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: November 14, 2017

Court File No.: Toronto CFO-14-12173-A1

Between:

CHILDREN'S AID SOCIETY OF TORONTO Applicant,

— AND —

I.H. and K.W. Respondents

Before: Justice Alex Finlayson

Heard on: October 30 and 31, 2017, and November 2, 2017

Reasons for Judgment released on: November 14, 2017

Counsel:

• Lily Ng — counsel for the applicant society
• David Miller — counsel for the respondent mother I.H.
• No appearance by or on behalf of the father K.W.

PART I: NATURE OF THIS PROCEEDING AND BACKGROUND

[1] Introduction

This is my ruling following a trial concerning two boys, T.O.H. and T.J.H., who will turn 3 and 2 years old respectively this month.

[2] Children in Care

Both children have been in the care of the Society since birth, well beyond the 12 month statutory time line set out in section 70(1)(a) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the "Act"). They reside together in a foster home in Toronto.

[3] Parties

The mother is the Respondent, I.H. T.O.H.'s father is K.W. K.W. did not participate in this trial. T.J.H.'s father is unknown.

[4] Society's Position

The Society seeks an order of Crown wardship for both children with no access to the mother in order to affect an adoption plan for the children.

[5] Mother's Position

The mother disagrees. She argues that the children ought to be returned to her care under the Society's supervision for a 6 month period.

[6] Mother's Other Children

The mother has five children, none of whom are in her care. The children who are the subject of this proceeding are her fourth and fifth children.

[7] Prior Children — C.A. and T.O.

The mother's eldest two children, C.A. and T.O, now 19 and 10 years old, were apprehended on March 9, 2008. They remained in foster care until October 2010, when they were placed with their maternal grandmother. On December 13, 2011 and March 22, 2012, Justices Waldman and Spence, respectively, granted the grandmother custody pursuant to s. 57.1 of the Act.

[8] Prior Child — T.H.

The third child, T.H., was apprehended at birth on […], 2012 and was in care until the disposition of that case. On July 31, 2013, Curtis J. granted the Society's summary judgment motion, found T.H. to be in need of protection pursuant to s. 37(2)(b) and made T.H. a crown ward without access. See Children's Aid Society of Toronto v. I.H., 2013 ONCJ 495 (C.J.).

[9] T.O.H.'s Special Needs

The fourth child, T.O.H., has a high degree of special needs. The Society tendered the report of Dr. Anne Kawamura, dated October 11, 2016, the report of Dr. Amber Makino dated August 8, 2017 and both doctors' curriculum vitae as exhibits for this trial. Both doctors are developmental pediatricians from the Holland Bloorview Kids Rehabilitation Hospital. As these doctors are participant experts, with the consent of both parties, I admitted their reports into evidence pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23, as amended and in accordance with the ratio of Westerhof v. Gee Estate, 2015 ONCA 206 at ¶6, 59-64, 91-93 and 98.

[10] T.O.H.'s Medical Conditions and Development

The evidence respecting T.O.H.'s special needs, which was not challenged in cross-examination, reveals:

(a) T.O.H. has a diagnosis of global developmental delay, hip dysplasia, mild hypotonia, and ventriculomegaly;

(b) T.O.H. shows delays across multiple areas of development, including gross motor, fine motor, and language;

(c) T.O.H. is followed by the following ten professionals, specifically a developmental pediatrician, a physiotherapist, an occupational therapist, a speech language pathologist, a pediatrician, a dentist, professionals at the orthopedic clinic at the Hospital for Sick Children, a neurologist, a neurosurgeon, and an ear, nose, throat doctor;

(d) T.O.H. has made gains in foster care; and

(e) According to Dr. Makino's report dated August 8, 2017, T.O.H. is at risk for future cognitive difficulties and intellectual disability.

[11] Summary Judgment Motion and Issues for Trial

On May 30, 2017, Justice Sheilagh O'Connell heard a summary judgment motion. On July 26, 2017, she granted it in part respecting the finding that the children are in need of protection pursuant to ss. 37(2)(b)(i) and (ii) of the Act and she directed a trial respecting disposition. Her Endorsement succinctly lists the issues for trial, namely:

(a) the extent to which the mother's cognitive delays affect her parenting abilities;

(b) the extent to which the mother has made positive changes since the 2013 Final Judgment of Justice Carole Curtis, that will permit her to parent the children;

(c) the mother's current plan of care for the children and whether the children can be returned to the mother with appropriate supervision and support; and

(d) the nature and quality of the mother's access visits with the children and the children's relationship with the mother.

[12] Mother's Plan of Care

The mother's plan is that:

(a) She will reside in a spacious 2 bedroom apartment;

(b) The boys will share a bedroom;

(c) The boys will go to day care at Central Neighbourhood Services;

(d) Although she is currently working at Rogers, she will stop doing this if the boys come into her care;

(e) She will receive services from the Family Support Program of Central neighbourhood Services;

(f) She will be enrolled in the Parenting Enhancement Program at Surrey Place;

(g) She will work with a public health nurse and a family home visitor;

(h) She will cooperate with the Society;

(i) She will have babysitting from her family;

(j) She will enrol in any other service or program recommended by the Society;

(k) She intends to find services for physiotherapy, occupational therapy, speech and language therapy and a developmental pediatrician closer to her;

(l) She will involve T.O.H. with CCAC as recommended;

(m) She will take T.O.H. to all medical and other professional appointments as recommended, including a pediatrician, a dentist and an eye doctor; and

(n) She will implement strategies for in-home therapy.

[13] Court's Ruling

For the reasons that follow, I am granting the order that the Society seeks. The children T.O.H. and T.J.H. shall be made Crown wards and there shall be no access to the mother.

[14] Sibling Access Order

As I will explain in more detail below, the evidence of the adoption worker, Mary Allan, is that the Society will generally be looking for an adoptive family that is open to a sibling group of two, and open to a child with developmental delays. She believes that the Society will be able to find the boys a home together and the Society will strive to ensure that both children are placed in the same adoptive home. However, with the consent of the Society, I am making an order that T.O.H. is an access holder to his brother, T.J.H. and T.J.H. is an access holder to his brother, T.O.H., so that either of the children can apply for openness if the boys are not placed together.

PART II: EVIDENTIARY ISSUES

A. Admissibility of the Psychological Assessment Report of Dr. Temple

[15] Dr. Temple's Qualifications and Assessment

I had the benefit of Curtis J.'s lengthy and detailed reasons, which the parties agreed to enter as an Exhibit at trial. Among the evidence she considered, Curtis J. had the report of Dr. Valerie Temple dated July 9, 2012 before her. Dr. Temple is a clinical psychologist and professional practice lead for psychology at Surrey Place Centre. She holds a Ph.D. in Developmental Psychology. Her clinical experience includes the assessment, diagnosis and treatment of adults with developmental disabilities and she has authored numerous publications.

