WARNING

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

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

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

The court may make an order:

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

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

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.: Toronto C339/98

Date: 2016-03-22

Ontario Court of Justice

Between:

Catholic Children's Aid Society of Toronto

Applicant

— And —

P.N.S., D.J.H.

Respondents

Before: Justice Curtis

Heard on: 16-19, 22-26 February 2016

Reasons for Judgment released on: 22 March 2016

Counsel:

• Fatima Husain for the applicant Catholic Children's Aid Society of Toronto
• David Miller for the respondent mother P.N.S.
• Tammy Law and Ian McCuaig for the respondent father D.J.H.

INDEX

1. Over-view
2. Background
3. Litigation History
4. The Protection Finding
5. Disposition
   • a) Plans Proposed at Trial
   • b) Alternative Plans for the Care of the Child
   • c) Disposition Legal Principles
   • d) The Child
   • e) The Father's Plan
   • f) Evidence Regarding Disposition
   • g) Analysis regarding Disposition
   • h) Why Not a Supervision Order?
6. Access
   • a) Access Legal Principles
   • b) Access Analysis
7. Orders

1. Over-view

This is the decision in the nine day trial of a protection application regarding the child D.A.B.H. (three years old at the trial). The trial dealt with both the protection finding and disposition.

The Catholic Children's Aid Society of Toronto ("C.C.A.S.") is seeking a finding that the child is in need of protection and a disposition of crown wardship, no access, for the purposes of adoption. The father opposes this, and wants the child placed in his care, subject to a supervision order (if required). The mother supports the father's plan. If the child is made a crown ward, both parents want access to the child.

The issues for determination are these:

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

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

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

2. Background

P.N.S. is the mother ("the mother") of the child in this case. She was born on […], 1970 and is 45 years old. D.J.H. is the father ("the father"). He was born on […], 1974 and is 41 years old. They are not married to each other but have been in a relationship off and on since about 2006, at times living together.

The parents have a child, D.A.B.H. ("the child"), born […], 2013 (three years old). The child's legal first name is D.A.B.H., but the parents' evidence is that this registration is an error and they intended the child's first name to be D.A.B.H., and wrote it that way on the birth registration form. For the purposes of this decision and any court orders which result, the child will be referred to as "D.A.B.H., also known as D.A.B.H.".

D.A.B.H. is the father's only child. He is the mother's seventh child. None of her children are in her care.

The mother's six older children are:

• M.P.S., born […], 1989 (now 26, a crown ward);
• N.J., born […], 1990 (now 25, a crown ward);
• D.N.S., born […], 1992 (now 24);
• M.P.P.S., born […], 1993 (deceased, would now be 22, a crown ward);
• J.W., born […], 1999 (now 16, a crown ward); and
• J.S., born […], 2006 (now 10, a crown ward).

The mother has a very long history with C.C.A.S., back to 1995 when her file was transferred from the Children's Aid Society of the Peel Region to C.C.A.S.. She initially became involved with the child welfare authorities when it was disclosed that her oldest child, M.P.S., had been sexually abused by her husband A.S.. Further concerns included her substance abuse, lack of appropriate supervision of the children, inappropriate discipline by her, and neglect of the children's basic needs.

The three children M.P.S., N.J., and M.P.P.S. were made crown wards on 1 November 2000 with C.C.A.S. Jnaida was made a crown ward, no access, on 1 October 2001. J.S. was made a crown ward on 30 November 2006 in an uncontested motion for summary judgment.

C.C.A.S. brought a status review application regarding M.P.P.S. and the crown wardship order was terminated on 24 November 2009. M.P.P.S. was placed in the care of his father, A.S., subject to a supervision order with terms, including terms of access to the mother (who had maintained access with M.P.S. and N.J., who remained in the care of C.C.A.S. as well). M.P.P.S. died (in a suicide) in May 2014. He was 20.

The father was charged in March 2008 with assault and forcible confinement regarding the mother, was found guilty and received a conditional discharge. In April 2010, the father was found guilty and received a suspended sentence and nine months probation regarding separate charges of assault with a weapon (a baseball bat) and failure to comply with his probation.

The mother suffered a subarachnoid aneurysm (a type of stroke) in July 2011, leaving her with severe cognitive impairments.

The father loves the child. He has stated that he is not planning with the mother. The mother is not presenting a plan for the child. She supports the plan presented by the father.

3. Litigation History

C.C.A.S. became involved again with the family on 20 August 2012, when it received a phone call from Mount Sinai Hospital about the mother, who was pregnant. The father was identified by the hospital as the mother's partner.

The child was apprehended at birth from Mount Sinai Hospital on […], 2013. The original protection application was issued on 5 February 2013.

The concerns at the time of apprehension were:

• the mother's past parenting;
• the mother's then current level of functioning;
• the father's insistence on parenting with the mother; and
• the father's failure to co-operate with C.C.A.S.

The father immediately requested access visits with the child after his birth and apprehension, and indicated that he was interested in planning for the child. Initially the parents attended for access together, but the access visits were separated in June 2013.

The mother's visits were thereafter scheduled once weekly, and were fully supervised at the C.C.A.S. offices. She frequently missed visits or was significantly late for visits with the child.

