WARNING

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

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

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,

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

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

(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.

(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: June 29, 2017

Court File No.: 590/10

Between:

Windsor-Essex Children's Aid Society Applicant

— and —

S.M. Respondent

Before: Justice Barry Tobin

Heard on: March 13, 14, 15 and June 5 and June 6, 2017

Written submissions of Applicant received: June 12, 2017

Written submissions of Respondent received: June 19, 2017

Reasons for Judgment released: June 29, 2017

Counsel:

• Stephen Hurley — counsel for the Applicant
• Brian D'Hondt — counsel for the Respondent

Tobin, B., J.:

1: Introduction

[1] In this child protection Application, the Society seeks an order that the child D.M., born …2014 ("D.M." or "child") be made a ward of the Crown, without access.

[2] The Respondent, S.M. ("mother") is the mother of the child. She seeks an order placing the child in her care subject to terms of supervision.

[3] The child's father was found not to be a parent within the meaning of the Child and Family Services Act ("Act"). He did not participate in this case.

2: Issues

[4] The issues to be decided in this case are:

a) What disposition order should be made in the best interests of the child?

b) If a Crown wardship order is made, what, if any, access should be granted to the mother?

3: Facts

[5] The mother had a child, I.M., born …2010. This child was placed in the care of the Society with the mother's consent. On October 18, 2011, I.M. was found to be in need of protection and was placed in the custody of her maternal grandfather. The bases of the finding as set out in the Plan of Care filed at the time were as follows:

a) The mother, then at 19 years of age, was low-functioning;

b) The mother was resistant to Society attempts to engage her in supportive services that would allow her to gain needed parenting skills;

c) The mother, and I.M.'s father made little progress in accessing services and gaining the necessary skills to care for a newborn; and

d) The maternal grandfather and a neighbour took on parenting responsibilities.

[6] The mother became pregnant with D.M. causing the Society to become re-involved with her.

[7] When the child was born the mother was living with the maternal grandfather and I.M.

[8] Although feeling depressed following the child's birth, the mother did not follow through with services, nor consult with her doctor.

[9] In accordance with Society requirements at the time, the mother's time alone with the child was limited to a few hours per day. Two of those few hours were to be at a community resource centre. She did not attend.

[10] The Society also required that the maternal grandfather and neighbour were to keep watch on the mother and child or be nearby.

[11] When the child was approximately six months old, slight lags in his development were observed. However, the mother was reluctant, although she eventually did, allow ChildrenFirst to attend at her home to undertake an assessment.

[12] The mother did complete a parenting program held at the Society.

[13] In the summer of 2015 she wanted to move from her father's home. The Society did not then support this plan.

[14] In September 2015 the maternal grandfather became ill and his health deteriorated throughout that month.

[15] The Society then agreed with the mother that she and the child could move from the maternal grandfather's home if she complied with a number of conditions.

[16] On September 28, 2015, the mother met with her Society worker to review and sign a voluntary contract. This voluntary contract required the mother, in part, to participate in supportive services and have a daily "informal support check-in" by a person approved by the Society.

[17] In early October 2015 the mother and child did move from the maternal grandfather's home to an apartment.

[18] Sadly, the maternal grandfather fell quite ill and had to be admitted to hospital. I.M. was left in the care of two neighbours. On October 18, 2015 the maternal grandfather died.

[19] In late October 2015 the Society worker reviewed the terms of the agreement with the mother to ensure she understood what was expected.

[20] Subsequent to the signing of the agreement, the mother did not meet the expectations contained in the voluntary contract as follows:

a) She did not attend the Ontario Early Years Centre despite being encouraged a number of times to do so by the Society worker and a Resource Consultant at ChildrenFirst;

b) She did not become involved with other recommended services in order to attend to her own health and wellbeing. The worker had directed the mother on many occasions to see her doctor in order to determine if something might be prescribed for her anxiety or depression;

c) She did not take the child to his doctor for immunizations. She would not accept assistance to have the child attend at the doctor's office for this purpose;

d) She did not abide by the provisions relating to the Society approved informal daily check-ins. Unapproved persons were signing in; and

e) She declined permission for a speech therapy and physiotherapy referral to be made. Though in January 2016, she agreed to allow a consultation with an occupational therapist and a speech and language therapist but did not want an assessment undertaken.

