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 26, 2017

Court File No.: C71709/14

Between:

Children's Aid Society of Toronto, Applicant,

— AND —

T.R. (mother) J.A. (father) Respondents.

Before: Justice Debra Paulseth

Heard on: June 5, 6, 7, 8, 9, and 12, 2017

Reasons for Judgment released on: June 26, 2017

Counsel:

• Ann Velez — counsel for the applicant society
• Michael Roberts — counsel for the respondent/mother
• No appearance by father
• Sara Wunch — counsel for the Office of the Children's Lawyer, legal representative for the child

Paulseth, J.:

A. Overview

[1] This case is about B.-J.M.R. (B-J), born on […], 2009. Her parents are T.R. (mother), born on […], 1977 and J.A. (father), born on […], 1975. Mother and father separated when B-J was about 4 months old. Mother became addicted to oxycontin in her early twenties and has struggled with related issues since then, including mental health concerns, domestic violence, and the edges of criminal activity. Mother and father also have a son, R.A., born […], 2006 who now resides with the father in New Brunswick. Mother has a third, much older teenage child who lives with his father in New Brunswick.

[2] Child protection agencies in New Brunswick received referrals about mother from 2009 until 2012 for drug related parenting concerns, but never activated a child protection file.

[3] In September of 2014, mother reported to police that she had been abused by her current partner, P.F.. She said that Mr P.F. had also choked B-J, who had witnessed the altercation. The police contacted the Children's Aid Society of Toronto (the society). Mother denies these allegations and the criminal prosecution was eventually dismissed. She asked that Mr P.F.'s mother, J.F., care for B-J. She said that B-J had known Ms J.F. for two years and was comfortable with her and her husband, P.F..

[4] On the return of the Society's Protection Application on October 1, 2014, a temporary supervision order placing B-J with the F. was made by the court. She has remained there ever since.

[5] On February 12, 2015, the court made a finding in need of protection pursuant to subsection 37(2)(b) of the Child and Family Services Act (the Act). This is the subsection dealing with the risk of physical harm to a child. The protection findings set out in the endorsement of Justice Sherr were based on severe domestic violence and mother's struggle with drug usage. A disposition in the child's best interests was made which continued B-J's placement with the F. for 6 months with supervision by the society and conditions relating to mother's treatment. There was a prohibition against exposing the child to domestic violence. A separate access hearing was held on April 24, 2015, and an order was made for twice weekly visits with mother, one in the society office and another on Saturdays in the community subject to conditions relating to the mother's counselling, methadone treatment, and cooperation.

[6] By Status Review Application, dated July 22, 2015, the Society sought an extension of the supervision order for a further 6 months with the F., based on allegations of mother tampering with her urine screens and failure to attend counselling. Mother filed an Answer/Plan of Care, disputing some facts and consenting to a short extension of the supervision order.

[7] In late 2015 and early 2016, family group conferencing was engaged and mother appeared to be making good strides towards a reintegration of B-J into her home.

[8] Mother has a new partner, Mr L (Mr L), as of early 2015, who has a lengthy criminal record and together they have had some police involvement. Mr L has a longstanding history of drug addiction.

[9] In the spring of 2016, mother and Mr L stopped their methadone treatment. The society did not learn about this until several months after the fact.

[10] Mr and Mrs F. are not able to care for B-J on a long term basis. They are in their 70's. Other possible plans with Mr L's mother or the child's father in New Brunswick have not materialized. The society located the mother's half-sister in Calgary and Alberta protection services is investigating this possible plan.

[11] By an Amended Status Review Application, dated January 26, 2017, the society is seeking an order of crown wardship. The society is alleging recent drug use by the mother and Mr L and failure to engage with the society and treatment resources.

[12] The mother is opposed. She and Mr L recently resumed their methadone treatment. She is seeking a return of her daughter without terms of supervision or, in the alternative, a return of her daughter with a supervision order. If there is an order of crown wardship, mother wants access and wants the access terms reviewable in 6 months.

[13] B-J would like to go home to mother.

[14] Father was served and has been noted in default on March 27, 2017. The F. were served and did not file an Answer.

B. Issues

[15] On a Status Review Application, there is a twofold approach. Firstly, whether the child continues to be in need of protection and secondly, what order is in the child's best interests.

[16] There are several legal options available to the court in this matter: a return to mother with or without supervision by the Society, society wardship or crown wardship.

[17] If the court makes an order for crown wardship, then access by and to the child has a separate set of factors to be considered.

C. Evidence in the Hearing

[18] The Society relied upon the following witnesses who prepared affidavits for their evidence in chief and were available for cross-examination:

• 3 employees of DriverCheck, who were the collectors of urine specimens from mother and Mr L for drug testing,
• society intake worker and 3 family service workers,
• 1 access worker,
• Mrs J.F., and
• The kin support worker for Mr and Mrs F..

[19] Expert reports were filed from Dr Melissa Snider-Adler and the supervisor/trainer of the specimen collectors regarding urine testing. Both also testified.

[20] Business records relating to the police and probation criminal records of Mr L., access attendance records, school reports for B-J, urine collection reports, methadone clinic records, and a past conduct report about mother as a parent in New Brunswick were filed as evidence.

[21] Mother and Mr L testified. Mr L's mother was supposed to testify but did not.

D. Findings on the Evidence

[22] The finding in need of protection was made on default of the parents who did not file Answers. The evidence that was filed by the society and unopposed by the parents included an affidavit from the intake worker who observed mother's bruises at the police station on September 8, 2014. Mother had a red mark on her neck, a scratch on her right arm, and a bruise under her eye. B-J told the worker that Mr P.F. choked mother and tried to choke her. Mother gave this information in a video statement to police. Mother later changed her story to say that there had been an altercation but said she was the "assaulter". She said that they had an argument about Mr P.F. going out with friends. She maintained that neither she nor the child had been assaulted. B-J was interviewed by police with the society intake worker present and repeated her previous statements and said she was "scared" of Mr P.F..

[23] After the interviews, the intake worker offered to make a referral to a shelter for mother and child. Initially mother was agreeable but changed her mind, because of an appointment she had the next day and she didn't want the child to miss school. She suggested that Mrs J.F. could care for the child.

[24] Mother said she started using oxycontin about 15 years ago, when she was growing up in New Brunswick. She said that the father introduced her to oxycontin, cocaine, and percocets. When his doctor cut him off percocets, they both went on methadone. She started methadone treatment about 10 years ago.