[16] Referral and Tendering of Report

The mother had been referred to Dr. Temple, "…for intellectual assessment to assist with establishing her eligibility in the Developmental sector and to better understand her support needs". The same report was tendered as an Exhibit in this trial on consent, although it was later the subject of an objection by the mother's counsel.

[17] Dr. Temple's Findings

In her 2013 decision, Curtis J. summarized some of Dr. Temple's findings as follows:

(a) the mother's intellectual skills are below the first percentile, and qualify her as being in the moderate range of disability;

(b) the mother's visual and fine motor co-ordination is below the first percentile;

(c) the mother's reading is at a grade 2-3 level. She will require assistance to read and understand complex correspondence such as banking, tax information, government documents, or legal information;

(d) the mother's math is at a grade 1-2 level. She will require support to manage money and daily finances;

(e) the mother's adaptive daily living skills are limited. She has deficits in several areas of daily living skills, including using money, telling time, and reading instructions; and

(f) all areas for the mother were equally developed.

[18] Dr. Temple's Recommendations and Mother's Response

Dr. Temple recommended that the mother apply for an Adult Protective Services Worker to assist with managing her finances and finding vocational and recreational activities. Curtis J. found that the mother took few steps to follow through with this, only making some effort just before the 2013 summary judgment motion. The mother has since not used this service in any meaningful way, and refuses to do so now. In her evidence at trial, she says that she used this service "a few years ago" but "did not find her helpful".

[19] Parenting Enhancement Program

Dr. Temple further recommended that the mother avail herself of Surrey Place's "Parenting Enhancement Program". This is a program to assist persons with a disability to care for children under 6 in their custody. The mother says she will avail herself of this service if the children are returned to her care.

[20] Mother's Counsel's Objection

Although there was no objection when the Society tendered Dr. Temple's report and curriculum vitae at the outset of trial, in closing submissions, the mother's counsel argued that the report ought to be given little weight. The basis for this argument rests on the following statement in Dr. Temple's report:

The purpose of this assessment was explained to [the mother] and discussed with her lawyer. Both were informed that the assessment was undertaken to help [the mother] to access appropriate supports and services for herself as an adult individual and that the results would not be considered valid for use with respect to child and family issues. [The mother] and her lawyer agreed to proceed with the assessment. She cooperated with all requests and appeared to give a good effort. As a result, this assessment likely represents a valid picture of [the mother's] abilities at this time.

[21] Mother's Counsel's Submissions on Weight

Counsel for the mother agreed that this report should be used as the "baseline" against which to measure the extent to which the mother has made positive changes since Curtis J.'s 2013 Order, but simultaneously argued that I ought to give the report little weight based on the aforementioned statement. He further submitted that the report had merely been filed as part of the summary judgment motion before Curtis J., without the mother's lawyer questioning it. He said that Curtis J. did not make findings of fact respecting the mother's cognitive abilities in the 2013 reasons, and simply referred to Dr. Temple's findings in passing only.

[22] Court's Analysis

I cannot give effect to these submissions for the following reasons.

[23] Dr. Temple as a Participant Expert

Dr. Temple did not comply with Rule 20.1 of the Family Law Rules, O.Reg. 114/99, as amended. But she did not have to. Dr. Temple was not retained as a "litigation expert". Nor did she conduct an assessment of the mother's parenting capacity pursuant to s. 54 of the Act. But this does not diminish the report's weight to the extent that I rely upon it for a valid purpose.

[24] Participant Expert Evidence

Dr. Temple is a "participant expert", who is entitled to give evidence of her observations, diagnosis and prognosis. See Westerhof v. Gee Estate, 2015 ONCA 206, at ¶6, 59-64, 91-93 and 98. Dr. Temple's report is valid evidence of a health practitioner as to the mother's cognitive abilities.

[25] Curtis J.'s Reliance on Dr. Temple's Findings

I reject the submission that Curtis J. did not rely on Dr. Temple's findings, and only mentioned them in passing. At ¶36 of her decision, Curtis J. made a finding that the mother's cognitive ability is limited. In making the Crown wardship order with respect to T.H., she also relied on the overwhelming evidence from the Society concerning the mother's parenting abilities and her lack of a viable plan.

[26] Parenting Capacity Assessment Motion

To the extent that the Court was deprived of a litigation expert or expert evidence concerning the mother's parenting capacity in this proceeding, some of that responsibility rests with the mother. I note that the Society brought a motion for a parenting capacity assessment returnable September 20, 2017, that the mother opposed. This motion would have been returnable before me on September 20, 2017. Had it been granted it would have resulted in an adjournment of the trial. At the assignment Court on September 19, 2017, O'Connell J. refused to adjourn the trial and vacated the date for the motion for the assessment. Neither party had moved for a parenting capacity assessment earlier, and when the Society did so move just prior to trial, the mother opposed.

[27] Necessity Test for Assessment

Regardless, I do not need a parenting capacity assessment to decide the issues before me. The two part test, set out in section 2 of O. Reg. 25/07, as amended, requires that this Court consider whether an assessment is necessary for the Court to make a determination under Part III of the Act and whether the evidence sought to be obtained is not otherwise available to the Court before ordering an assessment.

[28] Meaning of "Necessary"

At ¶25, 26 and 33 of Children's Aid Society of Algoma v. M.(P.), 2008 ONCJ 768 (C.J.), Justice John Kukurin elaborates about the meaning of necessity in the context of this test. He says, "[n]ecessary" is that which "cannot be done without" or is "unavoidable in the nature of things". It is "several steps beyond desirable or helpful." And the decision to order an assessment turns on whether the court believes it cannot make its essential judicial determinations except with the assessment in question.

[29] Refusal to Order Assessment

Justice Robert Spence followed this approach and refused to order an assessment in Catholic Children's Aid Society of Toronto v. B.W., 2013 ONCJ 417 (C.J.). In so doing, at ¶37 of the reasons, he provided a non-exhaustive list of the types of judicial determinations that are required under Part III of the Act. Specifically:

(a) What is in the best interests of a child?;

(b) What is the risk of harm that a child was exposed to prior to the apprehension?;

(c) What is the parent's ability to adequately address that risk of harm?;

(d) Is the parent capable of meeting the child needs if the child were in the parent's full-time care and control?; and

(e) If the parent is not capable of meeting the child's needs, what disposition would be in the child's best interests?

[30] Sufficient Evidence Before Court

Spence J. denied the request for the assessment because there was ample evidence, including a previously prepared psychiatric report containing a diagnosis of a parent and a treatment plan, before the Court. At ¶ 48, Spence J. said, "The court's ability to make the necessary judicial determinations, as required by section 2 of Regulation 25/07, comes not only from the police and medical records but also from mother's on-the-ground behaviours. As I noted in my endorsement on the December 13, 2012 motion, those behaviours have a direct impact on the quality of her interaction with the baby."