The father initially attended for supervised access visits and C.C.A.S. increased visits to become loosely supervised visits. He requested further and unsupervised access and C.C.A.S. was moving towards unsupervised access visits by late 2013.

C.C.A.S. reduced visits back to fully supervised visits in early January 2014. In January 2014 the father brought a motion for increased and unsupervised access. On 22 January 2014 Nevins, J. ordered some increased and unsupervised access time (two visits per week, one being two hours long and supervised at the discretion of C.C.A.S., and the second being four hours long and unsupervised).

On 26 June 2014 at a temporary care and custody motion brought by the father before Jones, J., his request to place the child in his care was dismissed. The access order of 22 January 2014 was changed to increase his first weekly access visits to four hours in duration, subject to certain conditions precedent being met.

C.C.A.S. brought a motion to change access, and on 3 October 2014 Zisman, J. varied the father's temporary access (without prejudice) to access at the C.C.A.S.' discretion, and adjourned for him to respond to the motion. On 5 November 2014 Zisman, J. heard the access motion and changed his access to access at the discretion of the C.C.A.S.. He has continued to exercise access twice weekly, supervised, since then.

On 3 October 2014 Zisman, J. also ordered a parenting capacity assessment of the father under s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended ("C.F.S.A."). The assessment was done by Dr. Rex Collins and the report was released on 3 February 2015.

On 5 November 2014 C.C.A.S. reduced the mother's visits to once monthly. The mother no longer has regularly arranged access visits at the C.C.A.S. offices.

4. The Protection Finding

C.C.A.S. was seeking protection findings pursuant to s. 37(2)(b), and (g) of the C.F.S.A.:

Child in need of protection

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

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

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

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

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

On day two of the nine day trial, the parties consented to a protection finding regarding D.A.B.H. under C.F.S.A. s. 37(2)(b). The concerns that supported the protection finding are:

• the mother's past parenting;
• the mother's then current level of functioning;
• the father's insistence on parenting with the mother; and
• the father's failure to co-operate with C.C.A.S.

5. Disposition

a) Plans Proposed at Trial

There were two plans proposed at the trial:

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

b) The father's plan is to have the child placed in his care, with or without a supervision order.

b) Alternative Plans for the Care of the Child

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

c) Disposition Legal Principles

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

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

Order where child in need of protection

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

Supervision order

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

Society wardship

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

Crown wardship

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

Consecutive orders of society wardship and supervision

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

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

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

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

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

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

A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent: Children's Aid Society of Toronto v. R.H., [2000] O.J. No. 5853 (Ont. Ct.); Children's Aid Society of Toronto v. U.(E.), [2014] O.J. No. 299 (Ont. Ct.), para. 118.

The Child and Family Services Act is a child welfare statute and not a parent's rights statute. Young children who have been in care all of their short lives should not be kept in limbo. Such children would benefit most from permanency planning so that they can attain the stability and develop roots necessary to their healthy physical and emotional development: Children's Aid Society of Hamilton v. S.H., [2005] O.J. No. 5114 (Ont. Sup. Ct.), para. 19.

This child is under six years old and has been in care for more than 36 months, at trial. This is far beyond the statutory timelines permitted in C.F.S.A. s. 70. An order for society wardship is not available for him, unless the court makes an order extending the time period allowable under s. 70 C.F.S.A. The court can only make such an order if it is in the best interests of children to do so. This child needs certainty, finality and permanence. It is not in the best interests of this child for his status to continue to be unresolved.

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

Section 57(2) C.F.S.A. requires the court to inquire into what efforts the society has made to assist the child before intervention. C.C.A.S. has been working with the parents since before the child was born. C.C.A.S. has been working with the father for three years. C.C.A.S. has gone to great lengths to support the father. On the evidence presented it is clear that C.C.A.S. has done everything they can to assist the father in his quest to have the child placed in his care.

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

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

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

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

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

The pattern of behaviour must be considered: the lack of improvement in the pattern; the lack of insight; the lack of progress in addressing well-founded concerns, despite repeated opportunities to do so; the lack of candor; the lack of good faith; and the lack of any reason to have confidence that either of these parents has the ability and/or commitment to make necessary improvements within timelines sensitive to the child's needs: Catholic Children's Aid Society of Hamilton v. S.(B.L.), 2014 ONSC 5513 (Sup. Ct.), para. 99.

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

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

d) The Child

D.A.B.H. (now three years old) was described as quiet, shy, active, determined and likeable. He is physically strong and likes to jump, climb, run and bounce. He loves playing on electronic devices and also likes playing with trains, cars and puzzles. He is non-verbal and has delays in receptive and expressive language. He expresses his wants and needs through non-verbal actions.

D.A.B.H. has had several medical issues since he was born. He had two surgeries before his second birthday. He was hospitalized in March 2013 due to a respiratory syncytial virus ("R.S.V.") infection. During this hospitalization he was diagnosed with an inguinal hernia. He underwent surgery to correct the hernia on 24 May 2013. He underwent surgery for a buried penis on 1 October 2014.

D.A.B.H. was diagnosed with autism in January 2015. He is currently receiving treatment services, including speech and language services, through Erinoakkids. He also attends a specialized daycare three times weekly.