[25] Mr P.F. and his family are from New Brunswick and he was a close friend of mother's previous partner, the father, Mr J.A.. She had separated from the father before B-J was born. She later said that she and the father separated when B-J was about 4 months of age. Father was in jail 4 times while she was with him, and was incarcerated on and off for three years for drugs and assault on mother.

[26] Records from New Brunswick Department of Social Development indicate that there were twelve child protection referrals after B-J was born, primarily relating to borderline neglect by mother and one substantiated event of domestic violence by the father on the mother. Mother was reported to have a longstanding drug addiction problem. She tested positive for cocaine just before the child's birth and B-J was born with withdrawal symptoms. She tested positive for cocaine in June of 2009, November and December of 2011. Other reports that did not warrant opening a child protection file in New Brunswick were:

• Both B-J and her older brother missed several immunizations;
• An altercation between mother and father resulted in mother having a bump on her cheek from a thrown radio; father was then incarcerated for more than 4 months for breaching his probation order and drug related offences;
• Mother reported she was afraid as someone had burned her car in her driveway;
• Mother was reported by a professional to be acting erratic and speaking in an incoherent manner; mother said she was off her meds and on a reduced methadone dose;
• B-J's older brother was arriving very late to school regularly and not being picked up on time; on more than one occasion he waited for two hours to be picked up;
• Mother was picked up by police for shoplifting clothes and she had a child with her; she was later released without charge.

[27] Mother testified that at that time she was having challenges raising both B-J and R.A., the older brother. On two occasions R.A. hurt B-J; one of which resulted in a black eye for B-J. R.A. had behavioural issues and was tested for autism. When father was released from prison in 2012, he took over full time care of 7 year old R.A., while mother went to Costa Rica with P.F. and his parents, the F., for 3 months. She stopped her methadone then, without medical advice, and went "cold turkey". In later evidence about her relationship with P.F., mother testified that it had "gotten physical before" between them, including altercations while they were in Costa Rica.

[28] Mother, B-J and P.F. came to Toronto in October of 2013. They stayed with Mrs J.F. three times for various lengths of time. In the spring of 2014, mother decided to return to the methadone doctor. She would not sign a consent for release of information from her methadone doctor, Dr Bordman to the society.

[29] In the fall of 2014, mother said she was seeing a psychiatrist, Dr Deif, and had been taking anti-anxiety medication for the past 6 years. She was looking for a new psychiatrist because she didn't like this doctor.

[30] By September 15, 2014, mother said that she had been using opiates in March of 2014 and that she had started the methadone program recently, which was why she had to go twice a week for urine tests.

[31] The intake worker observed one visit between mother and child and it was very positive.

[32] From the fall of 2014 until the early spring of 2016, the society was working with mother to have B-J returned to her care, by:

• Monitoring her work to address her addiction. The society unsuccessfully tried to obtain mother's consent to speak to her methadone doctor, Dr Boardman. Mother only wanted to give prospective consent not for past information. She said she went to Dr Boardman from June to September of 2014. Mother then changed to Dr Lau from January to April of 2015 but would not give her consent for the family service worker to speak to Dr Lau in early 2015. She left Dr Lau because Mr L had a dispute with Dr Lau's secretary. In the witness stand, she said she had a problem with the secretary who told her that her urine sample was too cold and dumped it out. In late spring of 2015, she switched to Dr Markus and by the summer of 2015 was providing clean urine screens;

• Making referrals for mother for counselling. Referrals were made to the Scarborough Women's Centre, Homestead/Salvation Army for housing support and relapse prevention, and finally to an individual counsellor with Jean Tweed. Mother did not follow through to completion with any of these programs and did not contact the counsellor. In February of 2015, mother said she was through with Dr Deif and not getting another psychiatrist;

• Ensuring that Mr P.F. was addressing his own issues. He was reported by his mother, Mrs J.F., to be incarcerated in New Brunswick. Mother said he was caught with amphetamines, trying to make some money for her and B-J for Christmas. Mother met her current partner, Mr L (Mr L) at the pharmacy by Dr Lau's methadone clinic in early 2015;

• Ensuring B-J's needs were being met. The society wanted B-J to participate in a trauma assessment at Aisling Discoveries, a children's mental health agency. Unfortunately, mother delayed so long in completing the paper work that the assessment was not possible;

• Monitoring her access and providing a family access support worker to assist with access; and

• Writing support letters for housing which was an ongoing issue and for a metro pass for mother to assist her in attending treatment, the methadone clinic, and access.

[33] Until the summer of 2015, mother's access visits were a significant issue. She would be late or not attend at all. Scheduled for twice a week, mother was consistently late in October and was asked to arrive 30 minutes early to ensure that B-J was not kept waiting. This tactic worked for a few weeks and then she failed to attend for most of December of 2014. She had gone to New Brunswick. The pattern of lateness was repeated in January of 2015. The society asked her to come an hour early, so they could contact Mrs J.F. when mother arrived to ensure the child was not removed from school unnecessarily. Twelve visits were cancelled from January to March of 2015 due to mother's inability to attend on time.

[34] The family access support worker noted that mother's inconsistency was the largest barrier to improving and maintaining her skills in the visits. At times, mother would appear scattered and dazed, slurring her speech, talking and moving around fast or just acting pre-occupied. On occasion she said she had missed getting her medication because she had not gotten to the doctor's on time before her visit.

[35] In the months leading up to April of 2015, mother experienced numerous break-ins at her apartment at M[…] Road. She did not tell the Society about these until later. Mother believed they were people seeking money that P.F. owed them. On one occasion, a threatening note was left on B-J's bed saying "you're dead".

[36] Mother's housing continued to be precarious. Originally, mother, B-J and P.F. stayed off and on with the F.. They moved to an apartment on the Danforth in between these stays and in 2014 moved to M[…] Road. On April 1, 2015 she moved to A[…] with Mr L. and on December 30, 2015 they moved to a townhouse at F[…].

[37] Justice Sherr attached a number of conditions to mother's access in the order of April 24, 2015. She started with visits twice a week, the first in the society office and the second on Saturdays in the community with only the exchanges to be supervised. If mother could maintain for 6 weeks a regimen of attending all visits on time, providing proof that she was engaged in counselling at Scarborough Women's Centre, sign all necessary consents, and permit home visits, then her Saturday visits could increase to 4 hours and she could take the child to her home.

