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: 2018-03-19

Court File No.: Woodstock C228/15

Between:

Children's Aid Society of Oxford County Applicant

— AND —

C.V. B.B. T.D. Respondents

Before: Justice S.E.J. Paull

Heard on: January 29, 30, 31, February 1, and 27, 2018

Reasons for Judgment released on: March 19, 2018

Counsel

Jane Hegny — counsel for the applicant(s)

Gary D. McQuaid — counsel for the respondent, C.V.

Grant Rayner — counsel for the respondent, T.D.

PAULL J.:

Introduction

[1] Before the court is a status review application dated January 18, 2017 in which the applicant seeks a six month supervision order with the child, R.R.V. born […], 2015 (female) remaining in the care of her maternal great-grandmother T.D.

[2] This matter proceeded to trial over five days between January 29 and February 27, 2018. T.D. was added as a party to this proceeding on February 21, 2017, and filed an answer seeking an order of custody pursuant to section 57.1 or alternatively in order for further supervision with R.R.V. remaining in her care.

[3] C.V., the child's mother, filed an answer seeking an order that the child be returned to her care pursuant to a 57.1 custody order or alternatively pursuant to a supervision order.

[4] B.B., R.R.V.'s father, has not taken part in this proceeding and was noted in default on April 4, 2017.

[5] At trial the applicant took the position that it would support the primary residence of R.R.V. with T.D. pursuant to a 57.1 custody order. It took the further position that if the child was returned to the primary care of C.V. that a supervision order would be required in the circumstances.

Background and Evidence

[6] The order under review is the final order of February 23, 2016 which found the child in need of protection pursuant to section 37(2)(b)(i) and (ii), and placed her in the care of T.D. for a period of 12 months subject to terms of supervision.

[7] The order of February 23, 2016 was made on the basis of a Statement of Agreed Facts wherein the parents and Society agreed to the following in support of the findings and disposition:

1. The Society was working with the parents prior to R.R.V.'s birth because of concerns related to the parents' relationship, B.B.'s history of domestic violence, and the concern for both parents' alcohol and drug use.

2. B.B. was charged with assaulting C.V. in June 2014, and in February 2015 was found guilty and served an intermittent jail sentence followed by a period of probation. A no contact order was in place from June 2014 up to June 2015, and given that R.R.V. was born in […] 2015, it was apparent the child was conceived while the no contact order was in place.

3. The parents separated in or around September 2015 and R.R.V. remained with C.V., who relocated to second stage housing through Ingamo Family Homes.

4. Concerns related to C.V.'s substance use continued and the parties entered into a six month protection services agreement on October 19, 2015 which included terms requiring C.V. to find alternate caregivers if she planned to consume alcohol, and that she engage supports for domestic violence and addictions.

5. On October 29, 2015 C.V. advised the Society that she was withdrawing her consent to the agreement and that she no longer wished to work voluntarily with the Society.

6. In the early hours of November 1, 2015 B.B. was arrested for violently assaulting C.V. after the couple had been together consuming alcohol. The assault included B.B. smashing her head several times on the side of the toilet, punching her on the face and the back of the head, dropping onto her stomach with his right knee, choking her to the point of unconsciousness, and threatening her with a knife. C.V. suffered fractures in two fingers.

7. On November 2, 2015 R.R.V. was apprehended with a warrant from C.V. and placed with T.D.

8. Following the apprehension C.V. acknowledged the extent of her alcohol consumption and planned to attend a residential treatment program.

9. In late 2015 and early 2016 C.V. acknowledged missing many of her scheduled access visits because of feeling depressed and because of her alcohol use.

10. C.V. attended detox in January 2016 but acknowledged leaving after one day.

[8] The supervision order included terms that the parents provide the Society with advance notice of any change in contact information, sign consents to release information from service providers, meet with the worker when required, manage their substance abuse, participate in addictions counselling, and participate in random drug/alcohol screening. C.V. was also required to participate in individual counselling and domestic violence counselling and to work with the protection support worker to assist her with learning effective child management skills. B.B. was also ordered to attend domestic violence and anger management counselling.

[9] The Plan of Care filed in support of the order includes numerous expectations, including that the parents follow through with access, demonstrate an ongoing commitment to sobriety, and engage in programs for substance use and personal counselling.

[10] The Plan states that provided the parties accept the services and diligently apply themselves to them it would be reasonable to expect satisfactory progress within the 12 month term of the order, otherwise further supervision may be required.

[11] With respect to the time period under review since the making of the order on February 23, 2016 the parties filed a Statement of Agreed Facts dated January 19, 2018 agreeing to the following:

1. For most of 2016, C.V. made little progress in addressing the child protection goals of housing stability, overcoming addiction, consistently attending access, and maintaining contact with the worker.

