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 20, 2017

Court File: Toronto: CFO 13 11075

Parties

Between:

Children's Aid Society of Toronto Applicant,

— AND —

L.S.

— AND —

M.C.

Respondents

Before the Court

Before: Justice E.B. Murray

Heard on: October 24-26, 2017

Reasons for Judgment released on: November 20, 2017

Counsel

• Ms. Yvonne Fiamengo — counsel for the applicant society
• Mr. Gilead Kay — counsel for the respondent, L.S.
• Ms. Sharon Worthman — counsel for the respondent, M.C.

Decision

MURRAY, E. B. J.:

Introduction

[1] This is my decision on the Society's amended status review application concerning the child "Tara"[1] S-C, born […], 2013. The Society requests an order of Crown wardship with a view to adoption and an order for access to Mother L.S. L. requests an order placing Tara in her care, pursuant to Society supervision. L. and Father M.C. are separated. M. supports L.'s plan. He asks for an order of access to Tara, regardless of which plan is accepted by the court.

[2] At trial, I heard evidence from Society witnesses: Family Service worker Sarah Townsend, Child's Services worker Natalia Sosa, and foster mother K.T.; from L. and her supports, her sister, T.W., and friend, M.H.; and from M. I also received in evidence an extensive Agreed Statement of Facts, police records concerning each parent, and an assessment of Tara conducted by Dr. Mitesh Patel.

[3] At the start of the trial on October 23, 2017, Tara had been in care for 1140 days – most of her life. As a result, the only options open to the court are an order of Crown wardship or an order returning the child to L., with or without supervision.

Background

Initial Apprehension

[4] Tara was apprehended at birth.

[5] The reasons were multiple, and led to serious concern that the child would be at risk of harm in the care of the parents together or with either of them alone.

[6] Both L. and M. had long histories of drug abuse; their drugs of choice were cocaine, heroin, and OxyContin. Each parent had previously completed a substance abuse program, and had relapsed. Each parent had significant mental health challenges that were not well-managed. L. suffered from major depression; M. suffered from Fetal Alcohol Syndrome Disorder (FASD) and depression. Domestic violence marred their relationship. L. had two older children, "Nora"[2] and "Jack"[3], for whom she was unable to care, and who were in the care of their father, J.S.

[7] Tara was initially placed with a relative of M.'s. That placement quickly broke down, and the child was placed in the foster home of K.T. and G.T.

[8] The Society's application was for a protection finding and a 6-month order of Society wardship. The parents made little progress dealing with the protection concerns; after only 6 months the Society amended to request an order for Crown wardship. No viable family placements were identified.

Progress and Setbacks (2014-2015)

[9] The situation with respect to both parents continued throughout 2014 and into 2015.

[10] With respect to L.:

• She continued to consume illegal drugs.
• Conflict with M. continued. They separated and reconciled several times.
• At other times L. was homeless or in jail.
• L. faced a number of criminal charges for theft, possession of stolen property, and breach of recognizance.
• L. continued to struggle with depression, and worked with a mental health worker and a psychiatrist.
• As a result of her unstable lifestyle, L. missed many visits with Tara.

[11] M. continued to use illegal substances, with periodic stays at detox centres. He continued to accumulate criminal charges, including a charge of assault. He continued to struggle with his mental health. His attendance at visits was spotty.

Summary Judgment Motion (2015)

[12] In January 2015 the Society scheduled a summary judgment motion in which a protection finding and an order of Crown wardship were requested.

[13] The motion was heard on July 6, 2015 by Justice Penny Jones. At the outset of the motion the parties filed an Agreed Statement of Facts setting out the history of each parent's drug usage, and a consent to a finding that Tara was in need of protection pursuant to section 37(2)(b)(i) of the Act. Justice Jones made the finding.

[14] Justice Jones rendered a decision on disposition on September 25, 2015. She found that L. had made significant gains in the four months leading up to the hearing of the motion.

• She had completed a 3-week residential treatment program for substance abuse.
• Although she had committed a theft and had used drugs at least once after completing the program, she had entered a detox centre and had not used drugs since early April, 2015.
• She had separated from M.
• She was attending Alcoholics Anonymous and Narcotics Anonymous in an effort to prevent relapse.
• She had obtained stable housing with the support of the Canadian Mental Health Association.
• She had attended access regularly, and the visits had gone well.

[15] Justice Jones found that L.'s "interactions with Tara have demonstrated that if she were able to remain drug free and mentally healthy, she has the ability to provide more than adequate parenting to this child". She was conscious that, given L.'s history, a relapse might be likely, but observed that some people do conquer long-standing drug addiction. She ordered a mini-trial pursuant to Rule 16(6.2) in which L. and other relevant witnesses would give evidence that would assist the court in determining whether L.'s progress had continued and was likely to be durable.

Return to L.'s Care (2016)

[16] That hearing was held in December, 2016. Before a decision was rendered, the Society changed its position and agreed to return Tara to L.'s care under supervision. The return was delayed because L. was charged with a further criminal offence. Her conditions of release provided that she reside with her surety, M.'s father, H.C. Tara could not be placed with her in that situation.

[17] By May 2016 the criminal charge was resolved. L. returned to her apartment, and Tara was placed in her care on a graduated schedule, first on extended access and, on June 1, 2016, by way of a temporary supervision order.

[18] On August 8, 2016 the parties agreed to a 6-month order placing Tara in L.'s care, subject to Society supervision and a number of conditions. The conditions included provisions that L. refrain from illegal drug use; that she complete urine screens as requested by the Society; and that she insure that Tara attend daycare regularly.