[31] Expert Evidence Not Always Required

In a different case authored by Spence J., Chukwunomso v. Ransome, 2017 ONCJ 121 (C.J.), although writing about whether expert evidence is needed to establish emotional harm or a risk of emotional harm, he said, "Expert evidence will sometimes [my emphasis added] be required to establish a risk of emotional harm, but it is not a necessary prerequisite", and "[c]ourts are required to consider not only the available evidence in any case – expert or otherwise – but, as well, judges should employ intelligence and common sense in drawing logical inferences from their general understanding of life itself."

[32] Necessity to Assist Trier of Fact

Although these comments were made concerning the need for expert evidence in cases where emotional harm or risk of emotional harm is alleged, in my view this discussion about the need for expert evidence can have a broader application. Indeed, "necessity to assist the trier of fact" is one of the four admissibility criteria respecting expert evidence. See R. v. Mohan, [1994] 2 SCR 9.

[33] Court's Approach to Dr. Temple's Report

I am following this approach. Dr. Temple's report is a practitioner's report regarding the mother's cognitive abilities. It is admissible pursuant to s. 52 of the Evidence Act. To be clear, I am not treating this report as expert evidence of the mother's parenting capacity. However it is a piece of evidence that I intend to consider along with all of the evidence before me, including the mother's "on-the-ground behaviours" in applying the applicable statutory criteria that I must consider.

[34] Weight of Dr. Temple's Report

I also note that the mother herself acknowledges her cognitive limitations (and did so before Curtis, J.). With these comments in mind and in the absence of any cross-examination on Dr. Temple's report, there is no reason to otherwise discount its weight.

B. Admissibility of Justice Curtis' July 31, 2013 Reasons

[35] Mother's Objection to Curtis J.'s Reasons

The mother also failed to object, initially, when the Society tendered Curtis J.'s 2013 reasons. Then, as set out above, in closing submissions, mother's counsel argued that Curtis J. did not make findings based on the report. Alternatively, he argued that if she did, then mother's former counsel did not object or challenge Dr. Temple's report. Therefore, Curtis J.'s findings should be entitled to less weight also.

[36] Admissibility of Past Parenting Evidence

I reject this alternative submission about weight. I specifically asked, and was told by both counsel, that Curtis J.'s 2013 ruling is admissible as evidence of past parenting pursuant to s. 50(1)(b) of the Act. I intend to consider Curtis J.'s 2013 decision according to the principles summarized by Sherr J. at ¶56 and 57 of Children's Aid Society of Toronto v. S.C.-W., 2016 ONCJ 234 (C.J.):

[56] Past conduct evidence must not be permitted to suffocate evidence of a parent's current conduct, circumstances and functioning. The real relevance of past parenting evidence is the extent to which it provides a reliable backdrop against which to measure the extent to which the parents' abilities and circumstances have changed. See: Waterloo Region v. R.C. and M.S., [1994] O.J. No. 2955, (Ont. Prov. Div.); Catholic Children's Aid Society of Toronto v. C.S., 2010 ONCJ 656, [2010] O.J. No. 5831 (OCJ).

[57] The admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge or determinative of the result. However, where a parent's previous children have recently been made crown wards, there is a tactical burden on the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that was found to exist in relation to the earlier children. See: Children's Aid Society of Niagara Region v. D.P. and S.B. (No. 3), [2003] O.J. No. 619, (Ont. Fam. Ct.); Catholic Children's Aid Society of Toronto v. L.M., 2011 ONCJ 146, [2011] O.J. No. 1361 (OCJ); Catholic Children's Aid Society of Toronto v. C.T., [2012] O.J. No. 2716.

[37] Proportional Approach to Past Parenting Evidence

In this case, the Society did not introduce 'suffocating' evidence of past parenting. It took a proportional approach and introduced only Curtis J.'s reasons dated July 31, 2013 and Dr. Temple's report.

[38] Weight of Curtis J.'s Findings

Although Curtis J.'s findings were made concerning a different child, this current case concerns the same mother and similar issues. Curtis J.'s findings are properly before this Court for the purpose articulated above, and they are entitled to weight. See British Columbia (Attorney General) v. Malik, 2011 SCC 18 at ¶37-48.

PART III: PRIOR PROCEEDINGS

[39] Prior Court Orders

This Court made the following Orders prior to trial:

(a) On November 21, 2014, Scully J. made a temporary without prejudice order placing T.O.H. in the care of the Society, with access to the mother in the Society's discretion. The parties contemplated that access would be a minimum of twice per week for 1 hour;

(b) On November 26, 2015, Murray J. made a temporary without prejudice order placing T.J.H. in the care of the Society with access on the same terms as that ordered by Scully J. Murray J. also ordered the Society to advise whether it could provide 3 visits per week;

(c) On January 11, 2016, Cohen J. dispensed with service on T.O.H.'s father, K.W.;

(d) On August 25, 2016, Cohen J. dispensed with service on the unknown father of T.J.H.;

(e) As set out above, on July 26, 2017, O'Connell J. ruled on a summary judgment motion, made the statutory findings required by s. 47(2) of the Act and made a finding that the children are in need of protection pursuant to ss. 37(2)(b)(i) and (ii). The balance of O'Connell J.'s endorsement consists of directions to ensure that this trial proceeded expeditiously and in an organized fashion; and

(f) As set out above, on September 19, 2017, at assignment court, O'Connell J. denied the Society's request for an adjournment to obtain an assessment of the mother's parenting capacity, and scheduled this trial. She also made some orders respecting the delivery of the Society's affidavit evidence.

PART IV: ISSUES, FINDINGS OF FACT AND ANALYSIS

A. Relevant Statutory Provisions and Applicable Legal Principles Relating to Disposition

[40] Statutory Framework for Disposition

As a finding that the children are in need of protection has already been made, I am dealing with disposition only. I begin by reproducing the relevant statutory provisions relating to disposition:

Society's plan for child

56. The court shall, before making an order under section 57, 57.1, 65 or 65.2, obtain and consider a plan for the child's care prepared in writing by the society and including,

(a) a description of the services to be provided to remedy the condition or situation on the basis of which the child was found to be in need of protection;

(b) a statement of the criteria by which the society will determine when its wardship or supervision is no longer required;

(c) an estimate of the time required to achieve the purpose of the society's intervention;

(d) where the society proposes to remove or has removed the child from a person's care,

(i) an explanation of why the child cannot be adequately protected while in the person's care, and a description of any past efforts to do so, and

(ii) a statement of what efforts, if any, are planned to maintain the child's contact with the person;

(e) where the society proposes to remove or has removed the child from a person's care permanently, a description of the arrangements made or being made for the child's long-term stable placement; and

(f) a description of the arrangements made or being made to recognize the importance of the child's culture and to preserve the child's heritage, traditions and cultural identity.

