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: 2018-03-01

Court File No.: Belleville 289/15

Between:

Highland Shores Children's Aid Society Applicant

— AND —

A.M. Respondent

A.N. Respondent

Before: Justice W. Malcolm

Heard on: January 31, 2018

Reasons for Judgment released on: March 1, 2018

Counsel

Cynthia Law — counsel for the applicant society

Jeffrey Van de Kleut — counsel for the respondent mother

Respondent father not appearing and noted in default on September 25, 2017

Decision

Malcolm J.:

Introduction

[1] This decision concerns the care and custody of the child B.N., born […], 2015. The child has been in the care of the Society since October 9, 2015. The child was found to be in need of protection on consent of the parties in April 2016.

[2] On September 25, 2017, on consent of the Society and the mother, an order was made that the child be made a Ward of the Crown and placed in the care of the Hastings Children's Aid Society without access for the purpose of adoption. At the time the plan was to place with the maternal grandfather and step-grandmother, J.M. and V.H., who live in Northern Alberta. However, the step-grandmother withdrew their plan on October 22, 2017.

[3] The step-grandmother, V.H. has now had second thoughts about withdrawing their plan. The case is before the Court now because the grandparents and mother want the Court to enforce the Plan of Care and consent filed on September 25, 2017 and place B.N. with the grandparents in Alberta. In the alternative, they ask for the grandparents to be assessed or for other family placements to be made. The Society no longer supports the plan to place the child with the grandparents for reasons that are set out in my Decision.

[4] Neither parent has presented a plan to personally care for the child. The father, A.N., was noted in default and has not been exercising access to the child.

Issues

[5] The major issues for the Court are:

1. Can the Court order the Society to place a Ward of the Crown with a named person?

2. Can the Court order the Society or Director to place a child for adoption outside of Ontario?

3. What placement of B.N. is in his best interests and consistent with the paramount purpose of the Child and Family Services Act (CFSA)?

Family Background and Brief Legal History

[6] The original Protection Application was commenced in October 2015, in the Family Court of the Superior Court of Justice in Napanee, after an apprehension of the child B.N. and his four older sisters from the care of the mother and A.N. There was already an ongoing file before the court in Kingston concerning the four older children. Because M.S., the father of the two eldest children, resided in Kingston and K.M., the father of the younger sister, and A.M. and A.N lived in Hastings County, the court file was split into two.

[7] The protection concerns at the time of the 2015 Application were suspected drug use, neglect, and conflict between the care givers. After the children were removed from the care of the respondents, both of them were charged and convicted with various criminal offences, including assault, threats and harassment of each other. As a result, A.N. has been incarcerated from time to time.

[8] The mother now has six children as she gave birth to another child, K.N. born in […] 2016. The father is also A.N., the same father as for B.N. The mother is 29 years of age.

[9] The maternal grandfather, J.M. come to Ontario from Alberta when the child, K.N. was born and the Kingston Society placed the child with him and allowed him to supervise the mother's access with the child.

[10] On consent of the parties, B.N. was found in need of protection in April 1, 2016 due to risk of physical harm because of neglect, inadequate supervision and risk of emotional harm, pursuant to sections 37(2)(b)(ii) and 37(2)(g) of the Children and Family Services Act (CFSA). The mother agreed that there was a long history of conflict with the three fathers of her children. This was outlined in the very detailed statement of agreed facts.

[11] The mother has been involved in protection proceedings in Kingston since 2007, when her eldest child was apprehended because of domestic violence between the parents and a domestic incident between the mother and another female. In 2007, A.M. and M.S. moved to New Brunswick. M.S. admitted to the Society this was to avoid their oversight.

[12] In 2010, there was a second apprehension and further protection proceedings in Kingston with the younger children. In 2010, the protection concerns were neglect, drug use, and conflict between the mother and K.M. Charges of assault against the father were laid but then withdrawn.

[13] When the children were in foster care in 2010, the mother insisted that one child had been sexually abused. After an investigation, a physician determined that there was no evidence of sexual abuse.

[14] At the status review, the children were placed with the maternal grandmother in December 2010 but returned to the mother in 2011.

[15] A new protection application was commenced in 2012 with amended status reviews in 2014 and 2015. Throughout, the concerns have been domestic violence between the care givers, neglect of the children's needs, including health needs, inappropriate discipline of K.M., and conflict between the mother and the maternal grandmother when the children have been in the grandmother's care.

[16] In April 2017, J.M., the maternal grandfather, was allowed by the Kingston Court to return to Alberta with the child K.N. The child has been in the care of the grandfather for 17 months and in the joint care of V.H. and him for ten months. The mother did not dispute the Kingston Application for Crown Wardship of K.N.

[17] B.N.'s four older sisters are now placed in the care of their respective fathers under deemed custody orders.

Time in Care for B.N. – Delay

[18] B.N. has been in foster care for 27 months. This far exceeds the statutory limitations as set out in section 70 of the CFSA, which states:

Time limit

70 (1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,

(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship.

Six-month extension

(4) Subject to paragraphs 2 and 4 of subsection 57 (1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so. 1999, c. 2, s. 21 (3).