[19] The Society instructed L. that she should personally take Tara to and pick her up from daycare. Thus, daycare staff functioned as another set of community eyes to monitor L.'s continued recovery. Access to M. was at the Society's discretion, in consultation with L., as to duration, frequency and, location and level of supervision. The Society arranged for his access to be supervised at its offices, and directed L. not to arrange contact between him and Tara, and specifically not to permit him to pick Tara up from daycare.

Evidence

Facts as of May 2016

[23] At the time that Tara went into L.'s care in May 2016, L. had assembled a good professional support network. In addition to the Family Services worker Ms. Townsend with whom she had a good relationship, this network included the following people.

• Lindsay Williams, an addictions counsellor from Breakaway Addiction Services. L. had worked with Ms. Williams since December 2013, and met with her weekly.
• Dr. Jeleen Rana, a physician with TrueNorth (later Coderix) Medical Clinic, who monitored L.'s urine screens and her dosage of Suboxone, medication to prevent drug abuse. L. had worked with Dr. Rana for over a year, and met with her weekly. L. was doing urine screens three times a week.
• Mandy Calver, a case management worker from CMHA. L. met with her bi-weekly.

[24] L. was also attending programs at the Elizabeth Fry Association.

[25] L. did not have a large personal support network. As she explained at trial before me, she knew it was important to avoid her former friends, who were involved in a lifestyle of drug use and petty crime. She did, however, have some positive personal supports after Tara was placed with her. That network consisted of her sister, T.W.; the foster mother, K.T.; and D.L., a friend and neighbor.

[26] For some time, L., with J.S.'s agreement, had been having her children Nora and Jack in her care on weekends. This arrangement continued after Tara was placed with her. L. had brought Nora, 8 years old, and Jack, 12 years old, to visits with Tara prior to the child's placement with her.

After Tara Placed with L.: May-December 2016

[27] L. consistently took Tara to daycare at N[…] Early Learning and Childcare Centre. Tara attended there five days a week, from 9 a.m. to 5 p.m. Daycare reported no concerns about the child or about L. to the Society. L. developed a good relationship with staff, and kept in touch with them as to the child's progress. A Toronto Children's Services Special Services worker, Margaret Murphy, monitored Tara's developmental progress. L. kept in touch with her, too.

[28] While Tara was still in care, a problem with her language development was identified. When Tara came into L.'s care, she took the child for assessment and treatment with a Speech and Language specialist. L. incorporated suggestions from the therapist into her interactions with Tara. She read to Tara every night at bedtime.

[29] Other than the problem with her speech, Tara was meeting her developmental milestones.

[30] Tara attended church and bible class with L. on Sundays.

[31] Nora and Jack continued to spend weekends with L. They developed a warm relationship with their little sister.

[32] L. continued to meet regularly with Ms. Williams and Dr. Rana, but those meetings were reduced in frequency to every other week. She did urine screens two times a week. In October 2016 the screens were reduced to one a week. She continued to meet with her CMHA case manager bi-weekly. Mandy Calver was replaced in that position by Francine Umuhoza in October 2016.

[33] L. began meeting with April Trewhitt, a counsellor from CMHA, bi-weekly; this counselling was focused on relapse prevention. She continued programming at Elizabeth Fry.

[34] In October 2016 L. received the good news that her criminal charges were stayed.

[35] L. maintained contact with her sister T.W.. Telephone contact between them was regular, but face to face contact not frequent. T.W. was pregnant, and caring for her two children.

[36] K.T. maintained a friendly relationship with L., involving texts, calls and the occasional lunch.

[37] The Society approved T.W. as an alternate to deliver or pick up Tara from daycare on occasions when it was anticipated that L. would not be available. L. asked that D.L. also be approved, but Ms. Townsend said no, because Ms. D.L. had a "history" with the Society.

[38] Ms. Townsend visited L. monthly. During the November 23, 2016 visit L. told her that she was looking forward to having Tara with her this Christmas, and that her Breakaway worker Ms. Williams was considering closing her file because she was doing so well.

[39] Ms. Townsend had no concerns about the care that L. was providing to Tara.

[40] Ms. Townsend had no concerns about L.'s recovery and stability.

Events Leading to Apprehension

[41] Three events led to Tara's apprehension.

December 15, 2016

[42] On December 15, 2016 L. was arrested for shoplifting from Shopper's Drug Mart and detained overnight. Tara was in daycare. L. contacted T.W., asking her to pick the child up. T.W. was unable to do so. L. then contacted M., who picked Tara up and took her to L.'s apartment. T.W. went to the apartment and cared for the child until L. was released the next day.

[43] L. did not advise Ms. Townsend of her arrest until December 20, 2016. She said that she had been stressed because she and Tara had lice. She reassured Ms. Townsend that she had not been using any drugs. Ms. Townsend contacted the daycare, who advised that Tara continued to be doing well.

[44] Ms. Townsend discussed the event with her supervisor, and they agreed that this appeared to be an isolated incident. Ms. Townsend met with L. on December 22, 2016 to discuss how to tighten her safety plan. L. assured her that she had now reached out to all of her supports and that she was feeling good. She had increased her anti-depressant medication, and this was helping. She planned to enroll in a trauma group and in the Theft and Fraud program at Elizabeth Fry. She was cautioned not to let M. pick the child up from daycare. She and Ms. Townsend agreed to hold a Family Group Conference in the New Year.

[45] Ms. Townsend was on vacation for the holiday from December 23, 2016 to January 3, 2017.

December 28-29, 2016

[46] On December 28, 2016 L. dropped Tara at daycare and went to Elizabeth Fry to start the Theft and Fraud program. As she left she met an old friend, L.C.. Ms. L.C. invited her to go to an apartment where she was staying. They arrived, and sat at the kitchen table to catch up – L. had not seen Ms. L.C. for 5 years.

