requires more than displays of love and affection between the child and the persons requesting access. Access must be significantly advantageous to the child and access cannot be merely a consolation prize for the disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.
[65] The parents must establish more than that the child has a good time at access. See: Children's Aid Society of Peel (Region) v. S.(M.), [2006] No. 5344 (OCJ).
[66] Notwithstanding my finding that J.L.'s relationship with his mother and father are important to him, those relationships do not meet the threshold of meaningful and beneficial. In the circumstances of this case, I do not find that either parents' relationship is meaningful and beneficial to J.L. within the meaning of the statute, notwithstanding that each parent loves J.L. and that J.L. expresses love for each of his parents. I say this for the following reasons:
(a) Since J.L. has been in care, first in B.C. and now in Ontario (a period in excess of three years), his access to his parents has been supervised. Currently his mother sees him for 2 hours per week only, and his father has not seen him for over one year due to a suspension of access by Justice Murray as a result of the father's failure to abide by the terms of court ordered access. J.L.'s life continues outside access periods at the foster home. He is described as quite bonded to his foster family and his day to day needs are being met by adults other than his parents.
(b) At visits, while under the influence of drugs, his mother has been describe as acting, "sleepy, tired, slow-moving, incoherent, slurring and unfocused". She needs to be closely monitored to guard against her attending for visits while impaired. When not impaired by drugs, the mother comes prepared for visits, and works well with the access supervisors to provide an enjoyable visit for J.L.
(c) Given the father's inability to follow court ordered instructions concerning behaviour at access, his access has been suspended for over a year. Prior to that time, there were many occasions when the father and son were able to play together and enjoy each other's company. Unfortunately, the father's personality is such that his mood might change without notice, and he can become "aggressive, controlling, intimidating, and challenging", to the workers, even when J.L. was present.
(d) According to Dr. Wittenberg, who performed a parenting capacity assessment, it was his opinion that J.L. was afraid of his father and that access was actually traumatizing J.L. I heard other testimony that J.L., prior to his visits with his father, often acted very anxious and worried about his father, and would become visibly upset if his father was late for visits. J.L. does not act this way when visiting with his mother.
(e) Dr. Wittenberg opinion in relation to J.L.'s access with his mother was that access was "not harmful" and that if such access were to remain supervised in order to monitor the mother's mood and sobriety, supervised access might be recommended.
[67] On the evidence I accept, I find that the relationship between J.L. and his mother and J.L. and his father is not meaningful and beneficial to him within the meaning of the legislation. Continuing access to either parent post crown wardship would not be significantly advantageous to this child; continuing supervised access to the mother, at best, would not be harmful, as his current access has many positive aspects for J.L. and they both seem to enjoy their time together; with respect to the father, given his personality make up and his inability to control his emotions and behaviour at access, any resumption of access would likely be harmful to J.L. and his healthy development.
Prong 2: Will an Access Order Not Impair the Child's Future Opportunity for Adoption?
[68] Since I find that the relationship of either parent to J.L. is neither beneficial or meaningful, access cannot be ordered. However, I wish to make the following comments relating to Prong 2.
[69] I propose now to consider whether an access order will not impair the child's future opportunities for adoption.
[70] Since the amendments to the Act in 2011, in the case of a child who is adoptable, an access order attached to a crown wardship order does not automatically impair that child's future opportunities for adoption as was the case prior to the amendments to the Act. Previously, a crown ward with access was not eligible for adoption until the access order was terminated.
[71] It is apparent that the new openness provisions are having an effect on a number of cases decided around section 59(2.1). As Justice Waldman observed in Children's Aid Society of Toronto v. S.A., R.M. and S.R., 2012 ONCJ 42, at para. 156, the "… amendments to the act create new consideration when addressing the issue of access and new dynamics in the adoption process". Justice Murray in Catholic Children's Aid Society of Toronto v. M.M., [2012] O.J. No. 3240, para. 212, quoted Justice Waldman and wrote, "I agree with that observation. In my view, the amendments in Bill 179 have introduced new elements into the analysis required under the test for access to Crown Wards contained in that section 59(2.1). The fact that a court does not necessarily have to choose between the security of an adoption placement and the prospect of a child having some contact with his biological family, affects the analysis in both prongs of the s. 59(2.1) test."