[21] While she was living in her own apartment, the mother had difficulty identifying to the Society worker the daily routine for the child and her. She struggled to answer questions relating to when the child woke up, what and when he ate, and how she played with him. The mother was observed not to be engaged with interacting with the child. The child needed stimulation of his motor development and speech development. The mother struggled to do this.

[22] Despite struggling with the death of her father, the mother told the worker she did not need any help.

[23] The mother had to be encouraged to follow recommendations regarding the child's feeding and drinking. These recommendations related to using developmentally appropriate techniques. Instead, the mother responded that the child was getting too big and that she wished he were a baby.

[24] The mother and Society entered into a second voluntary contract on January 7, 2016. It was substantially the same as the first one. The additional terms related to not allowing a certain person to be around the child.

[25] By early February 2016 the mother had still not attended with the child for his immunization shots.

[26] The mother avoided any dealings with the Society worker in late January and early February 2016. The worker was not able to see the child for approximately two weeks.

[27] On February 11, 2016, after two failed attempts to meet with the mother and child that day, the Society worker enlisted the assistance of the police to check on the child.

[28] Two workers and the police attended at the mother's apartment. After some delay the mother allowed them in. It was observed by the worker that a person not approved by the Society to be in her apartment was seen to be coming out of her bedroom.

[29] As a consequence of this incomplete engagement with the Society and services the child needed, he was apprehended.

[30] The child has remained in Society care since February 11, 2016.

[31] The mother attended a Plan of Care meeting on April 28, 2016. She advised the worker that she had registered for parenting classes and was on anti-anxiety medication.

[32] By Order of Justice Ross dated April 5, 2016 made in the temporary care and custody hearing, the mother was granted access a minimum of a three times per week for a minimum of two hours, supervised by the Society or by an approved third party.

[33] Access was scheduled to take place every Wednesday, Friday and Saturday. In May 2016 the mother stopped going to the Saturday access because they were too early for her. She also cancelled some weekday visits.

[34] By June 2016 the mother had not completed the parenting program because she stated it was located downtown and that she did not like the area and the strange people there. She also had stopped taking her medication and had not returned to her doctor.

[35] On December 5, 2016, the Society worker met with the mother at her home. Her mother and sister were also present. She advised the worker that she was not involved with services but planned to attend a parenting course and counselling. The mother was not able to explain why she would be attending counselling. In this meeting, the mother told the worker that at the upcoming January 2017 court appearance her son would be returned to her. She said, "I have worked hard, and I own no weapons. I am a good mom and a safe mom. I will get my son back." The worker explained to the mother that it was not necessarily the case that the child would be returned to her that day.

[36] At that meeting, it was arranged that Saturday access visits would start again but at noon. The mother was attending the Wednesday visits, usually with her mother, and the Friday visits with her sister.

[37] The mother did not request any further changes in access.

[38] The mother did attend a parenting program that ended March 9, 2017. She went to five sessions.

4: Finding the Child in Need of Protection

[39] When the hearing commenced, the parties filed a Statement of Agreed Facts related to protection findings only. On the basis of this document, I found the child to be in need of protection under clause 37(2)(h) of the Act. The bases for this finding were as follows:

a) The mother has cognitive delays. She is low-functioning intellectually;

b) The mother did not engage in services to help improve her skills;

c) The child has special needs that require a level of sophisticated parenting that is beyond the mother's ability;

d) The mother missed taking the child for immunization appointments; and

e) The mother did not want speech therapy or an assessment of the child to be undertaken.

