WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87(8) Prohibition re 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.
87(9) Prohibition re identifying person charged.
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.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2018-11-23
Court File No.: Kitchener 814/15
Between:
Children's Aid Society of the Regional Municipality of Waterloo
Applicant
— AND —
J.D., J.N. and M.P.
Respondents
Before: Justice B.C. Oldham
Heard on: January 11, 12, March 8 and 9, and May 14, 15 and 18, 2018
Reasons for Judgment released on: November 23, 2018
Counsel
Ms. S. Currie — counsel for the applicant society
Mr. W. Wintar — counsel for the respondent J.D.
Mr. E. Putman — counsel for the respondent J.N.
M.P. — not appearing
OLDHAM J.:
Introduction
[1] This is a Status Review Application (the "SRA") which seeks an order for extended care of two children, P.D. born […], 2014 ("P.D.") and A.D-R. born […], 2015 ("A.D-R.").
[2] The biological mother of both children is J.D. born […], 1995 (the "Mother"). The biological father of P.D. is J.N born […], 1992. The biological father of A.D-R. is M.P. born […], 1996.
[3] M.P. has not had any involvement in these proceedings or with the children. M.P. was added as a party on August 10, 2016 following a paternity test which confirmed that he is the biological father of A.D-R.
[4] The children were removed from the Mother's care on November 8, 2015 and the Protection Application was commenced on November 12, 2015. The children were found to be in need of protection by Order of Justice Neill dated October 6, 2016. Findings were made pursuant to subsections 37(2)(a)(i) and (ii) and 37(2)(b)(i) and (ii) of the Child and Family Services Act ("CFSA") in respect of A.D-R. and subsections 37(2)(b)(i) and (ii) of the CFSA in respect of P.D. These findings are now deemed to be findings under subsections 74(2)(a)(i) and (ii) and 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch. 1 (the "CYFSA").
[5] The SRA was commenced on December 15, 2016 and amended on May 4, 2017. The SRA sought an extension of the timelines under subsection 70(4) of the CFSA (now subsection 122(5) of the CYFSA) to allow for a further three month interim care order. The Amended SRA seeks an order for extended care with no right of access by the parties.
[6] M.P. was served with both applications and was noted in default on January 31, 2017 in respect of the SRA and on August 1, 2017 on the Amended SRA after failing to file an Answer.
[7] J.N. filed an Answer in respect of the SRA, but failed to attend at the commencement of trial on January 11 and 12, 2018. Notwithstanding the lack of recent instructions or attendance, counsel for J.N. confirmed his client's most recent instructions which were that he wanted access to P.D. Counsel confirmed that J.N. was no longer seeking access which could lead to placement, but simply an order for access.
[8] On January 12, 2018, I made an order requiring J.N. to attend on the continuation of the trial on March 8, 2018, failing which his pleadings may be struck. J.N. did not attend on March 8, 2018 although counsel received a message from his sister requesting an adjournment of the trial. J.N. had not attended in court in respect of the SRA since June 8, 2017 and had not exercised access since May 13, 2017. For reasons given orally, J.N's request to adjourn the trial was denied and J.N.'s pleadings were struck. He was noted in default on March 8, 2018.
[9] J.N. appeared in person on March 9, 2018 (which was day four of the trial) and made an oral motion to set aside my order of March 8, 2018. I declined his request, but allowed him to remain in the courtroom to monitor the proceedings. J.N. left following the morning break on March 9, 2018 and did not attend again throughout the proceedings. His counsel was excused.
Position of the Participating Parties
[10] It is the Society's position the Mother has not made sufficient gains in terms of her ability to care for the children such that they can be safely placed in her care. Given the time that the children have been in care beyond the statutory limits (i.e., 26 months as of the commencement of the trial), the options for the court are limited.
[11] An extension to the time limits was requested and granted on October 6th of 2016 to allow the parties to continue to work on the protection concerns and to assist the family with permanency planning. Following a family group planning meeting, friends of the maternal grandmother were identified as a placement for the children. The children were moved from the foster home and have been residing in the kin placement since May 14, 2017. The Society is seeking an order for extended care, without access so that the children may be adopted by the kin family.
[12] The Mother seeks to have the children returned to her care pursuant to a custody order or, in the alternative, a supervision order. As a further alternative, J.D. proposed that A.D-R. be placed in her care either by way of a custody or a supervision order and that P.D. be placed in the care of her mother, S.R. pursuant to a custody or a supervision order. In the alternative, where P.D. is placed with S.R. pursuant to a custody or supervision order, rights of access by J.D. is to be as agreed upon by S.R. and J.D. jointly.
[13] If an order is made for extended care, J.D. is seeking an order for access to both P.D. and A.D-R.