[38] Mother was not able to accomplish these pre-conditions until October of 2015. She was constantly late for visits. The worker found a glass pipe at mother's home in July of 2015. Mother at first said she collected them and later said they were for Mr L who had a prescription for medical marijuana. In the witness stand, mother said it was a "decorative piece of art". She never followed through on the counselling, failing to attend the Scarborough Women's Centre for any material length of time but was on the waiting list for Homestead by the end of September of 2015. Her weekly urine screens from April to September of 2015 were clean. The Society agreed to increase her access on Saturdays to 4 hours and permitted her to take B-J home during that time.

[39] By November of 2015, mother's access was going well. The family access support worker noted increased consistency with her attendance over a few months and mother was helping B-J with homework. The society recommended to the court that mother's Tuesday access could be moved to the community.

[40] On November 30, 2015, the family service worker made a scheduled home visit. Mother was not home, which was a frequent problem. The worker observed the front door to be damaged with no handle and parts covered by plywood. The mother later stated that the fire department had broken down the door but there was no fire damage and she wasn't sure of the problem. Later in May of 2016, mother told the worker that the police had been looking for a friend of Mr L.'s. In the witness stand, mother said police were looking for cocaine.

[41] The plan developed for overnight visits of B-J at mother's home. The first overnight was scheduled for December 29 to 30, 2015, with the worker planning on a home visit on December 30th. Just before attending at the home, the worker received a message from mother that she had moved to a townhouse at F[…]. She had not advised the society of this move in advance. When the worker went to the home, B-J seemed comfortable. Unfortunately, B-J found a gun in the couch during this home visit. Mother said it was a pellet gun and the worker asked her to get rid of it.

[42] As a result of the damaged door, the glass pipe, and the pellet gun, the visits were moved back to the society office until a criminal record check could be obtained on both mother and Mr L. Mother did not attend the first office visit and she and Mr L were late for the following three visits.

[43] A Family Group Conference was held on February 26, 2016. The family members participating included: mother, Mr L, Mr L's mother Ms M.S., Mr and Mrs F., and the father and his wife (by phone). A plan to return B-J at the end of the school year was developed but dependent on criminal record searches for both mother and Mr L. Mother agreed to:

• Have weekly clean urine screens with proof by showing 6 out of 9 weekly carries;
• Keep away from people who use or sell drugs;
• Participate in a weekly group therapy at North York General; and
• Attend a harm reduction program.

Mr L agreed to:

• Have weekly clean urine screens;
• Act as an emotional and financial support to mother; and
• Help B-J with math homework during the visits.

[44] Mr L's mother, M.S. was to be the first emergency contact, followed by Mr L and the F..

[45] On May 9, 2016, the family service worker attended the home and found the door without a handle and a piece of black wood attached in its place. Mother later advised that the police had kicked in the door on April 18, 2016 and only Mr L was at home. The police were looking for a friend of his. Mother said that she and Mr L had tried to help this friend but then had to ask him to leave.

[46] In May 2016, the society learned that mother and Mr L had stopped their methadone treatment around the time of the Family Group Conference in February, 2016. Mother advised they wanted to have a baby and had gone to a fertility clinic. Later mother said they stopped trying to have a baby because it would pose a physical risk to her, due to previous difficult births. On the witness stand, mother said she had had "her tubes tied." She also testified that doctors do not recommend going off methadone.

[47] There were significant delays in obtaining a consent for release of the mother's and Mr L's criminal records.

[48] Despite mother's statements that she was attending North York General for a treatment program, she did not start until August and discontinued shortly thereafter. The group met three times a week and mother attended about once a week for 6 sessions and even more sporadically in September and October, 2016. Mother was then given information about counselling through Jean Tweed.

[49] On April 18, 2016, Mr L was arrested for possession of heroin, but the charge was later withdrawn. Mother was held but released.

[50] Mr L was also approached about treatment and he indicated that he had participated in a program in Newport Ontario in 2013 for 21 days. He said he had also been in treatment in Israel.

[51] On October 13, 2016, Justice Sherr heard an access motion and gave mother expanded access including visits in her home for up to 3 hours on Saturdays, subject to the expectation that:

• Mother and Mr L participate actively in drug treatment;
• Mother and Mr L attend as requested for random urine screens; and
• Mother and Mr L refrain from criminal activity.

[52] In October, 2016, the society arranged for DriverCheck to conduct random twice weekly urine screens at the mother's home. Three DriverCheck collectors gave evidence about their standard procedure and the details of the collection on certain dates. The procedure includes precautions against urine tampered with toilet and tap water and a collection bottle that measures the temperature which must be between 90 and 100 degrees Fahrenheit. There must be a minimum volume of 30 ml. of urine collected. A summary of their evidence follows.

[53] Both mother and Mr L were not available for urine screen collections on November 7, 15, and 17, December 2, 5, 19, and 21 of 2016 and January 3 and 5 of 2017. Both tested negative for drugs on November 9 and 16, 2016.

[54] On November 22, 2016, Mr L provided a sample that tested positive for 6-acetylmorphine and again on March 16, 2017, his sample tested positive for morphine. The body breaks down heroin to 6-acetylmorphine within hours of use and then to morphine. Mr L. denied drug use. Mother thought he may have been using to cope with chronic pain from a car accident they had both been in.

[55] On November 22, 2016 mother provided a sample that had no temperature, which meant it did not recently come from the body. She then refused to give another sample. After a refusal or two consecutive misses, a new referral from the Society was required.

[56] On November 25 and 29, 2016, Mr L's sample tested negative.

[57] In December, 2016 and early January of 2017 mother was performing community service hours to comply with a probation order following a fraud conviction. She testified that she needed to complete 50 hours. For this reason, mother explained that she was working or on call to work at a shelter until 2 pm in the afternoons and not home when the collector called. The society adjusted the request to obtain a collector who could arrive later in the day.

[58] On January 23, 2017, the collector called after 5 pm and neither mother nor Mr L responded to the telephone calls on their cell phones.

[59] On January 24, 2017, the collector obtained a sample from mother at 6:12 pm that tested positive for 6-acetylmorphine, meaning she had used heroine within hours.

[60] On January 26, 2017, the collector arrived at the time suggested by both mother and Mr L but they were not there. On January 27, 2017, the collector arrived at a time suggested by mother and she was not there. As this was two consecutive missed collections, a new referral was required.