D.A.B.H. does not express a lot of emotion, eye contact or attachment to either his father nor to his foster parents, which is not normal development for a child his age, but is behaviour that is consistent with children with autism.

D.A.B.H. is a high needs child who requires more attention than other children. He requires constant supervision. He has tantrums a few times daily when he wants something he cannot have. He also slaps himself when he has to stop an activity he really likes. He is a picky eater. He has trouble falling asleep. He has several food allergies (including peanuts, whole eggs, and green peas).

Overall, D.A.B.H. appears happy and contented in the foster home and has a good trusting relationship with the foster parents and with his older foster siblings. He has been living in the same foster home since he was a six weeks old. The foster mother said that parenting D.A.B.H. is labour intensive and exhausting, and that she manages it with a lot of help from her own three teen-aged children who live in the foster home (an 18 year old son and twin 17 year old daughters).

There was evidence that the child is getting better at guiding people by the hand when he wants something, but he is hard to soothe when he is upset. He has difficulties regulating his emotions and his behaviours. He will scream, head butt and hit when he is angry and frustrated. When he is upset he becomes physically aggressive to those around him. His behaviour is related to his frustration at not being able to communicate his wants and needs.

The children's services worker gave evidence that there were concerns about the child's medical needs, emotional stability and communication and language delays, which impact and manifest in his behaviour. He has benefited from the services he has been getting, including high quality medical care, the services of a child psychiatrist, speech and language pathologist, and occupational therapist at Credit Valley Hospital and other series through Erinoakkids.

Overall the child is doing well in the day-care program. There have been gains with his social skills, his ability to engage in his environment and his non-verbal communication skills since starting day-care. He appears more expressive in his emotions and is more affectionate with his foster family.

There was ample evidence, from several witnesses, about the father's approach to and response to his son's various medical needs and special needs. While he has attended meetings and appointments, he remains at times resistant or has a lack of insight into the extent of the child's needs. At meetings with professionals he can be condescending, even towards medical specialists, and not open to accepting important information about his son. He has tried to delay, sabotage and even to stop important medical treatments for the child throughout the time the child has been in foster care, at times stating that he does not believe the medical recommendations are necessary for the child. He portrays himself as somewhat of an expert and does not feel he needs to be open to or accepting of information that professionals in the field deem important to his son's well-being.

The father's approach raises the concern that if the child were returned to his care, he would not follow up on services for the child or would sabotage services with his "know-it-all" attitude, or he would just do what he thinks is right. When dealing with diagnoses made by specialists and experts beyond his understanding, he shows resistance and at times a refusal to accept information and opinions that differ from his own. For a child with D.A.B.H.'s special needs, this can be dangerous and will not allow the child to benefit from services and resources necessary to meet his complex needs.

D.A.B.H. is a demanding child who requires constant supervision and assistance. This child will need several services from numerous professionals for an extended period of time. He needs a placement with a skilled parent who is able to follow up with all needed treatment and services and manage his needs appropriately. The child needs patient care-givers who can work with professionals and have realistic expectations of him, and as well, he needs a stable environment and clear structure and routines. He requires caregivers who recognize his significant developmental and emotional needs, as he requires special services, and he will continue to require services in the future to meet his special needs. He requires a caregiver who is able to provide consistent and reliable caregiving in order to meet his developmental and emotional needs.

e) The Father's Strengths

There is no doubt that the father loves the child deeply. All the C.C.A.S. workers saw that, believe it and admitted it. He desires to be involved in the child's life and to care for the child. He initially presents well. He is articulate, and well-dressed. Dr. Collins described him as intelligent, personable, engaging, energetic and persistent. Dr. Collins also described him as extraverted, and with a generally optimistic approach to life. Dr. Collins found that he has the intellectual ability to learn, retain and apply new information.

C.C.A.S. workers who supervised access and other workers also described the father's strengths that they observed:

a) he is nurturing with the child;

b) he encourages the child;

c) he is affectionate with the child;

d) he is committed to the child;

e) he attends visits prepared with his own toys, cleaning supplies and food, the majority of the time;

f) he has been flexible with rescheduling of his access visits when requested to by C.C.A.S.;

g) he often verbally explains activities to the child and is able to interact with the child during the activity;

h) D.A.B.H. appears to enjoy visits with the father; and

i) he was resourceful in seeking out services for himself, and he attended those programs.

f) Evidence Regarding Disposition

i. The Father's Plan

There was almost no evidence about the father's plan. There were no details presented. He filed two Answers and Plans of Care (dated 29 April 2013 and 29 August 2014). There was information about his plan in both his Answers and Plan of Care (both are unsworn documents) that was not described, expanded on, or even mentioned in evidence. There were supportive persons mentioned in the Answers that were no longer part of his plan, according to his evidence. His second Answer and Plan of Care was filed before D.A.B.H. was diagnosed as autistic (in January 2015) and no up-dated or amended Answer and Plan of Care has been filed since the diagnosis.

The father said he would take the child to the therapy required.

The C.C.A.S. workers were not able to see the father's home, so could not approve that part of his plan. The workers made repeated appointments with him to see his home, and none of them took place. He was either not there, cancelled or would not allow the workers into his home.

The father said his parents were available as back–up. The evidence given by his parents about their willingness to help him and what that actually meant was more detailed than his own evidence about their help. It was not clear that he would accept their help.