Background Facts
[14] The parties signed a statement of agreed facts on October 6, 2016 (the "SAF"). The SAF confirmed that the Society first became involved with J.D. as an adult on […], 2014 when P.D. was born. The Society was contacted by Grand River Hospital because J.D. had little prenatal care and presented as a little delayed. J.N., her partner at the time, was dishevelled and seemed to be under the influence of something. Upon investigation the Society verified concerns of increased risk of post-partum depression based in part on J.D.'s history of depression. J.N. had a seizure disorder and admitted to marijuana use. The parties agreed to work with and did work with the Society on a voluntary basis until November 9, 2015 when the children were apprehended.
[15] During the period of voluntary engagement with the Society, the Society continued to work with and had concerns about the Mother's mood regulation. Contrary to the Society's case notes, J.D. denies that she told the worker that she would go for walks or have family members care for P.D. when she was struggling with her feelings. J.D. included an addendum to the SAF to state that if she did need to get away she would go to the backyard where she could still monitor the children.
[16] When A.D-R. was born, J.D. was in a relationship with J.R. Both J.D. and J.R. questioned their ability to look after two children. J.R. reported becoming overwhelmed at times. J.D. was cautioned and agreed not to leave the children alone with J.R.
[17] On November 8, 2015, the Society was contacted by Waterloo Regional Police Services ("WRPS") following a 911 call regarding an infant with serious bruising to the abdomen. Following interviews with WRPS, J.R. admitted to becoming frustrated with A.D-R.'s crying and placing a hand roughly on her abdomen, pressing down hard causing the injuries. He was initially charged with assault causing bodily harm. This charge was later upgraded to aggravated assault. J.D. admitted leaving P.D. with J.R. until he texted her saying he was shaking because he was getting frustrated. When she came back to the apartment, she left A.D-R. in his care while she went to get a car seat. It was during this period of time that J.R. indicates that he caused the injuries to A.D-R.'s abdomen.
[18] A.D-R. was assessed at McMaster Hospital in the Child Advocacy and Assessment Program ("CAAP") on November 9, 2015. P.D. was placed in a foster home and A.D-R. remained at the hospital for further testing. A.D-R. was assessed on November 11, 2015. Dr. Baird reported that it was highly likely that A.D-R. experienced at least two episodes of inflicted blunt force trauma. Not only was there abdominal bruising, but there was also significant damage to the liver and pancreas and nine fractures to her ribs. It was determined to be highly likely that the rib fractures predated the abdominal injuries by several days. A.D-R. was approximately six weeks old at this time.
[19] On November 17, 2015, the Society received information from WRPS indicating that A.D-R. sustained another injury. C.D., S.R.'s common law partner, reported to WRPS that S.R. and J.D. went to the emergency department at St. Mary's Hospital because A.D-R.'s gums were bleeding. J.R. admitted to C.D. that he was frustrated and had forcefully pushed a bottle into her mouth. This incident pre-dated the incident on November 8, 2015 and yet none of the adults: J.D., C.D. or S.R., mentioned the bottle incident while being interviewed for the injuries observed on November 9, 2015.
[20] While the actions of J.R. caused the injuries suffered in respect of the abdominal pancreas and liver damage, the rib fractures remain an unexplained injury. The report prepared by Dr. Baird confirms that the injuries are most likely intentional and as a result of blunt force.
[21] DNA test results released on June 6, 2016 confirmed that M.P. was the biological father of A.D-R. J.R. has not had any access to the children, nor has he been involved since the determination that he was not the biological parent of A.D-R.
[22] The SAF confirms that the Society's protection concerns in December 2015 following the apprehension included:
a. the fact that J.D. had connected with three partners in the previous year which placed the children at significant risk;
b. her capacity to assess safety given the concerns with her choice of partners;
c. the decision to leave the children alone with C.R.; and
d. her capacity to accept direction and not place her children at risk.
Law
[23] In a status review hearing the original order being reviewed is presumed to be correct. This is not a re-hearing or re-trial of the order previously made. (See: Children's Aid Society of Hamilton v. C.G., 2013 ONSC 4972.)
[24] The examination to be undertaken in a status review application involves two stages. See: Catholic Children's Aid Society of Toronto v. C.M., (1994) 83 (SCC), 2 S.C.R. 165 (S.C.C.) ("CM"), and Children's Aid Society of Oxford v. W.T.C., 2013 ONCA 491 (Ont. CA) ("WTC"):
a. First, determine whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection.
b. If it has been determined that the child is still in need of protection, the court must determine which of the available range of orders is in the best interests of the child.
[25] In determining what order is required to meet the child's best interests, the court must consider the degree to which the risk concerns that prompted the original order still exist. This must be examined from the child's perspective. (See: C.M., supra and Children's Aid Society of Hamilton v. R.M. and N.M., 2015 ONSC 5101).