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.

Court to inquire

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part.

Less disruptive alternatives preferred

(3) The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.

Community placement to be considered

(4) Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.

Terms and conditions of supervision order

(8) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on,

(i) the child's parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.

[41] Best Interests Test

As a decision under s. 57 is made in the children's best interests, I must apply the statutory best interests test set out in s. 37(3) of the Act. It reads:

Best interests of child

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

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

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

3. The child's cultural background.

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

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

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

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

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

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

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

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

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

13. Any other relevant circumstance.

[42] Statutory Pathway for Disposition

At ¶ 25 of C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 (S.C.J.), Perkins J. set out the statutory pathway following a finding that the children are in need of protection. Regarding disposition, Perkins J. said:

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.

[43] No Extension of Society Wardship

Neither party requested that I extend the timelines pursuant to s. 70(4) of the Act and make an order for Society wardship and in any event, such an order would not be in the children's best interests in this case. These children need certainty, finality and permanence.

B. Services Made Available to the Mother

[44] Society's Long-Term Involvement

Pursuant to s. 57(2) of the Act, I am required to consider the efforts the Society or another agency or person has made to assist the mother prior to intervention under Part III of the Act. At ¶58 of the July 31, 2013 reasons, Curtis J. found that the Society has been involved with the mother for many years, through her parenting of the two older children and then T.H., the child who was the subject of the proceeding before her.

[45] Recent Services and Support

The more recent evidence before me reveals that mother has had the assistance of several Family Service Workers since December 2014, a Family Support Worker from December 15, 2014 to April 20, 2015, and again from November 2, 2015 to May 16, 2016. These workers have made referrals, liaised with third parties involved with the mother, met with the mother and discussed her plan and the ways they could address protection concerns, provided parenting advice and direction during visits, and support, intervention and teaching to her.

[46] Therapeutic Access Program

From September 19, 2017 to October 26, 2017, the mother was involved in the Therapeutic Access Program ("TAP")[1], a program which she had participated in previously (which Curtis J. also referred to in her reasons). During this time frame, the mother had 8 hours per week (44 hours in total) to practice and demonstrate safe parenting, and to help her learn new parenting skills.

[47] Central Neighbourhood House Support

The mother has the support of Central Neighbourhood House, although I was given very little evidence about the supports she is receiving from them.

C. The Society's Evidence

[48] Society's Witnesses

At trial, the Society introduced evidence from:

(a) V.T., the children's foster mother;

(b) Family Service Worker, Caroline Lutfy;

(c) Family Service Worker, Azmir Muhammad;

(d) Family Service Worker, Ana Viera;

(e) Family support worker, Youli Arsenault;

(f) Family Service Worker, Chan Nankoosingh;

(g) Therapeutic Access Program Coordinator, Shannon Deacon;

(h) Children's Service Worker, Krystal Griffiths; and

(i) Adoption worker, Mary Allan.

[49] Focus of Mother's Evidence

The majority of the mother's evidence in chief (by affidavit) and her counsel's cross-examination of the Society's witnesses, focused on her access visits with the children, and her attendance at T.O.H.'s health appointments.

[50] Credibility of Society's Witnesses

I found the Society's witnesses to be credible. For example, each worker fairly conceded positive aspects of the mother's interactions with the children at visits. None of the Society's witnesses were impugned on cross-examination.

D. The Children's Best Interests

(1) Justice Curtis' July 31, 2013 Findings

[51] Curtis J.'s Findings Regarding the Mother

In the July 31, 2013 reasons, among other things, Curtis J. found:

(a) The mother's cognitive ability is limited;

(b) The mother had a limited ability to care for the child [T.H.] independently;

(c) The mother received 92 hours of parenting and teaching time through TAP between September 11 and December 5, 2012. Her involvement in the program had been previously terminated for a number of reasons, primarily related to her attitude and unwillingness to engage in the program and accept feedback;

(d) The mother had difficulty with instrumental care of the child during visits;

(e) The mother required basic instructions about child care, such as constant reminders to support the child's head and neck while holding the child;

(f) The mother changed the child's diaper on her lap instead of using the change table;

(g) The mother could not properly prepare the baby formula. She argued with the social worker at access about preparing formula, saying she will make it "her way", despite explanations about the need to follow the manufacturer's instructions and the importance of this, as this was the only source of nutrition for the infant during this stage;

(h) The mother refused to follow instructions and got angry;

(i) The mother missed the child's cues (for example, that the child was not hungry when rejecting the meal, or showing disinterest in the bottle);

(j) The mother struggled with the child's instrumental care, including with feeding and sleep hygiene;

(k) The mother had difficulty adapting her parenting to help the child develop and grow and stimulate his learning;

(l) She was unable to process new or changing information;

(m) She was unable to put the child's needs ahead of her own;

(n) The mother struggled to meet her own needs and demonstrated only a marginal ability to care for herself;

(o) She didn't make healthy choices; and

(p) She easily became distracted.

[52] Ongoing Similar Problems

Throughout this trial, I heard a considerable amount of evidence of similar ongoing problems.

(2) The Society's Efforts to Teach the Mother to Parent Have Failed

[53] Children's Needs Will Not Be Met

Regarding s. 37(3)(1.) of the Act, I find that the children's physical, mental and emotional needs will not be met if the children are returned to their mother's care.

[54] Mother's Continued Resistance to Teaching

As set out above, the mother received a further 44 parenting and teaching hours from TAP between September 19 to October 26, 2017. Shannon Deacon's assessment noted that her concerns from her previous involvement with the mother remain. According to her, the mother continues to have difficulty working cooperatively with supports, leaving the children at risk of the limitations identified in her parenting. She continues to resist teaching and intervention, giving rise to a concern about her parenting and her ability to accept the support she and the children would need.

[55] Ms. Deacon's Concerns

Ms. Deacon worries about how the mother would attend to the children's basic emotional needs, manage the care of two children simultaneously, and stimulate and attend to their growth and development. She worries that the mother is punitive with the children, that she gets angry, that the children might get scared or even physically hurt, that the mother won't follow through with professional recommendations and that the children might not reach their full potential. She also is concerned that the mother has not demonstrated an ability to engage with the Society.

[56] Mother's Ongoing Deficits

The mother continues to have difficulty recognizing and adapting to what the children need, problem solving day-to-day parenting dilemmas, and coping with her own feelings and stress in a way that would keep the children safe from harm.

[57] Multiple Workers' Concerns

Family Service Workers Ms. Lutfy, Ms. Viera, Ms. Nankoosingh, family support worker Ms. Arsenault, TAP coordinator Ms. Deacon, and Children's Service Worker Ms. Griffiths each provided multiple instances of the mother resisting the teaching and intervention offered to her, leaving each concerned about the mother's parenting and her willingness and ability to accept the support she and the children would need. They each provided multiple examples of the mother refusing or being unable to accept directions and suggestions respecting her parenting.