5: Position of the Mother

[40] The mother argues that the Society did not meet its statutory obligation to assist her in reintegrating the child to her care. She was working with the Society by engaging in services required of her and abiding by the expectations contained in two voluntary contracts. When the Society intervened by way of a child protection application, it sought Crown wardship instead of a supervision order suggested in the voluntary contracts it might do. In the circumstances when the mother was involved with the requested services and complying with other expectations, the Society stopped giving the mother a chance to regain care of the child. Even after the apprehension the Society offered the mother no assistance that might have resulted in the child being returned to her care.

[41] The remedy the mother proposes is that the child be transitioned to her care and that to do this the ss. 70(1) and (4) timelines be extended - in up to six month intervals. In this way, the mother will have a chance, a fair chance, to demonstrate her ability to adequately care for the child. In support of this plan, the mother relies upon Children's Aid Society of Toronto v. K.B., [2007] O.J. No. 5090 (Ont C.J.).

[42] For the reasons that follow, I find that the Society did meet its statutory obligations in this case. If I am wrong in this finding, I interpret s. 70 as imposing a "hard cap" of no more than 18 months.

6: What is the Appropriate Disposition?

6.1 Legal Considerations

6.1.1 Statutory Pathway

[43] The Act provides a statutory pathway that is to be followed in a child protection application: See L.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] O.J. No. 119 and Children's Aid Society of Toronto v. T.L. 2010 ONSC 1376, [2010] O.J. No. 942 (SCJ).

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

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

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

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

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

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

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

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

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

[48] The court must consider what efforts the Society or another Society or person has made to assist the child before the intervention under Part III of the Act: See CFSA ss. 57(2). As set out above, in this case, the mother submits that the Society failed in its obligation.

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

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

6.1.2 Section 70 Considerations

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

[52] Also, as set out above, the mother argues that the timelines, within which a Society wardship order may be made can be extended beyond 18 months for a child under six years of age.

[53] Relying on Children's Aid Society of Toronto v. K.B. [2007] O.J. No 5090 (Ont CJ.), counsel for the mother argues that the Court can either:

a) reset the statutory time limits where the Society has failed to take all reasonable steps to help the child safely reintegrate into his family; or

b) keep extending the time limits indefinitely as long as each extension is not more than six months in duration.

[54] With respect, I prefer the position taken by Mitrow J. in Children's Aid Society of Middlesex v. O.(M.), 2014 ONSC 2435 at paras 28 to 33 where he states:

28 The Act specifically provides a maximum period of society wardship; this directive makes clear that children are not to languish as wards in society care.

29 A liberal interpretation of s. 70(4) results in a situation where society wardship can continue, via a six month extension, or perhaps multiple six month extensions as some cases have suggested, with no finite limit for society wardship.

30 If the legislature had intended to allow for "the period" set out in s. 70(1) to be extended by more than six months, then that could have been stated in s. 70(4).

31 I find support that s. 70(4) creates a finite period of society wardship in the case of L. (R.) v. Children's Aid Society of Niagara Region, 2002 CarswellOnt 4262 (Ont. C.A.). In that case, the Court of Appeal for Ontario was dealing with an appeal in a protection case that involved different issues than the case at bar. However, in the course of its judgment, the Court found it appropriate to set out the intended course of child protection proceedings under the Act.

32 The Court examined the various steps and time limits under the Act. In relation to s. 70, the following is stated at para. 5:

5.... The Act stipulates in s. 70 that the court shall not make an order that results in the combined total period for a child being in the Society's care that exceeds twenty-four months or, pursuant to the recent amendments to the Act, in the case of a child under the age of six years, twelve months. The time limit may be extended by an additional six months. This time limit includes any interim care orders made during an adjournment of a protection proceeding. It excludes the time to dispose of any appeals from orders that have been made. Society wardship therefore gives the Society a finite time within which to determine if the best interests of the child lie with being returned to a parent or with his or her extended family. (emphasis in original).

