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 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

Court File No.: FO-475/12

Date: 2015-11-26

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant,

— AND —

T.L.B., J.P. & T.B. Respondents.

Before: Justice Barry M. Tobin

Heard on: September 30, October 1, 2, 5, 6, and 7, 2015

Ruling released on: November 26, 2015

Counsel:

• Helen Trentos — for the applicant society
• Maria Fernandes — for the respondent T.L.B.
• Michael Frank — for the respondent T.B.
• J.P. — in default and did not attend

TOBIN J.:

1: The Parties

[1] On this status review application, the Windsor-Essex Children's Aid Society ("society") seeks an order that the child, E.P., born in 2012, ("E.P." or "child") be made a ward of the Crown without access. The child was found to remain in need of protection by Justice Phillips on April 9, 2014, pursuant to subclauses 37(2)(a)(i) and 37(2)(b)(i) of the Child and Family Services Act ("Act").

[2] The respondent, T.L.B. ("T.L.B." or "mother") is E.P.'s mother. Her request is for an order placing the child in her care subject to society supervision on terms and conditions.

[3] The respondent, J.P. ("J.P." or "father") is E.P.'s biological father. Though personally served with originating court documents on July 23, 2013, he did not file an answer, nor did he attend or otherwise participate at this hearing.

[4] The respondent, T.B. ("T.B." or "grandmother") is E.P's maternal grandmother. She was added as a party to this case for the purpose of disposition only by order made February 19, 2015. T.B. supports the position of the mother. In the alternative, if the child is not to be placed with the mother then T.B. asks that the child be placed in her care subject to society supervision on terms and conditions.

2: Issue

[5] The issue to be decided in this case is what disposition order should be made in the best interests of the child.

[6] For the reasons that follow, I find that it is in the best interests of the child to be made a ward of the Crown without access to the respondents.

3: Facts

3.1 Apprehension to Finding in Need of Protection

[7] As noted above, E.P. was born in 2012. She is now three years of age.

[8] At her birth, tests showed that she had drugs in her system. She was diagnosed with Neo-Natal Abstinence Syndrome and placed in the neo-natal intensive care unit.

[9] She was apprehended on October 2, 2012 and has remained in society care continuously since that date.

[10] On February 5, 2013, the child was found to be in need of protection, pursuant to subclauses 37(2)(a)(i) and 37(2)(b)(i) of the Act. The basis for the finding was the child tested positive for drugs at birth, the mother's continued cocaine use after the child's birth, and the father's abuse of alcohol. E.P. was made a ward of the society for a period of six months with access in favour of the parents. When the Order was granted, the Court adopted the society's plan of care. The plan of care set out what steps had to be taken and goals achieved by the mother and father before society intervention would end. These expectations were as follows:

a) continue to attend for methadone treatment at the Goyeau Street clinic under the care of Dr. Blanchard until further treatment assessment and planning could take place;

b) attend and complete a substance abuse program and follow all reasonable recommendations for treatment and aftercare services;

c) submit to a hair follicle test if requested;

d) abstain from the use of any alcohol and all non-medicinally prescribed narcotics;

e) complete individual or group counselling to address relationship issues and domestic conflict, and that there be no further reports received regarding domestic conflict;

f) attend all access visits as scheduled;

g) attend for all meetings scheduled with the family services worker and all plan of care meetings scheduled for the child;

h) maintain a safe and appropriate home environment;

i) provide the society with up-to-date addresses and telephone numbers and notify the society at least 14 days prior to any changes; and

j) sign releases of information forms reasonably necessary to monitor the terms of the plan of care.

3.2 Continued Finding Child in Need of Protection

[11] The society started this status review application June 25, 2013.

[12] On August 9, 2014, the status review application was before Justice Phillips for a consent hearing on the issue of a continued finding. A statement of agreed facts with respect to the finding was filed. Justice Phillips found that E.P. then remained in need of protection under subclauses 37(2)(a)(i) and (b)(i). The basis for this continued finding by Justice Phillips was the mother's failure to comply with the terms of the plan of care. The mother acknowledged this failure in her answer and the statement of agreed facts.

[13] Particulars of this non-compliance to the date of continued finding as found by Justice Phillips were as follows:

1. The mother continued to use drugs. She tested positive for drug use despite having completed residential treatment in August of 2013.