[61] In March, 2017 a collection was attempted on the 15th but neither Mr L nor mother were home. On March 16, 2017 a series of suspicious events occurred during the collection. Mother's first sample had no odour and no temperature so she was asked for a second sample. Mr L's first sample was discarded for the same reasons. The collector heard the microwave being used. Mother's second sample was only 15 ml., had no smell, a light colour, and was only 88 degrees Fahrenheit. Mr L's second sample was also small in volume without colour or odour but was very high in temperature, about 102 degrees. Both behaved very strangely and the collector was not comfortable returning. Mr L's sample tested positive for morphine.

[62] Dr Melissa Snider-Adler was qualified as an expert in drug testing interpretation, with the consent of all parties. She is also the Chief Medical Review Officer at DriverCheck, an addiction treatment physician, a methadone program peer assessor and an assistant professor in Family Medicine with Queen's University. She has extensive qualifications in these specialized areas of medicine and continues to be certified regularly with American licensing organizations, which are the only ones to do so in North America, through the American Department of Transportation regulations. Those licensing procedures are the North American gold standards in these areas of specialization.

[63] Dr Snider-Adler testified that in her opinion only heroin can produce a result of 6-acetylmorphine. Heroin, morphine, and codeine all contain the same chemical make-up. Mr L's test results for March 16, 2017 were noted as suspicious by the collector. The possibilities are that: he attempted to add something to hide the result but it still tested positive; he brought in another sample which was heated in the microwave and this sample contained heroin; or, this was indeed his sample with morphine from his body. A sample that is too warm or cold will be cancelled by the laboratory. The laboratory will only detect a substance that is present in the body. There are minimum cut-off levels that eliminates small amounts of a substance that may be on someone's hands or nearby. In 18 years of experience, she has never had a test result that was caused by someone adding a substance to their urine.

[64] Both mother and Mr L. denied the use of drugs, but in the absence of any other explanation, I accept the laboratory and medical evidence that confirms recent drug use in November of 2016 and January and March of 2017.

[65] In January of 2017, mother advised the family service worker that she was not eligible for services at Jean Tweed because she did not have B-J with her. The worker double checked and confirmed with mother that she definitely could access those services at Jean Tweed.

[66] Mother then confirmed that she was participating in counselling with an online therapist, Ms Jennifer Moragas, through instant messages. There was no phone contact number for this person but the consent to release information was faxed to this person and several emails sent in March and April of 2017. Ms Moragas has not replied.

[67] As a result of the positive urine samples and the lack of engagement in addiction treatment, access was moved back to the society offices in February of 2017. Of 6 possible visits, mother only attended two. On February 8, 2017 she was late and said the traffic was bad. The worker checked the GPS and it did not show bad traffic, so after waiting for 35 minutes with B-J and Mrs J.F. the visit was cancelled. On February 10, 2017, the worker went to mother's home earlier in the day to ensure she could be on time for the visit that afternoon from 2 to 4 p.m. There was no answer at the door. Messages were left. Mrs J.F. reported receiving texts from mother confirming she would arrive at 230 p.m. for the visit. The worker and B-J coloured while they waited. At 2:48 p.m. the worker tried mother on her phone but got no answer. At 3 pm she called mother and connected. Mother said she was pulling into the parking lot. The worker was in the parking lot for another 7 minutes and then took B-J back to the F.. Mother spoke to B-J on the phone and said she was sorry and she loved her. Variations on this scenario were repeated on February 15, 16, and 23 of 2017.

[68] In March of 2017, mother attended 3 out of a possible 7 visits. At court on March 20 of 2017, the parties agreed to extend the visits for mother on certain terms, one of which was her participation in counselling at Black Creek. Mother was referred to Black Creek Community Health Centre and a particular counselor, Ms Stephanie Archambault was identified and the name provided to mother. By early May of 2017, mother had not provided a consent to release of information for Ms Archambault.

[69] By the time of this trial, mother had attended an intake meeting and plans to participate in a group that meets three times week after the trial.

[70] In April, 2017, mother attended 6 of 8 visits, although she was late for one of these visits.

[71] By the end of March, 2017, the Society retained the services of Accu-Metrics for urine screens. This change was necessary as DriveCheck would not go to the home again. Mother still wanted the screens to be after 5 p.m, although it was later learned that her community service hours were done in January. Accu-Metrics would call the mother and Mr L. on the day of the test and they would have to attend by 6 p.m. Neither ever attended at Accu-Metrics, despite several attempts by Accu-Metrix to connect with them.

[72] The society still wanted mother and Mr L to connect with a methadone treatment program and they returned to Dr Markus and then had their screens taken there. As of the date when the affidavits for this trial were due, neither mother nor Mr L had provided a consent for Dr Marcus to release the information. Just before the trial this information became available.

[73] The records showed that Mother did not attend the methadone clinic since February, 2016. When she returned on May 16 of 2017, she told Dr Markus she had bought methadone "off the street". In court she said that she bought it from an acquaintance because she was afraid too much time had gone by and the doctor might not let her back into the program. Mother's May 16, 2017 urine screen was positive for opiates.

[74] Mr L refused to sign a consent to release information from Dr Markus about him. Instead of a signature he made two smiley faces.

[75] Mother was late for court most days and on one of those days, she was over an hour and a half late.

E. Who is B-J?

[76] B-J is a "very cooperative, friendly, and well-mannered student, who responds in a sensitive manner to the needs and welfare of others", according to her grade two report card. She has an Individual Education Plan for language and mathematics and she needs speech therapy. The speech therapy will probably be available next year, according to Mrs J.F.. Her school has identified her for a psycho-educational assessment and she is on a waiting list for this. As of February 14, 2017, she has never been late for school in grade two.

[77] On March 30, 2017, B-J won a Character Development award for honesty. In May of 2016, she won this award for cooperation.

F. Criminal Records

[78] On January 14, 2016, mother was found guilty of possession of stolen property and fraud for entering a strange woman's house, stealing her credit card from her purse, and using it to purchase various items. These events took place between March 9 and March 13, 2015. She was sentenced to 12 months' probation and a fine. As part of her probation order she was required to perform some community service hours and attend for substance abuse counselling. Mother identified an interest in the program at North York General. Coincidentally this same program was recommended to her by the Society. She advised her probation officer that she was living with her daughter and had not used drugs for 13 years.

