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 — 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
Date: June 6, 2017
Court File No.: C90178/16
Ontario Court of Justice
In the Matter of a Status Review Application
Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of D.S., born on July 22, 2010 and L.S., born on August 12, 2012
Parties
Between:
Children's Aid Society of Toronto
Sherri Smolkin, for the Applicant
Applicant
- and -
E.S.
Marlo K. Shaw, for the Respondent
Respondent
Heard: June 1, 2017
Justice: S.B. Sherr
Endorsement
Part One - Introduction
[1] The respondent (the mother) has brought a motion pursuant to subrule 33(3) of the Family Law Rules to extend the timelines to permit the late filing of her Answer/Plan of Care regarding her children, D.S. (age 6) and L.S. (age 5) (the children).
[2] The applicant, the Children's Aid Society of Toronto (the society) opposes this motion and seeks to note the mother in default. The society, in its Status Review Application, is seeking a disposition for the children of crown wardship with no access.
[3] The mother attached a draft Answer/Plan of Care to her motion material. She seeks placement of the children with her. In the alternative, she seeks placement of the children with her adult son (S.S.). She seeks access if the children are not placed with her.
[4] The issue for this court to determine is whether the best interests of the children require granting an extension of time to the mother to late-file an Answer/Plan of Care with respect to all or any portion of her claims.
Part Two – Brief Background
[5] The children were apprehended from the care of the mother on March 16, 2016.
[6] The children have remained in the care and custody of the society since that time.
[7] The mother has exercised fully supervised access to the children at the society offices since their apprehension. She presently visits with the children twice a week.
[8] There is no known male parent for the children.
[9] On October 24, 2016, after hearing a summary judgment motion, Justice Carole Curtis found the children to be in need of protection pursuant to clauses 37(2)(b) (risk of physical harm) and (g) (risk of emotional harm) of the Child and Family Services Act (the Act). Justice Curtis made the children society wards for 4 months and 21 days and ordered that access by the mother to the children be in the society's discretion.
[10] The society issued its Status Review Application on February 14, 2017.
[11] The mother was served with the application the same day.
[12] The mother had not filed an Answer/Plan of Care by the return date of March 29, 2017. The court granted her an extension of time until April 19, 2017 to serve and file her pleading.
[13] The mother did not file her Answer/Plan of Care within the ordered timeline.
[14] The mother's counsel orally sought a further extension to late-file the mother's Answer/Plan of Care in an appearance before Justice Melanie Sager on May 4, 2017. The society opposed this request and this motion was scheduled before me.
Part Two – Legal Considerations
2.1 Extension Orders Under Subrule 33(3)
[15] Rule 10 requires that an Answer/Plan of Care is to be filed within 30 days of a party being served with an application. As a result of the mother's failure to file an Answer/Plan of Care within 30 days of being served with the Status Review Application, the provisions of sub-rule 10(5) apply — she is not entitled to participate further in the case in any way, not entitled to notice of steps in the case and the court is permitted to proceed with the case in her absence.
[16] Subrule 33(1) sets out a timetable for child protection cases and confirms the 30-day filing requirement for the Answer/Plan of Care.
[17] Subrule 33(3) states:
(3) Court may lengthen times only in best interests of child. — The court may lengthen a time shown in the timetable only if the best interests of the child require it.
[18] Subsection 37(3) of the Act sets out factors to be considered in determining the best interests of a child. This subsection reads as follows:
Best Interests of Child
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:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships by blood or through an adoption order.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
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.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[19] I reviewed the case law on this legal issue in paragraphs 23-31 of my decision in Jewish Family and Child Service of Greater Toronto v. M.J.P., 2012 ONCJ 66. In brief, the case law sets out the following considerations in determining whether to grant an extension order to late-file an Answer/Plan of Care:
a) The amount of time that the child has been in care.
b) The failure to meet prior extension orders.
c) The reason for the failure to meet the timelines.
d) For a hearing to be fair, a parent should have a reasonable opportunity to present their case effectively.
e) What will be the extent of the delay if the extension order is granted?
f) Rule 2 does not expand the test – the best interests of the child must require the extension order.
g) Most importantly, an extension order should not be granted if there is no air of reality to the parents' plan.