2. There was evidence of the mother's drug use either through drug tests or the mother's admission in September, October and November 2013, and March 2014.

3. Despite having completed a residential program, the mother did not attend aftercare.

4. The mother did not attend with regularity at plan of care meetings.

5. The mother did not attend access on a regular basis.

6. There were two incidents of domestic violence in her relationship with J.P.

[14] In addition, the statement of agreed facts also disclosed the following:

1. The mother did not provide evidence of her participating in counselling regarding relationship issues or domestic conflict.

2. The mother did not maintain regular appointments with a society worker.

3. To the mother's credit, she did terminate her relationship with J.P. as of May 11, 2013.

4. Based on the totality of the particulars of non-compliance, the mother agreed that she had not made any significant gains since the original finding of protection was made.

3.3 April 2014 to February 2015 (Continued Finding to Birth of D.G.)

[15] Between April 2014 and February 2015, again the mother did not substantially comply with the plan of care.

[16] The mother's attendance at access remained sporadic. She was removed from the supervised access program four times because of her failure to attend on a consistent basis. Her failure to do so also resulted in her access being reduced from and after June 1, 2014 to two times per week from three times per week.

[17] The mother continued using drugs, including crystal meth. Throughout this period, the mother continued to attend for methadone treatments.

[18] The mother did not provide confirmation that she engaged in counselling to deal with relationship issues or domestic conflict.

[19] The mother began a relationship with A.G. in approximately August 2014. In the fall of 2014, the worker thought that the mother was pregnant but she denied this was the case. However, on December 12, 2014, the mother admitted to the worker that she was in fact pregnant.

[20] On December 30, 2014, the mother was rushed to the hospital and put on life support.

[21] The mother had been using drugs in the period before she was admitted to hospital including crystal meth.

[22] Despite having co-habited with the mother since August 2014, A.G. was unaware of her drug use until shortly after she was hospitalized. It was during a visit to the hospital that he became aware that there was crystal meth in the mother's system. He took no action at that time because the mother was on life support. Later though, while she was still in hospital, A.G. told the mother that she either gets helps for her drug use or she is going to have to move out of his home. The mother told him that she would get help. A call was made by them to the House of Sophrosyne to have her return for residential treatment.

[23] The mother was discharged from hospital on January 16, 2015.

[24] She also continued to test positive for non-prescribed drugs on January 23, 30 and February 6, 2015.

[25] Before the birth of the mother's second child, the society worker attended at the mother's and A.G.'s home to discuss with them their plan to care for the baby. The home did not impress the worker. She observed it to be messy with piles of clothing everywhere, a living room table covered in debris and an ashtray with cigarette butts. The worker noted that there did not appear to be sufficient space in the apartment for a crib for the infant. The worker was told by the mother that they were considering moving to larger premises. A.G. also advised he would not be able to assume significant childcare responsibilities as he worked fulltime. A.G.'s 16 year old daughter would also continue living in the home with them.

[26] The mother gave birth to D.G. in 2015. On February 18, 2015 he was apprehended by the society and remained in the neo-natal intensive care unit until March 4, 2015. He remains in the temporary care and custody of the society, pursuant to the Order Justice Phillips made of July 16, 2015.

3.4 February 2015 to October 2015 (Birth of D.G. to the Hearing)

[27] The mother was unable to re-attend the House of Sophrosyne for residential treatment until late February 2015, shortly after D.G. was born. She completed the residential treatment program between February 27, 2015 and April 4, 2015. While there, A.G. visited her every Sunday.

[28] After the mother completed the residential drug treatment program, she returned home. A.G. had purchased a four bedroom home in April 2015. As planned, he and the mother began living there with A.G's 16 year old daughter, M.G. Weekend access with D.G. takes place at this home now from Saturday at noon until Sunday at 6:00 p.m. A.G.'s mother, J.G. and her partner moved into this home and live in a bedroom on the main floor. They moved from Belleville to Windsor on April 29, 2015 as part of a plan to help care for D.G. However, as of the hearing they were looking for a place of their own as there may be too many people in the home if D.G. is placed in the parents' care.

[29] The society worker has observed the home. It appeared organized, although nothing seemed to be connected to E.P. There are rooms for D.G., M.G., J.G. and her partner, and the mother and A.G. The mother's plan would be for E.P. to share a room with D.G.