[19] In her decision on a summary motion of a Crown Wardship case, Children's Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, Justice Zisman commented on the issue of delay as follows:

Delay

[175] In the Children's Aid Society of the Regional Municipality of Waterloo v. C.M. and B.J.V. cited above (2015 ONCA 612), the Ontario Court of Appeal expressed strong concerns about delay in child protection proceedings and that it is the responsibility of judges, administrators and counsel to take responsibility for ensuring that there is adherence to the statutory timelines. These children have been in foster care for almost two and half years. It was reasonable and in accordance with the principles of the legislation that the father was given an opportunity to have the children returned to his care after the first apprehension, however, having failed to meet the needs of the children, it is now in the children's best interests to be able to have a permanent and stable home. Because B.N. has been in care for over two years, there can be no extension of his Society Wardship for the reasons that follow. This child deserves a permanent, stable, secure and loving home.

Trial Scheduling and Assessment of Family Plans

[20] This matter has been scheduled for hearings several times but adjourned because of various proposed family plans to care of the child. Each time the hearing was adjourned to consider a family placement, the Court was required to determine that it was in the best interests of the child to do so, pursuant to section 70(4) of the CFSA.

[21] The maternal grandmother and her partner originally asked for the child and his sisters to be placed with them, but then she withdrew the request. They had participation rights, pursuant to section 39(3) of the CFSA, at the beginning of the proceeding and were represented by counsel.

[22] The maternal grandparents had B.N. in their care for a short period of time in October 2015. This plan broke down shortly thereafter. However, they exercised regular weekend access to him after that time.

[23] In February 2016, on consent of all parties, an order was made by the Belleville Family Court Clinic to conduct an assessment, pursuant to section 54 of the CFSA. The father, mother and maternal grandmother were to be assessed as to their ability to care for the child. After the birth of the youngest child, K.N., the clinic was asked if they could also assess the maternal grandfather, who was in Ontario at the time, but they were unable to do so for reasons unknown to me.

[24] There were a number of challenges to completing the report in a timely basis. The incarceration of both parents as well as a number of missed, cancelled, and rescheduled appointments caused delays. Then the mother refused to sign a consent to obtain information in July 2016, after the earlier consents had expired.

[25] The first trial was set for August 2016 and vacated when counsel for the father retired and new counsel was required. Further, the Section 54 report was not complete which was to consider the plan of the maternal grandmother. New trial dates were set for October 2016 and then vacated because the assessment report was only received at the end of September 2016.

[26] New trial dates were set for January 2017 before me.

[27] When the Section 54 report was received, as the Trial Management Judge, I ordered, on November 22, 2016, that the parents advise the Society as to any facts in dispute. No dispute was filed.

[28] During this time both B.N. and his two sisters were before the Court so there were three parents' counsel, Society counsel and, for some time, the maternal grandmother's counsel. Scheduling was understandably difficult with five lawyers, the parties' schedules, and the Court's schedule to consider.

[29] On December 22, 2016, an order was made on consent placing the child with the maternal grandparents by the Settlement Conference Judge and the January trial dates were vacated. The placement was not successful and subsequent trial dates were set for May 2017 before me.

Proposed Adoptive Family Placement with Maternal Grandfather and Step-Grandmother

[30] In January 2017, a third family plan was proposed by the mother. She asked that the child be placed in the custody of or, in the alternative, to be adopted by the maternal grandfather and step-grandmother. In the alternative, she asked that the child be placed with her half-sister or step-sister. However, neither sister contacted the Society to make a plan to care for the child.

[31] The kin assessment of the grandparents was very time consuming because the Society in Ontario had to work with the Alberta Society. The grandfather and his partner live north of Edmonton, close to Fort McMurray. The step-grandmother was unable to come to Ontario to be assessed or spend time with the child because she still works full-time as a bookkeeper after retiring from her job at a major bank.

[32] In April 2017, the Society in its Trial Management Brief stated that their plan was to place the child with the grandparents, so long as they demonstrated timely efforts to secure placement, maintained their interest to adopt B.N., and did not withdraw their consent to adopt. Unfortunately, that consent was withdrawn by the step-grandmother in October 2017 and that is the focus of this decision.

[33] At the trial management conference in April 2017, I allowed a further adjournment of the trial to September 2017 to allow the completion of the assessment of the maternal grandfather and step-grandmother as the Society believed it would be positive and in the child's best interests to do so. The Society was focused on the step-grandmother as the primary care giver. She was always described as lovely and appropriate.

[34] In July, 2017, the Society advised the Court that the placement of the child with the grandparents would likely be approved and the grandparents would come to Ontario to meet the child and the foster parents, and then the worker and child would go to Alberta. This never occurred.

Consent to Crown Wardship without Access with a Plan to Place with the Maternal Grandfather and Step-Grandmother

[35] After extensive negotiation between the parties at the courthouse at the trial management conference on September 25, 2017, the mother and Society consented to an order that B.N. be made a Ward of the Crown and placed with the Society without access for purposes of adoption. The Court was advised that the kin assessment was positive and the grandparents would be able to adopt. A Consent and Plan of Care (Form 33B) signed by the mother was filed with the Court. The court endorsement did not indicate that the placement was to be with the grandparents, but the consent to the court order and Plan of Care filed expressly contemplated the placement. My notes indicate that the grandfather and step-grandmother were the proposed adoptive parents.

[36] The Plan of Care provided, in paragraph 6, as follows:

Mr. N. and Ms. M. have been working with varying societies and have been before the Court or open to these societies which included apprehensions of Ms. M.'s older children. The Society attempted to get the parents to engage in services. The pattern remained and continued during the time that B.N. has been before this Court including a serious pattern of domestic violence and adult conflict, pattern of criminal activity and adult community conflict; and Ms. M.'s inability to place the needs of the children above her own causing emotional harm. Access with the father stopped in 2016. The access with Ms. M. occurred that presented with child protection concern and recently has stopped due to Ms. M.'s non-attendance.