[26] With respect to the first part of the test in Status Review proceedings, the Supreme Court did not state that the child must be found to be "in need of protection" as that phrase is defined in subsection 37(2) of the CFSA (now subsection 74(2) of the CYFSA). What is required is that the child welfare agency involved must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future. The Ontario Court of Appeal confirmed this interpretation of the first part of the test in W.T.C., supra, at paragraph 32.
[27] The Supreme Court emphasized in C.M. that a preliminary determination of whether ongoing state intervention is required to protect the child is important to ensure that the overall objectives of the CFSA are protected and promoted. In support of its decision on this issue, the court relied heavily on the fact that these statutory objectives include the preservation of the autonomy and integrity of the family unit, and the provision of child protection services in the least restrictive and disruptive manner. The court also held that the inquiry into the child's continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on ongoing concerns respecting the parents' ability to meet the child's needs, or for reasons unrelated to the parties' parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan.
[28] Once it has been decided that the child is still in need of protection, the court must consider the least restrictive alternative consistent with the child's best interests. (See: CAS Peel v. W., 1995 14 RFL (4th) 196 (OCJ).)
[29] A crown ward order (or the placement of a child in the extended care of the Society under the CYFSA) is probably the most profound order that a court can make. The judge must exercise this only with the highest degree of caution, only on the basis of compelling evidence and only after a careful examination of possible alternative remedies. (See: CAS Hamilton v. M., [2003] O.J. No. 1274 (UFC).)
[30] Subsection 74(3) of the CYFSA sets out the factors that the court should consider in respect of what is in the children's best interests.
Subsection 74(3) of the CYFSA
74(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,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) 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,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) 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,
(ix) the effects on the child of delay in the disposition of the case,
(x) 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, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
Evidence and Analysis
[31] The Society called six witnesses which included a Child Services Worker, Ms. Simmons, two Protection Support Workers, Ms. Jacques and Mr. Mann, two Family Support Workers, Ms. Kerr and Ms Rocco; and the Kinship Services Worker, Ms. Rehkopf.
[32] The Mother called two supervised access workers, Mr. Gruszka and Ms Innanen and her mother, S.R. as witnesses.
Ongoing Need for Protection
[33] The concerns of the Society at the time of the SAF included the fact that J.D. had connected with three partners in the previous year which placed the children at significant risk; her capacity to assess safety given the concerns with her choice of partners; the decision to leave the children alone with C.R.; and her capacity to accept direction and not place her children at risk.
[34] J.D. continues to make poor choices in respect of partners which could present a risk to the children. In this regard, Ms. Kerr testified that J.D.'s latest relationship with J.E. ended with J.D. having to call her mother, S.R. to assist because an argument broke out. J.D. testified that when she decided to leave the relationship, J.E. apparently started to throw away her belongings and yell at her. J.D. acknowledged that the relationship was abusive. This relationship lasted approximately a year and continued notwithstanding the fact that J.D. was aware that J.E. had been involved with the Society in Niagara and that he only had two hours of supervised access per week with his children. Although the Society recommended that J.D. question whether this was a good choice, J.D. had no plans to terminate the relationship. The Society met with J.E. in November 2016 as part of their assessment of J.D.'s plan. The relationship ended in the spring of 2017.
[35] While J.D. is to be commended for ultimately leaving the relationship, the fact that she engaged in the first place and continued notwithstanding what should have been clear warning signs, is problematic.
[36] J.D. does not have a stable residence for the children. Ms. Kerr testified that she has concerns about where J.D. would be living and noted that there was historical conflict between herself and S.R. J.D. has been residing with S.R. on and off prior to and after the children were taken into care. One of her optional plans of care is to have the children placed with her mother while living in the home with S.R. and the children. Ms. Kerr had encouraged J.D. to engage in counselling with her mother if this was the plan to ensure that there was no conflict. Ms. Kerr was not advised of any counselling and J.D. did not provide any evidence at trial that she had engaged in any counselling with her mother, S.R.
[37] S.R. was not approved as an appropriate placement for the children because of her history with the Society; its concern about her ability demonstrate insight into potential risks that she may expose the children to; and her willingness to report protection concerns to the Society. In addition, as a practical matter, there were concerns about the proposed living arrangements. S.R. resides in a two bedroom home with seven people living in it on and off. If the children were placed with S.R. there would be six people in the home on a regular basis: J.D., S.R., J.D.'s two siblings and P.D. and A.D-R. S.R.'s partner, C.D. and his two children would continue to stay in the home occasionally, bringing the number up to nine. While efforts have been made to obtain a three bedroom home, as of the trial, these efforts had not been successful.