[79] Mr L has a lengthy and serious criminal record dating back to June of 2008. He attributes his difficulties to the three years he spent in the Israeli Defence forces and the horrors he witnessed. He became addicted to heroin in Israel and participated in treatment there and in Ontario in 2013. His record includes convictions for:

• break and enters
• thefts
• possession of stolen credit cards
• frauds
• using stolen credit cards
• failure to comply with probation orders
• conspiracy to commit offences
• failure to appear at court
• illegal possession weapons
• breach of a weapons prohibition
• possession and trafficking in narcotics

[80] One of Mr L's more notorious series of charges related to sneaking into the palliative care room of a dying patient in the hospital and stealing her jewellery. Other such thefts were from doctor's offices, dental clinics, and nursing stations.

[81] On March 10, 2015, a woman surprised Mr L by being home when he illegally entered her front door. He was arrested.

[82] On Saturday November 28, 2015, the police executed a warrant at the mother's address on A[…] Drive looking for Mr L and drugs. A small amount of heroin was found in a blender in the kitchen and a lock picking device. A baggie of cocaine was found on Mr L. Cash in the amount of $2660. was also seized. In the car that was seized, baggies, a scale, and a debt list were also found. All charges were later withdrawn.

[83] On April 18, 2016, police executed a warrant at mother and Mr L's address at F[…]. Mr L was charged with two counts of possession of narcotics, theft under, break and enter, and possession of proceeds of crime. I note from the records that two air pistols were also found at the home. Mother was later released without any charges.

G. Mother's Plan

[84] Mother wants B-J home. She and Mr L are planning together. Mr L always wanted to be a father and he enjoys time with B-J. In particular he is good in helping her with math homework.

[85] Mother does not want a supervision order but would accept one with similar conditions as she has had before, if necessary. She knows her local school and can easily register B-J. She will follow through with any school recommendations and knows that B-J is about two years behind in math and reading. She does not, however, want "a label on the child". If forced she would cooperate with the society and follow any conditions set by the court.

[86] Mr L's mother, Ms M.S. was going to support this plan but now they are not speaking. Mother has no other supports except for Mr L and his sister. Mr L's sister, J., has two children of her own, one with downs' syndrome and the other has attention deficit disorder, and she has adopted two children from her husband's sister, who lost custody of them. Mother thinks she is overextended as it is and she would not impose on her. Mother has not spoken to her family in New Brunswick about this case.

[87] If the child stays with the F., mother would like weekend access. If the child goes to an adoptive family, mother will not give up her access and will do "whatever it takes" to keep her access. She would not accept a reduced role. If the family is outside Toronto, then she would like to have B-J in the summers. She testified that she would "appeal til there's nothing left to do".

H. Society's Plan

[88] The society will seek an adoptive home when B-J is legally free. In the meantime, the F. will be approved as a foster home and B-J will remain there.

[89] The Society has identified a half-sister of the mother who lives with her family in Calgary Alberta. That plan is currently being investigated as a possible adoptive home. Mother has not spoken to this half-sister in about 6 years. She thinks they "could get the job done" but might need some money as they have two children of their own and they also take in foreign students.

[90] Mother cannot identify any family in New Brunswick who might be able to formulate a plan. She has not spoken to them about this case.

[91] Mrs J.F. testified that as she is 72 years of age, she and her husband cannot commit to a permanent home for B-J. Their wish for B-J is for her to have a home that is safe and secure, maybe with other children. If the adoptive parents would consider them as grandparents, that would be great. If not, "I would step back". They will continue to care for her as foster parents until a "forever home" can be identified. They love her and will help her transition to a permanent home. Mrs J.F. did not want to say anything negative about mother. If mother is not on drugs, Mrs J.F. believes she can be a good mother.

[92] Mrs J.F. and her husband would love to visit B-J after she is in a permanent home and would make every effort to do so, even if B-J is in another province.

[93] Mrs J.F. also advised the court that the charge against her son that brought this family to the attention of the society originally was "a joke" and eventually dismissed.

I. Disposition Considerations

[94] The paramount purpose of the Act is to promote the best interests, protection and well-being of children. The Act sets out additional purposes that include: recognizing the autonomy of the family unit and providing help for the family, providing services for children that respects their need for care and continuity and that are culturally and religiously sensitive.

[95] On a status review Application, the court considers whether the child continues to be in need of protection and then what order is in the child's best interests.

[96] 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:

1. 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.)

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.

3. 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.

4. 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.

5. 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.)

[97] 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 is determined that these alternatives would be inadequate to protect the child.

[98] 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.

[99] It is important not to judge a 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. Catholic Children's Aid Society of Hamilton v. J.I., [2006] O.J. No. 2299 (Ont. Sup. Ct.). This principle also applies to a young mother, who was herself subject to severe neglect and abuse. Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

[100] 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.).

1. Are There still Risks Today?

[101] At the time of the finding, Justice Sherr noted two major concerns: domestic violence and drugs. It is clear from the lurching, start and stop approach of the mother to drug treatment and her subsequent avoidance of urine screens, that drug addiction is still a significant concern in this case. As recently as May of 2017, mother tested positive for drugs in her system.

[102] Further, mother has chosen her next partner, Mr L. who is also a drug addict and avoids treatment and screens. Mr L brings with him a very real risk of overlap with the criminal world, in light of his lengthy record and his lengthy pattern of inability to follow through with addiction prevention programs.

[103] This combination more than confirms a continued and real risk to B-J.

2. Disposition Options

[104] The Act sets out alternatives for the court to consider in making a disposition in the best interests of the child. The options in subsection 57 (1) are:

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).

3. Resources Provided to the Family

[105] Over the last three years, the society has provided the family with these resources:

• Referrals for drug treatment and counselling to Scarborough Women's Centre, Homestead (Salvation Army), Jean Tweed, North York General Hospital
• Support letters for housing and metro passes
• Referral to Aisling for trauma assessment for B-J
• Referral and funding of urine testing facilities: DriverCheck and Accumetrics
• Kin in and out of care assessments for the F.
• Kin search that identified mother's half-sister in Alberta
• Kin support to Mr and Mrs F.
• Drivers and supervision of visits and exchanges
• Family Group Conference through George Hull and Family Centred Conference through the Society

4. What has Changed since the Last Order?

[106] The Supervision Order for 6 months with the F. was made on February 12, 2015 with conditions relating to mother's treatment and a prohibition against exposing the child to domestic violence. After a separate hearing, a final access order with similar conditions relating to counselling, methadone treatment, and cooperation were made on April 24, 2015. On February 26, 2016, the results of the Family group Conference outlined very similar expectations on mother and Mr L: weekly urine screens, therapy, and harm reduction programs. Further temporary access orders were made on October 13, 2016 and March 20, 2017 with the same expectations.