[58] Examples of Mother's Resistance to Support

For example, Ms. Arsenault supported 42 visits, spanning 98 hours between January 5, 2015 and April 20, 2015, and a further 36 hours between December 14, 2015 to May 16, 2016. Some examples are:

February 11, 2015: The mother says: "I know what I will do. What I always do" when Ms. Arsenault speaks to the mother about the importance of parenting tasks and developmental activities to practice during access.

February 25, 2015: Ms. Arsenault reviews positives and worries regarding safety with the mother. She responds "I know" and walks away.

March 9, 2015: The mother becomes agitated and snaps at Ms. Arsenault when she attempts to debrief about the importance of remaining alert during visits and addressing the safety issues arising from that, stating "I know that" and walking away.

March 30, 2015: T.O.H. is fussy and distressed during visit. When he refused a bottle, the mother forced it into his mouth and told him to "stop your cursing". The mother then attempted to clean out T.O.H.'s ears with long, acrylic nails. T.O.H. is uncomfortable and squirming. Ms. Arsenault reminds the mother about the concern over bacteria that can cause ear infections. The mother becomes angry and yells "I understand". She also mouthed "fuck you" at the window.

December 14, 2015: Ms. Arsenault suggests some developmental activities for the children and the mother turns her back and says "I don't need help"

December 21, 2015: Ms. Arsenault speaks about stimulation for the children using floor space and the mother yells: "Don't tell me this. I always do this." Attempts to de-escalate the mother are unsuccessful. She states "Don't' talk to me" and walks away.

January 11, 2016: Ms. Arsenault attempts to prompt the mother and she states "I need no help"

February 22, 2016: Ms. Arsenault reminds the mother that the children need sufficient stimulation (through toys, play, face to face contact or reading). The mother becomes hostile and agitated.

February 29, 2016: The mother is explosive and dismissive with Ms. Arsenault while reviewing expectations of her visits and level of understanding. She states "I don't need support and teaching. I teach my friends."

April 11, 2016: The mother yells at Ms. Arsenault when she expresses concerns over T.O.H. experiencing the mother differently from T.J.H.: "I am a professional. I know what I'm doing so don't tell me".

May 2, 2016: The mother tells Ms. Arsenault, in response to attempting to review the visit "I'm a professional. I already told you…. Listen, Honey. Don't tell me anything". The mother walks away, swearing.

[59] No Cross-Examination of Ms. Arsenault

The mother did not cross-examine Ms. Arsenault respecting her evidence.

[60] Ms. Deacon's Observations of Lack of Improvement

Ms. Deacon did not note any significant improvements in the mother's parenting over the course of the 5 weeks of participation in the program. Some examples from Ms. Deacon's evidence are:

September 19, 2017: The mother disputes Ms. Deacon's suggestion to move to a calmer, quieter area to settle the children for their nap, ignores the suggestion to ask the foster mother for strategies for getting the boys to sleep or to help the boys eat. The mother maintains she would do exactly as she had done that day when she struggled to put the boys down for their nap.

September 21, 2017: The mother does not respond to Ms. Deacon's suggestion of using a baby gate to keep the children from wandering off. She does not implement the suggestion.

October 3, 2017: The mother ignores Ms. Deacon's prompts and reminder to keep the boys in sight.

(3) The Children Will Not Be Safe in the Mother's Care Pursuant to A Supervision Order

[61] Examples of Risk of Harm

The children will not be safe in the mother's care pursuant to a supervision order. Some examples are:

(a) On March 25, 2015, the mother demonstrated a rapid emotional fluctuation from alertness to falling asleep, from abruptness to hostility to T.O.H., to leaving the room entirely. The mother was unable to respond to T.O.H.'s cues and responded aggressively when he fussed. The mother told 4 month old T.O.H. to "quit whining, I'm not going to tolerate this behavior" in a hostile tone;

(b) The incident on March 30, 2015 referred to above is also an example of risk of harm to the children;

(c) On February 29, 2016, the mother was agitated, and left T.O.H. to cry in his crib alone. When Ms. Arsenault intervened to soothe T.O.H., the mother demanded that she "Leave him alone. He can cry." She then approached Ms. Arsenault and continued to demand "I said leave him alone he's fine in the crib crying." When she finally allowed T.O.H. out of his crib, he crawled over and placed his mouth on a baby bouncer. When he did not immediately stop after the mother told him "No", she forcefully moved his face away. T.O.H. cried and crawled away and became quiet;

(d) On April 18, 2016, the mother refused Ms. Arsenault's suggestions to keep T.O.H. safe, as he was repeatedly crawling out of the room into the hallway. Ms. Arsenault was the one who had to close the door to the room. When T.O.H. leaned over the top of the railing of the crib dangerously, the mother dismissed Ms. Arsenault's suggestion of taking him out of the crib and physically grabbed Ms. Arsenault to prevent her from doing so;

(e) On July 7, 2017, the mother became angry and physically aggressive with T.O.H. when he did not spit out grapes he had in his mouth. The mother responded by forcibly grabbing T.O.H.'s cheeks, putting her fingers in his mouth, and digging out the grapes while T.O.H. struggled in his high chair. She dismissed Ms. Viera's intervention and only stopped when Ms. Viera advised she will need to end the visit if she continued;

(f) On September 28, 2017, Ms. Griffiths observed the mother to be physically aggressive towards T.J.H. when he did not settle down for his nap, pulling his arms to force him to lay down, pushing his head down, grasping his upper arms, and covering his face with her hand;

(g) On September 28, 2017, the mother left T.J.H. in his high chair, upset. She left the room and returned to find T.J.H. flinging his head backwards, in his frustration, hitting his head on the back of the high chair. The mother then raised her voice at T.J.H. to tell him to stop banging his head. Ms. Nankoosingh then need to intervene to prevent him from getting hurt;

(h) Ms. Nankoosingh testified about an incident where the mother left the children's stroller to grab a ball that had rolled out into the street. This incident happened quickly. In cross-examination, Ms. Nankoosingh was adamant that the mother did not place the safety brake on the stroller first before entering the street. Ms. Nankoosingh had to intervene. Ms. Nankoosingh had asked the mother not to let the boys have a ball during the walk in the first instance; and

(i) Ms. Nankoosingh also testified that during a game at the park, the mother ran ahead and left the children behind under Ms. Nankoosingh's watch.

(4) The Mother Is Unable to Manage The Children's Health

[62] Concerns About Health Management

With respect to s. 37(3)(1.) and (2.) of the Act, I have serious concerns about the mother's ability to manage T.O.H.'s special needs if I returned him to the mother's care. Moreover, although T.J.H. is healthy, based on her conduct concerning the management of T.O.H.'s health and her interactions with the Society, I would have concerns about her ability to manage even more minor or routine health issues as they present in T.J.H.