[20] In M.J.P., I added the following observations at paragraphs 33-36:
[33] In child protection cases, the court is often dealing with the most vulnerable people in our community. Many of the parents that the court sees have significant challenges in their lives. The involvement of the society is often a tremendous blow to their self-esteem. It is humiliating to be accused in their community of being either an abusive parent or so inadequate a parent that their children have to be removed from their care. Parents in these situations have to deal with difficult emotions such as anger and shame when they are often very ill-equipped to deal with them. They often become paralyzed in taking the positive steps necessary to achieve the return of their children and can be unfocused and disorganized. Quite often they do not proceed with a case or make progress in addressing the risk concerns in the linear fashion that professionals would prefer. This is particularly common in the earlier stages of child protection cases.
[34] I agree with the comments of Justice Heather L. Katarynych in paragraph [20] of her decision in Catholic Children's Aid Society of Toronto v. Tenisha S., where she wrote:
[20] I also kept in mind the approach of the Newfoundland Court of Appeal in Lundrigan Group Ltd. v. Pilgrim (1989) — that rules governing practice and procedure in the courts are guidelines for action, to be used in the furtherance of procedural justice. They are not inflexible "iron rails".
[35] It is particularly important in child protection matters that courts be flexible when dealing with timelines. The decisions made in these cases are arguably the most important decisions that our courts make. Courts need to be sensitive to the dynamics and challenges of the families that come before them. While subrule 33(3) sets out that the onus is on the parent seeking the extension order to show that the child's best interests require the extension, in the overwhelming majority of cases, it will be in the child's best interests to have the parents participate in the case and have their plans fully assessed.
[36] The threshold for establishing that it is in a child's best interests to grant an extension order should be very low. If the parent can establish that there is, as Justice Brownstone wrote, "an air of reality" to the plan, or another plan that they are supporting, then the parent will usually have established that it is in the child's best interests to grant the extension order.
[21] In paragraph 12 of Children's Aid Society of Toronto v. J.W., 2014 ONCJ 342, I wrote that, in essence, the extension test to late-file an Answer/Plan of Care is fundamentally similar to the test for summary judgment. If there is a genuine issue requiring a trial, an extension order should usually be granted.
[22] No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant. See: Children's Aid Society of Niagara Region v. S.C. and B.M.
[23] In M.J.P., I found that there was no genuine issue requiring a trial and denied the extension order for late-filing of the mother's Answer/Plan of Care. In J.W., I found that there was no genuine issue requiring a trial with respect to finding the children in need of protection, but found that there were genuine issues requiring a trial on the issues of disposition and access. An extension order was granted permitting the parents to late-file their Answers/Plans of Care – limited to the issues of disposition and access.
2.2 Status Review Applications
[24] The court's disposition options on this Status Review Application are set out in subsection 57(1) of the Act. This subsection reads as follows:
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
- 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
- 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
- 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
- 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).
[25] The statutory pathway on a disposition hearing (not involving a native child or a potential custody order) was set out by Justice Craig Perkins in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 as follows:
Determine whether the disposition that is in the child's best interests is 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.)
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.
If a society wardship order is made 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.)
[26] Subsection 57(2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the children before intervention under Part III of the Act. The evidence set out in the affidavit material sets out significant efforts to support the mother and the children both before and after the society's intervention under Part III of the Act.
[27] Subsection 57(3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention unless it determines that these alternatives would be inadequate to protect the child. Paragraph 2 of subsection 1(2) of the Act also requires the court to consider the secondary purpose of recognizing the least disruptive course of action that is available and is appropriate in a particular case to help a child, provided that it is consistent with the best interests, protection and well-being of the child.
[28] Subsection 57(4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.
[29] In determining the appropriate disposition, the court must decide what order is in the children's best interests. The court considered the best interests criteria set out in subsection 37(3) of the Act, in making this decision.
[30] In determining the best interests of the children, 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 children's perspective. See: Catholic Children's Aid Society of Metropolitan Toronto v. C.M..
[31] The length of time a child is in care is at all times a relevant consideration in determining placement when a child is found to be in need of protection. Time is considered from a child's needs and perspective. The time consideration, like all considerations in child protection matters, should be child-focused. See: Children's Aid Society of Toronto v. D.S..
[32] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the society's removal of the child from their care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..