[47] Sometime after they arrived, two men appeared from other rooms in the apartment. L. became aware that they were smoking crystal meth. She decided to leave, but did not do so immediately. Ms. L.C. left to run an errand. L. then went to the bathroom, intending to leave as soon as she was finished. Upon exiting she took a sip of water from her water bottle. L. says it was then about 3 p.m.

[48] L.'s evidence is that she has no memory of what followed. The next thing she knew, she awoke in the 10th floor stairwell of the building which she was visiting at 10:30 p.m. December 29, 2016. She felt unwell, scared and confused, and left the building.

[49] L. denies voluntarily consuming drugs, but concludes that she must have been drugged, perhaps by someone doctoring her water bottle. Although she did not believe she was assaulted that evening, she went to a hospital to be checked.

[50] When L. did not pick Tara up from daycare on December 28th, the daycare contacted T.W.. Although it was difficult for her, T.W. managed to pick Tara up. She cared for the child that night, and brought her to daycare on December 29th.

[51] When L. did not appear on December 29th, T.W. filed a Missing Persons report. Daycare contacted the Society, and a duty worker, Shannon Paul, met with T.W. and L. It was agreed that Tara would stay with T.W. until Ms. Townsend returned to work January 3rd and could investigate.

[52] When Ms. Townsend returned she again spoke to daycare and met with L.

[53] Ms. Townsend expressed concern at L.'s decision to meet with Ms. L.C. and not to leave immediately when she saw drug use in the apartment. L. agreed that she had shown poor judgment, and assured her that she would continue to work on relapse prevention with her supports. It was agreed that L. would return to the initial tighter safety plan, with more frequent urine screens and more frequent meetings with her professional supports. Ms. Townsend and L. agreed to try to arrange the Family Group Conference soon.

[54] L. testified that at this meeting she asked whether the Society could provide respite care for her from time to time. Ms. Townsend's evidence is that she did not recall the request, but that in any event, the Society does not provide respite care for parents.

[55] Ms. Townsend stepped up her contact with L., and in January met with her weekly. L. appeared to be stable. Tara continued to do well.

[56] L. arranged for Tara to spend two weekends with the T.s, the second weekend being January 28-29, 2017. The Society was not advised of this arrangement.

[57] Despite the concerns that Ms. Townsend had about L., in its Status Review Application of January 12, 2017 the Society requested a further order keeping Tara in L.'s care pursuant to Society supervision.

January 31, 2017

[58] On January 31, 2017 L. dropped Tara off at daycare. She had breakfast, and went to give a urine sample. She returned home.

[59] L. was feeling stressed. At about 2 p.m. she called a dealer to get crack cocaine. The drugs arrived in about 30 minutes, and she consumed them. At some point she went to sleep, and slept through the night.

[60] L. did not pick Tara up from daycare that day. She did not call T.W. or anyone, including Ms. Townsend, asking them to get Tara. Daycare staff called the Society. An after-hours worker texted L. and received no reply. The worker contacted T.W.; she was in the late stages of pregnancy, and unable to care for Tara. The worker tried to contact J.S. and D.L., without success.

[61] Tara was apprehended at 8:30 p.m.

[62] In her evidence in chief, L. said that she had tried to contact some supports that day before consuming crack, without success. In cross-examination L. admitted that she had not tried to contact them.

Facts Since the Apprehension

[20] On January 31, 2017 Tara was apprehended by the Society. As L. requested, Tara was placed again with K.T. and G.T.

[21] The events which led to the apprehension are set out below. A temporary without prejudice order was made keeping Tara in the Society's care. The motion was argued on the merits on April 7, 2017 before Justice Manjusha Pawagi. She made a finding that Tara's best interests required a change in her custody on a temporary basis, and ordered the child be in the Society's temporary care pending trial.

No Drug Use

[63] No drug use. L.'s evidence is that, except for smoking a marijuana joint shortly after the apprehension, she has not used any non-medically prescribed drugs since January 31, 2017. She has participated in urine screens three times weekly; the results of those tests support her claim.

[64] Soon after the apprehension L., in consultation with a doctor from the clinic where she receives care, started taking higher dosages of Suboxone and her anti-depressant medication. She has continued this dosage and says she feels "more grounded".

Assault by M.

[65] Assault by M. L. has not reconciled with M. She recognizes that M. is a trigger for her, a trigger for drug use.

[66] Despite this, L. did permit M. to come to her home on April 1, 2017. He came with his father to retrieve some belongings. He brought a case of beer and stayed for some time. After drinking 6 beers he became agitated and assaulted L. Neighbours heard her cries, and called police. M. was arrested and charged with two counts of assault.

[67] L. has had no contact with M. since this assault. She contacted police on one occasion in June 2017 when he came to her home in violation of his bail. He is now on probation and subject to a provision that he have no contact with L. without her written revocable consent. She has not given this consent.

Professional Supports

[68] Professional supports. L. has continued to meet bi-weekly with her professional supports, Ms. Williams (Breakaway), Ms. Trewhitt (CMHA), Ms. Umuhoza (CMHA), and Dr. Rana. She meets regularly with Ms. Townsend. Ms. Williams has trained L. to use the "HALT" (Hungry, Angry, Lonely or Tired?) technique to recognize and address her triggers for drug use; L. has found this technique helpful.

[69] L. completed the Elizabeth Fry Theft and Fraud program on March 2, 2017. On March 8, 2017, however, she was arrested for theft at The Bay. She pled guilty and was sentenced to one day in jail.

Family Group Conferences

[70] Family Group Conferences. Ms. Townsend has worked with L. to convene three Family Group Conferences. The purpose of the conferences was to have all L.'s supports, professional and personal, plan how to support her with Tara in her care.

[71] One conference was scheduled for early March, 2017, but had to be cancelled when none of L.'s supports could attend.