[63] Frequency of Medical Appointments

From January 1, 2017 to October 18, 2017 alone, T.O.H. has had 31 medical appointments. Although I heard from the foster mother that the mother attends "most of the time" to T.O.H.'s doctor's, speech therapy and appointments at the Holland Bloorview Kids Rehabilitation Hospital, I heard evidence that the mother missed a number of appointments, came late to others and was dismissive of the professional recommendations she was given.

[64] Late Arrival to Developmental Assessment

More particularly, the evidence revealed that the mother arrived at T.O.H.'s developmental assessment on October 11, 2016 at Holland Bloorview Kids Rehabilitation Hospital as it was ending. This was the assessment at which T.O.H. was diagnosed with global developmental delay.

[65] Distraction During Appointments

The mother came late to two of T.O.H.'s medical appointments in the spring of 2017. She was distracted during these appointments and did not engage.

[66] Late Arrival Despite Support

On September 26, 2017, she arrived 40 minutes late for an occupational therapy appointment and complained that she "did not like mornings". She arrived late for a doctor's appointment despite having the assistance of two students from Central Neighborhood House, the agency providing her with support.

[67] Missed Appointments Prior to Trial

The mother didn't attend a speech and language appointment on September 12, 2017, or physiotherapy and occupational therapy follow-up appointments on October 18, 2017 at all. This is significant as she did not attend appointments just prior to trial at a time she knew she was under the watch of the Society and the Court.

[68] Importance of Attending All Appointments

It is important that the child not miss any of his appointments.

[69] Dismissive of Professional Recommendations

In addition to coming late to, or missing health appointments, the Society's evidence, which I accept, is that the mother was at best dismissive of health and other parenting recommendations and often argumentative and angry.

[70] Concerns About Mother's Plan for Health Management

I am also concerned about the mother's plan respecting the management of the children's health. I find that if the mother's plan is implemented it will result in unnecessary and potentially harmful changes to the medical care that T.O.H. in particular is receiving.

(5) The Children's Relationships and Emotional Ties to the Mother, Extended Family and Community

[71] Mother-Child Relationship

Regarding the children's relationships and emotional ties to the mother, to each other and to extended family, which I am considering pursuant to s. 37(3)(6.) of the Act, both children do have a relationship with their mother. However, they have both been in care for their entire lives. The mother has only had supervised access, with the longest visit being 4 hours.

[72] Positive and Negative Aspects of Visits

While the mother's affidavit evidence and this cross-examination of the Society's witnesses revealed that there were positive aspects of the mother's interactions with the boys and uneventful interactions with the Society, in many instances, the cross-examination revealed examples that were not uniformly positive. The evidence as a whole, coupled with any risk of harm that may be occasioned from terminating the boys' relationship with their mother, is insufficient to outweigh my analysis of the applicable statutory factors, applied to the evidence as a whole, which in my view supports the order for Crown wardship that I am making.

[73] Sibling Relationship

There is no evidence of T.O.H. and T.J.H. having any relationship to any other member of their extended family, their older siblings or other relative. However, they do have a close relationship with one another. The foster mother testified about how the boys rely on each other and how they act when they are apart. They miss each other when they are apart.

[74] Society's Plan for Sibling Placement

The Society indicated that even though the boys currently reside in the same foster home and the plan is that they will be adopted into the same home, the Society consents to an order for sibling access so that they will be access holders for the purposes of openness if they are not placed in the same home for some reason.

(6) The Importance of Continuity in the Child's Care and the Possible Effect on the Child of Disruption of that Continuity

[75] Disruption of Continuity

The foster mother testified that she is not in a position to adopt the children, but she is prepared to continue to foster them until a permanent placement. As a result, they will likely be moved by any decision of this Court. However, it is not just a change to the child's caregiver that will disrupt the continuity of care the boys are now receiving. Again, as I will explain below, the mother's plan includes changes to T.O.H.'s existing relationships with his health care providers. A return to the mother will be destabilizing.

(7) The Importance for the Children's Development of a Positive Relationship With a Parent and a Secure Place as a Member of a Family

[76] Society's Adoption Plan

Pursuant to ss. 37(3)(8.) and 56 of the Act I am required to consider the Society's plan. The Society's plan is to find a permanent, stable home for the children through adoption. There is no serious dispute that the children are adoptable. This factor is in their best interests, but also having regard to s. 37(3)(5.) of the Act.

(8) The Mother's Plan Is Insufficient to Meet the Children's Needs

[77] Mother's Lack of Understanding

A considerable amount of the mother's plan necessarily focuses on the management of T.O.H.'s health needs. While the mother presented a detailed plan for the care of the children that includes the support of third party professionals, through the Society's cross-examination, it was readily apparent that the mother has little ability or willingness to implement several important components of her plan. I conclude that the mother lacks a fundamental understanding of both T.O.H.'s complex health needs, but also both children's needs generally.

[78] Mother's Testimony About Children's Needs

For example, in cross-examination, despite the detail articulated on her written plan in the affidavit, the mother stated more than once that the children need their mother and their siblings and love. She also said that T.O.H. is "a perfectly normal child". He will develop perfectly fine if he has his mother, patience and understanding.

[79] Mother's Claimed Changes

When asked about the changes she had made since the decision of Curtis J., she said "my kids are perfectly fine". She said that one of the changes she made is that she cooperates, but all the Society does is "judge". She said she would meet their needs if the children are returned, but offered little detail. She said that she doesn't need anyone in her home to help her care for the children. Her life will be "at peace" once the kids are home.

[80] Mother's Approach to Health Care

She said that she never heard the Society mention that T.O.H. needs a developmental pediatrician. She doesn't think he needs to attend a lot of appointments. She said that if there is a problem with T.O.H., she will take him to the doctor. She also readily stated that in the future, if she disagrees with the recommendations of a treating health professional, she will get a second opinion and possibly multiple opinions after that. She said she would continue to source opinions until she found someone on her side. She said she would do her own research on her computer. I am at a loss to understand why she would propose to change the children's health care providers already in place as part of her plan.

[81] Mother's Knowledge of Therapies

She was able to provide only a brief oral explanation as to the exercises and therapies that must be practiced with T.O.H. at home and I was given no evidence about what the mother has done to learn about this. She testified that she will decide what practice T.O.H. needs at home and if it is not needed, then she will "let him be a child". She said if he needs "coloring, paper or beads" she will get those. Whereas the foster mother's evidence was that she maintains a chart and must do exercises and therapies with the boys daily.

[82] Mother's Lack of Understanding of CCAC

The mother was also unable to explain what "CCAC" is, although it is a component of her plan.