2. C.V. began residing with her current partner J.D. in Brantford in the fall of 2016. J.D. has a history of drug use and a conviction for assault on a former spouse, and for possession of a controlled substance. At the time of trial he was no longer subject to terms of probation.

3. Since January 2017 C.V. has made progress in addressing the issues, and she and J.D. have been cooperative with the Society.

4. C.V. and J.D. obtained stable housing in June 2017 and have maintained it since then. Both have been on methadone since the fall of 2016. C.V.'s drug screens were clear during testing from January to September 2017. J.D.'s screens have been clear for the same period except for a positive screen on May 3, 2017 for cocaine.

5. C.V. has participated in parenting programs and individual and group addictions counselling.

6. The police attended their home on July 23, 2017 regarding a verbal dispute between them where no children were present and where alcohol was a factor. C.V. spent the night at a motel funded by police and no charges were laid.

7. C.V. missed no access since April 2017 and her interactions with R.R.V. have been responsive and appropriate, and R.R.V. is comfortable with her.

8. C.V.'s access was gradually expanded in 2017 as follows:

   a. Starting in August 2017 access was unsupervised day access in her home in Brantford for full days on Mondays, Wednesdays, and alternate Sundays.

   b. Starting October 15, 2017 access was expanded to include alternate Sundays overnight to Monday.

   c. R.R.V. spent December 24 overnight to December 25, 2017 with C.V.

9. Since the order was made B.B. has made minimal progress addressing the concerns. He attends supervised access inconsistently and has not participated in the court proceeding or the programming outlined in the order.

10. With respect to T.D., R.R.V. has been in her care since November 5, 2015, when R.R.V. was less than 4 months old.

11. R.R.V. is healthy and well cared for and attached to T.D. There are no protection concerns regarding T.D.'s care of R.R.V.

12. The parties agree that R.R.V. remains a child in need of protection with respect to C.V. and B.B.

13. T.D. and C.V. attended mediation and while they disagreed on custody and primary residence, they agreed to a detailed schedule of access between them regardless of the custodial arrangement.

Evidence from Society Workers

[12] The court received evidence on behalf of the Society from Laurie Grove who has been involved as an access supervisor with the family since November 2015, and is currently the lead access supervisor for B.B. She swore an affidavit dated January 26, 2018 and adopted its contents as part of her evidence at trial on behalf of the applicant. Her evidence can be summarized as follows:

1. Between February 2016 and May 2016 C.V.'s attendance at access was very sporadic. The access was put on hold in May 2016 as C.V. had moved from Oxford County and was only having sporadic contact with the worker.

2. As a result the file was closed with the Child and Family Support Team. C.V. had occasional contact with R.R.V. supervised by T.D. during this period.

3. A meeting was held on October 4, 2016 where it was agreed that access for C.V. would resume at the Society two times a week.

4. However, late in October 2016 access went back to being supervised by T.D., which she understood was to occur approximately two times per week.

5. In January 2017 she met with C.V. and her partner J.D. along with family service worker, David Stanley, to discuss resuming access at the Society offices and developing a plan to address the protection concerns going forward.

6. At that time C.V. was living with her mother in Brantford who would be providing the transportation for access.

7. Between January and April 27, 2017 C.V. missed or cancelled 5 of 18 visits.

8. Starting in April 2017 the Society provided transportation for C.V. to attend 2 visits a week. After that C.V. has not missed any other visits.

9. By May 2017 C.V.'s access progressed to take place in the community with a supervised check in and check out.

10. Around July 10, 2017 access moved from the Society in Woodstock to C.V.'s home in Brantford with a check-in.

11. As of September 2017 access moved to fully unsupervised.

12. B.B. exercises one supervised access visit per week which has remained the case since apprehension, and while he has missed or cancelled several visits, he has otherwise been attending.

13. She has generally observed positive and caring interactions between B.B. and R.R.V.

[13] Kristie Cooper is a child protection worker employed by the applicant and has been the kin service worker for T.D. since April 7, 2017. She swore an affidavit dated January 26, 2018 and adopted its contents as part of her evidence at trial on behalf of the applicant. Her evidence can be summarized as follows:

1. She has observed positive interactions between T.D. and R.R.V. and believes that there is a close bond between them.

2. She acknowledged that she has not observed C.V. and R.R.V. together and was not aware of the extent of their bond.

3. She stated that T.D. had raised concerns about R.R.V. struggling after access was expanded but confirmed in cross-examination with Mr. McQuaid that this is not been an issue since November 2017.

4. She has no child protection concerns with T.D.'s care of R.R.V. and was of the view that T.D. has provided consistent, safe and loving care which has permitted R.R.V. to thrive.