[72] Justice Horkins S.C.J. in Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638, found that it was an error in law to import considerations of openness into the legal test for access, specifically into the first prong of the test relating to whether there is a relationship that is meaningful and beneficial to the child. In her decision she reaffirmed that the 2011 amendments have not altered the two step test or changed who bears the onus of proof.
[73] However, it is impossible for me to consider the cases decided under s. 59(2.1) after the 2011 amendments without recognizing that the potential for openness after an access order has changed the context in which these orders are being made. Justice Horkins recognizes this also when she quotes the following passage with approval from Kawartha-Haliburton Children's Aid Society v. J.R., 2015 ONSC 2054, at para. 278, "… While the openness amendments do make all these adjustments to the context in which the test is to be considered, I am of the view that the onus is not removed from the parent to demonstrate that each component of the test provides to the child a significant demonstrable benefit on balance, as defined by Justice Quinn."
[74] Evidence must still be called on the issue as to whether an access order will not impair the child's future opportunities for adoption. The test remains the same, the onus remains the same, only the context in which the order is made has changed.
[75] The courts have identified a number of reasons why an access claim under this second prong of the test might be rejected. In Catholic Children's Aid Society of Toronto v. L.D.E. & D.S., 2012 ONCJ 530, para. 71, I considered this issue and compiled the following non-exhaustive list of reasons, namely:
Prospective adoptive parents might be deterred from applying to adopt a child with an access order if they are made aware that the person who has the access order might make an application for an openness order because:
(a) They would be facing further litigation
(b) They would not know the result of such litigation
(c) They would not know what form an openness order might take
(d) If an openness application is brought the adoption will be delayed
(e) If an openness order is granted they will have to deal with the potentially difficult people and they would be require to deal with those potentially difficult people without the assistance of the Society unless the Society agreed to become involved.
Parents of an adoptive child who have a record of being difficult to deal with and not supportive of foster placements might find their access request refused because of their past disruptive behaviour. The risk that these parents might undermine a potential placement for adoption if continued contact were permitted would likely be viewed as a reason not to grant an access order because such an order would impair that child's future opportunities for adoption.
[76] I think the facts of this case fall squarely within the "difficult people" category. In this case, both mother and father have serious drug addiction issues. The father has poor impulse control and is seen by many people he comes in contact with as threatening, intimidating, aggressive and challenging. He has difficulty controlling his anger and is prone to violence. Dr. Wittenberg commented that the father should have no access as access is actually harmful to the child and his healthy development and that the mother should only have supervised access so that she can be monitored on each access occasion to assess her sobriety and mental functioning before access might take place. Presently the father has no court ordered access given his inability to abide by the terms of court ordered supervised access.
[77] Adoption, even with openness, assumes that the adoptive family will be able to function without the intervention of the protection agency. Once a crown ward is adopted, the Society steps out and the new family is left to function on its own. How would any adoptive family be expected to manage contact with these biological parents without professional assistance? The need for such professional assistance would not be time limited, but in this case, would continue for as long as the child was in their care. Adoptive parents are generally not trained to deal with biological parents who pose such extreme management problems. From my assessment of the father, he would never be able to accept the fact that his child had been adopted, and given the opportunity, would, either intentionally or unintentionally, undermine his placement. With that said, I find that if full disclosure was provided to potential adoptive parents and an access order was in place that would permit the parents to apply for an openness order, J.L.'s future opportunities for adoption would be impaired. Many families would not be prepared to open their homes to J.L. if it meant dealing with his parents. Many families might well decide to wait till the next child becomes available.
Order
[78] Accordingly, a crown wardship, no access order will issue.
[79] I would like to express my sympathies to the parents as I accept that they love their son unconditionally and that my decision will be very painful for them to process. I can only assure them that a decision of this nature is never an easy one to make. It is my duty to decide the case in accordance with my view of J.L.'s best interests, and I have done so.
Released: November 10, 2015
Signed: Justice Penny J. Jones
Addendum
[1] I delivered reasons for judgment on November 4, 2015. One day subsequent to release of my judgment, the decision of Children's Aid Society of Toronto v. A.G., 2015 ONSC 6638, released October 27, 2015 came to my attention. In light of that judgment, I advised the parties I would be delivering fresh reasons and the portion of the judgment which follows contains amendments to the original judgment. These reasons have been amended but the decision remains the same.