Part Three – Delay
[33] The mother explained her default in filing an Answer/Plan of Care by deposing that she didn't understand the difference between a Protection Application and a Status Review Application. She thought that she had already completed her Answer/Plan of Care and there was no need to file a further pleading.
[34] This explanation was not plausible. The mother has been represented by experienced counsel throughout both the Protection Application and this Status Review Application. An appearance scheduled for February 27, 2017 was adjourned on consent because the mother still had time to serve and file her Answer/Plan of Care.
[35] On March 29, 2017, the mother sought and was granted an extension of time to file her Answer/Plan of Care. The mother was present at court. The court emphasized that she needed to file her Answer/Plan of Care to participate in this case. The mother was represented by counsel at this appearance. The court endorsed:
The mother will be given one extension only to serve and file Answer/Plan of Care by April 19, 2017.
[36] The children have been in the care of the society since March 16, 2016. The statutory time limit for L.S. to remain in care, set out in clause 70(1)(a) of the Act, has already been exceeded. The length of time that the children have remained in care is an important consideration in considering any extension motion to late-file an Answer/Plan of Care.
Part Four – The Mother's Plan to Have the Children Placed in Her Care
[37] The society is seeking an order of crown wardship. This is the most serious disposition that can be requested in a child protection case. As I stated in J.W., this means that the bar should be very low for the mother to be granted an extension order to present her plan, notwithstanding her delay in serving and filing her pleading. She only needs to demonstrate an air of reality to her plan.
[38] To determine if the mother's plan has any air of reality, it is helpful to look at the reasons for decision of Justice Curtis on the summary judgment motion and examine what, if any, progress the mother has made in addressing the protection concerns identified in that decision.
4.1 Housing
[39] Justice Curtis found on the summary judgment motion that the mother's home was not safe, sanitary, hygienic or suitable for the children to live in. She made the following comments in her decision:
I am quite concerned about the state of the home and the mother's open admission that were the children to be returned to her care, that she would return to that home with the children.
The mother does not seem to get it. She does not seem to get that the children cannot live there. She can live there but the children cannot live there with the physical state of the home.....
I want to be as clear as possible so the mother is not left with any confusion. Little children should not have ever been in that house.
It may be possible that the home can be fixed up and the relationship with the brothers can be fixed up; I do not know that may be possible, so I am not saying never, I am saying not the way things are right now.
[40] The mother deposed in her affidavit that her plan remains the same today as that presented to Justice Curtis. She seeks to have the children returned to her and they will live in the same home that Justice Curtis found unsuitable for children.
[41] It is of significant concern that the mother writes in paragraph 8 of her affidavit:
It has been my position throughout that the house is perfectly safe for my children. I disagree with the society's assertion that it is not safe.
[42] When a parent does not appreciate a risk concern, it is very difficult for them to take the necessary steps to adequately address it. The mother's statement reveals a lack of insight into this protection concern despite the society consistently telling her that she must address her housing issues and Justice Curtis making a finding that her home was unsuitable and unsafe for children.
[43] The evidence provided on this motion informs the court that the mother has taken no steps to address this serious protection concern. On her most recent visit to the mother's home, the society worker observed the following:
a) The mother lives in an attic of a home where there are two small rooms with a small faucet. The mother's brothers and father live in other rooms in the home.
b) The home was dark, cluttered, smelled damp and presented with a number of safety concerns. For example, there was no mesh at the windows and the windows had no safety latches. A suitcase, jacket and shoes were on the stairs to go up into the mother's rooms. There was an electrical cord running across the stairs but it did not appear to be plugged in.
c) The two rooms the mother occupies are small with no space for children to move around and play safely.
d) The mother's room was small and cluttered.
e) S.S. slept on a mattress in one of her rooms in the attic.
f) There was no fire alarm upstairs where the mother resides.
[44] The mother did not dispute any of this evidence.
[45] The mother failed to set out any steps taken to address this protection concern. She has not obtained new accommodation and has no plans to do so. She provided no evidence that she has addressed the safety hazards in her home identified by the society. She provided no evidence that her home is clean or sanitary. She merely claimed that everyone has been wrong about the state of her home since the beginning.
[46] The evidence is clear that nothing has changed with respect to this protection issue. Given the length of time that has elapsed since the state of her housing was identified as a major protection concern, without any action taken by the mother to address it, it is highly unlikely to change.