[107] The pattern of the mother is to commit to these conditions and then to continue to promise to call the resource or tell elaborate stories about why she hasn't connected with a program. Her stories are never consistent. She will also outright lie to protect Mr L or herself from any criticism. At no time has she completed or even really engaged in any program. She changed methadone clinics several times to avoid the society catching up with her positive screens or refusals and then stopped altogether without telling the society. She has not kept a consistent pattern of clean screens.

5. Mother's Credibility

In reviewing all of the evidence, it becomes very clear that mother has not been able to gain any insight into her patterns of conduct that severely limit her parenting capabilities. Two of her partners, the father and Mr P.F. took drugs and engaged in violent altercations with her. We have no information about the father of her oldest child. Mr L is also an addict and has crossed over into the criminal justice system repeatedly in the last 10 years. Mother, too, has a recent criminal conviction. Mother's choices of male partners are not made as a parent but as a drug addict.

[108] Mother does not talk about B-J's feelings or life through B-J's eyes.

[109] There is an impact on a young child when her parent does not see her needs as separate from her parent's. Mother does not talk about the impact of her lifestyle on B-J.

[110] Mother's lack of credibility is also clear in the "stories" she tells and expects others, including her child to believe; such as:

• She says she is pulling in the driveway of the access location, when she clearly is not;
• She collects pipes as "decorative art";
• The fire department broke down her door and she doesn't know why;
• She is not using drugs, when the evidence is clearly to the contrary;
• She is participating in counselling, when she hasn't even made the initial phone call;
• She is not being evicted when she hasn't paid the rent in 6 months;
• She is always late because she is a "procrastinator"; and
• She ran out of gas on the way to court; the car sputtered but she made it home.

6. Mother's Relationship with B-J

[111] Everyone agrees that when mother is on time and has regular and consistent access with B-J, the visits are positive. There is a structure, with a homework session, snack, and playtime. This structure builds in a comfort level for the child. B-J enjoys spending time with mother and mother enjoys the time and uses it well. Mother grows to recognize B-J's cues and can redirect her when needed.

[112] Mrs J.F. reports that mother likes to style B-J's hair and help with fashion. Mother is not always age appropriate; for example, when she plans a make-up session for such a young girl. B-J loves her mother and considers her to be "a playmate" and they are happy together. Mother can call B-J whenever she wants and usually does about once a week. B-J can also call mother whenever she wants and usually asks to call about once every two weeks, often following a visit when mother is still fresh in her mind.

[113] When mother does not show up for a scheduled visit at the Society and B-J is waiting for her, B-J has had physical meltdowns and once actually kicked Mrs J.F.. If the visit is cancelled before B-J gets to the office, usually because mother hasn't checked in early on a Saturday, B-J will throw her arms around Mrs J.F. and hold on for dear life.

[114] Even with the promise of more access, it took mother several months in 2015 to build up to 6 weeks of consistent visits. She has recently fallen off again and this pattern has been repeated several times over the past three years.

[115] Examples from the months leading up to this trial illustrate the mother's inability to commit to access to her daughter:

• Out of a possible 6 visits on February 6, 8, 10, 15, 16, and 27, 2017, mother attended two. On two of the scheduled visits the child was already at the society office for the visit and mother didn't attend.
• Out of a possible 7 visits in March, 2017, mother only attended three.
• In April, 2017, mother attended 6 of a possible 8 visits.

J. Best Interests of B-J

1. The Child's Needs

[116] B-J will be 8 years old this summer. She has lived for almost 3 years with Mr and Mrs F.. She has special educational needs in math and language and she needs speech therapy. Despite these special needs she is cooperative, well-mannered, and friendly. When mother lets her down by not coming to visits and not coming on time, B-J clings to Mrs J.F.. She deserves stability and she deserves to have her expectations met. As Mrs J.F. says, she deserves a "forever" home. B-J needs to have a positive relationship with a parent and needs to be in a secure place as a member of a family.

[117] In light of B-J's special needs, she will require a caregiver who can advocate for her and can interact constructively with many different types of professionals.

2. Comparing the Plans for B-J

[118] Currently, B-J has little relationship with family members other than her mother. She has spoken on the phone and visited her brother in New Brunswick but not frequently. She has never met her aunt in Alberta. Mother has not seen her half-sister in 6 years.

[119] Mother loves B-J. Mother's plan for B-J is the exact same plan that was set out for her in February of 2015, April of 2015, February of 2016, October of 2016, and March of 2017 or, if no order is made, then less of a plan than has been ordered in the past. Mother's preferred plan is to have no expectations on her and indeed she has acted as though there were none for years.

[120] Parenting is very different from that. Parenting is meeting the expectations of many people to ensure a safe and healthy future for your child. Parenting is interacting with many professionals, particularly when your child has special needs and advocating for your child. Mother is not cooperative with professionals. She changes methadone doctors whenever they disagree with her view of her drug intake. Her phone is often out of order or the number changes and she tells no one. She often does not show up for scheduled appointments. She has been very reluctant to permit professionals to speak with each other, either stalling for a long time before signing releases or failing to sign at all.

[121] Parenting is meeting your child's expectations to be there for her.

[122] The F. will care for B-J until the right permanent home is found for her, subject to any sudden health issues that they may face as they age. The society will assist in funding the child's assessments and special needs. The permanent home may be with family in Alberta. It may not.

3. Continuity and Delay

[123] B-J will have to move regardless of the plan chosen for her. B-J's life has been on hold for almost three years waiting for mother to meet the expectations of the court. Mother has not kept her commitments.

4. B-J's Views

[124] B-J wants to go home to her mother.

5. Less Restrictive Options?

[125] Because the concerns today are the same as when this matter first came before the court, a return to mother with or without a supervision order would not protect B-J.

[126] A crown wardship order is probably the most profound order that a court can make. The judge must exercise the highest degree of caution when making such an order and only do so on the basis of compelling evidence and a careful examination of possible remedies. (see CAS Hamilton v M. 2003 O.J. No. 1274, SCJ-FB)

[127] A society wardship order would be legally possible in this case as the F. are now changing their status to become a foster home. Mother has had the court watching her for almost 3 years and usually with the same expectations continually placed upon her. She has made virtually no changes or real gains in all this time. It is extremely unlikely that mother could make changes in the foreseeable future. Further time for mother would mean less time for B-J to be placed and settle into a "forever" home while she is still a child and could derive the benefits from such a home.