The father is getting therapy and called his counsellor as a witness. He also called his pastor as a witness. The pastor's evidence was mostly about the counselling he offered the father around the relationship between the father and the mother. Neither of these witnesses offered evidence that helped the court to understand the details of his plan.

ii. The Mother, and the Father's Relationship with the Mother

The mother has a long history with child welfare authorities. She has six other children, none of whom live with her. Five of these children are crown wards. In 2014, one child died at age 20 of suicide (while living in Calgary).

D.A.B.H. was apprehended at birth and at the time (February 2013), these were C.C.A.S.' main concerns:

a) the mother's past parenting;

b) the mother's then current level of functioning;

c) the father's insistence on parenting with the mother; and

d) the father's failure to co-operate with C.C.A.S.

C.C.A.S. stated that their main concern at the time of apprehension was the mother's level of functioning.

The parents met in 2005 or 2006 and entered a romantic relationship soon after. When they met the father was employed and appeared to be fairly stable. They have been together for most of the last 10 years. They have, at various times, lived together and they have been in a relationship at times when they were not living together. They both described times when they were not together. There is a strong connection between them. The mother's last child J.S. (born in […] 2006) had been made a crown ward (the mother did not contest this and filed no material) at age eight months on […] 2006, not long after they met. The father repeatedly talked about wanting to give the mother a chance to be a parent one last time (with D.A.B.H.), as she had not been able to parent any of her other six children.

The mother became very ill in July 2011 when she had an aneurysm. The mother's health and her functioning have been dramatically affected by the aneurysm, which has resulted in severe deficits, described by her counsel as follows:

a) severe cognitive and physical impairment;

b) vision loss;

c) severe memory difficulties, both short-term and long-term;

d) severe problems-solving difficulties, particularly involving multi-tasking;

e) deficits in cognitive executive function; and

f) difficulties with concentration and attention.

When the mother became ill, the father went to her to help take care of her. He was identified as her common law partner in the hospital records at the time. About six months after the event, he admits that they were living together again.

At trial, it was not clear whether they are currently together or not, although the father denied that they were together. The mother said that she last visited him at his apartment in December 2015. She said that she loves him. It is unclear at what times they were not together. In fact, it is entirely possible they have always been together throughout the last ten years.

The father stayed in a relationship with the mother even in the face of strong opposition from his parents and his family. His parents and great-aunt all gave evidence at trial. Both the father and his parents admitted that his relationship with the mother interfered with his relationship with his family. His mother said that he could be evasive when he wanted to hide information. She said that he hid the relationship from the family at the beginning, for many months, and that they only found out about the relationship through a third party. His mother said that if he stayed in this relationship that he would either end up dead or in jail. She told him this several times (he admitted that she told him this), and she said it in her evidence several times.

The father stayed in the relationship with the mother against the advice of his pastor. The pastor gave evidence. The pastor provided counselling to him and told him that he should leave the relationship.

The father stayed in a relationship with the mother even in the face of clear and repeatedly expressed concerns by the C.C.A.S. workers that continuing this relationship and attempting to plan for the placement of the child along with the mother would mean that C.C.A.S. would not support placing the child with him. He admitted that he repeatedly lied to C.C.A.S. workers about his relationship with the mother, about whether they were still together, about whether they were living together, and about her whereabouts. He did not apologize for this, nor express any concern or remorse for repeatedly providing C.C.A.S. false information on this over a significant period of time. He did not seem to comprehend that this was a serious issue in not only C.C.A.S.' ability to trust him and work with him, but also in C.C.A.S.' ability to investigate his plan and to have any confidence that he was, as he said, planning alone to care for the child.

There were two Family Group Conferences which involved the father's family. At these meetings (May 2013 and March 2014) C.C.A.S. took the clear position that they would not support placing the child with him if he was still in a relationship with the mother and if his plan was to parent the child along with her, and while living with her. Interestingly, at both these meetings, his entire family took the same position, and stated this clearly at the meetings, and stated it in evidence at the trial. He insisted that he would be living with the mother as a family, and that they would be planning together for D.A.B.H.. Despite the clear statement of both C.C.A.S. and his family that this plan was not appropriate and would not be supported by either the agency or his family, he persisted in this plan, continued to live with the mother, initially openly, and then in secret, and lied to C.C.A.S. about his living arrangements.

Although they have been together for a significant period of time, the relationship between the father and the mother has been characterized by chaos, instability and domestic violence. During periods where they lived together they have been transient. The mother in particular has been transient and at times, has been homeless. The police have been at their home at least three times (2007, 2008 and 2009). There were two sets of criminal charges and convictions (in 2008 and 2009). The father was convicted of assault regarding the mother as a result of an incident in March 2008. In February 2009 he was charged with assault with a weapon (a baseball bat) regarding the mother's uncle, forcible confinement and breach of probation. He says that he spent four months in jail. There were separate charges in April 2010 regarding fail to comply with a recognizance. He had a mental health crisis in December 2010 related to their relationship, trashed his apartment and destroyed many of his belongings, and called 911 himself.