[14] David Stanley is employed by the applicant as a family service worker and has been the primary worker for the family since November 23, 2016. He swore an affidavit dated January 26, 2018 and adopted its contents as part of his evidence at trial on behalf of the applicant. His evidence can be summarized as follows:

1. Throughout 2016 C.V. struggled to address the protection concerns and stabilize her life. She missed a significant amount of access and did not consistently follow through with supports to address the substance abuse concerns.

2. In September 2016 C.V. advised that she had started on the methadone program.

3. During 2016 C.V. did not maintain communication with the Society or keep it updated with her current contact information.

4. When he took carriage of the file in November 2016 access was inconsistent and he had difficulty coordinating it because of C.V.'s transience and substance use, and the fact that she did not have an active phone number.

5. C.V.'s follow-up was inconsistent, with several missed scheduled calls which resulted in their first meeting not taking place until January 11, 2017.

6. From this meeting forward, which involved J.D., he described both C.V. and J.D. as immediately cooperative and motivated to address the issues.

7. At that time C.V. requested that her access return to being supervised by the Society, rather than T.D., so her progress could be monitored and supported. Supervised access commenced at the Society on January 26, 2017.

8. Some inconsistency in attendance for access remained until the Society committed to providing the transportation in April 2017. Since then no visits have been missed.

9. Throughout 2017 C.V. and J.D. have participated in programming including the Society's Access Program and a Networking Boot Camp which focuses on developing a supportive personal network.

10. C.V. took proactive steps to engage in programming and he has received positive reports from the Brantford Pregnancy Resource Clinic, Brantford Ontario Works, Brantford Addiction Services Initiative, St. Leonard's Community Services, Brantford Housing First Initiative, and the Towards Recovery Clinic (methadone clinic).

11. J.D. started the methadone program in Brantford in May 2016 and provided clean weekly urine screens with the exception of January 6, 2017, which was positive for cocaine and amphetamines, and May 3, 2017, which was positive for cocaine.

12. He investigated the May 3, 2017 screen and concluded that it appeared to be an isolated incident and there was no evidence to indicate the R.R.V. was exposed or that C.V. was involved.

13. C.V. started the methadone program in October 2016. Since January 13, 2017 her screens have all been clean. He presently has no concern that drug use or relapse is a problem for either C.V. or J.D. and is satisfied with the efforts they have made to address these issues.

14. He received a report from Brantford Police about an incident which occurred on July 3, 2017. The report indicates that there was a verbal argument between C.V. and J.D., with alcohol being a factor. No charges were laid. He has received no other reports of drug/alcohol use or police involvement since then.

15. Overall he spoke very highly of C.V. and J.D. and was of the view that they have worked hard and addressed all of the protection concerns.

16. With respect to T.D. he has observed her to be affectionate and responsive to R.R.V. He observed positive interaction between R.R.V. and both C.V. and T.D., and that R.R.V. appears happy, engaged and well attached with both.

17. B.B.'s access has remained supervised, and it is the position of the Society that his ongoing access be arranged at the discretion of R.R.V.'s primary caregiver, whether that is C.V. or T.D.

Evidence from T.D.

[15] T.D. testified in support of her claim that R.R.V. remain in her primary care. Her testimony can be summarized as follows:

1. She lives in Woodstock in a home she owns mortgage free.

2. When R.R.V. was placed in her care in November 2015 she took a year of parental leave to be with R.R.V.

3. She has worked at OECYC for 29 years where she is currently the assistant manager of financial services.

4. She resides with her adult son Casey. He has been on the methadone program since December 2008, and has a criminal record from 2007 and 2009 including entries for assault and failure to comply with probation. She has observed a close relationship between Casey and R.R.V., and has no concerns with him occasionally assisting with caregiving.

5. Initially after R.R.V. was placed in her care, C.V. would attend at her home and they would do activities together with R.R.V.

6. Her relationship with C.V. has not been a positive one since mid-2017 when she made the decision to advance a custody claim for R.R.V.

7. She acknowledged having a difficult relationship with David Stanley as she felt he was expanding the access of C.V. too quickly and it was having an adverse effect on R.R.V.

8. She acknowledged not being aware of the efforts C.V. has undertaken to address her substance use and the other protection concerns.

9. She raised concerns with the worker about disruption in R.R.V.'s sleeping and behaviour after access was expanded. She acknowledged in cross-examination by Mr. McQuaid that this is no longer a concern and has not been since approximately October 2017 after overnight visits began.

10. She further acknowledged that R.R.V. has now adjusted to the visits and that they are good for R.R.V., and that looking back, it was the right decision to expand access. She does not have any current issues with the frequency of access.

Evidence from C.V.

[16] C.V. testified on her own behalf in support of her claim for R.R.V. to be returned to her primary care. She testified as follows:

1. She has been living in Brantford with her partner J.D. in the same apartment since June 2017. She is currently in receipt of Ontario Works.