K. Conclusion

[128] All of the evidence points to B-J's best interests being served by a permanent plan as soon as possible. Crown wardship is the only disposition that would meet her needs. In particular I would point to the following findings of fact from above:

• Mother has been using drugs for a very long time, at least since her early twenties, if not before;
• Mother is not honest with the society about her addiction, what resources she has connected with, and even about where she is living;
• Mother has not been able to meet the same set of expectations for several years and thus it is highly unlikely that she would comply with a supervision order;
• Mother is not parenting her other two children and has not for a very long time;
• Mother has not been able to maintain clean urine screens, even within the last 6 months;
• Mother has not been able to maintain regular access on time, even within the last 6 months;
• Mother has chosen a recent partner who suffers from the same addiction as she does and who has a lengthy serious criminal record; and
• Mother has not engaged in any consistent counselling nor an addiction program.

L. Access

1. The Law

[129] Once a disposition of crown wardship is made, the Act provides for a presumption against access. The current test for access to crown wards is set out in subsection 59 (2.1) of the Act, which reads as follows:

Access: Crown ward

(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.

[130] The onus to rebut the presumption against access to a crown ward is on the person seeking access. Children's Aid Society of Toronto v. D.P., [2005] O.J. No. 4075 (Ont. C.A.). This person has the onus of establishing both portions of the test in subsection 59 (2.1) of the Act. This is a very difficult test for parents to meet. Where a crown wardship order has been made, there is no obligation on the society to prove that the children are adoptable, let alone that there is a prospective adoptive family. Children's Aid Society of the Niagara Region v. J.C., [2007] O.J. No. 1058 (Ont. Div. Ct.).

[131] The society is mandated by section 63.1 of the Act to make all reasonable efforts to assist the children to develop a positive, secure and enduring relationship within a family though either adoption or a custody order.

2. The First Part of the Test

[132] The meaning of the phrase "beneficial and meaningful" was examined by Justice Quinn in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (Ont. Sup. Ct. – Family) where he said:

(45) 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.

(46) 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.

(47) 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.

[133] More is required than just a display of love or affection between parent and child. This is particularly so where there is evidence of a number of other factors and dynamics respecting the parent which have impacted on the child's emotional health and well-being. 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. (emphasis mine) An access order cannot be merely a consolation prize for disappointed adults. See: The Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731.

[134] The parents have to show more than just that a child has a good time during visits. 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 parent and child. The Divisional Court has held that a person seeking access must prove that his or her relationship with the child "brings a significant positive advantage to the child". Children's Aid Society of Niagara Region v. J.C., [2007] O.J. No. 1058).

[135] In Children's Aid Society of Toronto v. A.G., [2015] 2015 ONSC 6638, the appeal court found that it is improper to import considerations of openness into the beneficial and meaningful test. The court must consider whether the relationship is beneficial and meaningful to the child at the time of the hearing. This was also the decision in T.L.K v Children's Aid Society Haldimand Norfolk; Feldman on behalf of the child H.B v Children's Aid Society of Haldimand Norfolk and T.K.L., 2015 ONSC 5665.

[136] "Beneficial" requires the trier of fact to decide whether, overall, the relationship between the child and the parent is a benefit for the child. This is not a comparative analysis: the question is whether, taking everything into account, access between the child and his father would be good for the child. The analysis is made on an objective standard – the court is asked to decide whether an access relationship would be good for the child – nothing more than that. Children's Aid Society of Toronto v. J.L., 2017 ONSC 2380.

[137] "Meaningful" requires the trier of fact to assess the subjective importance of access for the child. This is separate from the question of whether the access would be "beneficial", a question that requires an objective assessment of the advantages of access for the child. Of course there is some overlap between "beneficial" and "meaningful" – one of the "benefits" of access is continuation of a close family bond between parent and child – something that, by definition, would be meaningful to the child would also be a benefit. Some of the case law seems to combine the two questions – "beneficial" and "meaningful" – into one analysis – "beneficial and meaningful". In my respectful opinion these two analyses ought not to be conflated. Children's Aid Society of Toronto v. J.L., 2017 ONSC 2380.

[138] In Frontenac Children's Aid Society v. C.T. and M.T., 2010 ONSC 3054, the court indicated that the court should also consider the potential detriment to the child of not making an access order.

[139] In Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, the court took into consideration whether the parents would support an adoptive placement, or possibly undermine it, in determining whether access for the child was beneficial. The court considered that the parents in E.U., would not support an adoptive placement, but still found that access would be significantly advantageous for the ten-year old child, writing at paragraphs 247 and 250:

[247] However, the court needs to be careful about defaulting to a finding that a relationship is not beneficial to a child when parents engage in this type of behaviour. It must examine this behaviour in light of the ability of the child before the court to manage it and then weigh this factor against the other benefits and detriments of the relationship.

[250] The court finds that the relationship between the child and the parents is beneficial for this child. The impact of the parents' behaviour is mitigated by the child's maturity, resilience and insight and her demonstrated ability to manage this behaviour. The parents, despite their behaviour, have not shaken the child's resolve to live with the caregivers. The child still wants to see her parents, despite their behaviour. The effect of such future behaviour on the child will also be mitigated by the child's knowledge that the court had decided that she will live permanently with the caregivers. The uncertainty that she has coped with for the past 22 months will now be removed.

[140] Justice Geraldine Waldman observed in Children's Aid Society of Toronto v S.A., 2012 ONCJ 42, that the court should be conscious of the fact that deficiencies in a parent that might be a concern when the issue is whether to return a child to that parent's care may not be a concern (or may be a lesser concern) when the issue is access.

[141] The challenge is finding the fine balance between what will preserve a beneficial and meaningful relationship in the best interests of the children and, at the same time, what will permit flexibility to allow the mental and emotional transition towards permanency by the children in their new adoptive home. CAS of Ottawa v. B. (J.) 2017 ONSC 1194 (SCJ).

[142] The findings of fact in this case include:

• B-J enjoys her visits with her mother;
• The visits are generally positive;
• Mother is not consistent in attending the visits;
• Mother does not consistently attend on time; such that even since the last access order with specific conditions attached to it to attempt to minimize the negative impact on the child of lateness, mother could not attend consistently on time;
• There is a negative impact on the child of this pattern of not attending and attending late on the child, according to Mrs J.F.; and
• The negative impact can be as serious as a "meltdown" or as little as mother not being able to follow the child's cues or have realistic expectations (see affidavit of Ms Peters, Exhibit 17).