[30] The worker also testified, and I accept, that the mother and A.G. now cooperate with the society. The worker was able to attend for scheduled and unscheduled visits. All releases requested of the mother have been signed. She also kept the society informed of the change of her address and phone numbers.

[31] But for a probable false positive test for fentanyl in April 2015, the mother has not tested positive for drugs since February 13, 2015.

[32] The mother continues with her methadone treatment.

[33] Patients of the methadone clinic, like the mother, attend a pharmacy daily to take their dose of methadone. This is to ensure that they do not spit it out or secrete it so that it can be used elsewhere. When first taken into the program a patient is tested twice a week for the first two weeks and thereafter testing takes place weekly. If a patient is clean for two months, they get to take away or 'carry' their dose of methadone once per week. The patient has earned the trust of the methadone clinic take the dose of supervision. Each month that the patients are clean they are granted another day's carry, up to a maximum of six carries per week. After seven months, a patient can have six days of carries and one day of being observed taking the methadone. The mother began carrying on June 26, 2015 and by October 2015, was up to four carrys per week.

[34] As part of the residential treatment program engaged in by the mother, counselling with respect to domestic violence and relapse prevention was undertaken by her. The House of Sophrosyne worker who worked with the mother observed her to participate eagerly. Arrangements were made for the mother to participate in aftercare programs.

[35] The mother did complete a 12 week aftercare program. The program facilitator observed the mother to have made steady progress.

[36] Now the mother participates in counselling designed to help people balance parenting responsibilities and maintaining their recovery. Up to the date of the hearing, the mother had participated in three in-person sessions with this counsellor and many phone and text conversations.

[37] This is all part of the mother's detailed relapse prevention plan which also includes her seeing her addiction treatment doctors weekly for a urine drug screen and clinical monitoring.

[38] Dr. Blanchard, the mother's addiction treatment doctor, has not observed symptoms that the mother is now using drugs. That is, he has not seen her look sedated, nor to his knowledge is she engaged in a lifestyle fraught with risk. The risk referred to is involvement in criminal acts and associating with unsavoury people to secure drugs.

[39] Domestic conflict is not reported to be an issue in the mother's relationship with A.G. She describes their relationship as a healthy and stable one. This is confirmed by their respective mothers.

[40] Since February 2015 the mother has attended at every plan of care meeting and all scheduled access visits. These access visits were described as positive. The mother interacts appropriately with the child during each access visit. E.P. reacts positively with the mother during each access visit. There are no concerns with the mother's access with the child.

[41] The mother has secured employment and has been able to maintain it. She has also gathered around her a supportive network of family and health care providers.

4: The Child

[42] E.P. is now three years of age and has been in care her entire life.

[43] At birth she was diagnosed with Neo-Natal Abstinence Syndrome – she was addicted to the drugs her mother took while pregnant. E.P. was placed in the N.I.C.U. for 19 days following her birth. Upon her discharge she was placed in a foster home where she has remained ever since.

[44] At eight weeks, E.P. was weaned off morphine. The foster parents reported that the child experienced difficulty self-soothing and had sensitivity to light and crowds. She continues to be sensitive to large crowds and will often rock herself while in a seated position.

[45] Dr. Adie, a paediatrician, referred E.P. to ChildrenFirst for services having to do with her Neo-Natal Abstinence Syndrome. ChildrenFirst remains involved to this day. The foster mother and a ChildrenFirst worker meet once per month.

[46] Problems with muscle tone have caused E.P. difficulty with gross and fine motor development. These difficulties have affected adversely her ability to walk. The child works with a physiotherapist.

[47] Problems with E.P's articulation and drooling were also observed, so speech support is provided.

[48] Through ChildrenFirst, E.P. sees a resource consultant, physiotherapist, and speech and language pathologist. She will be seen by an E.N.T. specialist as she has some problems with her ears.

[49] Before she starts school, ChildrenFirst will consider undertaking a full psychological assessment to understand E.P.'s learning needs.

[50] Three holes in E.P's heart have been discovered: two have closed by themselves and the third will likely do the same as she grows.

[51] E.P. was prescribed glasses to correct a concern that one eye turns inward (Strabismus). Since obtaining glasses for E.P., the foster mother reports that she became more active.