2. She acknowledged a long history with substance abuse starting when she was a teenager when she began consuming alcohol with her mother.

3. The last time she consumed alcohol was July 23, 2017 when the police attended the home. She and J.D. are both on the methadone program. She has been on the program for approximately 1.5 years because of her past use of hydromorphone pills. The last time she consumed drugs or had a positive drug screen was January 2017.

4. When R.R.V. was born she was living in Woodstock where she remained until R.R.V. was apprehended in November 2015. During this time she had a "very good" relationship with T.D., who they saw often and who provided care for R.R.V. at times.

5. She has known J.D. since 2007 and began dating him in March 2016.

6. She acknowledged that her substance use and instability continued throughout 2016 and that she really started to focus on her recovery in January 2017. Her primary motivation was a desire to have a relationship with R.R.V.

7. Throughout 2017 her access gradually expanded and since October 2017 has included overnights.

8. In addition to the programming at the Society she has been involved in several support programs.

9. Starting on July 4, 2017 she has been involved in the Programming and Resource Centre in Brantford, and attending programming to enhance parenting skills. A report dated September 6, 2017 confirms her successful involvement in the program.

10. Starting February 3, 2017 she has been involved in the Addiction Services Initiative through Brantford Social Services. She is still involved with the program which includes regularly attending appointments with the service coordinator and addictions counsellor (including both individual and group meetings). A report dated September 18, 2017 confirms she has followed through with the program and with the recommendations in her treatment plan.

11. Through the Addiction Services Initiative she was referred in June 2017 to St. Leonard's Community Services for addiction counselling. A report dated September 11, 2017 notes her very positive and ongoing involvement with the individual and group programming. She continues to attend on a scheduled basis every 2 weeks for 1 hour.

12. A Certificate of Completion of the Steps to Change program through St. Leonard's dated November 10, 2017 was filed confirming her successful completion of the program, which is a voluntary program to support and maintain sobriety.

13. A Certificate of Completion dated November 14, 2017 from the Active Parenting-First Five Years Program was filed confirming C.V.'s successful participation in the program which offers parenting education regarding the ages and stages of children focusing on the first five years.

14. She is also presently involved with the Family Counselling Centre of Brant. A report dated January 23, 2018 was filed confirming that between October 3, 2017 and the date of the report she has attended six sessions focused on addressing past abuse and developing coping strategies.

15. She also testified to participation in a weekly support group for mothers called Growing Hearts Program, which she has found helpful.

Evidence from J.D.

[17] J.D. testified on behalf of C.V. His evidence can be summarized as follows:

1. He has lived with C.V. in Brantford since June 2017.

2. He is 27 years old and has another child named Delson who is six years old and resides with his mother. He sees Delson approximately once per month in Brantford.

3. He acknowledged two criminal convictions for assault and 2015 involving the mother of his child which involved pushing on two separate occasions with the offense dates between 2008 and 2012.

4. He acknowledged a difficult childhood and getting involved in drugs through an older brother when he was eight years old.

5. He acknowledged an opiate addiction and that he has been on the methadone program for approximately one and a half years. He acknowledged the positive screen in May 2017 and that the police were called on one occasion in 2017 for a verbal disagreement between him and C.V. in July 2017.

6. He has completed a welding program at Conestoga College and hopes to find employment in this area. He is currently on Ontario Works and concentrating on his recovery.

7. He supports C.V. and will assist her in any way he can.

Expert Evidence: Dr. Richard Zayed

[18] Dr. Richard Zayed was qualified as an expert witness in the area of infant attachment including the possible consequences of disrupting attachment generally and specifically with respect to R.R.V.

[19] According to a letter from Mr. Rayner dated August 3, 2017, Dr. Zayed was retained by T.D. to:

"opine on whether return of this child to the biological mother would, in some way, be detrimental to the best interests of this child and, if so, what sorts of consequences in the life of this child might be expected that would flow from a removal of this child from the only caregiver she has ever known."

[20] A brief synopsis was provided to Dr. Zayed by Mr. Rayner which outlined that the Society was seeking to return the child to C.V. on the basis that she was making progress on the protection concerns. The synopsis confirmed that R.R.V. had been with T.D. since November 2015 and that R.R.V. had been well cared for by her. The synopsis also outlined that access by C.V. had not always been consistent.

[21] Dr. Zayed provided a Psychological Report of R.R.V. dated September 16, 2017. He confirmed that the scope of the report was to review the impact on R.R.V. of a change in her placement.