[38] Ms. Kerr testified that she urged J.D. to apply for housing given that she was putting forward a plan to have the children returned to her care. This direction was given in June 2017. J.D.'s evidence was that she did not drop off the application for subsidized housing until May 1, 2018; four months after the commencement of the trial. When asked why she had not taken steps earlier, J.D. could not provide a response.
[39] Similarly, the Society had been urging J.D. to engage in programing around mood regulation. At least four attempts were made to have J.D. engage prior to the signing of the SAF, but nothing was done. Even after, it was not until November 2016, that J.D. engaged in a Mood Disorders Group at Grand River Hospital. While she participated well, she did not continue with the group and claims that it ended because A.D-R. aged out and because the Understanding Me program conflicted with the times for the Mood Disorders Group. She still has not completed the Understanding Me program which is a prerequisite to the Healthy Relationships program which J.D. acknowledges would be beneficial to her.
[40] J.D. began seeing Dr. Sambrook in September 2016. She was prescribed anti-depressants and agreed that they helped with her mood regulation. Notwithstanding, J.D. chose to stop taking her medication. While she explained that she felt that the medication was affecting her energy level, she stopped without consultation with her Doctor. At trial she acknowledged that the decision to stop her medication led to depression and she has now recommitted to following her Doctor's recommendations.
[41] In response to questions around failure to pursue housing, continue with counselling and maintain the medication regime, her answers were, "I am not sure" [why she did not follow through] or "I do not know" or "I cannot remember". Her conduct and her responses do not provide the court with any confidence that she is able to, or has the insight to appreciate that she needs to address these concerns. Attending to them mid-trial is simply too little too late.
[42] Ms. Kerr was criticized by both J.D. and S.R. for a comment made early on that suggested that she was unwilling to manage J.D.'s case with a view of returning the children. Ms. Kerr expressed regret over the fact that she had been unable to prevent the injuries to A.D-R. and acknowledged that she may have had tunnel vision early on. When brought to her attention, she testified that she made a conscious effort to focus on what J.D. needed to do to have the children return to her care. There were at least six meetings between November 4, 2016 and February 21, 2018 during which Ms. Kerr laid out the expectations and discussed them with J.D.
[43] At trial, Ms. Kerr presented as a credible, empathetic witness. She was attuned to the fact that J.D. loves her children and that she wants to parent them. Ms. Kerr demonstrated a genuine desire to see this family reunited. She clearly communicated J.D.'s strengths, but identified the ongoing concerns which left her in a position whereby she could not support the return of the children.
[44] Specifically, in addition to the above, Ms. Kerr testified that she had recommended a number of counselling programs which she hoped would assist J.D. in improving her ability to parent both of the children at the same time. While J.D. attended some services, she never followed through completely and did not gain the consistency and the skills required to provide Ms. Kerr with confidence that she would be able to manage both girls. This was a concern that was identified by all of the supervised access workers at some point during their observations. This was a concern that J.D. herself had identified when she became pregnant with A.D-R. This is a concern that has not been addressed as of the trial.
[45] While J.D. has taken some parenting courses including Tender Loving Connections Group (April 19, 2016 to June 21, 2016); Raising Your Spirited Child (April 29, 2016); Controlling the Volcano Within (May 1, 2016); and Children with Anxiety (May 11, 2016), she had not taken any further programing since the SAF. She engaged in some group counselling to address mood regulation, but did not follow through. She continues to work on completing the Understanding Me program, which she had to restart because she missed too many sessions.
[46] J.D. engaged in individual counselling with Linda Toner in 2016, but only attended 3 of 8 sessions from November 23, 2015 to February 29, 2016. She re-attended with Stephanie Baird in June 2016, but only attended 9 of 20 sessions. One of the goals of these sessions was to identify and understand unhealthy relationships and to work through what happened in respect of her children coming into care. J.D. testified that she did not find individual counselling to be very effective for her and preferred group sessions. At trial she testified that she had just recommenced group counselling a couple of weeks prior to giving her evidence at trial.
[47] In addition to the lack of follow-through with housing, counselling and medications, the rib fractures to A.D-R. remain unexplained.
[48] Given the above evidence, I agree with the Society that J.D. has not taken the steps necessary to satisfy the court that the protection concerns have been addressed.
What is in the Children's Best Interests?
[49] At the second stage of a status review application, the court must look at what is in the children's best interests.
[50] Given the amount of time that the children have been in care, the options before the court are limited by section 122 of the CYFSA which provides that children under the age of six are not to be placed in Society care for more than 12 months. These children had been in care for 26 months as of the commencement of the trial. The only options before the court are to return the children, in accordance with one of the alternatives put forward by J.D. (ie., custody or a supervision order, or to make an order for extended care.
[51] The Society's plan is to have the current kin home adopt both children. Ms. Rehkopf is the Kinship Service Worker who testified about the placement. She has confirmed that the family is prepared to adopt both children. The Society considered a custody order, but the kin family needs some supports and accordingly, the order for extended care was preferred.