Dr. Collins (a psychologist) did a parenting capacity assessment of the father and produced a Psychological Assessment Report dated 3 February 2015. Dr. Collins made the following finding about his relationship with the mother (report page 20):

The father's power/control struggles arise from a sense of inadequacy and a need to protect himself from others seeing his vulnerabilities and weaknesses. In the father's seeming continuing relationship with the mother, his sense of self and adequacy is boosted by casting her in the role of the weak, vulnerable one in need of care. To a large extent, the father's life is organized around providing support and care for the mother and D.A.B.H.

It is puzzling, and even concerning that the father, a seemingly intelligent and personable man, has made a decision to form a relationship with someone as apparently psychologically damaged as the mother. Indeed, he decided not only to form such a relationship, but to stay in the relationship for a long period of time, and in the face of much advice that the relationship was not a good one for him, and that he should leave it.

This is not a healthy relationship. It is not healthy for either the mother or the father. He has continued in this dysfunctional and volatile relationship for many years and persisted in this relationship even when being advised by those he trusted to leave the relationship. He has repeatedly chosen the mother above all others in his life. He has chosen the mother above his own family. He has chosen the mother above his child D.A.B.H.. This became clear when the father began lying to C.C.A.S.

iii. The Father is Unable or Unwilling to Co-Operate with C.C.A.S.

No supervision order can work in the absence of trust between the person supervised and the agency. The father says that he would be willing to work with C.C.A.S. and to co-operate with C.C.A.S., if the child were placed in his care under a supervision order.

The father admits that he lied to the C.C.A.S. family services worker repeatedly and over a significant period of time. He admitted he was lying repeatedly to the C.C.A.S. worker about his relationship with the mother and about their living arrangements in the spring and summer of 2014. At that point, he had been working with C.C.A.S. for about two years. He knew that C.C.A.S. had concerns about his living with the mother if he was planning to care for the child. The C.C.A.S. family services worker gave evidence that he had many conversations with the father about applying separately to care for the child, without the mother as part of his plan. The father says that he was openly and repeatedly lying to the worker about the fact that he was living with the mother. In fact, in May 2014 the C.C.A.S. worker tried to locate the mother to tell her not only that her son M.P.P.S. (then 20) had died, but that C.C.A.S. was willing to pay for her airfare to attend the funeral in Calgary. The father and the mother were then living together. He repeatedly told the worker that he did not know how to contact her.

The father has a history of non-compliance with court orders. He has two criminal convictions for failure to comply, one for failure to comply with probation and one for failure to comply with a recognizance.

The father admits that he did not comply with the expectations set out in writing in July 2014 regarding his unsupervised access. He admitted that he administered medication to the child during access, even in the face of a specific prohibition in the expectations letter dated 2 July 2014, which provided that he should not do so unless authorized.

In July 2014, C.C.A.S. amended the protection application to seek crown wardship, no access. D.A.B.H. was 17 months old then, and had been in care 17 months. In fall 2014, C.C.A.S. brought a motion to change the father's access from unsupervised to fully supervised. He admitted that he was aware then that the situation had changed (with the amended protection application and the change to supervised access) and he described this as a "big leap backwards" for him. He understood what the C.C.A.S.' expectations were, and he knew he was not meeting those expectations.

The father's parents both said that at times, it was difficult to contact him. All the C.C.A.S. workers said that they had difficulty getting accurate information from him, that: he avoided them, he failed to meet with them, he failed to keep appointments with them, he was very difficult to contact, and he was evasive. As the trial dates approached and the C.C.A.S. workers tried to see his apartment so they could evaluate his plan, they were unable to do so, despite making several attempts and even several appointments. The last time the C.C.A.S. family service worker saw his apartment was October 2015. He made it difficult, if not impossible, for the C.C.A.S. workers to evaluate his plan.

In giving his evidence the father was mocking, dismissive, sarcastic, disrespectful, and condescending in describing the conversations he had with C.C.A.S. workers. He imitated and made fun of the voice and the accent of one of the workers in a very unkind way. It was unpleasant to listen to, inappropriate and rude.

It was unclear whether the father did not understand the severity of the crown wardship trial process, or if he did understand, that he did not take the process seriously.

A worker who supervised many visits gave evidence that the father is not open to feedback or direction. He tries the direction being given, but only for a few minutes, then gives up and returns to his regular behaviours. While being re-directed, he will often comment and make sarcastic remarks, roll his eyes, raise his voice, stutter and mumble. This reluctance or refusal by him to accept this advice from outside professionals might hinder appropriate care and services for the child. This is particularly important given the child's significant special needs.

iv. The Father is Unable to Recognize and Alter his Behaviour to Manage And Meet the Needs of Others, Including Both the Mother and the Child

The father was unable to recognize the mother's high needs and D.A.B.H.'s high medical needs.

The father repeatedly minimized the mother's deficits and failed to recognize the level of her disability. He maintains he is very aware of her medical needs and that he knows more about her needs than the C.C.A.S.

The dynamic in the relationship is that the father has a controlling demeanour towards the mother. When the father and mother reconciled after the mother's aneurysm, the father said that it was because she apologized to him. At this point, there had been two criminal convictions of him for violent incidents related to the mother, he had been in jail, and he had trashed his own belongings in his apartment (destroying most of the furniture) as a result of conflict with the mother. He expressed no remorse for these incidents. He seemed to blame the mother for all of the difficulties. He felt hurt and he saw himself as the victim. He admitted that he knew it was against medical advice for the mother to become pregnant after her aneurysm, yet he took no responsibility for the risks to the mother from not using birth control.