[22] Dr. Zayed testified that the loss of a caregiver can be a significant trauma on a child R.R.V.'s age, due to their attachment and dependence on the caregiver. This is based in part on the important formative nature of the attachment that develops between the child and caregiver in the early years, and particularly around the time the child is 9 months old. At this time a child develops the ability to comprehend "object permanence", in that the child can know that something exists when it is not in front of them. A child will view their caregiver in this way which supports the formation of the attachment, as the child is able to form a representation of the caregiver in their mind.

[23] Dr. Zayed testified that attachments are not static over time and that positive attachments are critical to healthy emotional, physical, and neurological development. He was of the view that attachments could be repaired, with permanent placement being the most important intervention. He concluded that placement disruption is to be avoided if possible, and would lead to a greater likelihood of negative outcomes for the child including an emotional impact ranging broadly from sadness to a trauma or PTSD type response. The younger the child when the positive attachment is disrupted the higher the likelihood of a negative outcome in both the short and long term.

[24] With respect to R.R.V. he concluded in his report that "it is difficult to conceive of her removal from the home of …[T.D.]". As a result of R.R.V. having a healthy and secure attachment to T.D., and that T.D. can offer a permanent placement, Dr. Zayed felt there could be no better alternative, and that it "would be tragic for… [R.R.V.] if that opportunity is disrupted."

The Law on a Status Review

[25] With respect to status review applications there is a two-fold examination. First, whether the child continues to be in need of protection and second, the child's best interests encompassing the entirety of the situation. The function of the status review hearing is not to retry the original need for a protection order but rather to evaluate whether there is a need for a continued order for protection. Once a finding of the need for protection has originally been made, there is still the requirement, upon a status review, to consider whether the child is or is no longer in need of future protection. Children's needs are continually evolving and these ever-changing circumstances must be taken into account. The courts must continually evaluate the need for state intervention in order to insure that the objectives of the Act are being met. Best interests must be examined from the child's perspective and will take precedence to parental interests. Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165 (S.C.C.).

[26] The court's disposition options in this case are set out in section 57(1) of the Act. This subsection reads as follows:

Order where child in need of protection

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

Supervision order

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

Society wardship

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

Crown wardship

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

Consecutive orders of Society wardship and supervision

4. That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57(1) ; 2006, c. 5, s. 13 (1-3).

[27] In addition to the orders available to the court under section 57(1), the court also has the option of making a custody order under section 57.1.

[28] Section 57.1 of the Act reads as follows:

57.1 Custody order

(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

(2) Deemed to be order under Children's Law Reform Act

An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

(3) Order restraining harassment

When making an order under subsection (1), the court may, without a separate application under section 35 of the Children's Law Reform Act,

(a) make an order restraining any person from molesting, annoying or harassing the child or a person to whom custody of the child has been granted; and

(b) require the person against whom the order is made to enter into such recognizance or post such bond as the court considers appropriate.

(4) Same

An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act and may be enforced, varied or terminated only in accordance with that Act.

(5) Appeal under s. 69

Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

(6) Conflict of laws

No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada) ; or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

(7) Application of s. 57(3)

Subsection 57(3) applies for the purposes of an this section.

[29] The important elements of this section in this case are as follows:

a. The custody order in section 57.1 can only be made once there has been a finding that a child is in need of protection.

b. Once the finding has been made, the test is whether it is in a child's best interests to make this type of order as opposed to an order under subsection 57(1) of the Act. Criteria for a child's best interests are set out in subsection 37(3) of the Act.

[30] In determining the appropriate disposition, the court must decide what is in the child's best interests. The court considered the criteria set out in subsection 37(3) of the Act in making this determination. This subsection reads as follows:

Best interests of child

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

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

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

3. The child's cultural background.

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

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

6. The child's relationships by blood or through an adoption order.

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.

Continued Findings in Need of Protection

[31] The parties are consenting that R.R.V. remains a child in need of protection pursuant to section 37(2)(b)(i) and (ii).

Disposition

[32] With respect to disposition and whether the court should return R.R.V. to C.V. pursuant to a supervision order or have her remain with T.D., I am satisfied that the best interests of the child will be served by way of a 57.1 custody order with primary residence with T.D., with liberal access to C.V. pursuant to the parties agreement.

[33] There was little dispute with respect to the evidence regarding both T.D. and C.V.'s ability to care for R.R.V.

[34] It was agreed that T.D. has been R.R.V.'s primary and sole caregiver since she was 3 ½ months old (R.R.V. was just over 2 ½ at the time of trial), and that T.D. has provided excellent care for R.R.V. I was impressed by T.D. and the commitment she has shown to her great-granddaughter. Taking a leave of absence for the first year and ensuring that all of R.R.V.'s emotional and physical needs are met illustrate her commitment. All the evidence was consistent and I accept that R.R.V. has done very well with T.D. and is thriving in her care.