The Society sought a full Forensic Health Assessment and Parenting Capacity Assessment. The Society agrees with the assessors. The Society moved to Crown Ward status based on the recommendations of the Court assessors due to the Society's assessment that this was the only course as his parents could not care for B.N. with emotional and physical safety.

B.N.'s maternal grandfather, Mr. Joe M. and step-grandmother, Ms. D. V.H. had put forth a plan for B.N. They wish to adopt B.N. They have been approved by Alberta CAS. The Society's position is that if the plan is not for adoption that the risk that the destabilization of the placement by Ms. M. is too great. Ms. M. struggles with boundaries and she will place pressure on her father to succumb to her demands. Ms. M. has had a number of similar plans with her own mother and these plans were destabilized by Ms. M. as Ms. M.'s needs drove her to demand from these caregivers to meet her needs, opposed to the children and/or Ms. M. could not maintain following their directive. The Society believes that this allows for family connection with Ms. M. but where the grandparents could be firm and maintain B.N.'s safe placement and safeguard his best interests. This plan meets the objective of the section 37 and is in B.N.'s best interests.

[37] The plan was complicated because the grandparents had only visited B.N. on a few occasions, despite the July 2017 plan that they would visit more regularly. The plan set out that the grandparents were going to come to Ontario to spend time with the child and bond with him. After, the child and the Society worker were going to Alberta to continue the bonding process. If the bonding went well, it was intended that the child would be able to remain in Alberta. If not, the grandparents would be required to return to Ontario.

Step-Grandmother Withdraws the Plan to Adopt

[38] On October 22, 2017, the grandmother withdrew the plan to adopt B.N. She sent a text to the Society worker Sarah Binkley. The text read:

"Good day Sarah, this is D. V.H. and I need to cancel the process to adopt B.N. I realize it is not in his best interests or mine to continue this process, feel free to call me and I will explain my reasons to you."

[39] The worker contacted Ms. V.H. the next day on October 23, 2017. It is not disputed that V.H. said that:

• she was very disappointed that she can't do this (the adoption);
• she claimed that both the mother, A.M., and maternal grandfather, J.M. had said that A.M. would clean up and would get her tubes tied;
• A.M. would not live with them, but she was to help with raising the children;
• she had been moving to this decision as she can't believe a word that she says (referring to A.M.);
• she said "I've known for a bit that this was the wrong thing to do."
• J.M.'s health had begun to deteriorate and, K.N.'s care was too much for J.M. which caused V.H. to arrange daycare for K.N; and
• their adoption plan would do B.N. an "injustice" and that the closer the day gets for B.N. to come to Alberta, the more devious A.M. has become.

[40] Ms. Binkley also indicated that V.H. told her that:

• the overall plan had been for A.M. to get better and then legally take back her children;
• however, she now knew that this would never happen;
• she did not want to separate B.N. and K.N. (they have never been together);
• A.M. was a "messed up girl" but she had no idea that she was this messed up;
• A.M. had confessed that the week before, she was using Percocets and needed to attend the Methadone Clinic; and
• A.M. had called her recently and she had presented as "higher than a kite".

[41] The worker was also concerned because V.H. made it clear that her husband would make sure that A.M. would have B.N. back in her care. The worker accepted V.H.'s reasoning for withdrawing the plan. Subsequently, the worker referred the case to the adoption worker to plan for another placement.

[42] V.H. confirmed that her decision did not come easily. She said she decided to withdraw the plan after she discovered that A.M. was planning on starting a business with a gentleman who had done some repairs on her vehicle and she was planning on buying a home in Kingston. She stated that "this is not the plan that I had agreed to with A.M." and it had changed her decision to adopt, stating that both B.N. and K.N. at the residence with J.M. on a full-time basis during the day may be "too much for him to handle" as she worked and "J.M.'s health was a concern".

[43] On October 26, 2017, further text messages were exchanged between the worker and Ms. as follows:

"good morning Sarah this is D. V.H. just wondering if I could send the shirts I bought for B.N. to you so that you could give them to his foster parents I'm still having a very hard time with all of this but I don't want the shirts to be given to anyone else here …"

[44] The worker replied:

"You are welcome to do so and I will ensure that they get to B.N. I can understand that your decision did not come easily and I can appreciate that it was difficult."

[45] The next communication occurred on October 30, when V.H. sent the following text message:

"Sarah could I call you to ask a few questions?"

[46] On October 31, 2017, V.H. and the worker spoke. V.H. stated that she had texted the worker because A.M. had told her that K.N. would be removed from her care by the Society because she had withdrawn her adoption plan for B.N. However, V.H was able to speak with the Kingston worker who advised that K.N. would be left with them. V.H. once again confirmed with the worker that it was not in B.N.'s best interest for the adoption plan to continue.

[47] On November 6, 2017, V.H. again contacted the Society and spoke to a coverage worker. V.H. was calling because A.M. was calling her excessively from 6:00 a.m. until midnight, stating that her lawyer has advised that nothing is finalized as to B.N. V.H. told A.M. that the Society was not taking B.N. V.H. went on further to explain that A.M. does not seem to be accepting this answer. V.H. then blocked Ms. M.'s number.