[52] E.P.'s children services worker has observed her with the foster parents on numerous occasions. She appears to be very bonded with them. By this, the worker means that the child appears comfortable, affectionate and without fear of them. She is happy in their home. She easily approaches both for support. The foster parents, who are approximately 60 years of age, have two other children residing in the home, a 12 year old girl and a 15 year old boy. Their granddaughter who is 18 has been residing in their home for a year but E.P. has known her since she was first placed in this foster home. E.P. is observed by the worker to be comfortable with the other children in the home. E.P. is included as a member of the family in the foster parent's family celebrations.

[53] The foster parents are committed to meeting all of E.P.'s needs. They are aware of the developmental issues that E.P. has may be long term and are committed to providing the supports which the child will need to develop her highest potential.

5: T.B. – Maternal Grandmother

[54] T.B. is the respondent T.L.B.'s mother and E.P.'s grandmother.

[55] The grandmother was aware that E.P. was taken from the mother's care in 2012 but initially hoped that the child would be placed in mother's care. The grandmother was also aware that there was a plan to place the child with a paternal aunt. That is why she did not come forward immediately to present a plan to care for the child.

[56] In August 2013, the grandmother indicated to the society that she would like to present a plan for the child. The grandmother resides with her mother (the child's great grandmother). The grandmother, as requested, obtained police clearances for both herself and her mother. They disclose that neither had a criminal record. The mother was also living with the grandmother at that time – the late summer and fall of 2013. The mother moved out of her home in December 2013 at the request of the society. It did not want the mother there if the grandmother was to assume care.

[57] In January 2014, the society started a kinship assessment of the grandmother and her plan that was conducted by Dawn Makki. It was completed on April 3, 2014. The kinship assessor concluded that the grandmother's kinship plan did not appear to be realistic, safe or viable. She recommended against approving the grandmother's kinship plan based on six factors.

[58] First, the grandmother was not attending at access visits. The grandmother was allowed to visit with E.P. when the mother exercised access. From February 2013 until March 2014, the mother attended 45 access visits with the child at society premises. The grandmother attended 5 of those visits. The grandmother explains that her work schedule affected her ability to attend at access with the mother. The kinship assessor found the grandmother to be evasive in explaining her lack of attendance. The grandmother offers that that is not a fair characterization of their interaction. I did not find the grandmother to be evasive when giving evidence on this issue.

[59] Since February 2015 the grandmother, by Court Order, has been granted access twice a week regardless of whether the mother attended or not. Following the Order being made, the grandmother continued to miss a number of access visits, though her attendance has been more consistent recently.

[60] The parties agree that the grandmother interacts appropriately with the child when she attends her access, the child reacts positively to the grandmother during access, and there are no concerns with her access with the child.

[61] Second, the kinship assessor concluded that the grandmother lacked motivation in initiating and then following through on her kinship plan. The grandmother did not present a plan until August 2013; ten months after the child had been apprehended. It then took a number of months for the grandmother to follow through on the requirements needed to proceed with the assessment, namely obtaining police clearances and having the mother move out of her home. It was not until January 2014 that the assessment could begin. The grandmother did provide police clearances within a couple of months of August 2013. In cross-examination the kinship assessor acknowledged that a two month delay in obtaining a police report is not out of the ordinary. The mother moved from the grandmother's home in December 2013. The kin assessment began a month later. The grandmother also explains that she waited some time to advise that a plan would be put forward by her because she was aware that the society was considering a plan by a paternal aunt of the child. The kinship assessor acknowledged in cross-examination that the society investigates one plan at a time. The kinship assessor was not aware of another plan because it did not appear in the family services file, and in any event, this would not have precluded the grandmother for expressing an interest in caring for the child.

[62] Third, the kinship assessor was of the view that the grandmother may not be able to protect the child and abide by court orders and CAS directives. The basis for this was the kinship assessor understood that the grandmother let J.P. and the mother have contact firstly when she allowed him in her home, and secondly when she saw J.P. assault the mother. The grandmother denies knowingly participating in a breach of any non-association order. On the night the mother was assaulted by J.P., the grandmother was awakened by a noise and it was the grandmother who called the police. Charges were laid and a non-association order was made directing J.P. to stay away from the mother and grandmother. The second occasion occurred when the grandmother arrived at home for an appointment to meet with the society worker and found J.P. there to pick up some of his belongings that had been stored at her home. The grandmother did not invite J.P. over, did not know he was going to be at her home when she arrived and said that she did not have ongoing contact with him.