[35] I accept the evidence of David Stanley that he observed a positive and comfortable relationship between R.R.V. and C.V. He had ample opportunity to make the observations he did during the numerous times he observed access visits. Further, T.D. acknowledged that the access is positive for R.R.V. and that she has settled in well to the routine after some initial adjustment.

[36] It was also clear on the evidence that since early 2017 C.V. has worked extremely hard to address the protection concerns. Not only has she had clear drug screens for over a year, she has shown considerable commitment to addressing her personal issues. There were numerous positive reports filed from the various programs that C.V. has been engaged in, and David Stanley confirmed that there was no additional programming he required from C.V.

[37] I was very impressed by C.V. in this regard. She successfully undertook all the programming requested of her and proactively sought additional supports. She was candid about the issues she has faced and the need for her to remain vigilant to maintain her progress.

[38] I was also impressed by her partner J.D. Given his unfortunate childhood experience of being exposed to drugs at a very young age his recovery efforts are commendable.

[39] I agree with David Stanley that in the circumstances J.D.'s positive screen in May 2017, which he took responsibility for, represented an isolated incident in his recovery. The same can be said for the incident in July 2017 where the police were called because of a verbal argument between C.V. and J.D. during which alcohol was an issue.

[40] While serious, the July 2017 incident does not indicate to me more than an unfortunate choice by the parties on an otherwise positive road to recovery. It was not a physical incident, no children were present, and no charges were laid. There was no other evidence of police involvement in 2017 and up to the date of trial.

The Primary Issue: Attachment and Continuity of Care

[41] The primary issue in this matter relates to the passage of time from R.R.V.'s perspective, and the impact on her of a change in primary care at this point. She has been out of her mother's care and with T.D. since November 2015, when she was 3 ½ months old.

[42] As noted by the S.C.C. in Catholic Children's Aid Society of Metropolitan Toronto v. C.M., supra, para. 37:

Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. As the Court of Appeal further noted:

We do not agree, however, that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the caregivers, when the child regards as her psychological parents, is severed. Such a factor is a well-recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on the status review hearing.

[43] The S.C.C. went on to state that the best interests of the child are to be considered by the balancing of all the considerations set out in section 37(3), and encompassing an examination of the entirety of the circumstances impacting the child. Further, at paragraph 40 the court stated the following:

"Among the factors in evaluating the best interest of the child, the emotional well-being of the child is of the utmost importance, particularly where the evidence points to possible long-term adverse consequences resulting from the removal of the child from his or her foster family and the return to his or her birth parents."

[44] The best interests analysis is a balancing exercise from the child's perspective of the various factors outlined in section 37(3), and having regard to the paramount purpose of the Act as set out in section 1. It is a contextual analysis with a wide focus of these and any other factors which may impact the child's interests.

[45] In my view both T.D. and C.V. have presented plans for the primary care of R.R.V. that have positive attributes.

[46] With respect to C.V. I am satisfied on the evidence that R.R.V. has a strong bond with her, and that she would be able to provide R.R.V. with a safe and loving home. This was confirmed by the observations of David Stanley, and T.D. did not dispute that C.V. and R.R.V. have a loving relationship. Further, C.V. has addressed to a significant degree the protection concerns including housing instability, substance abuse, and exposure to domestic violence, to an extent that no longer justifies the level of intervention undertaken in November 2015.

[47] However, R.R.V.'s emotional needs in connection with her relationship with T.D. (s.37(3)(1)), the importance of her development of a positive relationship with a parent (s.37(3)(5)), R.R.V.'s relationships and emotional ties to both T.D. and C.V. (s.37(3)(6)), the importance of continuity in R.R.V.'s care and the possible effect on her of disruption of that continuity (s.37(3)(7)), and any risk of harm to R.R.V. if she were kept away from her mother (s.37(3)(11)), are all highly relevant.

[48] T.D. has been R.R.V.'s primary caregiver most of her life, and there is no doubt on the evidence that R.R.V. is attached to her as her primary caregiver, and that disrupting that attachment at this point increases the risk of an adverse emotional impact for her.

[49] I accept Dr. Zayed's evidence with respect to the potential negative impacts of disrupting a positive attachment in a child of R.R.V.'s age. He is well qualified in the area of trauma/attachment in children and he testified that his opinions reflect the current state of the attachment literature. No expert evidence was presented to challenge or dispute these opinions of Dr. Zayed.

Concerns Regarding Dr. Zayed's Assessment

[50] However, with respect to Dr. Zayed making specific recommendations regarding R.R.V., this court has concerns for the manner in which he approached the preparation of his psychological report of R.R.V., which will impact the weight this court assigns to his conclusions.