[52] The children are generally of good health and there are no major issues with the exception of speech and language delays which have been noted on P.D. She has been referred to KidsAbility who has been assisting the family by providing supports, training and recommendations that may assist in improving her speech and language skills. One recommendation has been that she be placed in daycare two days a week to assist with socialization and communication. P.D. has not been formally diagnosed, nor has a pathologist been assigned to her. Her speech and language continues to be assessed and continues to be delayed.
[53] The children have been in the kin home since May 2017 and are doing well. The kin family has ensured that the children continue to have access with the original foster parents with whom they developed a close bond and with J.D. and her family.
[54] J.D.'s plan of having both children return to her care is problematic given the lack of progress and permanency around her plan. She has not been able to maintain a stable home, relies on her mother with whom she continues to have an on and off relationship. As noted above, she has not moved beyond very limited and restricted access over the 26 months that the children had been in care. P.D. has language issues and J.D. has not exhibited an ability to support her.
[55] In Children's Aid Society of Toronto v. R.H., 2016 ONCJ 181 at paragraph 140, Justice Sherr addresses the difficulty of jumping from supervised access to the return of a child to a parent:
[140] The mother has only had supervised access with the child since 2012. It would be irresponsible for a court to return the child to her care until she could demonstrate that she could adequately parent the child without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the child with the mother without first testing whether she could adequately parent him, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for at least 9 months to a year for the court to effectively evaluate whether a return of the child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child on an extended basis. The time to attempt extended access in this manner has long passed as the statutory timelines in the Act have been exceeded.
[56] Consideration should be given as to whether the Society has given the parent an opportunity to parent. Where the Society frustrates contact with the parent and offers no services, this consideration must come into the equation. (see: Children and Family Services for York Region v. A.W. and M.M., [2003] O.J. No. 996 (Sup. Ct.); CCAS v. P.A.M., [1998] O.J. No. 3766 (OCJ); CAS of the United Counties of Stormount, Dundas and Glengarry v. C.K., [2001] O.J. No. 128 (Sup. Ct.)).
[57] Ms. Simmons noted that a significant amount of time and support has been provided to J.D. to improve her parenting skills and while the workers observe some improvements for periods of time, J.D. often reverts back to prior methods which are less effective. Her ability to manage both children has been an ongoing concern and Ms. Simmons noted situations where one of the children would go off in a different direction leaving the Mother unable to attend to and ensure the safety of both at the same time.
[58] This concern was reiterated by other access supervisors including Ms. Innanen and Mr. Gruszka. While Ms. Innanen and Mr. Gruszka acknowledged improvement in her access visits, they both observed times when J.D. seemed to struggle with the care of both children at the same time. This is particularly important given the fact that J.D. has never parented the children alone. Prior to their apprehension she either lived with her mother, with the children, or with J.N. There is no evidence before the court that she is able to effectively parent both children on a full-time basis.
[59] The issue is not whether the children will be better off with parents other than the natural parents. If that was the criterion for a protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving a level of parenting care that is below the minimum standard tolerated in our community. (See: Sask. Minister of Social Services v. E.(S.), [1992] 5 WWR 289 (Sask. QB); Family & Children's Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 453.)
[60] While terms of supervision could be included in any order returning the children, I am not satisfied that terms of supervision would adequately protect the children. J.D. confirmed in her examination that she would comply with terms of supervision, would follow through with counselling and medications, and ensure that all caregivers were approved. However, her lack of engagement and last minute efforts do not provide the court with any confidence that she will be able to follow through.
[61] Counsel for the Society reviewed and suggested that the court focus on the following three best interests factors when assessing the children's best interests:
74(3)(c)
(viii) 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,
(x) 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, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[62] With respect to the degree of risk, the Society refers to the fact that J.D. engaged in at least three partners who posed a risk to the children. J.D. expressed her concerns about her ability to care for two children to at least three individuals. Notwithstanding her acknowledgement of the risks posed and her commitment not to leave the children alone with C.R., she did and A.D-R. suffered significant injuries as a result. The 9 rib fractures remain as unexplained injuries. These facts support a finding of a high degree of risk.
[63] It is the Society's position that J.D. continues to pose a high level of risk to the children if they were to remain in her care because of her lack of follow-through on the expectations and because of her presentation and actions following the apprehension. The Society has supported J.D. and provided her with every opportunity to meet the expectations which were clearly laid out for J.D. There is no evidence before the court that she has addressed the protection concerns as of the date of the trial. The expectations continue to be a work in progress. As a result the risk of harm continues to be high which is not in the children's best interests.