[63] The kinship assessor also relies on her view that the grandmother did not seem to fully appreciate the seriousness of her daughter's substance abuse, was not able to provide a concrete example of a time when she stood up to her daughter, the grandmother harbours significant guilt over decisions to move T.L.B. to Windsor from Florida and therefore may be vulnerable to manipulation by the mother and allowed the mother to come to her home to spend time with the great-grandmother. The grandmother's evidence is that she loves her daughter and her granddaughter and would never allow the latter to be put in harm's way because of the mother.

[64] Forth, the worker concluded that the grandmother lacked perception into the seriousness of her daughter's substance abuse issues. The grandmother told the assessor that she understood the risks but did not elaborate which caused the assessor to conclude that there was little evidence to suggest the grandmother really understood the seriousness of the situation. She allowed the mother to live in her home yet did not know that she was using drugs. The grandmother also wanted the mother to be the child's caregiver while she was at work. To the assessor, this indicated a lack of understanding as to the serious risk of leaving a young child in the care of the mother who had a serious drug addiction.

[65] Fifth, the mother attended at the grandmother's home with such frequency as to suggest to agency workers that the mother had not in fact moved out. The grandmother acknowledges that the mother did continue to see both the great-grandmother and her on a regular if not daily basis after moving out. The mother has a good relationship with both and she is good company for the great-grandmother. This allowed the great-grandmother to have company while the grandmother was at work.

[66] Sixth, agency workers reported that the grandmother appeared to be evasive and not forthcoming with information. In particular, the assessor relies upon the grandmother being evasive with regard to her relationship with E.E. The grandmother did not disclose to the assessor that she was in a current relationship. Society records however, disclose that on July 23, 2013, he was referred to as the grandmother's boyfriend by the mother. When asked specifically about her relationship with E.E. on March 27, 2014, the grandmother admitted to being in a relationship. She did not provide further information as requested by the assessor. The assessor was able to complete a file search with respect to this person who was known to the society and about whom it had concerns should he spend time with the child. The grandmother acknowledges that this person had a troubling history but that he has been appropriate with her during their relationship. They knew each other many years ago when they attended high school. It was not until 2013 that they met again by chance, reconnected by starting out as friends with the relationship progressing over time. The grandmother gave evidence that she would prioritize caring for the child over her relationship with E.E. or any other person.

[67] The grandmother's plan is to continue to reside in the home she does with her 77 year old mother. It is a four bedroom home about which no concerns have been expressed by the society.

[68] The grandmother is 53 years of age and in good health.

6: Legal Considerations

[69] The Act provides a statutory pathway that is to be followed in a child protection application: See L.(R.) v. Children's Aid Society of Metropolitan Toronto and Children's Aid Society of Toronto v. T.L., 2010 ONSC 1376.

[70] If the child remains in need of protection the Court must then determine if a Court Order is necessary to protect the child in the future: See CFSA ss. 57(1) and (9).

[71] For the reasons that follow, I am satisfied that an Order is necessary to protect the child in the future.

[72] The next step is to consider which one of the Orders under ss. 57(1), paras 1, 2, 3 or 4 or s. 57.1 should be made in the best interests of the child. The options in subsection 57(1) are:

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

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

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

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

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.

[73] It is necessary to consider the circumstances enumerated in ss. 37(3) of the Act when determining the child's best interests: See CFSA ss. 57(1). Subsection 37(3) provides as follows:

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[74] 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. M.(C.).

[75] The Court must consider what efforts the society or another society or person has made to assist the child before the intervention under Part III of the Act: See CFSA ss. 57(2).

[76] Before making an Order removing the child from a parent, the court must enquire into the least disruptive alternatives that would adequately protect the child: See CFSA ss. 57(3).

[77] If the child is 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 ss. 57(4).

[78] 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 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 child's best interests to do so. In this case, the child has been in care long past the statutory maximum.

[79] There is no order that is more profound than a Crown wardship order that permanently removes a child from the care of a parent. A court must exercise such a power only with the highest degree of caution and only on the basis of the most compelling evidence and only after a careful review of all other possible remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. G. (J.), [1996] O.J. No. 1394 (Ont. Div.Ct.).

[80] I have also considered the primary and additional purposes set out in Section 1 of the Act. The paramount purpose is to promote the best interests, protection and wellbeing of the child. The additional purposes include recognizing the autonomy of the family unit and providing help for them, exercising the least disruptive course of action that is available, providing services for the child that respects their need for care and continuity.