[143] I have considered that the access to this child might be meaningful for her, because this is her mother. This leads to a consideration of an access order that might only include cards and letters between the parent and child. There are several challenges to this option:

• Mother is not consistent and there is no evidence that she is aware of important events for this child;
• Mother has been critical of the F. in the past and will probably be very critical of any new home for this child;
• There is no evidence that this child is worrying about her mother and needs to be reassured that mother is okay; and
• This would open another opportunity for the child to be disappointed and feel insecure or clingy.

[144] In conclusion, these findings are not sufficient to support a conclusion that the access is meaningful and beneficial for B-J. B-J is almost 8 years old. There is no evidence that she is mature enough or resilient enough to comprehend and manage mother's behavior. She knows that the F. are not a forever home and sees the only option as going home to her mother.

3. The Second Part of the Test: Impairment of future possibility of adoption

[145] Since I have not found that access is meaningful and beneficial for this child, I need not continue to the second part of the test. If I am wrong, however, I am addressing the issue of permanency planning.

[146] The second element of the test under s. 59(2.1) places a burden on the person seeking access to show that an access order would not impair a child's future abilities to be adopted.

[147] In CCAS v. L.S. & W.D., 2011 ONSC 5850, the court said that 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 (par. 427). Based on their behaviour, attitude and – perhaps, lack of comprehension the court found that there is a strong likelihood that both parents would continue to behave inappropriately and make damaging statements to the children, during any future access, this would be extremely destructive, and impair opportunity for adoption. The prospect of further delay and uncertainty inherent in a post-adoption openness application, might tip the scales away from an otherwise desirable adoptive family coming forward. Court also alludes to risk of future litigation with new openness changes as s. 145.1.2(7) effectively sets out that the adoptive parents' views about an openness order are only a consideration, but not determinative. The amendments to the CFSA create new dynamics in the adoption process. This new reality – with multi-phased implications -- must be addressed when parents try to satisfy the conjunctive test in s. 59(2.1) (par.435).

[148] The court should look at whether continued access will scare off adopted parents (this won't always be the case) or delay the adoption process. Children's Aid Society of the Regional Municipality of Waterloo v. M. (L.) 2013 39 R.F.L. (7th) 154 (Ont. S.C.J.).

It is not enough to raise a doubt that children are adoptable, or ask that access continue until a specific adoptive home is identified. The possibility that a child may not consent to an adoption is not sufficient reason to continue access. Absent special circumstances, children should be given the opportunity to make their actual decision whether to consent to adoption or not to an adoptive placement, with suitable time and preparation. Children's Aid Society of Ottawa v. C.W..

[149] In Children's Aid Society of Toronto v. R.C., 2016 ONCJ 335, the court discusses the onus for second prong of test:

[133] Again, the court recognizes that the onus is on the parent to satisfy this second prong of the test. Obviously, a parent who seeks access following the making of a Crown wardship order cannot prove conclusively that she will not impair her child's opportunities for adoption. However, what the mother can do, is adduce evidence that raises a prima facie case in her favour. It would then fall to the society to rebut that prima facie case.

[150] While many forms of access may deter future adoptive applicants, some other forms, such as cards and letters won't and will be ordered. Children's Aid Society of Toronto v. C.J. 2014 ONCJ 221; Catholic Children's Aid Society of Toronto v. S.B., 2013 ONSC 7087.

[151] The phrase "impair the child's future opportunity for adoption" means more than just impairing a child's opportunity to actually be adopted. The impairment also applies to an undue delay in the child being adopted. To interpret this phrase otherwise would be contrary to the paramount purpose of the Act set out in subsection 1(1) – to promote the best interests, protection and well-being of children. See: Catholic Children's Aid Society of Toronto v. M.M., 2012 ONCJ 369, [2012] O.J. No. 2717.

[152] In Children's Aid Society of Toronto v. A.F., 2015 ONCJ 678, the court set out the following attributes that might impair a child's future opportunities for permanency planning:

[166] The first attribute is a difficulty with aggression, anger or impulse control. Persons with this attribute are often confrontational. This attribute may threaten the physical or emotional security of the adoptive parents and their family.

[167] The second attribute is a lack of support for an alternate caregiver of the child. This might manifest itself in an undermining of the adoptive placement and the child's sense of security with the adoptive family. Persons with this attribute may be relentlessly critical of the adoptive parents and make their lives very difficult. They are usually unable to accept their reduced role in the child's life.

[168] The third attribute is dishonesty and secrecy. Persons with this attribute can often not be trusted to comply with the terms of court orders or to accurately report any important issues about the child.

[169] The fourth attribute is a propensity to be litigious. Persons with this attribute are usually unable to accept a reduced role in the child's life and are likely to engage in openness litigation.

[153] In Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, the court found that granting the parents a right of access to a 9-year-old child would impair the child's opportunity to be adopted by the foster parent as the parents kept trying to undermine the placement. Granting an access order would lead inevitably to litigation over openness and the foster parents were becoming increasingly frustrated with the parents. However, the child was granted access rights to the parents as the foster parents respected the child's desire to have contact with the parents and could negotiate with the child an openness arrangement without the likelihood of litigation.

[154] I have considered making the child the holder of the access right, as was done in the E.U. case above. The strength of the relationship is that B-J does enjoy her visits with her mother. The limitations on this form of access in this case are:

• We do not know who will adopt B-J. Unlike in E.U. we do not know if the prospective permanent parents could negotiate with mother. Mother is often unreachable and unreliable;
• Mother would undermine the placement with criticism and encourage litigation by B-J. Indeed this would be the likely scenario;
• B-J is vulnerable in terms of her special needs;
• Mother has a pattern of poor choices in male partners with drug addictions, violent tendencies, and serious criminal records; and
• Mother's history of dishonesty and non-compliance with court orders make any form of access very problematic.

[155] For B-J, the longstanding pattern with her mother is:

• To never give up on access motions,
• To vocalize that you will appeal until the end,
• To never abide by the conditions relating to access, and
• To never gain insight into the impact of these actions on your child.

[156] Mrs J.F., who rarely makes a critical comment about the mother, and supports mother's access now says that in future she will leave any access to the society to facilitate. Mrs J.F., who loves B-J and has been a constant in B-J's life, has said she and her husband would love to see B-J after she is in a permanent home but she would "stand back" if it was a problem for the new parents. Love for a child has to be this selfless.

Final Order

Crown wardship

Released: June 26, 2017

Signed: Justice Debra Paulseth