[64] With respect to the merits of the plans, the children are doing well in the kin placement. Their emotional, physical and developmental needs are being met. Ms. Simmons, the Child Services Worker, noted that the children are particularly close and testified that she has observed several occasions where they seek comfort and are affectionate with each other. She described seeing them holding hands and looking out for each other. This bond has been noted by other supervised access workers and any plan that separates the children, even if only between J.D. and S.R., does not recognize and support the importance of this sibling bond. The Society's plan is to keep the children together in their current kin home.
[65] With respect to the permanency of each of the plans, Ms. Simmons raised concerns about the plan that the children would be placed with S.R., given the significant conflict between J.D. and S.R. over the years. This conflict has led to some instability as J.D. moved in and out of her mother's home with P.D. before A.D-R. was born. Ms. Simmons suggested it was reflective of the amount of conflict in that relationship. She also raised concerns about the appropriateness of the home being proposed by S.R. and those concerns are set out above.
[66] Ms. Rehkopf prepared the kin assessment. The assessment confirms her inability to recommend S.R. as a placement for a number of reasons. While there were concerns about the size of the home and the number of individuals proposed to reside in the home and S.R.'s lengthy history with the Society, she was most concerned about S.R.'s judgment and decisions which are indicative of repeat patterns of poor decision-making which brought her own children into care. Specifically, her failure to report to the Society when there are protection concerns for the children. Historically, she had not reported when her children raised concerns about being sexually assaulted. More recently, S.R. was given information that the initial injury to A.D-R.'s mouth was or could likely have been caused by J.D.'s boyfriend at the time, C.R. Rather than reporting this information to the Society or to the hospital who were presuming that it was purely accidental, she withheld the information. Her response when asked why she did not report, was that she was not the caregiver at the time and therefore any obligation to report was on her daughter and she did not feel that it was her position. That response raises concerns about S.R.'s ability to act appropriately if protection concerns are raised in the future.
[67] Ms Rehkopf testifies about how she view kin as an extension of the Society. They have a duty to report and without that, there is a lack of trust. The kin must place the children's safety above all, even their own children's interest. Ms Rehkopf was concerned about S.R.'s ability in this regard. Given the incident with the bottle, I share those concerns. S.R. should have recognized the potential risk when C.R. disclosed what he had done. She should have recognized the importance of the Society's caution that C.R. not be left alone with the children and instead she denied being told about that expectation.
[68] Similarly, historically there have been concerns about domestic violence and S.R.'s choice of partners. There were instances in the course of the assessment during which S.R. advised that she had very serious concerns about the male partners J.D. chose to bring into her home. Notwithstanding these concerns, she allowed her 12 year old daughter to go to J.D.'s apartment, unattended, on the basis that she expected that her daughter would leave if she felt uncomfortable or if there were negative influences in the home.
[69] Given the seriousness of the injuries to A.D.-R. in this case, and the lack of ability to accept responsibility and acknowledge the issues, the Society was unable to approve the kin assessment for S.R. I share those concerns and am not satisfied that a placement of the children, or one of them, with S.R. is in the children's best interest.
[70] Subsection 74(3)(c)(vii) of the CYFSA which addresses the importance of continuity in a child's care and the possible effect on the child of disruption of that continuity is also an important consideration in this case. A.D-R. has only lived with J.D. for six weeks of her life. P.D. was removed when she was just over a year old. Both had lived in the current kin home for a year at the time of the trial. While counsel for J.D. indicated that J.D. acknowledges the importance of this relationship and that she would continue to maintain the connection, the removal of the children from this secure placement would be disruptive.
[71] For all of the above reasons, I am satisfied that an order placing the children in the extended care of the Society is in their best interests and is the least intrusive option which will ensure the children are protected.
Access
[72] Subsections 105(5) and (6) of the CYFSA provide the statutory framework for determining access rights to children who have been placed in the extended care of the Society. Specifically, section 105 provides as follows:
Existing access order terminated if order made for extended society care
s. 105(4) Where the court makes an order that a child be in extended society care under paragraph 3 of subsection 101(1) or clause 116(1)(c), any order for access made under this Part with respect to the child is terminated.
When court may order access to child in extended society care
s. 105(5) A court shall not make or vary an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c) unless the court is satisfied that the order or variation would be in the child's best interests.
Additional considerations for best interests test
s. 105(6) The court shall consider, as part of its determination of whether an order or variation would be in the child's best interests under subsection (5),
(a) whether the relationship between the person and the child is beneficial and meaningful to the child; and
(b) if the court considers it relevant, whether the ordered access will impair the child's future opportunities for adoption.
[73] This language marks a change from the former section 58 of the CFSA which provided as follows:
Access: Crown ward
(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption. 2006, c. 5, s. 17 (2).