Step-Grandmother Tries to Renew her Plan

[48] On November 9, 2017, V.H. spoke again with Ms. Binkley and indicated that she thought: she had found a way to take B.N. without A. coming here to help. A.'s lawyer said "I should reach out to you today". V.H. also asked if the Society would consider a plan where she had a six-month trial care placement. V.H. in her affidavit & oral testimony, denies that she said anything about a six-month plan during this call but admitted that she had discussed it earlier with the worker.

Mother's Motion to Enforce Order to Place with Grandparents and Society Motion to Have Order of Crown Wardship with No Access for Purposes of Adoption Approved

[49] The Society sought to have the order of September 25, 2017 for Crown Wardship without access for purposes of adoption approved by mother's counsel on December 11, 2017. Why they waited almost three months is not known to me. A motion was brought, returnable December 19, 2017 to settle the order when the draft order was not approved by the mother's counsel.

[50] The Mother brought a cross motion on December 19, 2017 for leave to bring an early status review of the Crown Wardship order, or in the alternative, to enforce the Plan of Care for adoption of B.N. by the grandfather and step-grandmother. In the alternative, the mother asked for a full assessment of the grandparents.

[51] As per section 64(7) of the CFSA, a status review may be brought if the Court is satisfied that a major element of the plan for the child's care that the Court applied in its decision is not being carried out. In this case, an essential party of the Plan of Care has withdrawn.

[52] As the child has been in the care of the same foster parents since December 29, 2015, I find that leave of the Court would be required, pursuant to section 64(8) because the status review would not have been heard until January 31, 2018. This was the only court time that was available for a full day hearing.

[53] The Society then brought a motion returnable on January 31, 2018, under Rule 16, requesting that B.N. be made a Ward of the Crown without access for purposes of adoption. With the motion to settle the order, and the mother's motion, there would be three motions in total.

[54] Counsel for the mother and Society both asked me to consider their motions as part of the original protection application because the order of September 22, 2017 had not yet been signed by me.

[55] I rely on Justice Perkins' decision of Church v Church to support the Court's ability to hear this motion as part of the original application. He held:

Because the mother's motion to correct my December 20 Decision was served before signature of a formal Order embodying the decision, I was not functus officio. Accordingly, it is open to me to change aspects of both the decision itself and the reasons for my decision.

[56] On consent of counsel, under Rule 1 (7.1) and (7.2) and 2 (2), (3) and (4) of the Family Law Rules, I ordered a focused hearing on the issue of settling the order and reviewing the new Plans of Care. I ordered oral questioning on the voluminous materials filed and gave leave for oral evidence of V.H. The status review and Rule 16 Motion did not proceed although the same evidence would have been considered and the same ruling would have applied.

[57] The evidence consisted of:

• Affidavit of V.H. sworn December 11, 2017;
• Affidavit of J.M. sworn December 11, 2017;
• Affidavit of Sarah Binkley sworn December 15, 2017 (Child Protection Worker);
• Affidavit of LaToya House sworn December 15, 2017 (Duty Child Protection Worker);
• Affidavit of Jeannie St. Germaine sworn Dec 15, 2017 (Children Services Worker for B.N.);
• Affidavit of Sarah Binkley sworn January 3, 2018 – reference to her affidavit of February 17, 2017;
• Affidavit of Jacklynn Flagler sworn February 17, 2017 (Managed Access Worker);
• Affidavit of Heather Ronsky January 8, 2018 (Adoption Worker);
• Affidavit of Jeannie St. Germain, sworn January 9, 2018;
• Affidavit of A.M. sworn January 25, 2018 – referring to her previous affidavits of November 10, 2015, January 15, 2016, November 17, 2016, March 18, 2017, November 11, 2017;
• Affidavit of D. V.H. dated January 11, 2018;
• Affidavit of J.M. sworn January 19, 2018;
• Affidavit of Sarah Binkley, sworn January 26, 2018;
• Section 54 assessment including psychological assessment; and
• Plan of Care and Consent dated September 25, 2017.

[58] The Society filed a Factum and Book of Authorities. A.M.'s counsel asked the Court to order a specific placement for adoption. No authority was presented.

[59] The relevant sections of the Family Law Rules for this focused hearing are as follows:

Certain Orders That may be made at any time

(7.1) For greater certainty, a court may make an order under subrule (7.2), (8), (8.1) or (8.2) at any time during a case, and the power to make such an order,

(a) is in addition to any other power to make an order that these rules may specify in the circumstances; and

(b) exists unless these rules expressly provide otherwise. O. Reg. 69/15, s. 1 (1).

Procedural Orders

(7.2) For the purposes of promoting the primary objective of these rules as required under subrules 2 (4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

(a) that a party give to another party an affidavit listing documents that are relevant to the issues in a case and that are in the party's control or available to the party on request, or that a party make any other disclosure, within a specified time;

(b) limiting the number of affidavits that a party may file, or limiting the length of affidavits that a party may file (excluding any exhibits);

(c) that any motions be brought within a specified time;

(d) that a statement setting out what material facts are not in dispute be filed within a specified time (in which case the facts are deemed to be established unless a judge orders otherwise);

(e) that questioning be conducted in accordance with a plan established by the court, be subject to a time limit or be limited with respect to scope;

(f) limiting the number of witnesses;

(g) that all or part of an affidavit or any other evidence filed at any stage in a case, and any cross-examinations on it, may be used at a hearing;

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

Position of the Society

[60] The Society's position is that once the grandmother withdrew the plan for adoption and the Society became aware of the circumstances, they could no longer support the placement and would not recommend the adoption placement to the director.