7: Plans of Care

7.1 Mother's Plan

[81] The mother's plan of care is to have E.P. placed with her subject to the society's supervision on terms that address the identified risks. She proposes that the child live with her, A.G. and M.G. in their four bedroom home. At some point she wants the child D.G. to be placed in A.G.'s and her care.

[82] E.P. would be cared for by her, A.G. and extended family, being the grandmother, A.G'.s mother and her partner. They would ensure that the child's needs are met, including the special needs related to her development. They would ensure that the child sees specialists and other specialized resource providers as needed.

[83] The mother asserts that she is healthy, ready and willing to assume care of the child. In order to ensure that the mother is able to care for E.P. in the long term, she will continue with all steps necessary to prevent a relapse of drug use.

7.2 Grandmother's Plan

[84] The grandmother offers her plan in the event the child is not placed in the care of the mother. She will live with her at her current residence along with the grandmother's mother. It is a four bedroom home that has amenities necessary to meet the child's needs. When the grandmother works out of the home, the child will be placed in a neighborhood daycare. The grandmother will ensure that E.P. is taken to all medical and other appointments needed to address her health. She expects to be supported by family and friends as well as society workers. She has the financial resources to provide for the child through her income from employment and government assistance.

7.3 The Society's Plan

[85] The society's plan is to have the child made a ward of the Crown and remain in the care of the foster parents. The foster parents are prepared to adopt E.P. should she become a Crown ward.

8: Efforts to Assist

[86] The Court is required to ask the parties what efforts were made by the society or another person, to assist the child before intervention under Part III in determining the appropriate disposition. The society did not make any efforts to assist the child, except to the extent workers kept informed about the child's circumstances following her birth and stay in hospital, such that she was apprehended on October 2, 2012.

[87] Hospital staff cared for the child from her birth until her apprehension.

[88] I am satisfied that the society in all the circumstances of this case met its mandate to investigate and protect the child, as set out in clauses 15(3)(a) and (b) of the Act.

9: Assessment of Mother's Plan

9.1 Positive Aspects

[89] There are many positive aspects of the mother's plan of care for this child.

[90] The mother loves the child.

[91] Under her plan E.P. would be raised by a biological parent. She would also have access to some extended family members. It is also part of her plan to seek placement of D.G. with her. This would allow E.P. to be raised with a sibling.

[92] Since D.G.'s birth, the mother has remained drug-free. I accept that the test for fentanyl in April 2015 resulted in a false positive. The mother has taken many steps necessary to avoid relapsing and maintaining her recovery from drug use. The mother's relationship with A.G. is a supportive one. He provides her with stability and security, both financial and emotional. She has an appropriate home and the support of the grandmother and A.G.'s parents.

[93] Observations made of access visits have been positive in that there have been no noted concerns. The mother interacts appropriately and the child responds positively at these access visits. Since mid-February 2015, the mother has made a determined effort to attend all available access. The mother appears – since becoming drug-free in February 2015 – to have the ability to understand and meet the child's needs within the supervised access setting.

[94] The mother has now complied with the original terms of the society plan of care.

9.2 Negative Aspects

[95] The most significant weakness of the mother's plan is that it will end the continuity of E.P.'s care. The probable disruptive effects of removing E.P. from the only home, with the only parents she has known her whole life, would result in a traumatic loss for her.

[96] Ms. Fernandes argues that continuity of care is not significant in that the child is only three years of age and could grow up with her mother and expand the bond they now have.

[97] Mr. Frank argues that there was no evidence led by the society on the specific effects or consequences on E.P. should she be removed from her current placement. He does concede however, that there will be some effect based on what he described as 'general principles'.

[98] I find that continuity of care is an important circumstance in determining E.P.'s best interests.

[99] The Courts have recognized that harm can arise if the emotional ties to caregivers who a child regards as her psychological parents are severed. Psychological bonding of a child to her foster family is a most important factor in many cases, including this one. The best interest considerations of maintaining or allowing a family unit with birth parents is "only commensurate as long as it is in the best interests of the child, otherwise it would be at cross-purposes with the plain objectives of the Act." See Catholic Children's Aid Society of Metropolitan Toronto v. C.M..