33 Some of the cases supporting a liberal approach to the interpretation of s. 70(4) do so on the basis that a child's best interests cannot be curtailed by arbitrary time limits. In my view, the preferred interpretation of s. 70(4), and one that is also consistent with the decision of the Court of Appeal for Ontario in Children's Aid Society of Niagara Region, supra, is that a child's best interests, in relation to an order of society wardship, are served by making such an order within the finite time prescribed by s. 70.

See also: Catholic Children's Aid Society of Toronto v. B.(N.) 2010 ONSC 615, 2010 O.J. No. 300 (Ont. S.C.J.) at para 8 and Children's Aid Society of Toronto v. G.(L.) 2015 ONSC 3706 at para 48.

[55] I am of the opinion that ss. 70(1) and (4) restrict the total period that a court can make a Society wardship order to 18 months for a child under six years of age.

[56] S. 70 of the Act allows parents time to acquire the skills needed to adequately care for and meet the needs of his or her child. After that time expires, the child's need for permanency demands that no further period should be given to demonstrate parenting skills. A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernible from a parent's evidence that they face some better prospects than what existed at the time of the Society's removal of the child from their care and has developed some new ability as a parent: See Children's Aid Society of Toronto, v. Robin H. and Michael N., [2000] O.J. No. 5853.

6.1.3 Crown Wardship Without Access

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

A Crown wardship order is the most profound order that a court can make. To take someone's children from them is a power that a judge must exercise only with the highest degree of caution, and only on the basis of compelling evidence, and only after a careful examination of possible alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T. (1996), 90 O.A.C. 5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.). ... It is important not to judge the parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent of extremely limited potential, provided that the standard used is not contrary to the child's best interests. See Catholic Children's Aid Society of Hamilton v. J.I., I.M. and V.I.O., 150 A.C.W.S. (3d) 406, [2006] O.J. No. 2299, 2006 CarswellOnt 3510 (Ont. Fam. Ct.).

6.2: Services Provided

[58] When the Society became aware that the mother was pregnant with the child, it offered to support her during the pregnancy. This initial offer was not taken up by the mother. In July 2014, the maternal grandfather and mother did advise the Society worker that he and she were then prepared to meet with the Society. A file was opened during her pregnancy due to the mother's cognitive limitations and delays and because of her history of involvement in relation to I.M.

[59] After the child was born, the Society offered many services to the mother and child. A Society worker was assigned to assist them. The mother was encouraged to engage with service providers to address the child's needs, including developmental delays and socialization. The mother did participate in a limited manner with some service providers, including Healthy Babies and ChildrenFirst. The Society also attempted to help the mother take the child to his doctor for immunization injections.

[60] The mother did attend a parenting program offered by the Society. She signed voluntary service agreements with the Society.

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

"c: provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of the children."

[62] Even after the Society's intervention under Part III of the Act, the Society continued to provide services. The mother attended a plan of care meeting. The mother was provided assistance at access visits.

[63] On her own, the mother did attend a parenting program.

[64] I agree with Mr. D'Hondt that a Society should not be able to delay a case and at the same time not provide services and then argue that the mother ran out of time for the court to order a Society wardship order. However, the evidence does not support a finding that the Society abandoned or failed to try and help the mother. As set out earlier in this reasons, the Society made known to the mother what services could help. The mother struggled to engage in supportive services. The mother had an obligation as the parent seeking the return of the child to participate in recommended services. However, I accept that she tried to do so to the extent she could.

[65] I am satisfied that the Society met its mandate as required under ss. 15(3) of the Act.

6.3 Plans of Care

6.3.1 The Society's Plan of Care

[66] The Society's Plan of Care is that the child be made a ward of the Crown without access to the mother.

[67] The Society will provide ongoing services to assist the child. He will be provided with the opportunity for socialization and extra-curricular activities. His academic needs will be met. His developmental needs will be assessed and met. ChildrenFirst will continue to assist in this regard. The child's medical needs will continue to be met through his family doctor.

[68] A children's services worker is and will continue to be assigned to the child with the responsibility to ensure that his needs are met, including making required referrals.