[72] On March 15, 2017 the Society held a service planning meeting at which it was decided that an order for Crown wardship would be requested. The Society confirmed to L. its intention to continue working with her on her plan concurrently.

[73] A Family Group Conference was held March 21, 2017. The conference included J.S., Ms. Williams and Ms. Trewhitt, as well as L. and Society staff. L. spoke of the high stress she was under prior to the apprehension—from lack of money, from her support network "falling apart", and from criticism from J.S.. She observed that the new schedule (under which she didn't have Nora and Jack at the same time) helped to manage her stress. The 2-hour conference allowed everyone to air their concerns, but little progress made in determining what more needed to be done to assist L.

[74] A further Family Group Conference scheduled for April was adjourned, as none of L.'s supports could attend. The conference took place on May 11, 2017, with Ms. Umuhoza, Ms. Williams, Ms. Trewhitt, J.S., and K.B. (M.'s cousin) in attendance. Ms. Townsend identified the Society's safety goals. She stated that L. needed a network of people who know her triggers and who could create and implement an action plan to insure that Tara always has a sober caregiver.

[75] L. admitted that in the past she had not asked for help because she did not want to admit that she "couldn't do it", but said that she had changed, and accepted that she needed help. Ms. Townsend pointed out that the only people participating in the conference possibly available to help on evenings and weekends were J.S. and K.B.

[76] A third Family Group Conference was held on June 6, 2017. The people who attended that day were the same people who participated in the May 11th conference. A group message was set up on each person's phone to allow L. to quickly message everyone if she is in crisis. Professional supports agreed that they would not allow L. to miss or reschedule more than two appointments, as this was a sign that she may be overwhelmed.

Personal Supports

[77] Personal supports. L. has had difficulty developing a personal – as opposed to professional – support network. In her Answer to the Amended Status Review she had named J.S. and K.B. as supports. By trial, neither were identified by her as part of her safety network. Although K.B. had evinced some interest in May, by October she was not involved in assisting L.

[78] L.'s relationship with J.S. is at a low point. He briefly indicated interest in planning for Tara if she was not returned to L., but withdrew that plan in July 2017. Although he attended all three Family Group conferences and was identified by L. as a source of short term respite care, he was not called as a witness at trial and L. did not in viva voce evidence in chief say he was a support. L. testified that there is litigation between her and J.S. as to the custody of Nora and Jack, which is "on hold" until this protection case concludes. L. is now blocking his number.

[79] As mentioned above, K.T. and G.T. were supports to L. when Tara was returned; after the apprehension in January 2017, K.T. initially agreed to continue as a support if Tara was returned again. According to K.T., their willingness to do this changed when they discovered the facts about what had happened to trigger the apprehension. They felt that L. had not been honest with them. They concluded that it was not best for Tara to return to L. because L. had had "enough chances" to rehabilitate herself, and that Tara deserved a better chance at a "forever family". Despite this view, K.T. agreed in cross-examination that if Tara as placed with L. again that she might offer some respite care, if planned in advance. She could not, however, commit G.T. to this offer.

[80] At trial L. testified that the personal supports she will rely on are her sister T.W. and M.H., an old friend whose daughter is a good friend of Nora's.

[81] T.W. now has three children, her youngest being 8 months, and has moved to Beaverton. Because of her distance from Toronto and her family and work commitments, she is not available to be an alternate pick-up person from daycare or for emergency care. She is, however, able to commit to caring for Tara one weekend per month, and even to care for the child for as long as a week, provided that she receives at least a few days' notice.

[82] M.H. is a homemaker with three children. She is aware of L.'s history with drug addiction and criminal behavior and of the Society's concerns. She testified that she would be available to pick Tara up from daycare in an emergency and to provide respite care at a moment's notice, respite care that could last as long as was needed. She explained that she had been unavailable to help L. sooner because of a cancer diagnosis and resulting treatment, but she was now healthy and eager to help. She said that her husband and adult son would also be willing to help if necessary. M.H. testified that she has no criminal record or Society involvement, and was willing to cooperate in any Society investigation. M.H. was not put forward by L. to the Society as a support person until three weeks before trial; she has not been interviewed by the Society.

The Child - Tara

[83] Everyone describes Tara as an energetic and affectionate child. L. and K.T. both describe Tara as being unusually sensitive to light and certain other stimuli.

[84] K.T. describes Tara as playing with children at daycare, but often passively, observing rather than interacting. L. reports that Tara has a strong positive relationship with Nora and Jack. They were disappointed when Tara was removed from L.'s care. One of these children attends almost every visit.

[85] K.T. testified that after Tara returned to care in February 2017, the child developed challenging behaviours. She would become angry quickly, and have tantrums. She would awake at night 8-10 times. K.T. and G.T. worked with her, and over the months her behaviour and sleep patterns have improved a lot.

[86] Shortly before trial Tara was referred by the Society to Dr. Mitesh Patel for a neurodevelopmental assessment. He spoke to both L. and K.T. during the assessment. He concluded that Tara meets the criteria for a diagnosis of Fetal Alcohol Spectrum Disorder (FASD) and Speech and Language Disorder. Dr. Patel observed that, given this diagnosis, Tara will likely "continue to experience difficulties in various settings" and recommended that she have behavioural therapy. He also recommended an assessment by an occupational therapist because of her sensory issues, and connection to the hospital's FASD team.

[87] The Society is now arranging Cognitive Behavioural therapy and Occupational Therapy for Tara.

[88] Dr. Patel commented on the "secure attachment" he observed between K.T. and Tara. Reports of Tara's behaviour on visits with her L. are that at times the child is reluctant to let K.T. leave. K.T. responds by reassuring the child that she will return, and facilitates the visit.