[51] Dr. Zayed acknowledged in his report that:

"The review that was conducted is certainly neither a comprehensive trauma and attachment assessment, nor a formal custody and access or parenting capacity assessment. It is not intended to be an in-depth assessment of…[T.D.'s] capacity to care for R.R.V. in contrast to…[C.V.'s] capacity. However, based on the attachment literature and the facts identified in this review, various conclusions and recommendations can be drawn regarding placement and access."

[52] Dr. Zayed never met with R.R.V., and his only sources of information were the short synopsis provided by Mr. Rayner and two meetings with T.D. Dr. Zayed never met C.V. and never spoke to any Society worker or requested any information from the Society or any other collateral involved with C.V., T.D., or R.R.V.

[53] When asked why he had not done so he testified it was not necessary or relevant to his conclusions. He stated during examination by Mr. Rayner that the only facts necessary to support his conclusions regarding R.R.V. were the following three:

1. R.R.V. had been in T.D.'s care for almost 2 years, since she was less than four months old.

2. T.D.'s care for R.R.V. has been adequate.

3. R.R.V. is functioning relatively well.

[54] These facts alone were, in his view, sufficient to draw the conclusions he did. It was unclear why a more comprehensive assessment would ever be necessary, or why almost half of the report comprised a factual history which included a number of inaccuracies and notable exclusions including the following:

1. It incorrectly stated the Society's position was to support a return to mother.

2. The report notes that C.V.'s current partner has a history of violence and abusing drugs, but did not outline any particulars or his efforts to address the issues. Dr. Zayed confirmed in cross examination that he was unaware that T.D.'s son Casey, who lives in the home with T.D., also has a history of drug use and a criminal history including an assault.

3. Dr. Zayed reported that R.R.V. experienced disruption around access, and testified that this continued to be the case according to T.D., who he has continued to meet with since the preparation of his report. However, he was unaware that in fact this had not been the case since visits moved to overnights in October 2017, or that R.R.V. has since adapted well according to T.D. in her evidence.

4. Most notably there was no consideration of the nature of R.R.V.'s bond with C.V. other than to conclude with little elaboration in the report that C.V., "historically was a traumatizing figure in...[R.R.V.'s] life." Dr. Zayed was not aware of the specific efforts C.V. has made to address the concerns, or the quality of the access and bond that R.R.V. enjoys with her.

[55] The weight to be assigned to any psychological report or assessment depends on the nature and extent of the investigation and the facts upon which the assessor based his recommendations. The court needs to examine how the assessment was conducted, including the process and testing used (if applicable), how many visits there were, and whether the standard guidelines were met, when determining what if any value to place on a report and its recommendations.

[56] The court in Woodhouse v. Woodhouse, confirmed that an assessor's evidence was not determinative of the issues before the court, but was merely one piece of the evidence for the court's consideration. In other words, it is up to the court, not the assessor, to determine the facts.

[57] Courts should always treat assessments with caution. A psychological assessment is not determinative. The assessor does not have the benefit of the full evidentiary record that the court has. These reports, by their very nature, are predictive. They are just one piece of the evidence. It is important for the court to evaluate how the findings do or do not correspond with the evidence presented. Halton Children's Aid Society v. A.W., 2016 ONCJ 358 ; Children's Aid Society of Toronto v. S.C., 2016 O.J. No. 2124.

[58] Dr. Zayed acknowledges that this was not a comprehensive assessment, however stated that any further investigation or information would not have assisted him or impacted his conclusions. He did not observe R.R.V., the subject of the report, and his knowledge of the background was limited to two meetings with T.D. and a short synopsis. Further, the background facts he did outline in the report did not paint an accurate picture of the totality of the circumstances. I am not convinced that meaningful conclusions and recommendations specific to R.R.V. around her placement and access can be made on this basis. I do not accept that a thorough psychological report of the impact on R.R.V. of any disruption in her attachment with her primary caregiver can be undertaken solely on the three facts identified by Dr. Zayed, without meeting with the child, or other interested parties, and without a broader review of the facts and circumstances in R.R.V.'s life.

[59] As such, his specific opinions regarding R.R.V. in the report ought to be assigned little weight in the circumstances. As already outlined, I have accepted his evidence regarding the disruption of childhood attachments generally.

[60] Dr. Zayed confirmed that positive attachment and continuity of care in support of that attachment are critically important, particularly when the child is R.R.V.'s age, and that disrupting that placement increases the likelihood of a range of adverse and negative consequences in both the short and long term.

[61] All the parties agree and I accept that R.R.V. has a strong and positive attachment to T.D., and that she is attached to T.D. as her primary caregiver. In the circumstances of how long she has been in this placement, the risks to R.R.V. of disrupting it outweigh the benefits of returning her to the care of her mother, who has, through her hard work, largely addressed the protection concerns.