6.3.2 The Mother's Plan

[69] The mother's plan is for the child to be placed in her care. With assistance, she believes that she can properly care for him, that he will be safe and grow up to be a beautiful person.

[70] She will have various family members help her, but not on a 24 hour per day basis. She recognizes that whatever deficiencies she has may not allow her to provide care as well as other people, but that she can do so without putting her son in danger. She is ready to participate in reasonable services that the Society agrees are necessary for the child's wellbeing.

[71] The Society attempted to find family members who would be willing to assist. The worker learned from the mother's paternal uncle that there were no family members identified and a family group conference was not scheduled.

[72] After the protection application was started, the worker initiated a kinship finder request. While there are two potential kinship families interested in caring for the child, no specific plans were put before the Court.

6.4: The Child

[73] D.M. is now 34 months old and has been in the care of the Society since February 11, 2016, a period of approximately 17 months. Almost one half of his life.

[74] He has been in the same foster home since February 18, 2016.

[75] When first placed into this foster home he was unable to walk on his own. He was not using any words and preferred drinking from a bottle. He had sleeping issues.

[76] He is described by the foster mother as having a loving and outgoing temperament. He has no fear of strangers and will go with or to anyone. She also describes him as a compassionate child.

[77] Since his placement in Society care, the child has received services from a Children's Services' worker and ChildrenFirst. The latter provides a resource worker, speech and language pathologist and an occupational therapist. For a brief period the child was provided with physiotherapy services through ChildrenFirst. That service ended when the physiotherapist retired and has been replaced by the occupational therapist.

[78] While in care and with the attention to his needs the child has made some gains.

[79] Early progress was made in establishing a sleeping routine although this has been difficult for some time. Some improvements were seen in his ability to play and become more social, interactive, and affectionate.

[80] By early April 2016 he was able to stand independently for a few seconds.

[81] The child's speech delays are of significant concern. He has been seen by the speech and language pathologist from ChildrenFirst since May 2016. The pathologist's initial assessment was that the child's communication skills were below age expectations. He still has difficulties. He is unable to say words. It appears that he can only make sounds which are associated with objects or ideas. The therapist continues to work with the child on teaching him signs for communicating, using sounds for communicating, and helping him understand and follow some directions.

[82] The child had his hearing tested to see if his lack of language and verbal skills was due to hearing loss. It is not.

[83] It is the therapist's plan to continue to work with the child and the foster mother. She provided the foster mother with strategies designed to help the child develop some communication skills. This includes encouraging the child to use signs to associate signs with sounds, to read books and sing songs that will allow the child to fill in the blanks.

[84] At this point the child does not call the foster mother anything though he is observed to be attached to her and secure in his placement.

[85] His lack of communication skills causes the child some frustrations. He can become aggressive.

[86] Overall, the child's development in the important areas of communication, gross motor skills, fine motor skills, problem solving, and personal and social skills is well below what is expected for a child of his age. He has no expressive language. D.M. is a child who will require specialized services for some time. He will need a parent with sophisticated and patient parenting skills to nurture and assist him in developing.

[87] The mother observes that through access it appears that the child knows who she is and relates positively to their visits.

6.5: Mother's Access with the Child

[88] The Society called three access supervisors who gave evidence as to their observations of access between the mother and child.

[89] There was affection displayed by the mother to the child and it was reciprocated.

[90] The mother was observed to need direction regarding some aspects of the child's care including feeding and playing.

[91] The mother's sister and mother attended with her at access on a number of occasions. Ms. Wheeler, one of the access workers, observed that the mother has not been able to learn from the directions provided to her. She needs the same or similar directions to be provided many times. This worker also observed the mother's sister to be helpful to her in part by providing suggestions. But those suggestions are mostly ignored by the mother.

6.6: Assessment of Mother's Plan

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

a) It is clear that she loves D.M.

b) She is motivated to try to care for him.

c) She recognizes that she will need assistance in caring for the child.

d) She does not smoke marihuana.

e) She has attended at most access visits.

f) She has taken two parenting courses.

g) She has enlisted the assistance of her mother and sister to help her.

h) She is prepared to remain involved with service providers, including the Society.