L.'s Relationship with Tara

[89] L. has attended twice weekly visits regularly and on time since the apprehension. Initially visits were for three hours and were supervised in the office. In August of 2017 visits were extended. The Saturday visit is four hours, and the weekday visit is 10 a.m. to 4 p.m. On these visits L. is able to take Tara into the community after spending a short time at the Society offices.

[90] Observations from both Ms. Townsend and Ms. Sosa speak to the strong and positive bond between mother and child. Workers agree that L.'s behaviour on visits is child-centered and appropriate. She understands Tara's needs and cues, and responds. L. has also collaborated with K.T. around strategies to manage Tara when she tantrums.

[91] L. recognizes that Tara has a strong relationship with K.T.. There are occasions when K.T. is delivering Tara for a visit or picking her up on which Tara is reluctant to leave K.T.'s side, or may cry and run to K.T.. L. is not threatened by this behavior, but is able to understand and support Tara in these moments.

[92] L. has reviewed Dr. Patel's report with Ms. Townsend. Ms. Townsend observed that L. was "insightful" about the diagnosis. L. said that her daughter Nora also suffers from FASD. L. recognizes that the diagnosis is not a criticism of her, and that the assessment will help her in focusing on what Tara needs to be successful.

Society's Plan for Adoption

[93] If the court orders that Tara be a Crown ward, K.T. and G.T. intend to apply to adopt her.

[94] K.T. and G.T. have been foster parents for the Society for 5 years. K.T. is the primary parent. G.T. works as a consultant, and is the financial support for the family. K.T. left a 16 year career in business to become a foster mother, because she wanted to do something worthwhile.

[95] K.T. testified that as foster parents she and G.T. try to support a child's connection with each parent. K.T. makes a point of doing transportation to and from visits, in order to build a relationship with the visiting parent. In Tara's case, she posted pictures of L. and M. on the fridge at Tara's eye level, so that the child would be able to see Mom and Dad daily.

[96] K.T. and G.T. did not become foster parents as part of a plan to adopt. They are registered with the Society a "regular" infant home, not an infant home "with a view to adoption".

[97] K.T.'s evidence is that they have fostered five children, including Tara. They only foster one child at a time. Two children they have fostered have become Crown wards, and available for adoption; two have been returned to family. K.T. and G.T. have stayed in touch with all these children, except for one who was placed with family outside Canada.

[98] Although the Society had asked the T.s to consider applying to adopt the two children they cared for who were made Crown wards, they did not do so. They had not planned to apply to adopt Tara when she was first in their care, even when the Society moved in 2015 on the summary judgment motion for a Crown wardship order. However, after the Society renewed its request for Crown wardship in March 2017 and the family was asked if they would consider adoption, they decided to do so.

[99] K.T. testified that if they are able to adopt Tara that they would be open to the child having continued contact with L.

[100] K.T. agreed that M., when she had contact with him was polite and respectful, and that Tara knew her father and appeared to like to see him when he did go to visits, although those visits have not been regular. K.T. was unwilling to commit herself to the possibility of the child having continued contact with M. after adoption.

M.

[101] M. has continued to be dogged by his addiction to drugs and his involvement in criminal offences.

[102] He continues to work with a counsellor at Breakaway and is taking methadone. He has secure housing.

[103] He is on the waiting list for a substance abuse treatment program at St. M.'s Homes. He hopes that this program will help him. He completed the same program in 2015, and was then able to remain sober for several months.

[104] He continues to have difficulty with the law. It was only in early October 2017 that he was released from custody, after spending approximately two months in jail. His evidence is that his criminal behaviour is drug-driven.

[105] M. testified that in his view the "no contact" order which prevents him from seeing L. is "ridiculous". He acknowledged that contact with him appeared to be a source of stress for L., but went on to express the hope that he could "make things good with her, and co-parent in the future".

[106] Observation notes indicate that when M. has been able to visit Tara, they have had a good time. He has been unable, however, to keep up consistent visits over the months she has been in care. His inconsistency led to the Society suspending his visits in June 2017. The last time he saw Tara was on June 10, 2017. The Society had been open to him resuming visits after a meeting to discuss the negative effects on the child of his inconsistency. However, he was incarcerated shortly thereafter.

[107] M. testified that if he was granted access to Tara he would make regular attendance a priority and that he would comply with any rules for the visits.

Argument

[108] Society counsel agrees with L.'s lawyer that, with the proper supports, a parent dealing with drug addiction can parent adequately. She acknowledges that L. has made great strides since Tara's birth. She says that the Society has worked diligently to support L. and refrained from taking intrusive measures when L. failed to pick Tara up from daycare on two occasions. Counsel submits that, despite her progress, L. is unable to provide Tara with the stability she requires. She says that all young children need a stable, structured home, and that the challenges posed by Tara's FASD diagnosis make stability and structure even more important for her. L.'s safety plan now is essentially the same plan she had last year, a plan that did not prevent Tara having to come in to care again. Tara is now almost 4 years old, and desperately needs a permanent home. An order of Crown wardship will give her that home.

[109] L.'s lawyer says everyone agrees that L. is a loving, caring and competent parent; the real issue for the trial is whether L.'s safety plan is adequate. Counsel argues that the court should recognize that a parent with addictions may occasionally relapse, and that a good safety plan will protect a child during the relapse without triggering a return to Society care. L.'s safety plan should involve not only therapeutic help, but respite care and help to pick Tara up from daycare in an emergency. Counsel says that although the safety plan developed for Tara when she returned to L.'s care last year was inadequate—and that the Society is at fault for this – that the plan is now improved and will provide Tara with protection if his client does relapse.

[110] M.'s lawyer submits that the evidence demonstrates that Tara's relationship to him is beneficial and meaningful, and that it is in her best interests to have access to him. L. agrees to facilitate such access if Tara is placed with her and to be guided by the Society with respect to the terms of such access. The Society's position is that M.'s access has been inconsistent, and although there have been positive visits that the evidence falls far short of showing that it meets the standard of beneficial and meaningful.