4.2 The Mother's Relationship with Her Brothers
[47] The mother has two brothers who live in her home. The brothers' poor relationship with the mother contributed to Justice Curtis' finding that the home was unsuitable to live in for the children. The children had been exposed to domestic violence and conflict between the mother and her brothers that had resulted in police involvement. Justice Curtis found the mother's relationship with the brothers to be, "unhealthy, toxic and perhaps even non-existent". She said:
Once again, the mother is entitled to put herself in that relationship and to stay in that relationship should she choose to, but she is not entitled to expose her children to that type of relationship.
[48] Justice Curtis was concerned that the mother's brothers would not meet with the society despite multiple requests. She said:
The fact that the Agency has not met either of the brothers is deeply concerning. The fact there was violent behavior by one of the brothers when the children were present is concerning. The fact that the mother admits that one of the brothers physically and sexually abused her as a child is concerning.
It is not a safe place for those children to be living in a place where those two brothers live particularly because even if all of those other things could be addressed, all of the risk of violence, risk of physical harm, risk of sexual abuse, the relationship the mother has with them is so toxic, is so unsuccessful, that they do not speak to each other though living in the same house and they communicate only through notes. And, in fact, when the Agency asked to meet the brothers, the mother basically threw up her hands and said, "I can't make that happen. You need to make that happen". There has been no meeting.
[49] The mother hasn't taken any steps to address this protection issue. Her plan remains the same as that presented to Justice Curtis at the summary judgment motion. Her brothers will live in the home with her and the children. The mother provided no evidence that her relationship with her brothers has changed for the better. She merely deposes:
We have some conflict as anyone would who lives in the same house.
[50] The mother's brothers have still not met with the society. It would be irresponsible for a court to return the children to this home without the society first being able to meet with the brothers and assess the current level of risk to the children. The mother has constantly been told that this meeting is necessary. The mother appears unwilling or unable to make this meeting happen, writing:
I did ask my brothers to contact the Society worker. I have no control over whether or not they have followed through.
[51] The evidence is clear that nothing has changed with respect to this protection issue. The risks posed by the mother's brothers living in the home with the mother and the children remain just as high now as they were when the summary judgment motion was granted. Given the lengthy passage of time without any action taken by the mother to address this risk concern, and her denial that it has ever been a risk concern, it is highly unlikely that this risk concern will change in the future.
4.3 Child Management
[52] Justice Curtis identified the mother's struggles in managing the children's behaviors and setting limits and routines for them as a protection concern in her decision. The mother's visits with the children were found to be "sometimes chaotic". There were also safety issues identified at the visits.
[53] Justice Curtis made an order that access be in the society's discretion. That order has remained unchanged.
[54] The mother has had only supervised access with the children since they were apprehended in March, 2016.
[55] The mother expressed a belief that the visits with the children are going better now that the society's worker isn't intervening as much as she was before. She provided no evidence (such as access observation notes) to support that statement.
[56] The evidence provided by the society is that there are many concerns about the mother's access, including: her ability to protect the children, recognize safety issues and problem-solve around common parenting issues. The mother requires continual reminders to focus on the children and does not seem to retain any parenting advice. The mother minimizes and dismisses instruction given to her by the society workers.
[57] The mother was observed to have difficulties placing boundaries on L.S. He often loses focus, wanders out of the access room and goes into other families' visits. Despite constant reminders, the mother often lets L.S. wander off on his own unsupervised. She often needs staff assistance to manage both children.
[58] The mother did not dispute any of the specific access observations set out by the society's worker. She also did not dispute the evidence of the society worker that she was dismissive of parenting instruction offered to her by society workers.
[59] There is no evidence that the mother's ability to manage the children has improved since the summary judgment motion was granted. There is insufficient evidence to support an order that access become unsupervised, let alone to support an order placing the children in the care of the mother.
4.4 The Mother's Insight into the Protection Concerns
[60] Justice Curtis found that the mother lacked insight into the protection concerns and did not appreciate what she needed to do to address them. This significantly reduces the likelihood that the protection concerns will be adequately addressed.