[83] Mother's Fundamental Deficits

The mother either fails to understand the level of special needs T.O.H. has, or she is not able or willing to accept that diverse and multiple treatments by various professionals will be needed. Even if neither child had special needs, both boys require a caregiver to meet all their physical, mental, and emotional needs. They are wholly dependent on their caregiver to provide them with the necessities of life, to ensure their safety, and for their growth and development and the mother falls short in this regard.

[84] Concerns About Family Support

Although her mother and extended family are part of her plan for babysitting, she also admitted in cross-examination that she did not want to put pressure on her mother.

[85] Mother's Denial of Need for Support

She testified that there will be little to no adjustments if the children are returned to her care. There will be "no challenges". Yet the evidence at trial established that the mother needs a high degree of life and parenting support from third parties, that she does not acknowledge she needs or would benefit her or the children and that she is not amenable to accepting.

[86] Dr. Temple's Recommendation Not Followed

In 2012, Dr. Temple recommended that the mother obtain an Adult Protective Services Worker. Curtis J. found that she did not follow through.

[87] Curtis J.'s Findings on Lack of Insight

At paragraph 79 of her reasons, Curtis J. further held:

The mother does not acknowledge she requires a high level of support to be able to parent the child. The mother is not involved in supportive psychiatric or psychological services of any kind, or counseling. There was no evidence, letter, or report from any service provider regarding the mother's participation, and nothing which would support her plan. The mother lacks insight into her situation, which suggests that she is unlikely to be able to change and that she is unable to be able to reduce the risk to her child.

[88] Continued Refusal of Adult Protective Services

The evidence today is that the mother is not working with any such psychiatric or psychological services, or counselling. She is not working with an Adult Protective Services Worker. Except for some undefined period in the past that the mother describes as "not helpful", her refusal to use this service has been ongoing for over 4 years. Indeed, the mother did not take any serious steps to set this up before the summary judgment motion Curtis J. heard in 2013. The Society continued to make efforts to change the mother's mind regarding this worker. On June 30, 2015, Ms. Lufty tried to get her to re-engage but she refused. She continues to say that she does not need this service. Engaging this service is not part of her plan of care.

[89] Failure to Attend Parenting Programs

The mother has not attended a single parenting program since T.O.H. was born three years ago. It is undisputed that Ms. Lutfy recommended and provided the mother with a list of parenting/child development groups and contact information for parenting resources. In cross-examination, the mother justified her failure to attend saying that she would only attend a parenting program with the children. She wants to attend the Surrey Place "Parenting Enhancement Program". The children must be in her care for this. She also testified that she doesn't need any parenting intervention. She admitted in cross-examination that she telephoned Surrey Place about this 3 or 4 months ago, that there is space for her to attend but that she doesn't know much about the program. I have no faith that she will follow through if the children are returned to her care.

[90] Public Health Involvement

The involvement of "public health" is part of her plan. Yet she testified that she only just contacted public health days before the trial. She said they will provide a home visit and play time with the children.

[91] Central Neighbourhood House Support

The mother's plan includes support from Central Neighbourhood House. But the mother did not call any evidence as to what services Central Neighbourhood House will provide. Nor did the mother call any independent evidence to support her bald assertion that she has an "excellent working relationship with Ms. [Sandra] Costa" (from Central Neighbourhood House). Meanwhile, Ms. Lutfy's evidence is that Ms. Costa attended only two access visits in the ten months she was the Family Service Worker. Ms. Griffiths' evidence was that the mother's supports appeared scared of her. In my view, it was incumbent upon the mother to call this evidence. The support of Central Neighbourhood House is a central component of the mother's plan and the evidence about it is lacking.

E. Lack of Community Placements

[92] No Alternative Community Placements

Section 57(4) of the Act requires that I consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection 57(1) with the consent of the relative or other person. No other family or community plans have been put forward to plan for the children.

F. There are No Less Disruptive Alternatives

[93] Inadequacy of Less Disruptive Alternatives

Section 57(3) of the Act prohibits me from making an order for Crown wardship unless I am satisfied that less disruptive alternatives, including non-residential services and the assistance that I have outlined above, would be inadequate to protect the child. I have already found that the children would not be safe if they were returned to the mother's care and that their needs would not be met.

[94] Supervision Order Would Be Inadequate

I also find that a supervision order would be inadequate to protect the children based on the mother's wholesale refusal to work with the Society.

[95] Importance of Cooperation with Society

In Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, a case also involving a mother with cognitive limitations, Justice Jones emphasized the importance of a parent's ability to work honestly and cooperatively with the Society and other helping professionals. She held that there must be sufficient trust between the Society and the mother for a genuine therapeutic alliance to be formed or for there to be a successful outcome. See Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, [2012] O.J. No. 4019 (C.J.) at ¶41.

[96] Curtis J.'s Comments on Supervision Orders

In Catholic Children's Aid Society of Toronto v. T.M. and P.R., (2016), Curtis J. made similar comments at ¶115-117:

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

[116] The court must then ask: has the mother taken the necessary steps to establish that her behaviour has sufficiently changed so that a supervision order could adequately protect the children from any risk of harm?

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

[97] Mother's Resistance to Working with Society

In this case, mother's counsel asks the Court to accept that the mother's resistance to working with the Society and others stems from the fact that she is "proud", and at times she has felt belittled by Society workers. While this may be, the evidence of the mother's opposition to getting help and to working with the Society is overwhelming.

[98] Mother's Own Testimony

In addition to hearing the Society's witnesses' experiences dealing with the mother, I also heard the mother herself say in cross-examination that she does not need help. She said she would only follow through with Society recommendations if they are manageable. She doesn't trust the Society and if she had an issue with parenting she wouldn't tell a worker at the Society.

[99] Mother's Behaviour and Demeanor at Trial

And I observed the mother's behaviour and demeanor closely throughout the trial. I watched the mother both during her testimony, and also while she remained seated at counsel table listening to the other witnesses testify. At times, it appeared as if she were falling asleep. I noted this because the Society's evidence included observations that the mother fell asleep during visits.

[100] Mother's Emotional Control

At other times she was visibly angry. While I appreciate that it was difficult for the mother to hear the Society's witnesses testify against her, at times she was unable to control her emotions. Several times during the trial, she angrily shook her head and made statements under her breath. At one point during Ms. Ng's cross-examination, she rudely confronted Ms. Ng, asking her if she was a "mother". She very clearly told Ms. Ng that she doesn't need help, and she doesn't trust the Society.

[101] Children's Entitlement to Certainty and Safety

I echo Curtis J.'s comments at paragraph 83 of the July 31, 2013 reasons. These children are entitled to certainty, finality and to grow up in a safe and stable family, where they are valued and protected from harm. They will not have this if returned to the mother.