Despite the father taking parenting programs that dealt with developmental issues about children, the workers gave evidence that he will regularly complain about things which are normal behaviour for a toddler. The evidence of the workers is that he does not appear to understand or appreciate appropriate child development and parenting of a toddler, as he does not always appear to accept the explanations given to him.

The child had three major medical issues (prior to the autism diagnosis) and two surgeries in his first two years. In March 2013 the child was hospitalized with the R.S.V. virus. At an access visit, observing that the child was unwell, the father called 911 without discussing this with the C.C.A.S. workers or even advising them of this. His method of obtaining medical attention for the child created a crisis that was unnecessary.

Despite receiving medical information from two doctors that the child had a hernia and required surgery to correct it, the father did not consent to the surgery. He got this information from the paediatrician that first diagnosed the hernia (on 27 March 2013), and from the paediatric surgeon. C.C.A.S. did not actually require his consent to the surgery, as the child was legally in the care of C.C.A.S.. But C.C.A.S. was trying to involve him in the child's care and was still planning with him, and made efforts to get him as much information as possible when he requested a second opinion. When he sought a third opinion, C.C.A.S. went ahead with the hernia surgery.

In fall of 2013 the child was diagnosed with a buried penis, and surgery was recommended. The father was included in a long consultation appointment in December 2013 with the paediatric urologist. The father was described by the C.C.A.S. worker and the foster mother as argumentative and difficult at this meeting. He demanded a second opinion and one was arranged. The second doctor confirmed that surgery was required. The father said that he had this condition as a child (he said he also had a hernia as a child), and that these conditions self-corrected without the need for surgery. His mother said that the father never had a hernia as a child, and that his penis condition was different than that of D.A.B.H.. The father consented to the surgery, yet he attempted, without discussing this with C.C.A.S., to arrange for a further opinion by setting up an appointment with a third doctor for before the surgery. C.C.A.S. only found out about this when the doctor's office contacted the foster mother to confirm the appointment. The surgery was scheduled, but took place almost one year after the initial diagnosis, due to delay caused by the father's insistence on multiple opinions.

The father has real difficulty understanding the child's medical needs (even before the diagnosis of autism, which came in January 2015), and in separating the child's needs from his own. This was clear in his behaviour with the professionals involved in the child's medical care and surgeries. The evidence of the workers and the foster mother about this was detailed and specific, and was uncontradicted by the father. This is a very serious situation generally, but is a particularly serious situation for this child.

The father's behaviour created delays in respect of the required medical treatment for the child. Both his parents gave evidence that he likes to do things a certain way (i.e., his way), has to do his own research, come to his own conclusions and make up his mind, on his schedule. His failure to make decisions in a timely way created barriers to treatment for the child.

In January 2015, D.A.B.H. was diagnosed with autism. C.C.A.S. had already amended the protection application in July 2014 to seek crown wardship no access. D.A.B.H. is not verbal. This diagnosis and the treatment D.A.B.H. will need require a partnership between the child's caregivers and his treatment providers. One of the current treatment providers gave evidence about the type of therapy D.A.B.H. needs. He is currently receiving services to support his developmental progress including speech therapy, occupational therapy and daycare. He is on two waitlists for other developmental services.

It was not clear that the father understands what autism is or what that means for D.A.B.H.'s life and for his caregivers. A worker who supervised many visits gave evidence that he did not appear to understand the child's developmental needs or his autism diagnosis. The father's evidence about the condition was minimal. He agreed to participate in and have the child attend the treatment he is getting. He did not discuss any other aspects of this diagnosis, or explain his understanding of the diagnosis. His parents (who are not together) both gave evidence that they are willing to help him care for D.A.B.H. (as back up), but their evidence about the child's condition was also very sparse. Neither appeared to know what an autism diagnosis means. All three (the father and both his parents) agreed that the child needs to remain connected to services (e.g., therapy). But that is only one aspect of caring for an autistic child. It was not clear that the father even understood the treatment recommendations for the child.

D.A.B.H.'s caregivers need to be able to provide detailed and accurate information to medical professionals, and to understand and accept treatment recommendations. The father has not been able to do that with the service providers helping his son. His own need to be in control of the situation is high. When asked by C.C.A.S. to provided medial information to assist in the child's treatment, he was unable or unwilling to do so.

The father has a limited understanding of his son's developmental needs and is unable to accept professional's assessments of the child's delays. The C.C.A.S. worker gave evidence that he has continued to minimize, dismiss or deny concerns about the child's development.