[61] The mother maintained at the summary judgment motion that there were no protection concerns. Justice Curtis stated:
For the mother to get her children returned to her care, she needs to make some changes in what is happening in her life. She is not going to be able to make those changes if she does not understand what the protection concerns are and if she does not take the steps needed to address those concerns. The Agency's evidence was that they repeatedly provided the mother with their expectations. The court provided the mother with the expectations in the supervision order that was made on 03 February 2016, but the mother has not taken the steps needed to make changes. She has taken some steps recently to take some programming but she did not comply with the supervision order, did not get D.S. to school and did not set up daycare for L.S.
[62] The mother completed the Beyond the Basics Program through Aisling Discoveries and the Circle of Security Program through the society. However, no evidence was led that participation in these programs has resulted in the mother gaining any new insight into the protection concerns or improving her parenting.
[63] Despite the consistent messages from the society and the court that she has serious issues to address, the mother continues to deny or minimize them. The mother acknowledges no protection concerns in her affidavit. She denies that there are any protection concerns related to her housing or her brothers living in the home. She does not set out how protection concerns will be addressed. She states that her Plan of Care remains exactly the same as the Plan of Care she presented, unsuccessfully, at the summary judgment motion.
[64] The mother has externalized blame for the children being in care on the society instead of accepting any personal responsibility. On February 7, 2017, she sent a lengthy email to the society in which she claimed that the society workers in this matter had engaged in "kidnapping", "unlawful detention/forcible confinement", "psychological abuse", "invasion of privacy" and "disorderly conduct". She stated that she was seeking redress on behalf of herself, her children and her adult brother, including to "never be disturbed, contacted, ever again by the society".
[65] The mother has offered no evidence of improvement in her insight into the protection concerns. If anything, her attitudes have become more entrenched.
4.5 Compliance with Supervision Orders
[66] In the event a court was contemplating returning the children to the mother, it would need to have some confidence that she would comply with a supervision order – the children would not be returned to her without one. Based on her lack of insight, historical breaches of supervision orders and her anger and resistance to the society, there is no evidence that the mother would comply with a supervision order.
[67] The children had initially been placed with the mother under terms of supervision. The mother breached the terms of that order and the children were apprehended. She breached the supervision term that the children were not to attend at her family home. She breached the term that D.S. attend school regularly and the term that L.S. should attend daycare regularly.
[68] The mother continues to provide sporadic cooperation with the society. Her brothers have not met with the society despite multiple requests. The mother attended at the Canadian Association for Mental Health (CAMH) for an assessment. She said that she only completed the intake process. She refused to sign a consent for the society to speak to CAMH. Although the mother attended the Circle of Security Program at the society offices, she refused to participate in the feedback meeting with the facilitators to review with them what she had learned – an important part of the program.
[69] The protection concern that the mother would not comply with a supervision order has remained unchanged since the summary judgment motion was granted.
4.6 Summary
[70] The mother's plan to have the children placed in her care has no air of reality. The protection concerns that existed at the time Justice Curtis made her decision continue unabated. The mother has not meaningfully addressed these concerns. Her plan remains unchanged. The risk to the children in returning the children to the mother remains unacceptably high. Given her lack of insight into the protection concerns, improvement is highly unlikely in the foreseeable future.
[71] If the mother was permitted to file an Answer/Plan of Care to have the children returned to her care, this would result in unnecessary delay for the children. The society would undoubtedly bring a summary judgment motion upon her filing her pleading. The case would be delayed to give the mother adequate time to respond, to hear the motion and to deliver the decision. The result of the summary judgment would be a foregone conclusion – the children would not be placed in her care. This delay is not in the children's best interests.
[72] The evidence is overwhelming that there is no genuine issue requiring a trial with respect to the mother's primary plan to place the children in her care.
[73] It is not in the children's best interests to delay their permanency planning any further. Their best interests do not require granting the mother an extension of time to late-file an Answer/Plan of care to have them placed in her care.
Part Five – The Mother's Alternate Plan for the Children to Be Placed with S.S.