[102] Sherr J.'s Comments on Extended Access

I also find Sherr J.'s comments at ¶140 of Children's Aid Society of Toronto v. R.H., 2016 ONCJ 181 (C.J.) instructive:

The mother has only had supervised access with the child since 2012. It would be irresponsible for a court to return the child to her care until she could demonstrate that she could adequately parent the child without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the child with the mother without first testing whether she could adequately parent him, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for at least 9 months to a year for the court to effectively evaluate whether a return of the child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child on an extended basis. The time to attempt extended access in this manner has long passed as the statutory timelines in the Act have been exceeded.

[103] Court's Refusal to Experiment

I am not prepared to experiment with the children's lives in this fashion. In this case, the mother has had ample opportunity to demonstrate an ability to work with the Society and learn how to parent. She has squandered it.

G. The Mother's Request for Access

[104] Statutory Test for Crown Ward Access

Section 59(2.1) of the Act governs claims for access when a child is made a Crown ward. Section 59(2.1) states:

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.

[105] Rebuttable Presumption Against Access

Section 59(2.1) contains a rebuttable presumption against the making of an access order whenever a child is made a Crown ward. The presumption may be rebutted only if the Court is satisfied that the person claiming access can satisfy both prongs of the test contained in s. 59(2.1). Access is the exception in a crown wardship order.

[106] Statutory Pathway for Access

Perkins J. statutory pathway in C.A.S. of Toronto v. T.L. and E.B., 2010 ONSC 1376 (S.C.J.) is also instructive respecting access. At ¶ 25 Perkins J. said:

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.)

[107] Relevant Considerations for Section 59(2.1)(a)

In Children's Aid Society of Toronto v. T.R., 2017 ONCJ 505 (C.J.), Paulseth J. sets out the relevant considerations that I must apply pursuant to 59(2.1)(a). I reproduce paragraphs 130-138 as follows:

[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 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.

[108] Access Not Beneficial

On the objective standard, I do not find that the access is beneficial for these children. Although there are some positive aspects to the visits, the findings of fact in this case include that the mother does not behave appropriately in her interactions with them and has very little understanding of how to parent them. My findings have included that she is rough with the boys and uses inappropriate and harsh language and tones towards the children. Even under Society supervision, the mother does not supervise the boys adequately and workers are called upon to intervene. If there were to be any access, it would have to be in a supervised setting and there are a myriad of examples of ongoing problems in that context. The mother is not accepting of the Society's re-direction. I cannot find that access is "beneficial" within the meaning of the statute or the case law.

[109] Access Not Meaningful

I find that access is not meaningful for these children either. From their subjective perspectives, they are very young. They have been in care since birth. I do not have sufficient evidence of a close family bond between the children and their mother. I cannot say that the relationship is significantly advantageous to the children.

[110] Alternative Analysis on Section 59(2.1)(b)

Even though I have found that the mother fails to satisfy the test under s. 59(2.1)(a), if I am wrong, then I am addressing the test under s. 59(2.1)(b) also. I find that she would not meet the test under s. 59(2.1)(b) either.

[111] Relevant Considerations for Section 59(2.1)(b)

I reproduce paragraphs 145 to 152 of Children's Aid Society of Toronto v. T.R., 2017 ONCJ 505 (C.J.), in which Paulseth J. summarizes the relevant considerations that I must apply regarding s. 59(2.1)(b):

[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 ONSC 7564, 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.

[112] Children's Adoptability

Ms. Allen is an experienced adoption worker and I accept her evidence about the boys' adoptability. I find that the children are adoptable. Even though T.O.H. has special needs, the statistics submitted by the Society reveal that out of the 59 children placed for adoption in 2016, 20 of those children had a developmental delay. As set out above, the Society is striving to place these two young children in an adoptive home together. Ms. Allen believes the Society will be able to achieve this. Ms. Allen is an experienced adoption worker and I accept her evidence about the boys' adoptability.

[113] Mother's Opposition to Adoption

If I were to grant the mother an order for access, then the mother will be entitled to apply for openness. My findings in this case are that the mother has difficulty with aggression, anger and impulse control. She will not support an adoption placement. She specifically said that adoption would "never be an option", she would not support the adoptive parent, she said "no next step mother, no nothing" and that she doesn't agree that the adoptive parents should make decisions in the children's best interests.

[114] Access Would Impair Adoption Opportunities

I find that the access order will impair the children's future opportunities for adoption.

PART V: ORDER

[115] Court's Orders

I make the following orders:

(a) The children, T.O.H. and T.J.H., shall be made crown wards;

(b) The mother shall not have any access to the children, T.O.H. and T.J.H.;

(c) T.O.H. is an access holder to his brother, T.J.H.; and

(d) T.J.H. is an access holder to his brother, T.O.H.

Released: November 14, 2017

Signed: Justice Alex Finlayson

Footnotes

[1] TAP is a teaching and assessment program that helps child protection workers create and implement therapeutic access plans for the families they serve.

[2] The mother highlighted the positive aspects of her visits using the Society's case notes. None of the case notes, except for two, were tendered as exhibits during the trial. This evidence included that the mother attended visits often early, showed affection, prepared food and fed the children, changed the children, played with them on the floor, made eye contact, responded to some of their cues, and sang and danced with the children. The mother also communicated with the foster mother in a book. The mother says in her affidavit that no concerns about the children's safety, her energy level, problems with time management, or her ability to receive feedback were noted during many of the visits.

[3] For example, Mr. Muhammed testified that mother arrived late to a visit, that the mother argued with him about feeding, and that the mother on one occasion was angry and aggressive. He said she had a calm voice and an aggressive voice. Mr. Muhammed also testified that the mother lied to him and concealed her pregnancy when he first became involved with this family.

Ms. Vieria expressed a concern that mother did not assist T.O.H. to get off the couch during a visit, and that he might get hurt. On another occasion, the mother put on a video and then became distracted by the video, did not interact with the children and did not monitor them. On yet another occasion, the mother did not secure one child into a high chair. She appeared to fall asleep during another visit, and she had a harsh tone during feeding during another visit because the child was making a mess when eating.

Ms. Nankoosing testified about a number of incidents at different visits. On one occasion, the mother pushed T.J.H. down in the stroller at least 8 times to make him to lie down. She didn't comfort T.J.H. after a nap on another occasion and focused on T.O.H.. She left doors open and the children left the access room unsupervised. She left the room leaving the children unsupervised. She was abrasive towards T.O.H., when he dropped beads on the floor. She was rough with the children. She refused to participate in a family group conference.

In some instances, in re-examination, Society counsel drew out some negative incidents that were glossed over during the mother's cross-examination. For example, Ms. Lufty testified in re-examination that on February 18, 2015, the mother had to be reminded on 4 occasions to support T.O.H.'s head properly. On March 4, 2015, Ms. Lufty testified that the mother angrily scowled at her when she tried to help the mother during feeding.