[62] Were it necessary for R.R.V. to make another move to a permanency home, or if T.D. was not available to remain her primary caregiver, I would, in all likelihood, be returning R.R.V. to C.V. under terms of supervision. Further, had the efforts that C.V. made in 2017 started in November 2015 after the apprehension, and had R.R.V. not spent so much of her life in T.D.'s care, I may have also been likewise inclined.

[63] However, R.R.V. had already been out of the primary care of C.V. for 14 or 15 months by January 2017 when C.V. began to seriously address the concerns. This has resulted in R.R.V., who was approximately 31 months old at the time of trial, having spent over 27 months of her life in the care of T.D. Given her strong attachment to T.D., disrupting her placement represents an unnecessary and significant risk to her emotional well-being and stability.

[64] Further, there is no basis to conclude that there is any risk of harm to R.R.V. if she is not returned to her mother as she has not been in her primary care since shortly after her birth, and views T.D. as her primary caregiver. The importance of R.R.V.'s relationship with C.V. will be supported by her ongoing access. R.R.V. will have the benefit of spending a significant amount of time with C.V. as the parties have reached a comprehensive agreement on access to the non-primary caregiver.

[65] Overall, the child's physical, mental and emotional needs, and the appropriate care to meet those needs are best served by an order that she remain in the primary care of T.D. It permits the child to remain with the caregiver with whom she has her primary attachment, and where she has thrived for most of her life. This will maintain the continuity in the child's care since November 2015 when she was 3 ½ months old. The continued placement with T.D., with liberal access to C.V. is the least restrictive and disruptive alternative consistent with the child's best interests.

Joint Custody Analysis

[66] With respect to the custodial disposition, the Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It cannot be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[67] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. Graham v. Butto, 2008 ONCA 260, Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).

[68] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

[69] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[70] In the case of S. (S.) v. K. (S.), 2013 ONCJ 432, the court wrote that courts should assess the dynamics of a family when determining if a joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:

1. more or less likely to de-escalate or inflame the parents' conflict;

2. more or less likely to expose the child to parental conflict; and,

3. Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[71] Ultimately, the court must decide if a joint custody order between T.D. and C.V. is in R.R.V.'s best interest.

[72] There is evidence from both parties that they had a positive relationship at one time. Both spoke positively of the other and how they spent time together with R.R.V.

[73] The more recent difficulties in their relationship are situational, in my view, and based on the circumstances of this litigation rather than evidence of an ongoing inability to communicate. I am satisfied that when this proceeding is behind them they will be able to return to the relationship they had previously enjoyed.

[74] By agreeing through mediation to a comprehensive access schedule for the non-primary caregiver they illustrated that they can effectively communicate and work through difficult issues regarding R.R.V. when necessary.

[75] Further, there is no risk, in my view, that a joint custody order will increase the likelihood of R.R.V. being exposed to conflict between T.D. and C.V. There is no evidence that R.R.V. has ever been exposed to any adult conflict between them. Neither am I of the view that a joint custody order will create indecision or a power struggle between T.D. and C.V. Apart from disagreeing on the primary residence there was no evidence the parties disagree on any important issues impacting R.R.V. However, as the primary resident parent, T.D. should have final decision-making authority in the event the parties are not able to agree on an important issue affecting R.R.V.

[76] I am of the view that the reasonable measure of communication and cooperation the parties have displayed at times in the past is achievable in the future, and that both parties can and will work together to promote R.R.V.'s best interests.

[77] On the basis of these considerations R.R.V.'s best interests will be best served by a joint custody order between T.D. and C.V. with primary residence to remain with T.D.

Final Order

[78] On the basis of the foregoing, there shall be a final order as follows:

1. The child continues to be in need of protection pursuant to section 37(2)(b)(i-ii).

2. By way of disposition there shall be an order pursuant to section 57.1 on the following terms:

   a. T.D. and C.V. will share joint custody of the child with the child's primary residence being with T.D.

   b. Access by C.V. per the terms of the agreement between the parties attached to the Statement of Agreed Facts found at Tab 11 of the Trial Record.

   c. T.D. will consult with C.V. on major issues concerning the health, welfare, and education of the child, however, if the parties disagree T.D. shall maintain the final decision-making authority.

   d. C.V. shall be listed as an alternative contact and joint custodial parent with any third party involved in the child's health, welfare, and education.

   e. C.V. shall be entitled to communicate and receive information directly from any third party involved in the health, welfare, and education of the child, and T.D. shall keep C.V. updated with the contact information of any third parties involved with the child.

   f. Neither party shall enroll the child in any extracurricular activities that will impact the other party's periods of care and control of the child, without their consent.

   g. Access to B.B. at the discretion of T.D. as the frequency, duration, and need for supervision, provided those times do not conflict with C.V.'s periods of care and control as outlined herein.

Released: March 19, 2018

Signed: "Justice S. E. J. Paull"