[74] The court finds that there is an air of reality to the mother's alternate plan to have the children placed with her son S.S. The mother will be granted an extension of time to late-file an Answer/Plan of Care with respect to this plan. The court makes this finding for the following reasons:
a) The court is required by subsection 57(4) of the Act to explore viable family or community plans before making children crown wards.
b) Placement with a family member is a preferred and less disruptive alternative than making the children crown wards, provided that the placement is consistent with their best interests.
c) Where the society is seeking a crown wardship order, the parent has a very low bar to meet to demonstrate that the best interests of the children require an extension of time to late-file an Answer/Plan of Care.
d) Although the society asked the court to note the mother in default, it was not asking the court to make a crown wardship order at this time as it needs to properly assess the plan to place the children with S.S.
e) S.S. is 24 years old. He has demonstrated responsibility by successfully completing college.
f) The children and S.S. appear to have a close relationship.
g) It would be advantageous to the children to maintain their connection to their family, religion, culture and heritage. They will be able to do this if placed with S.S.
h) S.S. appears to appreciate the need to provide the children with a suitable housing environment. He has recently made arrangements to obtain his own accommodation. This accommodation needs to be assessed by the society.
i) The society is in the initial process of evaluating this plan. It is arranging for gradually increased access between S.S. and his brothers to assess the nature of their relationship, his understanding of the children's needs, his ability to meet those needs, and his commitment to this plan.
j) The best interests of the children require that the court receive evidence about this plan from S.S. and the mother, particularly if the society does not approve it. The court requires this evidence to properly assess if the plan will be in the children's best interests.
k) The evidence at this point indicates that there is a genuine issue requiring a trial with respect to this plan.
l) The merits of permitting the mother to late-file an Answer/Plan of Care for her alternate plan to place the children with S.S. outweighs any concern about delay. The delay will be mitigated by placing the case on the next Assignment Court list on August 10, 2017. If, upon further investigation, the society believes that new evidence shows that there is no genuine issue requiring a trial with respect to this plan, it may seek an earlier date to bring a summary judgment motion.
Part Six – The Mother's Access with the Children
[75] The court finds that there is also an air of reality to the mother's claim for access to the children. The mother will be permitted to serve and file her Answer/Plan of Care with respect to this claim, in addition to her claim to place the children with S.S. The court makes this finding for the following reasons:
a) Where the society is seeking a crown wardship order without access, the parent has a very low bar to meet to demonstrate that the best interests of the children require an extension of time to late-file an Answer/Plan of Care.
b) If the children are placed with S.S. as requested, there is a presumption that the mother will be entitled to access with them. The best interests of the children require that the mother be able to participate in the hearing of the access issue to assist the court in crafting the best access order for them.
c) Even if the children are made crown wards, the evidence led at this point by the society does not convince the court that the society would have succeeded on a summary judgment motion for no access. There is evidence before the court that could support a finding that the children's relationship with the mother is beneficial and meaningful for them. The children love their mother and enjoy her visits. They have an established relationship with the mother and see her regularly. The mother is consistent in visiting them. There is also a genuine issue, requiring further examination, as to whether severing this relationship, at their age, could emotionally harm the children.
d) Based on the evidence led at this stage, there also appears to be a genuine issue as to whether access with the mother would impair the children's future opportunities for adoption. While the mother is sometimes critical of the society and the treatment the children receive in care, no evidence was provided indicating that she has said things to the children to undermine their foster placement or treated the foster parents disrespectfully. The ages of the children is another factor to be considered by the court in assessing whether access would impair their future opportunities for adoption.
e) Even if the court finds that the mother has not met the test for access to a crown ward, the court may find that the children should be made access holders and granted access to the mother. This would give the children, and not the mother, the right to bring an openness application if, in the future, the society serves a Notice of Intent to place them for adoption. The court may determine that such an order would not impair the children's future opportunities for adoption. It would be helpful to have the mother participate at trial to determine if such an order should be made.
f) The benefits in permitting the mother to participate at trial on the access issue outweigh any concerns about delay.
Part Seven – Conclusion
[76] An order will go on the following terms:
a) The mother will be granted an extension of time until June 20, 2017 to serve and file an Answer/Plan of Care limited to the issues of:
i) Her plan to have the children placed with S.S., and;
ii) Her access to the children.
b) The mother's request to be granted an extension of time to serve and file an Answer/Plan of Care to have the children placed in her care is dismissed.
c) The case is placed on the Assignment Court list for August 10, 2017 at 2 p.m.
[77] The case is returnable on June 13, 2017 at 10:00 a.m. for a case conference.
Released: June 6, 2017
Justice Stanley Sherr