Position of the Mother

[61] The mother A.M. claims that the Court should compel the Society to complete the placement and, in the alternative, order a full assessment of the grandparents, or consider other persons named by the mother to adopt B.N. The mother told the Court she had hundreds of persons who would be approved to adopt B.N.

January 31, 2018 Hearing

[62] At the focused hearing on January 31, 2018, the only witness was V.H. No oral questioning of the affidavits took place.

[63] The hearing was scheduled for 10:00 a.m. The mother was not in attendance. She thought her father or his partner was picking her up in Kingston. The Society sent a cab to pick her up but she was still approximately two hours late for court. This was not the first time that the mother has been late or missed court.

[64] During the hearing, the mother made loud comments, sighed, laughed, and was generally disruptive. On three different occasions, I had to warn her to be quiet and to take notes. I also told her that I would give her a chance to speak to her lawyer during a break. At one point, she interrupted Society counsel indicating that it did not matter where she lives (the lawyer was making submissions about the plan being withdrawn because the mother was to move to Alberta to help with the children and did not).

[65] She made comments about "our and we" as to the adoption plan as if she was going to be part of it.

[66] When V.H. was testifying as to the mother's continued drug use, the mother explained loudly and with passion that she had been raped in the fall and that is the reason why she was using drugs again. After three warnings, I finally had to direct the mother to leave the court room as her actions were so disruptive.

[67] When V.H. was asked as to how she would manage the mother if B.N. was placed with her, she commented that "you see how she is" (referencing the courtroom drama). V.H. said she would call the police if necessary but she didn't feel she would have the same problems as the Society had with A.M. because she was not the worker with a history with the mother.

[68] The author of the Section 54 assessment spoke to the mother's lack of boundaries. She called the assessor "hun", "sweetie" and "doll", hugged her and rubbed her back even though she was asked to stop. She also hugged the psychologist and called him "bud".

[69] Dr. Farrell, the author of the assessment, assessed that the mother's insight and judgment appear impaired (page 8). I agree. He assessed her personality as suggestive of chronic maladjustment involving personality deficits, interpersonal difficulties and emotional dysregulation" (page 13). He also found that she had narcissistic and anti-social personality traits. I concur with this analysis.

[70] The assessor also commented on the conflict between the mother and other caregivers of the children. The mother's statements about her mother, step-father and the fathers of her four younger children were "negative, hurtful, and contrary to the best interests of the children due to the importance they play in the lives of the children. I believe that A. will be unable to support her children's relationships with their fathers or grandparents". (page 19) This is also consistent with the agreed statement of facts.

[71] I was impressed with V.H., and her kindness and compassion. It was clear that she was distressed with the thought that B.N would be adopted by a stranger or a non-family member because of her withdrawal of the plan to adopt. She says she feels very strongly now that he should stay with family.

[72] She had some difficulties in remembering the exact conversations with the worker and said that she didn't recall confirming her decision on October 31, 2017 to withdraw from the adoption. She said "why I would be withdrawing my plan when I was trying to get daycare?" However, on October 23, 2017, she said she had already contacted daycare for K.N. because of her partner's ill health. I find she did confirm her withdrawal on that day.

[73] Further, she told the worker that the plan had been for A.M. to live with them. Although she denied this at the hearing, in her affidavit of January 11, 2018, she referenced a previous plan to have A.M. live with them but she now knew that it was the wrong thing to do.

[74] On November 6, 2017, V.H. called the Society and confirmed her decision not to proceed with the plan. When asked about the purpose of that call, she seemed confused. It was clear to me that she wanted the Society to know how manipulative and aggressive A.M. is.

[75] She stressed in her evidence that she is a very strong woman and can handle A.M. However, A.M. broke down her mother's care of the children in the past. She has accused the fathers, foster parents and her mother's husband of wrongdoing. Her behaviours and allegations could make the stability of a child's placement with the grandparents difficult.

[76] Further, V.H. was concerned about the mother's use of the grandparents' joint credit card when the grandfather was living in Kingston. She felt she spent in excess of what was required.

[77] Despite the best intentions of V.H., I find there are inconsistencies in her testimony. The worker took detailed notes and although the worker did not testify and she was not questioned, I accept her recollection of the telephone calls with V.H. I find that until November 6, 2017, V.H. was not going to proceed with the plan to adopt B.N. The plan to obtain daycare was discussed with the worker on October 23, 2017. Because of the deteriorating health of J.M., she was looking into daycare for K.N.

[78] V.H. testified and her affidavit confirmed that A.M. was going to come to Alberta to help care for the children. The withdrawal of the plan occurred when V.H. discovered that the mother was not coming to Alberta and that she was using drugs again. I believe that she did feel horrible about withdrawing the plan but felt it was for the best. She testified that she was afraid that she couldn't care for both children and that she needed to continue to work.

[79] I find that A.M.'s persistent calls caused the grandmother to contact the Society again. Further, it appears that J.M. was not supportive of her withdrawal. She also said a co-worker was very supportive when she was feeling badly about the decision and gave her emotional strength to think that she could provide a plan despite her age. V.H. is 64 years of age and J.M. is 68 years of age.

[80] She said that when the family was struggling as to whether to get rid of some pets, her grandson said "you don't get rid of family." She said that when he said this, she felt the same about B.N.