[74] The changes in the legislation have been addressed in a number of decisions including by Justice Kukurin in Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.H., 2018 ONCJ 453 ("C.H."); Justice Sager in Jewish Family and Child Service of Greater Toronto v. K.B., 2018 ONCJ 650 ("K.B."), and by Justice O'Dea in Family and Children's Service of Guelph & Wellington County v. T.S., 2018 ONCJ 411 ("T.S."). The following principles can be derived from these decisions:
The onus remains on the parent to establish, on a balance of probabilities, that access is in the best interests of the child. (See: C.H., paragraph 23; T.S., paragraph 50; K.B., paragraph 130)
Beneficialness and meaningfulness is no longer the sole criterion (apart from the adoption question) defining the access onus. Reading subsections 105(5) and (6) together, the beneficialness and meaningfulness criterion should be given no greater weight than the balance of the subsection 74(3) criteria. (See: T.S., paragraph 52; K.B., paragraph 140)
The pre-CYFSA case law defining beneficial and meaningful may still applicable, but the definitions should not overpower the balance of the best interests factors. (See: T.S. para 52; K.B. paragraph 142)
The court also has to decide if the impairment of future opportunities for adoption is or is not a relevant consideration in the case. If it is not, future adoption opportunities, and any impairment of them, are of no further consequence. If it is, then the court must consider the evidence that relates to such future opportunities, and to the impairment of them that making an access order will bring about. (See: C.H., paragraphs 14 and 15)
There is no longer a "formal" requirement that both of these considerations (i.e., beneficial/meaningful relationship, and no impairment of adoption opportunities) must be demonstrated to the satisfaction of the court by the person seeking post extended care order access. (See C.H., paragraph 13)
The introduction of the best interests test in the CYFSA brings a less rigid and more flexible approach to deciding whether to order access to a child placed in the extended care of the Society, as a court is now permitted to give consideration to any factor it considers relevant, one can assume, on the well accepted principle in cases involving children that one size does not fit all. (See: K.B., supra, paragraph 141).
The court should not consider the possibility of any openness application in determining whether access is in the child's best interest. This is consistent with the pre-CYFSA case law (See: T.L.K. v. Children's Aid Society of Haldimand Norfolk, 2015 ONSC 5665).
[75] The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family. In fact, the permanency plan for such child is necessarily with someone else. So why have an access order? The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful. That is not to say that if the access seeker is, for example, a parent of the child, there is an automatic presumption that access between the child and that parent is beneficial or meaningful. It must still be shown to be. The same applies for any other category of access seeker, and even the child itself if he or she is seeking access.
[76] As noted by Justice Sage in K.B., at paragraph 139:
[139] The presumption against access to a child who is placed in extended care must be considered in light of the paramount purpose of the CYFSA, "to promote the best interests, protection and well-being of children". It therefore must be presumed under the CYFSA that in order to promote the best interests, protection and well-being of children placed in extended society care, outstanding access orders must be terminated -- unless the person seeking access can rebut that presumption. A determination of whether access is in a child's best interest includes a consideration of whether the child enjoys a relationship with the access parent that is beneficial and meaningful to the child.
[77] Pursuant to subsection 105(7) of the CYFSA, the court must specify who is an access holder and who is an access recipient in its decisions.
Court to specify access holders and access recipients
s.105(7) Where a court makes or varies an access order under section 104 with respect to a child who is in extended society care under an order made under paragraph 3 of subsection 101(1) or clause 116(1)(c), the court shall specify,
(a) every person who has been granted a right of access; and
(b) every person with respect to whom access has been granted.
[78] In Children's Aid Society of Toronto v. E.U., 2014 ONCJ 299, the court found that granting the parents a right of access to a 9-year-old child would impair the child's opportunity to be adopted by the foster parent as the parents kept trying to undermine the placement. Granting an access order would lead inevitably to litigation over openness and the foster parents were becoming increasingly frustrated with the parents. However, the child was granted access rights to the parents as the foster parents respected the child's desire to have contact with the parents and could negotiate with the child an openness arrangement without the likelihood of litigation.
Analysis of the Evidence
[79] Ms. Kerr noted as a strength the fact that J.D. attended the access visits on time and that she worked co-operatively with the access supervisors. Neither J.D., nor S.R. are confrontational or aggressive with the workers. J.D. was receptive to supports and guidance and while she would be able to demonstrate improvements, the gains were not sustained.
[80] Of concern, however, was the fact that there were periods of time where J.D. was not consistent with her access which she acknowledged was not beneficial to the children. As of the trial, her access had been pulled back to one access visit per week, because of missed visits and failure to meet with the Society. At one point J.D. had been attending visits four time per week, it was then dropped back to two visits per week and she was not successful making those visits resulting in a decision to secure commitment to one visit per week. Ms Rocco anticipated that if J.D. consistently attended these access visits, access would increase and return to two times per week.