Statutory Framework

Options on Disposition

[111] Section 57 of the Act provides that if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, that the court shall make one of the following orders, or an order pursuant to section 57.1, that is in the child's best interests:

Supervision order

1. That the child be placed with or returned to 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 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.

[112] No one says that no further order is required to protect Tara.

Permanency Planning

[113] Section 70(1) of the Act provides that when dealing with a child under 6 years of age, a court shall not make an order which results in a child being a Society ward for more than 12 months. Section 70(4) permits this period to be extended by six months if it is in the child's best interests to do so. There is argument about whether the section authorizes only one extension of 6 months, or more than one such extension[4]. That argument does not concern me in this case, as no one argued that Tara should remain in care as a Society ward. As previously noted, Tara has been in the care of the Society for over three years, a period which far exceeds the applicable statutory limit.

[114] All agree that any order made should lead to a permanent home for Tara—either under an order for Crown Wardship leading to adoption, or a return to L.'s care.

Best Interests

[115] In choosing the appropriate disposition for Tara, I must be guided by what is in her best interests. Section 37(3) of the Act sets out thirteen factors for the court to consider in determining best interests:

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.

[116] In Children's Aid Society of Toronto v. Y.B., 2008 ONCJ 800, I commented on the status which a parental plan has in a best interests analysis. Those comments are relevant to this case.

S. 37 does not weight or prioritize these factors. Four factors – numbers 5, 6, 8 and 11 – relate to a child's relationship to her family and the parental plan. It is trite to say that in making a disposition decision, it is necessary to consider the best interest factors not in isolation, but in the context of the purpose of the Act and other relevant provisions of Part III of the Act. What emerges from such an analysis is the principle that a parent's plan will be preferred under the Act to other plans – such as adoption – as long that plan does not undermine the Act's paramount objective: "to promote the best interests, protection and wellbeing of children", both in the short-term and the long-term.

The Act's support for the placement of children with their parents if such placement meets this objective is evident at many points:

1. The secondary purposes of the Act, conditional upon their being consistent with the primary purpose, include:

"to recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit", and

"to recognize that the least disruptive course of action that is available and appropriate in a particular case to help a child should be considered".

2. The temporary care provisions of the Act contain a presumption that pending a finding, a child shall remain in the care of the parental figure in the child's life (the person who had charge of the child before apprehension), unless the Society establishes that there is a risk of likely harm to the child and that the child cannot be adequately protected under a supervision order.

3. S. 57(3) of the Act provides that before a court makes an order that has the effect of removing a child from the care of this parental figure, the court must be satisfied that there are not less disruptive alternatives – such as a supervision order with conditions – that would be adequate to protect the child if she was returned to her parent.

4. S. 57 (2) of the Act provides that a court is required before making an order of disposition to consider what efforts the Society has made to assist the child while in the care of the parental figure in her life, before Society intervention. There are cases where a court has refused an order of wardship because a Society has failed in its duty to assist parents in dealing with difficulties that impair their ability to care for children.

5. Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether it is possible to place the child with a relative or a member of the child's community or extended family.

These provisions all underscore the importance of support for a parental plan within the scheme of the Act.

However, it should also be noted that the importance of permanency planning for a child (noted in number 10 of the best interests factors) is another major value in the Act, underscored by the provisions of section 70.

Other Considerations on Disposition

[117] Under the Act, the Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act which is to promote the best interests, protection and wellbeing of children. A court is required before making a disposition to consider what efforts a Society or other agency has made to assist a parent before making an order that would remove a child from that parent's care.[5]

[118] Many courts have commented on the high degree of caution which a court should exercise before making an order of Crown wardship, the most profound order a court can make. The order should be made only on the basis of compelling evidence, and only after a careful examination of the alternatives[6].

[119] Before an order is made removing a child from a person who was caring for her immediately before Society intervention, a court is also required to consider whether less disruptive alternatives will serve the child's best interests and whether it is possible to place the child with a relative or member of the child's community or extended family.[7] Although one of M.'s relatives and J.S. each considered presenting a plan for Tara, neither ultimately did so.

Analysis

[120] I turn to the analysis of the two plans offered for Tara's care.

L.'s Plan

Strengths of the Plan

[121] L.'s plan has many strengths.

• If Tara is placed with L., she will be in a home in which she is loved, with a parent to whom she has a strong positive bond.
• If Tara is placed with L., she will be raised by a parent who has demonstrated that she can meet her physical, mental and emotional needs more than adequately, provided that she is not impaired and is emotionally stable.
• If Tara is placed with L., she will have regular contact with her siblings Nora and Jack, with whom she has a warm and close relationship. She will also have regular contact with her aunt T.W. and her cousins, T.W.'s three children.
• If Tara is placed with L., she will be in the care of a parent who can nurture her Japanese/Canadian heritage.
• If Tara is placed with L., she will continue to have contact with K.T.. Tara is bonded to K.T., and L. recognizes the importance of that relationship to the child.
• If Tara is placed with L., the move will not involve an abrupt break in the continuity of her care. Tara lived with L. from May 2016 to January 31, 2017 and since apprehension has had regular contact with her.

Weaknesses of the Plan

[122] The negatives of L.'s plan stem from the risk posed by her addiction to drugs and her sometimes precarious mental health, and the gaps in her support system.

[123] I begin by noting that the degree of risk which justified the protection finding was high. At the time of apprehension, L.'s drug addiction had persisted for years and was not well managed. She was in a violent relationship, and had no secure home. The dangers for an infant to be in the sole care of such a parent are obvious.