[100] In this case, the evidence is uncontradicted and I find that the child is closely bonded with the foster parents. E.P. is comfortable and happy in their home. She looks to them for support and affection. The foster parents are her psychological parents.

[101] Ms. Fernandes' argument that the child is only three does not take into account the immediate and potentially long term emotional harm the child would suffer from being removed from her psychological parents.

[102] The lack of specific evidence on the long term effect of removing the child from the foster home is not determinative. This was the situation in T.M. v. Children's Aid Society of the Regional Municipality of Waterloo, [2004] O.J. No. 2670 (Ont. S.C.J.) where Justice Flynn on appeal from a trial judgment stated at paragraph 111 as follows:

"It does not appear that any evidence was led at trial on the possible long term adverse consequences resulting from the removal of the children from foster care. But I am satisfied that the children have totally bonded with their foster parents, that the foster parents can provide a stable, loving, nurturing environment, and that the foster parents have a plan of permanency, namely, to adopt these children. And they are prepared to do it and have been approved as adoptive parents. There would definitely be a disruptive impact upon the children if they were removed from that home."

[103] This is the circumstances in this case.

[104] The Court also recognizes that delay has been a factor in the child bonding with the foster parents. In this regard, Justice L'Heureux-Dubé stated in the C.M. case at paragraph 44:

"That the length of these proceedings may have been one of the factors which has contributed to the attachment of S.M. for her foster family, and thus increased the emotional harm that would result from her removal from them, is a fact that is inescapable. The passage of time in matters of child custody and welfare over extended periods may, unfortunately, carry a heavy burden for all concerned. This is recognized by the Act in that a number of provisions mandate the timely resolution of cases and impose time limits on Children's Aid Society involvement with a family."

[105] The apprehension took place because of the mother and J.P. The society had a statutory duty to protect and placed the child in foster care. This is where she has remained. There is no suggestion that the foster parents did anything to advance the society's plan for the child. The original plan of care as stated above was made to help the mother gain care of the child.

[106] In this case it took the mother almost two-and-a-half years from the birth of the child to begin what is now an 8 month abstinence from drug use. In the meantime, E.P. has come to know the foster parents as her parents. It must be remembered that the Act is a child welfare statute, not a parent's right statute: CAS Halton v. K., 2012 CarswellOnt 12554 at 33.

[107] In assessing the mother's plan, I also take into consideration that the success of the mother's relapse prevention plan is relatively short in duration when considered against the approximately 8 years she has been addicted to drugs. This is not to suggest that the mother has given any indication that she will relapse, rather, it takes into account risk associated with the mother's past attempts at relapse prevention. Based on the evidence of Dr. Blanchard, I accept that the mother has put herself in circumstances that have significantly increased her chances of successful long term abstinence. She is in a committed and stable relationship. She has been able to secure employment and is not involved with the same persons and lifestyle as was the case when she was using drugs. She may be successful in the long term but this does not outweigh the harm that would follow from removing the child from the care of her psychological parents.

[108] I also consider that the planning and effort to make the mother's home with A.G. ready has been much more in support of the placement of D.G. there rather than E.P. The baby's room is for D.G. A.G.'s mother came to Windsor to help care for D.G. These steps were taken in response to the society's position regarding placement of D.G.

[109] Regarding access it has remained supervised and short in duration. There is no experience with expanded and unsupervised access.

[110] Even though the mother has complied with the original terms of the society plan of care, this is not now a determinative circumstance when considering the best interests of the child. The society plan of care was to be carried out within the timeframe prescribed by s.70 of the Act: 12 months from the apprehension with the possibility of a further six months. That timeframe has long since passed.

[111] Ms. Fernandes submits that the foster parents are approximately 60 years of age and they may not be able to care for the child as she grows into her teenage years. Concern arising from the age of the foster parents is speculative. They have demonstrated an ability to meet the child's needs and nothing suggests that they cannot or will not do so in the future.

10: Assessment of Grandmother's Plan

[112] The same considerations regarding E.P.'s continuity of care apply to the assessment of the grandmother's plan. I find that the grandmother's plan would end the continuity of care that E.P. has had with the foster parents and which is in her best interests to continue.

[113] I accept that the grandmother's plan could meet many of the needs of the child. I am satisfied that the criticisms of her plan as raised in the kin assessment are either overstated or sufficiently explained. The grandmother attends access as often as she can. Initially, her ability to do so was affected by the mother's failure to attend. The delay in the grandmother coming forward to put forward a plan was explained adequately, as was J.P.'s continued involvement. I found that the grandmother was a credible witness who answered questions asked of her directly and without attempting to advocate or persuade. She remained factual in her answers.