[81] In these proceedings, the mother said (from counsel table), that she was simply begging the step-grandmother to reconsider the withdrawal of her plan when she was calling her excessively. Given how manipulative the mother can be, I am not surprised that the step-grandmother reconsidered her plan.

[82] I find that V.H. tried to resubmit her plan after she withdrew it because of guilt or a sense of responsibility. However, I also find that the decision to withdraw the plan was likely in the best interests of both her and the child.

[83] As stated above, V.H. is 64 years of age. Her partner, J.M. is 68 years of age and is in ill health with serious arthritis. B.N. is an extremely busy and resourceful three year-old. He needs constant supervision. He will also require speech therapy as his sisters did when they came into care. They already have a young child in their care. They will have enough challenges without B.N. Moreover, he deserves permanency.

[84] The mother is difficult and manipulative. She has a criminal conviction for breaching a court order by contacting the maternal grandmother immediately after the order was made. At that time, she was asking the grandmother to go to court to bail out A.N.

[85] The mother's wilful breach of court order's goes back to 2007. In 2007, an order was made by the Family Court of the Superior Court of Justice that A.M.'s eldest child be placed with the maternal grandmother. A.M. was allowed to live with her mother and any access with the father, Mr. S., was to be supervised. The parties then all moved to New Brunswick. Mr. S. admitted that the move to New Brunswick was to avoid the Kingston Society because his access was to be supervised. The parents reconciled but there was subsequent domestic violence. The present child protection worker was also the worker in 2007 in Kingston. The worker was very concerned about the initial plan to place B.N. with the grandparents out of the province because of the earlier problems with jurisdiction across provinces.

[86] In contrast to the sentiments about the family staying together, in July 2017, V.H. was offered video conferencing with B.N. in order to get to know him and to discuss his needs and schedules with his foster mother. It was also hoped that V.H. would come to Ontario. The Society asked that no information be shared with A.M. about the video conferencing because of her earlier unverified claims that a previous foster home was abusive. J.M. did not agree with this condition because he told V.H. that he didn't want to keep secrets from his daughter. The video access did not occur. I am not sure if the Society was aware of this as it should have impacted their decision to approve V.H. and J.M. to adopt B.N. in September 2017.

[87] Although Alberta Family Services did approve the grandparents to adopt, it appears that the report focused more on K.N., according to the affidavit of Heather Ronsky, the adoption worker, sworn January 8, 2018. V.H. testified that the assessment was focused on their accommodations, safety and sleeping arrangements. The grandparents also had to take some parenting courses. It appears that the full plan may not have been assessed and what role A.M. would have in it.

[88] V.H. testified that A.M. would be at their home only in the evening to help with the bedtime routines. This is not consistent with V.H telling Ms. Binkley that she needed daycare after the mother had said she wasn't coming to Alberta. V.H. told the worker that the plan was for the mother to live with them. Later, V.H. said the mother was not going to live with them. In August 2017, the mother spent two weeks with the grandparents in Alberta. The grandmother said the visit went well. I expect this may have been a trial run.

[89] I find that the original plan was for the mother to be with the grandparents to provide care for the two very young children. Why else would the grandmother have needed daycare during the day? If the Society had known that A.M. was going to be living in the home, I expect the plan would not have been approved.

[90] The mother's position is that the plan for the child to be with the grandparents should be enforced. However, the plan was not followed because of the grandmother's withdrawal of the plan and the subsequent information provided to the Society. The Society needs to review the proposed plans while considering the best interests of the child.

Best Interests Test

[91] The paramount purpose of the CFSA is to promote the bests interests, protection and well-being of children as set out in section 1 of the Act:

Paramount Purpose

(1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

Other Purposes

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. 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, wherever possible, be provided on the basis of mutual consent.

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

3. To recognize that children's services should be provided in a manner that,

   i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

   ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

   iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

   iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

[92] The considerations that a court must take in determining what is in the best interests of a child are set out below:

Best Interests of Child

(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. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3); 2016, c. 23, s. 38 (18).

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

[93] In considering the child's physical, mental and emotional needs and level of development, I find that the child is extremely busy and resourceful. For example, the Children's Services worker says the child will pile toys to use to climb over barriers. The child may need speech therapy as his sisters required. V.H. works full-time and J.M. is 68 years of age and not in good health.

[94] The Society workers, Ms. Flagler and Ms. Binkley, who have been present when J.M. exercised access with the four children, commented on how he was not actively providing care to the children during the access and seemed to allow the mother to control the visits. The mother was described to be constantly trying to force the children to take selfies with her even when they did not appear interested or when they tried to get away. The grandfather did not intervene. B.N. was often described as being somewhat left out of the visits due to the attention given to the other children. On one occasion, the mother moved to another room in the access facility and J.M. was unaware of her whereabouts.

[95] The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family must be considered. The grandparents are strangers to the child. The child has been in the same foster home for two years and he has had a continued relationship with his paternal grandparents. If the maternal grandparents had video access with the child and had come to Ontario to bond with the child, perhaps the Court could find they had a secure relationship but they do not.

[96] The only constant in this child's life has been the visits once per month by the maternal grandparents and his siblings, along with the foster parents.

[97] The Court must consider 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. The Society plan proposes that the child be placed for adoption with a family who would consider openness with the siblings, the grandparents and perhaps the foster parents.

[98] The mother had given the names of her step-sister and half-sister in February 2017, as possible care givers. Neither sibling has come forward. They do not have a relationship with the child. The mother also gave the name of a friend but she was involved in one of the domestic incidents with the father of B.N. and is not likely to be approved. In addition, she has not come forward.