[124] The dangers for Tara if placed in L.'s care have reduced significantly since that first apprehension.

[125] L. has worked hard, and has made tremendous progress. As her lawyer says, she has relapsed into drug use only 3 times in 2 ½ years (in April and August of 2015, and on January 31, 2017). She has committed only 3 minor offences in that time. She has maintained a good network of professional supports with respect to her mental health and drug treatment, and has regularly done urine screens to demonstrate her abstinence. She has worked cooperatively with Society staff, as well as with Tara's foster parents.

[126] It is worth noting that L. has never used illegal drugs or otherwise endangered Tara while the child has been in her direct care. Tara was in daycare on the three occasions when L. stumbled.

[127] In my view, the major risk for Tara in a return to L.'s care is not a risk of physical harm, but a risk that instability in the placement will lead to the child returning to care again – a lack of the permanency which Tara needs. That is a significant risk of harm. The events of December 15, 2016, December 28, 2016, and January 31, 2017 all involved L. acting irresponsibly or unwisely, resulting in situations in which she was unavailable to care for Tara.

[128] I agree with L.'s lawyer that it is unrealistic not to expect that L. may suffer a mis-step or lapse in the future. L. has sometimes shown poor judgment, and not stayed away from situations or people that are potential triggers for drug abuse, or that put her in danger[8]. She acknowledges that her personal network for support is sparse. She is in a conflicted relationship with J.S., a relationship which she acknowledges is stressful. She acknowledges that when stressed, she has in the past turned to drugs or to shop-lifting. Shoplifting has sometimes led to arrest and detention.

[129] If L. lapses, she may be unable to provide care for Tara for hours, or for days, or even for weeks. Police records show that on one occasion in 2014, L. spent 26 days in pre-trial custody on minor offences before she was released.

[130] If no alternate caregiver is available during these periods, Tara will return again to Society care. There is no guarantee that the T.s will be available as a placement. Tara may have to go to a new foster home. And the search for permanency for this child will begin again.

[131] L.'s lawyer argues that L.'s improved safety plan will make lapses less likely, and will provide emergency or respite care for Tara if needed.

[132] I see little difference in the safety plan L. had before the January 31st apprehension and the plan presented now.

[133] The professional supports are the same.

[134] As for personal supports, T.W. now can offer some respite care, but she is unavailable to provide the emergency help that she did in December 2016, help that prevented Tara from having to go in to care earlier. D.L. was a source of support in December 2016, and is no longer. J.S. and K.B. have not provided the support L. hoped for. One new source of support is M.H. and her family. Her offer of unlimited assistance is generous, but completely untested.

[135] The Society submits that, even if L. had a safety plan that looked good on paper, there is no reason to think that she would activate that plan. L. acknowledged in cross-examination that despite feeling stressed in December 2016-January 2017, she did not tell any of her supports, professional or personal, about this stress. She did not ask for their help. She also testified that she did not plan or know in advance that she was going to take drugs or steal or place herself in questionable company. She agreed that, even if she had a good safety plan in place, there is no reason based on past experience to think that she would be able to activate it.

Did the Society Fail in Its Duty to Assist L.?

[136] L.'s lawyer submits that the Society failed to provide her with adequate services by failing to plug the holes in her safety plan. He says that the Society should have approved additional persons as suitable to pick up Tara from daycare, or provided those persons – paying an agency if necessary – to assist if there was no one available from L.'s personal network. Both he and M.'s lawyer argued repeatedly that if someone had been available to pick Tara up from daycare on January 31, 2017, that she would not have been apprehended, and this trial would not have happened.

[137] I do not agree that the Society failed in its duty to assist L.

• Despite first pursuing an order of Crown wardship in 2015, after the order of Justice Jones the Society worked patiently with L. to return Tara to her care.
• When L. stumbled on December 15 and December 28, 2017, Society workers responded quickly to meet with her. She assured them that she was doing well, and that she would reach out to her other supports. She did not do so.
• Since Tara's apprehension, Ms. Townsend has worked diligently with L. and helped convene three Family Group Conferences focused on creating a support system for a plan that would return Tara to her.
• Ms. Townsend had good reason not to approve D.L. as a person to pick Tara up, given D.L.'s own child welfare history and the Society's desire to have L. meeting with daycare staff daily, as an additional safeguard against relapse.

[138] Although L. is now critical of the support offered to her by the Society, except for perhaps one request for respite care – a support which is not available from the Society – the record does not indicate that L. asked for supports that were not provided. It may be that the Society could have done more to assist her. However, given the importance of permanency planning for young children, a parent should not wait until trial to complain of lack of assistance. If that assistance was wanting, a motion in, for example, the fall of 2016 would have been appropriate.[9]

The Society's Plan

Strengths of the Plan

[139] I do not approach this case as a contest for custody between L. and the T.s. In an application for Crown wardship the state seeks an order terminating parental rights to a child. The Ontario Court of Appeal has acknowledged that it is improper to analyze a case requesting an order of Crown wardship in which the foster parents are prospective adoptive parents as simply a competition between two caregivers.[10]

[140] However, I am required to consider the Society's plan for Tara. That plan is Crown wardship with a view to adoption. The Society asked the T.s to consider adopting, and they have agreed to do so if the child is available. The T.s are part of the Society plan.

[141] The Society's plan has many positives.

• Under the Society's plan, Tara would be raised in a home with parents who have in the past and can continue to meet her physical, mental and emotional needs. They are aware of Tara's special needs, and have demonstrated that they can take the necessary steps to insure those needs are met.
• Under the Society's plan, Tara would be raised by parents with whom she has a secure attachment.
• Under the Society's plan, Tara would enjoy continuity of care, remaining with the family who have raised her most of her life.
• Under the Society's plan, Tara would maintain some contact with L. and with Nora and Jack.