A high level of support is required to be able to care for a child like D.A.B.H., whose care cannot be managed alone. The father is unable to be a partner in the care of his child, which is clearly what is needed for this child. He has not shown to the C.C.A.S. workers and to other professionals that he is a working partner to address the significant needs of his son. He has not shown that he is able to work co-operatively in a team environment with medical professionals and service providers. He is unable to make decisions in a timely manner, even when those decisions are known to be time-sensitive. He is unable to be involved in the child's care in a manner which does not create difficulty and even chaos. He is unable to comply with expectations or court orders, work co-operatively in a team environment, or deal with even fairly minor medical issues about the child. He is unable to manage the special needs of others, and particularly is unable to manage the special needs of this child.

v. The Father's Own Lack of Functioning and Possible Mental Health Issues

Dr. Collins (in the parenting capacity assessment report and in his evidence at trial) found that the father had significant characterological difficulties, entrenched personality patterns, and may be suffering from a cyclothymic disorder. Dr. Collins found that these difficulties are likely to negatively impact his capacity to parent his son, particularly in the long term. In his report, Dr. Collins stated (pages 12, and 17):

He may alternate between periods of feeling down and discouraged and moods of optimism and hope, to the point of his becoming pressured and hyper-active. . . . In times of stress, his thinking may become confused and confusing, and his perceptions distorted to the extent that he may misperceive events and interactions between people.

Agency workers also described this behaviour in the father's misperception of information at appointments with medical professionals and others attempting to help his son, and in his distrust of agency workers and others (including landlords). He told the agency worker that: he believed that C.C.A.S. workers were tapping his phone, the urologist had told the worker information about the child that the worker failed to record, and he suggested that one worker was providing false information about her efforts to contact him. He maintained that his remembered version of events was always correct, despite evidence to the contrary.

Dr. Collins also found that the father had high expectations of himself and is somewhat perfectionist, so that minor mistakes would elicit considerable self-criticism. His profile suggests an above-average risk of loss of control over his temper.

Dr. Collins found that although the father possesses the intelligence to meet the child's instrumental needs, that D.A.B.H.'s emotional needs might be a challenge for him, and that it is likely, given his own psychological issues, that he would have trouble separating his own needs from those of the child. This finding was consistent with the workers' evidence about his behaviour around the child's medical needs, and his reaction to and treatment of the medical professionals and their recommendations about the child's medical needs.

There were periods of time when the father was unable to meet even minimal expectations of the C.C.A.S.. In 2013 and recently, his attendance at access included significant lateness. He missed access visits in December 2015, January and February 2016 (the three month period right before the trial). His explanations were vague or not specific. He missed several home visit appointments with agency workers, including in the three month period leading up to the trial, despite acknowledging that he wanted the workers to see his apartment to assess his plan. He said that he took on too much in the three to four months right before the trial (in that he returned to school after fifteen years, and he started a job after not having worked for several years, even while stating that planning for the placement of his son with him was his priority). At best, this shows a lack of judgment on his part, and may also be interpreted as the father not really being that interested in getting his son placed with him.

The father repeatedly arrived late or was absent during the nine day trial about his son's future. He was significantly late for the first two days of trial. Even when the first day of trial was held down waiting for him to arrive for about 1½ hours, there was no apology for his lateness and no explanation. On the first day of trial, he did not come to court at all until 2 p.m. in the afternoon. On the final day of trial, he did not appear at all until 3.47 p.m., five minutes before the trial concluded. There was no explanation for his lateness.

Agency workers described the father's behaviour as almost paranoid. He insisted on audiotaping all interactions. Sometimes he asked for consent to do so, and sometimes he did not. He says that he did so in order to have proof of what he was saying and to ensure accuracy. There was no evidence as to what use he made of the tapes, or indeed, if he used the tapes for any purpose. He did not produce the tapes nor attempt to rely on the tapes at the trial. He had no insight into how this behaviour (taping all interactions) might be perceived by others. He did not appear to understand that it might make others uncomfortable, or cause distress, even to innocent persons. He did not appear to understand that it might be experienced as intrusive.

The foster mother gave evidence about the child's significant needs, and the many appointments she needs to attend to ensure that his needs are met. One of the current treatment providers gave evidence about the type of therapy D.A.B.H. needs, and the fact that this diagnosis and the treatment D.A.B.H. will need require a partnership between the child's caregivers and his treatment providers. Based on his history, and on the evidence about his behaviour, the father does not have the necessary ability to ensure that the child will attend for all necessary medical appointments and therapeutic appointments. It is even less certain that he would or could follow through with the treatment recommendations resulting from those appointments.

vi. The Father's Lack of Insight

The father lacks insight into the protection concerns the agency has and he fails to accept any responsibility for his behaviour and the impact of his behaviour. He acknowledged that had he done what the agency and his family told him to do (that is, to plan on his own for the placement of the child with him, and to co-operate with C.C.A.S.), the outcome might have been different.

The father's family gave evidence that they were willing to help him, and had been offering to help him for some time. It is unclear whether he would accept their help. Even his mother gave evidence that she had difficulty reaching him and that he often did not return her calls. His family came to the Family Group Conferences twice (May 2013 and March 2014). This is evidence of a commitment by his family, particularly as the father is older (he was 39 years old when him that his family described at trial, the plan they were willing to help him with, would require him to work in close co-operation with his family, something he has not been able to do with anyone in recent years.

The father's actions caused chaos for the agency workers attempting to work with him, and for the medical professionals attempting to treat his son, and ultimately for his son. All the agency workers gave evidence of the extra-ordinary lengths they went to in their efforts to contact him, to meet with him, to reach out to him, to involve him, to try to obtain basic information from him.