[99] The Court must consider the effect of delay on B.N. if the decision about his care were adjourned to consider other plans.

[100] Justice Katarynych discussed in the context of a motion for summary judgment the importance of timely dispositions for children in care:

15. The remedy is a tool with which to contain and control a child's drift in litigation. A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent; see Children's Aid Society of London and Middlesex v. L.A. and H.C. (no.2) (1999), 93 A.C.W.S. (3d), 855, [1999] O.J. No. 4830, 1999 CarswellOnt 4128 (Ont. Fam. Ct) , per Justice Grant A. Campbell.

16. Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's choice to correct parenting inadequacies must be balanced with a child's right to appropriate development within a realistic time frame, if damage to the child is to be minimized. See Children's Aid Society Kingston and Frontenac County v. J.G. and D.B. (1997), 73 A.C.W.S. (3d) 82, [1997] O.J. No. 3205 CarswellOnt 2830 (Ont. Fam. Ct.) per Justice Cheryl J. Robertson.

17. The court's function is very narrow in this motion. The task is not to resolve an issue of fact but to determine whether a genuine issue of fact exists. The issue with be germane to the judicial decision required in the case. A "genuine" issue of fact requires that the fact be material to the decision that must be taken in the main litigation. If the result of the proceeding does not turn on the existence or non-existence of that fact that is advances as a genuine issue, then it cannot relate to a "genuine issue for trial". See Irving Ungerman Ltd. V. Galanis (1991), 4 O.R. (3d) 545, 50 O.A.C. 176, 83 D.L.R. (4th) 734, 1 C.P. (3d) 248, [1991] O.J. No.1478, 1991 CarswellOnt 370 (Ont. C.A.), at pages 550-552 [O.R.].

[101] I find that there is no genuine issue for a trial in this matter. The grandparents withdrew their plan, it cannot be revived. There is no other viable family plan before the Court.

[102] The Court recognizes that a Crown Wardship order is the most profound order that a court can make and to take someone's children from him or her is a power that a judge must exercise only with the highest degree of caution, only on the basis of compelling evidence, and only after a careful examination of the alternative remedies. See Catholic Children's Aid Society of Hamilton-Wentworth v. Jill G.-T, 90 O.A.C.5, 23 R.F.L. (4th) 79, [1996] O.J. No. 1394, 1996 CarswellOnt 1428 (Ont. Div. Ct.).

[103] In this case, there are no other alternatives to Crown Wardship. A placement of custody with the grandparents would not be in the child's best interests for the same reasons that a placement for adoption would not be in the child's best interests.

[104] It should be noted that as per section 63.1 of the CFSA, even after an order of Crown Wardship has been made, the Society has a duty to consider any family plan even in adoption. However, time is of the essence.

Placement of a Crown Ward

[105] I find that the Court has no authority to direct the placement of a Ward, it is the Society that places a child, pursuant to section 61 of the CFSA.

Placement of Wards

(1) This section applies where a child is made a society ward under paragraph 2 of subsection 57 (1) or a Crown ward under paragraph 3 of subsection 57 (1) or under subsection 65.2 (1). 2006, c. 5, s. 19 (1).

Placement

(2) The society having care of a child shall choose a residential placement for the child that,

(a) represents the least restrictive alternative for the child;

(b) where possible, respects the religious faith, if any, in which the child is being raised;

(c) where possible, respects the child's linguistic and cultural heritage;

(d) where the child is an Indian or a native person, is with a member of the child's extended family, a member of the child's band or native community or another Indian or native family, if possible; and

(e) takes into account the child's wishes, if they can be reasonably ascertained, and the wishes of any parent who is entitled to access to the child. R.S.O. 1990, c. C.11, s. 61 (2).

[106] The Court can only recommend a placement. This is set out in in the case of E. v. Children's Aid Society of Metropolitan Toronto.

[107] In that case, Justice Henry was sitting in appeal of a child protection decision of Provincial Judge, James P. Felstiner. The appellants asked for habeas corpus and certiorari in aid in respect of an infant, T.S.E., aged 13 months, who was placed for ten months in the care and custody of the Children's Aid Society of Metropolitan Toronto. The appellants' position was that the Trial Judge in his recommendations for a certain treatment had overstepped his authority and was directing placement.

[108] Justice Henry held at para 9 and 10:

His reasons amount, at most, to a strong recommendation that the child be maintained in the group home and an assumption that the children's aid society would continue the programme already started. There can be no objection to this. Indeed, he makes it clear that the decision as to the locale and method of carrying out its mandate lies with the children's aid society. To use his words:

My decision is that [the child] will be made a ward of the Children's Aid Society of Metropolitan Toronto for a further period of ten months, which gets us through the school year. The children's aid society, under the law, has the power as to where [he] shall be placed. The parents have the right to question that at any time. The parents also have the right to appeal my decision.

It is quite clear that he leaves the Children's Aid Society free to make its own decision according to its own judgment as, of course, it must do under the law.

[109] As I find that there is no authority for the Court to direct the Society to place a Ward, I would not be able to place the child with the grandparents. Given that I have found that I have no authority to place a Crown Ward, it follows that I also cannot place a Crown Ward outside of Ontario.

Placement of a Crown Ward Outside of Ontario

[110] The Director has control and oversight of a placement in Ontario. There may be placements already approved so the child can start his "forever journey". When the grandmother withdrew her plan in October, this matter was referred back to the adoption worker.