[81] Ms Innanen is a social worker who had supervised a number of access visits. Again, she confirmed that overall the access visits are relatively positive and confirmed that the mother was able to follow directions and look after the basic needs of the children. The access visits that she observed were approximately 1.5 hours long. Most of the visits that were supervised by Ms. Innanen occurred at the group access centre and with the exception of one access visit, S.R. was present. It is notable that the description of the one access visit when S.R. was not present was significantly more chaotic than when there were two caregivers present.
[82] Mr. Gruszka was also a Supervised Access Worker who worked in the group access setting. He supervised approximately 62 visits between J.D. and the children. As he indicated, he has been a supervised access worker for 14 years and has worked with the agency for 26 years. He describes himself as having a very high threshold in terms of tolerance. He explained that when analyzing a parent's ability to care for a child it is sometimes comparative and that this mother was comparatively good. He noted that while many workers might consider a child climbing on a chair as a safety concern, he has now seen it so many times that he feels it is more of a natural occurrence.
[83] He noted several times throughout his testimony that he felt that S.R. took the lead in terms of parenting when both S.R. and J.D. were present for the access visits. He felt that J.D. had learned from S.R.'s conduct and that when she was forced to be the primary caregiver because S.R. was not at a visit that her ability to manage the children improved over time.
[84] He only raised concerns about J.D.'s inability to manage both children in larger room settings. In particular, in the gym and on the playground, he noted at least three or four occasions where he felt he needed to intervene because one child would be running from the room and J.D. was not able to contain both children. He would then suggest that J.D. move to a smaller area where the children would be more confined and therefore not at risk of getting lost or hurting themselves.
[85] Ms. Jacques was the protection support worker who worked with this family from November 19, 2015 until December 29, 2017 when she left the agency. She has supervised over 30 access visits with J.D.
[86] Overall, while she found J.D. to be cooperative and willing to take criticism, she suggested that her main concern was the fact that J.D. still required significant support in order to properly parent. By way of example, she noted that a large part of her role was to provide teachable moments and to assist parents in their access visits. She utilized the Tender Loving Care program and teachings to try to instill consistent good parenting patterns with J.D. She noted that while there may be some improvements over periods of time, the mother would then often revert to old practices or would need further reinforcement in order to continue a skill. Ms. Jacques also noted a significant bond between the two girls and gave several examples of how they would support and encourage each other in play and other activities during her observations.
[87] Her case notes in particular highlighted the difficulties observed in transitions at the commencement of the access visits. P.D. was particularly clingy and resistant at the beginning of access visits and needed significant encouragement. While this did dissipate after approximately 10 minutes, and Ms. Jacques acknowledged that J.D. was very good at engaging her daughter and playing with her at her level, she did note that it took several weeks to get her comfortable enough to minimize transitional issues. Unfortunately about the time that the transition began to improve, there were several cancelled visits as a result of lice and then a series of no-shows by J.D. It seemed clear from her evidence that upon her return after several weeks of absence that the transitional issues were again pronounced and problematic. There is no doubt that this created some challenges for P.D.
[88] Mr. Mann supervised some of the access visits with J.D., both prior to the first interim care order and some visits following that order. While he acknowledged that there had been improvement in terms of J.D.'s ability to follow the children's lead particularly in the Early Years Centre, he still noted concerns about her ability to keep track of both of the children. Mr. Mann noted as a positive, J.D.'s engagement in the Mood and Dance programming and her follow-up when the children would get into arguments with each other. She was particular about ensuring that they apologized to each other and to ensuring resolution of any issues.
[89] The onus is on J.D. to prove that access is in the children's best interests. Best interests include their views and preference which in this case are difficult to ascertain given the ages of the children. Suffice to say, however, that they have been disappointed by cancellations and at times appear to be able to either take or leave the visit.
[90] The court is also to consider whether the relationship is beneficial and meaningful. I would agree that under the new legislation, these criteria do not necessarily have any greater weight than the other factors, the evidence in this case does not establish that the visits are beneficial and meaningful to the children.
[91] In this case, counsel for the Society conceded that access would not impair the adoptability of these children. The kin placement is a family friend who considers J.D. and S.R. as family and has included them in activities with the children. They have been facilitating access for J.D. and S.R and with the previous foster family.
[92] Given the Society's concession, an access order is appropriate, but the children should be the access holders.
Order
[93] For the reasons set out above, the following Order is to issue:
1. The children, P.D. born […], 2014 and A.D-R. born […], 2015 shall be placed in the extended care of the Children's Aid Society of the Regional Municipality of Waterloo, until the extended care order is terminated under section 114 or expires under section 123.
2. The children will have a right of access to J.D. at the discretion of the Society and the children shall be the access holders.
Released: November 23, 2018
Justice B.C. Oldham