The father lacks insight into the effect of his behaviour. He has shown poor judgment, particularly in staying for so long in a relationship with the mother and in insisting that his plan for the child was a plan that involved her. He insisted on pursuing this plan even in the face of clear information from the agency that they would not support this plan, and even in the face of his own family telling him they would not support this plan, either. He disregarded not only the advice and opinions of others, but persisted in his own view, despite advice from those around him, clear information that his chosen path was doomed to fail, and the clear negative consequences of persisting. He did not move from this position until November 2013, when the child had been in care for nine months. Only then did he tell the agency worker that he was planning for the child on his own, without the mother.

The father openly admits that he repeatedly lied to agency workers over a substantial period of time, about issues that were significant, and he makes no explanation or apology for this. He avoided contact with agency workers, and refused to allow them into his home, despite the fact that he was offering a plan for the child to live with him. He was unable or unwilling to do the things he was expected to do.

A plan for the child cannot simply be based on love, good intentions and a sincere desire to be a parent. It has to be based on a realistic structure, and with some certainty that the parents can address the degree of risk that caused the agency to be involved in the first place. It must also be based on confidence that the parent can meet the emotional and developmental needs of the child. The father has not demonstrated this.

g) Analysis regarding Disposition

The father states that he loves his child. This is a significant factor. His relationship with the child is extremely important and must, of course, be considered.

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

The child's speech, language and behavioural issues require a parent who will follow through with services. The father has not demonstrated the ability to ensure he is capable of attending for necessary his ability to follow through with services (such as speech and language services) for the child.

The father's plan for the child is poorly conceived, consisting largely of promises and speculation. He has already had many chances. Many professional witnesses testified about their attempts to engage him, to provide him with services, and to provide him with a chance.

h) Why Not a Supervision Order?

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

Has the father taken sufficient steps to establish that his behaviour has sufficiently changed so that a supervision order could adequately protect the child from any risk of harm?

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

The father has not made sufficient progress in addressing the protection concerns to allow the court to believe that a supervision order would be effective in addressing risk to the child should he be placed in the father's care. He lied repeatedly to C.C.A.S. workers over a significant period of time. The evidence clearly demonstrates that he has not modified his behaviour to any degree, such that a supervision order can serve as an effective instrument in managing any risk of harm to the child, were he to be placed in the father's care. His lack of willingness to comply, and his failure to communicate as requested and with honesty, will render any court order of supervision ineffective. The court has no confidence he is able or willing to co-operate sufficiently with C.C.A.S. to address the risk to the child under a supervision order, no matter how strict the conditions imposed.

There is no foundation for a working relationship or a supervision order under the circumstances in this case. A cornerstone of any effective supervision order is trust and clear and accurate communication between the parties. Any supervision order involving the child and the father would be an ineffective instrument for the protection and safety of the child. The father is not a suitable candidate for a supervision order, which requires a sense of co-operation and a willingness to work with C.C.A.S.

A supervision order is not a suitable option as the child would not be safe with the father under a supervision order.

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

6. Access

a) Access Legal Principles

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

Access: Crown ward

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

b) Access Analysis

The onus is on the father to demonstrate that access visits are meaningful and beneficial to the child. While the evidence suggests the child enjoys the visits, the evidence does not show the visits to be advantageous to the child. There is no evidence that the visits are significant to the child. The court cannot find that the visits are beneficial or meaningful to the child.

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

The mother frequently missed visits or was significantly late for visits with the child. Her access to the child has been sporadic, and has been stopped altogether at times during the litigation. Currently she is not having regular visits to the child. Her contact with the child cannot be described as beneficial and meaningful to the child when there is little or no such contact.

The father's and the mother's claims for access to the child are dismissed. There shall be an order for no access to the child.

There is also no dispute that the parents love the child very much. However, the focus of this whole process is the protection, well-being and best interests of the child. The child is entitled to have this matter adjudicated and completed. He is entitled to the opportunity to grow up in a safe and stable family, free from any risk to his safety and well-being.

7. Orders

C.C.A.S. shall take the necessary steps to change the child's name on his birth registration to the name the parents intended, D.A.B.H.

These are the required statutory findings about the child:

• D.A.B.H., also known as D.A.B.H.;
• born […], 2013;
• Roman Catholic faith;
• does not have Indian or Native status under the appropriate legislation and within the meaning of the Child and Family Services Act; and
• was apprehended by C.C.A.S. at Mount Sinai Hospital, Toronto.

The child is found to be in need of protection under C.F.S.A. s. 37(2)(b).

D.A.B.H. shall be a crown ward, without access to the parents, for the purposes of adoption.

Released: 22 March 2016

Justice Carole Curtis

Footnotes

[1] Paragraphs 6-14, 17-24, 46 and 47 are from the Agreed Statements of Facts filed in the trial.

[2] Cyclothymic disorder is a mental disorder. It is a mild form of bipolar disorder (manic depressive illness), in which a person has mood swings over a period of years that go from mild depression to emotional highs.

[3] On the first day of trial there was a snowstorm in Toronto. Allowance was made for the possibility of delay due to the weather. However, by 10.30 am. that day, all others required to attend were present at court (lawyers, witnesses, court staff). When contacted, the father said he would arrive by 11.30 a.m., so the matter was held down for him, but he did not arrive then. The trial started that day at 11.30 a.m.