[111] As the child is a Crown Ward, only the Society may place the child outside Ontario and only if extraordinary circumstances justify the placement. A family placement could qualify as an exceptional placement but the Court does not have the authority to make such an Order. The authority rests with the director in section 61 (4) of the CFSA which provides:

Placement Outside or Removal from Ontario

(4) The Society having care of a child shall not place the child outside Ontario or permit a person to remove the child from Ontario permanently unless a Director is satisfied that extraordinary circumstances justify the placement or removal.

[112] A director can only recommend an out of province adoption in an exceptional case and I find that this is not such a case. Justice Spence in considering a Society plan to place children in Jamaica for a visit with kin held that: "unless there was a strong likelihood that the plan would succeed, the risks posed by this plan, which I have detailed in my discussion, significantly outweigh the benefits of this proposed Jamaican sojourn".

[113] Extraordinary circumstances as defined in the Oxford Dictionary are: "very unusual or remarkable". I would add, "with a strong likelihood of success", as set out by Justice Spence.

[114] The child, although very busy, is healthy and well adjusted. There is no impediment to adoption. If there are family member who wish to adopt, the Society will consider those plans, as they are bound to do.

[115] The plan, if it had not been withdrawn by V.H., should have been completed by now. The child should not have to wait for permanency. The effects on the child as a result of more delay in the disposition of the case must be considered as not in his best interests.

[116] If I had the authority to compel the director to approve the adoption, I would not do so. J.M. and V.H. live in Alberta. They have busy lives there. They would still need to come to Ontario to bond with B.N. Then, the worker would need to go to Alberta with the child to further assess the placement. But, what if the child does not adjust? Then, the process starts fresh with a new "forever" family. A Custody Order is not adequate to protect B.N. He needs permanency. This is not an exceptional case where the child should be placed either outside of Ontario or with the grandparents.

[117] The child is young. If the child's views and preferences were considered, he may wish to remain with his present foster home but that is not an option. Therefore, he should be placed somewhere where the director can quickly assess the success of the placement.

Request to Assess the Grandparents

[118] The alternative request of the mother is an order for an assessment of the grandparents. I find that this is not required given the evidence at the focused hearing. V.H. says she can manage two young children with the assistance of daycare. She does not seem to understand how busy B.N. is. She seemed dismissive of this concern in her evidence. She testified that if there is sufficient safety equipment such as a fence around a pool and that the child will be safe. However, the evidence of the workers is that the child is extremely resourceful as well as busy and he must be watched constantly.

[119] The plan of the grandparents is really a proposed plan. There are too many unknowns.

Access

[120] I must consider whether the child should have access after he is made a Crown Ward. The mother consented to no access for purposes of adoption when the plan was to place B.N. with her father and his partner. Therefore, I must again consider the question of access. Section 58 of the CFSA sets out the test for the Court to consider:

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. 2006, c. 5, s. 17 (2).

[121] Justice Quinn, in Children's Aid Society of the Niagara Region v. M.J., [2004] O.J. No. 2872 (S.C.J.) at paras. 45-47, held:

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.

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.

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.

[122] At the present time, the mother is not exercising access and has not seen B.N. for seven months.

[123] I find that given the findings in the Section 54 assessment and the evidence at this hearing, the access is not beneficial and meaningful to the child. The paternal grandparents are exercising access, but the Society does not ask that it continue. I expect that the visits are enjoyable to the child but there is no evidence that they are beneficial and meaningful.

[124] The affidavit of Ms. Flagler sets out a number of concerns about the mother's access even when supervised by her father. There were times that the mother left the area where access was to occur without J.M. knowing her whereabouts. The access was described as chaotic and overwhelming in addition to the above child protection concerns. The worker also described the grandfather as having difficulties standing up to his daughter. She did comment that the grandfather's care of K.N. is more active.

[125] The Society indicates that they will look for a placement, but they did not disclose the proposed adoptive parents because of the manipulation and destabilization that the mother's involvement in the child's life may cause. I find that access is not beneficial and meaningful and it would impair an adoption. Access with the mother would impair adoption given her inability to control her emotions and her claims of wrongdoings, even by those closest to her.

[126] Although the maternal grandparents are not in court asking for access, the Society's plan is that they will look for a family who will allow some openness with the grandparents and the siblings. I encourage this plan especially as it relates to the paternal grandparents and the siblings. The step-grandmother asked for access to B.N. in the event that the Court did not accept her plan. Although she has only had two visits, she was very appropriate with B.N. but I could not find that the access is beneficial and meaningful to the child.

[127] Based on the evidence before me, I find that it is not in the child's best interests to proceed with an adoption by V.H. and J.M. There are no other plans before me, but the Society will investigate any plan that may come forward. They will not advise the mother of the proposed placement.

[128] This child has waited for permanency for too long. The best of intentions has delayed an earlier resolution. The Society now needs to work quickly to place B.N. with his "forever family". I recommend (not an order) that they consider a home that may consider openness with the grandparents, siblings and foster parents.

[129] Although I am settling the order I made on September 23, 2017, I will date the order March 1, 2018 for the appeal purposes given the novel and challenging issues for the parties. I thank counsel for their able submissions. I have signed the draft order provided by counsel for the Society.

Order

[130] The child B.N. shall be made a Ward of the Crown and placed with the Highland Shores Children's Aid Society without access for purposes of adoption.

Released: March 1, 2018

Signed: Justice W. Malcolm