Weaknesses of the Plan

[142] There are negatives in Society's plan.

• Even though Tara will have some contact with her mother and siblings, contact is not the same as sharing a life on a day-to-day basis. Contact may mean a few hours a few times a year in which Tara and her adoptive family entertain L. and Nora and Jack.
• Under the Society's plan, Tara may lose contact with her father, M. No order for access is proposed by the Society, and it would be entirely at its discretion if contact was allowed.
• Further, under the Society plan, Tara would not be raised in a home that would provide a connection to her Japanese/Canadian heritage.

Conclusion About Disposition

[143] Both plans for Tara's future have many positives, but the Society's plan offers Tara a better chance at permanency.

[144] There are not less disruptive alternatives than an order of Crown wardship which can protect Tara from future instability. The durability of L.'s plan depends in large part on her personal supports. Those supports are limited or untested. T.W. can offer some support for respite care, but nothing that is not planned in advance, nothing in the case of an emergency, like what occurred in December 2016/January 2017. M.H.'s support is late, not assessed by the Society, and unproven. A failure of L.'s plan would mean a further return to temporary care, not necessarily to be placed with the T.s.

[145] Tara's best interests require an emphasis on the stability and security at this point in time. I find that the Society's plan is in her best interests, and order that she be made a Crown ward.

Access

[146] Section 59 of the Act provides that when a court makes a child a Crown ward, all orders for access are terminated. It establishes a two-part test for any new orders for access.

Termination of access to Crown ward

(2) Where the court makes an order that a child be made a ward of the Crown, any order for access made under this Part with respect to the child is terminated.

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.

[147] The parties agree that L. meets this test, and consent to an order for access between her and Tara. Society asks that this access be at its discretion, or, alternatively, once a month for a few hours. L. asks for an order that Tara spend substantial time with her—alternate weekends, one evening per week in alternate weeks, and time for vacation and holidays.

[148] Best interests is the test to use in determining appropriate access. In assessing best interests, it must be kept in mind that after an order of Crown wardship with a view to adoption is made, the focus is not on the child's return to her biological parents, but on her settlement with her prospective adoptive family. I agree with Justice Phillip Clay who observed in Children's Aid Society of the Region of Peel v. A.R., [2013] O.J. No. 2969 (O.C.J.) that in such cases it is appropriate to significantly reduce the time allowed for access.

The Court finds that an access order should be made in all of the circumstances of this matter. However the access that will be granted will be significantly less than the current access. The granting of a Crown Ward order means the end of any effort to return the child to the mother's care. Part of the reason for access prior to a Crown Ward disposition is to work on re-integration and to assess the nature and quality of the parenting ability and the relationship between parent and child. After a Crown Ward disposition the access is simply to preserve a form of the relationship that has shown a positive benefit for the child. Access once per month will allow the mother and child to maintain their connection and will hopefully allow the child to have some security in knowing that his biological mother is still a part, albeit a much smaller part, of his life.

[149] The court in determining the frequency and duration of access Tara should have to L. should consider what plan will preserve their relationship and still support Tara in settling into a permanent home.

[150] In my view, the appropriate order is one that leaves access at the discretion of the Society, with a minimum of once per month. This leaves the Society the flexibility to adjust access to Tara's needs. I expect that the Society will use good judgment in initially reducing the time that Tara spends with L. It would be too abrupt a change if a child who has been spending 8-10 hours a week with her mother was suddenly cut back to a few hours a month.

[151] With respect to M.'s access claim, his lawyer argues that his relationship with Tara is meaningful and beneficial to her[11]. The Society allows that there are some positive aspects to M.'s visits when they occur, but submits that the long record of inconsistency in itself leads to a conclusion that M. does not meet the test.

[152] There is ample caselaw interpreting the "beneficial and meaningful" test[12]. More is required than a display of affection between parent and child or instances of pleasant visits. The child must be bonded and emotionally attached to the parent.[13] It must be shown that the relationship "brings a significant positive advantage to the child"[14].

[153] I agree with the Society that M. has failed to demonstrate that his relationship with Tara is beneficial and meaningful to the child from her point of view. Although Tara identifies M. as her father, there is scant evidence that she is bonded and emotionally attached to him as a parent. The inconsistency in his contact with her is potentially harmful. As Society workers have explained to M. on several occasions, Tara is old enough to understand what it means if she is brought to or promised visits with him repeatedly and he does not show up. The child can see these no-shows as a display of indifference or even rejection.

[154] I make no order as to access between Tara and M. I recognize that the Society, at its discretion, may still allow some access.

Disposition

Released: November 20, 2017

Signed: Justice E.B. Murray

Footnotes

[1] Tara is a pseudonym

[2] Nora is a pseudonym.

[3] Jack is a pseudonym.

[4] E.g., Brant Family and Children's Services v. R.E.M., 2017 ONCJ 659

[5] C.F.S.A., s. 57(2)

[6] Children's Aid Society of Hamilton v. M., [2003] O.J. No. 1274 (U.F.C.)

[7] C.F.S.A., s. 57(3)

[8] E.g., Permitting M. to come to her home in April, 2017, and drink beer; going with L.C. to a strange apartment, and not leaving when use of crystal meth became apparent.

[9] E.g., see Children's Aid Society of Hamilton v. E.O. and S.H.

[10] Children's Aid Society of Toronto v. K.K.

[11] She submits that he meets the second prong of the test as the T.s have indicated an intention to adopt Tara that is not dependent on the outcome of his claim.

[12] E.g., Children's Aid Society of Niagara v. M.J.; Children's Aid Society of Hamilton v. C.H., 2014 ONSC 3731

[13] Children's Aid Society of Niagara Region v. J.C.

[14] Children's Aid Society of Niagara Region v. J.C.