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

a) The cognitive abilities of the mother affect her ability to parent. She has difficulty retaining or integrating skills taught. The mother recognizes her challenge in this regard.

b) While the child was in her care she did not engage in needed services for the child. She did not take him to his doctor for immunization shots. The reasons had to do with her inability to get there. She avoided dealing with the Society worker by not allowing the worker to see the child between January 28, 2016 and February 11, 2016. She did so even knowing that she needed the assistance of the Society to adequately care for the child.

c) She did not engage with the Ontario Early Years Centre, despite encouragement and offers of support to do so. She did not want the child assessed by a physiotherapist or speech and language therapist. She did not engage in services to address her own health concerns being anxiety and depression. One of the expectations under the voluntary contract was to allow and keep track of persons approved to provide her with assistance. She allowed persons not approved to attend with her.

d) The mother exhibited little progress in her ability to meet the needs of the child while he was in her care. She has not demonstrated any greater abilities through her attendance at access.

e) The mother's proposed plan involves a number of people whom she says are willing to provide her with assistance. Yet, of the eight people she proposes will help her she has not asked six of them. Their respective willingness and ability to care can therefore not be assessed.

f) The Respondent's mother wishes to help but she too is not readily available given her own needs and her distance from the mother's home.

g) The child's needs are significant as described in these reasons. He needs a parent who is sophisticated, committed, and patient. These skills have not been demonstrated by the mother over the 18 months the child was in her care and the time he has been in Society care – a period in excess of 16 months.

[94] The time limit provided for in ss. 70(1) of the Act has passed. The mother was not able, within this ss. 70(1) timeframe, to integrate within her parenting skills those necessary to adequately care for and meet the needs of the child. The child will have been in care for 18 months on August 10, 2017. It is not in the child's best interests to extend the ss. 70(4) timeline. There is insufficient evidence that the difficulties experienced by the mother in elevating her parenting skills such that she could adequately care for the child within the next 2 months. Further delay of this matter is not in the child's best interests.

[95] Placing D.M. in the care of the mother, having regard to her demonstrated and admitted abilities and her weak plan of care, would be tantamount to an experiment.

[96] I also take into account that the mother had another child, I.M., born …2010. She is not in the mother's care because of child protection concerns. The mother's past parenting of I.M. is important to consider. Her parenting skills have been less than adequate for a considerable period of time. She has not been able to demonstrate that her ability or willingness to access services and gain and retain necessary caregiving skills have improved.

6.7: Assessment of the Society's Plan

[97] It is the Society's plan that the child be made a ward of the Crown and placed in its care. It will seek to place the child for adoption. The Society is exploring a potential adoptive placement with a relative. It will provide the child with the opportunity for long-term security and stability.

6.9: Section 37(3) Considerations

[98] When taking into account the ss. 37(3) considerations related to best interests I find as follows:

1. The Society's plan will better meet the child's physical, mental, and emotional needs. It better takes into account the child's level of development.

2. The mother's plan of care will better meet the importance of the child's need for a positive relationship with the parent. Unfortunately, the mother has not demonstrated that her plan is a secure one.

3. The Society's plan to place the child for adoption will better meet the child's need in the long term for continuity of care.

4. For the reasons described above the merits of the Society's plan to place the child for adoption would better meet the best interests when compared to the risk associated with returning the child to the care of the mother.

5. The Society's plan will better meet the needs of this child to ensure that a permanent plan can be put into place.

6. The Society's plan of care better meets the best interests of the child in removing him from the risks of harm that justified finding the child to be in need of protection.

7. The merits of the Society's plan for the child's care will better provide for his protection, well-being, and best interests than will the Respondent mother's plan.

7: Parenting Capacity Assessment

[99] Dr. J. McGrory undertook a parenting capacity assessment and released a report dated August 22, 2016.