11: Best Interest Considerations

[114] In addressing the relevant provisions of subsection 37(3), I find that:

1. The child's physical, mental and emotional needs and the appropriate care and treatment needed to meet those needs will be better met by the society's plan of care.

2. The importance of the child's development in a positive relationship with the mother or grandmother and having a secure place as a member of a family must be considered in light of the child's connection to and place in the foster family.

3. The society's plan of care will better meet the child's need for continuity of care.

4. The society's plan of care which includes adoption by the foster parents will better meet the child's needs for long term stable and secure care than would placing her in the mother's or grandmother's care.

5. Further delay is not in the best interests of this child. There is no statutory basis upon which further delay could be contemplated.

6. The society's plan will better meet the overall needs of the child, than will the mother's or grandmother's.

[115] The least disruptive Order under s.57 that is consistent with the child's best interests is that she be made a Ward of the Crown.

12: Access

12.1 Legal Considerations

[116] Where a court makes an order for Crown wardship, the legislation creates a presumption against access. Access to a Crown ward is not to 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 clause 59(2)(i) of the Act.

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

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

[119] 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..

[120] The person seeking access must show more than the child has a good time during visits: See Children's Aid Society of Peel (Region) v. S.(M.), 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..

[121] The words "will not impair" contained within ss. 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.

12.2 Analysis

[122] During the three years E.P. has been in care, the mother's access was supervised at a society premises. From February 2013 to June 2014 access was scheduled to take place three times per week. Based on Ms. Georgiou's access attendance table, which I accept as accurate, during this period, the mother missed many visits: 78 out of a possible 143. She was removed from the supervised access program four times during this period for lack of attendance. In June 2014, the mother's access was reduced to twice per week. From June 2014 to February 2015 when D.G. was born, the mother attended 31 out of a possible 56 visits. I do take into account that the mother was quite ill and unable to attend at access from December 30, 2014 to February 2, 2015.

[123] After February 2015 when D.G. was born, the mother attended every access visit. Within the context of the twice weekly supervised access, the child has a positive relationship with the mother. As stated earlier in these reasons, I accept that at access the mother interacts appropriately and the child responds positively.

[124] The relationship between the mother and child must be looked at from the child's point of view. I cannot find on the evidence that the visits are meaningful in the sense that they are significant to the child. While the child enjoys the visits that do take place, the evidence does not support a finding that the child does or is developmentally able to look forward to or anticipate these visits. The child went for a considerable period of time prior to the birth of D.G. not seeing the mother on a regular basis. It does not appear that the child's relationship with the mother transcends or extends beyond the visits at supervised access.

[125] What might be significant about allowing access is that it would give the child a chance of knowing her roots. What is not known from the record is whether having a connection through access would undermine the proposed adoption placement. If an access order is made, I do not have the evidence to decide that the possibility of access or further litigation by way of application would diminish, reduce or otherwise interfere with the proposed adoption. Neither the society nor the mother called evidence on this issue. I do not know the views of the prospective adoptive parents on access or the potential for further litigation.

[126] Unfortunately, the mother has not met her onus in seeking access under subsection 59(2.1).

[127] This same reasoning applies to the grandmother's claim for access. The evidence of the grandmother's relationship with the child does not support a finding that it is beneficial or meaningful within the meaning of subsection 59(2.1)(a).

13: Final Order

[128] Accordingly, a final order will issue as follows:

1. The child is made a ward of the Crown and placed in the care of the Windsor-Essex Children's Aid Society.

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

[129] Even though the Order requested by the society for Crown wardship without access was granted, it is not precluded from allowing the mother to visit with the child before she is placed for adoption. Nor does it preclude the society and proposed adoptive home from discussing and implementing some form of openness.

[130] The Court wants to make it clear that the decision in this case should in no way preclude the mother from pursuing her claim to have D.G. placed in her care. He is much younger. Section 70 considerations do not preclude the placement of him with the mother. Also, the mother is longer in her recovery and supportive environment.

[131] The Court recognizes the mother's gains and wishes her the best in achieving the goals she now pursues.

Released: November 26, 2015

Barry M. Tobin Justice