[100] Counsel for the Respondent mother did not seriously challenge either the facts upon which the report was based or the methodology employed to complete it.

[101] Dr. McGrory noted that S.M. appears to be highly motivated to care for D.M. He also pointed out that there are significant concerns that will adversely impact her ability to parent.

[102] He described the Respondent mother as having significant global cognitive limitations which are consistent with an Intellectual Disability. He observed that as a result, the Respondent mother experiences substantial problems with learning, comprehension, problem solving, and memory. Her insight and understanding of her limitations is compromised which is why she struggles to benefit from intervention.

[103] Dr. McGrory also concludes that the Respondent mother struggles with mild to moderate levels of emotional difficulty characterized by anxiety and depression. This is a contributing factor to her difficulty utilizing resources and supports, as well as attending appointments.

[104] Of significance, Dr. McGrory notes that the Respondent mother's parenting skills are very weak. She struggles to provide appropriate levels of structure and stimulation to the child. Her response to interventions from supportive service providers has been poor.

[105] Dr. McGrory concludes as follows:

"Overall, the pervasiveness and persistence of the above concerns coupled with D.M.'s higher needs suggest that the likelihood of S.M. being able to adequately parent her child on a sole, full-time basis is extremely guarded. In my opinion, there are no other services that would adequately address the above concerns in the immediate time frame."

[106] The parenting capacity assessment opinions of Dr. McGrory accord significantly with the evidence of those who have observed and worked with the mother and the child.

8: Disposition Order

[107] I have taken into account the positive and negative aspects of the mother's plan of care, the subsection 37(3) considerations, the Society's plan, the paramount and other purposes of the Act and I find that it is in the best interests of the child be made a ward of the Crown.

[108] I was not presented with any family or community placement plans to consider in determining the least disruptive alternative that is consistent with the child's best interests.

9: Access

9.1 Legal Considerations

[109] When a court makes a Crown wardship order access is not to be ordered unless the relationship between the parent and the child is beneficial and meaningful to the child and that the ordered access will not impair the child's future opportunity for adoption.

[110] If access is ordered it must be in the child's best interests.

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

[112] A beneficial relationship is one that is advantageous. A meaningful relationship is one that is significant. It is not enough that there are some positive aspects to access. Access must be significantly advantageous to the child. It speaks of an existing relationship, not the possibility of a future relationship: see Children's Aid Society of Niagara Region v. M.J., [2004] O.J. No. 2872 (ONSCJ).

[113] The person must show more than the child has a good time during visits: see Children's Aid Society of Peel (Region) v. S. (M.), 2006 ONCJ 523, [2006] O.J. No. 5344 (OCJ). More is required than just a display of love between the person and the child.

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

9.2 Application of Legal Principles

[115] The evidence adduced by the mother with respect to access was unchallenged but was scant.

[116] The mother's evidence is that the child knows her and reacts positively to access visits between them. She believes that he will be upset if contact between them is discontinued.

[117] On this evidence I am unable to find that the Respondent mother has met her onus of demonstrating that access in the circumstances of this case would be both beneficial and meaningful to the child.

10: Order

[118] An order will go making the child a ward of the Crown and placed in the care of the Windsor-Essex Children's Aid Society.

[119] There shall be no access to the child by the Respondent.

[120] I know that given her feelings for the child and her desire to have him placed in her care the decision of this court will be a most difficult one for her. I recognize and appreciate that she has tried hard to demonstrate that she could meet D.M.'s needs.

[121] It is hoped or rather expected that the Society will continue to allow the Respondent mother to have some contact with the child while efforts are made to place the child for adoption. It is also hoped that the Society will explore with S.M. and any proposed adoptive parents the possibility of there being an agreement for openness.

[122] I wish to commend and thank counsel for the professional and sensitive manner in which this case was presented.

Released: June 29, 2017

Original signed and released

Barry M. Tobin Justice

[1] The statutory findings and a finding that the child is in need of protection were made on consent on the first day of the hearing.